Sued Song Swapper Strikes Back

The legal saga of the first file-sharing lawsuit brought by the record labels to make it before a jury isn’t over just yet.

Jammie Thomas, who a jury ordered to pay US$222,000 after it found her responsible for posting two dozen songs on the Kazaa file-sharing network, announced through her MySpace blog Monday that she would appeal the decision.

Thomas, 30, confirmed the decision to appeal, which her attorney first revealed earlier in the day during an interview on CNN concerning the case.

Well-Wisher Donations

She also disclosed that she has received nearly $1,000 in donations from well-wishers in recent days as media attention on the case has escalated. With attorney’s fees added in — typically done in such cases — Thomas may owe the labels as much as half a million dollars, her attorney said.

Thomas’ attorney, Brian Toder of the firm of Chestnut & Cambronne, also told CNN the appeal would target the “making available” theory of copyright infringement that is at the heart of not only Thomas’ case but more than 20,000 other lawsuits brought by the Recording Industry Association of America (RIAA) — the vast majority of which have been settled out of court.

In other words, Toder intends to focus on the fact that the RIAA did not provide evidence or even attempt to prove that the music Thomas posted was actually downloaded by other Kazaa users.

“Every single suit they have brought has been based on this making available theory, and if we can win this appeal, they would actually have to prove a file was shared and by someone other than their own licensed agent,” Thomas wrote under the user name “tereastarr.” That’s the same screen name she allegedly used to post music to Kazaa.

The RIAA could not be immediately reached for comment on the potential appeal.

The Big Question

The legal theory of making available has been tested in the courts before, with mixed results, including cases that have gone both for and against the music industry.

The crux of the issue and the question that will be at the center of any appeal is how a jury can award damages if the labels haven’t proven actual infringement took place, said JupiterResearch analyst Mark Mulligan.

The RIAA has always relied on the fact that music was made available to make its cases, and if that leg of the legal argument is removed, its entire campaign would be susceptible, he added. In Thomas’ case, the argument prevailed, with the jury awarding $222,000 to six record labels — Sony BMG, Arista, Interscope, UMG Recordings, CapitolRecords and Warner Bros. — for the 24 songs that were the subject of the suit. The RIAA claimed Thomas actually posted some 1,700 songs to Kazaa.

The jury ordered Thomas to pay just under $10,000 for each song she is said to have posted. That presumes the loss of several thousand CD sales per song, which in turn supposes that users who did download a track didn’t then go on to buy the entire CD or another CD by the same artist, Mulligan noted.

That math becomes even more blurry because file-sharing networks usually possess multiple copies of any track — and in the case ofnewer, more sophisticated P2P networks, songs may even be delivered by drawing parts of the file from various sources.

Because Thomas’ defense focused on the fact that the industry could not prove she was at the controls of the computer when the songs appeared on Kazaa, the issue of how much to award the labels went largely unexplored at the trial, but will likely be brought front and center on appeal. “This is dangerous territory for the RIAA,” Mulligan added.

Impact Downplayed

While the case has been already been precedent-making in numerous ways — Thomas was the first accused swapper to go to court rather than pay a fairly modest settlement, likely in the $2,000 range — it may not impact how users obtain music online as much as the industry might hope, regardless of the outcome.

“Changing public behavior is a very high bar,” BigChampagne CEO Eric Garland told the E-Commerce Times. “It would probably take a lot of cases like this to go the RIAA’s way before anyone started to change the way they share media online. There are trends going on that they’re trying to hold back without much success.”

Despite some four years of steady lawsuits and widespread media coverage of the RIAA’s legal efforts, P2P usage is higher now than it was when the campaign began, and swapping has spilled over from music into movies on many networks as well, Garland noted.

“People are just more comfortable with that type of sharing now,” he said. “It’s become an accepted part of the online experience and culture.”

Thomas, meanwhile, appears to be rapidly gaining social status as a counterculture hero of sorts via the Internet. On a Web site dedicated to raising funds for her defense, the single mother of two appears in a video in which she promises to continue her fight. As of early Monday, the site said it had received $957 in donations through PayPal.

“I will never run and hide as they assumed I would,” Thomas writes in a blog on the site. “I will be a thorn in the sides of the record companies for the rest of my life if that is what it takes.”

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