Cites & Insights: Crawford at Large
ISSN 1534-0937
Libraries · Policy · Technology · Media

Selection from Cites & Insights 7, Number 12: November 2007

©3: Balancing Rights

Sometimes They’re Guilty

Does RIAA overstate the extent to which filesharing reduces CD sales? Almost certainly. Are the statutory damages assessed for casual infringement and asserted by RIAA outrageous? You betcha. Does RIAA push for even more unbalanced copyright law? No question. Is it unreasonable for RIAA to expect universities to serve as the association’s assistants in finding and punishing students who infringe copyright? Probably.

Should RIAA be spending more on tracking down real pirates—those who produce and sell illegitimate copies for profit—and a whole lot less on thousands of lawsuits against casual filesharers? Absolutely, in my opinion.

But let’s get down to the real nitty gritty (to quote Shirley Ellis from 1963 and Ricardo Ray from 1994): Are RIAA’s infringement suits always outrageous?

Note the catchphrase for ©3: “Balancing rights.” Not evading copyright or saying, “It should all be free.” Balancing rights. Given that, my answer to the question above is “Yes and no.”

Yes, RIAA casts too wide a net. Yes, they’ve sued people who weren’t infringing copyright. Yes, they’re using hopelessly excessive claims for damages, aided by outrageous statutes. Yes, the whole RIAA process is unsavory (reasonably well documented at, by no means an impartial site). Yes, it did my heart good to see one wrongly accused person get a court to instruct RIAA to pay her legal fees.

But I’m really not ready to see copyright dismissed as inconvenient. We need changes in what’s considered fair use and in statutory damages—but that means changing the law, not ignoring it or expecting juries to “invalidate” it. And, as the title for this essay says, sometimes they’re guilty.

Most of the time, RIAA grabs a few thousand bucks (commonly $3,750) from each infringer and lets it go at that. After all, very few individuals are about to pay the legal fees to stand up to a big well-funded corporate association. If the first try doesn’t work, RIAA asks for a default judgment of $750 per “infringing” song. Sometimes that works, sometimes it doesn’t. Once in a while, someone stands up. Standing up doesn’t necessarily mean you’re in the right. (Credits: Charles W. Bailey, Jr. did a fine job of gathering appropriate links on this particular case at DigitalKoans. Most of the quotations here come from those links. Thanks, Charles!)

Background and Trial

The case against Jammie Thomas is the first time an RIAA filesharing infringement suit has gone to a jury. Not that RIAA wanted that to happen. It filed a motion for summary adjudication, claiming no facts were in dispute. (Judges determine the law; juries rule on the facts. At least that’s the theory.) The facts claimed not to be in dispute: That the record companies actually serving as plaintiffs own the copyrights to the performances in question; that those copyrights are registered; and that plaintiffs never granted the defendant any authorization to copy or distribute those recordings. The defendant’s response says there’s no agreement on those facts—and that the critical fact, that infringement took place, can’t be proved. That’s a brief summary and probably unfair to both sides. (One interesting issue: Given changes in ownership and the like, the registered copyright holders on older songs are frequently not the corporate bodies that currently claim copyright ownership—e.g., to give the simplest case, Sony BMG now claims ownership of all CBS, Inc. copyrights, but those are two different names.) Suffice it to say RIAA lost that one—the case went to jury trial.

I’m not making RIAA out to be a hero here. The group has done its damnedest to never actually lose: Walking away from cases where defendants fought them, for example. As Ars technica put it in a September 10, 2007 article on the RIAA motion:

A loss at trial would be even more catastrophic for the RIAA. It would give other defense attorneys a winning template while exposing the weaknesses of the RIAA’s arguments. It would also prove costly from a financial standpoint, as the RIAA would have to foot the legal expenses for both itself and the defendant. Most of all, it would set an unwelcomed precedent: over 20,000 lawsuits filed and the RIAA loses the first one to go to a jury.

This appeared to be a case with a sympathetic defendant: A single mother and Native American in Brainerd, Minnesota. Here’s the big mean RIAA against a single mother who probably didn’t do anything wrong and certainly didn’t intend to infringe.

Except that her IP address was attached to a KaZaA account offering more than 1,700 recordings, with a user name she’d apparently used for years on several different accounts. Except that, “Not long after receiving a settlement letter from the labels, Thomas also had the hard drive in her PC replaced by Best Buy” (October 1, 2007 Ars technica coverage). Except that she said she’d replaced the hard drive a year earlier, before she received the settlement letter. (Don’t we all replace our hard drives every so often?)

You can follow Ars technica’s coverage of the trial from Charles Bailey’s October 5, 2007 post—not to give away the plot line, but the title’s “RIAA wins in Capitol Records v. Jammie Thomas.” The defendant’s counsel questioned the linking of an IP address to the defendant, questioned that she’d actually seen a message accusing her of infringement before she had the hard disk replaced and attacked the use of usernames as “circumstantial evidence.”

Things got very interesting when Sony BMG lawyer Jennifer Pariser testified. Pariser claimed that ripping your own CDs is theft:

“When an individual makes a copy of a song for himself, I suppose we can say he stole a song.” Making “a copy” of a purchased song is just “a nice way of saying ‘steals just one copy’,” she said.

Quite a few people pointed out the oddity of a Sony attorney claiming home recording for personal convenience was inherently theft. So much for the Betamax doctrine. Sony also sells recordable CDs, including “audio CD-Rs” specifically designed for copying music from other CDs—so is Sony itself aiding and abetting an activity its own attorney regards as theft?

Later, Pariser said RIAA is losing money on its legal campaign—and it has no idea how much damage it actually suffers from filesharing. RIAA never seeks actual damages (which could scarcely be more than $0.99 per demonstrated download); they always go after statutory damages of as much as $150,000 per song. Oddly, Pariser also claimed that the defense lawyer’s estimate of the number of filed suits was “probably an overstatement,” although that lawyer presumably did his homework.

Then Jammie Thomas took the stand. She admitted that she used the username in question on other accounts—even as the username on her Compaq. She admitted there was only one PC in her house when the KaZaA account was discovered. The plaintiff’s lawyer established that none of her boyfriends knew the password for her PC. When Thomas was deposed, she said she ripped no more than six or seven CDs per day—but on the stand said she could have ripped more than 2,000 songs in a little over two days. She asserted that she’d never had KaZaA on her computer—but also said that she’d concluded in 1998 or 1999 that Napster was legal.

Given all that, I can certainly understand why the jury might reasonably conclude that Thomas was guilty—not only that she infringed copyright but also that she did so knowingly and attempted to conceal her actions. I suppose you could have a KaZaA account belonging to someone entirely different who just happens to have the same IP address as someone who uses that odd username for any number of other accounts—but it stretches credulity.

At that point, the big argument was over a jury instruction: Does “distribution” require proof that someone actually downloaded a song, or only that it was available for download? The judge originally used the first reading. RIAA asserts that availability on a filesharing network is sufficient proof of actual transfer. The judge finally amended the instruction: “the act of making available for electronic distribution…violates the copyright owner’s exclusive copyright.” Was the amended instruction correct? Different judges have taken different actions: There’s no solid precedent one way or the other.

Brian Toder (Thomas’ attorney) apparently recognized the case was falling apart. In his closing argument he said, “There are certainly alternative explanations, because my client didn’t do it… Someone used her name and IP address. It’s not impossible.” Well, you know, any murder victim could have died spontaneously just before the shooting, thus making the accused innocent of murder—it’s not impossible. And yet, murder convictions happen all the time—much less guilty findings using the lower standard required for civil verdicts.

Verdict and Reactions

The verdict was no great surprise and took the jury a mere five hours. Thomas was found guilty of willful infringement on all 24 songs that actually came to trial. The jury awarded $9,250 per song—a lot less than the possible $150,000, but enough to yield $222,000 in damages. According to one of the jurors, it took the jury only five minutes to decide she was guilty; the rest of the time was spent debating the appropriate penalty. That juror says at least two jurors wanted to assess the full $150,000 per song, while one held out for the $750 minimum. The juror, quoted in a Wired News story, said “We wanted to send a message that you don’t do this, that you have been warned.”

Is it likely that the RIAA will collect $222,000 from a single mother? Of course not.

Is it likely that the RIAA will continue its overbroad campaign, emboldened by this victory? Probably, and that’s a shame, all things considered.

Was the defendant guilty? There, it’s hard to argue with the jury—as long as the instructions to that jury stand. posted “Four reasons why the RIAA won a jury verdict of $220,000” on October 5, 2007:

1. The RIAA was able to match a username and IP address with Thomas. Thomas’ widespread use of the same username certainly didn’t help matters.

2 and 3. The jury instructions, already discussed.

4. “Copyright law is harsh.” The minimum damage the jury could have applied is $750 per song.

The piece suggests RIAA would be smart to offer Thomas a settlement of around $22,000, which would “still let the record labels wave around a pretty big club.”

Early reactions

Bush administration officials equated the Thomas case with piracy and applauded the outcome. Congressman Rick Boucher, one of the leading voices for balanced copyright, thought the damages were “obviously excessive” (I agree)—but he also noted “I have no sympathy for people who engage in illegal peer-to-peer file sharing.”

Jammie Thomas called the amount of the judgment “ridiculous”—and still asserts she’s innocent. She basically said she lost because she didn’t have the money to afford an FBI analyst to prove that someone else hacked her IP address (and username?).

I’m sure some of my friends and readers are outraged by my stance here—which is that, although the amount is certainly excessive, Thomas was almost certainly in the wrong. EFF takes what I consider an unfortunate (but consistent) view:

Despite today’s verdict, tens of millions of Americans will continue sharing billions of songs, just as they have since Napster let the P2P genie out of the bottle nearly 8 years ago. Every lawsuit makes the recording industry look more and more like King Canute, vainly trying to hold back the tide

EFF seems to feel that filesharing must be OK because so many people do it. By that logic, we really should abolish speed limits and legalize adultery.

I don’t see lots of commentary saying the verdict was wrong—although many people (including Declan McCullagh, who believes the verdict was right) agree the amount is absurd. He says, “The problem isn’t the verdict. It’s the penalty.” I agree.

More reactions

Bailey posted more reaction links on Sunday, October 7. One particularly interesting one is at Ars technica (a good source for coverage of these issues), “How the RIAA tasted victory: a perfect storm which might not be repeated,” posted October 7, 2007 by Eric Bangeman. Bangeman, who was at the trial, says in part:

It’s reasonably clear that the RIAA chose to head to trial with a case it knew it would win. Across the board, the RIAA’s case was strong. Every significant allegation that the labels made could be backed up, including the “tereastarr” screen name, the ownership of the IP address, and the presence of a single device behind the IP address. (The only assertion that the defense was able to cast significant doubt upon was that the music on Thomas’ hard drive was copied from another hard drive and not ripped.)…

Perhaps the most damning bit of evidence was the username for the KaZaA share flagged by Safe Net, tereastarr@KaZaA. Thomas had a 13- or 14-year history of using that name online for everything from e-mail addresses to profiles. RIAA lead counsel Richard Gabriel hammered that point home to the jury, showing screenshots of her profile with her picture on it as well as the Windows XP Start menu on her PC, both of which used the tereastarr moniker.

Speaking of her PC, the RIAA also made sure the jury was fully aware that Thomas’ Compaq Presario was password-protected, and that she was the only person who knew the password and was therefore able to log onto the machine. Thus, the question of identity fell strongly in favor of the RIAA.

In his attempt to raise doubt that the tereastarr flagged by SafeNet was indeed Jammie Thomas, her attorney Brian Toder raised the possibility that there might have been a “computer party” going on. If that was the case, anyone could have been plugged into Thomas’ cable modem and sharing music over KaZaA.

There was one problem with that theory: Charter’s records showed that the same device was plugged into the cable modem in the months before and after the KaZaA share was flagged. One of the exhibits introduced at trial showed a four-month snapshot of the DHCP leases for Thomas’ account. In each case, the MAC address for both the cable modem and the device connected to the cable modem were unchanged for the entire period in question. There was no evidence that Thomas used a router, which means that the same PC was likely plugged directly into the cable modem the entire time. The KaZaA identity, and now the connection used, appeared to point to Thomas.

The RIAA also made a point of showing that much of the music in the KaZaA share was likely downloaded from P2P networks. They did this with the help of Mark Weaver of SafeNet, who walked the jury through the company’s investigative techniques and explained the significance of MP3 file metadata to the jury…

Beyond the hard evidence, the RIAA was also able to convince the jury that Thomas was a tech-savvy individual. She testified that she has a BS in business administration from St. Cloud State University, the course work for which included a number of computer courses, and that she was “proficient” in the major Microsoft applications. Her job in the Department of Natural Resources for the Mille Lacs band of Ojibwe also involves a fair amount of computer use, and she has done some online gaming in the past. All in all, it was a picture of someone who knew what she was doing when sitting in front of a PC.

For the jury, we believe these issues were critical. For a jury of mostly non-technical people, the issue of identity was strongly decided in favor of the RIAA…

With the RIAA having successfully tried a case, there’s now a template for how to handle future cases that go to trial. First, the RIAA will need to make sure that the evidence is as exhaustive as possible. Second, the labels will need to be able to make a concrete connection between the screen name on KaZaA (or whatever application is in use) and the human being at the keyboard, something they were able to do with Thomas. If the defendant doesn’t have a wireless access point or a router, so much the better…

This victory is not a sign that the RIAA will take more cases to court. A win in battle does not equate to winning the war, and too many dicey questions were either sidestepped or ignored in this trial for it to be truly indicative of how all such cases will play out.

Ed Felten is worth hearing on issues like this. Here’s part of what he had to say in an October 5, 2007 post at Freedom to tinker (

People often argue that the industry has only weak evidence when they send their initial settle-or-else demand letters to users. That may well be true. But in this case, as the trial loomed, the industry bolstered its case by gathering more evidence. The lesson for future cases is clear. If the industry has to go to trial with only the initial evidence, they might not win. But what end user, knowing that they did download illegally, will want to take the chance that more evidence against them won’t turn up?

The most striking fact about the Thomas case is that the jury awarded damages of $9250 per song to faraway corporations.. That’s more than nine hundred times what the songs would have cost at retail, and the total of $222,000 is an astronomical amount to a person in Jammie Thomas’s circumstances. There is no way that Jammie Thomas caused $222,000 of harm to the record industry, so the jury’s purpose in awarding the damages has to be seen as punishment rather than compensation.

My guess is that the jury was turned off by Thomas’s implausible defense and her apparent refusal to take responsibility for her actions. Litigants disrespect the jury at their peril. It’s easy to imagine these jurors thinking, “She made us take off work and sit through a trial for this?” Observers who hoped for jury nullification—that a jury would conclude that the law was unjust and would therefore refuse to find even an obvious violator liable—must be sorely disappointed. It sure looks like juries will find violators liable, and more significantly, that they can be convinced to sympathize with the industry against obvious violators.

All of this, over songs that would have cost $23.76 from iTunes. At this point, Jammie Thomas must wish, desperately, that she had just paid the money.

That last sentence is a little off, since one key to the verdict was Thomas’ making the songs available for others to download; she may very well have owned all the songs on CD. That third paragraph is particularly interesting, however: Juries may not love the RIAA but they rarely nullify laws.

It’s nonsensical to fine Jammie Thomas $220,000 and hope she will or should pay that amount. It’s possible RIAA will lose more good will because of the case, although I’m not sure how much good will RIAA has left to lose at this point. It would be lovely to see changes in the law such that statutory damages for noncommercial copying made some kind of sense.

But I’m less ready than EFF to just say, “Everyone does it, so it’s OK.” In fact, everyone does not do it—by most estimates, no more than 10 to 15% of Americans download music illegally. Compared to speeds on a typical highway, that makes music-lovers pretty law abiding. The law’s out of whack. That does not automatically excuse breaking the law. Apparently a Minnesota jury felt the same way.

The Story Continues

Thomas is appealing the decision based on the jury instruction that said making songs available on a filesharing network is sufficient proof that the file has been shared (thus infringing copyright). The appeal is pretty clearly not entirely a personal matter, as Thomas wrote this on her blog: “This would stop the RIAA dead in their tracks. Every single suit they have brought has been based on this making-available theory, and if we can win this appeal, they would actually have to prove a file was shared.”

I’m impressed that a single mother with a modest salary who’s clearly being abused by the RIAA apparently has the legal resources to mount what will surely be an expensive challenge. I find it a little hard to believe that she’s simultaneously claiming she never did it and spending money on an appeal that says what she claims not to have done was legal anyway.

I’m not surprised EFF says the jury instruction was “wrong.” EFF argues that distribution doesn’t apply to digital transmissions at all—that it requires that a physical object change hands—and that, even if it did, a copyright owner must prove that someone actually downloaded from someone else’s computer. EFF will file an amicus brief. As noted already, the record is mixed. A big part of me hopes that the appeal succeeds—that “making available” isn’t held to be equivalent to “distributed.” But it’s tough on both counts.

Jammie Thomas’ attorney is also raising another interesting argument in a plea to the judge: The statutory damages established in 1976 are so excessive as to be unconstitutional. It’s not a crazy notion: The Supreme Court has overturned punitive damages using a guideline that anything in excess of nine times actual damages is excessive. The minimum statutory penalty for infringement is $750; that’s 757 times the actual damage for a single unauthorized download of a tune, as compared to the download cost of $0.99 at most sources. The RIAA says that any such theory of excessive damages would make “it economically unsound for any copyright owner to seek to protect its copyright interests.” I find that a little hard to swallow; surely commercial piracy can be punished based on probable actual damages. On the other hand, I’d be surprised if the courts accepted the argument.

Oh, as to EFF’s claim that the law requires physical distribution? The relevant clause says the owner has the exclusive rights “to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending.” I guess EFF is saying “copies” can only mean “physical copies.” Interesting.

Cites & Insights: Crawford at Large, Volume 7, Number 12, Whole Issue 96, ISSN 1534-0937, a journal of libraries, policy, technology and media, is written and produced by Walt Crawford, Director and Managing Editor of the PALINET Learning Network.

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