Convicted file-sharer gets a new trial

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The recording industry’s first major victory in its lawsuit campaign against file-sharing was called into question today over the meaning of the word “distribution.”

U.S. District Judge Michael J. Davis granted a new trial to single mother Jammie Thomas of Minnesota, convicted last October of copyright infringement and ordered to pay a whopping $222,000 to record labels for 24 songs she served up on file-sharing site Kazaa. (For those of you doing the math, that’s $9,250 a song, or the equivalent of 925 albums and a few spare tracks on iTunes.)

Thomas quickly appealed that ruling by claiming that the punishment was disproportionate to the crime. Indeed, the Recording Industry Assn. of America’s lawsuit campaign relies on confronting accused infringers with huge potential fines while angling for more reasonable settlements and for a deterrent effect on other would-be file-sharers. The RIAA has reportedly sued and settled with more than 30,000 people, but Thomas was the first infringer to go to trial.

But in May, Davis suggested that a new trial could be granted because of an error he made in jury instructions. In the original case, Davis told the jury that the Brainerd, Minn., resident could be liable for simply making the songs available on Kazaa — regardless of whether anyone actually downloaded them.

Now, Davis has ruled that his instructions contradicted a 1993 ruling, which would have required the record labels to prove that somebody actually downloaded Thomas’ songs, without which Thomas couldn’t be said to have distributed the tracks.

Of course, whether the RIAA’s investigators, who downloaded the songs, count as that “somebody” remains to be seen.

“If we all left our CDs on the front lawn and no one ever took one, how is that a problem?” asks Fred von Lohmann, senior staff attorney with the Electronic Frontier Foundation, a digital rights advocacy group. “The recording industry now has to actually prove its case. They have to prove that distribution actually happened.”

RIAA spokesman Jonathan Lamy says that won’t be a problem. “As with all our illegal downloading cases, we have evidence of actual distribution,” he wrote in an e-mail.

And although his ruling’s relied on the jury instruction error, Davis also commented on the size of Thomas’ fine.

“[S]tatutory damages awards of hundreds of thousands of dollars is certainly far greater than necessary to accomplish Congress’ goal of deterrence,” Davis writes, calling it a “farce” that a single mother’s non-commercial infringement deserves the same level of punishment as a company seeking a profit from violations.

Still, Von Lohmann isn’t sure that this ruling alone will put a significant kink in the RIAA’s campaign. “I don’t think this will stall their campaign,” he says. “Settlements are driven by the fact that lawyers cost more than settling.”

— Swati Pandey

Photo: Julia Cheng/AP