Wednesday, June 10, 2009

The Jammie Thomas Re-trial: Frequently Asked Questions

The re-trial of accused peer-to-peer infringer Jammie Thomas is set to get underway June 15 in Minneapolis. Below are some frequently asked questions, which I will update as events warrant. I've been up front about the fact that I'm sympathetic toward the plaintiffs, but I've tried to play it pretty straight in these FAQs.

What's the case in a nutshell?
Six major record labels have sued a Minnesota woman named Jammie Thomas in federal court, alleging that she used the Kazaa peer-to-peer network to infringe copyrights in sound recordings that they own. This is the only one of about 40,000 similar cases against individual accused p2p users to have made it all the way to trial. The record labels won the first round in October 2007 when the jury at Thomas' first trial found for the plaintiffs and awarded them $222,000 in statutory damages for infringing 24 songs. The court then threw out the verdict after determining that it had erred by instructing the jury that it could find that Thomas infringed the plaintiffs' exclusive right to distribute their works by proving that she made the songs available to other Kazaa users -- without direct proof of actual dissemination.

Who are the plaintiffs?
Capitol Records, Inc., SONY BMG Music Entertainment, Arista Records LLC, Interscope Records LLC, Warner Bros. Records, Inc., and UMG Recordings, Inc.

Who is the defendant?
Jammie Thomas is 32 and lives in Brainerd, Minnesota. At the first trial, she testified that she works for the Mille Lacs Band of Ojibwe Indians in their Department of Natural Resources and Environment, coordinating a grant given to the tribe from the EPA to redevelop contaminated property. She has since married, and her last name is officially Thomas-Rasset, though her attorneys' papers continue to refer to her as Jammie Thomas. According to the AP, she pronounces her first name "JAY'-mee."

What about the RIAA? Isn't it suing Thomas?
The Recording Industry Association of America is a trade association that represents the major record labels, including the plaintiffs in this case. The RIAA has not sued Thomas, and it is not a party to the case. The RIAA does play a coordinating role in this and similar cases, though it is ultimately up to the plaintiffs themselves (all RIAA members) to make the decisions regarding the case.

Who is the judge?
Michael Davis, Chief Judge of the U.S. District Court for the District of Minnesota. Davis, who was appointed to the federal bench by President Clinton in 1994, is a former public defender and state court judge. Davis presided over Thomas' first trial.

Who are the lawyers?
The lead attorney for the plaintiffs is Timothy Reynolds, a partner in the Boulder, Colorado office of Holme, Roberts & Owen. Felicia Boyd of Faegre & Benson's Minneapolis office is lead local counsel. Other key lawyers on the plaintiffs' side include Matt Oppenheim of the Oppenheim Group and RIAA Senior Vice President of Litigation Jennifer Pariser. Kiwi Camara of Houston's Camara & Sibley leads the defense team; local counsel is Garrett Blanchfield of Reinhardt, Wendorf & Blanchfield of St. Paul. Harvard Law School Professor Charles Nesson is providing "support and input" to the Thomas defense, but has not entered an official appearance. Camara has said that he is representing Thomas pro bono.

Why is this case important?
Several reasons. Perhaps most important is PR. If the plaintiffs win, they will herald it as proof that their litigation campaign against individual p2p users was successful in demonstrating to the world that use of p2p networks to download and "share" music without permission or payment is illegal, and has serious consequences. If Thomas wins, it will be a major PR back eye for the record labels, and will be cited as evidence that the litigation strategy was an expensive failure that succeeded mainly in alienating consumers. Various rulings by the court, including on the "making available" theory of distribution, may turn out to be important legal precedent. And the effectiveness of the parties' arguments will influence what arguments they will make in other upcoming trials in similar cases, including the Joel Tenenbaum trial set for July 20 in Boston.

What is Thomas accused of doing?
The plaintiffs have alleged that Thomas violated their exclusive rights to reproduce and distribute the 24 sound recordings at issue by downloading them and disseminating them to others over the Kazaa network. See 17 U.S.C. § 106(1) & (3).

How much are the plaintiffs asking for in damages?
The plaintiffs have elected to seek statutory damages, which the jury can award in an amount between $750 and $30,000 per work, or up to $150,000 per work if they find that the infringement was willful. 17 U.S.C. § 504(c). The labels have not indicated that they will ask for a specific amount within that range. At the first trial, the labels did not ask for a specific amount, and I expect them to take the same approach here.

What was the verdict in the first trial?
The jury found that Thomas willfully infringed the plaintiffs' copyrights, and awarded $9,250 per work for 24 works, for a total of $222,000.

Why is there a new trial?
After the first trial, the judge, on his own ("sua sponte"), determined that he may have made a mistake by instructing the jury as follows:
The act of making copyrighted sound recordings available for electronic distribution on a peer‐to‐peer network, without license from the copyright owners, violates the copyright owners’ exclusive right of distribution, regardless of whether actual distribution has been shown.
He invited briefing on the issue, and then determined that the "making available" instruction was inconsistent with an Eighth Circuit case called National Car Rental v. Computer Associates. He thus ordered a new trial.

What's the controversy about "making available"?
The plaintiffs allege that Thomas violated their exclusive right to "distribute" their works. See 17 U.S.C. § 106 (3). The problem for plaintiffs is that it is difficult, perhaps impossible, to prove directly that a particular p2p user actually disseminated a particular file to a specific other user. Plaintiffs argue that to prove distribution, it is sufficient to show that the defendant had the files in her "shared" folder, thus making those files available to all other users of the p2p network. There are at least two ways to think about the making available theory: either making the file available in itself counts as distribution, or it is a factual scenario that presents sufficient circumstantial evidence from which a jury can infer that actual dissemination, and thus distribution, occurred. Thomas argues that "making available" simply isn't in the Copyright Act, and is foreclosed by binding Eighth Circuit precedent. See National Car Rental v. Computer Associates. Courts disagree whether making available is a viable theory; the cases go both ways. For a fuller explanation of the arguments in defense of the making available theory, read this brief; for the arguments against, read this one. (Disclosure: I worked on this MPAA amicus brief in support of the making available instruction.)

Can plaintiffs still win without the making available instruction?
Yes. Their claim that Thomas violated the reproduction right by downloading files has nothing to do with "making available" and is unaffected by the court's new trial ruling; they can prove that through forensic evidence from Thomas' computer. In addition, the court ruled that the plaintiffs can prove distribution by showing that Thomas actually disseminated files to the plaintiffs' own agent, MediaSentry. See order at 8-12. The dissemination to MediaSentry can be proved through direct evidence, without resort to the making available theory. Notably, after the first trial, one juror told Wired, "we would have reached the same result" if the plaintiffs had been required to prove that Thomas had actually disseminated the files to other Kazaa users.

What is the plaintiffs' evidence?
In sum: On February 21, 2005, MediaSentry detected 1,702 songs being shared via the IP address by KaZaA user "tereastarr@KaZaA." MediaSentry recorded this information and downloaded certain of the songs. Charter Communications, the ISP associated with this IP address, says that the address was assigned to Thomas on the date in question. A later search of Thomas' computer showed that she used the "tereastarr" user ID on several other sites. Plaintiffs also have forensic evidence relating to her modem's MAC address. This will all be explained by their expert, Dr. Doug Jacobson of Iowa State University. Here's the plaintiffs' full Statement of the Case.

What is Thomas' defense?
She says she didn't do it. Thomas maintains she never used Kazaa, and all the song files on her computer were ripped from CDs she bought. Her expert, University of Minnesota computer scientist Dr. Yongdae Kim, has opined that there are 14 "alternative explanations for the presence of KaZaA and certain alleged [sic] infringing songs on Defendant's computer." But Kim will not, says Thomas, "offer[] an opinion on the probable cause of the presence of KaZaA and certain alleged infringing files" on Thomas' computer. At the first trial, Thomas testified that someone must have hijacked her WiFi signal. But, reported Wired, "Expert testimony from an RIAA witness ... showed that a wireless router was not used, casting doubt on her defense that a hacker lurking outside her apartment window with a laptop might have framed her..." Thomas also is now asserting fair use and is seeking to "suppress" all of the evidence collected by MediaSentry on the grounds that it was collected in violation of state and federal law; there are pending motions on these issues, and it's unclear what role, if any, they will play at trial. [UPDATE: Thomas' motions have been denied; she is barred from arguing fair use, and the court refused to exclude the MediaSentry evidence.] Additionally, Thomas will attempt to prove that the plaintiffs don't actually own the copyrights at issue. And she will argue that large awards of statutory damages are unconstitutionally excessive. Here's Thomas' Statement of the Case.

What did the jury think of Thomas in the first trial?
They simply did not believe her. One juror told Wired, "She lied.... There was no defense. Her defense sucked." As to her defense that her IP address was "spoofed," the juror said, "Spoofing? We’re thinking, ‘Oh my God, you got to be kidding.’" Also, "At least two jurors, one of them a funeral home owner, wanted to award the [plaintiffs] the maximum $150,000 for each of the 24 copyright violations, while one juror held out hours for the $750 minimum for each violation...."

How long will the trial last?
The parties estimate 5 days total to put on their cases: 3 for the labels, and 2 for Thomas. At the first trial, testimony and argument lasted just 3 days.

Where can I read the various documents in the case?
Almost all of them are here or here. All are available -- for a fee of $.08 per page -- through PACER.

What's your prediction? Who will win?
Based on the facts and the law, and the result from the first trial, I think it's most likely that the plaintiffs will win once again. However, this is a jury trial, and juries are unpredictable. It is not inconceivable that the jury will be sympathetic toward Thomas, whom the defense will portray as a victim of large companies' abusive litigation strategy. Thomas has new, aggressive counsel, and they have made clear they will fight plaintiffs every step of the way. It's also clear that Judge Davis is not inclined toward the plaintiffs; his new trial order includes at the end a plea to Congress to change the law to address what he views as excessive damages for non-commercial infringement.

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