In October 2007, Thomas was found guilty of distributing copyrighted songs and ordered to pay a fine of $222,000 ($9,250 for each of the 24 songs involved in the case).  A year later the verdict was thrown out because of faulty jury instructions.  Last week I followed the Ars Technica coverage in the retrial of Capitol Records vs. Jammie Thomas-Rasset.

Scratch almost everything I said about Thomas-Rasset needing to hire a qualified computer forensics expert.  She did hire a computer forensics expert, however, she neglected to tell the expert that the hard drive she gave him to examine was installed AFTER she was notified about infringing on copyrights.  She neglected to tell everyone this fact instead saying the hard drive was replaced a year before.  The expert found a sticker on the drive indicating that it was manufactured in 2005 when Thomas-Rasset claimed it was installed in 2004.  (Even without this it would have been easy to determine when the hard drive was installed from artifacts on the hard drive.)  It’s obvious to me what she was trying to do.  MediaSentry reported seeing that she had songs being shared on her PC and she gave everyone a brand new drive to examine because they would find no traces of KaZaA installed on it.

The difference between civil cases and criminal cases is that in a civil case a conviction is based on the preponderance of evidence not beyond a reasonable doubt like in criminal cases.  The moment she was notified that she was infringing on copyrights she was required to preserve evidence (believe it or not).  Her story about one of the kids hitting the tower simply does not fly.  It takes more than that to kill a hard drive.  In many cases, the defense could have been sanctioned for spoliation [PDF] meaning the jury could assume that the missing evidence would have been unfavorable to Thomas-Rasset.

The lack of evidence explains why her defense did not choose to counter the evidence from the plaintiff’s experts with their own physical evidence.  Instead they countered with wild scenarios of what could have happened and almost outright pleas for sympathy.  She was found guilty again.  I have to admit that if I was on that jury, I probably would have found her guilty as well given what I read on the case.

With this new $1.9 million verdict, I’m thinking she should have settled.  I wonder what the defense’s strategy was given that they could not counter the plaintiff’s evidence with any evidence of their own.  I’m sure no one expected such an excessive award for the plaintiff.

Disclaimer: Opinions expressed here are my own and not the opinions of any employer or organization of which I am a member.

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