The battle between the RIAA and the file-sharing mother of four Jammie Thomas has turned into a numbers game.
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.