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The fact that the Supreme Court declined to resolve that issue can be seen as kind of victory for the defense lawyers who’ve spent untold hours and money representing Thomas-Rasset at no charge, said Kenneth Port, director of the Intellectual Property Institute at William Mitchell College of Law. “They are the heroes in this case,” he said.
Unfortunately, Port said, it remains unresolved whether active distribution is required for a copyright violation to occur. Port, who wrote a friend-of-the-court brief in the case, said the plain language of the statute does not equate “distribution” with making a protected work available to others. Congress has amended the law a number of times but has failed to change that, he said.
Issue could resurface
Kiwi Camara, a Houston intellectual property lawyer who represented Thomas-Rasset in the appeal to the Supreme Court, said in an e-mail that its refusal to hear arguments in the case was disappointing. He said the issue could return to the court in the case of Joel Tenenbaum, which is currently pending in the First Circuit. Tenenbaum faces a judgment of $675,000 for 31 songs he distributed while a student at Boston University.
Thomas-Rasset said she hasn’t been thinking much about her case. She said she has more important considerations, like the arrival of her first grandson, Cole, nine months ago. “He’s a hoot!” she said.