Saving Jammie Thomas, Or How to Avoid Being An Idiot

With all the furor over the Jammie Thomas trial, and the staggering amount awarded by the jury, it shows several things, not all of which have been highlighted by any of the articles I have read concerning the trial.

Let’s make no mistake about it, Jammie is guilty. What is not clear is the extent to which she is guilty, whether or not she lied, and exactly if her level of intelligence rises above that of cretin.

Certainly the way in which her delivery of the facts, as she perceived them, was done,  is suspect. Was she poorly rehearsed? Is she simply a bad liar with a poor memory, or is she telling the truth, and simply so scared, or unintelligent, that she came off as a lying dimwit?

What part did her lawyer play in this? Is he especially knowledgeable in this area of law, or simply a hack that was retained at the right price? In the over twenty recountings I have read about the three days of the trial, not a single account gave one scintilla of evidence that the lawyer was anything but a body taking up space in the courtroom. No discussion of his plan of defense was highlighted, only the fragments of certain passages of testimony. It is not clear whether the expert witnesses were given a clear idea of the level at which they needed to deliver their testimony. It certainly is clear that the jury did not seem to understand what they were being told. If they had, the question of (then) Ms. Thomas willingness to share the material would have been brought to light. As pointed out in a very good article by Richard Koman, on ZDNet, the law requires the application of the stiff penalties we saw only in cases of willful violation of the copyright laws.

So Jammie Thomas-Rasset is a thief - a willful copyright infringer - who uploaded 24 songs to the Internet. At least, the jury in her second trial so found in delivering a $1.9 million verdict: $80,000 per song.

Under the law the jury could have imposed statutory damages up to $150,000 per work. So perhaps Thomas got off light with a $2m fine instead of the $3.6 million she coulda got. Not exactly.

The verdict should be set aside because it is not supported by the evidence. The jury was bound by the terms of Title 17, section 504: statutory damages of $750-$30,000 per infringement, or up to $150,000 per infringement if the defendant acted “willfully.”

Willful infringer?

“Willful” means so bad that society needs to assign an extra-harsh punishment. $30,000 per violation is pretty harsh. And the jury thinks she deserved worse than that. Two-and-a-half times worse. So what did she do that was so bad?

Viewing the evidence in the light most favorable to the RIAA, she illegally downloaded songs via Kazaa and made them available over the network. That’s it. (She also lied about her hard drive being replaced, but that that misbehavior is sanctioned by discovery rules and cannot be part of the calculation of the wrongfulness of her filesharing.)

I’m not convinced she even knew that Kazaa automatically shared her music with the network, but even if she did, that’s not what “willful” means. “Willful” means, to my mind, a bad actor, a privateer, a counterfeiter, someone who is in the business of selling someone else’s work for profit.

Though Ms. Thomas might have looked stupid and guilty with the way in which her testimony wavered and changed, it is the very level of knowledge that makes the proof of willingness to deliver the content to others difficult, if not impossible, to prove. We also have no idea that, if she lied, it was not simply out of fear, not because of the full implications of her crime.

Beyond this, which should be more than ample reason for another trial, I take several things from the whole ordeal. One, people are stupid much of the time. Two, stupid people should strive to achieve at least a level of intelligence to enable the realization of their limitations. (Thanks, Clint! *) Three, when wanting to obtain things people are not able to, or for other reasons don’t want to, pay for, banding together can help achieve a common goal, with no level of legal repercussions.

(The following is simply a plan, not something I do, or advocate. It is, however, a very easy way to obtain what Ms. Thomas was trying, with low investment, and no problems. It also provides a measure of reliability, should anything happen to the material on the hard drive, or other device holding the content.)

If I want to obtain music, but I have little or no money, or commensurate desire to pay for it, I can band together with many people, to purchase a shared library of music. Remember, if enough people band together, the actual cost can be reduced to insignificant levels, coinciding with the amount of electricity used by the computer, and the ISP monthly fees.

This group, brought together by its want of music, can take up collections, at various times, and decide what to purchase from the best place to purchase, based upon price (in my travels, this would be called Amazon). when the CDs are delivered, each person in the group can check them out from the central repository, take them home, and rip them to their hard drives, or other devices. When the disks are returned, the disks are available to any of the others in the group. Because there is a hard copy, and the users have at least a small interest in the media being kept in good condition; the loss of  content on one’s local equipment is simply, and easily remedied. A trip to the repository is all that is needed.

Now note that there is some cost, but as I said, if the reason for internet consumption is mostly for the download of music, that cost is much less by using the above plan instead. It is also completely devoid of any ability of the government to inspect a download, as there is no downloading taking place. As the persons participating are all equally responsible, the chances that one will decide to ‘rat out the others’ is removed. And, as the time continues, the ability of the group to increase the collection is greatly increased.

This may not have the outward appearance of being ‘free’ as the tack of illegal downloading seems to be, but even the moronic should be able to see the inherent benefits of such a system.

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[* Clint Eastwood, as Dirty Harry, in the movie Magnum Force " A man's got to know his limitations". If you haven't seen the movie, you should.]

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