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Gnat, Meet Cannon

Cecilia Gonzalez doesn't want to fight the recording industry. She doesn't have a choice.



Cecilia Gonzalez was laid off two weeks ago, and three of her five children are home sick with the flu. But the 29-year-old has bigger problems on her hands: according to the terms of a summary judgment handed down last month, she owes five major record companies a total of $22,500 for illegally downloading 30 songs off the Internet. Sony Music, BMG, Universal Music Group, the Atlantic Recording Corporation, and Latin-music giant Fonovisa are after her for more than three-fourths of what she made last year as a secretary.

Gonzalez was one of 261 people across the country--51 of them in the Chicago area--named in the first wave of civil suits brought by record companies and their trade organization, the Recording Industry Association of America, in September 2003. The suits were intended in part to disrupt the use of peer-to-peer file-sharing networks like Limewire, Gnutella, and Kazaa, which have no administrators and thus provide no target for legal action.

Gonzalez's defense has relied on the doctrine of "fair use"--enshrined in the U.S. Copyright Act--and the claim that she was an "innocent infringer" upon the record companies' copyrights. On February 7 her lawyer plans to appeal the summary judgment in the Seventh Circuit Court of Appeals, hoping to get the case brought before a jury. It's a long shot: fair-use defenses failed to save Napster, Aimster, and, and there are no precedents involving individual citizens. None of the downloading suits against individuals has yet gone to court--so far more than 1,800 defendants have settled and paid up without a trial. Many haven't even bothered to hire lawyers.

Gonzalez's attorney, Geoff Baker, now sees the case as something bigger than a dispute over copyright law. A founding partner of the Oak Park firm Dowell Baker, which specializes in intellectual-property matters, he's working pro bono because he doesn't like the record companies' tactics. "In our view, Cecilia should have the right--does have the right--under the Seventh Amendment of the Constitution to have a jury decide whether or not she is an innocent infringer and to have a jury decide whether or not she should have to pay any damages whatsoever," he says. In issuing a summary judgment, "the judge took that right away from her."

Gonzalez was born in Guanajuato, Mexico, and her family moved to Chicago in the late 70s, settling in Pilsen. She dropped out of high school in the ninth grade and worked a series of clerical jobs; in 1998 she married her husband, Armando, who's currently kitchen manager at Pompeii in Lakeview. Gonzalez had just given birth to their youngest child when the downloading trouble began.

In early 2003 the family bought its first computer and signed up for high-speed Internet service through a Comcast promotion. Gonzalez heard about Kazaa at work, installed it on her home computer, and began downloading songs. She maintains that she didn't know file sharing of copyrighted material was illegal. "In my head there was nothing wrong with it, because why would they have it out there if it was?" she says. "Never did it say it's illegal, or don't do it."

Defense filings claim that "a couple of days after installing the program, Cecilia . . . noticed a tool that gave her the option of 'sharing' the downloaded music folder with other users. . . . Cecilia changed the setting and selected to 'not share.'" Baker hopes to establish that Gonzalez had intended only to listen to downloaded tracks herself, not distribute them.

The RIAA's senior vice president for legal affairs, Stanley Pierre-Louis, acknowledges that Gonzalez may have been sharing her files only briefly and perhaps unwittingly, but he maintains that it doesn't matter. "The answer we have is if you'd turned the [share] default off we wouldn't have found you," he says. "That's the bottom line." The RIAA had started with the IP number of Gonzalez's computer and acquired her name from Comcast with a "John Doe" subpoena, filed under the Digital Millennium Copyright Act--a practice the ACLU considers a violation of due process.

More important to the defense is the claim that Gonzalez used the Kazaa program to download songs she already owned on CD onto her computer. She wanted to be able to listen to them in any order, but didn't want to manually copy her whole CD collection onto her hard drive--she and her husband own about 250. She also used Kazaa to download a few songs she didn't own, but only to "listen to them and determine if they were something she would be interested in purchasing." Of the roughly 1,000 songs she downloaded, Baker says, the overwhelming majority duplicated tracks on discs she'd paid for.

In her deposition, Gonzalez testified that she and her husband spent about $30 per month on CDs, and that "her ability to download music off the Internet for free did not affect how many CDs she and her husband ended up buying." But the RIAA wasn't interested in splitting hairs or discussing intentions. Even if Gonzalez had copied only her own CDs onto her computer, the act of making those songs available on a file-sharing network--even accidentally and for just a few days--still would've been illegal.

During the discovery phase, the record companies' attorney asked to see Gonzalez's CD collection. "I said, 'Great, go to her house, make a list,'" says Baker. "And that was in an effort to make sure they understood that they were barking up the wrong tree here. That they were looking to go penalize one of their good customers." Investigators photographed and catalogued each of Gonzalez's CDs; Baker claims that the record companies narrowed their suit to include just 30 songs after realizing they'd weaken their case by pursuing judgments on downloaded music Gonzalez already owned. "If they could have gone after her on summary judgment on the other 1,000 songs, don't you think they would have?" he says. RIAA spokesman Jonathan Lamy puts a different spin on the decision: "We moved on a smaller number so that any recovery would be modest, and to be as fair and reasonable as possible."

Near the end of discovery Baker asked the record companies to withdraw the complaint, but they refused, offering instead to settle for $3,000 to $4,000--the typical amount in such cases, according to the RIAA. "We make every attempt to be fair and reasonable. But these are open-and-shut cases," says Lamy. Baker talked to Gonzalez about the settlement offer. "She said, 'I can't do that'--what they were asking for would bankrupt her."

Settlement talks ground to a halt in summer 2004, and in August the record companies filed a motion for summary judgment against Gonzalez in the U.S. District Court for the Northern District of Illinois, on the grounds that "there is no genuine issue as to any material fact" concerning her infringement upon their copyrights. They sought statutory damages totaling $22,500, or $750 for each of the 30 disputed downloads--the minimum fine for this kind of copyright violation.

Baker filed a memorandum in opposition, stating that summary judgment could be granted only "where the evidence is such that no reasonable jury could return a verdict for the non-moving party." He was and is confident that Gonzalez would win if given her day in court. "If a jury of her peers was sitting there looking at her--we're talking regular folks who go out and buy music--most of those people don't own 250 CDs like Cecilia. I think they'd say, 'I can't believe they're picking on this woman. She didn't do anything that wrong.'"

But district court judge Blanche Manning rejected Baker's argument. On January 14 she ruled that Gonzalez's fair-use and innocent-infringer defenses were without merit. She cited the "old adage that ignorance is no defense against the law" and found Gonzalez liable for the entire $22,500.

"They keep claiming it's about making a case and making it clear to the world that they really value these copyrights and they're really important," says Baker. "And we kept saying, 'She's buying your stuff, she is respecting your copyrights. She really is out there purchasing your products.' But they weren't interested in hearing that."

Gonzalez says she's still shocked to have been singled out. "You think about all these people doing these illegal things and I ask, Why me?" she says. "It's not like they caught me with a hundred CDs trying to sell them."

The record companies have justified their pursuit of downloaders like Gonzalez with claims that music sales have been steadily declining since 2000, when services like Napster became a phenomenon. But despite the RIAA's protests, it's not clear that piracy is to blame for the slump: the industry has been releasing fewer new titles and raising CD prices, and DVDs have provided stiff competition for the past few years. The RIAA's numbers are suspect as well, in part because it derives its sales figures from a tally of units shipped to stores. SoundScan, which tracks actual sales, has reported much less alarming drops--and even an increase in 2004. The RIAA admits that sales were up last year, but insists this hasn't made up for the previous losses; the data aren't all in, but the organization's midyear statistics indicate a 4 percent increase compared to the first half of 2003. File sharing may not be the scourge it's been painted as--in some cases at least, like the chart-topping debut of Radiohead's underpromoted Kid A after millions of illegal prerelease downloads, it works as a first-class promotional tool for record-company products.

Though Baker says settlement talks have continued in Gonzalez's case, he claims the record companies have maintained a hard-line stance so far on the amount of damages. "They won't say, 'OK, pay us a hundred dollars and we'll go away.' They're not willing to do that. And frankly, even a hundred dollars may be outside the realm of what this family of seven people with one full-time employee could manage right now," he says.

Baker doesn't think the record companies stand to gain financially from a victory in the case. "The chances of them ever getting a monetary reward out of Cecilia are slim to none," he says. "She's somebody who purchased their products religiously, she's got five kids to feed, and she doesn't have a job now. Why they chose to go after her, I don't know. It still doesn't make sense to me why this case goes on."

The appeal Baker plans to set in motion this week with the Seventh Circuit Court will likely drag on for months or even years. "At this point we haven't seen any notice of appeal," says RIAA VP Pierre-Louis. "Right now, we have a summary judgment motion that we're delighted with and I think we'll just see what happens next."

Art accompanying story in printed newspaper (not available in this archive): photos/Jim Newberry.

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