Why Kiwi Camara will get shut down

In the less than a week since he came on as Jammie Thomas' new defender, controversial "legal Doogie Howser" Kiwi Camara has made numerous pronouncements about the strategies he will employ as he takes on the record labels. While it's impossible to say definitively what he intends from just a few quotes in the press, Camara has suggested that he will: 1) "attack the RIAA’s litigation strategy"; 2) argue fair use; and 3) seek "return [of] the $100M+ that it [the RIAA] obtained as a result of its unlawful campaign."

I don't think Camara will even be permitted to make any of these arguments at Thomas' June 15 re-trial. Here's why:

1) Attack on RIAA's Litigation Strategy. David Kravets of Wired reported that Camara and his team

think the key to victory is to attack the RIAA’s litigation strategy, which ha[s] spawned 30,000 lawsuits over five years, most of which have settled out of court for a few thousand dollars.

“We think the jury is going to reject this strategy,” Camara said. “The RIAA strategy here is not to try any of these cases.”

As I've explained before, I think the labels' suits against other p2p users are irrelevant to their claims against Thomas, and the court should not permit her to turn this trial into a referendum on whether the labels' litigation strategy is wise or just. But Camara has a serious additional problem if he wants to make this argument: in Thomas' first trial, her attorney moved to exclude such evidence -- and succeeded! Here's what happened: the labels wanted RIAA president Cary Sherman to testify about the harm caused by p2p piracy in general. Thomas' then-counsel Brian Toder objected, on the grounds that such testimony was not relevant to the case at hand:

We had one motion in limine that was sort of glossed over. It had to do with bringing in evidence of other people's suits and I don't -- I believe that what's happening with other people's suits generally, as a general proposition, the way this whole [RIAA litigation] system works is irrelevant and I would ask that they not be allowed to put that kind of evidence in in the form of Mr. Sherman.

Trial transcript at 478 (my emphasis). The court agreed with Toder and refused to let Sherman testify. Id. at 482. Seems to me that, having argued and won the point that evidence of other similar lawsuits is irrelevant, Thomas is now judicially estopped from arguing that it is relevant. Judicial estoppel is a somewhat flexible doctrine, but I suspect most judges would not permit such a clear reversal of positions within the same case.

2) Fair use. Fair use is an affirmative defense to a claim of copyright infringement. See, e.g., Harper & Row v. Nation Enters. Like all affirmative defenses, it must be pled in the answer, or else it is waived. See FRCP 8(c). Here's Thomas' answer. See any reference to fair use? I would be shocked if the court now permitted her to amend her answer (three years on), thus allowing her to argue fair use (putting aside the issue whether it is even an appropriate issue for a jury). Put simply, fair use (which has been rejected on the merits in the p2p context by the courts of appeals in BMG v. Gonzalez and Napster) is waived here.

3) Return of the "$100 million+" This claim is from Camara's web site (go to "practice" and then "pro bono") and refers to a case involving accused p2p infringer Brittany English -- not Thomas. It's so ludicrous that I don't even know what to say. Under what theory can the defendant in Case A seek to recover settlements paid by unrelated defendants in Cases B, C, and D? Beats me.

I suspect Camara and his team will be spending a lot of their time over the next month responding to motions in limine. Good thing they've sworn off sleep...