Yesterday, Chief Judge Michael Davis of the U.S. District Court for the District of Minnesota declared a mistrial in the only RIAA file trading suit to see the inside of a courtroom, nearly one year after a Duluth jury found that Jammie Thomas had willfully infringed 24 copyrighted works and awarded $222,000 in statutory damages. According to Chief Judge Davis' order, the mistrial resulted from his erroneous instruction to the jury that "[t]he 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. [emphasis added].

The court's decision embraced the Eighth Circuit's "plain meaning" interpretation of § 106(3) found in National Car Rental System, Inc. v. Computer Associates International, Inc., which requires "an actual dissemination of either copies or phonorecords." In so doing, the court rejected the more flexible "making available = distribution" standard espoused by the Fourth Circuit in Hotaling v. Church of Jesus Christ of Latter-Day Saints, a decision that Chief Judge Davis described as unsupported by case law and "guided by equitable concerns."

Perhaps most interesting (given the fact that the RIAA appears likely to prevail in the re-trial), is Chief Judge Davis's use of the order as an opportunity to "implore Congress to amend the Copyright Act to address liability and damages in peer-to-peer cases," particularly in cases where the infringing defendant is a consumer who is not pirating music for profit. The court emphasized that, while it does not condone illegal downloading of copyrighted materials, it considered the damages awarded, which were more than 500 times the cost of purchasing 24 separate CDs, "unprecedented and oppressive" and "wholly disproportionate to the damages suffered by Plaintiffs."