Wednesday, October 3, 2007

I Won't Surrender to Download Bullies, Says Mother Fighting Music Giants

Chris Ayres in Los Angeles (FT)

A single mother has made legal history by forcing America’s biggest record companies into a costly and potentially embarrassing trial after she refused to pay an out-of-court settlement for alleged music piracy.

Jammie Thomas, a Native American from Minnesota, is one of 26,000 people the Recording Industry Association of America has sued over the past four years for alleged use of music “file-sharing” software. But she is the first to refuse to settle and has forced the music industry into a trial that could set a legal precedent. “I refuse to be bullied,” she said yesterday. “I know that I did not do this, and the jury will hear that I did not do this.”

Ms Thomas, 30, who has two children aged 11 and 13, lives in the small northern town of Brainerd, Minnesota, and works for the Department of Natural Resources of the Mille Lacs Band of Ojibwe, a Native American tribe. According to the tribe’s website, its members “struggled with poverty and despair” until the opening of two casinos in the 1990s.

The case threatens to become another PR disaster for record companies. After they were initially accused of refusing to offer a legitimate alternative to file-sharing, the companies are now being attacked for the way they price such music. Their practices have prompted an investigation by the European Commission and alienated many big-selling bands. Next week
Radiohead will release its new album independently and allow fans to decide how to much to pay for it online, through an “honesty box” system.

In its lawsuit against Ms Thomas, the RIAA claims that on February 21, 2005, the mother-of-two used the file-sharing service Kazaa to offer more than 1,702 songs for illegal sharing. These included songs by the Swedish “death metal” band Opeth, although tracks by Janet Jackson, Green Day, Guns ’N’ Roses, Journey, Destiny’s Child and others are believed to be at issue in the case.

The username Ms Thomas allegedly used, “tereastarr”, is the same as the username on her MySpace page, which features the quote: “What’s the definition of insanity? Doing to the same thing over and over again, yet expecting different results.”

Last year Kazaa settled its own music piracy lawsuit with record companies for $100 million. In the UK the music industry has taken legal action against more than 100 individuals, although none of those cases has yet been contested in court.

Brian Toder, the lawyer representing Ms Thomas, insisted that the RIAA could not prove she shared the songs in question. “She came into my office and was willing to pay a retainer of pretty much what they wanted to settle for,” he said yesterday. “And if someone’s willing to pay a lawyer rather than pay to make it go away, that says a lot.”

Working against the music industry is a ruling that barred 784 pages of documents proving corporate ownership of the songs – the judge said that the documents had been filed too late - and the fact that Ms Thomas replaced her hard drive after receiving her first “infringement notice”. She is also thought to be an enthusiastic CD buyer, which could make the jury more sympathetic to her.

Critics say that defendants such as Ms Thomas, who could be asked to pay damages of anywhere between $19,500 and $3.9 million, are bad publicity for the association. The association says that it is in a no-win situation, and believes that a zero tolerance approach to file-sharing is the only way to enforce copyright laws.

“We repeatedly offer out-of-court settlements far less than what the law allows,” said Jonathan Lamy, its spokesman.

Legal analysts said that the trial risked exposing the flaws in the association’s piracy-investigation techniques, which are handled by an outside company called SafeNet. If the association loses, the verdict could embolden other defendants to go to court, while making record companies even more unpopular than they already are.

“The case will be the first test of the RIAA’s ability to sell a jury on its investigative methods, which have a degree of imprecision,” wrote the music industry blogger Jon Healey in the Los Angeles Times yesterday.

“Internet protocol addresses are not painted on the side of a computer like a street address, and even if the association were able to trace a shared file back to a specific PC or Mac, it is not easy to prove who was sitting at the keyboard.”

According to the association, the number of households that have downloaded music with file-sharing software has risen from 6.9 million in April 2003 to 7.8 million in March 2007. Fred von Lohmann, a lawyer who specialises in intellectual property at the Electronic Frontier Foundation, a civil liberties group, said that the RIAA’s legal campaign was having little effect. “I think by most any metric you choose, it’s been a failure,” he said.

10%: proportion of music sales worldwide that come from internet downloads

10,000: people in 18 countries threatened with legal action

20bn: tracks are illegally downloaded each year

14%: of broadband users regularly engage in illegal file-sharing

795m: estimated number of legal downloads bought last year

4m: songs can currently be purchased online

£1bn: what legal music download market is worth

25: illegal downloads for every legitimate music purchase

Sources: IFPI (International Federation of the Phonographic Industry); Times archives