• by Wendy Davis , Staff Writer @wendyndavis, February 9, 2010

Should Web users who share music for free have to face the same potential liability as those who sell pirated music? The record labels say the answer is yes.

"The notion that an infringer who does not make a profit should automatically be entitled to better treatment than an infringer who does make a profit is found nowhere in the law," the Recording Industry Association of America said this week in papers rejecting U.S. District Court Judge Michael Davis's decision to slash the damages Jammie Thomas-Rasset must pay from a "monstrous and shocking" $1.92 million to a "significant and harsh" $54,000.

Davis found that because Thomas-Rasset wasn't acting with a profit motive when she shared 24 tracks on Kazaa, she shouldn't face more than $2,250 per incident -- three times the statutory maximum of $750. Davis gave the RIAA until this week to decide whether to accept that award or seek another trial just on damages.

The RIAA then offered to settle with Thomas-Rasset if she would donate $25,000 to a charity for musicians and agree to ask Davis to withdraw his opinion. Thomas declined. The upshot: this long-running case isn't going to end any time soon. The RIAA is now seeking another trial just on damages.

The RIAA says in its new papers that an upper limit of $2,250 per infringement is so low that it will leave some content owners without an incentive to file suit. "The court's cap would set a new ceiling such that no copyright owner could effectively enforce their rights unless they could and did sue on numerous works. No copyright owner would be motivated to enforce its rights where it could only sue on a handful of works because the potential recovery would be too limited," the organization argues.

That argument might hold up in theory, but in practice it's long been the case that copyright owners don't always have a financial motive to sue non-commercial users because many won't be able to pay damage awards. The RIAA itself has already acknowledged that it's lost far more than it recovered by suing non-commercial users. Separately, the organization already said it was going to stop suing individual non-commercial users.

For their part, Thomas-Rasset's lawyers say that any damages that total more than it would cost to purchase a track -- around $1 -- are unconstitutional. One of her attorney, Kiwi Camara, tells MediaPost that it isn't fair, or legal, to hold an individual like Thomas responsible for any decline in profits that the record industry has suffered as a result of file-sharing.