The word “distribution” scores 15 points in Scrabble. But in the court system it could score almost $2 million.
That’s certainly the hope of the Recording Industry Association of America, which wants yet another round in its ongoing battle with Jammie Thomas-Rasset, and one that may have a genuine effect on the legal situation rather than being little more than a random number generator.
For those who haven’t followed the case, or have simply lost track:
- Thomas-Rasset shared 24 songs through peer-to-peer filesharing service Kazaa. When fingered by the RIAA she refused to make an out of court settlement and was taken to a civil trial in 2007.
- She was found guilty and statutory damages allowed the jury discretion to pick an amount between $750 and $150,000 per song. They settled on $9,250 a song, totaling $222,000.
- This verdict was thrown out because the judge had told the jury that simply making the songs available was enough to constitute distribution, an instruction that at the time was at best legally questionable.
- In a retrial, the new jury agreed Thomas-Rasset was guilty of willful copyright infringement. It settled on damages of $80,000 per song, making an eye-watering $1.92 million total.
- In January last year, a judge reduced the damages to a total of $54,000 (three times the lowest allowable amount), ruling the $1.92 million award was excessive.
- Thomas-Rasset and the record industry tried but failed to negotiate a settlement figure before the jury verdict took effect. Eventually court officials ordered a third trial, this time taking the guilt as determined and simply asking a new jury to come up with a new figure. It selected $62,500 per song, totaling $1.5 million.
- Thomas-Rasset’s lawyers complained this violated due process as there was no clear connection between the damages and the actual loss caused to the record companies. The court agreed and again reduced the award to $54,000.
The RIAA has now taken the case to an appeals court and asking it to look at two arguments. Firstly, the RIAA believes that making a file available on a filesharing service counts as distribution even if you don’t prove somebody else received the file. Secondly, it believes that because copyright law allows for a huge range of penalties at the discretion of juries, then it can’t be possible for a resulting award to breach due process.
A few things seem very clear here. The RIAA is never going to collect any substantial sum from Thomas-Rasset: at the very most they’ll force her into bankruptcy, and you can bet the lawyers will be first in line to take whatever cash comes out of that.
From a legal perspective, somebody’s eventually going to have to make a definitive ruling on whether making a file available counts as distribution. That could spell a huge difference in the figures that come out of this and other ongoing cases, though it shouldn’t make much change to today’s filesharers: if you know you have to prove a third party received a file, it’s not that much more of a burden to those seeking legal action.
Meanwhile the jury damage issue looks destined for the Supreme Court. At the moment you have a piece of legislation that specifically allows juries to name their price without having to justify it, along with a legal principle that punitive damages should be reasonable and at least use the actual damage caused as a starting point to determine the level of “punishment”. If that incompatibility leads to the law being ruled unconstitutional, the record industry could regret pursuing the Thomas-Rasset case so far.