RIAA: 2, Jammie Thomas-Rasset: 0

Maybe Jammie Thomas-Rasset should have quit while she was behind. Just as in Thomas-Rasset's first trial in 2007, a Minnesota jury found today that she infringed the copyrights of two dozen major-label songs on the Kazaa file-sharing network. But the new jury handed down a much larger punishment -- $80,000 a song, not $9,250. For the labels, that's roughly equivalent to selling 114,000 songs at Apple's iTunes Store.

Thomas-Rasset didn't seem likely to pay the original $222,000 penalty, so it seems even less likely that the RIAA will be able to extract nearly $2 million from her. The trade group has always been more interested in winning the judgment than the amount awarded; spokeswoman Cara Duckworth told CNet that the group has been willing to settle "since day one." But the size of the jury's verdict may only increase calls for Congress or the courts to reduce the financial penalties for copyright infringement

Thomas-Rasset's was the first trial in the campaign against individual file-sharers that the RIAA began in 2003 and ended late last year. As such, it was one of the few tests of the legal underpinnings of that campaign, including the argument that making tracks available to others online (by keeping them in a folder that was open for sharing) was a form of infringement. U.S. District Judge Michael J. Davis instructed the jury in Thomas-Rasset's first trial that making songs available was an infringement, a low threshold that would enable the labels to prove piracy just by collecting lists of the songs in people's shared folders. But Davis second-guessed himself after the verdict and ordered a new trial, mirroring the views of several other judges who had rejected the RIAA's interpretation of the law.

The result of the second trial suggests that the higher threshold isn't enough to derail the labels in an infringement lawsuit. The RIAA's anti-piracy contractor, MediaSentry, presented evidence that Thomas-Rasset actually distributed 11 copyrighted songs through Kazaa (to MediaSentry's investigators), and cited metadata from tracks in her shared folder strongly suggesting that the files had themselves been downloaded, not purchased or ripped from her CD collection. RIAA witnesses also linked the Kazaa uploads to a unique identifier on Thomas-Rasset's modem and computer and showed that the unusual username on the Kazaa account matched one that Thomas-Rasset acknowledged using on several other websites. In other words, the RIAA's case was built entirely on circumstantial evidence, but there was a lot of it.

Thomas-Rasset and her attorneys seemed eager to continue their battle against the RIAA, and although the trade group insists that it doesn't plan to file any new cases, there are still a number of older claims yet to be resolved. Defense attorneys are fighting these on several fronts, arguing that, among other things, MediaSentry's investigative tactics were illegal.

More interesting, IMHO, is the argument Harvard Law Professor Charles Nesson and others are raising that the statutory damages provided in copyright law are grossly excessive -- even unconstitutionally so. The two Thomas-Rasset verdicts, each of which was reached after just a few hours of deliberations, reflect the juries' irritation with her defense. But even if she did put 24 copyrighted songs in her shared folder, it's hard to believe that the labels suffered anything close to $2 million in damages. More important, the mere threat of such a penalty could persuade some accused infringers to settle with the RIAA rather than fight, even if they weren't the ones responsible. Thomas-Rasset may not be a sympathetic defendant, and there's no excuse for illegal downloading. But she will have done all Internet users a favor if her case prompts lawmakers to recalibrate the statutory damages in copyright law.

-- Jon Healey

Healey writes editorials for The Times' Opinion Manufacturing Division.

Photo credit: Julia Cheng / Associated Press

Comments

[Jo(h)n]

Jon - the Mediasentry defense was one of myriad defenses thrown up in the Jammie case, and was thrown out in a second.

There is a reason that juries are structured to be composed of a variety of peers, rather than just technologists. It is a structure intended to result in a verdict that represents the consensus of a community. The jury in this case had flexibility to award damages from $18,000 to $3.6 million. There was no obligation to award anything as large as they did. And with the most perfect set of facts available to any observer of this case, those jurors didn't think that $18,000 was a sufficient penalty.

While it's clear that some commentators feel that they're more educated about this circumstance than the jury that was seated for the trial, after careful deliberations the jury's award was deliberately not $18,000.

The RIAA gave Jammie an opportunity to pay a settlement for distributing 1700 songs to the many thousands of users connected to Kazaa at the time. She chose to take her chances. Bew hew.

[YokoYoko]

Here’s what Cary Sherman had to say … http://politicomix.blogspot.com/2009/06/winning-hearts-and-minds.html

[Bob]

Please don't forget that she first tried to hide the evidence by replacing her hard drive and then tried to deny it under oath. If I were on the jury, this would be very damaging.

I think the kids who hang out with each other in the file sharing community are living in an echo chamber. They sit around and ponder what-if worlds where everything is free. But the jury pool is much larger and it includes people who work in real businesses. It took me only few weeks after college to understand how my paycheck depended on the customers. No customers meant no food. Anyone who's been through this situation would find against a lying hippie who steadfastly demanded that the rules didn't apply to her.

[Realistic]

This is insane. Wanna talk about living in the real world? Let's put a real price on 88 songs. I call $88. Screw the RIAA.

[negrito]

Defense attorney Joe Sibley said the music companies failed to prove allegations that Thomas-Rasset gave away songs by Gloria Estefan, Sheryl Crow, Green Day, Journey and others.

[Anonymous]

@YokoYoko

You are completely wrong about the file-sharing community. We do not pay for music which is overpriced. We do, however, pay for VPN services that help us remain Anonymous when we are downloading Illegally. Does that sound like a group that sits and ponders about a world where everything is free? We are against the RIAA/MPAA and their screwing of their Artists and Customers.

Please, do your research before you spread such lies.

[Joe]

@Anonymous

I think you meant to direct your comment toward Bob, not YokoYoko!