Media Wonk

Rope-a-doping RIAA? - October 10, 2007

Maybe the defense's non-defense in the Jammie Thomas case was just a rope-a-dope maneuver: a strategy intended to lose the case on its merits so it could be appealed on the law.

I kid, but you could almost believe it, especially after reading the quotes of the one juror to have gone public so far. In an interview with Wired's Threat Level blog, juror Michael Hegg (a steelworker who said he doesn't use the Internet) claims it took the panel all of five minutes to conclude Thomas was guilty of copyright infringement. The balance of the five hours of deliberation was spent haggling over how large an award to give the plaintiff record companies.

"She lied. There was no defense, her defense sucked," he said. "I think she thought a jury from Duluth would be naïve. We're not that stupid up here. I don't know what the fuck she was thinking, to tell you the truth."

The action now moves to the Court of Appeals, where the facts in the case will give way to the legal question of  whether "making [a work] available" on the Internet is the same thing as a "distribution.," as the judge in the case indicated in his instructions to the jury.

Defense attorneys for Thomas say the judges equating of the two will be the basis of her appeal.

Since nearly all of the suits brought against individuals by the RIAA--as well as most of those brought against service providers like Napster--rely on the "making available" argument, the outcome of the appeal is likely to be more significant than the Thomas's guilt or innocence. 

As Fred von Lohmann of EFF pointed out yesterday, the same question is at issue in Elektra v. Barker, which was heard by the U.S. District Court in New York in January, but is still pending. The briefs in that case provide a good overview of the issue.

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