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Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

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June 21, 2009

A Win Too Far?

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Posted by Alan Wexelblat

Almost everyone, including the Cartel's own lawyers, appears publicly shocked by the USD 2 million verdict returned against a Minnesota mother whose fight against the RIAA has been something of a rallying point in the war the labels have waged on their customers.

The Jammie Thomas retrial was expected (at least by people on the reasonable side of the fence) to produce some kind of verdict that would indicate the general public's (as represented by the jury) disdain for asking someone to pay $222,000 for sharing 24 songs. To be fair, she probably wasn't the one who shared the songs, but they were shared from her computer. So she's held responsible. And now, facing a $1.9 million judgment, she's in an even worse position. Clearly the jury of her peers didn't share the common online opinion, which lends credence to the Cartel's claims that the general public support their position. As the Cartel's lawyers have noted, they did not ask for a specific penalty in their suit - it was the jury that came up with the damages number.

The question becomes: what happens now? Opinion in the blogosphere is still widely against the RIAA, up to and including artists such as Moby calling for "disbanding" the organization. Moby — who just released his latest album as an entirely self-made project, including free tracks and his own DJ remixes — is clearly speaking from an emotional center.

More legal-oriented opinions include the view that the damage award, and the copyright laws that underlie it, could be unconstitutional. The US Constitution has language against grossly excessive punishments including monetary damages. In addition, as Fred von Lohmann points out, the Supreme Court has issued some recent rulings indicating that it may find the practice of awarding large punitive damages as deterrents to be unconstitutional. These decisions may have played a part in the Cartel's decision to shift focus away from suing customers and onto turning ISPs into copyright cops.

Another widely discussed theory, discussed in depth by Greg Sandoval for CNET, is that Jammie Thomas could protect herself from any payment by filing for bankruptcy. This theory rests on a recent Ninth Circuit decision that held there are different standards for civil and bankruptcy cases. In a civil case, such as this one, the standard for finding against the defendant is that the act had to be "willful" - essentially the RIAA have shown that the file-sharing was not an accident. However, in bankruptcy court they would be required to show that the act was "willful and malicious" in order to prevent the debt from being wiped away.

My opinion is that they'll settle for some token amount. I can't imagine either side wanting this fight drawn out further in the courts or in the press. They are, as several pundits have pointed out, fighting about the past. And I'm guessing both sides would much rather put that past behind them.

Comments (4) + TrackBacks (0) | Category: IP Abuse


COMMENTS

1. Jayel Aheram on June 21, 2009 4:02 PM writes...

The copyfight movement should consider the outcome of this case as an opportunity to finally question the constitutionality of the exorbitant fees levied against file-sharers. $80k for a digital file? Outrageous.

Permalink to Comment

2. IAN on June 21, 2009 6:06 PM writes...

What gets me about the whole RIAA thing is they are running around snooping in a marginally legal way and then blackmailing people with impunity.

If the leader of the RIAA was called Adolf Hitler and it was an excuse to destroy the life's of Jews something would be done about them.

But no they are just destroying 1,0000's of little people, minority groups, people who don't matter. Blackmailing people who cannot defend them self's.

How can they? Because of a law that says even though you brought something from me I STILL OWN IT, even though I have sold the same thing millions of times. Its time this was stopped.

If we are not going to change the copyright laws or stop the RIAA persecuting anybody they choose to then lets make it a criminal offense. Make them refer it to the police and let the police deal with it. Lets get all these kids, grannies, dead people etc in jail. So lets see, nearly 2 million $ for Jammie I guess that's a life sentence, so lets lock her up and throw away the key.

Punishments should fit the crime (its called justice), and the RIAA is guilty of crimes against humanity in my book.

Where do I stand on downloading records, I don't do it. I used to buy them but they got so expensive with junk music on them I just gave up buying and was lost to the RIAA because of their greed, I used to listen to music on the radio but adverts killed that I now just don't listen to music on any sort of a regular basis. RIAA and advertisers you stopped the music.

Permalink to Comment

3. Scott Hanley on July 22, 2009 9:55 AM writes...

Just a minor point, but the $1.9 million award falls within the allowable statutory damages and aren't necessarily punitive damages. I wouldn't count on SCOTUS to ban this type of judgment.

Permalink to Comment

4. DrWex on July 22, 2009 10:27 AM writes...

Scott: you're correct that the damages are statutory and not per se punitive awards. But the process of awarding damages is itself a form of punishment and potentially subject to review, regardless of how the damage amounts are allocated. I agree that the present Court is extremely unlikely to grant cert for such a case, let alone overturn the fundamental law.

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