Jammie Thomas-Rasset's attempt to bar all MediaSentry evidence from her copyright infringement retrial next week has failed, as has her attempt to assert a "fair use" defense.

Judge Michael Davis oversaw the first Jammie Thomas trial and was sympathetic to her plight. After a jury awarded the music labels $222,000 in damages for Thomas' file-sharing, the judge made clear that he disapproved of the penalty:

While the Court does not discount Plaintiffs' claim that, cumulatively, illegal downloading has far-reaching effects on their businesses, the damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs. Thomas allegedly infringed on the copyrights of 24 songs—the equivalent of approximately three CDs, costing less than $54, and yet the total damages awarded is $222,000—more than five hundred [emphasis his] times the cost of buying 24 separate CDs and more than four thousand times the cost of three CDs...

But that dislike of the verdict doesn't mean that Davis is going to give Thomas-Rasset (who married in the time between the two trials) whatever she asks for. Case in point: today, Davis tossed out every argument against RIAA investigative firm MediaSentry, which collected the information that led to Thomas-Rasset's trial.

Thomas-Rasset's new lawyer, Kiwi Camara, had argued that the company violated the Minnesota Private Detectives Act (MPDA) because it had not taken out a private investigator's license in the state. But Davis concluded that "MediaSentry is not subject to the MPDA. Based on the language of the MPDA, the Act does not apply to persons or companies operating outside of the state of Minnesota... MediaSentry does not operate within Minnesota. It has no employees in Minnesota and does not conduct any activities in Minnesota."

Camara also claimed that MediaSentry was violating federal "pen register" laws and wiretapping statutes by recording the packets sent to it over the Internet. The Court didn't buy that one, either. "The Pen Register Act cannot be intended to prevent individuals who receive electronic communications from recording the IP information sent to them. If it did apply in those cases, then the Internet could not function because standard computer operations require recording IP addresses so parties can communicate with one another over the Internet," he wrote.

"Additionally, the Pen Register Act does not bar recordings of the contents of communications that are made with the consent of one of the parties to the communication."

As to the claim that Thomas-Rasset had an expectation of privacy around her communications, the judge completely disagreed. "There is no expectation of solitude or seclusion when a person activates a file sharing program and sends a file to the requesting computer," he wrote. "By participating in Kazaa, a user expects millions of other users to view and copy her files, each time receiving the very information that Thomas?Rasset sent to MediaSentry and MediaSentry recorded."

So much for that defense, which aimed to kneecap the recording industry lawsuit before the trial even began. (Camara does plan to contest the labels' copyright registrations, though, which would also cripple the case completely.)

If the case proceeded past those obstacles, Camara still had hope that he could claim (like his mentor, Harvard Law's Charles Nesson) "fair use" in this case. But fair use is an "affirmative defense," one that must be raised before trial so that witnesses can be questioned about it in deposition and discovery.

"Defendant failed to raise the fair use defense in her Answer, at any time before the First Trial, during the First Trial, or at any time leading up to this retrial until only two weeks before retrial," said the judge. "This litigation has gone on for years, yet Plaintiffs had no inkling of this defense until the eve of trial. Because Plaintiffs had no notice of this defense, they have taken no discovery regarding Defendant’s alleged fair use defense. The record in this case, with which this Court is intimately familiar, gave no hint that a fair use defense would be forthcoming. It would be highly prejudicial to Plaintiffs to allow Defendant to assert this new affirmative defense on the eve of retrial, when they have no opportunity to conduct discovery on this issue..."

So, MediaSentry is in, fair use is out, and Jammie Thomas-Rasset's expert witness has had his testimony pared back. (He won't be able to invoke the specter of someone using Thomas-Rasset's wireless router to share files, for instance, since it emerged form the first trial that she didn't own one.)

Oh, and as for that first trial? It will only be referred to in court as "a prior proceeding," the results of which won't be revealed to the jury.

We'll have daily coverage of the case live from the courthouse starting next Monday.

Listing image by Flickr user billaday