Virgin v. Thomas: Sherman testimony not allowed; possible verdict today

In a blow to the Recording Industry Association of America, U.S. District Court judge Michael Davis ruled yesterday that the infamous president of the RIAA, Cary Sherman, could not testify in the trial of accused music-sharer Jammie Thomas because “nis testimony would not be relevant,” despite the arguments of Plaintiff’s attorney, Richard Gabriel, that Sherman’s testimony would allow the jury to understand why the RIAA is targeting people like Thomas for the purpose of deterring other would-be downloaders.

“Lawsuits like this are not about making money,” Gabriel told the judge. “It gets the word out … We’re serious about this even if the damages are small.”Sherman

Sherman confirmed to The Associated Press’ Josh Freed that his lobbying group will continue to go after persons downloading music illegally, despite the outcome of this week’s trial.   “. . .[W]e’re in [this] for a long haul in terms of establishing that music has value, that music is property, and that property has to be respected,” Sherman said. See Cary Sherman on CNN.

After both sides had their day in court, the RIAA had called over 11 witnesses, while the only evidence Ms. Thomas offered was her own testimony. 

The apparent strategy of Thomas’ defense teams was to produce enough doubt that Thomas was not the actual “warm body” behind the IP address.  Her attorney, Brian Tober, raised the specter of “zombies, crackers and drones” in order to conjure up doubt in the minds of the jury.  He suggested that someone outside of Thomas’ apartment window could have accessed her wireless router and be responsible for the incident.  Tober, however, never asked Thomas on direct, nor was she cross-examined, as to whether she owned a wireless router.

The RIAA, on the other hand,  put on substantial evidence that a Kazaa user named Tereastarr shared some 1,700 digital audio files on Feb. 21, 2005. The evidence proved that the defendant use the Tereastarr monikor on e-mail accounts, online logins, including match.com, and as her username to access her own computer.  The evidence produced also showed that an internet protocol address associated with that Kazaa share file in question was assigned to Thomas by Charter Communications on the night RIAA investigators captured her shared folder. The cable modem used to share the files was also leased to Thomas, according to testimony from a Charter Communications security official.  Finally, Iowa State University professor and computer forensics specialists Doug Jacobson opined that no wireless router was used on the night in question (that fact is difficult, if not impoosible to ascertain, since printers, routers, and other devices are all assigned the same IP Address to the “eyes” of the ISP.

In one of the more important developments of the day, Judge Davis correctly instructed jurors that the mere “act of making [a copyrighted song] available for electronic distribution… violates the copyright owner’s exclusive copyright.”  This has been a topic of hot debate not only during the trial but in other RIAA cases as well.  This ruling would arguably make it easier for the jury to find against Thomas if they believe that she was, indeed, the fact behind the IP.

The jury is expected to diliberate today.  As in all trials, it will all come down to a matter of credibility — who does the jury believe and trust?

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Filed under Music Industry, Music Law

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