• by Wendy Davis , Staff Writer @wendyndavis, December 7, 2007

The Bush Administration has weighed in on the side of the record companies in their copyright infringement lawsuit against Jammie Thomas, a single mother recently found liable for uploading 24 tracks to Kazaa.

In papers filed this week, the Department of Justice urged the judge to uphold the jury's award of $220,000, or $9,250 per track.

Thomas argues that figure is so disproportionate to the retail value of each track -- 99 cents on iTunes -- that the award is unconstitutionally excessive.

But the Bush Administration argues that it's impossible to determine the actual damages caused by uploading these tracks because the record labels don't know how many times they were downloaded. Therefore, the Justice Department says, any fine within the amount set by law -- which ranges from $750 to $150,000 per violation -- is appropriate.

"[I]t is unknown how many other users -- 'potentially millions' -- committed subsequent acts of infringement with the illegal copies of works that the defendant infringed," the Justice Department wrote. "Accordingly, it is impossible to calculate the damages caused by a single infringement, particularly for infringement that occurs over the internet."

Surely that argument is flawed. While it might be impossible to determine a precise figure, certainly there's some way to reach a reasonable estimate of actual losses -- as opposed to the $9,250-per-track amount seemingly chosen at random by the jury.

At stake here is a lot more than this one verdict. In the last few years, the record labels have filed suits against thousands of consumers like Jammie Thomas -- many of whom have little resources to fight the charges, let alone risk a six-figure verdict.

The record labels put many people in no-win situations just by filing suit. As a result, many ordinary consumers have paid significant sums -- often in the four-figure range -- just to avoid a trial.

But if the judge in the Thomas case rules that damages of $220,000 are excessive given that the tracks sell for a grand total of $24 on iTunes, the labels lose a great deal of their leverage in negotiations with other consumers. And that means that more and more people might start fighting these charges -- which is the last thing the troubled record industry needs.