Intellectual Property Law

A Win Too Far?

By 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.

Full post as published by Copyfight - The Politics of IP on June 21, 2009 (boomark / email).