Jamie Thomas is the single mother of two who lost a copyright infringement lawsuit earlier this month to the music industry. The $222,000 damage award represents $9,250 for each of 24 recordings Ms. Thomas allegedly placed on Kazaa, a peer-to-peer file sharing network on which millions of users exchange unauthorized copies of recordings.
Ms. Thomas plans to appeal the judgment based on the argument that merely placing the recordings on Kazaa and making them available for download is insufficient for copyright infringement liability. She will argue that in order to win the lawsuit, the music industry should have been obligated to prove her actions resulted in a distribution of those recordings which would only occur if people actually downloaded the recordings placed on the network. There are legal arguments on both sides and it will be interesting to see how the appeals court rules on the question of whether “making available” is equivalent to “distribution”.
There are other elements of this case that intrigue me.
First, how did Ms. Thomas find herself in the predicament of facing a $220,000 damage payment? The individuals sued by the music industry for file sharing have the option of settling for a few thousand dollars. I hope her lawyers clearly outlined and Ms. Thomas clearly understood the financial risks of choosing a trial over settlement. To some degree Ms. Thomas got off lucky because the financial punch could have been much harder. There are at least two jurors who wanted to fine her the statutory maximum of $150,000 for each of the 24 recordings.
Ms. Thomas says that she is innocent and that the recordings were placed on the Kazaa network by a pirate who hijacked her online identity. If Ms. Thomas is an innocent party, she does have my sympathies. Paying a settlement fee of a few thousand dollars for an act you did not commit would be a bitter pill to swallow. However, twelve of her peers from Duluth, Minnesota, who have no apparent reason to side with the music labels, unanimously rejected her story.
The evidence presented by the music industry against Ms. Thomas does appear quite compelling: (i) the Kazaa account used the same handle Ms. Thomas has used for many years, (ii) Ms. Thomas somewhat conveniently replaced her computer hard drive around the time the music industry approached her with the infringement claim, (iii) the recordings placed on the Kazaa network are consistent with Ms. Thomas’ taste in music; (iv) the IP addresses matched; etc.
On appeal, Ms. Thomas is abandoning the “I didn’t do it.” defense in favor of a “making available does not equal distribution” argument. That brings me to the second element of this case that intrigues me. Even if she is successful in this argument, what is the impact of her intent? That is more a rhetorical question as there’s case law out there to support the result that No distribution = No liability for copyright infringement regardless of Ms. Thomas intent. That seems like a technical loophole for someone who placed songs in a publicly accessible directory on a peer-to-peer file sharing network which she knew to have millions of users seeking free, unauthorized copies of recordings. So the more reflective query I pose is should Ms. Thomas’ intent have any impact on her liability for copyright infringement.
I also ponder what Ms. Thomas personally gains from an appeal focused on the “making available” argument. A “win” for Ms. Thomas on the “making available” question is unlikely to produce an instant “not guilty”. Instead, it’s more likely a Thomas “win” would result in a new trial or a return of the case to the lower court for re-consideration under the “correct” distribution standard. How hard would it be for the music industry to prove that each of those 24 songs was downloaded by at least one person? My attorney colleagues who litigate tell me that proving downloading to the satisfaction of the court could be quite a challenge. So I suppose if Ms. Thomas is successful at the appeal level, the music industry might decide that a new trial against her to prove distribution isn’t worth the time – especially since a high damage award against her may prove to be uncollectible.