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:
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.
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