Digital Media

Joe Sibley (left) and Kiwi Camara

(Credit: Camara & Sibley law firm)

The elder member of Jammie Thomas-Rasset's legal team is a former U.S. Army Ranger. He doesn't say whether he's proud of that, but his voice does dawdle when he says the words "special forces."

"I like pain. I like fighting. I like conflict," says Joe Sibley. "Going to war was something I always wanted to do (but didn't)...later in life I discovered I was more capable of fighting and ending wars with my mind."

The younger member of Thomas-Rasset's legal team says, half kidding, that he spent his youth disappointing his parents, who wanted a career for him in medicine. Instead, he fecklessly pursued a Ph.D in economics at Stanford University, and then drifted into law school at Harvard. When he graduated, magna cum laude, Kiwi Camara was 19 years old.

They are the founders of the Camara & Sibley law firm, and they are pretty much all that's standing between Thomas-Rasset, the music-pirating mother from Minnesota, and the $1.9 million judgment that's hanging over her head. Last month, the attorneys sat next to Thomas-Rasset when she was found liable for willful copyright infringement, the second time a jury has decided against her.

On Monday, her attorneys filed a motion for a new trial and asked the judge to set aside the verdict or reduce the damage award to the minimum of $18,000. If they don't get that, they plan to file an appeal. They will argue that forcing Thomas-Rasset to pay $2 million for illegally sharing 24 songs is unconstitutional, the equivalent of "sentencing someone to life in prison for shoplifting $25 worth of merchandise," said Sibley.

"We actually think that the jury award of $1.9 million is helpful to our argument about unconstitutionality," Sibley said. "Here's a real life award of a ridiculous amount of damages for a group of songs that costs $25 on the Internet."

That's not how 24 Minnesotans saw it. Thomas-Rasset has had two goes at proving to juries she wasn't the one who used her computer to illegally share music on a peer-to-peer service. The first time was in October 2007, when she was found liable for $222,000 in damages. The judge threw that decision out after acknowledging he erred in giving jury instructions.

As for Sibley, 34, and Camara, 25, the Thomas-Rasset case could be a springboard that launches them to the upper ranks of attorneys who defend downloaders and tech companies from copyright suits. They could certainly boost the reputation of their fledgling Houston-based law practice, which they opened in February, by helping Thomas-Rasset break her losing streak.

Pointing fingers
In her first trial, Thomas-Rasset was represented by another attorney who suggested to the jury that an unknown hacker might have commandeered her computer and shared the music. Sibley and Camara, who didn't take over the case until three weeks before her retrial, were skeptical anyone would believe some unknown third party was responsible.

Instead, the attorneys went with the only other choice they had, in effect fingering the only other people who had access to Thomas-Rasset's computer: her ex-boyfriend and her children. While on the stand, Thomas-Rasset said it was possible one of her children or her former boyfriend, who had babysat while she was away on three separate occasions, could have shared the music.

"On one end, if the jury believed it, they could let her off," Sibley said. "On the other end, if they disbelieved it that could create the opposite effect. If the jury thought she was lying and pointing a finger at family members, that could result in inflation of the statutory damages and in my opinion that is what happened in this case."

After such a dramatic defeat, how do they go forward?

"I think there is a fair shot that (U.S. District Judge Michael) Davis will grant (some of the requests) in our (new trial) motion," Camara said. "I think the arguments are strong, there's lots of law behind them and it's the first time he's heard them."

There's little doubt the case is headed to the 8th Circuit Court of Appeals, Camara said. The side Davis rules against will surely take the case to the higher court.

Facing long odds
Both Sibley and Camara acknowledge that they knew they were facing long odds when they offered Thomas-Rasset their services pro bono. The truth is that anytime a lawyer takes on the RIAA or MPAA in a copyright dispute, he or she knows that the opposing team has an almost perfect batting average, certainly with regard to the most high-profile disputes of the past decade. Tick off the names: Aimster, Napster, Grokster, and TorrentSpy, all wins for the copyright owners.

These are precisely the kind of long-odd cases that Sibley and Camara say they want. Sibley said one of his greatest regrets was that he joined the Army too late (1993) and missed the fighting in Somalia. He's spoiling for big fights. The calmer Camara said the duo is willing to take on cases that "matter, make a difference" regardless of how tough they are or whether they involve technology, securities or anything else.

The partnership was formed when the duo arrived at Harvard. Sibley and Camara were the first people each other met that first day on campus. Their individual trajectories to reach that point were vastly different.

The child of two doctors, Camara wrote a paper on treatments for rheumatoid arthritis that was published in a medical journal in his home state of Hawaii. He was 11. He dropped out of the 8th grade to attend college and graduated at 16. After Harvard he began teaching at Northwestern University School of Law. He was groomed for academic greatness.

In contrast, Sibley was an also-ran for most of his life, a poor kid from East Texas always battling more privileged and pedigreed opponents.

After getting out of the Army, he took a series of odd jobs in his East Texas hometown of Spring. No one in his family had ever gone to college and he never thought he would either--he was an average student in high school who got disciplined a couple of times for fighting--until one day he woke up and wanted to study philosophy and Frederick Nietzsche. First came community college then the University of Texas, where he took 21 hours of course work each term and graduated with honors--all the while working part-time, maintaining a marriage and raising a child.

At Harvard, said Sibley, he and Camara became friends and allies despite Sibley being one of the oldest students and Camara being the youngest. What they had in common was their conservative political views, which made them "outcasts" among the liberal majority, Sibley said.

They stuck by each other even when Camara stirred what became a controversy on campus that spilled out into a national debate via The New York Times. Camara posted course outlines on a student-operated Web site and used a racial epithet to describe African Americans. There were protests and denunciations. Camara seems to accept that the incident is going to trail him for a long time.

"The story has been covered in lots of other places," Camara said. "I have apologized many times and I think the existing coverage is adequate."

He and Sibley, who said he knows the pairing might seem odd to outsiders, don't seem willing to allow the controversy to define them or their practice.

"(Physically) I wouldn't pick him in a fight over too many people," a chuckling Sibley said of Camara. "But when it comes to mental toughness and ability he's one of the smartest people on the planet and he's scrappy. He doesn't take any s***. He's not the stereotypical sort of genius. He's more like the evil genius."

Update 5:48 p.m. PT: To include quotes from Thomas Rasset's attorney.

Jammie Thomas-Rasset, the Minnesota woman found liable for willful copyright infringement of 24 songs last month, has asked a federal court for a new trial or a reduction in the amount of the $1.92 million damages she was ordered to pay.

Thomas-Rasset, who a jury found liable for willful copyright infringement, asked the court Monday to either alter or amend the judgment, remove or change the award of statutory damages to the minimum, or give her a new trial. The minimum damages would be $18,000.

Joe Sibley (left) and Kiwi Camara, attorneys for Jammie Thomas-Rasset.

(Credit: Camara & Sibley law firm)

"(The $1.92 million) judgment is grossly excessive and, therefore, subject to remittitur as a matter of federal common law," her lawyers wrote in the filing with U.S. District Court for the district of Minnesota. "Moreover, such a judgment is inconsistent with the Due Process Clause of the United States Constitution."

In 2007, the Recording Industry Association of America accused Thomas-Rasset, 32, of copyright infringement. The trade group for the four top recording companies initially accused her of sharing 1,700 copyright songs--the equivalent of 150 CDs--but the RIAA whittled down the number to 24. A jury heard the proof against her as well as her defense, which boiled down to her denying any wrongdoing, and rendered a $222,000 verdict against her.

That decision was thrown out by the judge after he acknowledged erring in his jury instructions. Last month, Thomas-Rasset's retrial again saw 12 jurors decide against her. This time, however, they awarded damages of $80,000 for each of the 24 songs she was accused of sharing.

The $1.92 million award outraged many, and last week, Joe Sibley, one of her attorneys told CNET News that she would appeal on the constitutionality of the damages. He said Monday night that he and and legal partner Kiwi Camara still intend to file the appeal but have some time before the deadline.

Jonathan Lamy, an RIAA spokesman declined to comment on Monday, but last week, following Sibley's statement that Thomas-Rasset would appeal, Lamy said: "What's increasingly clear, now more than ever, is that she is the one responsible for needlessly prolonging this case and refusing to accept any responsibility for the illegal activity that two juries decisively found her liable for."

In the filing, Sibley and law partner Kiwi Camera once again took aim at the evidence gathered on behalf of the RIAA by MediaSentry, the Web sleuths that gather evidence of copyright violations for entertainment companies. MediaSentry did so for the RIAA in the case of Thomas-Rasset.

Sibley and Camara argued that the evidence submitted by MediaSentry is inadmissible because it was collected through illegal means. In Thomas-Rasset's retrial, she alleged that MediaSentry violated private investigator and wiretap statutes in the states in which it operated.

The judge in the case denied her original motion to suppress the evidence. Finally, Thomas-Rasset's attorneys wrote that the courts must distinguish between commercial and non-commercial forms of copyright infringement when assessing penalties.

"Even the plaintiffs were shocked by the verdict," Thomas-Rasset said in her motion. "No one could have expected $1.92 million for 24 songs. That alone justifies remittitur; at a minimum, Mrs. Thomas should not be subjected to a penalty that no reasonable person could have expected would flow from the noncommercial music sharing of which she stands convicted.

"But the verdict reveals a deeper problem with the statutory-damages scheme of the Copyright Act as applied in cases like Mrs. Thomas'. The Act does not distinguish, in determining the range of statutory damages, between commercial and noncommercial infringers, between those who infringe for great profit and those who do so for personal use."

Corrected at 4:40 p.m. PDT: The document filed by Thomas-Rasset's attorneys on Monday was a motion for a new trial.

It's official: Jammie Thomas-Rasset intends to appeal her case, one of her lawyers told CNET News on Wednesday.

"She's not interested in settling," attorney Joe Sibley said in a brief phone interview. "She wants to take the issue up on appeal on the constitutionality of the damages. That's one of the main arguments--that the damages are disproportionate to any actual harm."

Joe Sibley (left) and Kiwi Camara represent Jammie Thomas-Rasset.

(Credit: Camara & Sibley law firm)

Thomas-Rasset has a brief period to file a notice of appeal, legal experts said. The actual appeal can come later.

What this means is that the Thomas-Rasset drama will have a third act. In October 2007, a jury rendered a $222,000 verdict against her but that decision was later tossed out.

Then, two weeks ago, a federal jury in Minnesota found Thomas-Rasset liable for willful copyright infringement and ordered her to pay $1.9 million. Since then, the blogosphere has churned with speculation about how she will proceed. The 32-year-old Minnesota resident said after her latest trial that she would refuse to pay. Still, with $1.9 million in damages strapped around her neck, many have wondered whether Thomas-Rasset would fight on--or cut her losses and settle.

The Recording Industry Association of America said on Monday that it had made a phone call to Sibley and law partner Kiwi Camara last week to ask whether Thomas-Rasset wanted to discuss a settlement. An RIAA representative said that its lawyers were told by Sibley that Thomas-Rasset wasn't interested in discussing any deal that required her to admit guilt or pay any money.

In settlement talks, there's often maneuvering, so the RIAA was unsure which way Thomas-Rasset would go--at least until Sibley made it clear.

"The defendant can, of course, exercise her legal rights," said Jonathan Lamy, an RIAA spokesman. "But what's increasingly clear, now more than ever, is that she is the one responsible for needlessly prolonging this case and refusing to accept any responsibility for the illegal activity that two juries decisively found her liable for. From day one, we've been fair and reasonable in exercising our rights and attempting to resolve this case."

Sibley told CNET News that when RIAA lawyers called a couple of days after the second trial to gauge Thomas-Rasset's interest in settling, they didn't throw out any dollar figures. He did say that following Thomas-Rasset's first trial, the trade group offered to settle for $25,000.

Thomas-Rasset's case has already helped set a series of important legal precedents, including establishing that it is sufficient to show that defendants placed files in their P2P shared folder to prove they intended to make the music available across the network. With the case going to the appeals process, there's a good chance it will continue establishing legal parameters.

"They have an uphill battle," said Ben Sheffner, a former attorney at 20th Century Fox and a rising star on the pro-copyright side. Sibley and Camara "are asking the court to do something no federal court has ever done before. However, this is a good test case. You have a non-wealthy defendant and you have a huge damages award."

Jammie Thomas-Rasset's attorneys have rejected the music industry's "overture" at settling her case.

Just a couple days after Thomas-Rasset was found guilty of willful copyright infringement and ordered by a jury to pay $1.9 million, attorneys with the Recording Industry Association of America called to ask whether Thomas-Rasset was willing to discuss a settlement, a spokesman for the RIAA said Monday.

Jammie Thomas

(Credit: Jammie Thomas)

Thomas-Rasset's lawyers responded that she wasn't interested in any deal that required her to pay any money or admit any guilt, according to the RIAA's spokesman. That was the same response the 32-year-old Minnesota woman gave after a jury decided against her in October 2007.

Contacted at his office on Monday evening, Joe Sibley, one of Thomas-Rasset's attorneys, told CNET News that he wasn't aware of any settlement talks but needed to ask his law partner.

On June 18, a Minneapolis federal court imposed damages against Thomas-Rasset of $80,000 for each of the 24 songs she was ultimately found guilty of illegally sharing. This was a step backward for Thomas-Rasset, who was ordered to pay just $222,000 following her first trial. That decision was thrown out by the judge in the case, who acknowledged that he erred in instructing the jury prior to deliberations.

Throughout, the RIAA has said it is willing to settle and at one point was asking for just $5,000 from Thomas-Rasset. There is a chance that she could walk away from the nearly $2 million damage award by declaring bankruptcy, legal experts have said.

To do that, she would likely have to prevail at another trial in bankruptcy court. To convince a bankruptcy judge not to allow Thomas-Rasset to wipe out her debt, however, the RIAA would have to prove that she had malicious intent, or meant to cause harm, when she illegally shared files.

Some legal experts say proving malice is often difficult to do.

Prior to last year, bankruptcy court would not have sheltered Jammie Thomas-Rasset from the $1.92 million debt she owes the music industry. But a decision by the Ninth Circuit Court of Appeals in San Francisco could enable her to walk away from the debt, several legal experts said on Friday.

In a stunning jury decision on Thursday, Thomas-Rasset was found liable for willful copyright infringement and ordered to pay damages of $80,000 for each of the 24 songs she was accused of illegally file sharing. The 32-year-old is the first person accused of online music piracy by the Recording Industry Association of America who has taken his or her case to court.

(Credit: Greg Sandoval/CNET Networks)

This is the second time that a jury has ruled in the case against the Brainerd, Minn., resident. In October 2007, she was ordered to pay $222,000, but the decision was thrown out after the judge in the case acknowledged he erred in giving jury instructions. Thomas-Rasset has become the Joan of Arc of the file-sharing community. She has vowed to keep fighting. She's told reporters she hasn't the means to pay the RIAA, and wouldn't if she could.

Here's why bankruptcy court may be an option for Thomas-Rasset, according to Ira Rothken, the lawyer who has represented BitTorrent tracking sites such as TorrentSpy and Isohunt, and has a long record of defending clients against the entertainment industry:

He says that in the past, when someone was found liable of willful copyright infringement, the law prevented the defendant from discharging, or wiping out the debt in bankruptcy court. Last year, however, the Ninth Circuit Court of Appeals found in the case of Barboza vs. New Form, that "willful" meant one thing in civil court and something else in bankruptcy court.

In trademark or copyright cases, "willful" means that a defendant knew what they were doing. According to the Ninth Circuit, bankruptcy laws mandate that for a debt to be non-dischargeable, a plaintiff must prove a defendant was "willful and malicious," meaning the person's intent was to cause harm.

Even entertainment lawyers agree that the Ninth Circuit's decision in Barboza makes it tougher for copyright owners to collect damages. Kathryn Bartow, an attorney with Manatt, Phelps & Phillips, a Los Angeles-based law firm that does extensive work for the major movie studios, wrote in a February issue of her firm's newsletter:

(Barboza) serves as a warning to trademark and copyright owners as well as the counsel who represent them in willful infringement cases. When presenting evidence and crafting jury instructions, beware. In willful infringement cases, to prevent an individual defendant from having its debt discharged in bankruptcy, the plaintiff should consider introducing sufficient evidence and including additional jury instructions to satisfy the Bankruptcy Code's definitions of 'willful and malicious.'

If the jury had only found Thomas-Rasset guilty of copyright infringement instead of willful infringement, it would have been easier for her to get rid of the debt.

"If she could have won on that point," Rothken said, "it would be absolutely dischargable without even having to have another hearing in bankruptcy court. She'd be going into a settlement discussion (with the RIAA) saying 'Look, if we can't settle it, I'm just going to go bankrupt and you're not going to get anything.' Now her conversation must be 'Hey, if we can't settle, I'm going to go forward and file for bankruptcy,' and they'll say 'Well, you'll have to have another trial.'"

Fred von Lohmann, an attorney for the Electronic Frontier Foundation, an Internet-user advocacy group, said that proving malice in bankruptcy court might be extremely hard for the RIAA.

"No. 1, I'm not at all sure that they'd be interested in trying this case again," von Lohmann said. "And No.2, I'm not sure they'd win. Just because you think she did it doesn't mean necessarily that she knew and intended to harm the industry. We know that lots of people are running Kazaa without understanding that they're sharing (the music files) at the same time."

Jammie Thomas-Rasset now owes the RIAA $1.92 million.

(Credit: Jammie Thomas-Rasset)

Much of what happens next depends upon how settlement talks go between the RIAA and attorneys for Thomas-Rassert.

Since the second the jury's decision was read, the RIAA has said it wants to settle. The trade group for the four largest music companies repeated that sentiment on Friday.

"It was a jury of regular folks who rendered this decision," said Jonathan Lamy, a spokesperson for the RIAA. "We do not seek any specific damage awards. For the few existing cases, this verdict is a reminder of the clarity of the law. With any case, including that of Ms. Thomas-Rasset, we seek to settle these out of court. We stand ready and willing to talk settlement with Ms. Thomas-Rasset or anyone. We think that's most beneficial for everyone involved."

What Thomas-Rasset must consider before going forward is that she has lost twice in court. The legal costs for her may rise. As it stands, the RIAA can legally garnish her wages. According to Bloomberg, she works as a natural-resources coordinator for a Native American Indian tribe.

For the RIAA, the size of the damages stamps it with the bully label and backfires when it comes to public relations. That's the opinion of Ben Sheffner, a former entertainment lawyer and copyright proponent. He says the jury award also potentially hurts the RIAA if someone decides to challenge the damages on constitutional grounds.

"On the plus side, the decision sent a strong message," Sheffner said. Twenty-four "average Minnesotans with no ties to the entertainment industry have now said what she did was wrong and she deserves a strong punishment. On the other side, the size of the monetary damages could be used as serious ammo against the music industry."

Jammie Thomas-Rasset now owes the RIAA $1.92 million.

(Credit: Jammie Thomas-Rasset)

Jammie Thomas-Rasset was found guilty of willful copyright infringement on Thursday in a Minneapolis federal court and must pay the recording industry $1.92 million.

In a surprise decision, the jury imposed damages against Thomas-Rasset, who was originally accused of sharing more than 1,700 songs, at a whopping $80,000 for each of the 24 songs she was ultimately found guilty of illegally sharing.

In 2007, the Recording Industry Association of America claimed in a lawsuit that Thomas-Rasset pilfered 1,700 songs. The RIAA eventually culled that number down to a representative sample of 24.

Thomas-Rasset lost a previous trial in October 2007 when a jury rendered a $222,000 verdict against the Minnesota native. U.S. District Judge Michael David threw out the decision after acknowledging he erred when giving his jury instructions.

According to Ars Technica reporter Nate Anderson, Thomas-Rasset gasped when the dollar amount was read in court.

For the four largest recording companies, the jury's decision is an affirmation of the legality of the industry's copyright claims.

"We appreciate the jury's service and that they take this issue as seriously as we do," said Cara Duckworth, an RIAA spokeswoman. "We are pleased that the jury agreed with the evidence and found the defendant liable. Since day 1, we have been willing to settle the case and remain willing to do so."

According to Ben Sheffner, a copyright advocate and former attorney for 20th Century Fox who attended the entire hearing, one of Thomas' attorneys is willing to discuss a settlement with the music industry.

Jammie Thomas will be much more restricted in arguing her defense after Thursday's court decision.

(Credit: Jammie Thomas)

A federal judge dealt a serious blow to Jammie Thomas' defense on Thursday.

U.S. District Court Judge Michael Davis will allow evidence gathered by MediaSentry, a security firm that once investigated illegal file sharing on behalf of the music industry, to be heard by a jury in Thomas' retrial, scheduled for Monday. Thomas is the first person sued by the recording industry for copyright violations to have her case argued before a jury. She was found guilty in October 2007 of illegally sharing 24 digital-music files. The judge in the case declared a mistrial after acknowledging he erred in giving jury instructions.

Her new attorneys recently accused MediaSentry of violating federal and Minnesota wiretapping statutes and asked the judge to throw out its findings.

The decision is significant for the music industry. Had the judge granted Thomas' motion, "it would have been nearly impossible" for the Recording Industry Association of America to prevail, according to Ben Sheffner, a former entertainment industry attorney and copyright expert.

Davis also won't let Thomas raise a fair-use defense because she waited too long to make the argument.

"This litigation has gone on for years, yet Plaintiffs had no inkling of this defense until the eve of trial," Davis wrote in his decision. "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."

What all this means is that Thomas' legal team is running out of ways to prove she's innocent. At her first trial, her defense offered little more than her telling the jury she was innocent of illegally sharing music.

That didn't work out so well. One member of the jury called her a liar following the trial.