Download decision: Its meaning for music industry and consumers

October 2007 video of Jammie Thomas-Rasset promoting her website FreeJammie.com

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.

Mick Spence
spencelawfirm.com
Mick Spence

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.

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Comments (8)

  1. Submitted by Bernice Vetsch on 06/19/2009 - 02:19 pm.

    Does the industry preface listening to a musical selection with an on-screen warning that downloading it is illegal and will lead to prosecution?

    If not, why not?

  2. Submitted by Rick Prescott on 06/19/2009 - 02:27 pm.

    “This case probably gave everyone about 2 million reasons to do the right thing.”

    On the contrary, this case just gave everyone about 2 million reasons to perfect the burgeoning technologies of totally anonymous file-sharing.

    There is hardly a question that the RIAA is in the right here, and the defendant is in the wrong. In fact, there’s little debate left that file-sharing infringes on the rights of copyright holders. It does.

    What the RIAA is about to discover, however, is a potential backlash of previously inconceivable proportions. This verdict reveals the absurdity of the strategy they have employed, makes them out to be the biggest of bullies, and could push free file-sharing beyond their reaches just at the moment when legitimate downloading sites have started to mature (by removing draconian DRM limitations).

    The RIAA has won, and gotten what they wished for, right?

  3. Submitted by Mark Gisleson on 06/19/2009 - 02:48 pm.

    Does Mr. Spence have any actual knowledge of musicians or composers receiving payments from the RIAA from the money they’ve been “raising” through legal thuggery?

    I’ve been following the RIAA’s actions for years and I’ve never seen any credible proof that ANY artists ever got a dime from the RIAA other than as contractually due for actual sales. The history of the recording industry is synonymous with the history of corporations defrauding musicians and composers.

    And how is digital copying different than cassette tapes? Cassette tapes for personal use were legal, as were videotapes.

    The law cannot change technology. Kazaa is history. New technology like Papaya allows filesharers to pull the files directly from each other’s computers without any third party involvement. Filesharers like myself have openly admitted to filesharing for years, but unless you have seizable assets the RIAA will not come knocking on your door. I should know as I’ve admitted to “illegal” file sharing in almost every comment forum in town, and on my blog innumerable times.

    What kind of law is only enforced when the “criminal” has money to seize?

    The crime here was a compliant Congress that was “bribed” into passing laws that created insanely high fines for innocuous behavior. Digital rights advocates have shown time and time again that the more filesharing there is of an album or movie, the more legal copies end up being sold.

    Here is the Eighth amendment to the Bill of Rights in its entirety: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

    In what conceivable way is $1.92 million for 24 songs not an “excessive fine” if not a “cruel and unusual punishment”?

    Congress should be fined for passing special interest legislation that allows corporations to resist technology while holding back the best interests of the artists they purport to represent.

  4. Submitted by Tyler Breuch on 06/19/2009 - 03:31 pm.

    Spence says: “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.”

    At the height of CD sales in the 1990s, chart-topping #1 bands were receiving only pennies for each CD sold. This practice continues today, such that Eminem and other big artists have had to sue Apple to recieve their iTunes royalties. So the idea that musicians are paid for recorded music is flat out wrong.

    Furthermore, bands that sign to the four major labels usually *forfeit* the rights to their own music in the process of “signing” to a label. Unless you’re an established musician with bargaining power, you don’t even own the rights to your own songs!

    The Recording Industry Ass. of America (RIAA) was originally created “to administer the RIAA equalization curve, a technical standard of frequency response applied to vinyl records during manufacturing and playback.” [Wikipedia] Today RIAA is a lobbying group that is watching its source of income (CDs) rapidly evaporate as people turn to movies, cable TV, video games, and the Internet as sources of entertainment.

    I sincerely hope that MinnPost does not invite Mr. Spence back as a guest commenter. His response that he “thinks [the award amount] is fair” mind-blowing. The damages equate to $80,000 per song. I understand that, as an attorney, Mr. Spence sees the legal arguments involved, but I would also think that, as an “expert” in this case, he would see the issues related to musicians’ rights.

  5. Submitted by Jon Schelhaas on 06/19/2009 - 06:53 pm.

    I also don’t think that Mike Spence needs to be invited to comment again. Unlike some here I can understand his argument for the jury award, even if I think it’s excessive. An argument could be made that a million people downloaded the song from her, and so the amount was justified. However I would point out that not every download equals a lost sale.

    The disappointing part, to me, was in some of his other comments. He equated downloading a song to “blowing buildings apart and taking whatever they wanted out of that physical store”. He completely took the a page out of the RIAA handbook, and ignored the point made by so many copyright reformists – a download does not deprive anyone of… well anything. Taking a physical CD does deprive the store of that physical CD. Now maybe Spence doesn’t think the “doesn’t deprive” argument isn’t a good one and that copyright law should be above that, and that’s fine. But by only giving the argument from one side he fails to give an unbiased report.

    He also pointed about that there were 1700 songs, as if that justified the jury amount, even though the jury was only allowed to consider 24 songs. I would expect that a lawyer would appreciate the difference being admittible evidence in a trial and non-admittible, and not try to mix the two when discussing the trial result. Again Mr Spence simply takes RIAA media talking points and simply repeats them.

    I’m not asking for Mr. Spence to discuss the finer points of the topic of copyright infringement and those calling for it’s reform, but hope he will do more than simply echo RIAA’s talking points isn’t asking that much. MinnPost should be aiming for a higher standard.

  6. Submitted by David Koski on 06/19/2009 - 11:41 pm.

    Having a slight read on Mick Spence upon looking him up when living in my Tangletown neighborhood, which he has since left, he is obviously following the money. He is part of the Spence family that is locked into Meshbesher and Spence. He may have been the vagabond youngin’ that went toward entertainment, but the fruits of that choice are becoming evident.

    The worthlessness of having him being an expert is that he will only follow the money and respond forthwith. This lawyer stands to make money on both sides of the issue, so why bother.

    The real issue is that there will be a universal jukebox, with artists either participating or not. RIAA could easily not be part of an organic movement with artists refuting centralization of its distribution, a very possible outcome.

    As bloodsuckerly as RIAA is, the lawyers surrounding the pool of blood are worse.

  7. Submitted by jim hughes on 06/20/2009 - 10:22 am.

    Add me to the list of peope who simply can’t comprehend the thinking of someone who would describe this decision as “far”.

    As a software professional it’s clear to me that the jury in this case lacked enough understanding of the technology – computers, files, operating systems, networks, the internet – to see through the obfuscations and exaggerations thrown out by the RIAA’s lawyers.

    How about a commentary from that perspective, instead of that of another lawyer applauding the success of his peers?

  8. Submitted by Richard Weaver on 08/18/2009 - 04:54 pm.

    It must also be said, that the legal, free distribution of music exists pervasively throughout the internet. More and more, artists must be creative in the marketing of their brand, in order to be able to support the creation of their music. The music itself, although it is the core Art product of the artists, nets them less revenue than the concert tickets and associated merchandizing the music attracts. NIN recently released a digital album in it’s entirety, as a free download for this very reason. The RIAA and it’s cause is becoming less and less relevant.

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