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RSS"Defendant's suggestion that the actual harm can be measured to the 'tune of $1.29 for each of the 24 songs' ... ignores the potential multiplying effect of peer-to-peer file-sharing," the Department of Justice argues in papers filed today with a federal district court in Minnesota.
In June, a jury found that Jammie Thomas-Rasset willfully infringed on the record labels' copyright by sharing tracks on Kazza and ordered her to pay $80,000 per track. The copyright statute provides for damages between $750 and $150,000 per infringement.
Thomas-Rasset moved to set aside the verdict for several reasons, including that the damages were unconstitutionally disproportionate to the economic injury she allegedly caused.
The Justice Department didn't take a position regarding her other arguments, but made clear that it believes that the damages set out by Congress are constitutional. "The Copyright Act's statutory damages provision serves both to compensate and deter," the administration wrote. "The inadequacy of actual damages and profits to compensate copyright owners is evident under the circumstances of this case. It is impossible for a copyright owner to calculate actual damages when an online media distribution system is used to distribute illegally its copyrighted sound recordings."
Of course, U.S. District Court Michael Davis might not agree. Last year, Davis set aside a previous jury verdict finding Thomas-Rasset liable for copyright infringement and ordering her to pay $220,000, or $9,000 per track. Davis set aside the verdict because of a mistaken jury instruction, but he took the opportunity to criticize the jury's decision about damages. "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," he wrote.
Aside from the legal merits, a $1.92 million award against a non-commercial user has generated some very bad PR for the record industry. Richard Marx, one of the musicians whose tracks Thomas-Rasset shared, said he was "ashamed" to be connected with the case. Moby, not an RIAA fan, blogged that "punishing people for listening to music is exactly the wrong way to protect the music business."
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It does seem that Russell Cross has a valid point. Unless Ms. Thomas-Rasset actually has $1.92 million with which to reimburse the victims of her crime, the judgement is meaningless. It might have been more effective to prosecute her for theft of intellectual property. Like other types of theft, that offense is punishable by imprisonment. People who steal from banks go to jail (well, at least those who steal with guns rather than with outrageous taxpayer-funded bonuses). Why not people who steal from mucic composers and performers?
And this notion of "making an example" is nothing more than trying to justify a daft decision. If you want to make an example, make one that can be enforced in a way folks can relate to, not with some outrageous award that might as well be a "bazillion gazillion dollars."
The other tragedy here is that such a huge, unpayable sum is unlikely to stop folks sharing - in fact, it will more likely now lead to the development of smarter, more distributed and less traceable sharing software.