"To many on the Internet, Jammie Thomas, a 30-year-old mother of two who makes $36,000 a year, is the perfect poster child for music industry abuses. Slapped with a $222,000 fine for illegally distributing music online, she contrasts sharply with the image of greedy record executives and heartless lawyers. Convicted of sharing just 24 songs, although more than 1,000 were discovered on her hard drive, she defies the image of file-sharers as wealthy college kids who would rather steal than buy."
"In the aftermath of the verdict, some spin-control experts have questioned the wisdom of pursuing such a sympathetic character into court, given all the negative publicity the mammoth verdict has engendered. The verdict might create "a long-lasting image" of the RIAA, said Jonathan Bernstein, head of a Los Angeles-based crisis-management firm. "On the Internet, it's simple to create martyrdom," he said. "It can be very harmful to a company's reputation."
The jury did not find Thomas so sympathetic, however. In press interviews after the trial, jurors said they found her defense incredible and "wanted to send a message that you don't do this, that you have been warned."
According to Michael Hegg, a 38-year-old juror from Duluth, Minnesota, the jurors agreed immediately that Thomas was guilty of copyright infringement. There was deep disagreement about the size of the verdict, however. Two jurors wanted to fine her the statutory limit of $150,000 per infringement, while one juror wanted to use the minimum fine of $750. The ultimate judgment of $9,250 for each of 24 infringing acts was a compromise, Hegg said.
On Monday, Thomas and her lawyer announced they would appeal the decision, focusing on the judge's instruction that the jury should find Thomas liable if they found that she had merely "made available" the songs. Under this instruction, the record companies didn't have to prove that other users actually downloaded music from Thomas.
Question Ripe for Appeal
The "making available" question is a "question that is ripe for appeal," Eric Goldman, director of the High Tech Law Institute at Santa Clara University, said in a telephone interview. U.S. copyright law does not use the term "making available" but only talks about a right to "exclusive distribution." Goldman said there are good arguments on both sides. "It's an important question that hasn't been addressed squarely."
The jury seemed to feel that the evidence against Thomas was so damning that there was no question of her guilt. Hegg said the jury would still have convicted Thomas even under a stricter standard of proof. "It would have been a lot harder to make the decision," he said. "Yes, we would have reached the same result."
If the Appeals Court agrees, it might not even reach the "making available" issue. "If I were an appeals judge, I would send it back," Goldman said, "but a court could say, 'We don't think it will make a difference.'"
Regardless of the appeal's outcome, the jury's intent to "send a message" might already be backfiring. The New York Times reported Wednesday that a nascent group called Students for Free Culture has been picking up steam in light of publicity around RIAA lawsuits.
Cory Doctorow, an outspoken opponent of recording industry tactics, told the Times that the RIAA is not "scaring students away from file-sharing, but scaring them into political consciousness.""
Source: Yahoo! News
C|Net Newsblog: RIAA's $222,000 defendant asks for a new trial - October 15, 2007