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Whole
New Ballgame
Almost
exactly a year ago, Jamie Thomas, a single mom from the little
town of Brainerd, Minn., 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’ 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 going 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 20 pages
of the new 44-page decision, Judge Michael J. Davis knocks
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.”
Amen.
You can read the whole decision at recordingindustryvspeople.blogspot.com.
—Paul Rapp
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