For a very reasoned commetary on the potential impact of Virgin v. Thomas on other Internet activity, read John Mahoney’s article entitled Forget File Sharing: the Internet is on Trial at his blog, The Digital Edge. Thanks for the insight John.
Mr. Mahoney correctly points out that in this age of wireless technologies and computer malware, many people are less in control of their devices than they may think. The lines between computer actions and people’s intentions are more blurred than many realize. This certainly has a great deal of impact on what we lawyers call the mens rea, i.e., the guilty mind. If a jury wants to hold someone liable for an action, the law generally requires that their be mens rea, particularly in the criminal arena. If that concept is applied to the copyright infringement that occurred in this case, the plaintiffs may have established the likely presence of a “mind,” but they have not established the presence of Ms. Thomas’ mind.
To be more precise, the plaintiffs were unable to establish the identity of the actual person, i.e., the guilty mind, if you will, behind the acts of infringement. Mahoney correctly points out that the only thing the plaintiffs succesfully proved was that the infringing activity occurred through the use of a specific hardware address associated with Ms. Thomas’ internet account, using a username that was consistent with other online usernames associated with her in the past. To use another legal term, the evidence was, at best, circumstantial.
This is more than just “smoke and mirrors,” a phrase plaintiffs’ counsel, Richard Gabriel, used in his closing to describe the defendant’s legal strategy. Is is an important component in any copyright infringement action to establish that the defendant, in this case Ms. Thomas, actually committed the acts of infringement. It is not enough to establish that the acts of infringement were committed using a computer owned by Ms. Thomas at a particular internet protocol.
We all await the verdict of the twelve. It is my hope that the jurors will see the subtleties of this distinction between an actual person and their online “identity.”