Round 2, Day 3

THE MORNING WAS SLOW at RIAA vs Thomas, and both jurors and spectators were assaulted multiple times by Richard Marx ballads before the plaintiffs finally rested. Three days and innumerable legal opinions later, the RIAA’s final arguments were made by a succession of copyright lawyers listening to Sarah MacGlachlan and sagely nodding their heads at dusty pieces of paper from the US copyright office.

Contrary to expectations, the defense called only one witness to the stand. Jammie Thomas-Rasset returned to the hotbox for a second go-around, and her performance was nothing short of spectacular.

Defense counsel Joe Sibley opened up by boldly addressing the inconsistency between her previous depositions and the facts of the case. Asked point blank if she was lying about the hard drive, she replied that she wasn’t and further asked, “If I were going to lie about the hard drive, why would I hire my own expert to examine it?” She went on to say that she had confused several dates in her earlier depositions, which took place two years after the alleged events. Imperfect memory, not dishonesty, was her reason for saying that the drive had been replaced in early 2004 instead of early 2005.

She also denied having misled RIAA representatives whom she called them after being contacted in 8/05. At the time the RIAA rep that she talked to led her through the process of looking for KaZaA on her computer, and of course she didn’t find it because the hard drive had been replaced back in 3/05 by Best Buy. When asked Thomas-Rasset said that she thought that the lawsuit pertained to an issue that had happened within the last six weeks or so, and that it didn’t occur to her to mention the hard drive until later.

As to the fate of the original hard drive, Thomas-Rasset said that it was broken by her older son when he smacked the tower in a fit of frustration and that she hadn’t gotten it back after Best Buy had replaced it. We know, hard drive replacement, not the first course of action for professionals but Best Buy loves to replace hard drives.

Speaking of Thomas-Rasset’s children, they were not quite as closely supervised on the computer as the RIAA would like us to believe. They had their own account on Jammie’s computer and were frequently able to log on unsupervised while she did things around the house. Another possible suspect was Thomas-Rasset’s ex-boyfriend Justin Gervais, who kept an eye on the boys for her while she took weeks long business trips out of town in 2004 and 2005. Gervais was a college student and was given access to the kids account so that he could access his e-mail and do homework while staying with Thomas-Rasset’s children.

Joe Sibley then called her attention to the list of songs she supposedly downloaded on the screenshots that MediaSentry had taken of her computer, citing page after page of music by industrial/metal bands that Thomas-Rasset said she didn’t know and didn’t like- Ministry, Opeth, VNV Nation, and Wumpscut and Morbid Angel. Singling out Opeth, a Norwegian black metal band, she said that she didn’t even know that there was such a genre as “Norwegian black metal” before the lawsuit and that she certainly hadn’t downloaded Morbid Angel’s “World of Shit”. Thomas-Rasset did note that her boys and her ex-boyfriend were both fans of heavy metal, and that they had the ability to access the internet from the family account.

Asking about some of the other bands on the list that she did like and owned CDs for, Thomas-Rasset said that all of her music was ripped using Windows Media Player, which rips to the .wma format, not the MP3s seen in the screenshot. Her boys, however, used Yahoo Launchcast, which rips CDs to an MP3 format. She said that the boys had had access to her files in the past and might have put her music into a KaZaA folder without her knowledge.

Carefully rebutting the RIAA’s contention that she simply used a converter on the old hard drive to turn the .wma files into MP3s, Thomas-Rasset denied that she knew that it was even possible to do that before the lawsuit started and stated that it would be a waste of her time to rip all 240 CDs from her collection to both .wma and MP3 format.

Another slice at the RIAA’s case came when Thomas-Rasset revealed that the tereastarr screen name didn’t refer to her, but to the name she wanted to give to a baby girl if she ever had a daughter, “Terea Starr”. Though it had been her username for 16 years, it was also well known to her boys and her ex-boyfriend. She also said that the kids had used her tereastarr account in the past to order “premium phone service” and online video games.

Finally, Joe Sibley asked her to sum up how she felt after everything she’d been through.

Thomas-Rasset became emotional and talked about the years of trials and testimony that she’s had to give, and all of the “firsts” she missed with her children and about how the RIAA had first tried to “extort $5000 dollars from me” and then had asked her to testify that her children had been the ones downloading the music. She refused on the basis that the RIAA would “destroy their lives” as they’d destroyed hers. She sobbed out, “I buy my music, I don’t need to steal.” And that the RIAA wanted $36 million from the lawsuit, which wasn’t reasonable.

Losing control of herself, she said that the RIAA had hired Dr. Doug Johnson to give false testimony against her, which was quickly objected to and stricken from the record.

The RIAA’s cross-examination went back over the difference between Thomas-Rasset’s deposition testimony and her statements in court. She effectively parried his arguments and had, in fact, deflected the main thrust of his second attack session by directly answering Joe Sibley’s questions at the beginning of her defense testimony.

Plaintiff lead counsel Tim Reynolds tried to get her to declare that it was either her children or her ex who had downloaded the music, but she simply responded that she didn’t have any information outside of her testimony and wasn’t sure who could have done it. She went further and stated that the “gung-ho” RIAA lawyers had refused to even consider another suspect and had gone directly after her from the start.

And then it was over. The defense resting their case on the simple fact that no one can be positive just who it was that downloaded the songs onto Thomas-Rasset’s computer and seeing no need to call further witnesses to testify to that fact. Whether or not they’ve shown that the preponderance of the evidence shows that Jammie Thomas-Rasset is not guilty of downloading is now in the jury’s hands.S|A

Closing arguments are slated to start on Thursday at 9am. Look for live twitter throughout the day and a summary tomorrow.


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