ILLEGAL FILE SHARING LAWSUIT APPEAL

In its appeal of the $220,000 judgement against her for copyright infringement, the counsel for JAMMIE THOMAS is arguing that the fine is excessive and should be lowered to reflect the minimal damages of downloading 24 songs. By their computation, that would be $151,20.

The website P2PNET reports that the RIAA testified any award above and beyond the value of the songs themselves "is purely punitive, and as such must be scrutinized by the Court to insure that it is not grossly excessive, thereby violating the Due Process Clause of the United States Constitution."

THOMAS and her lawyer BRIAN TODER use that to argue in their document to the court that "Assuming plaintiffs receive 70 cents per song, and pretending that defendant’s downloading went to someone other than plaintiffs’ agents, plaintiffs’ damages would be $16.80.2 ... Multiplied by the maximum Constitutional limits a proper remittitur would be in the amount of zero dollars to $151.20."

WILL THOMAS TRIAL VERDICT STOP ILLEGAL DOWNLOADING?

The jury's guilty verdict this week in a file-sharing trial could deter others from pushing back against the recording industry's copyright claims. However, it is unlikely that it will completely stop music files from being swapped on the Internet, according to a music attorney specializing in online sales and copyright, reports INFORMATIONWEEK.COM.

The RIAA won its first trial this week when a jury ordered JAMMIE THOMAS of DULUTH, MN to pay $220,000 to six separate record companies -- SONY BMG, ARISTA RECORDS, INTERSCOPE RECORDS, UMG RECORDINGS, CAPITOL RECORDS and WARNER BROS. RECORDS. The amount covers 24 copyrighted songs illegally downloaded on her computer.

"The fact that this case went to trial and there was a verdict -- whatever the outcome -- was a good thing, because there's some kind of sense that these cases don't have merit," said CHRISTIAN CASTLE, a LOS ANGELES lawyer.

As for THOMAS, she got off easy, according to CASTLE, who said she could have been fined $150,000 per copy rather than $10,000.

"I think the jury was telling her 'We don't buy your story. You're guilty of doing this intentionally. We're going to give you a verdict that will sting but is not the gross national product of a small country," he said.

JURY FINDS DEFENDANT GUILTY IN PIRACY TRIAL

After five hours of deliberation, a jury in the U.S. District court of DULUTH, MN has just found BRAINERD, MN resident JAMMIE THOMAS guilty of all 24 charges of "willful" illegal downloading. The 12 jurors ruled that the MINNESOTA woman must pay $9,250 for every one of the 24 shared songs that were listed in the lawsuit, totaling $222,000 in penalties.

THOMAS and her attorney did not respond to reporters when she left the courtroom; the jurors left without comment as well.

In a press statement, the RIAA declared: "We welcome the jury's decision. The law here is clear, as are the consequences for breaking it. As with all our cases, we seek to resolve them quickly in a fair and reasonable manner. When the evidence is clear, we will continue to bring legal actions against those individuals who have broken the law. This program is important to securing a level playing field for legal online music services and helping ensure that record companies are able to invest in new bands of tomorrow."

Trial Blow-By Blow

WIRED.COM reported that the RIAA sent 11 witnesses to the stand and offered technical evidence that THOMAS was a KAZAA user named Tereastarr who shared some 1,700 digital audio files on FEB. 21, 2005. The user name was also used on her e-mail accounts, MATCH.COM , as her online logins and to access her own computer. THOMAS did not dispute this, but noted that the username was also with online retailers, where she contended she bought hundreds of CDs.

RIAA lawyers also offered evidence that an Internet protocol address of the KAZAA share file in question (traced to her computer by SAFENET) was assigned to THOMAS by Charter Communications the night RIAA investigators captured her shared folder. A CHARTER COMMUNICATIONS security official testified that a cable modem used to share the files was leased to THOMAS.

Bait And Switch?

THOMAS was also snared when she handed over a hard drive for the RIAA to inspect -- one that didn't have any KAZAA downloads on it-- which she said in her deposition was installed before FEB. 21, the day she was accused of pirating music the sting operation. Evidence was presented that showed the new hard drive being bought two weeks after that date. THOMAS asserted on the stand that she misspoke during her deposition.

On cross-examination from the RIAA attorney, THOMAS didn't help her case any when, according to a report by the DULUTH NEWS TRIBUNE, THOMAS admitted to using her PC to rip and burn copyrighted music for her friends.

Her Defense: No Eyewitnesses = No Proof

However, none of the 10 witnesses who testified against her were eyewitnesses who saw her behind the computer when the downloading occurred, which THOMAS' attorney brought up to the jury time and time again during his cross-examination of witnesses.

THOMAS, who was the only witness in her defense, testified that she wasn't the one using the computer at the time, and that she didn't even download the KAZAA program. THOMAS' attorney BRIAN TOBER suggested the she was the victim of a zombie, a cracker or a drone. He also raised the possibility someone doing all these things by using her wireless connection from outside her apartment window.

However, a computer forensics expert testified that IP data from KAZAA revealed that no wireless connection was used for that incident on the night in question. TOBER never asked THOMAS is she owned a wireless router; nor did she testify under cross-examination that she did.

In Closing

In his closing argument, THOMAS attorney TODER told jurors to basically ignore the voluminous technical evidence because the RIAA has no concrete proof that "this actual human being was behind the keyboard ...There are, clearly, alternate explanations. We don't know what those alternate explanations are."

After citing all the technical evidence, including proof that there couldn't have been a wireless intrusion, RIAA attorney RICHARD GABRIEL noted that THOMAS never broached the possibility that somebody else may have been the culprit when she testified. "She didn't try to point to anybody because she did it," he said, after declaring "All fingers point at JAMMIE THOMAS."

Final Nail In The Coffin?

ARS TECHNICA.COM reports that right before the jury went in to reach a verdict, an argument over the judge's final instructions to the jury earlier this morning was ruled in the RIAA's favor. At issue was whether simply making a file available for distribution over a peer-to-peer network was a violation of the Copyright Act; If so, the RIAA doesn't even have to prove that anybody actually made copies of the copyrighted material she is accused of distributing on Kazaa in 2005.

Judge DAVIS eventually decided to tell the jury that just the "act of making available for electronic distribution... violates the copyright owner's exclusive copyright" -- an instruction that makes it easier to prove THOMAS' liability.