She Fought The Law and The Law Won . . .

Somebody Owes A Lot of Money To great applause and encouragement from certain circles, someone named Jammie Thomas decided to take the RIAA in court. She fought the law
and the law won. A jury decided that she
owed $222,000, and the final bill could be over a half-million dollars.

The points that need to be made:

In the United States, civil cases have a lower standard of proof than criminal cases. To win a criminal case, you have to show “beyond a reasonable doubt” that someone did a bad thing. For a civil case, though, all you have to show by a “preponderance of the evidence” that someone did that bad thing.

So coming up with theoretical scenarios like “somebody wardriving must have set up a Kazaa account in my name without me being aware of it” aren’t going to fly.

The defense lost every significant point in the case. The RIAA methodology of gathering evidence by scanning public networks was endorsed as a legitimate means of determining copyright infringement, no problems with privacy or anything like that.

While the jury instructions did say that the mere availability of the files on the Kazaa network constituted copyright infringement, in fact, the RIAA legal beagles did download 26 files from Ms. Thomas’s hard drive just to be on the safe side.

It also should be noted that the jury was hardly forced into deciding such a huge penalty. The minimum fine for non-willful copyright violation is $750 per violation, or $18,000 total for the 24 instances brought to court.

Instead, the jury decided that this was a case of willful infringement and levied a penalty of $9,250 per incident, or over twelve times the minimum, which probably surprised even the RIAA lawyers. This seems to indicate that the defense’s “prove beyond a shadow of a doubt that she did this” not only didn’t work, but probably irritated the jury.

On a practical level, Ms. Thomas was found guilty despite the absence of what many consider to be a mandatory piece of evidence: the hard drive. That was replaced (apparently due to failure) shortly after Ms. Thomas got the initial IM from Safenet indicating that she had engaged in copyright infringement, but before official RIAA notice.

No, the RIAA won its case based on what they recorded was available for sharing on the Kazaa network at X point in time. This means that wiping the hard drive or encrypting it afterwards not only doesn’t keep you safe, it’s irrelevant to the case.

Let me rephrase that, based on this decision, the RIAA doesn’t need your hard drive to convict you in court. So you can wipe it or encrypt it or toss it from a tall building or even put it where the sun doesn’t shine, it doesn’t matter.

It’s possible that might get overturned on appeal (if that point gets appealed or even if there is an appeal), or other courts hearing other cases could decide differently on that particular issue, but for right now, don’t think doing something to your hard drive is going to save you.

Ed