RIAA - Virgin(Capital) v. Thomas
I've been following this pretty closely, and, granted, my perception is only based on press around the event, but some of the reporting has been pretty thorough. My general take on the trial is that it felt rushed; due to the jury's lack of familiarity with technical concepts (and the defendant's lawyer's incomplete understanding of some aspects of the alleged infringement), I believe conclusions were reached by the jury which are at best inappropriate given the circumstances.

In particular - not even touching on the 'making available' argument which may be a critical issue if the defendant appeals - I understand the Kazaa installation process to prompt the user to scan their drive for files, and while it provides the option, the default is to automatically share all files found. I don't recall the exact language used during the installation process, but it could reasonably argued that the average computer user would not understand exactly what the application was doing. For most users, I believe this excludes the possibility of willful infringement (which carries much higher statutory penalties), leaving non-willful infringment with a minimum fine of $750 per infringement.

Here's an example of a well-reasoned argument, based in part on the above understanding of Kazaa's behavior - but making an additional argument for lower minimum fines based on the Home Recording Act, from a pro se defendant - albeit one who's done his homework. This should be required reading for anyone involved in the defense of a filesharing suit, though we'll need to wait until later this month to see which of the arguments are upheld by the judge after oral arguments.
- posted by vcmc @  10/05/2007 11:12:00 AM  |  2 comments