A legal complaint seeking class action status filed in Houston on Friday accuses social-publishing site Scribd of egregious copyright infringement.
Joe Sibley (left) and law partner Kiwi Camara.
(Credit: Camara & Sibley law firm)Scribd managers have "built a technology that's broken barriers to copyright infringement on a global scale and in the process have also built one of the largest readerships in the world," the attorneys representing the class wrote in the complaint. "The company shamelessly profits from the stolen copyrighted works of innumerable authors."
While this may sound like a generic copyright case, there's one interesting side note. The attorneys that filed the lawsuit are at the head of Camara & Sibley, the Houston-based firm defending Jammie Thomas-Rasset against copyright claims made by the music industry.
Joe Sibley and Kiwi Camara have made names for themselves largely by representing Thomas-Rasset, the Minnesota woman accused by the music industry of copyright violations. In June, a jury found her liable for willful copyright infringement and ordered her to pay $1.9 million in damages. Thomas-Rasset has asked for a new trial.
In an interview for a story published in July, Sibley said he and Camara could see themselves working for copyright owners, if they believed in the issue. He told me that they weren't locked into any legal dogma and would take cases based on their merits. It's not unusual for lawyers to argue both sides of copyright issues.
In their complaint, filed in U.S. District Court for the Southern District of Texas, the lawyers wrote that plaintiff Elaine Scott, a book author, found on Scribd in July an unauthorized copy of one of her titles, "Stocks and Bonds: Profits and Losses, A Quick Look at Financial Markets." They claim that the book had been downloaded more than 100 times from Scribd, which her attorneys called the "YouTube for documents."
Neither Scott nor Scribd representatives were immediately available for comment.
The class purports to represent "every author who owns a valid registered copyright in a work infringed by Scribd." Camara & Sibley said the number of infringing material on Scribd was known only to that company but predicted that the size of the class could be huge.
They did note that Scribd has said it would remove infringing documents when notified by a copyright owner, as is required by the Digital Millennium Copyright Act. San Francisco-based Scribd also has created an automated filtering system designed to prevent the publishing on its system of unauthorized works, once identified, from being uploaded again.
Camara & Sibley say very clearly what they think of Scribd's business model.
"Under the aegis of self-promoting misinterpretations of federal statutes," the lawyers wrote in their complaint, "the West Coast technology industry has produced a number of start-up firms premised on the notion that commercial copyright infringement is not illegal, unless and until the injured party discovers and complains of the infringing activity, and (the) infringer fails to respond to such complaints."
Camara & Sibley added to the complaint, "Apparently (the West Coast start-ups) believe any business may misappropriate and then publish intellectual property, as long as it ceases to use a stolen work when an author complains...Many millions of dollars have been invested in this business plan."
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."
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