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The RIAA's latest victory over Jammie Thomas-Rasset

November 5, 2010 |  6:14 pm

RIAA, file-sharing, piracy, Jammie Thomas-Rasset, Joel Tenenbaum Having been ordered by successive juries to pay the major record labels $222,000, $1.92 million and now $1.5 million for illegally sharing 24 songs, Jammie Thomas-Rasset exemplifies how both extreme and random these damage awards are. That's a consequence of Congress providing statutory damages that range from $200 (for an "innocent infringer") to $150,000 per infringement. As Ars Technica's Nate Anderson observed, jurors have no experience with damage awards, and thus have no clue what's reasonable in the grand scheme of things.

It's true that the three sets of Thomas-Rasset's peers in Minnesota who looked at her actions ordered her to pay well above the legal minimum. That doesn't make the damages they ordered rational. There may be some infringers for whom a $1.5-million penalty is entirely appropriate -- a CD or DVD counterfeiting operation, for instance. But a noncommercial file-sharer?

Attorneys for Thomas-Rasset and Joel Tenenbaum, a file-sharer ordered by jurors to pay the labels $675,000 for 30 songs, want the courts to limit statutory damage awards just as they've limited punitive damages. Neither defendant is particularly sympathetic, yet they persuaded the judges in both cases to make dramatic reductions in the amounts they owed. Tenenbaum's penalty was cut to $67,500 in July and Thomas-Rasset's $1.9-million sanction was lowered to $54,000 in January. But the reductions weren't enough to satisfy either defendant.

In the latter case, the Recording Industry Assn. of America offered to accept even less -- $25,000 -- if Thomas-Rasset agreed to have the judge vacate the ruling that slashed her damages to $54,000. She insisted instead on having a third jury consider just the issue of what she should pay the RIAA, which is how $54,000 became $1.5 million. (Thomas-Rasset plans to appeal again.)

Tenenbaum, meanwhile, has appealed his reduced amount, arguing that it's still unconstitutionally high. The RIAA contends that there's no authority for judges to reduce awards that are within the range provided by federal law, and if it prevails Tenenbaum's debt will skyrocket again. But such a ruling would also put the onus on Congress to set more reasonable guidelines for damage awards against noncommercial infringers.

If lawmakers need more reason to scale back the damages for infringers who aren't in the piracy business, they should consider the emergence of companies like Righthaven. Founded by a Las Vegas lawyer, Righthaven has sued more than 160 websites and their operators for what appear to be minor infringements -- essentially, running all or part of individual stories found on the Las Vegas Review-Journal's website. You can read more (much, much more) about Righthaven in a piece I wrote Thursday for the Opinion L.A. blog.

-- Jon Healey

Healey writes editorials for The Times' Opinion Manufacturing Division.

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