New Thomas trial opens with advantage to RIAA

Reporting from the new Jammie Thomas-Rasset trial, Marc Bourgeois notes that jury selection is just about complete at this writing and that the jury is overall younger than the last one, surely good news for the defendant.

Even so, it's an uphill battle for Thomas-Rasset, Ars Technica notes. Thomas-Rasset's pro bono lawyer, Kiwi Camara, tried and failed to throw two huge procedural logs on the RIAA's tracks.

First he tried to block evidence from MediaSentry that they actually downloaded files from Thomas-Rasset. Judge Michael Davis last week denied the motion because MediaSentry is not subject to Minnesota's private detective registration laws, the federal pen register law doesn't bar the recording of IP adddresses, and one has no expectation of privacy when using a peer-to-peer program (since the whole point is to communicate with other users about what files you have and which you want.)

Thomas-Rasset had originally failed to state a fair use defense, and the judge knocked down Camara's attempt to raise it on the eve of trial.

That left the most promising avenue -- the fact that the RIAA had failed to produce certified copies of their copyright registrations. The judge allowed this objection, but RIAA was able to procure the certified copies from the Copyright Office at the last moment.

When Judge Davis threw out the original verdict because he had improperly allowed a jury instruction stating that Thomas is guilty if she had made available the files, many of us had high hopes that she would ultimately prevail here.

But with the ruling that the MediaSentry evidence of downloading can come in, RIAA should be able to prove actual distribution.

One last bit of hope, but it's a long shot. Camara is urging the judge to find that even if Thomas-Rasset is guilty that the statutory fines Congress passed are unconstitutional. That's an argument for the court of appeals. The U.S. District Court judge won't make that determination, in all likelihood.