Virgin v. Thomas
I wrote a column for latimes.com about a milestone reached today in the RIAA's litigation campaign against file-sharers, which recently entered its fifth year: of the 30,000 people sued or threatened with a lawsuit, one of these cases will actually go to trial. The lucky(?!?) defendant is Jammie Thomas of Brainerd, Minnesota, who's being sued by six record labels and/or label groups.
One thing I've learned from writing about lawsuits is that you can't judge a case from the pre-trial filings, and yet that's where much of the blogosphere seems to be going with this one. In particular, several bloggers have focused on one line from attorney Ray Beckerman's influential blog, Recording Industry vs. the People: "This is a case in which the RIAA has no evidence that the defendant, Ms. Jammie Thomas, committed any copyright infringement." He's in a better position to judge that than I am, most likely, and technically he's probably correct. The hard drive on Thomas' computer was replaced shortly after the alleged infringements occurred, but before representatives of the RIAA first threatened her with a lawsuit. Still, I think he's exaggerating. I suspect the RIAA has evidence to show these things:
- On Feb. 21, 2005, a Kazaa user who went by the name "tereastarr" offered to others on the network 1,702 songs.
- At least
2625 of those songs were copyrighted by RIAA members. - Those
2625 songs were distributed by "tereastarr" to SafeNet, the RIAA's anti-piracy contractor. - The metadata on at least some of those songs suggests that the files had been created by someone else and downloaded by "tereastarr" through Kazaa.
- The IP address used by "tereastarr" that day matches the one assigned to Jammie Thomas' account by her ISP, Charter Communications.
- "Tereastarr" is Jammie Thomas' user name on MySpace and other online services.
I also expect that Thomas' attorney, Brian Toder of Minneapolis, will challenge most or all of these points vigorously. He was helped yesterday by a court ruling that blocked the record companies from introducing documents into evidence that substantiate their claims to the copyrights on 14 of the disputed songs. That may leave some of the major record companies unable to prove that they own the labels that filed the original copyright notice with the Copyright Office. It's a technicality, but hey, so is the exclusionary rule. Toder is also sure to show the jury how much Thomas spent on CDs; she evidently was one of the music industry's better customers.
If it can connect the dots drawn by the RIAA back to Thomas, the jury in this case will be left looking at a defendant with a big appetite for music, some of which she bought and some of which she may have downloaded through Kazaa in violation of copyrights. From either side's standpoint, that's a mixed bag. As for the allegation that Thomas shared more than 1,700 songs on Kazaa, Toder and the RIAA's attorneys will probably fight hard over what the judge should tell the jury about the legality of making songs available; those instructions could prove critical to the RIAA's case. Several courts have already held that offering songs through a file-sharing network for others to copy violates copyright law, but there's still some dispute about that interpretation.
In sum, the case will be the first test of the RIAA's ability to sell a jury on its investigative methods, which have a degree of imprecision because of the anonymous nature of the Internet. Internet protocol addresses aren't painted on the side of a computer like a street address, and even if the RIAA were able to trace a shared file back to a specific PC or Mac, it's not easy to prove who was sitting at the keyboard. It will also be the first chance for a judge to instruct a jury on the legality of making songs available for others to download. And it will be the first time a jury will weigh whether to bring the hefty penalties provided under copyright law down on a consumer -- in Thomas' case, one who probably spends more on music than its members do.
Update: Although some of the pre-trial papers talk of 26 song files, only 25 are at issue in the case. I also changed the sentence about the timing of Thomas' new hard drive being installed; it was not shortly after the RIAA first threatened to sue, but rather shortly after the infringements were detected.
For Wired's coverage of the trial, go here and work your way forward. Ars Technica's coverage begins here.
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For all the things the RIAA has going for it in this case -- the ability to tie the KaZaA username in their surveillance with a person being the biggest factor, in my opinion -- they've really done themselves a disservice by seeking damages of millions of dollars in a lawsuit against a single mother of two children. The potential statutory damages of $150,000/song do not compare favorably to the iTunes rate of $1/song, and while the RIAA has done Ms. Thomas the favor of reducing their lawsuit to 25 songs they probably should have done themselves the favor of reducing the damages they're seeking to something within the realm of sanity.
Assuming they got the whole $3 million, and ignoring lawyers' fees, if Ms. Thomas earns $15/hour and works 8-hour days she would have to work 68 1/2 years to pay them off. And that's 7-day work weeks with nothing going to her or her family.
Somehow, I think that concept will go over like a lead balloon with the jury. Even the members that don't use computers.
Posted by: Fred | October 02, 2007 at 03:50 PM
I agree...the RIAA has really performed a terrible PR move on themselves with this case. To the layman, it looks like the greedy corporate robber barons are beating up on the defenseless single mother; and that very well may be what is happening, but that is for the jury to decide.
The RIAA refuses to believe that the people who potentially buy music do not want to hear Britney Spears, regurgitated "classic rock", or yet another Nirvana knock off. The potential to easily copy music has been around since the invention of the cassette tape, and will not be going away, period.
On the flip side of the coin, artist's copy write does need to be respected; perhaps the RIAA could lead a trend to help them get better royalties? Ha!
With this in mind, the RIAA needs to pick their battles. Go after large pirate organizations that really do hurt the industry, and do so loudly. It would be wise to leave the little people alone; even if the alleged was sharing 1700 songs, it is just bad press all over for the RIAA.
Posted by: Christopher Berry | October 03, 2007 at 12:38 PM
When today the RIAA expert witness Doug Jacobsen (of Iowa State University http://www.iac.iastate.edu/Faculty/d-jacobson.html) claimed that there was no possibility of anyone connecting to this lady's wireless router because they would have seen the internal IP address of anyone connecting that way... when, of course, the purpose of such a router is to NAT and so any computer connected through her wireless router would *only* display the ISP issued external IP address, I have to wonder how desperate the RIAA is if they are requiring their expert witnesses to commit perjury. Further, the idea of someone else connecting through this lady's wireless was so damaging that a guy like Mr. Jacobsen would risk his reputation and his job by saying something like that indicates to me that the RIAA and their experts really don't have any idea if this lady was even doing any file sharing. They are just desperate to win the first case to keep people scared so they can continue to strong arm the public.
Posted by: Igor | October 03, 2007 at 08:21 PM
Bullies
No recording company does this sort of thing without the relevant artist's consent.
Why. It's called backlash
So let's name and shame the artists involved.
They all have to tour, they all have to deal with fans up close and personal.
Lets trash their concerts and trash them as artists
NAME THEM NOW
Posted by: butch | October 04, 2007 at 05:31 PM
I think a fund should be set up to help this woman out. I know there are lots of other charities and causes out there, but I feel very strongly about this. Basically to say to the record labels who sued this poor women, screw you, we will band together against you.
Posted by: jiggles | October 05, 2007 at 01:14 AM
WAIT A MINUTE!!!
Brian Toder what are you doing??? Since when can a jury come to a conclusion of guilt when the plaintiff has not proven beyond a shadow of doubt that Jammie was ACTUALLY sitting at that PC when the alleged crime occurred? Where is PRIMA-FACIE evidence? The plaintiff does NOT have a prima-facie case in my opinion!
This is so stupid. Brian better file for appeal right away. Next time demand that the plaintiff PROVE that Jammie was ACTUALLY sitting at the computer! Show a video or present an eye-witness that is was actually her and not a hacker elsewhere using her IP address and Kaaza log-in name. These jurors know NOTHING about the "cause of action" technology thereby making them totally disqualified to be jurors in this case. Why didn't Brian catch this during Voir Dire??? Why not use professional expert I.T. witnesses??? This is so stupid... I hope Brian is not actually working for the OTHER SIDE!
This case is frivolous litigation...
Posted by: Skeptic | October 05, 2007 at 12:07 PM
Read message Posted by: Igor | October 03, 2007 at 08:21 PM
Igor,
As much as I would like to agree with you as I feel your (and Jammie's) pain here, the KaZaa program doesn't work that way. It is probably an Active X program that can pull the IP address and MAC address of the workstation and sending it on to the sharing service. This eliminates your scenario of the wireless router's gateway IP address being the ONLY KaZaa TCP/IP ident of the user. It works much like a Trojan Horse (and in some cases it actually is one - Spyware, Adware?). RIAA only proved that her UNSECURED wireless router was involved NOT her PC. And she says she does not have a KaZaa account!
But none of this proves that Jammie was ACTUALLY in constructive control of that PC on the date and time of the timestamps in evidence. The plaintiff's expert witness never mentioned WAR DRIVING (Wi-Fi hacking of unsecured router from outside your home) which is a major problem that even the FBI has gotten involved (i.e. recent commercial victim 'war driving' cases over the years). It even has become a Homeland Security issue with an UNSUBs (unidentified subjects) secretly using VOIP (untraceable phone calls) for suspicious purposes on an innocent victims wireless router.
So I think Jammie had an technically incompetent lawyer (and jury). He should have known the plaintiff had an expert witness (i.e. Doug Jacobsen) and countered with his own! This matter is certainly NOT over. The RIAA has made a huge tactical error. Jammie can get a more high-powered atty easily now. Brian screwed up! Alan Dershowitz... your turn!
Posted by: Skeptic | October 05, 2007 at 12:57 PM
Re: Skeptic's comments -- I wasn't at the trial, but reading Ars Technica's coverage of the proceedings I would say that there was plenty of evidence that could have convinced reasonable jurors that Ms. Thomas infringed (as defined by the judge's instructions, but that's another matter). The standard isn't "beyond a shadow of a doubt" -- not even in criminal cases, let alone civil trials. Rather, juries are asked to decide whether the preponderance of the evidence favors the plaintiff or the defense. Here, the evidence was undisputed that the person offering tracks on Kazaa had a user name that matched the one Ms. Thomas used in her e-mail, MySpace and various other online accounts, and that the contents of the shared folder included tracks from numerous bands found in her CD collection -- including several obscure ones. It's circumstantial evidence, but it's not unusual for juries to be persuaded by that stuff, either.
Posted by: Jon Healey | October 05, 2007 at 05:14 PM