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World's dumbest file-sharer guilty for third time

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Jammie Thomas-Rasset, who was found guilty by a jury of her peers and fined for file-sharing in 2007, has again been found guilty and fined for file-sharing. Despite the presence of celebrity legal academic and poker lobbyist Charlie Nesson, the re-re-run was unsuccessful. This was the third trial for the same offences; the fine has been increased, and her lawyers plan to ... appeal again.

Thomas (her name at the time of the first trial) became the first defendant to take RIAA members' file-sharing accusations to court. Unlike thousands of others, she rejected an out-of-court settlement, preferring to argue her innocence in front of a Minnesota jury in 2007. The jury found her list of excuses implausible, and the Duluth judge imposed a fine of £220,000. Thomas was sharing 24 songs on Kazaa, and the statutory fine can be imposed anywhere between $750 and $30,000 per infringement, with a $150,000 ceiling for wilful violation, aimed at wilful infringers. The court placed the fine somewhere in the middle, at $9,250 per song.

The music and movie industry argues that P2P software turns everyone into a potential industrial scale pirate: turning a home PC into a server farm capable of delivering infringing material to hundreds of concurrent users. But the law doesn't require the plaintiff to show evidence of such infringement - they merely need to show evidence of sharing, not quantify downloads. This became relevant as Thomas pushed for a retrial.

An appeals court found one of the instructions to the jury in the original had prejudiced her chances of a fair trial. The judge had implied that making something available was proof of download - it wasn't.

So a second trial took place last year, but this reaffirmed her guilt, and merely increased her fine eightfold to $220,000, or an eye-watering $1.92m. This embarrassed even the plaintiffs - and was appealed. The appeal reduced damages to $54,000 per offence - three times the minimum. Judge Michael Davis implied anything higher was unreasonable. Thomas-Rasset continued to maintain her innocence, and pushed for a third trial.

By this stage the major labels had long since abandoned the pursuit of individual file-sharers, merely letting the cases in motion work their way through the courts. (It's the individual major labels who sue the file-sharers. The RIAA is a trade group). The lawsuits hadn't netted them any money, hadn't reduced infringement, and the RIAA and its major members had become a lightning rod for popular discontent. The plaintiffs made a settlement offer of $25,000 which would go to charity - which Thomas-Rasset rejected.

"It is Groundhog Day," Judge Davis said as he opened the trial this week. Nesson had filed a last-minute friend of the court brief on Friday - rejected by the Judge - and showed up uninvited for the jury selection. The court then reran the previous two trials. The jury was invited to estimate the damages based on the market value of the songs - a total of $24. This was comprehensively rejected; the fines are set at $1.5m.

So where does the fight leave everyone?

Copyright and the statutory damages framework are unchanged - as they were after the Tenenbaum verdict, in which Nesson had vowed to "put the record industry on trial." Thomas-Rasset maintains her innocent in defiance of all reason - part of the reason for the original guilty verdict three years ago was that her peers felt she was insulting their intelligence, and wasting public money by bringing such a weak case to court. The plaintiffs will never see the damages, and don't want it anyway. The defendant's lawyers have been working pro bono, so there's an opportunity cost for them, too.

Nobody has become richer, or wiser. And Thomas-Rasset insists it must drag on. ®

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