UPDATE: RIAA Wins First File-Sharing Jury Trial

UPDATE: RIAA Wins First File-Sharing Jury Trial


A Duluth, MN jury of six men and six women has found Jammie Thomas liable for copyright infringement. The 24 shared songs ($24 on iTunes!) will now cost Thomas $220,000 in associated penalties, although jurors had the option to maximize the damage in upwards of $3 million. As it stands, Thomas will be paying $9,250 for each song -- perhaps it's luck that the RIAA only went after such a small handful of tunes, as opposed to her original library of 1,700 tracks.

Where does this put the state of the RIAA and the legal system? In future court cases, the RIAA now has to show that a computer, under a person's reasonable ownership, shared copyrighted files on the Internet. That's it. The actual person doesn't have to be placed at the computer at the time of sharing, nor does the RIAA have to prove that others downloaded the files -- the "I opened up my computer but nobody looked" defense.

As you might expect, the parameters of the decision now establishes a baseline for which the RIAA can -- and will -- engage in court battles with confidence. Expect the association to be a little less shy about fighting the legal fight against potential infringers that attempt to challenge RIAA litigation. With the Duluth ruling, the RIAA has found a new breath of fresh air.

Yesterday's prediction below:


As the patron saint of our podcast's "Copyright Corner" and an RIAA-hating geek, I've been following the association's first-ever jury case like a cat watching a string. For those in the dark, a brief synopsis of the story thus far: the RIAA doesn't like it when people share files, especially music files of its member record labels and artists. They used to not like it in a strictly pen-and-paper sense, but have long since upgraded to court battles, extortion, mountains of litigation -- it's not the whole nine yards, more a pass interference call after a 60-yard missed bomb.

Football analogies aside, the RIAA used to have a pretty high success rate with its tactics: find IP addresses that share files, file suit against John Does from the hosting ISP's home state, subpoena the ISPs for the real-world identity behind the IP addresses on the RIAA list, then offer the "infringers" a chance to settle out of court for a "discount" on the $750-per-song penalties that could come at the tail end of a lost lawsuit. The RIAA collects, the "infringer's" bank account takes one for the team, and everybody heads on home. The latter probably throws his router out the window, but I digress.

People are finally beginning to fight the lawsuits, giving the RIAA a bit more cause for concern and forcing this, the first jury trial to stem from the RIAA's merciless copyright claims. But as much as I scorn the RIAA's tactics and general ignorance of a consumer's right to do-with-purchases-as-he-or-she-pleases, I'm finding it hard to come to the defense of the... defendant... in question, Jammie "Tereastarr" Thomas. In short, she's screwed.

Let's look at the evidence. In the case, the RIAA's alleging the following:

  • At the time of the RIAA's sleuthing, Thomas' ISP assigned her a particular IP address as is standard with anybody trying to connect to the Internet.
  • The IP address was the exact same IP address that was sharing a bevy of songs (1,700) on the Kazaa network at the time of the RIAA's discovery.
  • The username "Terrastar" was logged into Kazaa and Thomas's cable modem at that time.
  • Thomas uses the name "Terrastar" on match.com, as her e-mail address, and on various other web site logins


And Thomas' defense?


Now, I'm no computer expert, but I'm pretty confident that there's only one possible scenario that would be of any use here: that somehow, someone else living in Thomas' living quarters accessed her computer without her knowledge and let the downloads run, run, run. Legally, I doubt that's convincing enough of an argument to prevent the Lord of Fines from visiting Thomas' bank account, but there's still one more factor to consider: technological ignorance, or what I like to dub the "Best Buy" factor.

The jury currently hearing the case is about as far-removed from the peculiarities of the Interwebs as Will is from being an awesome RTS player. It's no fault of their own. Some people just don't get technology. IP addresses, P2P, the nuances of "what connects a real-life user to a bunch of 1s and 0s" -- it's all weird science if you've never even been on the Internet (as some jury members have admitted). It's analogous to someone coming in to Maximum PC and spending 8 hours a day, 5 days a week, telling me about how quantum physics works. I'm not saying I'm not interested, but I'm pretty sure I'd be daydreaming after an hour or so of high-level concepts wooshing by my head. If this jury's the same way, Thomas won before she even walked into the courtroom.

Thomas' lawyers have not called any witnesses in her defense, effectively skipping that part of the trial where you, you know, try to give cause as to why the allegations against you aren't correct. As far as I'm concerned, she's thrown in the towel. Case closed. Let this stand as the first jury case the RIAA won against a copyright infringer, but more importantly, let it also be a record for future cases that you shouldn't half-ass your file-sharing. If you really must have that 50 Cent / Nine Inch Nails mash-up song, and you can't bear to pay for it, then at least cover your tracks a little bit. Open up your router. Put a sign on your door that says "free Internet from 6-10; come on in!" Blame it on the cat. Attack the RIAA's information collection methods. Hell, attack their "expert" witness, who seems to believe that you can find the internal IP address of computers behind a router. Which is certainly possible, but you'd have to examine the router logs itself to tie a specific computer to a specific IP. All valid options; it's unfortunate this case will go in the RIAA's favor, and it's hard to know who to blame -- the guilty defendant, or the anemic defense.



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There's a critical difference between soliciting sex online and copyright violation.

First, note that while most of the TV busts may be thrown out, state and federal governments frequently and very successfully engage in similar sting operations.

But more importantly, the crime in those cases is usually solicitation of sexual activity with a minor. In other words, they are being charged with a not-quite-completed (in legalese: inchoate) offense.

RIAA lawsuits are fundamentally different: they're civil suits, not criminal. And the civil world generally does not have a general inchoate liability. While there are some exceptions, they are just that: exceptions. Generally, a party must prove each and every element of the claim: just trying to do something isn't enough.

So Erin's argument might be a valid one on appeal (should they choose to do so). Essentially, it would be that there is no way a jury could have found all elements of the plaintiff's case were met.

Of course, this would probably fail. There really has to be absolutely nothing in the facts of the case that would allow a jury to make a finding, and that's an extremely high bar. Since the jury could infer from the fact that she opened up her computer that someone dowloaded the songs, I don't think it would fly.

Also, as a matter of trial strategy, that would probably be a hard sell to a jury, but that's a choice that's best left to trial counsel who has a chance to interact with the jurors.

Caveat: all I know about the case is what I've read here, and I'm just speaking generally.



It clear that this lady felt she could become famous as everyone else has by fighting the RIAA. Sadly she was clearly mistaken as the courts rolled right over her sad excuses.
One thing to learn was to protect your personal files from direct access to the internet. If you copy music to your harddrive you should not store it in the usual "C:\Documents and Settings\theotherguy\My Music" or in a sharing folder for the P2P program, I mean just make it a bit harder than default settings. The next big thing is not to use your unsecure wireless connection but your neighbors unsecure wireless connection if your going to be using the P2P networks for this.
One question I have is instead of saying she replaced her harddrive after the notice from the RIAA, if she would have tryed to say that the geek squad had installed the P2P service on her computer - unknown to her "wink wink" - when they replaced the harddrive, what the outcome would have been. Another question is if she would have mailed in the amnesty letter the RIAA offered after recieving the notice.



i haven't paid detailed attention to any of the cases out there, only heard brief headline rambles before changing the channel from news to family guy. with this topic i can't only think about copywright dealing with digital files shared over the internet. how many of you ever taped a tv show or movie off of your television with that dusty vcr player? that should cost you seven hundred bucks. and how many have ever been passed a scanned copy of a publication either in class, church, etc.? someone owes seven hundred dollars per page. who's ever taped their favorite song off of the radio? remember mixed tapes? copyright infringement has been happening increasingly with the exponential growth of technology, have the laws? this controversy is now at a ridiculous climax that hopefully is upon its plateau. this issue may have been brought up before, i don't know. copyright laws are not in place to protect physical hands on copies that if taken are just simply stolen. what is being taken now is intellectual property but it falls under the same concept. is downloading a file stealing, unethical, or immoral? do they really think that with technology ever progressing that they will stop this. something needs to change, the owners of the intellectual property should still be compensated, yet prosecutions are taking this to an extreme measure. they need to stop fighting that breaking this law in this manner draws upon these extreme measures because it's really that bad. we should organize where the only illegal files downloaded occur from one ip address at a time with as many people using that bandwidth as possible so that they can't narrow it down to one of us. this is all simply out of date. one on one we can beat them and one on one they can beat us, nothing will happen from this. hello congress! our laws and definitions of this issue in the justice seem are screaming to be redefined, reinvented, and compatible with today.



How's this for a defense: the Copyright Act makes "distribution" an infringement of copyright, and what Ms. Thomas did wasn't distribution. She made files available in a shared folder, sure, but has the RIAA shown that anyone accessed those files without authorization? No, all they can establish is that their investigators (who have the permission of the rightsholder) were able to obtain copies of the songs -- copies they were entitled to make! Ms. Thomas didn't copy or transmit the files at issue, the RIAA's authorized agent did.

Keep an eye on Elektra v. Barker and Elektra v. Perez to see if this theory will hold water in court.



That sounds like bunk logic to me, Erin. By the same token, all of those "to catch a predator" busts should be thrown out, because the person in question isn't soliciting sex from a minor -- he's soliciting sex from an of-age investigator. But in this case, it's the *intent* that's punished, for there would be no other way to logically set up such an operation without actually using a child to actually set up the sting.

In this case, the distribution is evident. If the files in question could be accessed by any random person on Kazaa -- in this case, an investigator for the RIAA -- I think it's safe to say that said filesharer is infringing on the copyright owner's sole right to control distribution of said materials. The fact that said investigator has been given authorization to download the files is merely a step in the pursuit of the original sharer, not a blanket defense.

Thomas copies and/or transmits the file. Without Thomas' sharing, there would be no file to grab. Without the investigator, there would still be millions of users to take his place.



Hate to tell you this, TheMurph, but most of those "To Catch A Predator" busts ARE thrown out. Most of the people caught by those shows never see the inside of a jail.



Perhaps in TCAP's case, but when it's not made-for-tv, the Internet stings seem quite effective to me:




I think that the Murph should represent the first "real" defensive case to the RIAA, he seems to know a lot on the subject or at least a lot more than a regular lawyer would. Just study a few law and order cases and you good to go, right? Great job with investigating this!



Cute attempt to troll. But seriously now, instead of taking the cheap low road, why don't you offer up a suggestion or an alternative?

Right now, the only defense I've seen in this case has literally been the "it wasn't me" line. I don't believe an IP address alone is enough to tie a person to a computer. However, considering she never used a wireless router -- one defense they've tried to use -- the notion that "someone hacked her interwebs" is totally out.

The most damning fact in the case is her user name. It's awfully peculiar that a Kazaa user name originates from the same location as someone who uses the same user name elsewhere on the Internet. You can break into someone's Wifi and P2P all you want, but the odds of someone doing so *and* doing it under the owner's user name? Slim to none.

I'll quote the Wired article on this one: "Thomas' attorney Brian Tober suggested his client was the victim of a zombie, a cracker, or a drone." Last I checked, viruses, worms, and the like don't fire up your P2P programs and start hitting up the latest Snoop Dogg album.




I have heard of programs that use your system as a P2P "server" without your knowledge. Or at least, plausibly without your knowledge that they are distributing infringed upon electrons. I'm not a p2p fan, so I don't know the details.

Of course, the defense would have access to the system drive. They would be able to look into this.


PS: I do recall it as a Kazaa issue. This was just maybe - 2 years back?



At what point do we accept responsibility for the actions of our property? If I put my car in neutral, and it happens to back out of the parking lot and kill somebody when I'm not there, who's fault is that? Mine? The car's?

I suppose the prosecution could have investigated the idea of a worm of virus a little sooner... had the defendant not taken her "malfunctioning" drive to Best Buy to have it replaced a few weeks or so after she received the RIAA notice.


Mr E

Actually, she took her hard drive in for replacement BEFORE the RIAA came after her. That was confirmed by a Best Buy Geek Squad dude that was called to the stand. It could maybe be argued that she suspected they were after her, but testimony indicated that she did have legitimate problems with her PC that necessitated the drive swap.

To me the biggest problem for the RIAA is not that they might lose, but that they might win. Hugely punishing a music loving single mother of two (she apparently buys [or used to buy] tons of music--also confirmed by the Best Buy dude) for doing something that many people don't consider all that outrageous is certainly not going to encourage people to run out and partake of the RIAA's wares.

The music industry's pyramid of artists on the bottom and suits on the top is going to be toppled sooner or later, no matter how hard they try to hang onto their clearly defunct business model. Long live eMusic and all the independent artists!



Ahh, my mistake, I misread the report -- she took the drive in after the alleged infringement, but before the RIAA came a-knockin'. To clarify:

"The [RIAA's] lawyer scored his sharpest point against Thomas on the issue of a computer hard drive she had replaced in 2005, after the RIAA's investigators spotted the music cache. She admitted to incorrectly testifying in her deposition that she'd replaced the hard drive in 2004 -- which would have made the Kazaa-free hard drive compelling exculpatory evidence."

And to be fair, I don't agree with the RIAA whatsoever, but the law is currently as it stands. Everyone I know pirates music, but none of them have ever considered the legal ramifications that would occur if they were caught. Talk about, "If you can't take the heat..."

That said, I think paying $750 per song is rather outrageous. Considering I can buy a track on iTunes for $0.99, that's akin to the RIAA suggesting that 750 people have downloaded each track of my my shared music -- certainly possible for the big hubs the RIAA *should* be going after. But for an average user? Hm.



"had the defendant not taken her "malfunctioning" drive to Best Buy to have it replaced a few weeks or so after she received the RIAA notice."




if the music library doesn't fit, you must...



"It wasn't me. It was MS ME. I was remotely accessed and someone took over control of my system without my knowledge. MS told me that was possible - but I didn't believe them. And then it happened.

RIAA should be suing MS not me - after all, it was thier operating system that allowed this to happen. Heck, search my system - there are probably viruses all over it."

Hey, you can laugh - but it could (actually has) happen.


"You say 'Nero is King" like it's a good thing."

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