Confused yet? Well that's probably the point. In fact, like much of what RIAA lawyers claim, their justification for appealing the decision doesn't seem to have much in common with the facts. It goes something like this.
The entire "making available" claim is based on a number of cases involving secondary infringement. In each of those cases the defendant was a third party who contributed to someone else's copyright infringement. In setting aside the original judgement and ordering a new trial Judge Michael J. Davis said as much.
Now RIAA lawyers are asking to delay the new trial while they appeal his decision to grant the new trial. And the reasoning behind the request? Basically they're ignoring what the judge said and claiming there's dissent among different judges as to whether simply offering files for download constitutes distribution of those files.
The problem with this is that the only reason there's any confusion is the RIAA's use of unrelated cases in the first place. And that's what the judge dealt with when he granted a new trial.
What's more, if the RIAA did actually have a case for appeal they'll get that chance after the new trial is finished. As Thomas' lawyers are pointing out in a new memorandum filed with the court that would basically give them an extra appeal they're not entitled to.
Written by: Rich Fiscus @ 12 Nov 2008 23:06
