Monday, June 15, 2009

Ars Technica: 'Sony lawyer: $150K damages per song "certainly" appropriate'

Nate Anderson of Ars Technica has a typically entertaining story wrapping up the first day's proceedings in Capitol v. Jammie Thomas, leading with one of the more dramatic moments of the trial so far:

[Defense attorney Kiwi] Camara pressed again. "A message should be sent," [Sony witness and anti-piracy litigator Wade] Leak said. But Camara wanted numbers; what, in Leak's view, did Thomas-Rasset owe Sony?

"You can't tell the jury a number?" he asked aggressively. No, said Leak, it's up to them to decide; the law allows these damages, and we are asking only what's allowed under the law. The jury must pick the award.

Camara wouldn't give it up. He asked if, by Leak's logic, even the maximum $150,000 per song damage award would therefore be an appropriate amount?

Leak at last gave in. "Certainly!" he said in apparent exasperation, milliseconds before an objection from recording industry lawyers put an end to that line of questioning.

Fair enough, to focus on an exchange that did produce a bit of true courtroom drama. But a few things to keep in mind. First, Leak was repeatedly pressed by Camara for his personal opinion; there is no indication that the labels will actually ask for $150,000 per work in closing arguments (in the first trial they did not ask for a specific amount). Second, as Anderson notes, the "Certainly!" comment was almost completely drowned out by a defense objection. It's possible at least some jurors missed it, and they were sternly warned by Judge Davis to forsake blogs, Facebook, Twitter, and all facets of modern civilization (at least until the end of trial), so they will not hear that one word amplified through the web echo-chamber.

And, probably more importantly, the labels simply have very strong (albeit largely circumstantial) evidence that Thomas did exactly what the plaintiffs accuse her of doing:
There's also the little matter of the tereastarr@KaZaA username that investigators MediaSentry discovered. Thomas-Rasset turns out to have used the "tereastarr" username for her Charter e-mail address and a host of other online accounts; if she never used KaZaA to download or distribute music, then why did her computer have a KaZaA install with her preferred username? And that hard drive swap-out... the timing is suspicious.
The evidence appears to be quite strong, though Camara is of course right that it cannot prove in some absolute sense that it was Thomas-Rasset behind the keyboard back in 2005. That may not matter; the standard of judgment is more lenient in civil cases, and this defense failed the first time around.
Still, the recording industry did a fine job of connecting the threads, always coming back to the link between the IP address, Jammie Thomas-Rasset's cable modem, and her "tereastarr" username.
Read the whole thing.

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