Duluth News Tribune, MN
10-04-07
Testimony complete in Duluth music file sharing trial
Mark Stodghill Duluth News Tribune
Jammie Thomas testified Wednesday that she had never even heard of KaZaA
and never used the peer-to-peer file sharing service on her computer at the time
the Recording Industry Association of America accuses her of pirating their
music.
But a computer security expert for the recording industry said all computer
forensic evidence points to Thomas being guilty of copyright infringement.
A six-man, six-woman jury in U.S. District Court in Duluth will hear the attorneys’
closing arguments today and decide the first file-sharing copyright infringement
case to go to trial.
Investigators for the plaintiffs have provided jurors evidence that the IP address
(a number assigned to a subscriber connected to an Internet Service Provider), a
modem Media Access Control address and Thomas’ username all link her to the
pirating.
Minneapolis defense attorney Brian Toder said he and Thomas can’t explain
what happened, but that it can’t be proven that his client shared copyrighted files.
Toder has offered theories that there could have been a computer party at
Thomas’s home or someone could have been outside her window with a laptop.
Thomas testified that despite the plaintiffs producing exhibits with her computer
identifiers printed next to the computer screenshots, she was not the one
who uploaded the music to the file-sharing service. She had no explanation for
why she was identified as the pirate.
Toder has also suggested that computer hacking or IP spoofing could as
explanations. Spoofing is someone pretending to be somebody else by taking
over their IP address.
“My opinion is that it did not happen,” Doug Jacobson, an Iowa State
University professor and computer security expert, testified. “Making IP
spoofing work is extremely complicated. Pretending to be somebody else at the
same time they’re on the Internet is almost impossible to carry out.’’
The lawsuit was brought by the Recording Industry Association of America —
representing Virgin Records, Capitol Records, Sony BMG, Arista Records,
Interscope Records, Warner Bros. Records and UMG Recordings.
It claims that Thomas of Brainerd, distributed 1,702 digital audio files — many of
them the plaintiffs’ copyrighted sound recordings — from the KaZaA shared
folder on her computer to potentially millions of other KaZaA users for free.
The plaintiffs are seeking from $750 to $150,000 in statutory damages for each
of 24 copyrighted sound recordings they allege Thomas pirated.
A 25th sound recording was dropped from the case by the plaintiffs Wednesday
because of a “clerical/lawyer error,’’ their lawyer said.
Richard Gabriel, lead trial counsel for the record industry, called witnesses to
show that Thomas replaced the hard drive in her computer two weeks after an
investigation by the music industry caught the alleged copyright infringement.
In his questioning, Gabriel pointed out to jurors that in two depositions Thomas
had said she had the hard drive replaced before she knew she was being
investigated. Under examination by Gabriel, Thomas said that her computer was
in her bedroom, was password protected and no one else had the password.
Toder kept his client on the stand for only three minutes after she was
questioned by the plaintiffs. She said she misstated the year the hard drive was
erased. She provided no further explanation.
The plaintiffs suffered a blow Wednesday when U.S. District Judge Michael J.
Davis didn’t allow them to call to testify Cary Sherman, president of the RIAA.
Sherman had traveled from Washington, D.C., to testify of the harm widespread
illegal sharing causes the industry.
Toder had argued that Sherman wasn’t relevant to the case against his client.
Gabriel told the court that it was relevant in helping jurors to calculate statutory
damages.
life-changing ordeal
Thomas, 30, works for the Mille Lacs Band of Ojibwe in its natural resources and
environment department. She is a grant coordinator to redevelop contaminated
property. She testified that she has a bachelor’s degree in business
administration from St. Cloud State University. Gabriel used his questioning to
point out how proficient Thomas is on a computer. The defendant has taken
several computer classes and uses a computer to keep track of budgets and
write grants.
Thomas spoke to a News Tribune reporter during the noon recess Tuesday. The
single mother of two children, ages 8 and 11, said the lawsuit has changed her
life.
“It’s been very stressful,” she said. “I have multibillion dollar corporations with their own economies of scale suing me so it’s been
very stressful.’’
She said the lawsuit has also affected her children. “I no longer have any
disposable income whatsoever,” she said. “My disposable income used to go for
CDs, but obviously not anymore. I’ve had to make some changes regarding
extras for my children. All the disposable income went toward this case. I didn’t
do this and I refuse to be bullied.”
Thomas testified that she has 240 CDs, but at one time had more than 400.
At times, Toder, an International Falls native who is recognized as a Super
Lawyer by Minnesota Law and Politics Magazine, seems to be telling jurors that
this is a “big guy vs. little gal’’ case.
Toder has told jurors that he couldn’t afford to pay for an expert witness. He
pointed out that the plaintiffs have paid $200 an hour to their computer security
expert who testified at trial. The plaintiffs show jurors clear exhibits produced
from a computer. Toder struggles with cloudy transparencies on an overhead
projector. Davis on a couple of occasions has asked the plaintiffs to display
Toder’s exhibits so that they will be clear to jurors.
There are six members of the plaintiffs’ briefcase brigade with assistants passing
notes to the two lawyers and one music industry official at the plaintiff’s counsel
table. Meanwhile, Toder sometimes needs the help of his client in searching for
papers he’s looking for.
Toder asked his opposing counsel, Gabriel, if he could borrow his laser pointer
as he showed jurors one exhibit. The plaintiff’s attorney gave it to him and joked
with a smile: “It will cost you.’’
Closing arguments are scheduled for this morning. Davis will read jurors the law
that they are to follow and six men and six women will decide a case that is being
followed around the world.