Download decision: Its meaning for music industry and consumers

Thursday's closing arguments in the trial of Jammie Thomas-Rasset on the 15th floor of the federal courthouse in downtown Minneapolis painted a contradictory picture of the 32-year-old single mother of four from Brainerd, Minn.

As they had all week, attorneys for the Recording Industry Association of America (RIAA)  and six record companies described Thomas-Rasset as a thief who knew exactly what she was doing when she downloaded and shared songs on Kazaa, an internet music file-sharing source, in 2004 and 2005.

Her attorneys, in turn, portrayed Thomas-Rasset as a simple music fan who was not well-versed in the intricacies of downloading music over the internet.

A jury of seven women and five men took less than five hours to decide that Thomas-Rasset was responsible for $1.92 million in damages to the music industry — some $86,000 each for the 24 songs downloaded onto Thomas-Rasset's computer that were at issue.

This was the second time Thomas-Rasset was ordered to pony up for the downloads by a jury, but that decision in December 2007 was declared a mistrial.

Mick Spence, a local entertainment and copyright attorney for nearly 20 years, took in every second of the trial that produced what is sure to be a landmark decision.

"I spent five days in court, uncountable nights researching and reading the case and related legal matters, and filled nearly two legal tablets with trial notes," Spence, who sees this case from both sides of the fence, writes in an email interview with MinnPost. Here's what else Spence had to say.
 
MinnPost: Let's start with the historical significance of this case. Jammie Thomas-Rasset's case is the first to go to trial — twice, no less — so, can you put it in the context of what it means for the recording industry's battle against downloading and file sharing?

Mick Spence: Well, she's actually the first to have her case go to a jury trial, twice, as you indicate. Some 30,000 cases were investigated, letters were sent to suspected illegal music sharers, some settled, some were abandoned, some became formal lawsuits, but this is the only one that has made it all the way to a jury for a verdict from a community of her peers.  

This is a huge victory for artists, businesses that create commerce with the artists' content, and groups like the RIAA, who serve as a consolidated voice for those artists and businesses.

MP: How did this suit come about?

MS: The lawsuit is based on copyright law, which gives copyright holders exclusive rights to do what they want with their copyrights.  It's supposed to give creative people an incentive to create, music in this case.  If they create valuable music, then they get the reward of being the only person to sell it and make some money. Downloading copyrighted music violates two of the owner's exclusive rights — making copies of the song, and then distributing those copies.  

Illegal downloading destroys that process. If one CD gets into Kazaa, anyone and everyone could illegally copy those songs and exponentially send the same digital copy to millions of other downloaders.  

MP: That said, why is the RIAA going so hard after Thomas-Rasset? What did she do that makes them want to pursue this?

MS: She's refused to admit what the jury has now twice found: she violated exclusive copyrights of the record companies. To those companies, copyrights are the assets used to create revenue for their business. They're like the raw materials to manufacturers, the patented formulas to drug companies, the food in a grocery store, or the CDs in Best Buy.  

Think of any of those businesses being looted. If we watched a news report of millions of looters blowing buildings apart and taking whatever they wanted out of that physical store, we'd be appalled.

MP: You sat through every part of this trial. Are you surprised at the jury award? And is it fair?

MS: I'm not surprised, and I think it's fair.

Here's something we must consider: It's not that she was sued for 24 songs, which she could have legally purchased for about $24.  How many others benefited from Thomas-Rasset's infringing behavior?  She had 1,700 songs in her Kazaa folder. Some 2.3 million users were on Kazaa the one day investigators monitored her computer. How many of her 1,700 songs were downloaded day after day, by others who then made them available to their friends, and so on and so on?  She could have easily damaged the industry by much more than $1.92 million.

MP: Thomas-Rasset, in testimony, tried to pawn off her downloading on Kazaa to her children and her now ex-fiancé. Did that hurt her in the end?   

MS: Incredible stories always hurt their proponents. I think she was hurt most by her infringing acts, and then not fessing up.

MP: Aren't there bigger fish to fry?

MS: Perhaps there are, but again, the RIAA's campaign identified about 30,000 people they believed were infringing.  She just didn't want to let it go when they offered her an out at $5,000 — and I'll bet they'd have taken less if she had asked nicely.

MP: What does this mean for music downloading in the future or possible legal precedent?

MS: I'm expecting an appeal by the defense counsel team, trying to challenge the constitutionality of statutory damages as large as this. I'll go out on a limb and predict any such appeal will fail, too.

As far as music downloading, it is here to stay, and will grow to surpass physical [CD] sales.  Now, more people will hopefully think twice before choosing where to get that new digital song they want.  There are many legitimate, affordable and even some legal, free sites. This case probably gave everyone about 2 million reasons to do the right thing.

G.R. Anderson Jr. covers politics, the state Capitol and issues related to public safety.