Attorney Defends Client, Not Computer on File-Sharing Charges

Oct 03, 09:08 AM

Current Headlines: By Mark Stodghill, Duluth News-Tribune, Minn.

Oct. 3--PEOPLE THROUGHOUT THE RECORDING INDUSTRY -- from those who record and distribute music to those who find new artists, run sound boards and work as back-up musicians -- are facing threats to their livelihoods because of pirated music.

That's what Richard Gabriel -- the Denver attorney representing the Recording Industry Association of America -- told a six-man, six-woman jury Tuesday in U.S. District Court in Duluth.

The RIAA alleges that Jammie Thomas distributed 1,702 digital audio files -- many of them the plaintiffs' copyrighted sound recordings -- from a KaZaA file-sharing folder on her computer to "potentially millions of other KaZaA users" for free.

It's the first file-sharing copyright infringement case to reach a jury in the United States. U.S. District Judge Michael J. Davis is presiding.

Thomas, a 30-year-old single mother of two from Brainerd, denies the allegations.

Gabriel said the computer Thomas used to allegedly illegally distribute music was in her bedroom and was password protected, with only the defendant having access to the password. He said Thomas used the same "tereastarr" identifier for everything computer-related for 13 or 14 years, including e-mails, instant messaging, video games and Best Buy and Wal-Mart accounts.

Minneapolis defense attorney Brian Toder argued that if someone were going to do something illegal, the last thing they would do is use a name that everybody knows them by.

Gabriel alleged that the defendant "took great pains to conceal what she had done." He said Thomas told the record companies she hadn't done anything wrong and they wouldn't find any evidence that she did. But he said the computer hard drive in place at the time of the purported music thefts had been replaced when Thomas turned it over to the plaintiffs' investigator.

Toder told jurors his client replaced the hard drive before she got her first notice of alleged illegal downloading. She wasn't trying to hide anything.

The defense attorney said his client doesn't know what happened "out there in cyberland." Toder adamantly argued that an individual can't be identified solely by means of an IP address -- a number assigned to a subscriber connected to an Internet Service Provider.

Toder talked about "human beings." The plaintiffs talked about addresses linked to a computer that is linked to the defendant.

Toder told jurors nothing ties Thomas to music pirating. He said someone else could have "hijacked" the identification linking his client to the pirated music.

Perhaps with tongue in cheek, Toder suggested a "computer party" could have been held at her residence with several computers being used by different people. Someone could have been outside her window with a laptop, he said.

Toder's point was that it's not his problem to prove what happened. The plaintiffs have the burden to prove that Thomas illegally distributed copyrighted music.

Toder said he plans to call only one witness -- his client, who is expected to testify today.

Jennifer Pariser, head of litigation and anti-piracy for Sony BMG Music Entertainment and Arista Records, said music piracy is a tremendous problem and has caused billions of dollars of harm to her industry. She said RIAA is in court to combat the problem. "If we don't, we won't have a business anymore," she said.

Her company is only half the size it was when she joined it in 2000, Pariser said. She's seen a foreign division fold and hundreds of people have lost jobs.

"If they take [the music] without compensation, it kills the companies," Pariser said.

Gabriel said Thomas has a far-ranging eclectic taste in music and had more than 60 artists in her KaZaA share folder.

RIAA is suing Thomas over 25 songs.

"I never downloaded anything," Thomas told reporters outside of the courthouse during lunch. "I have CDs of everything I listen to."

Pariser testified about the songs that a company working for the recording industry found being shared over the Internet by the username "tereastarr@KaZaA" on Feb. 21, 2005.

Pariser said the plaintiffs are looking for jury awards allowed by copyright law ranging from $750 to $150,000 per song.

The plaintiffs' second and third witnesses, Mark Weaver of Safenet Inc. and David Edgar, an Internet security manager for Charter Communications, testified on the steps they used to track the Feb. 21, 2005, file sharing to the IP address they say was registered to Thomas.

Doug Jacobson, an Iowa State University professor and computer security expert, said that in his opinion the distributed pirated music came from Thomas' computer.

The trial is being watched closely by many interested in the issue of downloading and sharing of Internet files.

"A lot is at stake at this trial," said Josh Richard of Duluth. "It comes down to what people see as their definition of freedom. Each side has sound arguments. We'll see how it plays out."

Megan Carney came from the Twin Cities to watch the trial. The information technology worker said the techniques that RIAA uses to identify people it claims are downloading and sharing copyrighted material are not well known.

"I'm interested in seeing how that stands up in court as evidence," she said.

The jury includes a high school English teacher from Kanabec County who has a master's degree and is a musician. He wore his hair over his ears and a black T-shirt with white lettering that read: "Got Democracy?"

The man said he has read a lot about the issue of music pirating in Rolling Stone magazine. He said his students also like to write about the issue. "It's a good, controversial topic for students to write about," he said while being questioned as a prospective juror by Davis.

The teacher said most of his students probably sided with those who download music. "I know it's a very debatable topic with lots of issues," the juror said. He said his view goes back and forth, but he could keep an open mind and follow the law that the judge said must be followed.

-----

To see more of the Duluth News-Tribune, or to subscribe to the newspaper, go to http://www.DuluthSuperior.com.

Copyright (c) 2007, Duluth News-Tribune, Minn.

Distributed by McClatchy-Tribune Information Services.

For reprints, email tmsreprints@permissionsgroup.com, call 800-374-7985 or 847-635-6550, send a fax to 847-635-6968, or write to The Permissions Group Inc., 1247 Milwaukee Ave., Suite 303, Glenview, IL 60025, USA.

NYSE:BBY, NYSE:WMT, NASDAQ-NMS:SFNT, NASDAQ-NMS:CHTR,