Sony lawyer: $150K damages per song "certainly" appropriate
By Nate Anderson | Last updated June 15, 2009 10:10 PM CT
The Jammie Thomas-Rasset retrial swung into high gear this afternoon as one of Sony Music Entertainment's top lawyers said that $150,000 per song certainly seemed appropriate to him. Thomas again insisted, though, that she didn't infringe any copyrights, and her lawyer called her one of the music industry's "best customers."
How much cash do the record labels deserve for Jammie Thomas-Rasset's alleged copyright infringement? Defense lawyer Kiwi Camara pressed Sony Entertainment's Gary Leak on that point today, trying to force him to pick a number. Leak refused to be baited. It was "impossible to determine harm" in this case, he said, which is why the labels want statutory damages that can range from $750 to $150,000 per song.
Camara pressed again. "A message should be sent," Leak said. But Camara wanted numbers; what, in Leak's view, did Thomas-Rasset owe Sony?
"You can't tell the jury a number?" he asked aggressively. No, said Leak, it's up to them to decide; the law allows these damages, and we are asking only what's allowed under the law. The jury must pick the award.
Camara wouldn't give it up. He asked if, by Leak's logic, even the maximum $150,000 per song damage award would therefore be an appropriate amount.
Leak at last gave in. "Certainly!" he said in apparent exasperation, milliseconds before an objection from recording industry lawyers put an end to that line of questioning.
Bulldog on defense
Camara showed himself to be an aggressive litigator today as the trial kicked off in earnest—perhaps too aggressive. Leak was the day's first witness, and before his testimony was over, Camara had been reproved twice by Judge Michael Davis.
He had a habit of asking rapid-fire questions or mounting objections before a witness of the opposing lawyer had finished speaking, and Davis quickly put a stop to that. "You cannot interrupt opposing counsel," he warned early on, turning the slow burn of his eyes on Camara. Minutes later, a second warning about talking over witnesses—"let's get this straight so we don't have any problems later on," said Davis.
Camara did give a strident opening statement in which he proclaimed Thomas-Rasset's complete innocence of the charges. "They have no evidence that Ms. Thomas did it," he said, pinning his hopes on the fact that the evidence only identifies a particular cable modem and not a particular user.
Thomas-Rasset has 200 CDs that she purchased, Camara said. "Ms. Thomas buys music, she doesn't steal it... She's one of the recording industry's best customers!"
As for the hard drive that was swapped out of her computer just a month after her alleged infringement was detected, Camara says that his client never received the notices about an investigation and replaced her hard drive for a simple reason: her 10-year old son got frustrated playing a game, hit the machine, and its hard drive broke. She took it to Best Buy and they replaced the drive. Situation clarified!
The recording industry case
But it's not, not completely, and the RIAA certainly doesn't buy it. For one thing, Thomas-Rasset was notified twice, first by instant message through KaZaA and once by FedEx package from her ISP, Charter. (She claims that she never saw either notice.)
There's also the little matter of the tereastarr@KaZaA username that investigators MediaSentry discovered. Thomas-Rasset turns out to have used the "tereastarr" username for her Charter e-mail address and a host of other online accounts; if she never used KaZaA to download or distribute music, then why did her computer have a KaZaA install with her preferred username? And that hard drive swap-out... the timing is suspicious.
Tim Reynolds, the recording industry's chief litigator in the case, made these points during his own opening statement. "The infringement in this case was substantial—massive," he told the juror, pointing out that the tereastarr@KaZaA share folder contained more than 1,700 songs.
This, he said, is not "sharing like we teach our children."
The recording industry's case unfolded in expected fashion. MediaSentry presented its evidence of having caught the tereastarr@KaZaA user sharing files; the company downloaded complete copies of 11 songs from that user and grabbed the metadata on nearly 2,000 more.
Seeking to head off the argument that these were all just CD rips, MediaSentry's Chris Connelly pointed to metadata in numerous songs that suggested the material had itself been downloaded from the Internet. "Bleeding Edge Ripping Crew," said one. "Uploaded by 0ff$3+," said another.
A Charter representative helped connect the dots, explaining how the ISP could connect the IP address logged by MediaSentry to a particular user account—in this case, to Jammie Thomas-Rasset.
The evidence appears to be quite strong, though Camara is of course right that it cannot prove in some absolute sense that it was Thomas-Rasset behind the keyboard back in 2005. That may not matter; the standard of judgment is more lenient in civil cases, and this defense failed the first time around.
Did the jury follow everything being said? With hours of testimony about MAC addresses, IP addresses, KaZaA, instant messages, share folders, MP3s, metadata, and more, the evidence might well have been difficult to take in. Jurors took notes, of course, but several testified that they could not use computers without assistance, while most others appeared to be casual computer users at best.
Still, the recording industry did a fine job of connecting the threads, always coming back to the link between the IP address, Jammie Thomas-Rasset's cable modem, and her "tereastarr" username.
A repeat in the making?
Perhaps the biggest moment of the day went totally unnoticed by jurors. During Leak's testimony, the recording industry legal team moved to enter Sony's eight copyright registrations into evidence. Camara and his team have tried to question these, hoping to undercut the entire trial, but the RIAA managed to produce certified copies of the documents this morning and the judge ultimately accepted them into evidence.
Once that happened, Camara's big gambles failed to pay out: MediaSentry's evidence was in, the copyright registrations were in, and his proposed fair use defense was out. The case now looks like it will play out last it did last time, with Thomas-Rasset taking the stand to declare that she didn't do it.
And there was evening, and there was morning, the first day. Stay tuned for more reports from Minneapolis Tuesday, when Jammie Thomas is expected to take the stand.
