http://www.ecommercetimes.com/edpick/59710.html
The legal saga of the first file-sharing lawsuit brought by the
record labels to make it before a jury isn't over just yet.
Jammie Thomas, who a jury ordered to pay US$222,000 after it found
her responsible for posting two dozen songs on the Kazaa
file-sharing network, announced through her MySpace Latest News
about MySpace blog Monday that she would appeal the decision.
Thomas, 30, confirmed the decision to appeal, which her attorney
first revealed earlier in the day during an interview on CNN
concerning the case.
Well-Wisher Donations
She also disclosed that she has received nearly $1,000 in donations
from well-wishers in recent days as media attention on the case has
escalated. With attorney's fees added in -- typically done in such
cases -- Thomas may owe the labels as much as half a million
dollars, her attorney said.
Thomas' attorney, Brian Toder of the firm of Chestnut &
Cambronne, also told CNN the appeal would target the "making
available" theory of copyright infringement that is at the heart of
not only Thomas' case but more than 20,000 other lawsuits brought
by the Recording Industry Association of America Latest News about
Recording Industry Association of America (RIAA) -- the vast
majority of which have been settled out of court.
In other words, Toder intends to focus on the fact that the RIAA
did not provide evidence or even attempt to prove that the music
Thomas posted was actually downloaded by other Kazaa users.
"Every single suit they have brought has been based on this making
available theory, and if we can win this appeal, they would
actually have to prove a file was shared and by someone other than
their own licensed agent," Thomas wrote under the user name
"tereastarr." That's the same screen name she allegedly used to
post music to Kazaa.
The RIAA could not be immediately reached for comment on the
potential appeal.
The Big Question
The legal theory of making available has been tested in the courts
before, with mixed results, including cases that have gone both for
and against the music industry.
The crux of the issue and the question that will be at the center
of any appeal is how a jury can award damages if the labels haven't
proven actual infringement took place, said JupiterResearch analyst
Mark Mulligan.
The RIAA has always relied on the fact that music was made
available to make its cases, and if that leg of the legal argument
is removed, its entire campaign would be susceptible, he
added. In Thomas' case, the argument prevailed, with the jury
awarding $222,000 to six record labels -- Sony BMG, Arista,
Interscope, UMG Recordings, Capitol Records and Warner Bros. -- for
the 24 songs that were the subject of the suit. The RIAA claimed
Thomas actually posted some 1,700 songs to Kazaa.
The jury ordered Thomas to pay just under $10,000 for each song she
is said to have posted. That presumes the loss of several thousand
CD sales Email Marketing Software - Free Demo per song, which in
turn supposes that users who did download a track didn't then go on
to buy the entire CD or another CD by the same artist, Mulligan
noted.
That math becomes even more blurry because file-sharing
networks usually possess multiple copies of any track -- and in the
case of newer, more sophisticated P2P networks, songs may even be
delivered by drawing parts of the file from various
sources.
Because Thomas' defense focused on the fact that the industry could
not prove she was at the controls of the computer when the songs
appeared on Kazaa, the issue of how much to award the labels went
largely unexplored at the trial, but will likely be brought front
and center on appeal. "This is a dangerous territory for the RIAA,"
Mulligan added.
Impact Downplayed
While the case has been already been precedent-making in numerous
ways -- Thomas was the first accused swapper to go to court rather
than pay a fairly modest settlement, likely in the $2,000 range --
it may not impact how users obtain music online as much as the
industry might hope, regardless of the outcome.
"Changing public behavior is a very high bar," BigChampagne CEO
Eric Garland told the E-Commerce Times. "It would probably take a
lot of cases like this to go the RIAA's way before anyone started
to change the way they share media online. There are trends going
on that they're trying to hold back without much success."
Despite some four years of steady lawsuits and widespread media
coverage of the RIAA's legal efforts, P2P usage is higher now than
it was when the campaign began, and swapping has spilled over from
music into movies on many networks as well, Garland noted.
"People are just more comfortable with that type of sharing now,"
he said. "It's become an accepted part of the online experience and
culture."
Thomas, meanwhile, appears to be rapidly gaining social status as a
counterculture hero of sorts via the Internet. On a Web site
dedicated to raising funds for her defense, the single mother of
two appears in a video in which she promises to continue her fight.
As of early Monday, the FreeJammie.com site said it had received
$957 in donations through PayPal.
"I will never run and hide as they assumed I would," Thomas writes
in a blog on the site. "I will be a thorn in the sides of the
record companies for the rest of my life if that is what it
takes."
_____________________________________________________________
Me thinks if they can really prove the bold parts, RIAA is going to
lose big time.
Maybe can use in SG's context?
