Thursday, June 18, 2009

Capitol v. Jammie Thomas-Rasset: Awaiting the verdict

Having heard closing arguments and been instructed on the law by Judge Michael Davis, the jury in the record labels' copyright suit against accused peer-to-peer infringer Jammie Thomas-Rasset was sent off to deliberate this morning at 11am CDT. Burdened with 24 jury instructions and a 22-page special verdict form, it's unrealistic to think that the jury would be able to complete their task before mid-afternoon at the earliest. Unanimity among the 12 jurors is required for a verdict.

In his closing argument, an impassioned and even a bit angry Joe Sibley virtually conceded that Thomas-Rasset's computer was used to infringe more than 1,700 of the plaintiffs' copyrights via the Kazaa peer-to-peer network. But, said the defense attorney, of Houston's Camara & Sibley, the evidence at best only points to Thomas-Rasset's computer -- not to Thomas-Rasset herself. "The only evidence they have is that [her] computer did it," said Sibley. Concluding that Thomas-Rasset was the one who actually used Kazaa requires "a $3.6 million leap of faith," said Sibley, reaching that figure by multiplying the maximum permissible statutory damages of $150,000 per work by the 24 songs on which the labels are proceeding. Among Sibley's other main points:
  • Thomas-Rasset doesn't steal music; she buys CDs.
  • Thomas-Rasset's ex-boyfriend Justin Gervais or her then 8 and 10-year-old sons were the likeliest culprits.
  • Other family members used the "tereastarr" user ID.
  • Plaintiffs' argument about the date of the hard-drive swap is a "nitpick." Thomas-Rasset's original testimony that she had the hard drive replaced in 2004 was an honest mistake, not an effort to cover up her infringement.
  • If the labels can sue Thomas-Rasset, they can sue any of you (the jury). "This could happen to any of us."
  • The labels have pursued the case relentlessly, like "the Terminator." "She has suffered enough."
  • The labels are trying to "ruin" the lives of Thomas-Rasset and her family; "Do not sentence her to a life of indebtedness."
Sibley's presentation lasted about 20 minutes.

Next up was Timothy Reynolds for the plaintiffs. Mild-mannered and methodical, Reynolds hammered home the points that the forsensic evidence of infringement on her computer was virtually uncontested, and that Thomas-Rasset's attempt to divert blame to her ex-boyfriend and kids was a desperate, last-minute ploy inconsistent with both her previous testimony and the facts. The ex-and-kids-did-it defense was "raised for the first time yesterday," said Reynolds, a partner at Holme, Robert & Owen in Boulder, Colorado. Thomas-Rasset's defense is based on "misdirection, accusation, and a brand new possibility," said Reynolds. "All fingers and all evidence point directly at Jammie Thomas." Other points:
  • Ownership of the copyrights was uncontested.
  • The conclusions of MediaSentry and Charter Communications witnesses, as well as plaintiffs' expert Dr. Douglas Jacobson, were essentially uncontested.
  • Thomas-Rasset "controlled the computer; she was the administrator."
  • Thomas-Rasset testfied she had "never seen Mr. Gervais listen to music on her computer, not one time, ever."
  • The music in the "tereastarr" Kazaa shared folder included music she herself liked, including such non-mainstream acts at Lacuna Coil, Dream Theater, and Disturbed.
  • Rasset-Thomas was no stranger to p2p; she had written a report about Napster while in college. Her testimony that she had never heard of Kazaa until this lawsuit thus lacks credibility. "This defendant knows about file-sharing. She knows that file-sharing is illegal."
  • Thomas-Rasset's story about the "2004" hard-drive swap was no innocent mistake. Her ruse was only exposed when her expert "ratted her out" after he saw a sticker on the hard drive indicating that it was manufactured in January 2005.
  • Plaintiffs are not asking for $3.6 million; "My clients have never demanded $3.6 million." Reynolds did not ask the jury to award a specific amount: "How much in damages is for you to decide. We leave this in your good hands."
  • "Online copyright infringement has significant and real impact on the music industry and everyone in it."
  • "The need for deterrence here is great."
Reynolds' argument lasted about 45 minutes.

The jury will deliberate until 5pm today, and be back at 9am tomorrow if necessary. And so we wait...


  1. Ben, I guess the $220,000 question is... do you see any chance that the jury actually hits her with a bigger verdict than last time? Or are the plaintiffs' so focused on: just find her liable and give us something, that its going to be a lot less this time if she is found liable? Also, my guess is based on this Judge's prior statements and lack of fondness for RIAA, he would never grant attys fees for the labels, but my goodness, after all the wasted motions and time, to simply have no witnesses other than the defendant, is pretty preposterous.

  2. I honestly have no idea what the jury will do. I watched the jurors closely during Thomas-Rasset's testimony and closing arguments, and if their faces betrayed their leanings, I couldn't detect it.

    I think a verdict for plaintiffs in *any* amount would be a victory for them. Even an award of minimum statutory damages ($750/work) would send the message they want: that using p2p networks to get music without paying for it is illegal, and carries real, painful consequences.

    I don't know whether the labels will seek attorneys' fees. I do know that Judge Davis will be extremely reluctant to grant them.

  3. Following your twitter and asking a question/making a statement before the post-verdict motions come (feel free to move it to your verdict update if appropriate)...
    Even if the judge were to grant a motion that the damages are unconstitutional, I would think that victory would be short-lived for defendants. A trial was completed and a jury verdict reached. No chance the circuit court (or Supremes) would uphold a constitutional ruling, so when reversing the district court (unless I am wrong), it would just go right back to the jury decision.

  4. After reading through your summary of the closing argument's, I find it hard to believe that any rational person would rule that she was not guilty--unless they voted "Not Guilty" as a protest against the record labels. The evidence seems pretty overwhelming to me.

  5. Wow, $1.9 million. I bet that makes the original settlement letter, and even the previous $220,000 initial verdict, seem like a good deal in comparison. So much for the Harvard counsel. Are you listening Joel?

    Now we'll get to hear the arguments about the award being unconstitutionally excessive, which I believe is also a losing argument for the defense because the State Farm/BMW line of cases simply don't apply in a statutory damages framework, especially one owed the particular type of deference given to Congressional decisions.


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