P2P Defense Lawyers Reconsider Approach in Wake of Jury Verdict

Rights holders emphasized they didn’t want to put defendants into as tough a spot as Jammie Thomas, the defendant in Duluth, Minn. “We educate, we warn, we even try and settle before a case gets to court,” said John Kennedy, chairman of the International Federation of the Phonographic Industry. “We derive no great satisfaction from this but hope it will prove a deterrent to others.” Roughly 9,500 litigation targets have settled with the RIAA, a spokeswoman told us. She declined to predict how the Thomas case would affect the group’s current and future litigation.

Without commenting specifically on the Thomas case, a P2P defense lawyer told us that any case involving the same username across several sites and accounts, including a P2P account, would have raised red flags from the start. The uniformity could heavily sway a jury. Without an intent requirement for liability under the Copyright Act, accidental sharing isn’t a defense, the lawyer said. A defendant’s misidentification argument gains strength when a P2P username differs from a defendant’s usernames elsewhere, the lawyer said.

Observers differ on Thomas’ chances to reduce the award against her. William Patry, Google senior copyright counsel, said on his blog that the damages of $9,250 a song are “well within the non-willfulness range” of $750 to $30,000 that the law sets -- despite the jury’s finding that Thomas willfully infringed all 24 files at issue. Willful infringement carries maximum damage of $150,000 a song. “I would be stunned if there is any room for overturning the award… I think there may well be cases where a damage award may be constitutionally flawed, but this is not one of them.” P2P defense lawyer Ray Beckerman, defending several New York-area cases, told us: “I disagree. I think this is clearly ‘one of them.’ I think this is an aberration and will be overturned.” Beckerman has previously argued that the $750 minimum is unconstitutional (WID May 3/06 p11).

Practicalities vs. Principles

“I don’t know that it really shifts the dynamics too much in my practice,” said Charles Mudd, a Chicago lawyer who has represented more than 100 P2P defendants. The verdict “adds further support to my discussion with them as to what might happen” if clients push to go to trial. Mudd is representing the Greubel family in the U.S. District Court in Fort Worth in a challenge to the RIAA’s claims. They involve the “making available” theory validated last week by the Duluth court (WID May 2/06 p7). Nettwerk Music Group -- which manages one of the artists whose works were said to be infringed -- is paying the family’s legal bills out of opposition to the RIAA’s campaign.

Mudd estimated that 95 percent of his P2P clients have settled, but not because they believe they were liable. “More often than not, it’s a practicality situation… and the burden that it carries on somebody’s lives,” even when a lawyer offers free services, as Mudd does occasionally. The Greubel family is mainly challenging the RIAA suit because of Nettwerk’s involvement, he said. Nettwerk is “one of the most honorable companies” he as ever worked with. The case is now targeting Does one to 10 -- presumably Greubel’s children -- after the father, David, was dropped from the suit.

The Duluth verdict may force some defense lawyers to remove their rose-colored glasses, Mudd said. “I've always had a concern that my fellow [defense] attorneys do not push forward a case where the facts do not support taking a client all the way to trial and a jury verdict… You have to be careful about the test case that you're moving forward.” Mudd has been successful “without fanfare” in getting some clients cleared when forensic examination has shown that they couldn’t have shared files. “The RIAA has been responsive to that in the past,” he said.

That’s not to say that after the Duluth verdict judges are going to rubber-stamp the RIAA’s arguments, Mudd said. A former clerk to a federal judge, he said judges are “waking up to the issues and becoming less blinded to the RIAA rhetoric,” as evidenced by a few questioning the making- available argument and requiring increased detail in RIAA claims. An increasing number of defendants are learning early about RIAA complaints, which frequently target Doe defendants, giving their lawyers a chance to intervene with the court before the RIAA has set the narrative. Unusual rulings by other judges may “pique their interest and say ‘maybe we should take a closer look at that,'” but ultimately judges are taking their time to evaluate each case, not blindly following colleagues, he added.

Mudd noted he co-led the first P2P litigation summit of defense lawyers with the Electronic Frontier Foundation last year. “You really did see the divergent views among even the file-sharing bar,” with some lawyers arguing passionately that they should never encourage clients to settle with the RIAA. Others like him took a more cautious view. Mudd worries about “any forum that exacerbates groupthink” among his peers, but he’s encouraged that other P2P lawyers have asked for his thoughts on their cases. It’s not a bad thing for some attorneys to be “pushing the envelope” in challenging the RIAA.