In what will no doubt be a landmark case whatever the verdict, the retrial for copyright infringement of Jammie Thomas kicks off on Monday. Thomas, 32, from Brainerd, Minnesota, is the first US Web user to be tried in court for illegal downloading and file-sharing after she was sued by six major record companies. At least 30,000 alleged file sharers have been sued in the US so far, but they tend to settle out of court to avoid the cost of a trial.
In October 2007 a jury in Duluth ordered Thomas to pay $222,000 worth of statutory damages. But the judge later decided he had given the jury faulty instructions and declared a mistrial. After two postponements, Thomas is now back in court, this time in Minneapolis.
The judge had originally instructed the jury that making files available on the KaZaA file-sharing website was enough to constitute infringement of the record companies’ copyright. The jury duly found Thomas guilty of charges. But in September 2008, the judge ruled that he had given the jury erroneous instructions. In light of this he ordered a retrial.
Burden of proof
In order to prove infringement, evidence was needed that someone had actually downloaded the files from Thomas’ account (she was accused of illegally downloading and sharing 1,702 files on KaZaA, but the trial focused on just 24 of them). This, however, is inherently difficult to prove, for technical as well as obvious legal reasons: people are unlikely to freely admit to illegal downloading.
But despite the difficulties of proving dissemination, the six record companies, represented by the powerful Recording Industry Association of America (RIAA), appear to have a few arguments up their sleeve. At the time of the alleged facts, the RIAA had hired the firm MediaSentry as investigators. MediaSentry routinely took print screens of sites such as KaZaA and performed illegal downloads.
Such material was already accepted as evidence at the first trial, despite the fact that investigations had been carried out by a RIAA agent and not by a neutral third party. Furthermore, it emerged that MediaSentry did not have a private investigator’s license.
Thomas has argued that the evidence is inadmissible and should be thrown out, but the judge just recently dismissed her request.
Defence ‘quite optimistic’
But the defence is hopeful too. Thomas recently changed lawyers (her last lawyer stepped down citing unpaid bills) and is now represented pro bono by Kiwi Camara, a child genius who graduated from Harvard Law School at the age of 19. Contacted by FRANCE 24, Camara said he was “quite optimistic” about winning. Moreover, he explained that “the judge may yet dismiss the case”.
The defence has argued that the record labels in question never correctly registered the copyright on their songs in the first place. In light of this, Camara thinks the defence has a “good shot” at the case being thrown out. “That would be the legally correct result”, he argues. But as late as Friday, it looked as though the record companies had managed to at least partially resolve this issue by finding important registration documents.
The judge still has to make a decision. But if he dismisses the copyright issue, the jury’s attention will centre on whether or not someone downloaded songs from Thomas’ KaZaA account; and here the defence seems to be on shakier ground.
Whatever the outcome, the trial is almost certain to set a legal precedent. It will be closely watched by those involved in a similar, upcoming trial, involving a student named Joel Tenenbaum, which is scheduled to start on July 20 in Boston.