In April 2006, Ms. Jammie Thomas was sued by the Recording Industry Association of America for copyright infringement after more than 1700 music files were traced to a computer used by her. Ms Thomas was accused of using the peer-to-peer file sharing software program Kazaa to download copyrighted sound recordings from other Kazaa users and distributing the same.

On 4 October 2007, a federal jury in Minnesota found in favour of the record companies and ordered Ms Thomas to pay the six record companies that sued her $9,250 for each of 24 songs they focused on in the case. The total fine, which is approximately £108,000, sends a clear message to those using peer-to-peer networks to share copyright protected material.

The legal point of interest in the case is Jury Instruction no. 14. which initially provided that the mere act of making copyrighted sound recordings available for electronic distribution on a peer-to-peer network, without license from the copyright owners, does not violate the copyright owners exclusive right of distribution, regardless of whether actual distribution has been shown. The issue was thus whether making a file available over a peer-to-peer network meant distribution as provided in the US Copyright Act, 1976 (the Act) and therefore led to copyright infringement. That is, whether it was necessary that a tangible copy actually be distributed, or whether simply creating the possibility of that distribution was sufficient.

The presiding judge did not deliberate upon this topic before amending the Instruction to provide that the act of making copyrighted sound recordings available for electronic distribution violated the copyright owners? exclusive copyright. Many have criticised the case on this point as they believe that such an instruction made it easy for the jury to give a verdict in favour of the RIAA. Indeed, the defendant has appealed on this point.

Another issue raised by the case was the changing contours of the doctrine of fair use. At the trial stage, the recording industry gave a very broad definition of stealing content and suggested that even when consumers made a single copy for personal use of the music which they had already purchased, it could be equated to stealing and thus did not fall under fair use. It remains to be seen how such arguments are sustained at the appeal stage.

It appears that the RIAA are between a rock and a hard place in opposing online piracy. As they struggle to protect the rights of their members, they are seen as being heavy handed and disproportionate in their actions. However, rights holders are more keen than ever to educate users that copyright infringement is theft and will be treated as such by the courts.