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U.S. woman is not seeking help to pay $222,000 download award

By Joshua Freed
Minneapolist, Minnesota (AP) 10-07

Jammie Thomas makes $36,000 (euro25,467) a year but says she is not looking for a handout to pay a $222,000 (euro157,046) judgment after a jury decided she illegally shared music online.

“I’m not going to ask for financial help,” she told The Associated Press during late September. But she added, “If it comes, I’m not going to turn it down, either.”

Record labels have sued more than 26,000 people they accuse of downloading and offering music for sharing online in violation of copyright laws. Many of those people have settled by paying the companies a few thousand dollars.

Thomas was the first person to fight back all the way to a trial. Six major record companies accused Thomas of offering 1,702 songs on the Kazaa file-sharing network. At trial, they focused on 24 songs and jurors decided October 4th that Thomas willfully violated the copyright on all 24. Their verdict was for damages of $9,250 (euro6,544) per song, or $222,000 (euro157,046).

The recording industry won two victories with that verdict.

Beyond the money, the industry added to a growing body of legal precedents holding that making copyright-protected songs available online, even without proof the songs went anywhere, infringes on the copyrights for the songs.

U.S. District Court Judge Michael Davis was planning to instruct jurors as they began their deliberations that record companies would have to prove someone copied the songs to show copyright infringement.

But record company attorney Richard Gabriel cited cases where making songs available was found to be infringement, and Davis changed course.

Legal experts said the question isn’t settled.

“Record labels don’t like that because it’s harder to prove,” said Andrew Bridges, an attorney who has argued for the Computer & Communications Industry Association that copyright holders should have to prove the offered material is actually used.

“It’s all about whether they get a free pass to impose onerous damages on people without actually having to prove a case,” Bridges said.

International intellectual property treaties assume that simply making a work of art available can violate the copyright, said Jane C. Ginsburg, an intellectual law professor at Columbia Law School.

“It would be hard to see how we could be living up to our international obligations if the law were interpreted differently,” she said.

Ray Beckerman, an attorney who has represented people sued by the record companies, said the companies used one case where there was a $22,500 (euro15,917) default judgment to scare people into settling.

“Now, look at this. This is 10 times better. They can talk about this case, they can use it for frightening people,” he said.

Beckerman said the damage award was disproportionate to the price of the 24 songs Thomas was accused of sharing for free. She could have bought them for 99 cents each on a legal download site, he said.

Record company lawyer Richard Gabriel argued at trial that Thomas made the songs available to millions of users on Kazaa.

The lawsuits have cost more than they’ve brought in. But the Recording Industry Association of America has said it wants the lawsuits to send a message that downloading music illegally is risky.

But the number of people sharing files online at any given time has risen 69 percent to almost 9.4 million since 2003, when the lawsuits began, according to BigChampagne LLC, research firm that tracks file-sharing traffic.

That suggests the publicity has had a limited effect in deterring people from swapping music online, said Eric Garland, CEO of BigChampagne.

Record companies “don’t want to be on the front page battling a lot of customers,” Garland said. “They want to be on the front page selling a lot of Kanye records.”

Thomas denied that the Kazaa account at issue during the trial was hers. Neither side presented the computer hard drive Thomas owned in 2004 and 2005, which she allegedly use to download and offer the songs.

Thomas said that people who heard about the verdict have been leaving messages on her MySpace page offering to help.

“I guess it’s my Native pride,” said Thomas, who is a member of the Mille Lacs Band of Ojibwe. “Up until this point I have not held my hand out and asked for financial assistance from anyone.”

Thomas, 30, works for the Mille Lacs band coordinating a federal grant for cleaning up contaminated land. She said she doesn’t have the means to pay.

“I am a single mother of two boys. I make $36,000 (euro25,467) a year at my job,” she said. “At best they could try and get a court order garnishing my wages.”

Her attorney, Brian Toder, said that copyright law automatically awards court costs and attorney fees to the winning party.

Paying those too could push the total judgment against Thomas as high as a half-million dollars.

Recording Industry Association of America spokeswoman Cara Duckworth declined to comment on the group’s plans for enforcing the judgment.

Thomas questioned whether the record companies will be able to enforce the verdict because she is an enrolled member of the Mille Lacs tribe of Indians, lives on its land and works for the tribe.

But Kevin Washburn, who teaches American Indian Law as a visiting associate professor at Harvard Law School, said tribal courts generally enforce judgments from other courts. And since this is a federal verdict, the tribal courts might not even have a say in enforcing the verdict.

“One way or another she’s got to pay,” he said.

The companies that sued Thomas were EMI Group PLC’s Capitol Records Inc.; the Arista Records LLC label and its parent Sony BMG Music Entertainment, which is run by Sony Corp. and Bertelsmann AG; Vivendi SA’s UMG Inc. and its label, Interscope Records; and Warner Bros. Records Inc., which is a unit of Warner Music Group Corp.
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