All eyes on Minnesota as RIAA trial starts over

The only file-sharing trial ever to go before a jury met with a spectacularly unsympathetic one back in 2007. As Jammie Thomas-Rasset (the former Jammie Thomas) prepares once again to face federal charges that she shared 24 songs over KaZaA back in 2005, keep an eye out for these developments:

• Keep your eye on Kiwi. Thomas-Rasset's new lawyer, Kiwi Alejandro Danao Camara, will celebrate his 25th birthday in the courtroom tomorrow, quite possibly by breathing fire. There doesn't seem to be much else beyond the abilities of the Philippine-born Camara, who graduated magna cum laude from Harvard Law in 2004 (at 19) and has a bachelor's degree in computer science.

Mr. Camara is currently a partner at Camara & Sibley in Houston. He decided to take the case after a colleague heard that Ms. Thomas-Rasset's previous lawyer, Brian Toder, cited $130,000 in unpaid legal bills and stepped down. Camara & Sibley will be handling the case pro bono. The firm is also working with Harvard Law's Charles Nesson to defend Brittany English, also being sued by the RIAA; in that case they're arguing that excessive statutory damages -- a maximum of $150,000 per song -- are unconstitutional and that the RIAA's threat to extract such settlements is unlawful as well.

• Watch those numbers. Those of you who take a Sunday newspaper may have noticed an ad insert yesterday for the SanDisk slotRadio, which uses MicroSD cards to load about 1000 swappable songs. The "music card" is listed as a $39.99 value, which means that those 1,000 songs cost a hair under 4 cents each -- or less, depending on how much the MicroSD card is worth.

Under those circumstances -- and with RIAA counsel previously admitting that the record labels make in the neighborhood of 70 cents/song from legitimate downloads on services such as Amazon -- it's stunning to think that the law allows for fines of up to $150,000 per song. (Musicians who have experienced the unique math by which record companies determine royalty payouts have also commented on the remarkable figure.) Mr. Toder had also flagged the statutory fees as unlawful -- as did Michael J. Davis, the judge in the previous case, in a remarkable decision (PDF available here) overturning the previous trial.

• Tech, take two. The Register, with its usual flair, habitually refers to Ms. Thomas-Rasset as the "world's dumbest file-sharer." Part of its dismay is based on some of the tech-related claims she made at her previous trial: claiming that her Wi-Fi might have been breached (she wasn't using Wi-Fi), attempting to scour the hard drive before it went into evidence, and so forth.

This time around, she'll have a computer science professor testifying as how all this might not be her fault. Dr. Yongdae Kim can only tell the jury about things that might actually have happened in this specific case, but considering the lack of technical acumen on the average jury, you never know what might make an impression. On the prosecution's side of things, the Geek Squad will be present in spirit at least, as the RIAA is expected to introduce Ms. Thomas-Rasset's Best Buy sales-and-service history.

• Could race play a part? Many observers who read the previous jury's post-trial comments noted that frankly, the jury just didn't seem to like her. (More than one juror wanted to levy that maximum per-song fine of $150,000 against her -- for 24 songs, that would have been $3.6 million.) Some have asked whether Ms. Thomas-Rasset, a Native American and then-single mother, would have gotten a different result in a different skin.

Maybe, maybe not; Minnesota's a weird place. But it would be even more bizarre to see Camara -- once notorious for a spectacularly ill-chosen phrase in a case summary he wrote at Harvard -- raise the issue. And Ben Sheffner at Copyrights and Campaigns suggests that Camara's efforts concerning that $150,000/song statutory award could increase sympathy for the defendant: It's "not inconceivable that the jury will be sympathetic toward Thomas, whom the defense will portray as a victim of large companies' abusive litigation strategy."

• Whiter MediaSentry. One possible mode of attack for the defense team looked promising, right up until the judge disallowed it last week. Camara had hoped to have download evidence gathered by MediaSentry barred from admission, since the company has no license for private investigation in the state of Minnesota, and was also working up an expectation-of-privacy angle. The judge disallowed both, which means the evidence that "tereastarr" (Ms. Thomas-Rasset's alleged account name on KaZaA, as well as on match.com, EA Sports and other sites) made the 24 files available can be admitted.