Posted by Ablang on 10/08/07 17:52

Woman to pay downloading award herself


By JOSHUA FREED, AP Business Writer Fri Oct 5, 7:40 PM ET

MINNEAPOLIS - Jammie Thomas makes $36,000 a year but says she's not
looking for a handout to pay a $222,000 judgment after a jury decided
she illegally shared music online.

"I'm not going to ask for financial help," she told The Associated
Press on Friday. 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 Thursday that Thomas willfully violated the copyright
on all 24. Their verdict was for damages of $9,250 per song, or
$222,000.

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 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 Friday 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 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 band,
lives on its land and works for the band.

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.

http://news.yahoo.com/s/ap/20071005/ap_on_hi_te/downloading_music

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