By Jesse Marx
By Chris Parker
By Jake Rossen
By Jesse Marx
By Michelle LeBow
By Alleen Brown
By Maggie LaMaack
By CP Staff
THE CASE LOOKED like a home run for the recording industry. The press couldn't resist the story, and soon the word was out: Tangle with the recording industry, and you could find yourself on the hook for nearly a quarter of a million dollars.
"That verdict sent a chill," says Jason Schultz, a law professor who works on copyright issues. "Whatever it did to people's actual downloading habits, it made settling look much more attractive than actually challenging the industry in court."
The case also set an important legal precedent that would make future cases even easier for the record industry: From here on out, they wouldn't have to prove anyone downloaded the songs someone was sharing—more or less impossible with the new generation of peer-to-peer networks—just that it was possible someone could have.
But the victory wouldn't last.
In September 2008, Judge Davis changed his mind about the "making available" argument and threw the verdict out, on the grounds that the instructions he had given to the jury were no good. If the record companies wanted anything from Thomas-Rasset, they were going to have to sue her all over again.
Meanwhile, the RIAA was starting to wonder whether suing music fans was really the best strategy.
"Whatever legal victory they were scoring, the way it played in public looked really terrible," says Rebecca Jeschke of the Electronic Frontier Foundation. "The record industry just looked like bullies."
It wasn't just the Thomas-Rasset case. By this time the RIAA had sent letters to more than 30,000 people. Some of them were 12-year-old girls. Some of them were paralyzed stroke victims on disability. Some of them were even dead.
By picking on Davids, the record companies were casting themselves as Goliath.
"It was a public relations disaster," Jeschke says.
In December of 2008, the RIAA announced it would no longer sue individual up-loaders. Instead, the association vowed to work with colleges and internet providers to create a system of warnings and punishments.
But there was still the matter of the Thomas-Rasset case. In May 2009, the RIAA met Thomas-Rasset for a court-ordered settlement conference, but neither side was willing to back down. The case would have to be tried all over again.
This was too much for Thomas-Rasset's lawyer, Brian Toder. After paying the initial retainer fee, Toder's client hadn't gotten close to keeping up with her legal bills. She was making tiny payments to Toder when she was able, but by this time his bill was up to $130,000. Now his client was once again stubbornly refusing to settle, and there was going to be a whole new trial. It seemed to him that this case could go on forever.
"The whole thing was just unsustainable," Toder says. "It couldn't go on."
FORTUNATELY FOR THOMAS-RASSET an unlikely pair of legal rescuers presented themselves just in the nick of time.
Joe Sibley and Kiwi Camara had launched their practice in Houston only a few months before, and they made a strange pair. Sibley's a former Army Ranger from east Texas; Camara is a child prodigy from Hawaii who finished college at age 16 before becoming the youngest person ever to graduate from Harvard Law School at age 19.
It was their first day at Harvard Law when Camara and Sibley met, and despite the differences in their backgrounds, they had one thing in common: On a campus with a reputation for a liberal bent, the two were among the only vocal conservatives.
Both did well at Harvard, but Camara's academic career was marred by an incident that made national headlines when it was discovered that in course notes he was sharing online he referred to African-Americans as "nigs."
So what were two conservative lawyers in Texas doing offering their free services to an accused Native American copyright infringer in Minnesota?
"We were just starting out," Sibley says. "And it's safe to say that the publicity we've gotten for this case has been worth far more than we ever could have gotten paid for this."
Camara and Sibley had hardly any time to prepare the case, but they jumped right in. They filed a pretrial motion to get the MediaSentry evidence thrown out, arguing that the investigators had broken wiretapping laws when they snooped on the KaZaA account.
The new judge, Raymond Erikson, didn't buy it.
So, next the team tried a riskier gambit: If they couldn't convince a jury that some stranger had hijacked their client's digital identity, they'd raise the possibility that someone closer to her did it.
Thomas-Rasset was the only witness called in her defense. When Sibley asked her how the songs came to be shared on a KaZaA account apparently running on her computer with her log-in, she suggested that it could have been her ex-boyfriend, or perhaps one of her sons, who were 10 and 8 at the time. All of them knew her log-in, Thomas-Rasset said. Besides, a lot of the music that KaZaA account was sharing she doesn't even like. The metal and industrial stuff—Ministry, Morbid Angel, Covenant—that was more her ex-boyfriend's kind of music.
On cross-examination, the record-industry lawyer questioned why Thomas-Rasset had never implicated her ex-boyfriend or her kids before. The RIAA also proved that just after she was notified of the pending lawsuit, she swapped out her hard drive at Best Buy, then lied under oath when she told the court that the drive being examined was the one in her computer at the time of the alleged offense.