Accused file-sharing defendant Jammie Thomas and the RIAA will meet again in Minneapolis this month for a retrial of the only such case to reach a jury verdict. When they meet, the two sides won't agree to much; in fact, a joint court filing this week shows that lawyers for both sides can only agree on three facts:

Record labels did in fact print copyright notices on their CDs

Jammie Thomas did subscribe to Internet access from Charter

The Media Access Control (MAC) number of Thomas' cable modem was 00028ACF5590

Everything else is up for grabs.

There's plenty to argue about, too. Thomas' new lawyer will claim everything from "she didn't do it" to "it's fair use" to "huge damage awards are unconstitutional," all the while facing some pretty damning evidence. Both sides this week submitted to the judge their own "statements of the case"—documents that lay out how they plan to proceed.

After spending some hours poring over the various court filings, it's possible to sketch out in advance of the retrial how the major themes will develop and what the evidence presented in court will look like. Consider this a preview of Capitol Records v. Thomas, round 2. Fight!

Jammie Thomas' statement of the case

Buckle up, because this is going to be a white-knuckle ride through the Tunnels of Logic.

Thomas says that she will prove the following:

That she "never used KaZaA at all"

That every WMA song on her computer was ripped from her CD collection

That she "did not download and share any of these songs"

That her alleged file-sharing conduct—which, remember, she did not engage in— "did not cause substantial harm to the RIAA and would not even if widespread"

That any infringement she may have committed—with the KaZaA program that she did not use—is "fair use"

In addition, she will force the RIAA to prove that "Jammie downloaded each song or distributed it to an actual third party." This was the problem the last time around, as the judge threw out Thomas' guilty verdict because of a single RIAA-backed jury instruction which equated making a file available over KaZaA with "actual distribution."

Thomas also makes the case that the statutory damage maximums in this case (up to $150,000 per song) are unconstitutional "because they are stunningly disproportionate to the actual damages suffered by the RIAA."

This time around, the RIAA will have to prove that actual transfers were made. The group has told Ars in the past that this will be no problem; its investigator, MediaSentry, did in fact download a number of tracks from a computer alleged to belong to Thomas back in 2005.

Problem solved, right? Not so fast, says Thomas—distribution to a third party should not include "MediaSentry, the RIAA's agent." This looks to be a tough case to make, since courts have long granted private investigators the right to take exactly such steps to prove copyright infringement at photo shops and other places.

The RIAA points this out in response. In fact, in the first Thomas trial, the judge noted that "distribution to MediaSentry can form the basis of an infringement claim... Eighth Circuit precedent clearly approves the use of investigators by copyright owners."

In addition to all the other claims, Thomas wants the MediaSentry evidence thrown out altogether, a strategy that looks more likely to succeed based on Minnesota law governing private investigators. (MediaSentry obtained no such PI licenses in the states it operated.)

Finally, Thomas also makes the case that the statutory damage maximums in this case (up to $150,000 per song) are unconstitutional "because they are stunningly disproportionate to the actual damages suffered by the RIAA." In fact, the first line of Thomas' "Statement of the Case" stresses this point, saying that the record labels "seek $3.6 million in statutory damages under the Copyright Act."

This number comes from multiplying the 24 songs at issue here by $150,000, although the RIAA has never actually asked for this amount of money. The number is left up to the jury to decide upon, and the first time around, they chose a number just south of $10,000 per track, rather than the $150,000 maximum.

And, if statutory damages are constitutional, such damages shouldn't apply anyway because Thomas was a "noncommercial infringer."

Whew!

The RIAA's statement of the case



The RIAA's case is less convoluted. On February 21, 2005, MediaSentry detected 1,702 songs being shared by a KaZaA user with the IP address of 24.179.199.117. The username on the account was "tereastarr@KaZaA." MediaSentry downloaded some of these songs, logged the whole event, and then sent instant messages to the account in question, warning them about copyright infringement. (These messages constitute one of the RIAA's exhibits.)

With the info in hand, the recording industry then filed a "Doe" lawsuit and obtained judicial permission to file a subpoena on Charter Communications. Charter said that the subscriber at the IP address in question, at the time in question, was one Jammie Thomas.

The RIAA still can't shy away from a bit of rhetorical overreach. For instance, it says in an early footnote that Thomas was distributing 1,702 digital audio files "to millions of users on a peer-to-peer network at the time Plaintiffs' investigator caught her doing so."

Fair enough, but we've seen plenty of errors creep into this process. Does the recording industry actually have any corroborating evidence?

It does. A later forensic search of Thomas' machine turned up cached browser pages showing that Thomas had used "tereastarr" as her username on EA Sports, Match.com, and Yahoo—and the screenshots to prove it are also on the RIAA's exhibit list for the case.

Other explanations are still possible. Thomas could have run an open WiFi access point—except that she didn't own one, a fact that emerged during the first trial, and if she did, it wouldn't explain the "tereastarr" username.

Thomas did get a computer science professor to testify to 14 ways her IP or modem MAC address might have been spoofed or framed, but most are breathtakingly unlikely (MAC address spoofing by another cable modem user on the same loop, something that would probably not have worked because Thomas testified that she left her computer on "all the time") or downright impossible (the WiFi router issue).

The RIAA is trying to exclude the entirety of Dr. Yongdae Kim's testimony on the grounds that it is pure speculation. At one point, Kim testified that identification methods were never foolproof, citing problems with browser cookies, SSL certificates, custom image tagging, and Flash or JavaScript login systems. As the RIAA notes, though, "Dr. Kim concedes, however, that he has no information that the KaZaA program uses any of these features (which it does not)."

The recording industry looks to have a solid case here, assuming that 1) the MediaSentry evidence is allowed, 2) MediaSentry's downloads count as "distributions to the public," and 3) statutory damages are constitutional and apply to noncommercial file-sharers. As for the argument that wholesale P2P copying is "fair use," that's a position that even Lawrence Lessig can't endorse, and it seems unlikely to succeed.

But the RIAA still can't shy away from a bit of rhetorical overreach. For instance, it says in an early footnote that Thomas was distributing 1,702 digital audio files "to millions of users on a peer-to-peer network at the time Plaintiffs' investigator caught her doing so."

One sees what is meant here—that millions of people had potential access to the songs on the machine in question. But MediaSentry certainly has no evidence that the songs were in fact being distributed to "millions of users" at the moment it fingered Thomas. It sounds a bit like the RIAA can't let go of its "making available==actual distribution" theory, even after a judge tossed out the first verdict against Thomas on precisely this issue.

This attitude is confirmed later in the filing, where the RIAA says that "an inference that a distribution actually took place may be made where a defendant has completed all necessary steps for the distribution of copyrighted sound recordings to other users on a peer-to-peer network, without license from the copyright owners." That's just a fancy way of describing the making available theory, and the fact that it's still being trotted out in the Eighth Circuit, in a retrial, is... interesting.

Finally, the RIAA makes one more claim against Thomas that doesn't look good for her: "Defendant attempted to conceal her infringement and escape liability by fabricating a clean hard drive before producing it to Plaintiffs for inspection." The "Best Buy sales/service history for defendant" on the RIAA's exhibits list will apparently be used to make this point.

Not all arguments are created equal



With a new attorney willing to fight all sorts of large battles over constitutionality and fair use, Thomas' case looks to be an interesting one. She may not get the chance to make all of it, though; the RIAA is already objecting to any talk of "fair use," since such a defense needs to be asserted when one first answers a complaint.

Under her previous attorney, Thomas did not make such a claim, which means that lawyers from the recording industry did not ask about it during depositions or prepare for it during discovery. Whether the judge will even allow the issue to come up remains to be seen.

Ars Technica will be on-site in Minneapolis when the trial opens on June 15. Lawyers for both sides estimate the total case to take five days.