In the upcoming appeal of the $222,000 judgment against Ms. Jammie Thomas, the outcome will likely turn on Jury Instruction #15, which equates "making available" with "distributing" a copyrighted work. If the appeals court rejects that jury instruction, the verdict against Ms. Thomas would have to be thrown out and the case re-tried.

Here's the instruction that was read to the jury:

Jury Instruction #15: The act of making copyrighted sound recordings available for electronic distribution on a peer-to-peer network, without license from the copyright owners, violates the copyright owners' exclusive right of distribution, regardless of whether actual distribution has been shown.

There are two distinct things wrong with this instruction.

First, the "distribution right" set out in Section 106(3) of the Copyright Act simply does not extend to Internet transmissions. It may sound odd, but "distribution" as defined in the Copyright Act requires that a physical object change hands (remember, this is a law that was written in 1976). EFF laid out this argument in its amicus brief in the Elektra v. Barker case, building on a 2001 article by University of Texas copyright law professor R. Anthony Reese.

Second, even if the "distribution right" reached Internet transmissions, a copyright owner must prove that a distribution actually took place (i.e., that someone actually downloaded from Ms. Thomas' computer). As a result, Jury Instruction #15 is wrong when it asserts that the record companies can prevail "regardless of whether actual distribution has been shown." For more on this issue, read the amicus brief filed by CCIA in Elektra v. Barker, as well as the 2005 ruling by Judge Patel in the Napster case.

For the full battery of arguments on both sides, take a look at the briefs filed in Elektra v. Barker (amicus briefs were filed by EFF, CCIA, RIAA, MPAA, Dept. of Justice). The court heard argument in that case back in January 2007, but still has not issued a decision on the "making available" issue.

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