Illegal downloader ordered to pay $222K

Students and other internet users who download or share songs and movies without paying for them have a new reason to reconsider their actions: In the first such case to go to trial, a federal jury on Oct. 4 ordered a Minnesota woman to pay $222,000 for sharing copyrighted music online.

“This does send a message, I hope, that downloading and distributing our recordings is not OK,” Richard Gabriel, the lead attorney for the six music companies that sued the woman, said after the three-day civil trial concluded.

In closing arguments he had told the jury, “I only ask that you consider that the need for deterrence here is great.”

The Recording Industry Association of America (RIAA) has aggressively targeted colleges in its anti-piracy campaign, sending “pre-litigation” settlement letters to students at several universities. Colleges, which offer high-speed computer networks to technologically sophisticated populations of young music lovers (and risk-takers), are a primary source of illegal file-sharing activity, the RIAA claims.

Jammie Thomas, 30, a single mother of two sons, 11 and 13, from Brainerd, Minn., was ordered to pay the six record companies that sued her $9,250 for each of 24 songs they focused on in the case. They had alleged she shared 1,702 songs in all.

It was the first time one of the industry’s lawsuits against an individual downloader had gone to trial. Many other defendants–including several college students–have settled by paying the companies a few thousand dollars, but Thomas decided she would take them on and maintained she had done nothing wrong.

“She was in tears. She’s devastated,” Thomas’ attorney, Brian Toder, told the Associated Press (AP). “This is a girl [who] lives from paycheck to paycheck, and now all of a sudden she could get a quarter of her paycheck garnished for the rest of her life.”

Toder said the plaintiff’s attorney fees are automatically awarded in such judgments under copyright law, meaning Thomas could actually owe as much as a half-million dollars. However, he said he suspects the record companies “will probably be people we can deal with.”

Thomas said she’s not looking for a handout to help her pay. “I’m not going to ask for financial help,” she told AP Oct. 5. But she added, “If it comes, I’m not going to turn it down, either.”

Thomas said people who heard about the verdict have been leaving messages on her MySpace page offering to help.

“I guess it’s my Native pride,” said Thomas, who is a member of the Mille Lacs Band of Ojibwe. “Up until this point I have not held my hand out and asked for financial assistance from anyone.”

Thomas works for the Mille Lacs band coordinating a federal grant for cleaning up contaminated land. She said she doesn’t have the means to pay.

“I am a single mother of two boys. I make $36,000 a year at my job,” she said. “At best, they could try and get a court order garnishing my wages.”

The record companies accused Thomas of downloading the songs without permission and offering them online through a Kazaa file-sharing account. Thomas denied wrongdoing and testified that she didn’t have a Kazaa account.

During the trial, the record companies presented evidence they said showed the copyrighted songs were offered by a Kazaa user under the name “tereastarr.” Their witnesses, including officials from an internet service provider and a security firm, testified that the internet address used by “tereastarr” belonged to Thomas.

Toder said in his closing argument that the companies never proved “Jammie Thomas, a human being, got on her keyboard and sent out these things.”

“We don’t know what happened,” Toder told jurors. “All we know is that Jammie Thomas didn’t do this.”

Thomas said, “I was basically forced into a situation where I had to prove a negative. How do you prove that your IP address was spoofed or hacked. If I could afford an FBI analyst, I’m sure it could have been proven. But I don’t have the money.”

Thomas said on Oct. 10 that she would appeal the jury’s decision.

Copyright law sets a damage range of $750 to $30,000 per infringement, or up to $150,000 if the violation was “willful.” Jurors found that Thomas’s infringement was willful but awarded damages in a middle range.

Beyond the money, the industry added to a growing body of legal precedents holding that making copyright-protected songs available online, even without proof the songs went anywhere, infringes on the copyrights for the songs.

U.S. District Court Judge Michael Davis reportedly was planning to instruct jurors as they began their deliberations that record companies would have to prove someone copied the songs to show copyright infringement. But record company attorney Gabriel cited cases where making songs available was found to be infringement, and Judge Davis changed course.

Legal experts said the question isn’t settled.

“Record labels don’t like that because it’s harder to prove,” said Andrew Bridges, an attorney who has argued for the Computer & Communications Industry Association that copyright holders should have to prove the offered material is actually used.

“It’s all about whether they get a free pass to impose onerous damages on people without actually having to prove a case,” Bridges said.

International intellectual property treaties assume that simply making a work of art available can violate the copyright, said Jane C. Ginsburg, an intellectual law professor at Columbia Law School.

“It would be hard to see how we could be living up to our international obligations if the law were interpreted differently,” she said.

Ray Beckerman, an attorney who has represented people sued by the record companies, said the companies used one case where there was a $22,500 default judgment to scare people into settling.

“Now, look at this. This is 10 times better. They can talk about this case; they can use it for frightening people,” he said.

Beckerman said the damage award was disproportionate to the price of the 24 songs Thomas was accused of sharing for free. She could have bought them for 99 cents each on a legal download site, he said.

Record company lawyer Gabriel argued at trial that Thomas made the songs available to millions of users on Kazaa.

Although the lawsuits have cost RIAA more than they’ve brought in, proceeds from court awards are not the primary issue. The label association has said it wants the lawsuits to send a message that downloading music illegally is risky.

But the number of people sharing files online at any given time has risen 69 percent to almost 9.4 million since 2003, when the lawsuits began, according to BigChampagne LLC, a research firm that tracks file-sharing traffic.

That suggests the publicity has had a limited effect in deterring people from swapping music online, said Eric Garland, CEO of BigChampagne.

Record companies “don’t want to be on the front page battling a lot of customers,” Garland said. “They want to be on the front page selling a lot of Kanye records.”

Before the verdict, an official with an industry trade group said he was surprised it had taken so long for one of the industry’s lawsuits against an individual downloader to come to trial.

Illegal downloads have “become business as usual. Nobody really thinks about it,” said Cary Sherman, president of RIAA, which coordinates the lawsuits. “This case has put it back in the news,” he said, adding that “people will understand we are out there trying to protect our rights.”

Since 2003, record companies have filed some 26,000 lawsuits over file-sharing, which the industry says has hurt sales because it allows people to get music for free instead of paying for recordings in stores.

Thomas’s testimony was complicated by the fact that she had replaced her computer’s hard drive after the sharing was alleged to have taken place–and later than she said in a deposition before trial.

The hard drive in question was not presented at trial by either party.

The record companies said Thomas was sent an instant message in February 2005 warning her that she was violating copyright law. Her hard drive was replaced the following month, not in 2004 as she said in the deposition.

The record companies involved in the lawsuit are Sony BMG, Arista Records LLC, Interscope Records, UMG Recordings Inc., Capitol Records Inc., and Warner Bros. Records Inc.


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