Depending on the severity of the offense, these damages can reach $150,000 per infringement.

In 2009 Jammie Thomas-Rasset learned about these massive fines the hard way when she was fined $1,920,000 for sharing 24 songs online, an amount that was eventually reduced to $220,000 after several appeals. In a similar case, Boston student Joel Tenenbaum was ordered to pay $675,000 for sharing 30 songs.

Fines of this magnitude are often viewed by the public as disproportionate, but copyright holders argue that they are needed to deter the public from engaging in unauthorized file-sharing.

In court, the Obama administration sided with copyright holders earlier this year. However, in its recent Green Paper the Department of Commerce’s Internet Policy Task Force suggests that the current limits may need an update.

“Much public attention has focused on the size of the awards in the two infringement cases against individual file sharers that have gone to trial,” the Task Force wrote.

“These cases have led to calls for further calibration of levels of statutory damages. The Task Force reiterates the importance of statutory damages in online copyright enforcement, but believes that there are certain areas where recalibration of their scope may be appropriate.”

The Internet Policy Task Force asked the public to share their thoughts on this, and several other copyright related issues that were addressed in the paper. The comments, which have now been made public, include several from copyright industry groups such as the MPAA and RIAA in which they advise the Government not to lower the maximum fines.

The MPAA argues that the current Internet landscape doesn’t warrant a policy change.

“While we understand the concerns giving rise to the discussion around statutory damages in the Green Paper, the MPAA does not believe the experience in practice supports altering the existing regime, which has fostered investment and innovation not just in the production of content but also with respect to applications, devices and other digital technologies.”

The movie group says that P2P file-sharing, cyberlockers and streaming sites remain a massive threat to the industry and since it’s not always possible to accurately calculate the losses that are generated by piracy, statutory damages are helpful to come to a sizable punishment.

“Statutory damages play an essential role in redressing the financial harm caused by such infringement and punishing the wrongdoers. But, perhaps most importantly, statutory damages deter others from engaging in similar misconduct, advancing the societal goal of promoting innovation and creativity,” MPAA writes.

The studios don’t fear disproportionate fines and are confident that juries will eventually decide on an amount that is fitting in each case.

“The MPAA is confident that juries will continue to award statutory damages only in appropriate cases, in appropriate amounts, taking into consideration all salient factors, to serve the public interest.”

The RIAA also submitted their comments in response to the Internet Policy Task Force paper. In line with the MPAA the music group sees no reason to change the current policy, and says that “proper consequences” are needed in response to copyright infringement.

“We do not believe that recalibration of statutory damages is appropriate,” RIAA writes.

“Statutory damages must be meaningful, serving as a deterrent beyond mere restitution. And the law recognizes the need for flexibility within this statutory damages construct, and provides juries with wide discretion to determine the appropriate award,” RIAA adds.

The RIAA adds that in the Thomas and Tenenbaum cases the Appeal courts held that the “damage awards were entirely appropriate, based on the facts of each case.”

The music group does say that it’s open to discussing alternatives to statutory damages, as long as the deterrent function of the punishments for copyright infringement remain a core issue.

Besides copyright holders, there were also many comments from civil rights groups, copyright experts and the public that argued against high penalties. Copyright lawyer Andrew Bridges, for example, highlights that a potential $150,000 fine per shared file is ammunition for “predatory” copyright trolls such as Prenda and Righthaven.

“The current structure of statutory damages gives Predatory Enforcers (PEs) the weapons they need to extract significant settlements from accused infringers without regard to the truth of their allegations or the harm of the alleged infringing, just as Righthaven and Prenda did,” Bridges writes.

“One need only allege that there was copying in order to seek a subpoena unmasking anonymous online defendants, at which point PEs can send letters threatening maximum damages of up to $150,000 per infringed work and extract settlements without proving infringement, much less any harm.”

According to Bridges the Government may want to follow the example of Canada, where statutory damages for non-commercial file-sharing were reduced to an amount of between $100 and $5,000 per offense.

All comments in response to the Green Paper have been published on the Internet Policy Task Force website. The issue of statutory damages, as well as many related subjects, will be discussed during a public meeting on December 12 and will be followed by another round of comments.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

The case is best known for being the first major file-sharing case in the US concerning the P2P activity of a regular user and the vast swings in damages awarded over multiple court hearings.

Even the Obama administration got involved earlier this year, arguing that the Supreme Court should not reduce the $222,000 fine as that would be an encouragement to other music pirates.

The Supreme Court listened and eventually refused to review the case.

The end result is that Thomas now owes the RIAA more money than she can pay, and she’s even considering filing for bankruptcy to avoid paying anything. However, the RIAA sees another opportunity.

Wired reports that the anti-piracy group has offered to reduce Thomas’s fine if she agrees to “work” for them campaigning against piracy. While the RIAA probably has the best intentions, for someone who fought legal battles against the music group for nearly a decade, the gesture probably feels like a slap in the face.

And indeed, Thomas has resolutely refused the offer. “I’m not doing it,” she said.

According to Thomas’s lawyer the RIAA hasn’t yet put a number on the discount, but it was made clear that she wouldn’t have to pay the full amount. This wasn’t the first offer either, previously Thomas was given the opportunity to settle the case in exchange for a donation to a music charity.

Commenting on the issue, the RIAA maintains that its intention is to resolve the manner in a “reasonable way,” minimizing harm for all involved.

“We have communicated to Ms. Thomas that we would consider a variety of non-monetary settlement options, which is up to her to offer. We think this is a gesture of a good will and we’re doing what we can to resolve this case in a manner that works for everyone,” an RIAA spokesman says.

Willingly or not, if Thomas ends up paying even a small amount she will indirectly contribute to the RIAA’s anti-piracy efforts. The RIAA previously stated that piracy damages do not flow to the artists, but are reinvested in anti-piracy efforts.

The only way for Thomas to escape paying is by her going bankrupt, although that would mean that everyone involved in the case ends up losing. Except the lawyers.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

The general theme of these cases is that IP-addresses are accused of “stealing” copyrighted work. The trolls then request a subpoena from the court so they can ask the corresponding ISPs to reveal the identities of account holders. They then contact the defendants with a settlement offer for a few thousand dollars, telling them that they will be named in the lawsuit if they refuse to pay up.

While some judges are now refusing these cases, there are still plenty who sign off on them. Possibly related, the copyright trolls aren’t getting more friendly. A letter sent by the “Anti-Piracy Law Group,” the latest incarnation of Prenda Law, contains a striking example of a new low.

The letter is part of the LW Systems v. Christopher Hubbard case and was sent after the defendant ignored the first settlement offer. In common with many of these cases it deals with pretty embarrassing pornographic content, but the defendant is also warned that family members and even the neighbors will be informed about the alleged perverse download habits (emphasis added).

“The purpose of this step is to gather evidence about who used your Internet account to steal from our client. The list of possible suspects includes you, members of your household, your neighbors (if you maintain an open wi-fi connection) and anyone who might have visited your house. In the coming days we will contact these individuals to investigate whether they have any knowledge of the acts described in my client’s prior letter,” the letter reads.

The Anti-Piracy Law Group makes it sound like they are doing the defendant a favor, and state that they want to inform the others to ensure that they’re suing the right person. However, SJD points out that fellow copyright troll Steve “Lightspeed” Jones may have given away the true motivation a few years ago.

“People aren’t embarrassed when their neighbors find out they downloaded a few songs, but illegally trading midget, tranny, facials, and teen porn content? There is some news worth keeping from the wife, kids, parents, and neighbors. Please feel free to continue to compare this to the RIAA..,” he wrote in 2010.

The words above turn out to be rather prophetic, as the letter also describes in detail how the RIAA won its case against Jammie Thomas, who was fined $222,000 for sharing several copyrighted songs. An interesting comparison, especially since the current suit is “hacking” related and not based on P2P infringements.

Aside from neighbors and family members the defendant is also warned that his or her boss could also find out about the accusations. The letter, signed by Prenda’s Paul Duffy, notes that it is very important that all relevant evidence is preserved so it can be used in an eventual trial.

“This includes, for example, files on your computer, your credit card purchase history and your Google search history. It also includes preserving these items on your mobile device and any computers you may have access to at work. When our lawsuit is filed we will be seeking evidence from all these sources. If we find out that you destroyed evidence, we will ask the court to impose serious sanctions against you.”

Of course, the copyright trolls are not interested in taking the case to trial, so the letter quickly adds that “litigation is time-consuming, expensive and disruptive.” The easy way out is to settle the case for a few thousand dollars.

Needless to say, the threat of having neighbors and employers informed about the alleged offense may even convince innocents to pay up and get it over with.

It appears that even after receiving a $81,319.72 punishment in court last week the Prenda gang is continuing down the same path, or even worse. Perhaps not completely surprising, as they probably make more than that from their trolling ventures in a good week.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

The case is best known for being the first major file-sharing case in the US concerning the P2P activity of a regular user and the vast swings in damages awarded over multiple court hearings.

The court of appeal reinstated the original $222,000 award in September after which the case headed to the Supreme Court.

In the Supreme Court the defense team argued that the $9,250 statutory damages award per shared song (24 in total) is unconstitutional. According to Thomas’ lawyers the damages are out of proportion and not in line with any harm the RIAA labels have suffered.

The RIAA disagrees, and they are not alone.

The Obama administration has now chimed in, most likely because this is the first file-sharing case to make it to the Supreme Court. The outcome of the appeal will set a strong precedent for future cases, and in a brief filed on Monday the U.S. informed the Court its position.

In the brief the Government backs the RIAA and asks the Supreme Court to keep the current $220,000 verdict intact.

Among other things, the administration emphasizes that punishing damages are needed to deter others from engaging in online piracy.

“An award of statutory damages under the Copyright Act does not simply redress a private injury, but also serves to vindicate an important public interest,” the brief reads.

“That public interest cannot be realized if the inherent difficulty of proving actual damages leaves the copyright holder without an effective remedy for infringement or precludes an effective means of deterring further copyright violations,” it continues.

Although the Obama administration is not part of the case, it has the right to ask the Court to accept its opinion, just like any other third party. By doing so the Government wants to make sure that file-sharers aren’t able to walk away with a token fine of a few hundred dollars.

RIAA spokesman Jonathan Lamy previously told TorrentFreak that this deterrent function is one of the main reasons why the music labels started their file-sharing lawsuits.

“I remember sitting in a focus group of college students and the moderator kept asking the students what would it take them to stop downloading illegally: more than one said, ‘You have to sue me or my roommate. We need to see first hand that getting caught could lead to trouble’,” Lamy said.

The RIAA eventually targeted about 35,000 people in their litigation campaign, and the Thomas’ case is one of the last remaining.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

In a nightmare scenario you could follow in the footsteps of Jammie Thomas by getting dragged through the courts for years and ending up with a fine of $9,250 per song, but you probably don’t fancy that.

A much more friendly option lies in the “six-strikes” mechanism just around the corner in the US. This involves getting caught sharing files half a dozen times, being slapped on the wrist for just as many, only to face as-yet uncertain consequences including Internet throttling and temporary disconnections.

However, despite the huge effort by rightsholders to get “six strikes” passed, it’s now become apparent that at least one major music company isn’t limiting itself to the education-focused framework that the scheme aims to offer.

BMG Rights Management, home to artists such as David Bowie, Foo Fighters, Kings of Leon, Kylie Minogue, Will.i.am and the Sex Pistols, are now trying to generate revenue from possibly the tackiest “pay-up-or-else” scheme around today.

This is how it works. When ISPs in the United States receive infringement notices from rightsholders they are obliged by law to forward them to their customers. While many customers panic when they receive one, they are really quite benign. They basically tell an alleged file-sharer that they’ve been caught sharing a song or movie and they should stop immediately.

Usually that’s as far as it goes, but BMG are taking things a step further.

In order to communicate directly with an alleged infringer without even knowing who they are, BMG manipulate the obligation of the ISP to forward DMCA notices to their customers by adding additional “evidence”. In this section BMG provide hyperlinks to pages that allow alleged infringers to obtain “legal release from the copyright holder.”

Once clicked, account holders are transported to a settlement site operated by Digital Rights Corp where they are presented with details of the alleged infringement.

Internet account holders are then invited to pay the princely sum of $20 which “finally, unconditionally, irrevocably and absolutely releases, acquits, remises and forever discharges” them from future legal action on the infringement in question.

TorrentFreak discussed this BMG project with lawyer Samuel Perkins of the Brody Hardoon Perkins & Kesten lawfirm. Perkins pointed us to the FAQ page on the settlement site where it states that even when an Internet account holder is innocent, he must take responsibility for the actions of others.

“BMG acknowledges that in many cases the subscriber will not be involved in any unlawful downloading, and will not even have any knowledge of it. I represent many such innocent subscribers,” Perkins begins.

“Under current US copyright laws, they would not be liable for copyright violations that occurred using their Internet subscription. BMG misrepresents subscribers’ copyright liability by stating that ‘most Internet service provider contracts state that the contract holder is responsible for actions taken on the Internet service.’ This statement is designed to convince subscribers that they are liable for a copyright violation if a neighbor or a family member secretly downloads copyrighted material,” Perkins explains.

“The subscriber is only liable for copyright infringement if he or she intentionally induc[es] or encourag[es] direct infringement, or infringes vicariously by profiting from direct infringement while declining to exercise a right to stop or limit it.

“By deliberately obscuring the distinction between the subscriber’s contract with the ISP and the subscriber’s liability under federal copyright law, BMG’s website attempts to trick innocent subscribers into settling copyright infringement cases when they in fact have no liability,” he concludes.

As previously reported, Digital Rights Corp are known to represent obscure and dead artists, but BMG have some big names on the books.

As can be seen from the screenshot above, the track in question is Lighters, a collaboration between Royce da 5’9″, Eminem, and R&B singer Bruno Mars. While BMG represents Mars, the track itself is on Interscope, an RIAA-affiliated label.

The music business and its maze of licensing is notoriously complex, but it seems very strange that a member label of the RIAA would allow itself to become associated with this kind of scheme while simultaneously pursuing the “six strikes” model.

The ISP that sent the notice shown above is Charter Communications, which incidentally is not participating in the strikes scheme. It will be interesting to see if more of these notices are sent in the weeks and months to come in parallel with the scheme, or whether this is an isolated project by BMG.

In the meantime these notices might bring in a few dollars but for reasons outlined in our earlier article, whether subscribers choose to pay is essentially up to them – it is unlikely that there will be consequences for simply ignoring them.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

The Supreme Court has refused to hear his case. While this is not the be-all-and-end-all for the case, it’s another roadblock.

At issue was the matter of excessive damages, specifically the statutory damages that allow for between $750-$150,000 per infringement.

In their brief, Tenenbaum’s lawyer is reported by the Boston Globe as saying “This pernicious interpretation of the Copyright Act transforms every bit of cyberspace into a potentially exploding lawsuit and is sparking the development of a spam-litigation industry”. He is, of course, referring to the many copyright trolls we’ve covered in recent weeks and months.

Regardless, the Supreme Court refused to hear the case, without comment.

Meanwhile the case is not over. The sole issue being referred to the Supreme Court was the constitutionality of the damages, not the merits of the case in any form.

The trial judge had already reduced the damages awarded to $65,000 before having it restored by the 1^st US Circuit Court of Appeals.

Judge Nancy Gertner could still reduce the damages again, but in doing so the RIAA and it’s member studios can ask for a retrial. This has happened twice with Jammie Thomas in a similar case. It’s an option Tenenbaum has expressed support for in the past.

Who knows when this case, which started in 2004, will end, and how much more court time will be taken up .

Meanwhile, the real winners are the lawyers for the RIAA (and to a lesser extend the government), racking up fee’s despite having a poor record of getting any kind of money for artists.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

After spending years on various educational campaigns, none of which worked, a new plan was put into motion. It involved monitoring P2P networks for infringements, unmasking the perpetrators, and then threatening to sue unless a large ‘fine’ or settlement was paid.

Although the RIAA stopped its settlement actions against US citizens some time ago, the fallout from the campaign is still felt today, with cases ongoing against Jammie Thomas and Joel Tenenbaum. However, while those Stateside are no longer targets for the RIAA’s so-called “sue-em-all” campaign, the same cannot be said of citizens in Europe.

In common with their counterparts in the gaming industry, the major labels – Universal, Sony, EMI and Warner – are all actively sending out cash settlement demands to alleged file-sharers.

For the past several years, 2011 included, the labels have been pursuing cash settlements from German Internet users for the alleged sharing of music from dozens of major stars artists. A small sample is shown below:

Universal

Amy Winehouse, Blink 182, Bon Jovi, Eminem, Florence And The Machine, Jamiroquai, Jennifer Lopez, Justin Bieber, Lady Gaga, Rihanna, Take That, The Black Eyed Peas, The Rolling Stones.

Settlement amount demanded: 1,200 euros

Sony

AC/DC, Alexandra Burke, Alica Keys, Avril Lavigne, Backstreet Boys, Beyonce, Britney Spears, Christina Aguilera, Foo Fighters, Kasabian, Kesha, Kings of Leon, Leona Lewis, Michael Jackson, Ozzy Osbourne, Pink, Pitbull, R. Kelly, Shakira, The Strokes.

Settlement amount demanded: Up to 950 euros

EMI

Bryan Ferry, Coldplay, David Guetta, Depeche Mode, Good Charlotte, Gorillaz, Katy Perry, Snoop Dogg, U2

Settlement amount demanded: Up to 1,200 euros

Warner

Of the four labels, Warner appears to be least active, particularly when chasing settlements on behalf of major acts. Warner’s activities appear to be limited to local artists of limited international appeal.

Settlement amount demanded: Up to 1,200 euros

Although these labels are playing a major part in the settlement business, they are not doing so in isolation. Dozens of other labels are acting in their own right including RoadRunner Records, Ministry of Sound and Pink Floyd Music.

As previously reported, getting payments from Internet users in Germany is trivial since the law there requires the accused to prove their innocence (rather than rightsholders prove guilt) and holds account holders responsible for the actions of others.

So, despite their recent protestations in response to findings from YouHaveDownloaded, the RIAA would be found liable had they been judged by German standards.

Although hundreds of thousands of people are currently being targeted for settlements in the United States for sharing adult titles, currently the major labels and movie studios there aren’t pursuing the strategy locally. That, however, could all change at the flick of a switch.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

It all started in 2007 when a jury hit Thomas with a $222,000 verdict when she was found guilty of sharing 24 songs using the file-sharing client Kazaa. In 2008 Thomas appealed this verdict and a mistrial was declared, with the judge ruling that the fines were “disproportionate to the damages suffered.”

The case went up for re-trial before a new jury in 2009 where Thomas lost and was ordered to pay $1.92 million in fines. She then filed for a re-trial and in November 2010 a jury again found her guilty and awarded a total sum of $1.5 million .

Last year the case moved in another direction. Describing the massive damages as “monstrous and shocking” U.S. District Judge Michael Davis significantly reduced the earlier fine. Instead of $1.5 million, the judge ruled that $2,250 per song, for a total award of $54,000, is the maximum consistent with due process.

“The Court concludes that an award of $1.5 million for stealing and distributing 24 songs for personal use is appalling. Such an award is so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable,” Judge Davis wrote.

The RIAA was disappointed by the verdict of the federal court, and is now hoping to reinstate the initial $222,000 damages award through an appeal. This week the music lobby group filed a brief in which they claim that this amount is not “monstrous and shocking,” and neither was the $1.5 million fine.

“Neither the first jury’s $9,250-per-work award nor the third jury’s $62,500-per-work award is more substantial than the Constitution allows,” the RIAA concludes.

The RIAA further criticizes Judge Davis’ ruling that any fine higher than $2,250 per infringed song requires some proof of actual damages. In other words, the RIAA would have to show that there is “some” relation with actual damages suffered by the copyright holder. According to the RIAA, neither the copyright act nor the due process clause requires this.

“Neither its legal analysis nor its factual analysis supports the court’s holding that the relationship between actual and statutory damages renders any award greater than $2,250 per work unconstitutional,” writes the RIAA.

The RIAA is not alone in their assessment, as they are now joined by the MPAA who this week filed an amicus brief in the case.

“That ruling improperly would require copyright owners who elect statutory damages to present proof of actual damages. Requiring such proof would significantly alter well-established ground rules for copyright litigation, add substantial practical burdens and unreasonably increase the costs of pursuing such litigation,” the MPAA writes.

In addition, the RIAA argues that Judge Davis made a mistake by ruling that “making a work available” is not part of the distribution right protected by the Copyright Act.

“The District Court erred in rejecting the first jury’s verdict on the mistaken ground that the Copyright Act does not protect the copyright holder’s long-established exclusive right to control the terms on which a work is ‘made available’ to the public,” the RIAA writes.

Again, the MPAA sides with the RIAA in its writing to the court.

“That right is, in fact, an international copyright norm. The right has particular importance in a digital age where unauthorized third parties routinely make available valuable copyrighted works for instantaneous dissemination to millions of Internet users around the globe,” they write.

It is now up to the court to decide if the arguments provided by the billion dollar entertainment companies hold any ground.

To be continued, indefinitely.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

There are editorials in mainstream newspapers that say “Such theft costs the copyright- or trademark-holders billions of dollars each year.”

Even Vice President Biden said last year that “Piracy is theft, clean and simple, it’s smash and grab.” But you’d think a long-time lawyer and member of the Senate Judiciary would know to read the law.

The fact is that if copyright infringement was theft, then it would be treated as theft, dealt with as theft, and ‘copyright infringement’ wouldn’t exist at all. Nevertheless, the claims are often made. We’ve dealt with this topic before three years ago, focusing on UK law. So let’s take an example of a US case and see what would happen if it were tried as theft, instead of copyright infringement. The most obvious case is that of the RIAA against Jammie Thomas.

Civil trial

We all know the process. A John Doe suit is filed (over 200,000 of them in the US so far), usually amalgamated into a group for easy processing (although it is legality questionable). This then goes to discovery, where the identity is uncovered. At this point the suit is dropped and a direct appeal for ‘settlement‘ is made. If no settlement is reached then the civil lawsuit process can be started.

In the Thomas case the civil lawsuit was filed April 2006, and has now gone on for several years; the latest activity just this last week. Civil law (17 U.S.C. § 504) provides for both actual damages AND statutory damages from $200 to $30,000 for non-willful infringement and $750-$150,000 for wilful infringement – per infringement. In three trials, juries have set the per-track damages figure for Thomas-Rasset at $9,250, $80,000 and $62,500 while the courts have twice reduced it to $2,250 per track, which the RIAA is appealing, AGAIN.

The case has now been ongoing for over 5 years, not counting the original John Doe complaint, and it has occupied hundreds if not thousands of man-hours defending it. These hours cost money, and in a civil case that means finding a lawyer willing to take it on pro bono.

At first, Thomas-Rasset retained Brian Toder as her attorney, and later switched to Kiwi Camara. The much shorter Capitol v Foster case had attorney costs of over $68,000 awarded after the RIAA dropped the case, while Atlantic v Anderson (dropped by the RIAA after 3 years) ended up with over $100,000 in costs awarded by the court.

As with all such cases the verdict is based on ‘balance of the probabilities’ or ‘preponderance of the evidence’. Quite a contrast to a criminal case.

Criminal Trial

Were copyright infringement is ‘stealing’, this would be the process Thomas-Rasset would undergo.

An investigation would be made by the police (rather than a private company, hired by the complainant). As infringement is ‘theft’ she would be dealt with under Minnesota state law, specifically Minnesota Statute §609.52. She would be arrested, charged, and taken to court. If she could not afford a lawyer, one would be provided for her. Odds are, she would be dealt with in a matter of weeks, if not days.

The theft statute values goods at the cost to buy, so the 24 tracks would each be valued at $0.99 – the cost on iTunes – for a total of $23.76. If we take the worst case scenario though, and assume a whole CD per track at $20 per CD, that still brings the total value of the theft to $480. As the value is below $500, the maximum penalty available is stipulated as follows:

In all other cases where the value of the property or services stolen is $500 or less, to imprisonment for not more than 90 days or to payment of a fine of not more than $1,000, or both.

The trial would be judged, not on ‘balance of the probabilities’ as with a civil trial, but ‘beyond reasonable doubt’. Based on the evidence submitted in the trials so far, such a case would fail, as Ms Thomas-Rassett has never been proved to be personally responsible, only her connection and computer.

That means?

Of course, if it were just a choice of a civil suit or a criminal theft trial, then it’s clear why a civil trial is prefered, even if it is a money sink. Yet, there’s one last obstacle: The Supreme Court of the US.

In 1985, the Court ruled in Dowling v United States that copyright infringement is not theft, even when dealing with physical objects, such as vinyl records.

While industry bodies might still want to claim it’s still theft there is one simple fact that’s clear. In treating it as theft the benefit would be to the alleged infringer. A higher evidence standard, an independent investigation, legal counsel provided free for the alleged infringer, and vastly smaller penalties.

The infringement=theft argument has only one thing going for it, and that’s its emotional impact. In reality, it’s the very LAST thing they want, which is why new laws, like Protect IP and others have been pushed for many years. And again, we reiterate that we’ve dealt with the US here, laws for other countries are different, as we’ve seen twice in the past week  in Sweden, yet it’s still copyright infringement there, not theft.

If you’re confused about it still, maybe this song will help you tell the difference.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

The appeal in the case, which has now been active since 2008, follows a decision last month by a federal court to reduce the amount Thomas-Rasset has to pay the RIAA in damages to ‘just’ $54,000.

According to court documents filed with the U.S. Court of Appeals for the Eighth Circuit in St. Louis, the Recording Industry Association of America (RIAA) says it is appealing at least three decisions made during the long-running file-sharing case.

Questions 1 and 2

Whether the District Court erred by concluding that making a copyrighted work available for download on an online file-sharing network is insufficient to constitute a ‘distribution’ under 106(3) of the Copyright Act, and therefore refusing to enjoin Defendant from making Plaintiffs’ copyrighted sound recordings available to the public.

Whether the District Court erred by concluding that it had committed an error in instructing the jury that making a copyrighted work available for download on a online file-sharing network constitutes a “distribution’ under 106(3) of the copyright Act and therefore vacating the jury’s verdict and ordering a new trial.

Previously U.S. District Judge Michael Davis ruled that by simply ‘making available’ music tracks on a file-sharing network (by having them in a shared folder or similar) an individual is not guilty of distribution. With these two questions the RIAA challenge that assertion.

Questions 3

Whether the District Court erred by holding that the jury’s award of statutory damages for defendant’s willful copyright infringement violated the due process clause even though it was well within the range of damages awards authorized by 504(c) of the Copyright Act.

This final question concerns the damages awarded against Thomas-Rasset. Perhaps understandably the RIAA would like her to face an amount easily confused with a telephone number, but that may prove difficult considering the history of the case.

In 2007 a jury hit Thomas-Rasset with a $222,000 verdict. She appealed and in 2008 a mistrial was declared. Judge Davis ruled that the fines were “disproportionate to the damages suffered.”

In 2009 the case went to re-trial before a new jury and resulted in yet another guilty verdict, this time with even harsher punishment. Thomas-Rasset was ordered to pay $80,000 per infringement, a massive $1.92 million in total. But this amount was deemed unconstitutional and was duly slashed to $54,000.

In November 2010 the appeal of the retrial was heard and again Capitol Records won the case. The jury decided that Thomas-Rasset had to pay a $62,500 fine per shared song, a total of $1.5 million. It was this decision that was overruled by U.S. District Judge Michael Davis last month. He described the amount as “appalling”.

Disputes over the size of the damages aside, a positive outcome for the RIAA on the distribution question above could result in an almost unbelievable third trial in the case.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.