Wednesday, June 17, 2009

Capitol v. Jammie Thomas-Rasset: Day 3 Recap: Finally, the defendant tells a story; will the jury believe it?

After three years of litigation, after defenses that ranged from a hijacked wireless signal to "putting the RIAA on trial" to fair use to "no certified copies, so you lose," to a simple "I didn't do it," Jammie Thomas-Rasset today told a new story to explain the mountain of forensic and other circumstantial evidence pointing to the conclusion that she had downloaded and distributed over 1,700 songs using Kazaa: I didn't do it, but it might have been my ex-boyfriend and kids. And who knows? It just might work.

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:
  1. 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).
  2. 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.)
  3. 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.
  4. 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.
  5. 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.
  6. Thomas-Rasset's ISP sent her an infringement notice in April 2005. She said she never read it and threw it out thinking it was junk or a routine privacy policy update -- even though it was sent via Fedex. Is it credible that she would treat a letter sent via Fedex as junk?
  7. 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?
And yet for all the holes in Thomas-Rasset's story, it's certainly not out the realm of possibility that the jurors will believe her, and sympathize with her, and find her not liable. I have no doubt that this lawsuit was indeed a "nightmare" for her. The question is whether it was a nightmare brought on by a false accusation, or simply a nighmare of her own making.


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.)


  1. What precisely is the proposed jury instruction this time around for distribution/"making available"?

  2. I don't believe the court has yet publicly released the final version of the instructions. But I'm certain that there is no explicit "making available" instruction. Also, the court refused to give Plaintiffs' proposed #19, which basically says that the jury should be able to infer actual distribution if the defendant "completed all the necessary steps," i.e., having files in the shared folder and being connected to a p2p network. However, the court did say that plaintiffs can argue this inference, and I believe there will be a general instruction saying that jurors are permitted to draw inferences from facts.

    Given the defendant's testimony today, I doubt the jury will focus on the question of whether copyright infringement occurred. Rather, they will focus on whether it was done by the defendant, or, rather, by her ex-boyfriend and kids.

  3. Great recitation of day #3, Ben.

    I was appalled at JT-R's "defense" tactic of "I would NEVER point the finger at my ex-fiancé and 8 & 10-year-old kids, until RIGHT NOW when they're not here to defend themselves."

    The only thing I would add to day #3, is JT-R's over the top mischaracterization of a portion of Plaintiffs' expert's testimony as "lying"--a desperate misstatement that both Plaintiffs' counsel and Judge Davis were quick to correct and strike from the Jury's considerations.

    I expect defense's closing argument will include: 1) JT-R was not "the face behind the computer"; 2) Statutory damages are "unreasonable" because if you didn't steal the song, you could legitimately buy it for merely $0.99 (a wishful "do-over"); and 3) Some sort of argument that sound recording ("SR") creators are not Plaintiffs' employees, so proving ownership of that essential SR element fails.

    I HOPE Plaintiffs argue: 1) Circumstantial evidence is as good as direct evidence (because it is); 2) Credibility, like virginity, can only be lost once; and 3) Just because today's technology now makes it easier to steal, the law still does not!

    We shall see!

  4. Very interesting, indeed, Ben. I was going to make further comments but my dog ate my notes.


  5. Telling a second or third story never works, even if the later ones are better than the first.

  6. What is most telling is that she is coming up with a new story only now at the 11th hour and 59th minute. Is the jury aware that this is a brand new story? Do they know that she has never before mentioned the possibility that her ex-boyfriend or her kids were behind this?

    If I were on the jury I might be more willing to give her the benefit of the doubt if I thought that this is what she has been saying all along. But if I thought that she was just throwing out new bullshit because the old bullshit didn't stick then that would give me one more reason to conclude that she was guilty.


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