Michael J. Davis, Chief Judge for the District of Minnesota, opened the remarkable third trial of peer-to-peer file-swapper Jammie Thomas-Rasset today with a quip. "It is Groundhog Day," he said, looking out over the lawyers gathered before him.

The reference, to the Bill Murray film in which the main character continually repeats one particular day, makes particular sense in this case. Thomas-Rasset was the first of the RIAA's litigation targets to take her case all the way to a trial and a verdict, but Judge Davis has twice tossed the results. In the first trial, a bad jury instruction was to blame; in the second, the jury returned a shocking $1.92 million verdict that Davis slashed to $54,000, calling it "monstrous." Neither side was pleased, however, and the recording industry asked for yet another trial, this one on damages alone.

Judge Davis isn't the only one thinking about shadow-watching rodents. I spoke to Thomas-Rasset during a break in the case and asked what it was like to trek back from her home upstate to Judge Davis' pristine 15th floor courtroom in a Minneapolis federal building... again. "Like Groundhog Day," she said.

And that's largely how the first day of the case unfolded. Observers could be forgiven for thinking they had stepped back in time to relive the second trial once more. At the defense table on the left sat lawyers Kiwi Camara and Joe Sibley with their client. At the plaintiff's table sat RIAA attorney Jennifer Pariser and outside counsel Tim Reynolds and Matt Oppenheim. The same witnesses sat in the benches. The same staffers ran the courtroom and transcribed the case. As I entered the courtroom, it all looked shockingly similar to the place I had last left on June 18, 2009. And many of those present—the courtroom staff, Oppenheim, Pariser, and others—were there for the first trial in 2007.

Until, five minutes before the trial began, in walked Harvard Law professor and RIAA scourge Charles Nesson, wearing a black turtleneck, a puffy sleeveless jacket, and a North Face backpack.

White knight



Nesson, as regular readers may recall, was in large part responsible for stirring up Harvard Law against the recording industry's legal campaign. This is the man who, back in 2007, coauthored a letter saying, "Harvard and the 22 universities to which the RIAA has sent 'pre-litigation notices' ought to take strong, direct action... and tell the RIAA to take a hike."

Nesson later mobilized his law students to defend Joel Tenenbaum, the second P2P user to take a case to trial and verdict. (Tenenbaum lost badly, getting hit with a $675,000 fine.) He also has links to Camara and Sibley, both of whom he taught at Harvard and still advises.

Last Friday, Nesson filed a surprise request with the court to appear, and then filed a brief of his own in the Thomas-Rasset docket, arguing about what the jury ought to be told. This didn't go over well with Judge Davis, who had not approved such a filing.

"On November 1, 2010, Professor Charles Nesson filed an unsolicited brief entitled 'Amicus Curiae Brief on the Issue of Jury Instructions,'" wrote Davis late on Monday. "Nesson is not a party in this action; nor does he represent any party in this action. Nesson has not asked for permission to intervene or to file an amicus brief. Moreover, he has filed a brief regarding a jury instruction issue that was already fully briefed, argued, and decided more than one week ago." Nesson's brief was stricken from the record.

But here he was in Minneapolis this morning, much to the displeasure of the recording industry attorneys. Nesson's brief was "highly misleading," said Matt Oppenheim, who also attacked his argument as "just simply not accurate."

Nevertheless, Nesson was given his chance to speak to the judge before jury selection, and he argued for the idea that statutory damages were meant to be decided by judges, who had knowledge of similar judgments and cases, rather than by juries, who would essentially be plucking context-free numbers from the air in most cases. The result: "arbitrary, excessive verdicts."

Nesson's evidence was simple to understand. Look at Thomas-Rasset ($1.92 million) and Tenenbaum ($675,000), he said. The upper end of the statutory damage range, $150,000 per infringement, should apply to the most heinous act of infringement that could possibly be imagined. "In a spectrum of reprehensibility," what Thomas-Rasset and Tenenbaum had done was minor, the copyright equivalent of jaywalking. And yet look what juries, which knew little or nothing about handing out such damages, had done!

The labels couldn't disagree more with Nesson's interpretation of the law and several key legal cases, including Feltner v. Columbia Pictures Television. And yet, even though Nesson had filed his brief without permission, Judge Davis allowed him to refile and asked the plaintiffs to respond. With the trial scheduled to wrap up Wednesday, some lucky lawyer gets to spend tonight writing.

On the blindness of Lady Justice



Jury selection went smoothly, resulting in 11 jurors who will decide how much Thomas-Rasset owes. During the selection process, all were asked about their own music download habits. Many said they used iTunes, other were a bit vague on the whole idea of downloading music, and two people openly admitted to downloading free music using two P2P programs.

One middle-aged man, a president of five area car washes, said he "rarely" used LimeWire to get new music. When asked if his "rare" behavior continued into the present or had stopped some time before, the man admitted that he still on occasion would download songs this way.

A younger man who works in social media marketing and blogging, went further. He had used Napster in the past, then KaZaA (the same program Thomas-Rasset used), and even used "some sort of sharing thing" in college at the University of Minnesota that allowed him to share with others in his dorm. When asked if his own creative work had ever been ripped off, he said it had. How did that make him feel? "Angry." Yet he had downloaded plenty of other people's music. Why had he stopped doing so?

The answer was honest enough, and telling. "I'm at a point now where I can afford to pay for my music," he said with a shrug.

Both men were cut from the jury pool. Each walked out the back door of the courtroom without owing a cent, even though they had just admitted to the same behavior that had rung up a multi-million dollar verdict against Thomas-Rasset.

"We admit she did it."



The afternoon played out much like the last trial, though in this case Camara told the jurors, "We admit she did it. She broke the law." (It was later made clear that Thomas-Rasset personally maintains her innocence, but this case begins from the premise that she is liable for infringement.)

It quickly became clear that the music industry can't compete with free; just ask them. "We cannot compete with free, illegal downloads," said Reynolds in his opening statement. Sony Deputy General Counsel Wade Leak said that it's "very hard for us to compete with free."

In fact, Leak made the extraordinary claim that his company's 50 percent drop in revenue over the last decade was "a result of piracy." When he was asked if Sony had ever identified any other reasons for the decline, Leak answered "no."

Could this possibly be true? Critics have long pointed out that the industry is facing unique pressures, including the effect of disaggregating albums into singles thanks to iTunes, the end of the "buy your old albums again on CD!" windfall, and the rise of other sources of entertainment, including the Internet, video games, and texting. Indeed, according to recent academic research, file-sharing only accounts for about 20 percent of the music industry's revenue declines. But not in Leakland.

In any event, Leak was able to restrain himself this time. During the last trial, after repeated badgering about whether the $150,000 per song maximum was an appropriate amount, Leak blurted out "Certainly!" This time, there would be no such statement. Instead, Leak said that $750 per song was too low, but he would offer no other thoughts on the amount. It was up to the wisdom of the jury to make that decision.

Proportionality



The rest of the day was a mind-numbing repetition of the last trial. A computer science expert testified about P2P networks and about his examination of Thomas-Rasset's hard drive. A rep from MediaSentry, which found Thomas-Rasset in the first place, explained the company's methods. Tomorrow will be more of the same.

Why bother? Jennifer Pariser told me that, even though Thomas-Rasset's liability is certain, her side still needs to recap its entire case for the jury so that they have enough information to make a decision. In essence, that means rerunning the case once more, though in fast-forward; Judge Davis won't allow the trial to take more than two days.

At that point, the jury will retire to make its decision. Thomas-Rasset hopes they listen to Joe Sibley, who used a whiteboard to make a point to the jury. "The market value of these songs is about one dollar," he said, for each of the 24 tracks at issue. He put "$24" next to the lowest possible award of $18,000 and the highest possible award of $3.6 million for emphasis. The jury, he said, should look at those numbers and choose "the lower end of the spectrum."

What about the argument that this would cover only the downloads, but that Thomas-Rasset had also distributed the tracks to (potentially) millions? As Sibley pointed out, thanks to the nature of P2P detection, MediaSentry can't prove a single act of distribution, except the one Thomas-Rasset made to them. We'll know what the jury thinks of that argument soon enough—and whether the third award will be so "monstrous" that Davis tosses it once more. If so, will it be Groundhog Day all over again?