Copyright owners and the trade associations that represent them face a significant, ongoing challenge educating the public on the proper use of copyrighted material online.  Despite their efforts, online piracy continues at a disturbing rate, and necessitates expensive lawsuits to remind would-be infringers of the consequences of stealing content online.  The SIIA conducts these lawsuits typically against the users of auction sites and other web sites offering software or other content illegally for sale, while other organizations such as the Recording Industry Association of America (RIAA) and Motion Picture Association of America (MPAA) conduct similar campaigns on peer-to-peer (P2P) file-sharing sites.  The number of violators still vastly exceeds the number of lawsuits any organization realistically can file at a given time, so enforcement typically is focused on the worst or most obvious offenders.

Lawsuits against the users of online sites and P2P services rarely go to trial. The infringer essentially is caught red-handed -- with irrefutable technical "fingerprints" of his wrongdoing -- and the only issue is how much he should have to pay as a penalty (or, in the case of criminal cases brought by the DOJ, how much jail time he should get).   Any reasonable defendant will settle the case.  But a recent RIAA case involved an unusually defiant infringer, Jammie Thomas of Minnesota.  Thomas was caught (by RIAA agents monitoring online services) using Kazaa to distribute a large number of songs owned by RIAA member record companies.  She refused to settle the case for a few thousand dollars as the RIAA typically offers.  Instead, she demanded a trial, subjecting herself to enormous liability under the Copyright Act's statutory damages provisions.  To any reasonable observer, it seemed like a suicidal strategy.  Even with the RIAA choosing to sue on just a small sample of the hundreds of songs Thomas had apparently "shared" on Kazaa, her potential liability reached well into the millions of dollars. 

The trial went as many predicted it would.  The record companies showed how Thomas' use of Kazaa had been observed and recorded by its agent, and how her computer was identified (including by her unique user name and IP address).  They showed that Thomas had gone to a computer retailer and had her hard drive removed after receiving the initial letter from RIAA indicating she had been caught.  (Not surprisingly, Thomas did not retain the old drive!)  Thomas argued that the RIAA had made a mistake and that she had never used Kazaa, but she offered no feasible explanation of how the RIAA's evidence could be mistaken.

The jury took "five minutes" to decide her guilt.  In an interview following the trial, one juror said of Thomas' defense, "She's a liar," adding that "her defense sucked." He concluded, "I think she thought a jury from Duluth would be naïve. We're not that stupid up here …. I don't know what the [expletive] she was thinking, to tell you the truth."

After wrangling for a few more hours over the amount of damages, the jury settled on approximately $9,250 per song -- an amount that was near the low end of the statutory range it could have assessed (up to $150,000 per song) but would still yield a meaningful penalty overall, $222,000.  The jury wanted to "send a message" that this kind of behavior -- and lying about it -- was not ok.

Unfortunately, the jury's message was clouded a few months later by the judge overseeing the case.  Thomas filed a motion arguing that the amount of damages awarded by the jury was unfairly "excessive" -- despite the fact that the Copyright statute is plain that up to $150,000 per work (song) may be awarded, and despite Thomas' own choice to fight the case rather than settle for a few thousand dollars.  She no longer contested her liability, but only the size of the award.  Surprisingly, perhaps incredibly, the judge decided to reconsider another issue that neither party even raised after the trial.  The judge informed the parties that he may have committed an error in instructing the jury that RIAA need only prove that Thomas made the illegal files "available" on Kazaa for others to download, not that others actually did download them.  After requesting additional briefing on that issue, the judge did reverse himself on September 24, 2008, and granted Thomas a new trial due to his supposed error in the jury instructions. 

A later post will examine the reasoning behind the court's ruling, which the RIAA is attempting to appeal before having to re-try the case.  For now, we offer two observations.  First, the ruling illogically seems to undermine the common practice, across the software, movie, music, publishing industries among others, of using "agents" to conduct test-buys or monitor computer networks for illegal distribution of their copyrighted works.  The court ruled that it was not enough for RIAA to show that its agent, MediaSentry, was able to (and did) download the files from Thomas.  The court believed that transferring a file to an agent is "not an unauthorized distribution" (never mind that the distributor was unauthorized to distribute the file to anyone!).  The result is illogical and unworkable -- it seems to tell copyright owners that their proof of infringement must come from the very people who would never give it to them, i.e, the users who (often knowingly) buy or download the illegal content offered by the defendant.

Our second observation is that the court's decision obviously sends the wrong message to infringers and triggers an enormous waste of judicial and copyright owner resources.  The weight of evidence against Thomas was overwhelming, and there were several alternative bases for concluding that Thomas had infringed and was liable.  The jury could even have inferred (as the law permits under the spoliation doctrine) that Thomas' improperly destroyed hard drive included evidence of infringement.  A juror indicated after trial that the jury would have found infringement under the instruction the court now says it should have given.  And while jury interviews cannot form the basis of a court's post-trial opinion, in this case it is fair to conclude that no reasonable juror would have found for Thomas under any of the standards the court was considering.  

Both parties will likely spend six figures in legal fees if the case is re-tried.  The federal docket will be further clogged by a case that should have been resolved.  And Internet pirates will receive the message that, even if they are caught red-handed, plaintiffs may be hesitant to pursue the case in court for fear of an expensive battle like the Thomas case.  None of these consequences is a good one.