For years now, the recording industry has been suing its customers, and for years, it's been winning. Its victories didn't come in the marketplace or in the court of public opinion -- the industry's prospects are still grim and people still hate it -- nor did the victories occur in real courtrooms, either. Of the 26,000 file-sharing cases the industry has filed, most have been settled out of court, the labels strong-arming people into paying a few thousand dollars rather than risk huge legal fees and the possibility of million-dollar fines.
Until now. During the past week, a federal courtroom in Duluth, Minn., has taken center stage in the ongoing battle between the music business and the allied forces of sanity. The Recording Industry Association of America has accused Jammie Thomas, a 30-year-old mother of two from Brainerd, Minn., of downloading 1,700 files from Kazaa. The RIAA's suit seeks damages for 24 specific alleged downloads; if she loses, Thomas could face fines of up to $150,000 per violation. Three and a half million dollars.
The jury got the case this morning, and is deliberating upon it presently. While they're doing so, let's take time to note a couple of interesting facts about the trial so far. First -- and does one even need to note this anymore? -- the recording industry did not come off well.
Among its witnesses was Jennifer Pariser, a lawyer for Sony BMG, who outlined a medieval definition of "stealing" music. On the stand, Pariser suggested that any copy of any song -- when you rip a song from a CD to a computer, when you transfer a song from a computer to an iPod, when you burn a CD as a backup, anything -- is theft. "When an individual makes a copy of a song for himself, I suppose we can say he stole a song," she said. Making one copy is "a nice way of saying 'steals just one copy.'"
But the RIAA is even stupider than we give it credit for, turns out. Not only does it have an outmoded definition of stealing, but as Pariser pointed out, it's willing to lose money to defend that notion. Suing customers has cost the record labels money, she admitted -- the legal costs have outweighed the cash the RIAA brings in through settlements. Yet it continues doing so.
None of this means that the RIAA has a losing case against Thomas. Indeed, as I read the coverage (great work, Wired News and Ars Technica!), I can't see how this can be anything but curtains for the mother of two. The RIAA has shown that her IP address downloaded the files in question, and that the username attached to the Kazaa downloads, Terrastar, was Thomas' username for getting into her computer, for her e-mail, for online shopping sites, and for her profile on Match.com.
Brian Toder, her attorney, said in his closing argument that the RIAA can't show that "this actual human being was behind the keyboard." He added, "There are, clearly, alternate explanations. We don't know what those alternate explanations are."
True, but the jury in Duluth is not so technically proficient. Per Ars Technica: "...two of them don't own PCs and have never used the Internet, and a third described himself as a 'total computer illiterate.'"
I don't know if Thomas is guilty. But the law is plain here: If she did the crime, she's up a creek. Not for her but for the rest of us, there could be a silver lining here: If Thomas is forced to pay an outrageous penalty for downloading 24 songs, perhaps it'll be the spark for Congress to take action.
Downloading two dozen songs shouldn't land you with a lifetime of debt. Let's agree with the music industry that it is "stealing." Last time I checked, stealing two CDs is petty theft. It shouldn't be any different for downloads.