A tearful Thomas-Rasset today took the stand in her own defense and told a story that she had never told before, at 2 depositions and her previous trial, or in her sworn interrogatory responses. For years, she said, she had protected her kids and ex-boyfriend of 8 years, Justin Gervais, from the "wolves" of the major record labels and their attorneys. But in the closing minutes of the trial, Thomas-Rasset reversed course, and decided to do whatever she could to protect herself. Referring to her children and Gervais (the biological father of one of her kids), the 32-year-old mother of four and tribal government worker said, "It's possible that they could have done it." But, she was quick to add, "I don't know who did it."
In settling on the "maybe-it-was-my-ex-or-kids" defense, Thomas-Rasset essentially conceded that the plaintiffs had proven that her computer, in her bedroom, connected to the Internet through her ISP account, was used to access the Kazaa peer-to-peer network to download and distribute songs, using the user ID "tereastarr," her online moniker of 16 years. Thomas-Rasset did not even call her designated expert, Dr. Yongdae Kim, to try and rebut the authoritative presentation by plaintiffs' expert, Dr. Douglas Jacobson. Even if you accept the truth of all of the plaintiffs' forensic evidence, it only shows, Thomas-Rasset contended, "that someone using this computer was sharing these songs."
And has the tears flowed, Thomas-Rasset described the impact of the case on her life:
This case has been a nightmare for me and my family. I've had to defend myself for something I didn't do.... It's not fair. It's not fair by any standard.Will it work? It may. There are plenty of parents on the jury, and Thomas-Rasset's professed goal of protecting her kids may play well with at least some. But there are remain significant problems and weaknesses in Thomas-Rasset's story. At least:
- It's brand new. If this story were true, why didn't she disclose it years ago, under oath at her two depos, at the previous trial, or in sworn interrogatories? A last-minute story that is so fundamentally at odds with her previous positions (e.g., an unknown lurker tapped into her (non-existent) wireless signal) is inherently suspect. Thomas-Rasset says she was never asked "specifically" about the kids and Gervais' possible Kazaa use before, but that strains credulity, as is her contention that she did not correct her depos because she could not afford to do so (there is no specific charge for correcting a deposition).
- If her whole goal is to protect her kids and ex, then why point the finger at them now (except to save her own skin)? If she really wanted to protect them, wouldn't she have simply settled early on for a few thousand dollars? (The labels' settlements often include releases of family members.)
- The disk drive story. Thomas-Rasset testifed falsely at her two depos that she replaced her hard drive in 2004 -- a date that would, if true, help exonerate her completely, without having to cast blame at other possible users of her computer. Today, Thomas-Rasset claims that she was merely mistaken, and admits the true date was March 2005 -- after the infringement was detected. If the jury believes the more sinister "cover up" explanation, her credibility would be seriously harmed.
- On direct examination, Thomas-Rasset claimed that she had never heard, or actively disliked, many of the 1,700 songs in the "tereastarr@Kazaa" shared folder that MediaSentry detected, but that her ex and kids did like those songs. Maybe so. But Thomas-Rasset also admitted that she is a fan about 60 of the artists whose songs were in the folder. A juror could logically infer that, yes, maybe Gervais and the kids used Kazaa -- but so did Thomas-Rasset. Demonstrating that Gervais and the kids used Kazaa does not exonerate Thomas-Rasset.
- Thomas-Rasset testified that her home computer was divided into two accounts: the "admin" account, for which only she had the password, and the "family" account, which Gervais and the kids could use. On a typical such configuration, only a user with admin access could install progams -- e.g., Kazaa. So how did Kazaa -- which Thomas-Rasset testifed she had never heard of until this lawsuit -- get on her computer? Were Thomas-Rasset's accounts set up only to allow the admin to install programs? We may never know for sure, because the hard drive that was on her computer at the time of the detected infringements was discarded before plaintiffs had the chance to inspect it.
- Thomas-Rasset admitted on cross that she never heard Gervais listening to music on the computer, and never saw music on the computer. Is that credible, especially since she testified that she watched her kids using the computer and once caught her son on an "inappropriate adult site"? And is it credible to claim that the only time Gervais or the kids used the computer to listen to music was when she was away?
Before Thomas-Rasset took the stand were the plaintiffs' final three witnesses, all record company attorneys who testified as to copyright registrations and ownership: Wade Leak of Sony (who had already testified on the first day), JoAn Cho of UMG, and Alastair McMullan of EMI. Their testimony was uneventful -- which was a bit of a surprise in itself. The defense raised no objections to their testimony about copyright chain of title -- even though earlier this week it won a motion to exclude chain-of-title documents that seemed to be a prelude to objecting to oral testimony on the subject.
On cross, the defense mainly tried to get Cho to concede that suing on a large number of copyrights would be unreasonable, and attempted to pin her down on the maximum number of works that would constitute a "reasonable" number to have included in the complaint. But Cho parried questions from defense attorney Kiwi Camara with aplomb, making no apologies for the industry's efforts to protect its copyrights. "I think that it is absolutely reasonable" to pursue this lawsuit, said Cho. McMullan had the unenviable task of flying to Minnesota to introduce into evidence the Richard Marx song "Now and Forever," which he played for the jury -- twice! -- on a CD player. In what was perhaps the trial's most shocking moment, Judge Michael Davis professed to like it. (He remained stone-faced and indifferent as Sarah McLachlan's "Building A Mystery" and No Doubt's "Different People" wafted through the courtroom. Probably best that no one played "World of Shit" by the seminal Tampa death metal band Morbid Angel -- a song found in the "tereastarr@kazaa" shared folder but of which Thomas-Rasset professed complete ignorance.)
Closing arguments are set for tomorrow morning at 9. Judge Davis gave each side an hour to argue, but they both said they would use only about half that. The jury will receive their instructions, and then be sent off to deliberate. A unanimous jury is required for a verdict.
For all the fascinating arguments about copyright law and the state of the music industry that this lawsuit has spawned, I think it will all come down to one question: Do the jurors believe Jammie's story? Will they? I watched them closely as Thomas-Rasset testified, and I have no idea.
(I've referred to the defendant previously as "Jammie Thomas," as even her own attorneys' briefs did not use her new married name of "Thomas-Rasset." But as nearly everyone in the courtroom is now referring to her as "Thomas-Rasset," I'll make the switch as well.)