Sunday, February 15, 2009


You may recall that back in 2007 a jury in Minnesota determined that a woman named Jammie Thomas had violated the copyright law by offering to share 24 songs on the Kazaa file sharing service and socked Ms. Thomas with $220,000 in damages. The damages were awarded to the record companies whose songs had been improperly offered up on Kazaa. That jury award caused quite a stir at the time because of the size of the damages assessed – especially because the retail value of the songs was about $54. Later - in a rare and interesting twist – the Judge who presided over the trial threw out the damages award and granted Ms. Thomas a new trial. Why? Because the Judge determined that the record labels had to prove that some third parties had actually downloaded the copyrighted songs and that it wasn’t enough that Ms. Thomas had simply made the songs available for downloading. The Judge overturned the verdict because he didn’t instruct the jury on that distinction at the trial.

In the latest skirmish in the case, the record labels asked the Judge to reconsider his decisions to overturn the damages award and order a new trial. But the Judge refused and reiterated his belief that in order for the record labels to prevail they will have to show that Ms. Thomas did more than just make the copyrighted songs available for downloading. And thus the case will be headed back to court for a new trial in front of a new jury – unless the record labels decide to drop the case. That’s a possibility because last year the record labels publicly announced that they were stopping the filing of lawsuits against individual illegal file sharers and instead were going to focus on working with Internet Service Providers (ISPS) to stop illegal file sharing.

Why is this important?

It’s important because for several years the record labels and their trade association the Recording Industry Association of America (RIAA) used the $220,000 damages award against Jammie Thomas as a tool to scare people who were sharing files illegally. That was, of course, their prerogative. But if the damages award was made without a proper legal foundation, it should not stand. And if the record labels choose not to pursue a new trial against Ms. Thomas, that too will signal that the era of mass suits against end-users – at least as far as music is concerned – may be over.

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