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Jammie Thomas can possibly use bankruptcy to get out of RIAA debt

20 June 2009 19:31 by Andre "DVDBack23" Yoskowitz | 10 comments

On Thursday, Jammie Thomas was found to have "committed willful violation" of the copyrights of 24 songs she shared via P2P and the jury awarded the RIAA and the media companies $1.92 million USD, equivalent to $80,000 for each song.

Quite obviously, the RIAA will never see that full amount, but thanks to a recent decision by the Ninth Circuit Court of Appeals in San Francisco, the group may not see a cent.

Ira Rothken, the US-based lawyer who in the past has represented public torrent indexers TorrentSpy and Isohunt says Thomas may be able to get out of the debt through bankruptcy court, something that was not an option until that recent San Francisco decision.

The case, Barboza vs. New Form, made it clear that "willful violation" is different in civil court than in bankruptcy court. "Now her conversation must be 'Hey, if we can't settle, I'm going to go forward and file for bankruptcy,' and they'll say 'Well, you'll have to have another trial,'" added Rothken, according to CNET.

Now, in copyright cases, "willful" must imply the defendant's intent was to cause harm, a point the RIAA did not prove in their case against Thomas.

Kathryn Bartow, a lawyer with Manatt, Phelps & Phillips, works for the major film studios, but also agrees it will be hard for the RIAA to collect the money:

"(Barboza) serves as a warning to trademark and copyright owners as well as the counsel who represent them in willful infringement cases. When presenting evidence and crafting jury instructions, beware. In willful infringement cases, to prevent an individual defendant from having its debt discharged in bankruptcy, the plaintiff should consider introducing sufficient evidence and including additional jury instructions to satisfy the Bankruptcy Code's definitions of 'willful and malicious.'"

Fred von Lohmann, an Electronic Frontier Foundation attorney, agrees the RIAA will have their hands full in bankruptcy court.

"No. 1, I'm not at all sure that they'd be interested in trying this case again," says von Lohmann. "And No.2, I'm not sure they'd win. Just because you think she did it doesn't mean necessarily that she knew and intended to harm the industry. We know that lots of people are running Kazaa without understanding that they're sharing (the music files) at the same time."

What is next is whether Thomas and the RIAA will settle, whether the RIAA will get sued over the damages on a constitutional basis, or whether Thomas will go to bankruptcy court and the RIAA will be forced to take her to court again. It seems the fun has just begun.

Permalink to this article | Topic: Lawsuits & Legislation

DOJ calls Jammie Thomas' $1.92 million file sharing fine "constitutional" (15 August 2009)

Kazaa making a comeback, this time legit (19 July 2009)

New site converts torrent files into PNG image files (15 July 2009)

uTorrent is clear market share leader for torrent clients (26 June 2009)

Even RIAA witness 'shocked' by Jammie Thomas verdict (23 June 2009)

Woman with no computer 'settles' with RIAA over piracy claim (21 June 2009)

RIAA needs to be disbanded, says Moby (20 June 2009)

Jammie Thomas loses case to RIAA (18 June 2009)

Judge rejects experts employed by RIAA (21 May 2009)

RIAA lawyers oppose Jammie Thomas getting time to find a lawyer (19 May 2009)

European Parliament says court order required for ISP disconnection (11 May 2009)

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gnovak1 (Junior Member) 20 June 2009 22:10
This is good news for Jammie. I so badly want to see her win and nail those guys. Bankruptcy isn't fun but it beats paying $80,000 per song. Then anyone they sue in the future may also be able to get out of the debt through bankruptcy which means the RIAA will never really win. This woman has children to support with limited salary. I just hope this will all go away soon and she will be able to raise her kids minus all this stress. I'm rooting for ya Jammie !!! [ + quote]
canuckerz (Senior Member) 21 June 2009 10:29
It was never really about the money though; if anything it could be described as an act of terrorism. I say this because they're doing this to try to put the fear into people because "if a suburban mom can get sued anyone can". Thus it is used to create widespread fear onto others which then therefore can be labeled terrorism. *Originally posted by Wikipedia:* Terrorism is the intentional use or threat to use violence against civilians and non-combatants "in order to achieve political goals". This tactic of political violence is intended to intimidate or cause terror for the purpose of "exerting pressure on decision making by state bodies." The term "terror" is largely used to indicate clandestine, low-intensity violence that targets civilians and generates public fear. Thus "terror" is distinct from asymmetric warfare, and violates the concept of a common law of war in which civilian life is regarded. [ + quote]
ZippyDSM (AfterDawn Addict) 21 June 2009 12:26
This is basically corporate bullying of the populace, a terrorist tactic to keep the sheep in line. [ + quote]
joe777 (Member) 21 June 2009 13:03
*Originally posted by ZippyDSM:* This is basically corporate bullying of the populace, a terrorist tactic to keep the sheep in line. Well said zip. [ + quote]
ZippyDSM (AfterDawn Addict) 21 June 2009 13:09
*Quote:* *Originally posted by ZippyDSM:* This is basically corporate bullying of the populace, a terrorist tactic to keep the sheep in line. Well said zip. Its cheaper than making a product people want to buy. [ + quote]
borhan9 (AfterDawn Addict) 21 June 2009 18:55
Legal loop hole after legal loop hole. Dismantle these bodies and make clear legislation. [ + quote]
ZippyDSM (AfterDawn Addict) 21 June 2009 18:58
*Originally posted by borhan9:* Legal loop hole after legal loop hole. Dismantle these bodies and make clear legislation. Wheres the profit in that? :P [ + quote]
theridges (AfterDawn Addict) 22 June 2009 7:16
Lol, 80,000 per song that's great. It's like a joke what point are you making sueing a women with kids and a base income its so childish to me. and 24 songs 24!!!! that's 2 albums worth lets be real. [ + quote]
FredBun (Senior Member) 26 June 2009 13:05
Whatever happens I am rooting for this woman. [ + quote]
mscritsm (Newbie) 3 July 2009 19:30
I saw an interview with Jammie and her lawyer a couple of days after the court decision, and her lawyer seemed to believed that she could not get out of the decision because he felt the "willful" provision did apply to her. I was not impressed by this lawyer, who was different than the one in her first case. In the latter case, he rolled the dice and put Jammie on the stand when she hadn't been in the first case. Apparently she did not make a good impression on the jury, which felt she knowingly traded songs. For her part, Jammie said she was not going to worry about the award until all appeals were exhausted. She said that if she worried about paying it now she would just go crazy. [ + quote]