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Music downloading case goes to jury

Jammie Thomas-Rasset

MINNEAPOLIS -- A federal jury began deliberating at 11 a.m. whether Jammie Thomas-Rasset is liable to six record companies for allegedly downloading 24 song recordings on the KaZaA peer-to-peer file sharing network.

Under instructions of law read by U.S. District Judge Michael Davis, jurors had to determine if Thomas-Rasset downloaded the six record companies' sound recordings using the online media distribution system known as KaZaA on a peer-to-peer network and/or distributed them to the public without the plaintiffs' consent. The defendant denied illegally downloading the songs and also argued that the copyrights were invalid.

The record companies contended that the defendant's actions constituted infringement of their copyrights and exclusive rights. They further argued that the alleged illegal downloading had cost their industry billions of dollars and thousands of jobs.

The plaintiffs didn't need to prove that the defendant intended to infringe.

Under the Copyright Act, each plaintiff is entitled to at least $750 but not more than $30,000 for each sound recording downloaded or distributed without license. But if jurors find that Thomas-Rasset knew her actions constituted copyright infringement or acted with reckless disregard of those rights, each plaintiff is entitled to up to $150,000 for each sound recording downloaded or distributed without license.

The verdict form contains 22 pages but only five questions. Jurors had to answer on each of 24 songs whether the plaintiffs owned the copyrights. Then they had 24 questions asking if the defendant committed infringement. The third question asked that if infringement was found, was it committed willfully on each of the 24 songs? The fourth question asked if the infringement was committed how much damages should be awarded for non-willful infringement for each of the 24 songs. Question No. 5 asked that if the infringement was willful, how much money should be awarded for each of the 24 songs.

A Duluth jury in 2007 found Thomas-Rasset liable for $222,000 in damages for willfully committing copyright infringement, but last September Davis granted the defendant a retrial, ruling that his instructions to jurors tainted the trial. Davis had instructed jurors in the first trial that the act of making copyrighted recordings available for distribution violated the copyright owners' exclusive right of distribution, regardless of whether actual distribution was shown.

In granting the new trial, Davis wrote in 44-page decision that he was wrong, that a 1993 ruling from the 8th Circuit Court of Appeals convinced him that liability requires actual dissemination. He said he was in error and the jury instruction "substantially prejudiced" Thomas-Rasset's rights.

The court's instruction of law in this trial did not address whether actual dissemination had to be shown.

The Recording Industry Association of America has filed more than 30,000 lawsuits against individuals they say have illegally distributed copyrighted music files.

The record companies involved in the suit are Capitol Records, Sony BMG Music Entertainment, Arista Records, Interscope Records, Warner Bros. Records and UMG Recordings.

In his closing arguments, the lawyer for the recording industry asked the jury to hold Thomas-Rasset accountable for her alleged illegal downloading and sharing of music on the Internet. Tim Reynolds told the jury that it's up to them to decide how much Jammie Thomas-Rasset should pay. But he said the "weight of the evidence" shows she was responsible for the illegal file sharing that took place on her computer.

Defense lawyer Joe Sibley, however, said the only evidence the plaintiffs produced was that Thomas-Rasset's computer was linked to the file sharing. He said they failed to put a face behind the computer.

Thomas-Rasset testified Wednesday it was possible that her children or a man she was in a relationship with for 8½ years downloaded the music. All she knows for sure, she said, is that she didn't do it.

Reynolds, who is representing the Recording Industry Association of America, pointed out to jurors that Thomas-Rasset had never before mentioned that possibility during two depositions and her first trial.

"Why would I throw my children to the wolves?" Thomas-Rasset said under questioning by Reynolds. "This is hard enough for me. I couldn't imagine you going after my children."

Computer security experts and Internet providers have testified that the downloaded music can be traced to Thomas-Rasset's computer. The recording companies say they own or control exclusive rights to 24 songs that Thomas-Rasset is accused of downloading and distributing through her Charter Internet account from and to other users of the KaZaA file-sharing network.

The defendant testified Tuesday that her computer was password-protected and that she had the only password. However, she testified Wednesday that there also was a family account that the father of one of her sons and her children used.

Thomas testified that hundreds of the 1,700 songs she's accused of downloading are by artists she never heard of or doesn't like.

Three record company officials -- Wade Leak of Sony BMG Music Entertainment, Alasdair McMullan of EMI, parent company of Capitol Records Inc., and JoAn Cho of Universal Music Group -- testified Wednesday to their ownership of the copyrighted material and said they didn't give Thomas-Rasset authorization to copy or distribute the music.

Throughout the trial, the defense has accused the plaintiffs of seeking up to $3.6 million in damages. The plaintiffs have said that is a misstatement of their position.

Houston lawyer Kiwi Camara, who along with Sibley, is defending Thomas at no cost, asked Cho what she thought a reasonable amount of damages would be for the plaintiffs. Cho couldn't or wouldn't come up with a figure, but said: "This is our livelihood. ... This is how we pay our employees.'' She said it was for the jury to decide what the damages should be.

Camara quickly dispatched McMullan of EMI/Capitol Records. He pointed out that his company was suing over one registered copyright -- the song "Now and Forever,'' on the album "Paid Vacation'' by Richard Marx. Camara asked McMullan if a CD could be purchased for $20. "Probably less than that,'' McMullan said. Camara asked him if Marx's song could be downloaded on iTunes for $1.29. No argument from McMullan. Camara had no further questions of the witness.

When asked during a recess what he was getting at with McMullan, Camara said: "These are the most expensive CDs in history. We'll see if they [jurors] buy it.''

Thomas-Rasset lashed out at the plaintiffs during examination by her attorney Sibley. "It started out with them trying to extort $5,000 from me," she said. "It's been a nightmare. I don't want anyone else to go through this, ever."

"Why didn't you point the finger?" Sibley asked his client.

"They wanted me to point the finger at my children," she said and started to cry. "I couldn't imagine throwing my children to the wolves -- allowing the plaintiffs to come in and destroy their lives. I couldn't imagine my children being sued for $3.6 million."

A Duluth jury in 2007 found Thomas-Rasset liable for $222,000 in damages for willfully committing copyright infringement, but Davis granted the defendant a retrial, ruling he had given jurors an erroneous instruction of law. The judge also opined that the dollar amount awarded to the plaintiffs was disproportionate to the actual damages.

Thomas-Rasset, 32, was married in February. She has three sons and a stepson. She has a bachelor's degree in business administration and marketing from St. Cloud State University and works for the Mille Lacs Band of Ojibwe Indians.