By Justin Rebello
Staff writer
In one of the most publicized cases in patent law, Richard Gabriel hit a high note for the music industry in October, winning the first courtroom victory against a person who illegally downloaded and shared copyrighted songs on the Internet.
The $220,000 verdict set the stage for an estimated 20,000 similar suits brought by the Recording Industry Association of America against individuals accused of illegally downloading free music on the Internet.
The verdict was against Jammie Thomas, a 30-year-old single mother from Minnesota who was identified as making 1,702 songs available for downloading.
Gabriel, a partner in the Denver office of Holme Roberts & Owen, said the primary challenge of the case was explaining to jurors how his clients were able to track and identify Thomas without using underhanded methods.
"There is a lot of misinformation out there regarding how we find people," said Gabriel. "We had to show that the way we found people who were infringing data was the way any normal person who was file-sharing would [find people on the Internet]."
But that process could be hard to follow for jurors, many of whom were not tech savvy. Gabriel met that challenge by calling an expert from SafeNet, the investigator for the music industry, to explain how the company was able to break through the barrier of Internet anonymity and definitively identify Thomas as the user known only as tereastarr@KaZaA on the file sharing site. He also called an engineering professor who introduced a graphic demonstrating how peer-to-peer networks operate.
"He played the role of a professor explaining [this process] to students," said Gabriel.
The case also received a boost during pretrial negotiations when the plaintiff offered to admit her hard drive as evidence that she did not willfully download the songs. Gabriel and his co-counsel called her bluff, and discovered that she had switched her original hard drive with a replacement.
"I believe the jurors felt she was a sophisticated person, that she knew exactly what she was doing and provided the wrong hard drive on purpose," said Gabriel.
Under the Copyright Act, jurors could award damages of up to $150,000 per violation for willful infringement, but reached what Gabriel called a "compromise verdict" of $9,250 for each of the 24 songs offered illegally.
Gabriel, who graduated from the University of Pennsylvania and Yale Law School, made a name for himself 15 years ago by successfully defending Sony Music and Michael Jackson in a suit filed by a Colorado woman who claimed the pop star infringed on her copyright.
He will continue to serve as national lead counsel for the recording industry, and the next case he plans to take to trial is against a California user accused of illegally downloading music. He believes his October victory will have a powerful impact on future litigation.
"The trial really did send a message to other people that jurors understand file sharing is not lawful and will take action when they see that," Gabriel said. "It showed the preference should be to settle, because we will try these cases."
December 17, 2007
