The U. S. District Court for the Southern District of New York ruled against LimeWire and its parent company, Lime Group, finding them liable for inducement of copyright infringement based on the use of their service by subscribers.

U.S. District Judge Kimba Wood issued the 59-page decision Wednesday, siding with the 13 record companies that sued Lime Wire LLC and founder and Chairman Mark Gorton through the RIAA claiming copyright infringement and unfair competition.lime_220x147

In finding the company liable, Wood opined that LimeWire had optimized its application to “ensure that users can download digital recordings, the majority of which are protected by copyright,” and that the company actively “assists users in committing infringement.”  Wood also found that the defendants knew their technology was being used to download copyrighted tunes and took no “meaningful steps” to prevent the infringement. In addition, Lime Wire marketed its software to people “predisposed to committing infringement” and assisted those people, the judge ruled.

Major labels, as represented by the RIAA, were predictably thrilled with the outcome.  “This definitive ruling is an extraordinary victory for the entire creative community.  The court made clear that LimeWire was liable for inducing widespread copyright theft,” RIAA chairman and CEO Mitch Bainwol relayed.

Lime Wire Chief Executive George Searle issued a statement saying the company “strongly opposed the court’s recent decision.”  The statement continued:

“Lime Wire remains committed to developing innovative products and services for the end-user and to working with the entire music industry, including the major labels, to achieve this mission,” Searle said.

Searle did not say whether Limewire would appeal the ruling.

The Recording Industry Association of America proclaimed the decision was “an important milestone” in the battle against online copyright infringement, because Gorton was found personally liable, in addition to the company of which mitch-bainwol-riaa he was the chairman.  Personal liability against a corporate director is rare.

“The court has sent a clear signal to those who think they can devise and profit from a piracy scheme that will escape accountability,” Mitch Bainwol, chairman and chief executive of the RIAA, said in a statement.

LimeWire, launched in 2000, is one of the largest remaining commercial peer-to-peer services left on the Web. The company claims to have more than 50 million monthly users.  The company has managed to defend itself against major label legal action for years.

In issuing her opinion, Wood relied heavily on the 2005 Grokster ruling, in which the Supreme Court said that a file-sharing service was liable when customers were induced to use it for swapping songs and movies illegally.  The test established by the Supreme Court in MGM v. Grokster for provider liability is whether the company actively induced users to commit infringing activities.  While LimeWire argued that it did not, Judge Wood noted that the company actively  “markets LimeWire to users predisposed to committing infringement.”

The record companies that sued Lime Wire included Arista, Atlantic, BMG Music, Capital, Elektra, Interscope, LaFace, Motown, Priority, Sony BMG, UMG, Virgin and Warner Brothers.

New York Times technology columnist and Emmy-award winning CBS news correspondent David Pogue is featured in this YouTube video singing a fun diddy about the digital wave of media on the Internet, ending with a humorous take on the RIAA and its wave of litigation against college students nationwide.  Enjoy



RIAA On August 16, 2007, Doe No. 28 in the RIAA’s action captioned Virgin Records America, Inc. et al. v. Does 1-33 filed a motion to squash the subpoena issued to the University of Tennessee on the grounds that, one, it was unreasonable on its face and, two, it violates his rights under the Family Educational Rights and Privacy Act (“FERPA”).  The memorandum in support of this motion can be read Pike & Fisher’s website, Internet Law & Regulation.  This was a case of first impression, i.e., this is the first time a court has issued a ruling based on this type of facts.

The Subpoena is Unreasonable on its Face

Does No. 28’s primary argument in support of the proposition that the subpoena is unreasonable on its face was that plaintiffs could identify the name of the alleged infringer of the copyrighted sound recordings by being provided with the name and current campus address of Doe No. 28 and, therefore, does not need his permanent address, telephone numbers, e-mail address, and MAC Address, all of which would subject Doe No. 28 and his parents to unreasonable phone calls and mail. 

Plaintiffs countered that this information was necessary in order to uniquely identify Doe No. 28 to the exclusion of other defendants.

The court based its decision in this regard on Rule 45 of the Federal Rules of Civil Procedure, which state that a subpoena may be modified if it poses an “undue burden” on the defendant.  The Court held that providing plaintiffs with the requested information was not unduly burdensome since college students are transient by nature and move frequently during their tenure at college, thus making it difficult for plaintiffs to locate Doe No. 28 if only a name and campus address is provided.

The Subpoena violates the Family Educational Rights & Privacy Act

In examining this issue, the Court looked at both FERPA and at the University of Tennessee’s FERPA policy, which is posted online here.   The Court found the following:

FERPA broadly defines “educational records” as “those records, files, documents, and other materials which (i) contain information directly related to a student; and (ii) are maintained by an educational agency or institution.”  United States v. Miami University, 294 F.3d 797, 812 (6th Cir. 2002) (citing 20 U.S.C. § 1232g(a)(4)(A)).  Directory information is defined in the statute as “the student’s name, address, telephone listing, date and place of birth…” 20 U.S.C. § 1232g(a)(5)(A).  According to the University’s FERPA policy,  directory information is “information not generally considered  harmful or an invasion of privacy if disclosed.  The University of Tennessee considers the following information to be ‘Directory Information’: Name, semester and permanent address, e-mail address, telephone listing, date and place of birth.”  Office of the University Registrar, What You Should Know About FERPA.  Furthermore, the University’s policy states that it is “not allowed to share  information (other than ‘Directory Information’) without a student’s written consent” and that a student may limit release of directory information by submitting a request for directory exclusion to the University’s registrar.

After summarizing its analysis of FERPA and UT’s policy, the Court surmised that “most of the information [sought by the subpoena] falls within the category of Directory Information under FERPA,” with the exception of the MAC address, which identifies the device used by Doe No. 28 to connect to the Internet, and therefore is not protect by FERPA.  With regard to the MAC address, the Court found that it was neither and “educational” record nor “personally identifiable information,” and therefore was not protected by the act.

One note of interest in the Court’s order was the revelation that Doe No. 28 had failed to argue that he had issued a “limiting request” as allowed in the University of Tennessee’s FERPA policy.  The Court also made a particular note that the University’s policy did not mention MAC addresses.  This seems to hint that the Court may have issued a slightly different opinion if these factors had been present, leading to the conclusion that students may want to write letters to their respective schools specifically requesting that no “directory information” be provided to third parties and asking that their schools not release MAC addresses as part of directory information and/or include such information in their FERPA policies.

The Court’s full opinion is available online at the Knoxville News Sentinel.

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There is a very well written blog entry by McQuinn on the blog MCQESQ entitled The Future of the Music Industry.  You can read the article in its entirety here, and it is well worth the effort.  Crossroads copy2It attempts with acute perception and finesse to dispel the rampant rumors that the music industry conglomerates are are a dying breed of dinosaurs.  The essence of the authors opinion are as follows:

It’s popular to bash the labels (especially the majors) and to celebrate their apparently imminent demise.  For me, there is no pleasure in seeing people get laid off and large companies go bankrupt in any industry.  But I also dispute the idea that labels (in general) have been a bad thing for music. . . .  Without record labels recording and promoting music, we would never have heard of most of the artists that we now recognize as music legends. 

I wrote similar sentiments back in 2000 when Courtney Love bashed the very industry which gave her soap box any credibility at all.  In the article by Mcquinn, the author is not attempting to defend all record labels nor the actions of all record industry professionals, but successfully points out that without the music industry moguls’ promotion and even love of music, there would be no “superstars” for us to download!  There would only be garage bands. Ugh! (no disrespect to any particular garage band intended, but we must realize there is a reason why some bands “make it” and some don’t).

I tell my clients that they should consider the major label to be not only their marketing arm, but a bank!  The fact is, a major label will customarily spends upward to 3–5 million dollars to record, advertise, market and promote ONE act.  Granted, much of that investment is recoupable from the artists’ royalties (meaning that the artist must pay it back the money back of earned royalaties – the artist doesn’t pay it back if the label cans them), however, it still garners the artist a very valuable commodity:  name recognition.  How many superstars can you name off the top of your head?  Madonna.  McCartney.  Garth.  Prince.  Dolly.  The Eagles.  Elvis.  Elton John.  I may be dating myself a bit here, but you get the idea – without the record labels, these artists would not have what they have today – the ability to annouce a concert date and sell it out a 200,000 seat venue within hours, for example.  Is it totally fair to denounce the industry that helped these artists become the superstars that they are?  Is it fair to expect that industry to take no profits from the product we so much enjoy? 

So, what about the rumor that the major labels are heading for an imminent demise?  A recent article in the September 2007 issue of Country Aircheck entitled Music Sales at a Crossroads – Labels Face the CD’s Swan Song gets a little more specific.  The article cites RIAA-compiled data that illustrates that the gross sales of the CD format have diminished by almost one third since 1999, when it was over 14 billion, to 9 billion last year.  In the country genre, where the CD format is still a popular one, total sales through September 2007 were 31 million units, whereas the genre tallied a total of 75 million units last year.  Overall, total sales of CD for all genres is down 20% over the same time last year, a very significant drop.  While I do not believe the music industry is going away, I do believe that the CD format will ultimately be gone.  Tower’s demise was a forecast of this inevitability.

In the past, loss in profits from one format meant a rise in profits from another format, as, for example, when the CD format replaced records and cassettes, or when cassettes replaced 8–tracks (for those of you old enough to remember tape-based product).  But in today’s market, the sell of digital downloads is not generating enough profilt to offset the loss of profits from the demise of CDs.  Why, you might ask?  I think all of us know that the reason for this is that the majority of songs being consumed today are either ripped from somone else’s CD or iPod, or they are obtained over the P2P networks.  Those methods of obtaining music do not profit the artist, the songwriter, or, of course, the record labels.

McQuinn’s article points out that the label must find alternative methods of making profits, and mentions touring, merchandising and expanded licensing.  This is not a new concept as, in fact, I have already started seeing contracts from labels taking an interest in more of the revenue streams than they have in the past.  As Joel Galante, chairman of Sony BMG Nashville, points out in the Country Aircheck article, “you can’t have the label engine driving everything and being compensated the way it was before.  We are taking most of the risk and there are a lot of revenue streams making money.”  The trend in the music industry is for more independent-type deals with the artist in which the artist actually becomes a partner with the label.  I also believe that we will see a resurgence of the “single” concept and/or the “mini-album” and a shift away from the 10–12 song album idea.

The music industry will also find reprive in the form of direct-to-retail marketing.  The Eagles release through Wal-Mart is only one in a long chain of well-known artist who have found their own path to the retail market — Prince, McCartney, Radiohead, Nine Inch Nails — circumventing the Big Four:  Song BMG, Warner, UMG and EMI.  These artists are certainly blazing new trails and have been successful.  The major labels, however, still maintain that they have the edge when it comes to developing and promoting artists and/or distributing their product.  In view of the success of the aforementioned artists, however, this point is certainly not a given anymore. 

We are, as I said in earlier articles and blogs, facing a new paradigm in the music industry.   The major labels have yet, in my opinion, found the holy grail of digital downloads.  What can the labels do to move into the 21st century?  The answer cannot be yielding 90% of the market to iTunes.  Labels have to take the lead of EMI and UMG and offer their music without any digital rights management — after all, the music on CDs is DRM-free!  They must abandon the misplaced trust in “subscription-based” services which require monthly fees.  As I have maintained in my ten years of analyzing and thinking about this issue, I believe that they must do what all good entrepreneurs have done:  find a price point that will make it foolish for people to download music through a P2P and risk litigation.  Sell the product at a reaonsable price.  Most people, myself included, want to pay for their music — they just don’t want to overpay for their music.  The first configuration of label and online distributor that finds that right combination of value and profit — i.e. the right price point — will be the significant winner in my opinion.


Imagine that you have a wireless network router in your home which you set up yourself.  Also imagine that, because you are not computCourt3er saavy, you failed to establish a password for that router, or established a “weak” password consisting of only numbers, or your birthdate, or something of that nature.  Consider now the proximity of homes, roads or pathways within around 100 feet of your home.  How many people would have access to your unsecured wireless network?  Your wireless router has an IP Address.  Regardless of the the number of nodes using that IP Address, it appears the same to others in cyberspace.  It does not matter if it your own computer or someone else with a laptop that has jumped onto your wireless network.  Now, using the precedent established in the decision against Jammie Thomas, you could be liable for any copyright infringement committed by a scavenger utilizing your wireless network.  Does that seem fair?

Something like this scenario is what Jammie Thomas still maintains happened to her.  The latest news in this case is that she is appealing the $222,000 verdict against her.  She still claims that her computer was spoofed, which generally refers to various techniques of using falsified data to obtain entree, services and/or goods using a “middle man” to obscure identification.

In order to appeal to the 8th U.S. Circuit Court of Appeals, the court with jurisdiction in this matter, Thomas must establish some clear error in the district court’s finding of facts.  See Glover v. McDonnell Douglas Corp., 150 F.3d 908, 910 (8th Cir. 1998).   On the other hand, the RIAA can defeat the argument by showing that any trial errors committed were harmless and had very little effect on the jury’s verdict  See United States v. McCrady , 774 F.2d 868, 874 (8th Cir. 1985)

In this instance, Thomas’ primary argument will undoubtedly be that Jury Instruction No. 15 was not a correct statement of the law with regard to the Copyright Act, that the judge erred in submitting it to the jury, that the instruction significantly impacted the jury’s decision, and therefore there is reversible error in the instruction as provided.  Jury Instruction 15 read as follows:

The act of making copyrighted sound recordings available for electronic distribution on a peer-to-peer network, without license from the copyright owners, violates the copyright owners’ exclusive right of distribution, regardless of whether actual distribution has been shown.

Thomas argues that this instruction made it too easy for the jurors to find liability if they found she made her Kazaa shared file folder available to others, regardless of whether anyone downloadied any of the music from the public folder.

For it’s part, the RIAA has argued this theory successfully in several cases prior to this one, including, for example, Electra v. BarkerThe essence of the argument is that Section 106(3) of the Copyright Act gives the copyright owner the exclusive right to distribute copies of its work to the public and, while “distribute” is not defined, it is the equivalent of “publish” which is defined in the Copyright Act as follows:  “the offerring to distribute copies or phonorecords to a group of persons for the purpose of further distribution . . . constitutes publication.”  It is not an unsolid argument.

The question quickly becomes whether it is necessary that a tangible copy actually be distributed, or whether simply creating the possibility of that distribution is sufficient.  One of the grandfathers of copyright law, Nimmer on Copyright, states that the “sine qua non of publication should be the acquisition by members of the public of a possessory interest in tangible copies of the work in question.”   This seems to suggest a conclusion to the contrary.

That definition, in fact, seems to suggest that a tangible copy of the work must be acquired before publication can occur.  A new line of cases, however, are interpreting this section differently when it is applied to making digital copies available for download on the Internet, including two U.S> Circuit Court cases, one in the 4th Circuit and one in the 9th Circuit. 

The most apropros of these two is A & M v. Napster, 239 F.3d 1004 (9th Cir. 2001), which found that “Napster userse who upload file names to the search index for others to copy violate plaintiffs’ distribution rights.” Id. at 104.

Perhaps even more supportive of the “making available” theory is the international WIPO treaties to which the United States is a siganatory.  Article 6 of the WIPO Copyright Treaty states that the “authors of literary and artistic works shall enjoy the exclusive right of authorizing the making available to the public of the original and copies of their works through sale or other transfer of ownership.  Article 8 is even more specific, stating that “authors of literary and artistic works shall enjoy the exclusive rights of authorizing any communication to the public of their works, by wire or wireless means, including the making available to the public of their works.”

Finally, the Register of Copyrights, Marybeth Peters, weighed in on the discussion in a letter to Rep. Howard L. Berman dated September 25, 2002.  Citing the Napster case, she opined that “making [a work] available for other users of a peer to peer network to download . . . constitutes an infringement of the exclusive distribution right, as well as the reproduction right.”

So, as these citations illustrate, the theorectical concept of “making available” as copyright infringement is not merely the construct of the RIAA lawyers’ imagination, as is concluded by The Recording Industry v. The People in Argument Over “Making Available” in Virgin v. Thomas.   While the 9th Circuit case was, indeed, a brainchild of the RIAA, the concept of “making available” has its origns in the international community as reflected in the WIPO treaties.

It seems, therefore, that Thomas’ appeal will not be an easy battle to win.  At the very least, the Judge’s decision to include the jury instruction was based on some pretty solid and well argued prior case law and supporting opinions.  In order to prevail, Thomas’ attorney will have to convince the Eighth Circuit that merely making the files available does not constitute publication. 

One case which might offer some support this theory is the 8th Circuit’s opinion in Nucor Corp. v. Tennessee Forging Steel Service, Inc., 476 F.2d 386.  That opinion cites the Nimmer quote above in ruling that distributing brochures and photographs of architecture did not constitute general publication of the detailed plans.  This case, however, involves common law copyright and is factually distinquishable from the Thomas fact pattern.

Thomas will also, no doubt, have tremendous support from various third parties, as evidenced by the Electronic Frontier Foundation’s announcement on Monday that they will be filing a friend of the court brief in support of Thomas’ appeal.  A friend of the court brief is a procedure whereby an interested third party who are not a party to the litigation can file a document in support of a party’s position.

Wired’s THREAT LEVEL blog reports that one of EFF’s attorneys, Fred von Lohmann, will hinge their arguments, at least in part, on the “tangible” requirement as set forth in Nimmer.  “Look into the Copyright Act — it narrowly defines distribution as distribution of a phonorecord or a copy. The definition says it has to be a physical object,” von Lohmann is quoted as saying.

Whether there will be enough to overturn the trial court on appeal is, of course, yet to be seen.  I will attempt to keep you posted on the appeal as it develops.

For a Mahoneyvery reasoned commetary on the potential impact of Virgin v. Thomas on other Internet activity, read John Mahoney’s article entitled Forget File Sharing: the Internet is on Trial at his blog, The Digital Edge.  Thanks for the insight John.

Mr. Mahoney correctly points out that in this age of wireless technologies and computer malware, many people are less in control of their devices than they may think.  The lines between computer actions and people’s intentions are more blurred than many realize.  This certainly has a great deal of impact on what we lawyers call the mens rea, i.e., the guilty mind.  If a jury wants to hold someone liable for an action, the law generally requires that their be mens rea, particularly in the criminal arena.  If that concept is applied to the copyright infringement that occurred in this case, the plaintiffs may have established the likely presence of a “mind,” but they have not established the presence of Ms. Thomas’ mind.

To be more precise, the plaintiffs were unable to establish the identity of the actual person, i.e., the guilty mind, if you will, behind the acts of infringement.  Mahoney correctly points out that the only thing the plaintiffs succesfully proved was that the infringing activity occurred through the use of a specific hardware address associated with Ms. Thomas’ internet account, using a username that was consistent with other online usernames associated with her in the past.  To use another legal term, the evidence was, at best, circumstantial.

This is more than just “smoke and mirrors,” a phrase plaintiffs’ counsel, Richard Gabriel, used in his closing to describe the defendant’s legal strategy.  Is is an important component in any copyright infringement action to establish that the defendant, in this case Ms. Thomas, actually committed the acts of infringement.  It is not enough to establish that the acts of infringement were committed using a computer owned by Ms. Thomas at a particular internet protocol.

We all await the verdict of the twelve.  It is my hope that the jurors will see the subtleties of this distinction between an actual person and their online “identity.”


Duluth_courtJudge Michael Davis is moving the case of Virgin Records, et al. v. Jammie Thomas (Case No. 06–cv-1497) along quickly, as the jury was impaneled at 9:30 and testimony began less than two hours later in the U.S. District Court for the District of Minnesota.  See my related blog entry True Test of RIAA’S Legal Theories as first case goes to trial.

The litigation is against Jammie Thomas, an administrator for nearby Indian reservation Mille Lacs Band of Ojibwe.  Ms. Thomas is accused of distributing over 1700 songs over the peer-to-peer agent, Kaaza.  After all the legal wrangling, however, only 25 copyrights are ultimately at issue in the litigation. 

Not to worry, however, if the RIAA prevails, its client record labels — Capitol Records, Sony BMG, Arista Records, Interscope Records, Warner Bros. Records and UMG Recordings (Virgin was dropped from the lawsuit after having difficulty proving ownership) — would stand to gain $150,000 per copyright, or $3,750,000 in damages.

RIAA’s legal “Scheme Team” consists of Richard Gabriel and Tim Reynolds of Holme Roberts & Owen as well as Matt Oppenheim of The Oppenheim Group.

Eric Bangeman reported that, in his opening statement, Gabriel attempted to personalize the international conglomerates he represents by stating that they are made up of “real people” just fighting for their livelihood.

WIRED magazine reported that Thomas’ attorney, Brian Toder, told jurors in his opening statement that the plaintiffs’ case was not supportable.  “The plaintiffs don’t have the evidence that she downloaded anything,” he said, “. . . the best that they can come up with is somebody out there in cyberland . . . offered on Kazaa some copyrighted material.”

In their case in chief, the plaintiffs presented Sony BMG’s anti-piracy chief, Jennifer Pariser, as one of their lead witnesses.  She testified as to the resources it takes for a record label to find, develop, produce and promote talent, which is the company’s bread and butter.  “If (people who download music) . . . without compensation, it kills the company,” she testified.

As part of her testimony, snipets of Don’t Stop Believing were played, one from the copyright work and one from the downloaded product.  It is reported that they sounded identical.  Is anyone surprised? 

Then Gabriel asked Pariser if it was okay if a consumer makes just one copy of a track they’ve legally purchased. She said no — that’s “a nice way of saying, ‘steals just one copy.'”  Apparently, Ms. Gabriel is not familiar with the copyright doctrine of “fair use,” which of course permits consumers to make a copy of part or all of a copyrighted work for their own personal use as a backup, even where the copyright holder has not given permission or objects to such a use of the work. For example, private, non-commercial home taping of television programs with a VCR to permit later viewing is fair use. (Sony Corporation of America v. Universal City Studios, 464 U.S. 417 (1984, S.C.). This zero-tolerance, take-no-prisoners attitude fostered by the RIAA methodolgy will ultimately to their downfall.  When faced with such erroneous, extremist opinions, reason and logic almost always prevail.

More industry insiders, including ex-RIAA executive, Cary Sherman and the investigator from SafeNet, is expected throughout the week. 

Ownership of the copyrighted works is expected to be another central theme in the defense of the action.  The documents disclosed by plaintiffs in support of ownership did not clearly establish the rights of the plaintiffs, according to some reports, and Judge Davis ruled against the plaintiffs’ request to introduce additional evidence of ownership.

Another very critical issue in this case is the credibility of the music industry’s expert testimony.  Can it prove that Ms. Thomas is the owner of the IP address in question and, if so, can it prove that she was the one that used the IP address to illicitly download the copyrighted songs.  The answer to this issue of credibility will set a incredibly powerful precedent for future cases.

One of the RIAA’s experts, Dr. Douglas W. Jacobson, gave deposition testimony in UMG v. Lindor.  He stated in that depostion that his process “has not been vetted through the scientific community.”  Page 43, Lines 7–8.  This testimony is related to the RIAA experts’ methodology of first identifing an IP address of an alleged infringer, and then soliciting the identity of the owner from their Internet Service Provider.  If the RIAA’s methodology gets clouded in this trial, it will not be able to sustain any of the tens of thousands of lawsuits currently being pursued.

For further reading, including first hand accounts, see:

WIRED Blog, Ars Technica, Diluth News Tribune


Although the Recording Industry Association of America started going after individual litigants in 2004, no case has yet to go to trial in front of a judge or jury.  This is about to change.

Since 2004, tens of thousands of claims have been filed by the RIAA.  By now, everyone understands the strategy.  The RIAA’s investigators determine that a certain IP address has been used to download and/or upload musical compositions via Kaaza or a similar P2P network.  A Federal lawsuit is then filed under a “John Doe” in order to subpoena the records of the Internet service provider, which is easily determined by the IP address.  Since the ISP has immunity from suit, it usually complies willinginly.  Of course, in some case, the ISP is a college or university and, in some case, the privacy rights of the students have trumped the rights of RIAA and the subpoenas have been quashed, but that’s a different story and I’m getting off subject. 

Once the user’s name is subpoenaed from the ISP, the RIAA begins the process of intimidation.  Letters are forwarded to the various parties stating that a settlement can be reached.  The first offer to the offending party is usually somewhere in the neighborhood of $3000 to $5000 dollars, depending upon the perceived severity of the infringement.  This number is, coincidentally, about what a typical retainer would cost for a good lawyer.  Although I’m not exactly sure of the exact percentage, the greatest percentage of these claims get settled with the individuals and their families.

Now, to say this methodology is controversial is an understatement.  The RIAA is relentless in its pursuit of these infringers.  Rather than teaching a valuable lesson, the recording industry’s methods have aliented and offended the great majority of Americans.  While I agree that songwriters, artists and distributors of musical product are entitled to their rightful compensation for the use of their copyrights, I do not agree with the aggregious methods of the RIAA.

Now, If all goes well, next Thesday, October 2, 2007, the case of Virgin Records, et al. v. Jammie Thomas, Case No. 06–cv-1497, will go to trial in the U.S. District Court for the District of Minnesota.   For the first time, I have a strong suspicions that the methodologies of the RIAA, not so much the infringement of the defendant, will be what stand trial.

Ms. Thomas, like so many other victims of the RIAA dragnet, steadfastly maintains that she has never used Kaaza or any other P2P network.  Of course, those of us who know a smidgen or two about computers know that there can be, quite literally, hundreds of devices behind a single IP address.  The RIAA’s lawyers will have a very difficult time, in my opinion, connecting the dots from the IP address “maintained” by Ms. Thomas, and the actual infringing computer.

One other issue that will arise in this case in particular, and likely in future cases as well, is the issue of ownership of the copyrights.  Since literally thousands of songs are involved, it will be a monumental task to trace the chain of ownership to the plaintiffs in order to show standing.  I don’t envy the Plaintiffs’ lawyers.  If the plaitniffs cannot prove ownership, it might be posssible for Thomas to be awarded attorneys fees.

It is not, again in my humble opinion, in the best interest of the RIAA for this case to go to trial.  If they go to trial and lose on some of these issues, the precedential effect would be tremendously devasting for their cause.  I would be surprised to see the case in the courtroom next week, but I’ll certiainly keep you posted.

For further reading:

Ars technica; Recording Industry vs The People; Slashdot


The Recording Industry vs. the People has a very insightful summary of the legal process the RIAA uses to bring suit against people who they allege are downloading music illegally.  To view it, click this link:  Litigation Summary.

An order issued July 16, 2007 in the United States District Court for the Western District of Oklahoma, Capital Records, Inc. et al. v. Debbie Foster et al., Civ Case No. 04-1569-W, the judge ordered Capital Records to pay Ms. Foster $68,685.23 for attorneys fees and court costs pursuant to Section 505 of the Copyright Act.  This is encouraging news for those you who are being pursued by the R.I.A.A. under blanket subpoenas.