The score so far: RIAA one, consumers zero…zilch…nada. The
first of roughly 20,000 RIAA lawsuits against music lovers went to trial this
week and the music biz’s strongarm lobby ground up the hapless file trader and
her lawyer like so much hamburger. In doing so, the jury’s decision sets a
dangerous legal precedent for the industry’s assault on the consumer that will
directly lead to hundreds, if not thousands of so-called “deterrent” lawsuits
in the future.
The case of Capitol Records vs. Jammie Thomas was tried in Duluth, Minnesota,
the jury finding Thomas guilty of infringing upon the label’s copyrights in all
24 of the recordings that she was accused of distributing. From the reports
that I’ve read – Ars Technica provided readers with full coverage of the trial
– Thomas’ attorney did a poor job of defending her against the high-priced
headhunters of the RIAA. They didn’t challenge the evidence provided by the
industry proving their ownership of the copyrights in question, if though it
was reportedly dodgy and incomplete. Personally, under discovery, I would have
demanded copies of each artist’s contract assigning the copyrights to the label
so that it would become part of the public record.
In fact, the defense’s primary argument was that the
industry couldn’t prove that Thomas herself had made the songs available
through the P2P network Kazaa, that the so-called infringement was performed by
somebody using the screen name “tereastarr,” which, unfortunately, was also the
screen name that Thomas used for several other online services (doh!). The
defense questioned the authenticity of the IP address reported by the RIAA’s
web-sniffing hounds (SafeNet, formerly Media Sentry) and gave the audience…er, jury…a
lesson in ripping CDs. Altogether, a pretty feeble defense from my perspective
on the sidelines. In the end, the jury awarded Capitol Records a total of
$220,000 or $9,250 in statutory damages per song allegedly distributed by
Thomas.
Key to the RIAA’s victory was the Judge’s ruling on jury
instructions. Challenging the definition of “distribution” in jury instruction
#14, after a hearing on the matter the judge was swayed by the RIAA’s argument
and amended the instruction to say that the “act of making available for
electronic distribution...violates the copyright owner's exclusive copyright.”
This was a major blow to Thomas’ defense as the RIAA no longer had to prove
that anybody had actually, you know…downloaded
any of the songs (which would seem to be a prerequisite to me for proving
“distribution”), thus making it easier for the jury to find Thomas guilty. This
definition of “distribution” is being argued in several courtrooms right now,
with tech-ignorant judges leaning towards backing the RIAA’s argument that
merely making a song available in a public folder is, in itself, proof of
intent and therefore equals distribution, a major component in the crime of
copyright infringement.
One of the most memorable moments in the short trial was the
testimony of Jennifer Pariser, Sony BMG’s head of litigation (i.e. lawyer).
Pariser ignorantly estimated the number of RIAA lawsuits against consumers as a
“few thousand” and replied “that's probably an overstatement” when challenged
by Brian Toder, Thomas’ attorney. Pariser admitted that the RIAA lawsuits had
cost the industry “millions,” adding “we've lost money on this program.” When
asked what her label’s actual monetary damages were from “piracy” Pariser said
that “we haven't stopped to calculate the amount of damages we've suffered due
to downloading.”
Over the past four years, starting in September 2003, the
Recording Industry Association of America has launched in excess of 20,000
lawsuits against file traders, peer-to-peer users and other pirates. Most of
these suits have been settled by RIAA enforcers who bully consumers into
coughing up payments of $3,000 to $5,000 each. Some have been dismissed by the
courts, but the upshot of this lengthy and costly campaign against the music
lovers that buy the industry’s products has been an increase in online file
trading. Accorded to Big Champagne, an online measuring service, the number of P2P
users has almost tripled over the last four years, from 3.8 million users at
any given point in time in 2003 to over 9 million users today. Perhaps the
industry would have been better suited spending some (or all) of its legal fees
on developing a new business plan that works in the new digital age.
In retrospect, Jammie Thomas may not have been the best case
to be the first out of 20,000+ to actually make its way to trial. It is
interesting that testimony provided by both Thomas and other defense witnesses
painted the defendant as a music lover that owned a large CD collection and
spent much more than the national average on music purchases, buying hundreds
of CDs. Sadly, with this notch in the win column, the RIAA will be emboldened
to take more of these lawsuits to trial, a direction that they had been loath
to pursue in the past. There are several other suits making their way through
the courts right now, though, and any one of them might change the RIAA’s good
fortunes with this first trial and swing the pendulum back towards consumer
rights.
STORY LINKS (OPENS IN NEW WINDOW):
Ars Technica: Judge bars RIAA president from testifying in Capitol Records v. Thomas
