Jammie Thomas-Rasset, the Minnesota mom who has been at the center of the RIAA’s legal battle against music piracy, has been found liable for illegal file-sharing in the retrial of Capitol Records v. Thomas-Rasset.
She now faces a US$1.92 million penalty, or $80,000 for each of 24 songs she made available online through the Kazaa file-sharing network.
Her defense maintained that while the songs traded on Kazaa could be traced to her computer’s Internet protocol address, the music industry could not prove that Thomas-Rasset personally had engaged in any illegal song trading.
Ironically, the ruling comes at a time when the RIAA is no longer pursuing the hardball tactics that netted Thomas-Rasset in the first place.
The first time she went to trial, in 2007, the jury rejected the defense arguments and found her liable for damages of $222,000. However, her case was overturned when the District judge, Michael Davis, concluded he had erred in instructing the jury that the record companies did not have to prove that someone actually had downloaded the music that Thomas-Rasset was accused of making available.
It effectively cut the legs out from under the RIAA argument that merely making copyrighted music available online was unlawful.
Even with the higher burden of proof imposed on the recording industry, however, Thomas-Rasset was once again found liable.
Her line of defense — that just because the music was on her computer didn’t necessarily mean she put it there — did not hold sway with either jury, Randy M. Friedberg, a partner with Olshan Grundman Frome Rosenzweig & Wolosky, told the E-Commerce Times.
Strictly from a legal standpoint, “this was probably the right decision from what I understand about the case,” he said.
The verdict is a disappointment to those who have been outraged by the RIAA’s tactics. Thomas-Rasset became a heroine when she refused to settle the lawsuit the RIAA initially filed against her. She was one of roughly 35,000 people sued by the organization for using peer-to-peer networks to swap songs. Most settled their cases out of court, typically for a few thousand dollars.
Thomas-Rasset was the only one to take the case to trial, becoming the standard bearer for file-sharers.
One of the reasons others settled with the RIAA so willingly — albeit resentfully — was that the costs of losing in court could be exceedingly high.
After Thomas-Rasset lost her first case, she appealed, arguing in part that the penalty was excessive and out of proportion to the offense.
The Department of Justice sided with the RIAA in that appeal.
The issue of disproportionate penalties was also raised by Judge Davis when he overturned her last verdict. Besides the jury instructions, he noted that the penalties were too high and suggested that Congress should rectify that situation.
“This is an ongoing problem with the Copyright Act,” Dave O’Neil, a partner with O’Neil & McConnell, told the E-Commerce Times. “It gives a whole lot of leeway to a fact finder as to what the damages should be.
“There is no other area in the law that I am aware of where damages levied can be so disconnected to the actual damages sustained.”
From the music industry’s perspective, of course, the specter of a $1.92 million judgment awaiting anyone who engaged in illegal music-swapping would be a potent deterrent — that is, if it were still pursuing the same legal strategy.
However, as Thomas-Rasset’s case worked its way through its legal maze, the RIAA quietly changed its tactics at the end of last year. Instead of suing individuals it suspects of illegally downloading music via peer-to-peer Web sites, it is now working with several Internet service providers to warn violators and then restrict their service.
“A $2 million verdict is a chilling message to send, but since it is no longer [the RIAA’s] strategy, it is a fairly limited message,” Friedberg said.