Analysis: $US1.92M fine in music piracy case could hurt RIAA

Retrial of Jammie Thomas-Rasset ends with massive fine imposed on her

The massive $US1.9 million fine imposed by a US federal jury in the retrial of a woman accused of pirating 24 songs may could end up hurting the Recording Industry Association of America's anti-piracy campaign more than anything else, a leading copyright lawyer said.

That's because the sheer size of the verdict hammers home just how unreasonable the RIAA's damages theory for copyright infringement is, said Ray Beckerman, a New York lawyer who has represented clients facing piracy lawsuits.

"Oddly, this gigantic verdict may do more to hurt than help the RIAA, because it offers a vivid demonstration of how out of synch the RIAA's damages theory is with decades of case law about the reasonableness requirement for copyright statutory damages," Beckerman said.

The size of the award also goes against a century of case law "deeming punitive awards unconstitutional if they are unreasonably disproportionate to the actual damages sustained," he said. He said he has "no doubt" the verdict will be set aside by the trial judge.

A federal jury last Thursday ordered Jammie Thomas-Rasset to pay six music companies $US80,000 for each of the 24 songs she is accused of illegally distributing over the Kazaa file sharing network. In their lawsuit, the six music companies claimed that Thomas-Rasset had illegally distributed 1,702 copyrighted songs, though they chose to focus only on a representative sample of 24.

The laws she was charged with violating allow for maximum damages of up to $US150,000 per infringed song. The jury verdict came after a brief four-day retrial in which Thomas-Rasset's new lawyers unsuccessfully tried to bar the evidence gathered against her but offered little else that was different from the first trial.

The award is nearly nine times the $222,000 fine Thomas-Rasset was hit with in her first trial by another jury that found her guilty of illegally sharing the 24 songs over a P2P network. That verdict, in October 2007, was overturned last September by U.S. District Judge Michael Davis on technical grounds. Davis is the same judge who presided over Thomas-Rasset's first trial.

The Thomas-Rasset case has attracted considerable attention because it is the first RIAA music piracy case to actually go to trial, even though the trade association has slapped copyright lawsuits on thousands of individuals over the past few years. The case has often been used as an example of what many say are the excessive and unconstitutional damages being sought by the RIAA in its effort to scare people off online copyright infringement.

Last week's verdict is sure to only fuel such concerns. Already, San Francisco-based rights group Electronic Frontier Foundation (EFF) is questioning the verdict. In a blog post, EFF staff attorney Fred von Lohmann said the "large and disproportionate" verdict raises two constitutional questions.

In the past, the Supreme Court has already made it clear that "grossly excessive" punitive damages are unconstitutional, von Lohmann wrote. In evaluating whether an award is overly excessive, courts have looked at the seriousness of the crime, the disparity between the punitive damages and the actual damage suffered by the plaintiff and the disparity between the punitive damage and civil penalties in similar situations, he said.

"Does a $US1.92 million award for sharing 24 songs cross the line into 'grossly excessive'?" von Lohmann asked.

The Supreme Court has also taken an unfavorable view of situations where a jury might award a huge statutory damage "in order to send a message to others who might be tempted to infringe" he wrote. If the record industry lawyers had, in fact, urged the jury to do this, "they may have crossed the constitutional line," he said.

In an e-mailed statement, an RIAA spokeswoman expressed satisfaction at the verdit. "We are pleased that the jury agreed with the evidence and found the defendant liable," the statement said. "Since day one, we have been willing to settle this case and we remain willing to do so."

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