Nearly two years ago, the Bush administration sided with the major record labels in their civil lawsuit against an alleged and briefly famous Kazaa user named Jammie Thomas. Now the Obama administration is doing so as well.
In a legal brief filed Friday, the U.S. Department of Justice said the whopping $1.92 million fine that the Recording Industry Association of America slapped on Thomas was perfectly constitutional.
Federal prosecutors argue the relevant law is "carefully crafted" and consistent with "due process" and part of a necessary "regime to protect intellectual property. Under current law, copyright holders can sue for up to $150,000 per work (such as an MP3 file, DVD, or book).
Their brief adds: "Congress took into account the need to deter the millions of users of new media from infringing copyrights in an environment where many violators believe that they will go unnoticed." It does not take a position on issues other than the constitutional ones.
In the case of Jammie Thomas--now Jammie Thomas-Rasset--a jury decided that she had willfully infringed copyrights on 24 songs and awarded the RIAA a total of $222,000. Her lawyers successfully argued for a new trial, in which the RIAA won $80,000 per song in damages, or a total of $1.92 million.
Now her lawyers are asking for a third trial on grounds that the total fine is unreasonably, and even unconstitutionally, high.
Jammie Thomas
(Credit: Jammie Thomas)Thomas' attorneys' brief filed last month says the up-to-$150,000-per-song statutory damages "bear no reasonable relation to the actual injury suffered by the plaintiffs. The damages awarded are grossly in excess of any reasonable estimate of that injury...An award of statutory damages of $1.92 (million) for 24 songs assessed as punishment, not compensation, shocks the conscience and must be set aside."
The Obama Justice Department's arguments echo the ones made by the Bush Justice Department in a December 2007 brief, which said: "Congress has crafted a statute that serves as a deterrent to those infringing parties who think they will go undetected in committing this great public wrong."
Friday's filing wasn't exactly unexpected; for one thing, the Justice Department is generally tasked with defending acts of Congress from legal challenges. It sided with the RIAA in a recent Massachusetts case, and in an unrelated peer-to-peer case in New York.
The RIAA has said it's willing to settle its Minnesota case against Thomas for far less than the seven-figure sum it's now owed. "It was a jury of regular folks who rendered this decision," Jonathan Lamy, a spokesperson for the RIAA, said in June. "We do not seek any specific damage awards. For the few existing cases, this verdict is a reminder of the clarity of the law. With any case, including that of Ms. Thomas-Rasset, we seek to settle these out of court. We stand ready and willing to talk settlement with Ms. Thomas-Rasset or anyone. We think that's most beneficial for everyone involved."
One of the RIAA attorneys in the Thomas case was Donald Verrilli of Jenner and Block in Washington, D.C. In February, Obama named Verrilli to a senior Justice Department post as associate deputy attorney general.
The Recording Industry Association of America is appealing a judge's decision last month to declare a mistrial in the case of Jammie Thomas, who was ordered to pay the recording industry $222,000 for allegedly sharing music online.
Jammie Thomas
Thomas was charged in October with violating copyright law by making 24 songs available for others to download on the Kazaa network. In late September, though, U.S. District Judge Michael Davis threw out the verdict on the grounds that he originally misguided the jury by indicating that simply the act of making a copyrighted song available for sharing amounts to infringement.
The RIAA is requesting that Davis let its appeal go through before scheduling a retrial for Thomas.
"Although this court is not the only court to have questioned the making-available right, numerous others have concluded that making a copyrighted work available does constitute a distribution," the RIAA wrote in its request to stay the retrial.
Thomas is the only individual charged with copyright infringement by the RIAA who has taken her case to trial.
Updated at 12:10 p.m. PDT with quote from the RIAA.
A federal judge on Wednesday threw out the verdict against Jammie Thomas, the peer-to-peer network user ordered to pay the recording industry $222,000 for allegedly sharing music online.
Jammie Thomas
U.S. District Judge Michael Davis of Duluth, Minn., declared a mistrial in the case against Thomas, who was charged in October with violating copyright law by making 24 songs available for others to download on the Kazaa network.
Davis set aside the verdict on the grounds that he misguided the jury, telling jurors that simply the act of making a copyrighted song available for sharing amounts to infringement. The judge first indicated in May that he was considering granting a new trial.
In June, the Electronic Frontier Foundation and other consumer and industry groups weighed in, also claiming the jury instructions were erroneous.
The Recording Industry Association of America argued that the jury instructions were valid.
"Requiring proof of actual transfers would cripple efforts to enforce copyright owners' rights online--and would solely benefit those who seek to freeload off plaintiff's investment," RIAA attorney Timothy Reynolds wrote in a court filing.
Thomas is the only individual charged with copyright infringement by the RIAA who has taken her case to trial.
RIAA spokesman Jonathan Lamy said Davis' decision was not surprising, but the RIAA still had confidence in its case.
"As with all our illegal downloading cases, we have evidence of actual distribution--an assertion this court and others nationwide have made clear constitutes infringement," he said. "We have confidence in the facts assembled against the defendant."
Jammie Thomas, the Minnesota woman who was slapped with a $222,000 penalty for allegedly sharing music on the Kazaa network, asked for a new trial way back in October 2007.
The surprising thing is that she may get one.
U.S. District Judge Michael Davis wrote Thursday that he was "contemplating granting a new trial." That's because, Davis said, he may have wrongly instructed the jury that merely making a copyrighted song available in a shared folder amounts to infringement. Oral arguments on this question are set for July 1.
Asking for a new trial is pretty standard, but the request isn't granted that frequently. The reason Davis is willing to consider it is that one case that the Recording Industry Association of America relied on is being reconsidered and a second, which neither side cited, suggests that an actual transfer has to take place. (The 1993 8th Circuit case, which is binding precedent, says that infringement "requires an actual dissemination.")
A good portion of the RIAA's case, at least in this aspect of the lawsuit, centers on the "making available" argument. Here's what I wrote last October:
What's important to remember here is that the RIAA's victory rests in large part on...the judge's decision that the record labels need only prove that Thomas made copyrighted music "available" on the Kazaa network. That means leaving the songs in a publicly accessible directory where they might possibly have been downloaded. Thomas confirmed earlier Monday that her appeal to the 8th Circuit will center on that point...It's true that ditching the "making available" idea and making the RIAA prove the songs were actually downloaded means its lawyers would have to work harder. And it wouldn't solve all of these problems above. But it would be a small step toward repairing some of the imbalances in copyright law today.
Since then, a federal judge in New York was skeptical of the "making available" claim--though acknowledging that an "offer to distribute" arguably amount to a distribution. In an even more important case, Atlantic v. Howell, a second federal judge took a dim view of the RIAA's "making available" theory, saying:
The court agrees with the great weight of authority that Sec. 106(3) is not violated unless the defendant has actually distributed an unauthorized copy of the work to a member of the public. The statute provides copyright holders with the exclusive right to distribute "copies" of their works to the public "by sale or other transfer of ownership, or by rental, lease, or lending." Unless a copy of the work changes hands in one of the designated ways, a "distribution" under Sec. 106(3) has not taken place. Merely making an unauthorized copy of a copyrighted work available to the public does not violate a copyright holder's exclusive right of distribution.
Meanwhile, Thomas' appeal to the 8th Circuit is still under way.
So what will happen if Thomas receives a new trial? From the RIAA's perspective, it may not matter that much. When I was talking to the RIAA last month about one of its other cases, they said: "But in any event, we download complete copies of songs from the individual defendants in all our user lawsuit cases, thereby rendering the entire 'making available' issue irrelevant."
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