Has the RIAA's Fight Against File Sharing Gone Too Far?
By J.R. Raphael, PC World - Fri Jun 19, 2009 6:48PM EDT
Some legal experts question the constitutionality of a $1.92 million fine
given to a woman accused of pirating 24 songs. A Minnesota jury ordered
Jammie Thomas-Rasset to pay that yesterday, saying she "willfully" violated
music copyrights and should cough up $80,000 per illegally downloaded track.
The verdict brings a new twist to a seemingly endless legal battle brought
about by the Recording Industry of America (RIAA). The case originally
culminated back in 2007, when a different jury slapped Thomas-Rasset with a
$220,000 penalty (only about $9100 per song). Soon after, Thomas-Rasset
filed an appeal and received a retrial, which led to this week's even
costlier conclusion.
Jammie Thomas and the $80,000 Question
If $80,000 a song sounds unreasonable to you, you aren't alone: The
blogosphere, as well as Twitter users, are buzzing with outrage. The
shockwaves, by some accounts, started mere seconds after the verdict was
announced.
"I think $2 million for downloading 24 songs strikes almost everyone as
being a little disproportionate," says Fred von Lohmann, a senior staff
attorney with the Electronic Frontier Foundation. "According to people who
were in the courtroom, almost everyone inside uttered an audible gasp when
that verdict came in."
The size of the fine was guided by U.S. copyright law, which provides for a
penalty of anywhere from $750 to $150,000 per violation. It was up to the
jury, however, to decide where to land within that spectrum. The problem,
von Lohmann says, is that there are no meaningful guidelines on how that
decision should be reached.
"The copyright law entitles people to essentially pull a number out of a
hat, all the way up to $150,000 per song," he says. "If the copyright law
were more reasonable--if, say, you had to make some sort of reasonable guess
as to what the actual harm was--then I think juries would come in with more
reasonable results."
The RIAA Case and the Constitution
Here's where things start to get dicey: The Supreme Court has previously
indicated that "grossly excessive" punitive damage awards are a violation of
the U.S. Constitution. An award can be considered "grossly excessive" if
there's too big of a gap between the actual harm done and the amount of
money being named. Courts can also consider the "degree of reprehensibility"
of the defendant's actions, along with how the penalty compares to similar
ones issued in the past.
It seems, then, there may be a clash between two ideals: The parameters of
the copyright law and the protection provided by the Constitution. What's
more, as the Electronic Frontier Foundation points out, recent Supreme Court
rulings suggest a jury should determine damages based only on what's
justified for the single defendant--not for the broader purpose of "sending
a message" to the general public.
There's also the issue that the recording industry recently backed down from
its heavily criticized process of suing suspected music sharers--people like
Jammie Thomas-Rasset--and said it would instead start working with Internet
service providers to find offenders and restrict their access. That means
Thomas-Rasset's case is, to a large degree, a fight over the past.
"File sharers today doing exactly what Jammie Thomas had been doing do not
stand any chance of being dragged into court," von Lohmann says. "The irony
here is that five years and 35,000 lawsuit threats later, we have only one
case that goes to trial--and it ends up giving us an outcome that I think
everybody thinks is unsatisfactory."
The Next Steps
So what now? Any number of things could happen: Thomas-Rasset could move to
settle the case; she could ask the judge to reduce the penalty; or she could
file an appeal based on the constitutional concerns. She could also declare
bankruptcy to try to avoid having to pay the full cost.
"It's hard to predict what exactly will happen next," von Lohmann says. "But
it's certainly far from over."
More on the recording industry's recently revised stance against file
sharing:
. RIAA's New Piracy Plan Poses a New Set of Problems
http://www.pcworld.com/article/155820/riaas_new_piracy_plan_poses_a_new_set_of_problems.html
. ISPs Join RIAA's Fight Against Piracy: Is Your ISP One of Them?
http://www.pcworld.com/article/161978/isps_join_riaas_fight_against_piracy_is_your_isp_one_of_them.html
. RIAA Changes its Tune, But Lawsuits Continue
http://www.pcworld.com/businesscenter/article/155861/riaa_changes_its_tune_but_lawsuits_continue.html
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