Record Companies Win Music Sharing Trial

[BettorsChat]

Thursday October 4, 6:28 pm ET
By Joshua Freed, Associated Press Writer
Jury Finds Minn. Woman Violated Copyright Law, Record Companies Awarded $220,000 for 24 Songs


DULUTH, Minn. (AP) -- The recording industry won a key fight Thursday against illegal music downloading when a federal jury found a Minnesota woman shared copyrighted music online and levied $220,000 in damages against her.

The jury ordered Jammie Thomas, 30, to pay the six record companies that sued her $9,250 for each of 24 songs they focused on in the case. They had alleged she shared 1,702 songs in all.

Thomas and her attorney, Brian Toder, declined comment as they left the courthouse.

In the first such lawsuit to go to trial, the record companies accused Thomas of downloading the songs without permission and offering them online through a Kazaa file-sharing account. Thomas denied wrongdoing and testified that she didn't have a Kazaa account.

Record companies have filed some 26,000 lawsuits since 2003 over file-sharing, which has hurt sales because it allows people to get music for free instead of paying for recordings in stores. Many other defendants have settled by paying the companies a few thousand dollars.

During the three-day trial, the record companies presented evidence they said showed the copyrighted songs were offered by a Kazaa user under the name "tereastarr." Their witnesses, including officials from an Internet provider and a security firm, testified that the Internet address used by "tereastarr" belonged to Thomas.

Toder said in his closing that the companies never proved "Jammie Thomas, a human being, got on her keyboard and sent out these things."

"We don't know what happened," Toder told jurors. "All we know is that Jammie Thomas didn't do this."

Richard Gabriel, the companies' lead attorney, called that defense "misdirection, red herrings, smoke and mirrors."

He told jurors a verdict against Thomas would send a message to other illegal downloaders.

"I only ask that you consider that the need for deterrence here is great," he said.

Copyright law sets a damage range of $750 to $30,000 per infringement, or up to $150,000 if the violation was "willful." Jurors ruled that Thomas' infringement was willful but awarded damages in a middle range.

Before the verdict, an official with an industry trade group said he was surprised it had taken so long for one of the industry's lawsuits against individual downloaders to come to trial.

Illegal downloads have "become business as usual, nobody really thinks about it," said Cary Sherman, president of the Recording Industry Association of America, which coordinates the lawsuits. "This case has put it back in the news. Win or lose, people will understand that we are out there trying to protect our rights."

Thomas's her testimony was complicated by the fact that she had replaced her computer's hard drive after the sharing was alleged to have taken place -- and later than she said in a deposition before trial.

The hard drive in question was not presented at trial by either party, though Thomas used her new one to show the jury how fast it copies songs from CDs. That was an effort to counter an industry witness's assertion that the songs on the old drive got there too fast to have come from CDs she owned -- and therefore must have been downloaded illegally.

Record companies said Thomas was sent an instant message in February 2005, warning her that she was violating copyright law. Her hard drive was replaced the following month, not in 2004, as she said in the deposition.

The record companies involved in the lawsuit are Sony BMG, Arista Records LLC, Interscope Records, UMG Recordings Inc., Capitol Records Inc. and Warner Bros. Records Inc.

RIAA: http://www.riaa.com

Lawsuit-tracking blog: http://recordingindustryvspeople.blogspot.com

[BettorsChat]

Woman in file-sharing case won't seek aid
Minnesota woman found guilty of illegally sharing music online will not ask for help paying $222,000 fine.
October 5 2007: 6:53 PM EDT


MINNEAPOLIS (AP) -- Jammie Thomas makes $36,000 a year but says she's not looking for a handout to pay a $222,000 judgment after a jury decided she illegally shared music online and did it on purpose.

"I'm not going to ask for financial help," she told The Associated Press on Friday. But she added, "If it comes, I'm not going to turn it down, either."

Record labels have sued more than 26,000 people they accuse of downloading and offering music for sharing online in violation of copyright laws. Many of those people have settled by paying the companies a few thousand dollars.

Thomas was the first person to fight back all the way to a trial. Six major record companies accused Thomas of offering 1,702 songs on the Kazaa file-sharing network. At trial, they focused on 24 songs and jurors decided Thursday that Thomas willfully violated the copyright on all 24. They recommended she pay damages of $9,250 per song, or $222,000.

The recording industry won two victories with that verdict.

Beyond the money, the industry added to a growing body of legal precedents holding that making copyright-protected songs available online, even without proof the songs went anywhere, infringes on the copyrights for the songs.

U.S. District Court Judge Michael Davis was planning to instruct jurors as they began their deliberations that record companies would have to prove someone copied the songs to show copyright infringement.

But record company attorney Richard Gabriel cited cases where making songs available was found to be infringement.

Legal experts said the question isn't settled.

"Record labels don't like that because it's harder to prove," said Andrew Bridges, an attorney who has argued for the Computer & Communications Industry Association that copyright holders should have to prove the offered material is actually used.

"It's all about whether they get a free pass to impose onerous damages on people without actually having to prove a case," Bridges said.

International intellectual property treaties assume that simply making a work of art available can violate the copyright, said Jane C. Ginsburg, an intellectual law professor at Columbia Law School.

"It would be hard to see how we could be living up to our international obligations if the law were interpreted differently," she said.

Ray Beckerman, an attorney who has represented people sued by the record companies, said the companies used one case where there was a $22,500 default judgment to scare people into settling.

"Now, look at this. This is 10 times better. They can talk about this case, they can use it for frightening people," he said.

Beckerman said the damage award was disproportionate to the price of the 24 songs Thomas was accused of sharing for free. She could have bought them for 99 cents each on a legal download site, he said.

Record company lawyer Richard Gabriel argued at trial that Thomas made the songs available to millions of users on Kazaa.

The lawsuits have cost more than they've brought in. But the Recording Industry Association of America has said it wants the lawsuits to send a message that downloading music illegally is risky.

But the number of people sharing files online at any given time has risen 69 percent to almost 9.4 million since 2003, when the lawsuits began, according to BigChampagne LLC, research firm that tracks file-sharing traffic.

That suggests the publicity has had a limited effect in deterring people from swapping music online, said Eric Garland, CEO of BigChampagne.

Record companies "don't want to be on the front page battling a lot of customers," Garland said. "They want to be on the front page selling a lot of Kanye records."

Thomas denied that the Kazaa account at issue during the trial was hers. Neither side presented the computer hard drive Thomas owned in 2004 and 2005, which she allegedly used to download and offer the songs.

Thomas said Friday that people who heard about the verdict have been leaving messages on her MySpace page offering to help.

"I guess it's my Native pride," said Thomas, who is a member of the Mille Lacs Band of Ojibwe. "Up until this point I have not held my hand out and asked for financial assistance from anyone."

Thomas, 30, works for the Mille Lacs band coordinating a federal grant for cleaning up contaminated land. She said she doesn't have the means to pay.

"I am a single mother of two boys. I make $36,000 a year at my job," she said. "At best they could try and get a court order garnishing my wages."

Her attorney, Brian Toder, said that copyright law automatically awards court costs and attorney fees to the winning party.

Paying those too could push the total judgment against Thomas as high as a half-million dollars.

Recording Industry Association of America spokeswoman Cara Duckworth declined to comment on the group's plans for enforcing the judgment.

Thomas questioned whether the record companies will be able to enforce the verdict because she is an enrolled member of the Mille Lacs band, lives on its land and works for the band.

But Kevin Washburn, who teaches American Indian Law as a visiting associate professor at Harvard Law School, said tribal courts generally enforce judgments from other courts. And since this is a federal verdict, the tribal courts might not even have a say in enforcing the verdict.

"One way or another, she's got to pay," he said.