Music Piracy Case Begins Retrial

The retrial of Jammie Thomas-Rasset, a Minnesota woman who was ordered to pay six record companies $222,000 in damages for music piracy, is set to begin Monday in federal district court in Duluth.

As with the first trial, the new one is shaping to be a contentious battle, with Thomas' new attorney challenging some fundamental assertions made by the music labels and the latter spiritedly defending them in a flurry of pre-trial motions by both sides.

Thomas-Rasset was found guilty of copyright infringement by a jury in October 2007 and ordered to pay $9,250 for each of 24 songs that the music companies said she illegally downloaded and shared with others on a peer-to-peer file sharing network. In their lawsuit, the six music companies claimed that Thomas-Rasset had illegally distributed 1,702 copyrighted songs, though they chose to focus only on a representative sample of 24.

The verdict was overturned last September by U.S. District Judge Michael Davis, the same judge who presided over Thomas-Rasset's trial. In ordering a new trial Davis said his jury instructions had been unclear about whether making music available for download by itself constituted infringement. In his ruling, Davis said that under the U.S. Copyright Act and other relevant statues, illegal distribution can only happen when there is actual dissemination of music. Simply making music available for distribution on a computer is not the same as actual distribution, Davis wrote.

During the retrial, Thomas' new attorneys, K.A.D. Camara and Joe Sibley, of Houston-based Camara & Sibley LLP, plan to challenge the RIAA on two fronts. Camara and Sibley are Harvard Law school graduates who agreed to work on the case for free.

In pre-trial motions filed earlier this month, they asked the court to require the RIAA to submit certified copyright registrations for each of the songs that was supposed to have been illegally distributed. They claimed that the copyright registrations offered in the previous trial were not officially enough to prove ownership of the allegedly pirated music. The lawyers also asked the court to suppress evidence against Thomas-Rasset gathered for the RIAA by MediaSentry Inc. In a June 1 motion, Camara argued that the evidence collected by MediaSentry was illegally obtained and in criminal violation of federal and state wiretap acts and Minnesota's Private Detectives Act.

The complaint echoed questions by several others over the past year alleging that MediaSentry essentially operated as a private detective without the requisite state licenses -- a criminal offense in many states.

In a ruling yesterday, however, Davis denied the effort to suppress the MediaSentry evidence. He said the evidence MediaSentry gathered against alleged copyright infringers was generally available on P2P networks and obtained using the same methods available to other P2P users.

In an interview, Sibley said the ruling means the case will definitely go to trial. Had the judge sustained the motion to suppress, the RIAA would have had nothing on which to base its infringement claims. "That doesn't mean that the methods employed by MediaSentry can't be brought up at trial. It's fair game as far as we are concerned," he said.

The RIAA also appears to have obtained the certified copyright registrations for each of the songs in question, he said. "We are going to be objecting that it is too late," Sibley said. "They shouldn't be presenting this two business days before the trial."

Going forward, "I don't know if we are going to present any evidence that is going to be different" from the first trial, Sibley said. "We are just going to tell a different story, really. I think Jammie was viewed by the jury in a less-than-favorable light in the last trial. That was unfortunate. We are going to bring the truth out in this case and make sure she wins."

Cara Duckworth, an RIAA spokeswoman, dismissed the pre-trial motions and said the facts and evidence that led the jury to unanimously find Thomas-Rasset liable for $222,000 had not changed.

"The copyright registrations issue is a non-issue and just another example of a desperate attempt by the other side to divert attention away from the facts of the case that clearly illustrate Ms. Thomas' liability," she said. The ruling on the MediaSentry was expected she said.

"We are confident a new jury will see [the case] no differently" this time around, she said. "It is unfortunate that despite the strength of this evidence, Ms. Thomas has repeatedly refused to accept our offers of a fair and reasonable settlement."

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