## Facts

- Capitol Records, Inc. and other recording companies owned the copyrights in 24 sound recordings.
- Jammie Thomas used the peer-to-peer file-sharing program Kazaa to download and distribute the copyrighted recordings.
- The plaintiffs sued Thomas for copyright infringement, seeking injunctive relief and statutory damages (plus costs and attorney’s fees).
- At trial, the jury received instructions on both the exclusive right to reproduce copyrighted works and the exclusive right to distribute copies or phonorecords under 17 U.S.C. § 106(3).
- Jury Instruction No. 15 stated that the distribution right was infringed if the copyrighted recordings were “made available” on a peer-to-peer network without a license, “regardless of whether actual distribution has been shown.”
- The jury found Thomas liable for willful infringement of all 24 recordings and awarded statutory damages of $9,250 per work, totaling $222,000.
- The jury’s special-verdict form did not identify whether liability rested on reproduction, distribution, or both, and did not explain the damages rationale.
- After trial, Thomas moved for a new trial or remittitur; the court also, on its own initiative, reconsidered whether Instruction No. 15 correctly stated the law governing the § 106(3) distribution right and invited supplemental briefing (including amicus participation).

## Issues

1. Whether a copyright owner can prove infringement of the § 106(3) distribution right by showing only that copyrighted sound recordings were made available for download on a peer-to-peer network, without proof that copies were actually disseminated to members of the public.
2. Whether the “making available” distribution instruction was a legal error that could have affected the verdict, requiring the court to vacate the judgment and grant a new trial under Fed. R. Civ. P. 59.

## Decision

- The court held that “distribution” under 17 U.S.C. § 106(3) requires actual dissemination of copies or phonorecords, not merely making works available for others to obtain.
- The court concluded that Jury Instruction No. 15 misstated the law by allowing the jury to find a distribution-right violation “regardless of whether actual distribution has been shown.”
- Because the verdict form did not reveal whether the jury found liability based on reproduction, distribution, or both, the court could not treat the instructional error as harmless.
- The court vacated the jury’s liability finding and the $222,000 statutory-damages award and granted a new trial.

## Legal Principles

- The exclusive right “to distribute copies or phonorecords … to the public by sale or other transfer of ownership, or by rental, lease, or lending,” 17 U.S.C. § 106(3), requires an actual transfer or dissemination of a copy or phonorecord to a member of the public.
- Making copyrighted files available on a peer-to-peer network, standing alone, is insufficient to prove a violation of the § 106(3) distribution right.
- Actual dissemination may be proved through circumstantial evidence; the Copyright Act does not require direct evidence of each completed download, but there must be proof from which dissemination can be found.
- International agreements and legislative history do not permit a court to add a “making available” standard to § 106(3) where the statutory text is read as requiring actual dissemination.
- A materially incorrect jury instruction that may have supplied a legally invalid route to liability warrants a new trial when the record does not show that the verdict necessarily rested on a valid alternative ground.

## Conclusion

In this post-trial decision arising from a Kazaa file-sharing trial, the District of Minnesota set aside a willful-infringement verdict and a $222,000 statutory-damages award because the jury had been instructed that merely making recordings available on a peer-to-peer network infringed the § 106(3) distribution right even without proof of actual distribution; holding that § 106(3) requires actual dissemination and that the error could have affected the verdict given the opaque verdict form, the court vacated the judgment and ordered a new trial.


Capitol Records, Inc. v. Thomas, 579 F.Supp.2d 1210 (2008)