Downloader has to face music

Published on Saturday 6 October 2007 01:46

FOR Jammie Thomas, who spent her days illegally downloading songs from the internet by groups such as Aerosmith, Green Day and Guns 'n' Roses, it was the day the music died.

But for the six record companies who sued her, a US jury's award of $222,000 for copyright theft represented a significant victory in the battle against the music thieves they say are the scourge of the industry. She must also pay legal costs, potentially doubling the figure.

In what is believed to be the first successful prosecution of its kind, the court in Duluth, Minnesota, heard that Thomas, 30, downloaded 1,702 songs and distributed them for free using the Kazaa file-sharing programme on which she based her user name - 'tereastarrKaZaA'.

The record companies, including Sony, Warner Brothers, EMI and Arista, focused their case on 24 sample songs, for which Thomas - a single mother of two - must pay $9,250 each.

They included songs by the Swedish death metal band Opeth, tracks by Janet Jackson, Green Day, Guns 'n' Roses, Journey, Destiny's Child and others are believed to have been at issue in the case.

"She was in tears, she's devastated," said Brian Toder, her lawyer. "This is a girl that lives from pay cheque to pay cheque, and now all of a sudden she could get a quarter of her pay cheque garnished for the rest of her life."

The record industry's crackdown on illegal file sharing has, it claims, acted as a strong deterrent to many. Yet the number of known incidents has continued to increase.The Recording Industry Association of America estimates the number of people using file-sharing programmes at 6.9 million a month in 2003, but it was 7.8 million by March this year.

Since 2003, more than 26,000 lawsuits have been filed against suspected illegal downloaders, though most were settled out of court with the record companies for a few thousand dollars.

In the UK, the music industry has taken legal action against more than 100 individuals, but none of the cases has yet been contested in court.

The biggest settlement in Europe was 13,000 for a case in Denmark.

Thomas, however, refused to do a deal out of court, vowing to take on an industry that some claim has got too greedy, charging over the odds for its products and driving more and more consumers to illegal web sources to get their fix of tunes.

"Every lawsuit makes the recording industry look more and more like King Canute, vainly trying to hold back the tide," said a statement from the Electronic Frontier Foundation a non-profit group that opposes the industry's intolerance.

Thomas's case, the first of its kind to reach full trial, was being held up by the industry yesterday as a victory against piracy. Its revenues from CDs and legal paid-for downloads in the US have fallen from around $22 billion to $5.6 billion over the past six years and the RIAA has embarked on a campaign to warn users that its lawyers are watching.

It has sent hundreds of pre-litigation letters to colleges and universities in the US accusing students of "significant abuse" of campus computers for copyright infringement and offering settlements.

"The enormous damage compounded with every illegal download is alarming - thousands of regular working class musicians and others out of work, stores shuttered, new bands never signed. Those who choose to ignore great legal services and the law by acquiring music the wrong way risk a federal lawsuit," warned Steven Marks, executive vice-president of the RIAA.

Thomas denied having stolen any songs - though she did admit to having burned a few CDs for friends - and claimed that somebody else must have used her computer after investigators traced the activity to her internet address.

But Richard Gabriel, the lawyer representing the music companies, scoffed at her claim, branding her defence "misdirection, red herrings, smoke and mirrors" and alleging in court that she had downloaded thousands of songs over just two days in January last year alone. She deliberately changed her computer's hard drive in an attempt to cover up her crime after she was found out, he claimed.

"This does send a message, I hope, that downloading and distributing our recordings is not OK," he said of the sentence.

Geoff Taylor, chief executive of the British Phonographic Industry said: "This important court ruling serves as a strong reminder to illegal file-sharers that digital shoplifting is against the law, is not anonymous and can lead to serious legal consequences."

Thomas, who works in an administrative role for the Mille Lacs Band of Ojibwe, a Native American Indian tribe of which she is a member, was prosecuted for just 24 of the alleged thousands of tracks she had illegally shared, including - perhaps appropriately - Bills, Bills, Bills, by Destiny's Child.

MUSIC INDUSTRY BEING HAMMERED BY FILE-SHARING

THE Thomas case underlines the battle record groups face in stemming the level of global piracy via file-sharing networks, amid falling CD sales and surging online music growth.

Peer-to-peer file-sharing is estimated to cost the industry billions of dollars each year in revenues it could have made from CD sales or paid-for downloads.

The research group ScreenDigest says physical music revenues in the United States have fallen from the equivalent of 10.6 billion in 2001 to 2.4 billion last year. This covers music DVDs, vinyl and minidiscs, but the majority comes from CDs.

Anti-piracy groups have managed to cut the level of illegal downloads in Germany after a concentrated campaign of enforcement. They also applauded a Belgian court's decision that internet service providers did have a legal responsibility to tackle piracy.

However, analysts say the fight is not helped by the surge in illegal file-sharing and downloads occurring away from networks, by the use of direct e-mails, instant messaging, web forums and networks that can hide activity via encrypted data.

"Legal action against an individual is all about setting examples and that is why there is such a ridiculously high rate [of damages] in this case," said Mark Mulligan, a research director at Jupiter Research. "Enforcement is very difficult and going to get more difficult."