While we all await what could be the final chapter of the Recording Industry Association Of America's futile bid to combat piracy by suing its customers - the previously reported Tenenbaum case - a previous chapter is set to be revived this week. One of the record industry trade body's toughest adversaries during the whole self-harming litigation spree is set to fight the P2P infringement charges against her for a second time.Mum of two Jammie Thomas got a lot of often positive press coverage as one of the few people accused of P2P-based copyright infringement by the RIAA to chose to defend herself rather than settle out of court. Her case was the only RIAA lawsuit, to date, to go before a jury in a US court, and they found her guilty of copyright infringement in October 2007. She was ordered to pay $222,000 in damages.
However, the jury's decision was based on judicial advice that simply making music available via a P2P client like Kazaa amounted to infringement in itself. This has proved to be a sticking point in most of the albeit few RIAA P2P lawsuits that have gone to court.
Often the only evidence the record companies have against those they sue is that the defendant made tracks available to others via a P2P network by dragging music files into the relevant 'P2P folder' on their PC. There is no actual evidence that anyone else on the P2P network actually went into that folder and downloaded any of the files. The legal question is: does that matter? Does a copy of the unlicensed track have to actually have been made by another web user for the defendant in the lawsuit to be guilty of infringement? And if so, what happens in the label has no evidence that that happened?
In the original Thomas case the judge told the jury that simply putting tracks into a P2P folder was enough to find a defendant guilty of infringement - so if they believed Thomas had transferred music files into a Kazaa folder, as the RIAA claimed, then they should find her guilty, even though the record industry had not shown that any illegal copies were actually made.
However, judges in subsequent similar US cases have been of a different opinion, leading to the judge from the Jammie case to question his instructions to the original jury and order a retrial.
Jammie has a new lawyer this time, Kiwi Camara, who seems not only confident his client will win, but hopes to give the RIAA a bloody nose over its whole sue-the-fans campaign in the process. According to the Associated Press, he told reporters last week: "What you'll see in Minneapolis will be the first battle in what we think will be a successful campaign against the recording industry".
A spokesman for the RIAA, meanwhile, told reporters they expect to win this case second time round too. Mr RIAA: "The facts in evidence have not changed in this case. We're confident that a new jury will see it no differently from the first time around".
As previously reported, the RIAA has now dropped its policy of suing the world into oblivion in a bid to stop P2P file-sharing, having basically admitted thousands of costly lawsuits have done nothing to stop the growth of online piracy. Like their European counterparts they are now looking to the ISPs to take on a more proactive role in combating illegal file-sharing. Though, also like their European counterparts, they haven't had much success in persuading the ISPs that's something they might want to do.
Although P2P lawsuits are no longer on the RIAA's agenda, they plan to see any outstanding litigation through to conclusion. Which seems mad to me - are any potential damages really worth the near certain PR damage to the record industry that the aforementioned Tenenbaum case and Jammie V.2 are going to result in?