Duluth, Minnesota — Capitol Records, et al v. Jammie Thomas (the name of the suit changed after the RIAA dropped the sole Virgin recording from the case) got under way this morning in Courtroom One of the Federal Building in Duluth. Armed with three boxes of documents and Thomas' computer (a squat black and silver Compaq minitower of not-too-recent vintage), Thomas' attorneys arrived bright and early, about an hour before proceedings began at 9am.
The RIAA's team, consisting of Richard Gabriel and Tim Reynolds of Holme Roberts & Owen as well as Matt Oppenheim of The Oppenheim Group, arrived a few minutes before the scheduled start. They were armed with several boxes of exhibits, which included CD-Rs they said contained the songs allegedly downloaded by Thomas.
Like over 20,000 US residents, Thomas stands accused of copyright infringement by the RIAA, but this case is the only one to make it to trial. Although Thomas' defense is expected to center around the ownership of the copyrights to the songs flagged by the RIAA's investigative arm, SafeNet, her counsel Brian Toder didn't raise the issue during opening arguments. According to the certificates of copyright presented by the RIAA during discovery, the registrations for half of the songs in question don't jibe with the group's court filings. On the eve of the trial, Judge Michael Davis ruled against the RIAA's motion to introduce another 784 pages of documentation that it had failed to produce during discovery.
Jury selection
Jury selection went quickly, with 12 jurors selected from a the initial pool of 16. Included among them are a high-school English teacher who describes himself as an amateur musician and a subscriber to Rolling Stone magazine who had followed the RIAA's litigation with some interest. Some of his students had even done research papers on the topic of P2P litigation.
Judge Michael Davis and the attorneys seemed most interested in determining if any of the prospective jurors had any connection with the music industry, whether they believed artists should be compensated fairly for their work, whether they owned PCs and used the Internet, whether they were musicians, and whether they had ever downloaded music from the Internet. Gabriel asked one juror who said she had heard a bit about the history of the litigation on NPR if she had heard any recent reports by NPR, presumably referring to Atlantic v. Andersen.
Five or six of the prospective jurors indicated that they had downloaded music, with most of those indicating that they had used iTunes. One woman said she had downloaded music back in 2003 and that she wasn't happy with the quality of the recording she had downloaded. She said that she didn't think downloading without paying was right, but that if the music was of poor quality, the record labels shouldn't be concerned about it. She didn't make the final cut for jurors.
The final 12 seem to be about as diverse as a random group of people from the Iron Range of Minnesota can be. All of them are Caucasians, two of them don't own PCs and have never used the Internet, and a third described himself as a "total computer illiterate." In addition to the English teacher, there's a funeral director, a bartender, and a steelworker.
Opening arguments
After a brief recess, Richard Gabriel began his opening statements. Dressed in a black suit and red tie, Gabriel was soft-spoken and addressed the jurors without the benefit of notes. He told the jury that the record labels were made up of "real people" from the artists themselves down to those who worked in distribution. "The recording industry faces a significant threat to their livelihood," Gabriel told the jury. "A large part of that threat is copyright infringement over the Internet."
Gabriel accused Thomas of distributing over 1,700 songs over KaZaA, although the case is only focusing on 25 of those songs. "Downloading and distribution doesn't happen by accident," he told the jury.
Gabriel then went through a description of how KaZaA and other P2P networks are used, how the RIAA's investigators SafeNet (formerly Media Sentry) investigate and identify downloaders, and the process that led up to the lawsuit being filed against Thomas. He emphasized that everyone on KaZaA can get an "exact digital copy" of every song shared.
With the background out of the way, Gabriel went on to the particulars of the case. The alleged infringement was identified on February 21, 2005, and SafeNet's investigator sent an IM to tereastarr@KaZaA warning her that she was engaged in the unauthorized distribution of copyrighted materials.
A key part of the RIAA's case is proving that Thomas was the person behind the tereastarr@KaZaA screen name. Gabriel noted that Thomas uses the tereastarr handle online, including for her Charter e-mail account, her IM accounts, and her MySpace page. He also said that she has an "eclectic, far-reaching taste in music" that was reflected in the shared folder discovered by SafeNet.
Another issue raised by Gabriel was Thomas' hard drive. She had the hard drive replaced in March 2005 at a Best Buy store, and Gabriel said that both the RIAA and Thomas' forensic expert agreed that it wasn't the drive in use when the alleged infringement took place. Pointing out that the defendant was not planning to call her own forensic expert, Gabriel intimated that the hard drive was replaced to cover the defendant's tracks, saying that she said it was replaced in March 2004, not March 2005 as was actually the case. He then concluded by saying that the labels would prove that they controlled the copyrights at issue and that the defendant distributed the songs to "millions of others" on the Internet.
Brian Toder, the defendant's counsel responded. Speaking from his notes, he told the jury that this was a "tough case," with the defendant in the difficult position of having to prove a negative. "Someone was on KaZaA, and someone from SafeNet downloaded the music," he told the jury.
Toder then reminded the jury that the only bit of concrete identifying information is the IP address flagged by SafeNet and the MAC address of the cable modem. "The best we can say is that someone using the IP address in question offered music that was downloaded by the plaintiffs," he argued.
Toder also laid out a different timeline of events. He noted that there was no evidence that anyone had seen the IM allegedly sent by SafeNet on February 21. On March 7, 2005, Thomas took her PC to Best Buy for repair due to "beeping and error codes," not in an attempt to conceal anything. "It was Best Buy's decision to replace the hard drive, before she had any idea that the RIAA was even putting together a case against her and 20,000 others," he said.
According to the the timeline offered by Toder, the first communication to the defendant came on April 22, 2005, in the form of a letter sent by her ISP. She didn't receive one of the RIAA's settlement letters until August 2005. Toder again pointed out that the hard drive was replaced before the defendant was ever notified that she was the potential target of a copyright infringement lawsuit.
He also attacked the "circumstantial evidence" of the tereastarr@KaZaA name. "If you're going to engage in illegal activity, are you going to use the name everybody knows you by?" Toder asked the jury. He also said that the decision not to call the forensic expert was solely financial.
First witness
With opening statements concluded, the labels called their first witness, Jennifer Pariser, the head of litigation for Sony BMG. Gabriel started with a number of questions about file sharing and the music industry before honing in on the particulars of the case. Pariser called file-sharing a "tremendous problem affecting the music industry" that "causes several billions of dollars of harm" to the labels. "It's important to combat," she explained. "If we don't, we have no business."
The rest of her testimony covered the investigative process, settlement letters, and consisted of her identifying the specific Sony BMG recordings in the case. Pariser also explained the chain of ownership, saying that the actual copyright registrations didn't always match those in the case because of sales and name changes.
Before the lunch recess, the jury and the rest of the courtroom were subjected to Journey's "Don't Stop Believing" played from a portable CD player over a cheap set of computer speakers. Pariser played two versions of the song, the one she said was downloaded from KaZaA, and the version from the album Escape, to demonstrate that both recordings are identical.
After the lunch recess, Pariser is expected to finish up her testimony, and the labels are expected to call others from the industry as well as the forensic investigators. It's the judge's hope that the case will wrap up on Thursday. We'll have a recap of the day's proceedings when court adjourns this evening.
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