The recording industry began its second attempt at proving that a Minnesota woman engaged in illegal sharing of copyrighted music on the Internet and should be held accountable.
Attorney Tim Reynolds told a jury Monday that the record companies would prove that Jammie Thomas-Rasset, 32, of Brainerd, illegally shared songs on the Kazaa network. He told jurors illegal downloading has cost the music industry billions of dollars and thousands of jobs and made it harder to find and groom new artists.
"Record companies are made up of real people. ... People who deliver the music we all enjoy," Reynolds said in his opening statement as Thomas-Rasset's retrial got under way in federal court here.
Defense attorney Kiwi Camara countered that Thomas-Rasset would testify she never shared songs illegally, and that the record companies can't prove she did. He called her one of the industry's best customers, with a collection of over 200 CDs. He said the industry should be courting people like her, instead of seeking up to $3.6 million in damages from her.
"Ms. Thomas buys music, she doesn't steal it," Camara said.
Camara said the industry, at best, could prove only that her IP address — the Internet equivalent of a street address or phone number — was used in the alleged illegal file-sharing. He said they could not prove that Thomas herself swapped any music.
The plaintiffs' lawyers said they plan to call her to the stand Tuesday.
This case remains the only one out of more than 30,000 similar lawsuits the industry has filed that has made it to trial. The vast majority of the other defendants settled for an average of about $3,500 rather than risk huge judgments and legal bills; Thomas-Rasset's first lawyer put in nearly $130,000 worth of time for which she couldn't pay. Her new lawyers, Camara and Joe Sibley, of Houston, took the case for free.
Thomas-Rasset lost her first trial in 2007 when jurors awarded the companies $222,000. But U.S. District Judge Michael Davis later concluded he made a mistake in his jury instructions and ordered the retrial.
This time, Davis is expected to instruct the jurors the record companies need to prove that someone actually downloaded the music Thomas-Rasset allegedly made available over the Internet on the Kazaa file sharing service. Last time, he told the jury the plaintiffs didn't have to prove anyone downloaded the copyright-protected songs.
The companies suing are subsidiaries of all four major recording companies, Warner Music Group Corp., Vivendi SA's Universal Music Group, EMI Group PLC and Sony Corp.'s Sony Music Entertainment.
Thomas, a mother of four and employee of the Mille Lacs Band of Ojibwe tribal government, allegedly used Kazaa, a "peer-to-peer" file sharing service in which users make files on their own computers available for downloading by other users. Although the industry contends she made more than 1,700 songs available, for simplicity's sake it's trying to prove copyright violations on just a representative sample of only 24, including songs by Gloria Estefan, Sheryl Crow, Green Day and Journey.
The plaintiffs' leadoff witness was Gary Wade Leak, deputy general counsel for Sony Music Entertainment, who said the recording industry has tried to combat illegal downloading by educating the public, working with Internet service providers and, when necessary, filing lawsuits.
"Online piracy has decimated our business," Leak testified. "In addition to job losses it's affected our ability to find and nurture new artists."
In an interview outside the courtroom, Steve Marks, executive vice president and general counsel of the Recording Industry Association of America, said online piracy is the main reason recording has shrunk from an industry worth $14.5 billion in retail shipments in 1999 to $8.5 billion in 2008.
Marks estimated that only a few hundred of the more than 30,000 illegal music sharing lawsuits the industry has filed still remain unresolved, and that fewer than 10 defendants including Thomas-Rasset are actively fighting them. He said their intent is not to be punitive, but to provide an effective deterrent.
"Most people step up and take responsibility for what they've been doing," he said.
In a sign of the times, Davis gave the seven-woman, five-man jury a strict admonition — no tweeting.
Along with the standard warnings judges give jurors at the start of a trial about discussing the case with anyone, Davis took the unusual step of warning them not to comment on it on the Internet via social networking services such as Twitter and Facebook, on blogs, or via e-mail or text messages until it's over.
"You'll be able to write your blogs or whatever you want to do, but that's at the end of the case," he said.