RIAA WINS AGAIN

RIAA Wins Court Case Against College Student

The RIAA has won its second court battle in a row, this time in the hotly contested battleground of college campuses.

In AUGUST, a UNIVERSITY OF TENNESSEE student (legal ID: "DOE. No. 28") tried to quash a RIAA subpoena because the Federal Educational Rights and Privacy Act (FERPA) bars the release of his name, addresses, and phone numbers without consent to outside parties. However, U.S. Magistrate Judge H. BRUCE GUYTON denied the motion.

According to the ARS TECHNICA website report, counsel for DOE 28 argued that the RIAA's request was "unreasonable on its face" and since he didn't waive his right to privacy under FERPA, the RIAA subpoena should be squashed. While the privacy law bars the release of educational records without the consent of the students or parents, "directory information," such as the student's name, address, phone number, and e-mail address, can be released without permission. Because of that, the Judge ruled in favor of the RIAA.

If that wasn't bad enough for the implicated student, the Judge also ordered that the University must provide the RIAA with the student's MAC address because it doesn't qualify as an "educational record" under FERPA. A computer MAC address was instrumental in the RIAA's victorious case against JAMMIE THOMAS.

DOE No. 28 is the only one of DOES 1-33 to publicly contest the RIAA threat. According to KNOXNEWS.COM, all but one of the other 32 defendants have been dropped from the case, which usually means that the others have already settled with the RIAA ... and are a few thousand dollars poorer.

THE RIAA IS COMING FOR YOU

Inside The RIAA's College Piracy Invasion

The techie and P2P-sympathetic websites are ablaze with details on the RIAA's recharged campaign against illegal downloading on college campuses. According to several sources, the label lobby's ninth round of pre-litigation settlement letters were sent to 411 students at 19 different universities.

The reason for the RIAA's focus on college campuses? An NPD study conducted last year claims that over 1.3 billion unauthorized songs were downloaded on college campuses and that over half of all students continue to illegally download music.

ZEROPAID offered the following list of colleges impacted, with the number of students in parenthesis:

DREXEL UNIVERSITY (17)
INDIANA UNIVERSITY (23)
NORTHERN ILLINOIS UNIVERSITY (25)
OCCIDENTAL COLLEGE (19)
STATE UNIVERSITY OF NEW YORK AT MORRISVILLE (18)
TEXAS CHRISTIAN UNIVERSITY (20),
TUFTS UNIVERSITY (15)
UNIVERSITY OF ALABAMA (14)
UNIVERSITY OF CALIFORNIA, BERKELEY (19)
UNIVERSITY OF DELAWARE (18)
UNIVERSITY OF GEORGIA (13)
UNIVERSITY OF IOWA (18)
UNIVERSITY OF MICHIGAN - ANN ARBOR (20)
UNIVERSITY OF NEBRASKA-LINCOLN (13)
UNIVERSITY OF NEW HAMPSHIRE (30)
UNIVERSITY OF NEW MEXICO (17)
UNIVERSITY OF SOUTH FLORIDA (43)
UNIVERSITY OF SOUTHERN CALIFORNIA (37)
VANDERBILT UNIVERSITY (32)

TMC.COM found a copy of a pre-litigation letter posted on the website of technology-in-education advocacy site EDUCAUSE.COM. It gave the targeted student 20 days to contact the RIAA and settle for an amount significantly less than they would have to pay otherwise. For "convenience," settlements can be made on a RIAA website.

Apparently they're not kidding, as one student -- interviewed on another website -- claimed that when she passed the deadline, the RIAA increased the settlement figure.

RIAA AT IT AGAIN

RIAA Sues Usenet, More College Students

As predicted, the calls for music purchasing boycotts by the enraged P2P music community has not stopped the RIAA to continue its litigation campaign. It has targeted USENET as being a NAPSTER-like facilitator of digital piracy, and it has sent out more "settle or else" letters to college students on a bevy of college campuses.

In its lawsuit against USENET, filed with U.S. District Court for the Southern District of NEW YORK, the RIAA declared that "Defendant provides essentially the same functionality that P2P services such as NAPSTER, AIMSTER, GROKSTER and KAZAA did (prior to being enjoined by the federal courts) -- knowingly providing the site and facilities for users to upload and download copyrighted works -- except that defendant goes further than even the P2P services to facilitate and encourage copyright infringement by its users ... Defendant customizes its service to make it as convenient and seamless as possible for subscribers to distribute and obtain copyrighted music without authorization and without paying for that music."

As evidence of facilitating digital piracy, the RIAA cited USENET's promo pitches where it practically boasted that using its service "gives you access to millions of mp3 files and also enables you to post your own files the same way and share them with the whole world." This type of statement was used effectively against NAPSTER in an AUSTRALIAN trial that also went in the labels' favor.

Back To Schools

At the same time, the RIAA has revved up its litigation efforts against college students from coats to coast. Among the school that have been notified that their students are being targeted are MIT, GEORGE WASHINGTON UNIVERSITY, PENN, KANSAS UNIVERSITY, UNIVERSITY OF GEORGIA, SWARTHMORE, ITHICA COLLEGE, UNIVERSITY OF MICHIGAN, UNIVERSITY OF WISCONSON and several smaller schools in that state.

What's more even though there is a considerable debate within the campus administrations about whether to comply with the RIAA's demand for specifics names of the students whose computers were snared, the RIAA continues to take it up a notch. THE MICHIGAN DAILY reports that "THE UNIVERSITY OF MICHIGAN received more than quadruple the notices by FEBRUARY of the 2006-2007 academic year than it did during the 2005-2006 academic year."

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."

PAY UP

Juror: Piracy Verdict Quick, Defendant A 'Liar'

One of the jurors who ruled against JAMMIE THOMAS in the CAPITOL RECORDS V. THOMAS trial told WIRED.COM that it took the panel only five minutes to determine that she was guilty. According to 38-year-old DULUTH steelworker MICHAEL HEGG, the remaining five hours of deliberation was spent in a heated debate on the financial penalty. At least two jurors demanding that she be hit with the full $150,0000 per track fine, while other wanted the minimum $750 fine. The settled on a $9,250 per song fine to reach the final $222,000 figure.

"That is a compromise, yes," HEGG said. "We wanted to send a message that you don't do this, that you have been warned ... She should have settled out of court for a few thousand dollars."

The jury, became convinced that THOMAS was a pirate after hearing evidence that the user name she used on the KAZAA account was the same she used for other Web accounts. Sealing the deal was expert testimony from an RIAA witness who showed that a wireless router was not used, which blew a hole in her defense that a hacker outside her apartment window with a laptop was spoofing her account to download music. "Spoofing? We're thinking, 'Oh my God, you got to be kidding.'... She's a liar," HEGG said.

Adding to THOMAS' liability, according to the jurors, was when she turned over to RIAA investigators a different hard drive than the one used to share music. "She lied," he said. "There was no defense. Her defense sucked ... I think she thought a jury from DULUTH would be naive. We're not that stupid up here ... I don't know what the f**k she was thinking, to tell you the truth."

While her appeal will focus on the jury instruction that made her liable for copyright infringement simply for having a KAZAA file "regardless of whether actual distribution has been shown," HEGG believed that his jury would have found her liable even if the plaintiffs had been required to establish that KAZAA users had actually downloaded the music.

"It would have been a lot harder to make the decision," he said. "Yes, we would have reached the same result."

Read the entire story here.

WOMAN TO APPEAL RIAA $222,000 VERDICT

Tech website ARS TECHNICA reports that JAMMIE THOMAS has decided to appeal last week's $222,000 willful copyright infringement verdict. Speaking with her attorney BRIAN TODER on CNN, she said they plan on arguing against jury instruction no. 15, where the judge told the jurors that they could find Thomas liable for copyright infringement solely by making the recordings available over a file-sharing network, "regardless of whether actual distribution has been shown."

Even though two sides can point to previous cases that "prove" their side on this issue, this could be nothing more than a move to renegotiate the size of the judgement. Previously, THOMAS told CNET.COM that U.S. copyright laws are unjust and that the cost of proving her innocence was nearly impossible for someone in her financial situation, "It says in the Constitution that there should be no undue fines," THOMAS said in an interview with CNET NEWS.COM. "I was just fined (9,000% more) than the value of these songs."

Apparently, THOMAS is a variety of reasons for her defense. On top of daulty jury instruction argument of her appeal and her complaint that the judgement was too big, WIRED.COM column reports of another interview where she said, "I want people to know that they are being sued based on hacked, spoofed computers. They should still fight back in these cases ... I have to pay for somebody else's actions."

"I was basically forced into a situation where I had to prove a negative," THOMAS told CNET NEWS, "How do you prove that your IP address was spoofed or hacked. If I could afford an FBI analyst I'm sure it could have been proven. But I don't have the money."

Even if the verdict is overturned on appeal, both sides would have to make decide whether it's worth more cost to continue.The RIAA, of course, has much deeper pockets and seems to have no objection to continuing its admittedly money-losing campaign. For her part, THOMAS has piled up $60,000 in attorney's fees -- even if new attorneys are willing to take on the appeal pro bono.

On her MYSPACE blog, THOMAS said she was reluctant to accept the many offers of financial help she had received to pay off what she called "this ridiculous bill. I have not held my hand out," THOMAS said in her interview. "At best I've asked for information or advice. I have asked attorneys who are willing to help pro bono but it didn't feel right to me to ask (people) to donate to my cause."

Still, in her MYSPACE note, THOMAS listed her attorney's MINNEAPOLIS address for anyone who insists on helping.

In a CNET.COM blog, DECLAN MCCULLAGH speculated that "if the RIAA's smart, its lawyers will offer her some kind of not-entirely-punishing settlement that's one-tenth of today's damage award and strongly encourage her to take it. That would avoid the worst of the negative publicity, but still let the record labels wave around a pretty big club."

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.

WOMAN WHO OWES RIAA $222,000 CALLS SUM 'RIDICULOUS'

JAMMIE THOMAS, the woman who was ordered by a federal jury on THURSDAY to pay $220,000 to six music labels, said on FRIDAY that U.S. copyright laws are unjust and that the cost of proving her innocence was nearly impossible for someone in her financial situation, reports CNET.COM.

"It says in the Constitution that there should be no undue fines," THOMAS said in an interview with CNET NEWS.COM. "I was just fined (9,000% more) than the value of these songs."

The RIAA sued THOMAS for copyright infringement and unlike the vast majority of people sued by the group, THOMAS chose not to settle her case for what is typically a few thousand dollars. Instead, she decided to defend herself in court. She strongly denies sharing music files. But a 12-person jury in DULUTH, MN found in favor of the RIAA. They ordered THOMAS to pay $9,250 for each of the 24 songs she was accused of sharing.

"I was basically forced into a situation where I had to prove a negative," THOMAS said. "How do you prove that your IP address was spoofed or hacked. If I could afford an FBI analyst I'm sure it could have been proven. But I don't have the money."

THOMAS, the mother of two sons, ages 11 and 13, said she is still deciding whether to file an appeal. FRED VON LOHMANN, a staff attorney at the ELECTRONIC FRONTIER FOUNDATION, an advocacy group for Internet users, has said that he has been approached by attorneys who wish to help THOMAS should she decide to appeal.

"I haven't made up my mind," THOMAS said. "If I appeal this case, I would still have no protection against this verdict, and would still be obligated to pay off the judgment. It's kind of a tough decision to make."

On her MYSPACE blog, THOMAS said she was reluctant to accept the many offers of financial help she had received to pay off what she called "this ridiculous bill.I have not held my hand out," THOMAS said in her interview. "At best I've asked for information or advice. I have asked attorneys who are willing to help pro bono but it didn't feel right to me to ask (people) to donate to my cause."

Still, in her MYSPACE note, THOMAS listed her attorney's MINNEAPOLIS address for anyone who insists on helping.

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.

Woman ACCUSED OF DOWNLOADING MUSIC ILLEGALLY GOES TO TRIAL

A group of record companies says JAMMIE THOMAS illegally shared everything from ENYA to SWEDISH death metal online. TODAY, she will become the first of 26,000 people sued by the recording industry to take the case to trial.

The BRAINERD, MN resident is accused of illegally sharing 1,702 songs for free on a file-sharing network. Her trial offers the first chance for both sides in the debate over online music sharing to show a jury its version of the facts. THOMAS is accused of violating the song owners' copyrights. Her lawyer says the record companies haven't even proved she shared the songs.

Most of the 26,000 people the record industry group has sued have settled by paying a few thousand dollars. "We think that speaks to the clarity of the law here," said RIAA spokesperson JONATHAN LAMY.

But lawyers for the defendants say they've settled because trials cost tens of thousands of dollars. Thomas's lawyer, Brian toder, said she was determined to fight. "She came into my office and was willing to pay a retainer of pretty much what they wanted to settle for," he said. "If someone's willing to pay a lawyer rather than pay to make it go away, that says a lot."

Thomas is at risk for a judgment of more than $1.2 million. The RIAA is seeking damages set under federal law, of $750 to $30,000 for each copyright violation.