San Francisco - The Electronic Frontier Foundation (EFF) and a coalition of consumer and industry groups have asked a judge to grant a new trial to Jammie Thomas, who was hit with a $222,000 judgment in a file-sharing lawsuit based in part on the recording industry's bogus "making available" theory.

Thomas' trial and the staggering financial penalty made headlines around the world. In the case, the Recording Industry Association of America (RIAA) sought to hold Thomas liable for unauthorized distribution of digital music over the Internet without having to prove that anyone actually downloaded songs from her. The RIAA argued that simply making the songs available in a shared folder on her computer was enough to impose penalties, and a jury found Thomas liable for $220,000 in October of 2007.

But earlier this year, the judge in the case said he was concerned that he might have made a mistake when he followed the RIAA's reasoning in his jury instructions and asked for more briefing on whether Thomas deserved a new trial. In an amicus brief filed today, EFF argues that the RIAA cannot take shortcuts when it takes music fans to court.

"The Copyright Act simply does not allow suing someone for attempted copyright infringement," said EFF Staff Attorney Corynne McSherry. "If the RIAA wants to continue with its mass litigation campaign, it's going to have to invest the time and resources to actually prove those cases -- if it can -- by showing that infringement actually occurred."

The RIAA has sued more than 20,000 individuals for allegedly sharing music over the Internet since it started its lawsuit campaign in 2003.

"The RIAA's specious 'making available' argument threatens to brand people as thieves when the evidence isn't really there," said EFF Senior Intellectual Property Attorney Michael Kwun. "We're pleased the judge is taking a second look at this critical question."

Joining EFF on the brief were Public Knowledge, the United States Internet Industry Association, and the Computer and Communications Industry Association.

For the full amicus brief:

For more on Capitol v. Thomas:


Corynne McSherry
Staff Attorney
Electronic Frontier Foundation

Michael Kwun
Senior Intellectual Property Staff Attorney
Electronic Frontier Foundation

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