Continued: New trial possible in download conviction of Brainerd woman

A Brainerd, Minn., woman hit with a $222,000 jury verdict last fall as part of the recording industry's crackdown on Internet file-sharing may get a new day in court.

U.S. District Judge Michael Davis notified attorneys in the case Thursday that he's considering granting a new trial in the lawsuit against Jammie Thomas because he may have improperly instructed the jury on what constitutes distribution of copyrighted music online.

"This is awesome!" Thomas said Thursday upon learning that the award might not stand. She said she's confident that a new jury would come to a different conclusion. She has not been required to start paying on the jury's award yet.

Davis said in an order filed in Minneapolis that he may have made a "manifest error of law" last October when he instructed a Duluth jury that simply placing songs on a music file-sharing network could be considered illegal distribution, even without proof that anyone received them.

In a verdict hailed by the music recording industry, the jury found that Thomas, 30, willfully violated the copyrights of six recording companies and should pay them $222,000. Jurors found that Thomas, operating on her home computer under the user name "tereastarr" on the Kazaa file-sharing network, copied or distributed 24 songs. Damages were set at $9,250 for each song.

The trial drew national attention as the first Internet piracy suit by the recording industry against a customer to go to trial. The Recording Industry Association of America said the verdict and its aggressive letter-writing campaign to colleges were spreading the word that people can pay a penalty for illegally downloading or sharing music.

The recording industry's lead attorney, Richard Gabriel of Denver, said the verdict should stand.

"We firmly believe the court and a unanimous jury got it right the first time, and we look forward to the opportunity to brief the court on that," he said, adding that if Davis orders a new trial, his clients "would retry the case without hesitation."

But Thomas' attorney, Brian Toder, disclosed Thursday that he and the plaintiffs' attorneys, in response to Davis' order, already were talking about a possible settlement.

"I think it's a fair statement that nobody wants to go to trial again," said Toder of the Minneapolis firm Chestnut and Cambronne. "There would be a large amount of risk to either party."

Precedent found

Toder filed a motion last fall asking Davis to reduce the jury's award, which he said was so excessive as to be unconstitutional. Davis, in Thursday's order, wrote that he'll consider granting a new trial on different grounds.

Davis said he was concerned that part of the jury instructions may have contradicted a previous precedent. He cited a case in which an appeals court "stated that 'infringement of [the distribution right] requires an actual dissemination''' or, in other words, proof that someone received the songs.

Davis added that no party to the case made him aware of that precedent.

In addition, he wrote, a case the recording industry cited to support its dissemination claim was vacated last month on appeal. Gabriel said that didn't matter because "there were numerous other cases supporting our position."

The industry argued that Thomas distributed the songs just by placing them on Kazaa, to which millions of computer users had access.

Thomas, a single mother, has maintained she did not illegally download or share music files, despite computer forensics evidence that appeared to link such activity to her modem, computer and screen name. She said she could have settled the suit in 2005 for $4,750, as thousands of others have done. She said she believed the industry would drop the suit, as it had others, if she held out.

Davis ordered the attorneys to submit briefs by May 29 on whether he erred. A hearing is scheduled for July 1 in U.S. District Court in Duluth.

In apparent recognition of the case's importance to the music industry and to the millions of people who download and share music, the judge suggested that "interested parties" submit friend-of-the-court briefs by that deadline.

Larry Oakes • 1-218-727-7344