Virgin v. Thomas

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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 25 of those songs were copyrighted by RIAA members.
• Those 25 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.