We avoided reporting on The Pirate Bay trial yesterday because not much of interest actually happened. It was (as The Pirate Bay folks intended) more of a spectacle than anything interesting. However, this morning, the prosecutors dropped half the charges against the defendants, apparently after realizing that The Pirate Bay did not copy any files directly or produce any copyrighted materials for download. While the entertainment industry talking heads are trying to play down the significance of this, it is really rather stunning. Prosecutors have been working on this case (with tremendous assistance from the industry and even foreign government representatives) for well over a year. You would have thought that sometime during that process they would have examined how The Pirate Bay works, and whether or not it actually copies files. It kinda makes you wonder what the prosecution has been doing all this time.

We're getting close to the start of the big Pirate Bay trial in Sweden that hopefully will settle the question of whether or not running a torrent tracker search engine is legal in that country. Apparently, the trial is being held in a rather small courtroom, and there was some fear that this would significantly limit media access (especially since all media requests were supposedly being screened to make sure that the reporters "had no connection to the movement" -- whatever that means). The good news, however, is that the court has agreed to the request from The Pirate Bay to stream the audio from the trial. Should be worth paying attention to what happens...

The RIAA seems so positively offended that its "making available" theory keeps getting rejected by courts that it's willing to object to just about anything. As you probably know, the RIAA's only "win" in a full trial was declared a mistrial, after the judge realized he had made a "manifest error of law" in incorrectly instructing the jury that simply making a file available in a shared folder was the equivalent of "distribution" under copyright law. The judge then ordered a new trial.

It probably shouldn't come as a surprise that the RIAA is appealing this decision, asking an appeals court to overturn the mistrial ruling and let the original ruling stand. While it may not be a surprise that the RIAA would be upset at the ruling, filing an appeal on a mistrial ruling is highly unusual. Normally, appeals are focused on actual rulings, not a decision that a trial was a mistrial. It seems like a long shot that the appeals court would agree to review the mistrial ruling.

The RIAA's only court victory in its years-long legal battle against individuals who engage in unauthorized file sharing has been declared a mistrial, and the $222,000 fine against Jammie Thomas has been thrown out. Jammie Thomas may now face a new trial, but this time, the jury will be instructed that the record labels need to have shown actual infringement -- and that simply making files available is not infringement. This is a pretty huge loss for the RIAA, who had been running around like crazy using the Thomas verdict to (a) claim that the courts recognize that "making available" is infringement and (b) that this case somehow proves that file sharers will get huge fines. Yet, now the RIAA is back to having no actual court victories against file sharers, and its "making available = infringement" argument is once again rejected.

Perhaps equally as interesting, in declaring the mistrial, Judge Davis also called upon Congress to change the ridiculous fines that can be levied on file sharers, noting that they seem to be way, way out of proportion to the seriousness of the act:

The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer-to-peer network cases such as the one currently before this Court. . . . While the Court does not discount Plaintiffs' claim that, cumulatively, illegal downloading has far-reaching effects on their businesses, the damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs.

In the ongoing saga of the Jammie Thomas trial, where the RIAA tried to get its first serious victory in court against an alleged file sharer, things may be looking a bit grim for the RIAA's argument. While it initially gloated after winning the case, the judge later admitted that he may have made a "manifest error of law" in saying that the RIAA did not need to prove actual infringement -- but that showing Thomas had "made available" content was good enough. While both the MPAA and the RIAA tried to explain why actual proof of infringement shouldn't be necessary because it's just too difficult (the gist of their arguments), it appears that the judge is not at all persuaded by their arguments and seems quite likely to declare a mistrial.

In the hearing today, the RIAA's lawyer basically argued the same point: that because it's too difficult to obtain evidence, evidence shouldn't be necessary. The judge responded by pointing out that if Congress really intended for that to be the case, then it would have written the law to make it clear that "making available" was infringement. Since it did not, it seemed likely that Congress did not intend for the law to be read as the RIAA wants it to be read (have no fear, of course, because as we speak you can rest assured that RIAA/MPAA lobbyists are working to get the law changed on this point).

Of course, whoever loses this ruling will appeal, this case is far from over. It will go through a series of appeals to determine whether or not the whole "making available" aspect is distribution, and then even after that's settled there are numerous other points that Thomas is likely to appeal (assuming the case is still going). What I don't understand is why Thomas and her lawyer haven't also appealed over the fact that the RIAA later admitted that a key witness lied on the stand concerning a key point over the legality of making personal copies of music you bought. That would seem to also be an important point.