Photo: YouTube via CBS
You might remember KaZaA, a file-sharing site that allowed users to share music. Jammie Thomas-Rasset likely remembers it, and vividly. She was the first person to challenge the recording industry when it began coming after people for sharing music online, and now she has to pay up.After seven years and three trials resulting in different damages awards, the Minnesota woman who used KaZaA in 2005 to download 1,700 songs now owes four record companies $222,000. The 8th U.S. Circuit Court of Appeals ruled on September 11 that the damages award of $222,000 is not unconstitutional, as Thomas-Rasset had argued.
RIAA Fights the Fight
In 2005 Capitol Records, Sony BMG, Arista Records, Interscope Records, Warner Bros. Records, and UMG Recordings, through the Recording Industry Association of America (RIAA), came after Thomas-Rasset for 24 of the songs, claiming she violated their copyrights. Thomas-Rasset claimed to not know what they were talking about, and negotiations predictably broke down.
After the first trial in 2007, a jury found Thomas-Rasset liable for willful copyright infringement and awarded the recording companies statutory damages of $9,250 per song, for a total of $222,000. The defendant demanded a new trial, claiming the award was unconstitutionally excessive.
After the trial court admitted an error was made in the jury instructions, a new trial was held in 2009, which resulted in worse news for Thomas-Rasset, who by then was arguing that maybe her boyfriend and children might have illegally downloaded the songs: the second jury popped her for almost $2 million.
She challenged that damages award as well, and this time the trial court agreed with her, reducing the amount to $54,000. The RIAA and recording companies appealed this ruling to the 8th Circuit, which seems to have split the difference by going back to the original damages award of $222,000.
Supreme Court Faced with Appeal
K.A.D. “Kiwi” Camera
But Thomas-Rasset is not done. Her lawyer, K.A.D. “Kiwi” Camera, told Nate Anderson of the Mutiny Radio blog that he’s appealing the case to the U.S. Supreme Court. “Because even the reduced amount of damages that we won is punitive, the Court of Appeals erred by failing to apply the Supreme Court’s punitive damages cases,” Anderson says Camera told him in an email message. “We will seek certiorari from the Supreme Court to correct that error.”
The Supreme Court has shown little interest in such cases, however. In May, the Court denied certiorari (meaning they refused to hear the case) in the second case to come to trial over online music file-swapping, Tenenbaum v. Sony BMG Music. In that case, where a damages award of $675,000 is at stake, the defendant’s lawyer made a similar argument about the unconstitutionally punitive nature of the award.
Tenenbaum’s lawyer, Harvard law professor Charles Nesson, argued that such high damage awards are designed by the record companies to create an urban legend to frighten children. The Court didn’t buy it, so it will be up to Camera to bring the Justices a more convincing argument as to why this issue needs to be settled by the highest court in the land.
Hit ‘Em Where It Hurts – the Internet (Dis)connection
It could be a moot question at this point, however, as the RIAA reportedly abandoned its persecution of individual users years ago, instead going for the third parties in the game, the Internet service providers (ISPs). According to an article by Megan Geuess for the blog Ars Technica, a group of ISPs agreed with the RIAA over the summer to begin cutting off the Internet service of infringers.
According to a report on TechCrunch by Romain Dillet, under that agreement, an individual user will get six alerts before his or her Internet service is suspended. The copyright alert system is still not in place, however.
Do you think large damage awards are appropriate against people who share copyrighted music online? Share your opinion below.
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