The judge won't commit to a decision until the end of September but makes strong allusions to a likely declaration of a mistrial, which would force the RIAA to present a new case that clearly proves songs were illegally transferred from Thomas' PC to others without label permission. Judge Davis in May had already suggested the fine may have been a mistake and maintains this position today.

"Certainly, I have sent a signal to both sides of where I'm headed," he says.

The RIAA at the hearing maintained its past objections to these interpretations of the Copyright Act, contending that illegal transfers are implied by virtue of making the content available and that KaZaA and other peer-to-peer services are used explicitly in this way. Such downloads are conducted "behind a veil" and hurt music labels without any viable way to track them, says RIAA attorney Donald Verrilli Jr.

Thomas' own attorney, Brian Toder, countered the argument by warning that it would create a dangerous new precedent for right of recovery, allowing the RIAA and other organizations to collect fines without having to prove an actual violation. Test downloads by the RIAA from Thomas' KaZaA account don't count as the RIAA owns the rights to the music it downloaded, the legal representative adds.

While a retrial won't necessarily hand victory to Thomas, a successfully altered verdict would deal a blow to the RIAA's approach of deterring transfers of bootleg tracks. The American music organization has so far relied on intimidating suspected file sharers through lawsuits and encouraging them to settle out of court for thousands of dollars rather than face a costlier trial to challenge the merits of the case.