In the only case in the US where the recording industry actually got a win and was soon overturned, the Judge has made clear his displeasure with their poor legal advice on a definition of the law and denied them an appeal , they will have to go to trail again if the want another try at convicting Thomas of file distribution http://arstechnica.com/news.ars/post/20081229-riaa-appeal-in-jammie-thomas-case-refused.html
When federal judge Michael Davis threw out the RIAA's $200,000+ verdict against Minnesota single mom Jammie Thomas earlier this year, the RIAA wanted to appeal. Unfortunately for the record industry, one can't generally appeal in the middle of a trial without the judge's permission, and Judge Davis dropped a pre-Christmas lump of coal in the RIAA's stocking by refusing the request.
The RIAA wanted to appeal Davis' September 24, 2008 Order in which he vacated the original trial verdict because of a flawed jury instruction. According to Davis, Eighth Circuit law requires that an "actual distribution" take place before someone can be said to have infringed copyright; Davis' jury instructions had said (on RIAA advice) that merely "making available" files for download on P2P networks could count as infringement.
Saying that the Eighth Circuit Court of Appeals was quite clear on the matter, Davis refused to allow the appeal in a December 23rd order. "While Plaintiffs can point to a number of courts from other jurisdictions that have disagreed with this Court's conclusion," he wrote, "the Eighth Circuit Court of Appeals has explicitly held that actual distribution is required."
This is good news for justice and common sense, how the RIAA can pretend a right of copy (copyright) has been breached when they showed no proof of any copy is beyond me.