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Thomas vs. RIAA Retrial to Commence Monday

'Arguably the U.S.'s biggest P2P trial is ready for the spotlight again.' -

If you haven't been following the saga of the RIAA versus single mother Jammie, here's a quick recap.  The RIAA alleges that on February 21, 2005 its agent MediaSentry detected 1,702 songs being shared by a Kazaa user with the IP address 24.179.199.117 and the screen name "tereastarr@KaZaA".  Logging a complaint with internet service provider Charter Communications, the RIAA discovered the apparent identity of the user -- Jammie Thomas.

The RIAA approached Ms. Thomas and demanded a settlement as they have with many alleged P2P infringers.  However, unlike most, Ms. Thomas refused and the RIAA made good on its promised to take her to court.  The trial was the first P2P trial to go before a jury.  Over the course of the trial, the RIAA provided evidence that "tereastarr" was indeed Thomas -- showing that she used the same screen name on EA Sports, Match.com, and Yahoo accounts, complete with evidentiary screenshots.  The trial concluded with a ruling that Ms. Thomas was guilty of sharing 24 songs -- tracks by Aerosmith, Green Day, Guns 'n Roses, among others -- and an order for her to pay $9,250 per song in damages, for a total of $222,000.

The landmark damages would have been the largest fine handed to a single P2P file sharer in U.S. history.  Ms. Thomas, however, appealed.  Thanks to recent cases that have cast doubt on the legal argument that "making available" is tantamount to infringement -- something the jury was told to be true -- the guilty verdict was thrown out and a retrial was ordered.  An attempt by the RIAA to appeal the retrial failed.

That retrial is set to begin Monday.  Ms. Thomas's old lawyer, Brian Toder, stepped down in May 2009.  She is now represented by Kiwi Camara, an attorney who was the youngest person to matriculate at Harvard Law School.

Also in Ms. Thomas's camp is Computer Science professor Yongdae Kim.  Professor Kim will testify on 14 ways her IP or modem MAC address might have been spoofed or framed -- though all of the ways are extremely unlikely (requiring hardware Ms. Thomas did not have or other unlikely factors).

Mr. Camara tried to get the MediaSentry evidence thrown out during pre-trial, to question the record labels' ownership of the disputed tracks, and to make an argument that Ms. Thomas's tracks were covered under "fair use".  All of these attempts were thrown out by the judge.  Thus the case is likely to play out much like the first.  However, Mr. Camara reportedly has a strategy if the defense that she didn't do it fails -- to argue that the damages are unconstitutionally excessive.

The trial -- which will be longer this time, covering 5 days instead of the previous span of 3 days -- will also serve as a prelude to a broader assault by Mr. Camara on the RIAA.  Mr. Camara plans to bring a class action suit against the record label enforcement agency, with the help of Harvard Law professor Charles Nesson.

© 2009, DailyTech

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