Thursday, October 09, 2008


Almost exactly a year ago, Jamie Thomas, a single mom from the little town of Brainerd, Minnesota, was found guilty of infringing the copyrights of the big record companies. She was found with 24 song files on the share file of the Kazaa program that was on her computer. A jury decided the penalty for this horrendous behavior should be $9250 per song, so she was banged for a total of $222,000.

There was a lot wrong with this trial, and from my perch it looked as though neither Thomas’ lawyer nor the judge were on top of their games. But then, both were dealing with the RIAA’s onslaught of shiny, pricy lawyers and their platinum coated arguments and A-list experts. Slack should be extended, I guess.

What made this so distressing was that this was the first file-sharing case to go to trial. Some 30,000 citizens have been jammed up by the RIAA’s disgusting reign of terror on the American public, and most have paid the $3000 early-settlement fee rather that take on the combined forces of some of the biggest entertainment corporations the world has ever seen, despite the existence of some very good legal arguments that could tear the RIAA’s playhouse down. The Thomas trial and verdict simply blew through some of these good arguments and served up Jamie Thomas’s head on a platter to the RIAA. It took the fight out of a lot of people. Who’s gonna fight the power when the downside is so devastating?

Anyway, upon reflection and a pile of briefs from public interest groups and copyright scholars, the judge last week declared a mistrial, essentially admitting that he’d been hoodwinked by the RIAA the first time around. The main bone of contention was the “making available” issue. The only evidence that RIAA’s team of cyber-snoops gets in these cases is a snapshot of the victim’s “share-file”, that is, what songs the victim’s P2P program has in the publicly-visible file that can automatically participate in file sharing online. The cyber-snoops don’t see any real trading doing on, no uploading, no downloading, except what the cyber-snoops themselves initiate.

The judge had initially instructed the jury, at the urging of the RIAA, that “making files available” was an infringement of the copyright holders’ exclusive right of distribution. In other words, having a song just sitting there for others to maybe take equals “distribution” of the song.

Over twenty pages of the forty-four page decision, Judge Michael J. Davis knocked down the multiple arguments the RIAA made about “making available” distribution, each argument sillier and more far fetched than the one before. The decision is a clear eyed, unassailable virtuoso performance.

But Judge Davis saved the best part for last, when he addressed the inappropriateness of fining someone $9250 for “stealing” a song that one could download for 99 cents. For once, a judge had the presence of mind to step back and look at what these cases are really about. Dig this:

...The Court begins its analysis by recognizing the unique nature of this case. The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts... The statutory damages awarded against Thomas are not a deterrent against those who pirate music in order to profit. Thomas’s conduct was motivated by her desire to obtain the copyrighted music for her own use. The Court does not condone Thomas’s actions, but it would be a farce to say that a single mother’s acts of using Kazaa are the equivalent, for example, to the acts of global financial firms illegally infringing on copyrights in order to profit in the securities market...

...While the Court does not discount Plaintiffs’ claim that, cumulatively,
illegal downloading has far reaching effects on their businesses, the damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs. Thomas allegedly infringed on the copyrights of 24 songs, the equivalent of approximately three CDs, costing less than $54, and yet the total damages awarded is $222,000 – more than five hundred times the cost of buying 24 separate CDs and more than four thousand times the cost of three CDs....

...Thomas not only gained no profits from her alleged illegal activities, she sought no profits....In the case of individuals who infringe by using peer -to-peer networks, the potential gain from infringement is access to free music, not the possibility of hundreds of thousands – or even millions – of dollars in profits. This fact means that statutory damages awards of hundreds of thousands of dollars is certainly far greater than necessary to accomplish Congress’s goal of deterrence...

Unfortunately, by using Kazaa, Thomas acted like countless other Internet users. Her alleged acts were illegal, but common. Her status as a consumer who was not seeking to harm her competitors or make a profit does not excuse her behavior. But it does make the award of hundreds of thousands of dollars in damages unprecedented and oppressive.


You can read the whole decision at


At 10:25 AM, Blogger Roger Owen Green said...

Totally off topic, but your name appears in my blog today:


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