Jammie Thomas-Rasset: The download martyr
AT THE VERY end of a snowbound dead-end road outside Brainerd, in a small beige single-story house out in the woods, lives one of the world's most notorious cyber-criminals.
Sitting in her den with her family and dog on a recent weekend, Jammie Thomas-Rasset doesn't seem quite so threatening. Short and sturdily built, she wears her long dark hair parted down the middle.
She's got an ordinary job, as a brownfields coordinator for the Mille-Lacs band of Ojibwe in Brainerd. She spends most of her time figuring out how to get petroleum seepage out of former gas station properties. Weekends she spends shuttling her kids back and forth to their father, who lives in Superior.
There's not a lot of time in her life to be either the hero or the villain that so many people want her to be.
Ever since she was sued by the Recording Industry Association of America five years ago, Thomas-Rasset has become a central figure in the revolutions convulsing the music business. She's been featured in documentaries about remix culture and gets recognized in the supermarket from her appearances on the evening news.
Almost everyone who received a threatening letter from the RIAA in those days settled with the record labels instead of going to court. Not Thomas-Rasset—she was the first person to fight.
The result has been a seemingly endless legal battle, with three separate trials and the promise of more to come.
But as she's lost case after case, Thomas-Rasset has become something of a martyr to the digital revolution, a symbol of the lengths to which a powerful industry will go to protect an out-dated business model.
What Thomas-Rasset has going for her is a quality the record industry never expected: a complete refusal to surrender.
"In a lot of ways, this case is a vestige from another era," says Rebecca Jeschke of the Electronic Frontier Foundation, which tracks digital copyright issues. "The industry has recognized this was a bad idea, but her case is still working its way through the system."
IN 2005, THE recording industry was in a full-fledged panic. Global sales were down for the fifth year in a row and showed no sign of hitting bottom any time soon.
The reason seemed pretty clear: Six years after suing the file-sharing service Napster into submission, the industry's business model was still being shaken to its foundations. In Napster's place, new networks for sharing mp3s sprung up like the heads of a hydra: Bearshare, Morpheus, Grokster, KaZaA, Gnutella, and dozens of other networks with equally silly names provided the young and tech-savvy with all the free music they could download.
It was as if the labels' most lucrative demographic of customers had suddenly turned against them.
So the labels decided to raise the stakes. They began suing music fans. By the beginning of 2005, the labels had filed 7,437 lawsuits against fans suspected of uploading copyrighted music.
Almost inevitably, those the labels sued rolled over and coughed up the money, figuring it would be cheaper to settle out of court than to hire a lawyer and be dragged into a courtroom to stare down giant corporations.
The strong-arm tactics brought in millions in settlements, though the RIAA says the windfall didn't even cover legal costs. And it didn't seem to be having much effect on file-sharing. Mostly, it was driving downloaders to more anonymous sharing systems like BitTorrent.
Meanwhile, the mass legal threats were such a blunt tool that obviously innocent people were getting wrapped up in the battle. Sarah Ward, a 66-year-old dyslexic retired grandmother, was threatened with a lawsuit over allegedly pirating millions of dollars in hard-core rap. The record industry said Ward perpetrated the heist using KaZaA, a Windows-only program, despite the fact that Ward owned a Mac.
But the record industry didn't seem to mind the collateral damages. As RIAA spokeswoman Amy Weiss said, "When you fish with a net, you sometimes are going to catch a few dolphin."
THOMAS-RASSET REMEMBERS THE day the letter came. It was August 2005. Bringing the mail in from the porch before starting dinner, one envelope stood out at her. The letterhead looked imposing. It was from the law firm of Shook, Hardy and Bacon.
"I didn't really understand what it was talking about, but it gave a number for me to call," she says.
When she called the number, the law firm wanted to talk to her about KaZaA.
"I said, 'What are you talking about?'" she says. "They're telling me that they know I'm sharing things on KaZaA—I didn't even know what KaZaA was."
Thomas-Rasset's protestations of ignorance didn't matter to the people on the other end of the phone. MediaSentry, a private investigation company hired by the RIAA, knew what KaZaA was. They also knew that someone on her internet connection was using it to share music online, as many as 1,700 songs.
For purposes of simplicity, the RIAA limited its complaint to two dozen songs, an eclectic list that included Def Leppard's "Pour Some Sugar on Me," Journey's "Don't Stop Believin'," Richard Marx's "Now and Forever," and Green Day's "Basket Case."
After letting Thomas-Rasset know that the RIAA had the goods on her, the caller moved on to the next part of the script: It wasn't too late. All could be forgiven, it could all go away. She just needed to make a public apology, promise to never do it again, and cut a check for several thousand dollars.
"When I heard that, I was like, 'What?'" Thomas-Rasset says. "It sounded like a shakedown. It was like some kind of extortion."
With her back against the wall, Thomas-Rasset did what almost no one else had done before her: She refused to pay up.
"It was actually a pretty easy decision for me," she says.
For one thing, she didn't have thousands of dollars lying around. A single mom, she was raising her two sons in a small rented apartment in Brainerd on a blue-collar salary.
But the stakes were high: If she was found liable, Thomas-Rasset would be on the hook for a lot more than the cost of those 24 songs. Federal law allows statutory damages up to $150,000 per violation. In Thomas-Rasset's case, that would total $3.6 million.
She was unfazed. Her father took out a loan against his motorcycle to help her scrape together the retainer fee for a lawyer, and she told the record industry to bring it on.
THE TRIAL DIDN'T go well for Thomas-Rasset.
The record companies' lead lawyer, Richard Gabriel, had the rehearsed confidence and impeccable hair of a politician. Pacing the white marble courtroom, he set out his case methodically.
The RIAA's investigation firm, MediaSentry, provided screenshots showing the music they downloaded from a KaZaA user named Tereastarr using the IP address 18.104.22.168.
The security manager from Thomas-Rasset's internet provider testified that on the February night MediaSentry was downloading the Goo Goo Dolls and Sarah McLachlan from that address, it was assigned to Thomas-Rasset.
Thomas-Rasset's lawyer, Brian Toder, did his best to introduce reasonable doubt. What if Thomas-Rasset was using a wireless router and someone outside the apartment leeched off her connection? What if someone hacked into her account and used her name?
"The best that they can come up with is that somebody out there in cyberland, somebody out there using an IP address, an account that was assigned to Jammie Thomas, offered on KaZaA some copyrighted material that was downloaded by plaintiffs," Toder argued. "Jammie Thomas didn't do any of that."
But Gabriel had other evidence suggesting that the KaZaA user Tereastarr wasn't someone sneaking onto Thomas-Rasset's computer connection.
"Her email address is now and in the past Tereastarr," he told the jury. "Her instant message address was Tereastarr. She used the Tereastarr name on online shopping accounts, including bestbuy.com and walmart.com. She used it for online video games. She uses it on a personal website that she has designed and created and uses at, which some of you will recognize, myspace.com. She uses Tereastarr for everything."
Between the IP address and the account name, Gabriel had strong evidence that Thomas-Rasset was the person making those 24 songs available for sharing on KaZaA. But because of KaZaA's peer-to-peer architecture, he had no way to prove that anyone—except the industry snoops themselves—had actually downloaded copies from her.
Gabriel argued that it didn't matter; making it available was infringement enough to justify a judgment. And in his closing instructions to the jury, U.S. District Judge Michael Davis agreed: If the jury thought Thomas-Rasset had made the songs available on KaZaA, she had committed copyright infringement.
With those instructions, the jury started its deliberations.
Thomas-Rasset and her lawyer went back to the hotel to eat some lunch. After just four hours, Toder's cell phone rang. The jury had reached a decision.
"At first we thought it was a good sign that they hadn't needed much deliberation," Thomas-Rasset says.
But back in the courtroom, that optimism turned to shock as the jury read its verdict: guilty. With no real guidelines, the jurors were free to assess statutory damages anywhere from $750 to $150,000 per song. For reasons never explained, they settled on the figure of $9,250 per song, for a total of $220,000.
Thomas-Rasset struggled to hold herself together as she left the courtroom. Fighting through the media scrum on the courthouse steps, she passed Gabriel, the lead attorney for the record industry, summing up the message his clients wanted to send with the trial: "This is what happens when you don't settle."
Alone in her car as reporters banged on the windows asking for her to comment, Thomas-Rasset took an inventory of what $220,000 in damages would mean.
"I was thinking, 'I'm gonna lose my house. I'm gonna lose my car. I'm gonna have to sell everything, and they're still going to garnish my wages to get all that from me. How am I going to provide for my kids?'"
Her face was a stoic mask as she nosed her car through the crowd, but once she made it to the open road, she let herself go.
"I just broke down," she says. "I couldn't stop sobbing. I felt like my whole life was gone."
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.
The jury was clearly unimpressed. This time they came back with an even bigger damage award: $80,000 per song, for a total of $1.92 million.
The record labels were careful not to look gleeful at the outcome. A spokesman on hand after the verdict told anyone who would listen that the industry had been willing to settle the case all along.
For Thomas-Rasset, the verdict tipped her life over into the realm of the absurd.
"I couldn't believe it," Thomas-Rasset says. "I mean, at first I was just overwhelmed. But then it was just funny. How were they ever going to collect that money? I'm never going to make that much money in my whole life."
JUDGE DAVIS AGREED that the jury's damage award was excessive. In January 2010, he exercised his power to adjust the amount. Calling the $1.92 million figure "monstrous and shocking," he slashed it to $54,000. He gave the RIAA a week to decide if it could live with the lower settlement.
For a moment, it seemed that the labels were considering walking away. The RIAA offered Thomas-Rasset a chance to settle out of court for even less money than the judgment: $25,000.
But she wasn't interested.
"I didn't want to make a deal with these labels. What they're doing with these threats and lawsuits is wrong," Thomas-Rasset says. "I talked to my dad about it, and his advice was, 'You have to fight for what you think is right.'"
So there would be a third trial. This time around, the question of whether Thomas-Rasset willfully infringed wouldn't be up for debate. The only issue would be how much she owed.
Last November, the trial geared up again. Camara and Sibley argued that the kinds of damages the industry was looking for were draconian, especially considering the songs in question could be bought for all of $24. The higher statutory damage range was intended to punish violators making big money off the copyrighted work of others, not small fish sharing the music for no personal gain.
The RIAA once again argued that more severe damages were necessary to protect their business, and hammered Thomas-Rasset for not taking responsibility for her actions.
This time the jury needed just two hours to come to its decision.
The foreman announced the figure: Thomas-Rasset owed $62,500 per song.
She scribbled some calculations on a piece of paper: 24 songs at $62,500 songs came to $1.5 million dollars.
"Even before they announced the verdict, I had my hand in front of my mouth," Thomas-Rasset says. "No matter what the amount of damages was, I knew I was going to be laughing."
WATCHING FOOTBALL WITH her family on a recent Saturday, Thomas-Rasset speaks with a resigned calm about the legal battle.
"We're waiting on the judge right now," she says. "We won't know what happens next until we hear from him."
Given that he considered the $1.92 million judgment in the second trial monstrous, it seems likely he will once again knock the jury's penalty down significantly.
But Thomas-Rasset's lawyers are pushing for more than that: They want him to eliminate the damages altogether. In December, they filed an argument that any damages at all in this case are unconstitutional.
Depending on whether Judge Davis agrees, there could be yet another trial over damages. Alternately, the case could be appealed all the way up to the U.S. Supreme Court.
"This could easily go another four or five years," Thomas-Rasset says. "I'm fine with that. As far as I'm concerned, this whole thing can go as far as it needs to go. In for a penny, in for a pound."
She acknowledges the irony of her situation. The first music-sharing lawsuit to go to trial, her case made the industry look so bad that the RIAA eventually gave up on suing music sharers all together. Now, years after labels have abandoned the strategy that brought her to court in the first place, she's still trapped in a seemingly interminable lawsuit.
"Yeah, it's kind of ridiculous," Thomas-Rasset says. "They know they're never going to get anything from me, but they just can't bear to let me go."
Yet regardless of the outcome, Thomas-Rasset feels it's all been worth it.
"Even if I don't win, I've still stopped them from extorting other people, extorting grandmothers and 12-year-olds," she says. "They were going to keep doing this until someone fought back. I fought back."
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