Second verse of file-sharing case takes on music copyrights

by Alex Ebert

Star Tribune (Minneapolis) (MCT)

15 June 2009


MINNEAPOLIS — The first match ended with record companies celebrating and a Brainerd, Minn., single mother stunned with a $220,000 bill for illegal file sharing. Now both sides are gearing up for a rematch.

Although the recording industry maintains it is confident of a repeat victory, Jammie Thomas-Rasset has a new legal team and a new strategy that challenges all music copyrights, arguing that the songs belong to the artists, not the record companies.

The future of file-sharing, and possibly the music industry, may depend on what happens in the Minneapolis Federal Courthouse, room 15E.

In 2006, the Recording Industry Association of America (RIAA) accused Jammie Thomas, then 28, of illegally downloading and distributing 24 songs through Kazaa, a file-sharing network. The record companies claimed she used Kazaa to download 1,700 songs.

Of more than 30,000 suits brought by the recording industry against file-sharers, Thomas-Rasset’s is the only one to go to a jury trial.

Before her trial in 2007 she had a chance to settle for between $3,000 and $5,000, said Cara Duckworth, spokeswoman for the RIAA. She fought instead, denying that she had downloaded or distributed any music.

A federal jury in Duluth found the mother of two liable for copyright infringement and set damages at $9,250 per song or $220,000, more than six times the $36,000 a year she said she made working for the Mille Lacs Band of Ojibwe.

But months later, presiding Judge Michael Davis dismissed the verdict, saying he had erred when telling the jury that simply making songs available constituted infringement.

In the retrial that was set to begin Monday, Thomas-Rasset returns to court a married mother of four with new counsel and new strategies.

Three weeks ago, her lawyer Brian Toder dropped the case, citing unpaid fees. In Houston, former Harvard Law classmates Kiwi Camara and Joe Sibley heard the news and took the case, free of charge.

The defense team’s new strategy will challenge the legitimacy of the industry’s copyrights, citing technicalities in copyright law that they say mean that the true rights to songs belong to the artists.

“It would mean, basically, all recording industry copyrights are basically invalid, improperly registered and that in 2013 they will start reverting to the artists,” Camara said. He said this would be the first time the argument is tested in court.

Success with this argument could drastically change the music industry.

“It would significantly upset the apple cart if it were true,” said Ben Sheffner, former copyright lawyer for Warner Bros. Records, one of the plaintiffs represented by the RIAA. The maneuver, which Sheffner believes won’t work, would take away not only the recording companies’ case, but perhaps its livelihood.

Duckworth predicts the industry will win again. “Thousands of working-class folks have lost their jobs primarily due to the exact kind of activity for which Ms. Thomas was found liable the first time around,” Duckworth said. “We’re confident a new jury will see it no differently.”

In a pretrial blow to the defense Thursday, Judge Davis denied attempts to suppress the RIAA’s key evidence obtained by MediaSentry from Kazaa on the grounds that it was obtained illegally. Davis also limited the testimony of a possible defense expert witness, Yongdea Kim, an assistant professor in the computer science and engineering departments at the University of Minnesota.

Besides Kim, possible defense witnesses include MediaSentry employees, Best Buy employees who dealt with Thomas-Rasset’s hard drive and RIAA president Cary Sherman. Potential witnesses for the plaintiff include technology expert Doug Jacobson, employees of MediaSentry and Best Buy, and record company lawyers.

The 30,000 lawsuits filed by the recording industry since 2003 have prompted copyright lawyers to start taking cases pro bono to fight what some call “extortion,” said Harvard law Prof. Charles Nesson.

“It resulted and results in a number of people sent into federal courts that don’t have lawyers,” he said.

The RIAA counters that the lawsuits are an important tactic for recording companies, which have lost more than $6 billion in recent years, largely to illegal file sharing. Duckworth said the litigation has deterred would-be thieves from downloading and distributing music.

Topics: file sharing
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