For a few 99-cent songs more

The major record companies’ campaign against individual file-sharers hits a milestone Tuesday: for the first time since the lawsuits began four years ago, a case will actually go to trial.

The defendant is Jammie Thomas, a Native American single mother of two from central Minnesota. She is one of about 30,000 people who have either been sued by the majorlabels’ trade group, the Recording Industry Assn. of America, or agreedto settle in advance of a lawsuit. And no matter how Thomas’ case turns out in a federal courtroom in Duluth, the RIAA can’t win.

Like the other claims brought by the RIAA, the one against Thomas starts with a snapshot taken of the Kazaa file-sharing network by the trade group’s anti-piracy contractor, SafeNet. On the night of Feb. 21, 2005, SafeNet found a Kazaa user called “tereastarr” offering more than 1,700 songs for others to download, the suit alleges.

SafeNet then downloaded 26 tracks whose copyrights belonged to the major labels, and determined that the tracks came from an Internet address associated with Charter Communications Inc., a cable TV company that offers high-speed Internet service.

As the case progressed, the Internet address identified by SafeNet was matched by Charter to Thomas’ account. Representatives of the labels offered to settle thecase if Thomas agreed to pay $3,000 and stop infringing, but she insisted that she’d done nothing wrong. Thomas’ attorney, Brian N.Toder of Chestnut & Cambronne in Minneapolis, said the RIAA’s asking price went up as the two sides moved closer to trial.

Now, she faces a minimum of $19,500 in damages if the jury rules against her on all 26 songs, and a maximum of $3.9 million. If the jury finds that the infringements were willful, as the RIAA claims, Thomas may continue to owe the damages even if she declares bankruptcy. But Toder said such talk is pointless because his client doesn’t have the money to spare. “In the unlikely event they got a judgment, it would just be a piece of paper,” he said.

A critical piece of evidence is missing from the case, because Thomas had a new hard drive installed in her computer shortly after she received the first letter accusing her of infringement. Toder argues that his client didn’t intend to swap out her hard drive; she simply took her computer to the local Best Buy to be repaired, and when she picked it up her old drive was gone. The RIAA’s lawyers, not surprisingly, claim Thomas was trying to cover her tracks and escape liability.

If the jury sides with Thomas, it may persuade more of the RIAA’s targets to resist settlement offers and demand trials. That’s because the issues raised in Thomas’ pre-trial filings — that the record companies haven’t proved that they own the copyrights to the 26 songs, that Charter erred in matching the internet address to Thomas, and that even if the songs were in fact on Thomas’ computer, they hadn’t been downloaded illegally — are common among RIAA defendants.

The RIAA’s lawyers believe the evidence clearly shows that Thomas is the “tereastarr” who was using Kazaa that night in 2005. It’s the same unusual name that she uses elsewhere online, they argue. And if they win in Duluth, the case could help their cause by persuading similar defendants to settle. A win might also help the group fend off some challenges to its contractors’methods. Yet it wouldn’t quell other questions raised by the RIAA’s campaign but not applicable to Thomas. These include whether people are liable when, unbeknownst to them, someone uses their computer or broadband account to infringe.

And on a more fundamental level, an RIAA victory isn’t likely to ease the public’s cynicism about the industry’s tactics. There’s a widespread sense that the scales of justice are out of balance because of the potential formassive damages that federal copyright law provides. The civil penalty for illegal downloading ranges from $750 for each song copied to $150,000, if the infringement is willful. And it’s no defense to be unaware of the law or to have no intent to infringe. As a result, those accused of infringing have to choose between settling or mounting a costly defense, with the possible downside of financially crippling damages.

Of course, the RIAA’s lawyers don’t have to demand the maximum damages. Yet the less they demand, the more incentive they give other defendants to try their luck in court. So they’re driven to seek a sizable judgment, potentially raising the public’s sympathy for defendants such as Thomas.

For all the public-relations consequences, the major labels have stuck with the campaign because they think it has some deterrent effect. Millions of people may still be sharing billions of songs online, yet in the RIAA’s view, the situation would be exponentially worse if it weren’t trying to impose some consequences on illegal downloaders. With some of these cases coming to trial, it’s possible that the public will begin to see file-sharers as scofflaws, not victims. But when the penalty for sharing a 99-cent song is $750 to $150,000, it’s easy to see battles such as Thomas’ as a case of David taking on Goliath.

Jon Healey is a Times editorial writer; he runs the BitPlayer blog.

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