Woman in Downloading Case to Appeal Verdict

Oct. 8, 2007 — -- A Minnesota woman ordered to pay more than $200,000 last week for sharing copyrighted songs on a file-sharing service released a video on YouTube today asking for help with her defense.

"A woman from MySpace has generously opened a Web site in support of my cause. ... All the donations made to that Web site come directly to me. I thank you so much for any donations that you have," Jammie Thomas told would-be donators in the video that aired on YouTube and on the donation site http://www.freejammie.com/.

Thomas said that she's fighting the case "to show the RIAA that I'm not going anywhere."

"I am still here," she said in the video. "I'm going to be a thorn in their sides for the rest of my life. Because of what they did to me and what they're trying to do to thousands of others."

The lawsuit was the first file-sharing case to make it to court, where a jury ordered Thomas to pay the record label lobbying group $222,000.

The lawsuit accused Thomas of sharing more than 1,700 songs on the peer-to-peer file-sharing network Kazaa. The suit contended that Thomas violated the Digital Millennium Copyright Act by distributing songs for free that belonged to the record labels.

"We welcome the jury's decision," the RIAA said in an e-mailed statement last week. "The law here is clear, as are the consequences for breaking it. As with all our cases, we seek to resolve them quickly in a fair and reasonable manner.

"When the evidence is clear, we will continue to bring legal actions against those individuals who have broken the law," the statement continued. "This program is important to securing a level playing field for legal online music services and helping ensure that record companies are able to invest in the new bands of tomorrow."

According to attorneys at Fish & Richardson, a law firm that specializes in intellectual property law, the verdict was a decisive win for the RIAA.

"The RIAA's got a strong track record. Now people are going to settle faster. The RIAA has won a substantial victory," said Mark Fischer, a principal in the firm. "One of their biggest challenges has been to go after consumers. [That] has been validated by a jury. At this moment, it has seen a real validation of its enforcement."

Despite the win, Fischer acknowledged that the enforcement effort has been viewed as controversial by some.

"You're going after your consumer base," he said.

Fischer's colleague David Chidekel, also a principal at the firm, agreed.

"Under the act, all the things that the RIAA is taking the position on are absolutely justifiable under the copyright law," Chidekel said. "Some people say that the copyright law is antiquated for what happens in the real world. Other people say, 'What are you talking about? The real world is when you rushed out all the CDs to make money. You purposely decided not to encrypt them.'"

Currently, many songs sold online have some form of digital rights management, or DRM, a type of software attached to the song that prevents the file from being copied or transferred. Recently, however, some record labels, most notably EMI/Capitol, have experimented with selling some songs DRM-free.

While in some ways the copyright lawsuits and DRM experimentation may seem connected, according to Chidekel, they're still separate issues.

"[Capitol-EMI says] 'We have nothing to lose. Why are we fighting this DRM thing, which is anti-consumers? Let's try a way to encourage [people] to buy music,'" Chidekel said. "No one wants to sit there for three hours and find it on a peer-to-peer site."

"There's the legal precedent," Chidekel said, "and [that's] how a record label is going to come up with a business model to adjust to the realities on the ground."

Despite the win, according to Ray Beckerman, a partner at the law firm Vandenberg & Feliu and the brains behind the blog Recording Industry vs. the People, which chronicles the RIAA's efforts, Thomas has grounds for an appeal.

According to reports, the judge instructed the jury that for Thomas to be found guilty, the RIAA needed to prove only that the files were made available on Kazaa, not that anyone copied them. Beckerman said that was a mistake.

"I think there's one major error by the judge -- the jury instructions. It flies in the face of 40 years of case law. ... If she were to lose, she would have a great appeal," he said. "Somehow they sold the judge. Just having the shared files is a copyright infringement."

In his closing argument, Thomas' lawyer Brian Toder argued that the labels never proved that Thomas physically shared the files.

"We don't know what happened," he reportedly said, according to The Associated Press. "All we know is that Jammie Thomas didn't do this."