Analysis of RIAA won

While the RIAA has sued some 30,000 broadband file traders over the years, this week saw the first case to actually head into a courtroom, and the results were good for the RIAA. Jammie Thomas, 30, was found guilty of trading 24 songs online, and was ordered to pay $220,000. The fine could have been as high as $150,000 per song.

While Thomas insisted on the courthouse steps that she had never downloaded or uploaded music, her lawyer tried to convince jurors there was no way to prove who had uploaded songs on the Kazaa file sharing network. A jury took just five hours to decide that evidence provided by the music labels showed otherwise and found Thomas guilty of copyright infringement, court records showed.

While the RIAA has had flimsy evidence in some cases, this first case was, in fact, one of their strongest. Wilson could have settled for a few thousand, but is now being forced to pay $9,250 for Gloria Estefan's "Rhythm is gonna get you

The Recording Industry Association of American got a chance on Thursday to show everyone just how heavy and intimidating the legal club of copyright law can be.

As my colleague Greg Sandoval wrote a few hours ago, a Minnesota woman named Jammie Thomas was sued by the RIAA for allegedly making available some 1,702 songs through the Kazaa network (though only 24 were at issue in the case). A federal jury sided with the RIAA and returned a verdict of $222,000.

I've put some recent documents in the case online here for your perusal.

So why did this verdict happen?

1. The RIAA was able to match a username and IP address with Thomas. There's not always a 1:1 mapping between IP address and a specific computer, of course, as people who are behind a corporate firewall probably know. But home users tend to be more easily identified, and it's trivial nowadays for a lawyer armed with a subpoena to find out who they are. Large Internet service providers have entire departments to respond to these requests.

The fact that Thomas publicly used the nickname "tereastarr" including as a tereastarr@hotmail.com e-mail address -- and then chose it as a Kazaa username as well -- may have helped the RIAA immeasurably. If she had used a Kazaa username of "anonymous" instead, I wonder if the jury would have been more likely to take her side. The jurors seem to have flatly rejected (and reasonably so) her lawyer's claim of possible IP address spoofing.

2. The RIAA's jury instructions. Both the RIAA and the defense submitted proposed jury instructions (see my link above). Both are pretty similar because of the constraints of 8th Circuit precedent.

The key difference is that the RIAA offered two suggestions, which would eventually become Jury Instructions 14 and 15, which the defense left out. Once U.S. District Judge Michael Davis sided with the RIAA on that crucial point, which he did, and adopted its suggestions, the recording industry had a much easier time of it. Those two crucial instructions are:

JURY INSTRUCTION NO. 14: The act of downloading copyrighted sound recordings on a peer-to-peer network, without license from the copyright owners, violates the copyright owners' exclusive reproduction right.

JURY INSTRUCTION NO. 15: 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.

3. "Making available." Jury Instruction 15 is more important. It says that the RIAA doesn't need to offer any evidence that rapacious Kazaa users actually downloaded songs from Thomas' computer. All they need to do is claim that Thomas left the songs in a publicly accessible directory where they could have been downloaded. Big difference.

This is not an outlier, by the way. A Pennsylvania judge came up with the same making-available-is-infringement conclusion in February. Marybeth Peters of the U.S. Copyright Office has argued that "making (a file) available for other users of a peer to peer network to download... constitutes an infringement of the exclusive distribution right, as well of the reproduction right." Judge Davis' interpretation of the law may not be the only one, but it's a defensible one. Here's his reasoning.

4. Copyright law is harsh. Once the jury decided that Thomas was behind the IP address in question, there was almost certainly going to be a stiff fine--of at least $18,000. In this case, the jury was given these instructions:


JURY INSTRUCTION NO. 22: In this case, each plaintiff has elected to recover "statutory damages" instead of its actual damages and profits. Under the Copyright Act, each plaintiff is entitled to a sum of not less than $750 or more than $30,000 per act of infringement (that is, per sound recording downloaded or distributed without license), as you consider just. If, however, you find that the defendant's conduct was willful, then each plaintiff is entitled to a sum of up to $150,000 per act of infringement (that is, per sound recording downloaded or distributed without license), as you consider just.

In determining the just amount of statutory damages for an infringing defendant, you may consider the willfulness of the defendant's conduct, the defendant's innocence, the defendant's continuation of infringement after notice or knowledge of the copyright or in reckless disregard of the copyright, effect of the defendant's prior or concurrent copyright infringement activity, and whether profit or gain was established.

In this case, the jurors chose $9,250 in damages for each of the 24 songs, or $222,000. They could have gone as low as $18,000 in total or as high as $720,000, and seemed to want to pick something closer to the middle.

So what happens next? Thomas can appeal. Or, if the RIAA's smart, its lawyers will offer her some kind of not-entirely-punishing settlement that's a tenth of today's damage award and strongly encourage her to take it. That would avoid the worst of the negative publicity, but still let the record labels wave around a pretty big club.