All Eyes on Duluth
[UPDATE: As expected, the jury found liability for copyright infringement and awarded the recording industry $222,000. That is considerably less than the $3.6 million in damages theoretically available, but still represents a win for the RIAA. It will be interesting to see if this discourages other defendants from fighting through to trial.]
The jury is now deliberating in the first-ever trial arising from the RIAA’s campaign against music downloaders for alleged copyright infringement. The trial was held in Duluth, Minnesota, the location of the federal court nearest the Brainerd, Minnesota home of defendant Jammie Thomas. That makes this big news in my home state. I spoke to one of our local news stations about it and the newspapers have covered it too. The most detailed updates I’ve seen are these continuous reports from the Threat Level blog at Wired magazine, which has somebody attending the trial.
The RIAA has brought more than 25,000 of these complaints, and Thomas is the first ever to go to trial. Almost all the cases settle out of court. She is taking a pretty big gamble. She put in no evidence or witnesses, merely resting her defense on the hope that the plaintiffs cannot prove the elements of their case to the jury’s satisfaction: that a Kazaa user with the screen name “tereastarr” made 1700 files with copyrighted music available to other users; that Ms. Thomas is “tereastarr;” that she was the one who made the music available; and that the plaintiffs own the copyrights. The judge has agreed to instruct the jury that the act of making the music available by itself constitutes infringement, which is in line with other case law on the issue. There was a pretrial skirmish over the record companies’ failure to provide proof of their ownership of some of the copyrights at issue in a timely fashion, and the judge dropped those songs from the suit. At present, the claims are limited to just 24 music files — but that still could result in hundreds of thousands of dollars in damages if the jury finds willful infringement.
One crucial point here is the burden of proof in a civil case: it requires only a preponderance of the evidence — that is, a finding of infringement merely means the plaintiff’s claims are more likely to be true than not. And there are some very bad facts for Ms. Thomas: she uses that screen name elsewhere on the internet; RIAA investigators tied the Kazaa account to an IP address that her ISP testified was associated with her; and she appears to have replaced her hard drive under at least suspicious circumstances and her testimony about that replacement was not consistent. Her only hope is that a jury believes her steadfast denials, perhaps influenced by their sympathies to her as a single mother, an American Indian, and a Minnesotan. That might work if this were a criminal prosecution where the RIAA had to prove its case beyond a shadow of a doubt, but I think she may be in trouble here. We’ll find out soon.
Filed under: Copyright, Court Decisions, Digital Media, Intermediaries, Internet & Society, Media, Minnesota, Music, RIAA, civil procedure
Good morning, William
I realize that the majority of your readers are probably upset with this news from Duluth.
I read an article this morning in the New York Times and thought I’d share my response with you.
I understand both sides of this debate (I really do). I have a 20-year-old son and a 16-year-old daughter who have been taught that many copyright holders are evil and greedy.
And some are. I’ll grant you that.
But the vast majority of us are just out here trying to make a fair and honest living. And what we do is license our hard earned works to others for their personal enjoyment, productivity, and/or education.
No one has forced anyone else to take our works. The sytem works fine. There just isn’t any room for piracy. Piracy is wrong. Piracy is stealing.
Thanks for taking the time to listen to all sides of this argument.
George
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Good morning, Jeff
You did an excellent job of simplifying one of the most significant business events in quite some time. You see, my small graphic arts development company presented the exact same issue to the U.S. Supreme Court back in 2003, about the same time as the Recording Industry began their legal assaults. Our case was rejected. Many of the judges had no idea how significant this issue really was at the time.
I understand why so many people think the tactic of suing almost 30,000 people is unjust and unfair … especially as they watch Spector wandering around in his mansion in LA with money falling out of his pockets. But these suits aren’t just for the middlemen and recording labels. They are also for the artists as well. They get paid based on the legitimate licensing of their hard earned works.
These labels have actually been given little or no choice. Many of the anti-copyright crowd have simply taken the approach of “you can’t stop us” or “we’ll steal anything we feel compelled to steal … online or offline.”
And for a select group of copyright defense lawyers, these folks are easy prey. Do you think they expect to be paid win or lose? They mislead their vulnerable clients into thinking they can outwit the law. It is shameful in my view.
The answer is simple. The tide has turned. Copyrighted works can now be obtained legally online for very, very reasonable prices. I think I read recently that a popular song can be obtained from Wal-Mart for 85 cents. Come on. Why would someone choose to steal it instead?
Movies, videos, clipart illustrations, photographs, short stories, poems, cartoons, magazine articles, books … the whole lot has seen the light and realized the potential of this wonderful new worldwide distribution system we call the Internet. Digital distribution is, indeed, the wave of the present, and the future. Arguments that we, members of the copyright industries, simply are behind the times is old news … and no longer applicable.
And even people behind the times don’t deserve to be robbed by the masses who think they are “in the know”.
I believe these rulings by a judge and jury will do more to curtail rampant copyright infringement in this country than almost anything I’ve witnessed in the last 4-5 years. When I hear folks say the recording companies strategy is not working because there are more music infringements now than there were 4 years ago when the lawsuits first started, I have to cringe.
They are ill-informed. Our industry (electronic graphic arts content – clipart illustrations, design templates, digital logos/symbols, and animations) has seen a 20 fold increase in Internet piracy since 2003. For every 1 pirated clipart illustration or photograph in 2003 there are 20 today! That’s one of the few negative aspects of the world’s switch to broadband.
To see that the music industry has only increased by 5-10% is phenomenal and proves to me that this strategy is, indeed, working for all of us.
Congratulations, Capitol Records, Sony, and Warner Brothers. I know you have taken a lot of heat over the past few years. But for the 400,000+ of us in the electronic graphic arts industries, who depend on honesty and fair play to make our livings, we want to deliver to you a great big “Thank You”.
Keep up the good work.
George P. Riddick, III
Chairman/CEO
Imageline, Inc.
griddick@imageline2.
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