MPAA Unable to Provide Evidence for Actual P2P Distribution

The Motion Picture Association of America has been doing a lot of thinking lately, apparently; the outcome – a new theory according to which collecting damages (on behalf of the copy owners) shouldn’t depend on the possibility of proving the occurrence of unauthorized distribution.

"It is often very difficult, and in some cases impossible, to provide such direct proof when confronting modern forms of copyright infringement, whether over P2P networks or otherwise." (…)"Understandably, copyright infringers typically do not keep records of infringement. Mandating that proof could thus have the pernicious effect of depriving copyright owners of a practical remedy against massive copyright infringement in many instances."

It all started with the trial of Jammie Thomas who was found made accountable for $9,250 in damages per song for a total of 24 tracks (which adds up to $222,000 in full amount damages) that she shared copyrighted content online. Things didn’t go that smooth though because no one could tell for sure if at least one of the 24 songs had been downloaded by someone else, without counting the investigators.

Lacking a solid proof Judge Michael Davis urged the jury to consider in making their decision Thomas’s intention to share files.

MPAA in its amicus brief said that only by "making available" copyrighted content on a peer-to-peer network a person should be held liable for copyright infringement. Moreover, the group "urges the Court not to impose any requirement of actual distribution" due to the fact that content holders are entitled through the Copyright Act to a broad right of distribution which extends beyond the control over actual distributions.

The Electronic Frontier Foundation counterattacked with its own amicus brief, according to which the Copyright Act offers no such "making available" right to copyright owners. Additionally, it concluded that trade groups should be refused evidence provided exclusively by downloads made by their own investigators as sufficient to incriminate alleged file sharers.