Monday, June 22, 2009

The Jammie Thomas-Rasset verdict: Why?

Now that I've had a few days to reflect on the Jammie Thomas-Rasset verdict, and read a mountain of commentary from across the copyright spectrum (consensus: she did it, but the damages award was way too big), I wanted to weigh on with some thoughts about why the jury did what it did. Ideally we'd hear from at least one of the jurors (like we did after the first trial), but apparently they aren't talking, and so the best we can do is engage in some informed mind-reading. Here goes: my top three reasons why the plaintiffs won -- and won big (maybe too big).

1. The evidence that she did it was overwhelming.
The plaintiffs put on three witnesses whose testimony collectively established beyond any doubt that the computer in Thomas-Rasset's bedroom was being used to "share" 1,702 songs files (including the 24 songs specifically at issue) on February 21, 2005: Chris Connelly of MediaSentry, Heather Nessler of Charter Communications, and plaintiffs' expert Dr. Douglas Jacobson. Those three witnesses came across and knowledgeable and forthright, and the defense barely laid a glove on them on cross examination. Their testimony (which also established that the songs in the "tereastarr" Kazaa shared folder were downloaded, as opposed to being ripped from legitimately bought CDs), was essentially unchallenged by the defense.

Instead, the defense argued to the jury: well, even if you accept everything that Connelly, Nessler, and Jacobson say, that just gets you to the computer -- but not to Thomas-Rasset herself. But the problem for the defense was that the plaintiffs did have strong circumstantial evidence demonstrating, at least under the civil "greater weight of the evidence" standard, that she used Kazaa to download and "share" music. This evidence included, at least: the location of her computer in her bedroom, the consistency between her musical tastes and the songs in the shared folder, the use of the user ID "tereastarr," her testimony that she "watched" when her kids used the computer, her testimony that only she had the password to the "admin" account, her admission that she had never seen anyone else using the computer to download or listen to music, and what the plaintiffs characterized as her effort to cover up her infringement by telling a falsehood about the date when she had installed a new hard drive.

Thomas-Rasset's rejoinder to all this was a stubborn "I didn't do it," coupled with finger-pointing at her ex-boyfriend and kids. But, as the plaintiffs repeatedly hammered home, her "blame-the-ex-and-kids" defense was brand new, never before mentioned in over three years of litigation, in two sworn depositions and one "prior proceeding," i.e., trial. That fact alone cast serious doubt on her credibility. And, as I pointed out after her testimony, there were numerous other logical and factual problems with her theory. At best, Thomas-Rasset may have shown that her ex and kids used Kazaa in addition to her; she didn't come close to rebutting the evidence demonstrating that she herself used it.

In sum, virtually all the evidence presented at trial pointed toward one conclusion: Jammie Thomas did exactly what the labels accused her of doing.

2. The jurors were offended by her testimony.
If it seems inevitable (at least in retrospect) that the plaintiffs won on liability, the amount that the jurors awarded for her infringement -- $80,000 for each of 24 songs, totaling a whopping $1.92 million -- was not. So why that figure? First, it bears repeating that the jurors had almost no guidance, from either the plaintiffs or defense, as to where the amount should fall within the $750-$150,000 allowed by the statute. The defense (whose position was that she didn't do it, so the amount should be zero) said repeatedly that the plaintiffs were seeking the maximum -- $3.6 million -- but the plaintiffs forcefully denied that, making clear that they were leaving determination of the proper amount to the jury. Said plaintiffs' counsel Tim Reynolds in closing argument:
How much in damages is for you to decide. We leave this in your good hands.
There was virtually no evidence presented about the actual harm to plaintiffs from Thomas-Rasset's infringement. Representatives of the plaintiffs, including Sony BMG's Wade Leak and UMG's JoAn Cho, spoke in general terms about job losses and lost sales from p2p piracy, but (understandably) neither could provide specific numbers as to the harm caused by Thomas-Rasset herself. My best guess as to how the jury settled on $80,000 per work? It's about mid-way between the minimum and maximum under the statute.

Still, $80,000 is a huge number, and surely the jury knew that $80,000 multiplied by 24 is a truly mammoth award. So a mid-way compromise doesn't fully explain it. Again, this is mind-reading on my part, but I think the jurors were offended by her testimony and actions for at least two reasons. First, during voir dire, many of them said they (or their kids) owned iPods, and obtained their music legitimately, through iTunes. I suspect that many of them thought, "Hey -- I pay for my music, with my own hard-earned dollars. Who does she think she is that she can get her music for free?" Second, I suspect that many of them were offended, perhaps outraged, by Thomas-Rasset's finger-pointing at her ex and kids. They obviously did not believe her, as even her defense counsel Kiwi Camara acknowledged a few minutes after the verdict. (Like at least one juror in the first trial, I'm sure that some, perhaps all, jurors thought she outright lied.) And I'm willing to bet that many were especially offended that she tried to pin the blame on her kids. Think about it: she ratted out her own kids! If she really wanted to "protect" them, as she tearfully claimed on the witness stand, then why didn't she take the blame herself, and settle for a few thousand dollars early on?

3. The plaintiffs' lawyers connected with the jury.
Little of the post-trial commentary has mentioned the performance of the attorneys themselves. While I think the evidence was the primary driver of the verdict, the role of the attorneys does deserve mention. In sum, I think the plaintiffs' attorneys simply connected better with the jury than did their counterparts on the defense team.

Tim Reynolds, the labels' lead attorney, was not flashy or dramatic, but he was very effective. His delivery was straightforward and came off as both knowledgeable and believable. I thought Reynolds' cross-examination of Thomas-Rasset did an excellent job of pointing out the numerous holes and contradictions in her testimony, without appearing overly harsh or badgering -- which took real finesse, as it came just minutes after Thomas-Rasset cried on the stand as she maintained that her main goal was to protect her kids from the "wolves" of the recording industry. (At the time, I thought some jurors may well have bought her story.) An overly-aggressive cross could have led jurors to sympathize with her, but Reynolds avoided that, striking just the right tone. His co-counsel Matt Oppenheim -- portrayed in the fever swamps of the RIAA-hating blogs as some sort of secretive and nefarious Keyser Söze-like figure -- was completely out in the open, and skillfully walked several of the plaintiffs' witnesses through highly technical evidence, making it (mostly, I think) understandable to lay jurors, one of whom had never even used the Internet. Bottom line: the jurors appeared to like and connect with both Reynolds and Oppenheim. (Back in the fever swamps, Reynolds and Oppenheim are portrayed as the two most incompetent, unethical, and downright evil attorneys on earth. "[B]ad lawyers and bad human beings...a disgrace to the legal profession," in the charming words of Ray Beckerman, proprietor of Recording Industry vs. The People. Search here and here for more tastes of the bile. I think any fair-minded person, on any side of the copyright debate, who actually sat through this trial, would acknowledge the falsity of these rancid views.)

As for the defense team, I first want to acknowledge, and pay my respects to, the huge task they faced as they took on the case, pro bono, less than a month before trial. Attorneys usually have many months, often years, to prepare for trial, and both lead counsel Kiwi Camara and his partner Joe Sibley did a remarkable job in getting up to speed. That said, I simply don't feel that they connected with the jury. Camara, who graduated from Harvard Law School at age 19, and turned 25 in the middle of trial, is undoubtedly brilliant. He recited case law, statutes, and citations to the record off the top of his head, without stumbling. (To hear Camara in action, listen to this recording of him arguing before the Fifth Circuit. He's very good.) But...I never got the sense that he connected with this jury of ordinary Minnesotans, few of whom had graduated from four-year colleges. His mannerisms and persona -- everything from his diction, to his pocket handkerchief in his suit, to his elaborate hand gestures as he spoke, and what I perceived as the perpetual smirk or grin he wore as he sat at the end of counsel table, often directly facing the jury -- made him seem at times a character from a different, long-ago age, to whom I suspect few jurors could relate. (This stuff is superficial, but it matters.) And his frequent interruptions of witnesses and opposing counsel, which earned him repeated rebukes from the judge, surely did not go unnoticed by jurors.

Sibley's demeanor was much different. A street-fighter, he seemed always angry, sneering or scowling or snarling at the plaintiffs' witnesses, and indeed their entire case. Sibley was effective at times, scoring some points on cross and convincing the judge that Reynolds had committed a serious transgression by failing to disclose certain information about Jacobson's testimony. But the contrast with Reynolds' mild-mannered, everyman delivery was striking, and I think didn't play as well with the jury.


Again, all of the above is my best guess as to why the jury arrived at its decision, based on my having sat through all four days of testimony and argument. We'll never know for sure unless one of the jurors decides to come forward. In case any of them are reading this, I'm all ears:


  1. This more obvious answer to me at least would be the $150,000 top end for statutory damages. Yes, the record labels weren't asking for a specific dollar number, but for all we know, the jury probably thought they were being lenient. . . and to a certain extent they were. They may have just figured, "Half off? -- we're being good guys."

    I'm not sure what this says about the statutory damage provision.

  2. Ben, do you figure that the RIAA used jury selection experts here? Were there any challenges at all - or other evidence of strategic jury selection?

  3. @Anonymous 5:33:

    I don't have any reason to believe either side had jury consultants; there were none present in the courtroom.

    There were 4 potential jurors who were subjected to challenge (I believe they were peremptories): an attorney who mentioned during voir dire that the music industry's "business model" was changing (he tried to get out of serving, but the judge kept him in the pool); an unemployed limo driver who seemed to be tech savvy; a man in his 20s who mentioned that his friends use p2p; and a 4th who said that his son had transferred songs onto his iPod from a friend. If I had to guess, I'd say that it was the plaintiffs who challenged at least 3 of these jurors, but I have no actual knowledge of that.

  4. Incidentally, given that the reason we're all here is the "Making Available" instruction...was that instruction one of those given to the jury on this case? I don't see anything about it beyond that it was part of the "preliminary instructions".

  5. @DensityDuck:

    No, there was no "making available" instruction this time. Here's the jury instructions:

  6. So why didnt' Judge Davis - in light of his ruling vacating the verdict last year - insist that "making availalbe" be dealt with in the instructions in the sense that it MUST be proven - in terms of someone *other* than MediaSentry. What did defense counsel have to say about this?

  7. @Anonymous 9:03:

    In his 9/24/08 order granting a new trial, Judge Davis held that, under Olan Mills, Inc. v. Linn Photo Co., 23 F.3d 1345 (8th
    Cir. 1994), a distribution from the defendant to MediaSentry counts as a distribution. See order at 8-12. There was nothing the new defense lawyers could do at this point to challenge that ruling.


Comments here are moderated. I appreciate substantive comments, whether or not they agree with what I've written. Stay on topic, and be civil. Comments that contain name-calling, personal attacks, or the like will be rejected. If you want to rant about how evil the RIAA and MPAA are, and how entertainment companies' employees and attorneys are bad people, there are plenty of other places for you to go.