Politics and Law

The French parliament on Thursday voted down an Internet piracy law, which had largely been expected to pass.

(Credit: Assemblee Nationale)

The "Creation and Internet" law, which won the preliminary approval of the parliament last week, would compel Internet service providers to take graduated actions against customers accused of illegally downloading copyrighted material. After warning a customer against such actions for a third time, an ISP could suspend the person's Internet access for up to a year.

Because the bill was expected to pass, few members of parliament were present for the final vote on the bill, according to the Associated Press. Opponents of the legislation, led by the Socialist party, rejected the measure by a vote of 21 to 15.

The legislation had the support of the ruling UMP party, to which President Nicolas Sarkozy belongs, as well as the support of the Recording Industry Association of America. Backers of the bill intend to re-introduce an amended version within the coming weeks, according to reports.

The entertainment industry has suggested to the United States' Congress that it should consider adopting European methods of combating copyright infringement. The United States, members of the European Union, and other countries may also consider making ISPs liable for infringement through international treaties.

The Recording Industry Association of America says a New York judge's ruling earlier this week really wasn't much of a setback for them. In fact, they say they don't mind it much at all.

This is my article from Tuesday to which the RIAA is responding. And here's e-mail from Wednesday that I was asked to attribute to the RIAA's lawyers, which I've reproduced in full:

The statement in the very first sentence of the posting that the court requires the record companies 'to demonstrate that unlawful copying took place' is entirely inaccurate and is precisely the opposite of what the court held. The court specifically held that proof of actual copying or actual dissemination is not required, and that simply making the work available for copying can be a distribution as long as the work was offered 'for purposes of further distribution.' Contrary to the thrust of the article, the court did in fact agree with the record companies that "making available" a copyrighted work under those circumstances is an infringement. 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.

It's true that U.S. District Judge Kenneth Karas said that an "offer to distribute" can amount to a distribution (which helps the RIAA). But Karas rejected the RIAA's argument that a Kazaa user who "made available" copyrighted music necessarily violated the law.

The RIAA has served up its "making available" argument in other cases too, including the Jammie Thomas lawsuit that resulted in a $222,000 jury verdict last October. Here's some more detail on why they've been enthusiastic about it.

Whether the RIAA now stands a worse chance of winning in the New York case depends on the distance between their "made available" and "offer to distribute" arguments. For that we'll need to wait to see the group's revised complaint--they have 30 days to submit it--and the court's next ruling.

Update: Fred von Lohmann at the Electronic Frontier Foundation points me toward his writeup of a separate ruling from a judge in Boston, who said that the RIAA must show actual distribution, and "making available" or "offer to distribute" won't do. But it was just a preliminary ruling, so stay tuned for more.

A federal judge in New York has dealt the Recording Industry Association of America a setback in its thousands of lawsuits over piracy on peer-to-peer networks.

In a widely anticipated decision, U.S. District Judge Kenneth Karas ruled Monday to reject the RIAA's claim that a Kazaa user who merely "made available" copyrighted music necessarily violated the law. Rather, he said, the RIAA would have to demonstrate that unlawful copying actually took place.

"Plaintiffs' allegations--insofar as plaintiffs wish to hold defendant liable for acts of infringement other than actual downloading and/or distribution--fail to state a claim," Karas wrote.

This is not necessarily fatal to the RIAA's lawsuit against Tenise Barker (referred to as Denise Barker in some court documents) that will continue in the Southern District of New York. That's because the music labels also have alleged that she actually did distribute copyrighted works--meaning that if they can prove that happened, which is more difficult, they can still win.

A few characteristics make this case unusual. First, New York federal judges are viewed as well-versed in copyright law, so Karas' decision is likely to be influential. Second, an unusually large number of outside groups filed briefs, including the U.S. Internet Industry Association, the Motion Picture Association of America, the Electronic Frontier Foundation, and the Computer and Communications Industry Association, meaning the court benefited from a range of views and increasing the importance of this week's decision.

Finally, the Bush administration jumped into the case on the part of the RIAA. The Justice Department's brief calls EFF's arguments "misleading" and says that the World Intellectual Property Organization treaty--signed by the United States--covers "making available" copyrighted works.

The "making available" argument is the same legal theory that the RIAA's attorneys relied on in the Jammie Thomas case, which led to $222,000 in penalties in October. The jury instructions said that "the act of making copyrighted sound recordings available for electronic distribution on a peer-to-peer network, without license from the copyright owners, violates the copyright owners' exclusive right of distribution"--meaning all they had to do was claim that Thomas left the songs in a publicly accessible directory where they could have been downloaded.

Thomas has said that her appeal to the 8th Circuit will center on whether or not "making available" copyrighted works--on the theory that they could have been downloaded--should be unlawful even if there's no evidence any transfers took place.

Other courts have considered this topic in lawsuits filed by the RIAA, but more briefly. In a pre-trial motion in UMG Recordings v. Lindor, the court ruled that: "At trial, plaintiffs will have the burden of proving by a preponderance of the evidence that defendant did indeed infringe plaintiff's copyrights by convincing the fact-finder, based on the evidence plaintiffs have gathered, that defendant actually shared sound files belonging to plaintiffs." (Emphasis added.)

As I wrote last fall, there are some dangers if the RIAA's "making available" theory is widely adopted by courts. If my mother accidentally shares her computer's entire hard drive with the world by clicking the wrong button in an OS X setup menu, is that "making available?" Should she be held liable for $222,000 in damages, and lose her house, for accidentally making two CDs of music available to the world?

If I don't upgrade to a newer version of my operating system even though I know there's a security glitch that opens my hard drive to the Internet, does that mean I'm "making available" my music collection? Do Internet service providers "make available" access to Kazaa? Do search engines "make available" links to infringing files?

These are not all easy questions to answer, especially because intent doesn't matter much in copyright law. It's what lawyers like to call a strict liability offense--meaning that even accidental "making available" can slap you with a $222,000 penalty. This might make sense for corporate defendants, but it gets bizarre quickly when applied to hundreds of millions of Internet users.

No appeals court--that I know of, at least--has ruled on exactly this point. Now it's teed up for the 8th Circuit (the Thomas case) to consider this year, and the 2nd Circuit (the Barker case) to hear sometime later. The outcome will be worth watching.

Update 4/1 8:01 p.m. PDT: While the judge rejected the RIAA attorneys' "making available" argument, he did provide them with a road map showing a detour that might still allow them to arrive at their destination. Specifically, he ruled that an "offer to distribute" can amount to a distribution. The RIAA needs to, he wrote, "affirmatively plead that defendant made an offer to distribute, and that the offer to distribute was for the purpose of further distribution, public performance, or public display." Look for the RIAA's revised complaint--it has 30 days to resubmit it--to argue just that.

Update 4/3 12:22 p.m. PDT: Here's the RIAA's response, which says in part that "the court did in fact agree with the record companies that 'making available' a copyrighted work under those circumstances is an infringement. 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."

(Note: This is not an April Fools' joke, by the way. News.com published three April Fools' articles--I wrote one--and we clearly labeled them. Sometimes you can trust what you read on 4/1.)

The Bush administration has officially entered the file-sharing lawsuit pitting the major record labels against a Minnesota woman named Jammie Thomas. And it's siding with the record labels.

In legal documents filed in federal court in Minnesota on Monday, the U.S. Department of Justice said it wants to defend the constitutionality of the copyright law that a jury decided Thomas violated.

"Copyrights are of great value, not just to their owners, but to the American public as well," the Justice Department's brief said. "Congress has recognized this value from the first days of the republic. The federal copyright statute...has consistently included special provisions to ensure significant monetary awards in copyright infringement suits that will make copyright owners whole and deter further infringement. "

Translation: It was perfectly reasonable for a jury to slap Thomas with a $222,000 penalty for making 24 songs available on Kazaa.

The Justice Department's move is not exactly unexpected. The department is charged with defending the constitutionality of statutes that Congress enacts, even ones (like the Communications Decency Act) that are unlikely to survive judicial scrutiny. In addition, as I noted in October, the Justice Department has already sided with the RIAA in a New York file-sharing case.

Thomas' argument seems to be this: Fining someone $222,000--and in fact the damages could have been far higher--for sharing songs that could be bought for $24 on iTunes is oppressive and objectively unreasonable. It therefore necessarily violates Supreme Court precedent, which prohibits fines that are "so severe and oppressive as to be wholly disproportioned to the offense or obviously unreasonable."

Here are two more excerpts from the Justice Department's brief, which echoes the Recording Industry Association of America's own arguments:

Although defendant claims that plaintiffs' damages are 70 cents per infringing copy, it is unknown how many other users--"potentially millions"--committed subsequent acts of infringement with the illegal copies of works that the defendant infringed. Accordingly, it is impossible to calculate the damages caused by a single infringement, particularly for infringement that occurs over the Internet. Furthermore, plaintiffs contend that their witnesses "testified to the substantial harm caused by the massive distribution of their copyrighted sound recordings over the Internet, including lost revenues, layoffs, and a diminished capability to identify and promote new talent..."

Most recently, 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, as well as providing compensation to copyright owners who have to invest resources into protecting property that is often unquantifiable. Accordingly, given the findings of copyright infringement in this case, the damages awarded under the Copyright Act's statutory damages provision did not violate the due process clause...

The Minnesota woman who was slapped with a $222,000 penalty for "making available" songs on the Kazaa network is appealing her loss.

But can she actually win against the Recording Industry Association of America?

There's probably a 50-50 chance. On one hand, the RIAA has won some minor victories in the last few years with its "making available" arguments to expand copyright law beyond what it actually seems to say. Now that there's finally going to be some serious public and judicial scrutiny, however, the odds are closer to even.

(If the RIAA wins, by the way, the precedent would create some real dangers for innocent users. But more on this later.)

[#1] What's important to remember here is that the RIAA's victory rests in large part on, as I wrote last week, 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.

To understand how this will play out, let's start with the plain text of the relevant part of federal law. It says:

17 USC 106: The owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending

Illicit distribution of copyrighted materials over Kazaa involves paragraphs (1) and (3). Those paragraphs restrict the unauthorized "reproduction" or "distribution" of music--which sure doesn't seem to cover Thomas leaving songs in her shared directory if they were never actually downloaded.

So how can the RIAA get away with this? This is where things get murky. The definition of "publication," which the U.S. Supreme Court says is the same as distribution, says: "Offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication."

[#2] Some courts have interpreted that to mean proof of actual copying is necessary; others haven't. Take a 1997 case involving the Church of Jesus Christ of Latter-Day Saints, sued by genealogical researchers who sold their copyrighted work on microfiche. Instead of buying multiple copies, the Mormons bought only one, made copies, and sent the duplicates to their branch libraries.

The copyright-holding genealogists took the position that the RIAA does today. They claimed that merely proving the copyrighted work was available was good enough. In response, the church argued that the researchers needed to show a library patron actually had read the pirated microfiche.

The RIAA's argument won. The 4th Circuit concluded by a 2-1 margin:

We agree with the (researchers). When a public library adds a work to its collection, lists the work in its index or catalog system, and makes the work available to the borrowing or browsing public, it has completed all the steps necessary for distribution to the public. At that point, members of the public can visit the library and use the work. Were this not to be considered distribution within the meaning of Section 106(3), a copyright holder would be prejudiced by a library that does not keep records of public use, and the library would unjustly profit by its own omission.

Because a split decision in a different federal circuit a decade ago in an unrelated case may not be entirely persuasive, the RIAA has invoked other arguments as well. And they've had some preliminary success.

Among them: 1. The WIPO copyright treaty, which the United States has ratified, covers "the making available to the public" of copyrighted works. 2. Marybeth Peters of the U.S. Copyright Office says that making a file "available for other users of a peer to peer network to download...constitutes an infringement of the exclusive distribution right, as well of the reproduction right." 3. Having child pornography in a Kazaa shared folder is, at least in the 10th Circuit, good enough to support a conviction in a criminal case. 4. The 9th Circuit believes that copyright law was infringed when peer-to-peer users "make their collections available to all other" users.

[#3] Those are strong arguments. But there's another side to the story as well (which is why I believe that Thomas has a 50-50 chance): WIPO is not binding by itself; Marybeth Peters' opinions aren't as important as what the law actually says; a civil dispute is different from a criminal prosecution; and so on.

Not all judges in the RIAA cases have agreed with the music industry's lawyers. In a preliminary ruling in Interscope Records v. Duty, a judge said last year: "To be clear, we do not conclude that the mere presence of copyrighted sound recordings in Duty's share file constitutes copyright infringement. We have an incomplete understanding of the Kazaa technology at this stage..." At least two other courts have followed that line of thinking.

In a pre-trial motion in UMG Recordings v. Lindor, the court ruled that: "At trial, plaintiffs will have the burden of proving by a preponderance of the evidence that defendant did indeed infringe plaintiff's copyrights by convincing the fact-finder, based on the evidence plaintiffs have gathered, that defendant actually shared sound files belonging to plaintiffs." (Emphasis added.)

Most judges, though, haven't spent too much time puzzling through the implications of "making available." One exception is U.S. District Judge Kenneth Karas in Elektra v. Barker, who has heard arguments from not just the RIAA but also the Electronic Frontier Foundation, the American Association of Publishers, the Motion Picture Association of America, the Computer and Communications Industry Association, and the U.S. Department of Justice. The Justice Department, by the way, sided with the RIAA. A decision from Judge Karas is expected at any time.

All those cases receive something of a boost from U.S. District Judge Marilyn Hall Patel's 2005 ruling in an offshoot of the original Napster litigation. Patel is no tech-neophyte; she presided over Napster, a 1990s-era encryption source code case, and the recent Americans with Disabilities Act lawsuit over Target's Web site. She wrote:

The gravamen of the parties' dispute lies in whether the Copyright Act requires proof of the actual dissemination of a copy or phonorecord in order to establish the unlawful distribution of a copyrighted work...If Congress wanted to make clear that the distribution right was broad enough to encompass making a work available to the public without proof of actual distribution, it was perfectly capable of doing so. Yet plaintiffs have failed to identify anything in (the law's) legislative history, much less the statute itself, to suggest that Congress even considered the scope of civil liability for copyright infringement in enacting the statute. Any attempt to infer legislative intent from such silence is at best speculative.

[#4] I said at the beginning of this article that if the RIAA wins on "making available," the precedent would create real dangers for innocent users. That's because the awesome weapon of copyright law can be turned on people who only mistakenly ran afoul of it.

The case of the Mormon church buying only one copy of the microfiche for multiple libraries was pretty straightforward: the purpose of any library is to distribute information, and intent to distribute can be assumed.

But computers are far slipperier than libraries (or, put another way, we're all libraries now). If my mother accidentally shares her computer's entire hard drive with the world by clicking the wrong button in an OS X setup menu, is that "making available?" Should she be held liable for $222,000 in damages, and lose her house, for accidentally making two CDs of music available to the world?

If I don't upgrade to a newer version of my operating system even though I know there's a security glitch that opens my hard drive to the Internet, does that mean I'm "making available" my music collection? Do Internet service providers "make available" access to Kazaa? Do search engines "make available" links to infringing files?

"It's hard to distinguish having something in a Kazaa shared directory versus having it on my shelf and not locking my door or having it on a computer and not bothering with a firewall so the college kids--who I know full well live next door--can hop on and take it," says Jessica Litman, who teaches copyright law at the University of Michigan and is the author of Digital Copyright. "If the RIAA eventually wins on this one, it would be a ruling I'd be willing to say is wrong," Litman added.

These are not all easy questions to answer, especially because intent doesn't matter much in copyright law. It's what lawyers like to call a strict liability offense--meaning that even accidental "making available" can slap you with a $222,000 penalty. This might make sense for corporate defendants, but it gets bizarre quickly when applied to hundreds of millions of Internet users.

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.

The Bush administration said on Friday that the recording industry's $222,000 courtroom victory shows that the legal system is working against peer-to-peer pirates.

"Cases such as this remind us strong enforcement is a significant part of the effort to eliminate piracy, and that we have an effective legal system in the U.S. that enables rights holders to protect their intellectual property," said Chris Israel, the U.S. Coordinator for International Intellectual Property Enforcement, to CNET News.com.

Chris Israel, U.S. Coordinator for International Intellectual Property Enforcement, in a file photograph

President Bush named Israel, formerly a senior Commerce Department official, to the key copyright post in July 2005. He has an MBA from George Washington University and, before joining the Bush administration, worked for Time Warner's public policy arm.

Israel's comments come a day after the Recording Industry Association of America won a landmark jury verdict in a Minnesota federal court against a woman accused of sharing copyrighted songs on the Kazaa file-trading network.

The Bush administration has adopted a generally expansive view of copyright law, including writing trade deals that include anti-circumvention restrictions. In 2005, the president signed into law the Family Entertainment and Copyright Act, which slaps some file-sharers with additional penalties.

Israel also said: "Piracy impacts many of our most innovative industries, costs American jobs and is a huge threat to our economic competitiveness."

The Recording Industry Association of America probably should have won its lawsuit against a Minnesota woman accused of sharing songs through the Kazaa file-sharing network.

There was enough evidence linking Jammie Thomas' computer to an IP address that was offering a slew of copyrighted songs to other Kazaa users. A jury in Minnesota, hardly the record labels' home turf, unanimously thought so too.

The problem isn't the verdict. It's the penalty.

After decades of special-interest lobbying by large holders of intellectual property rights, U.S. copyright law has spiraled out of control. It's been transformed from limited protections of authors' rights for 14 years to a juggernaut with criminal enforcement, sky-high penalties, and up to 120 years of legal protection.

Copyright no longer abides by the fundamental principle of law, which is that the damages awarded should be related to any harm committed. No wonder Jammie Thomas got slapped with a $222,000 bill. (And I wouldn't be surprised to see attorney's fees add another $100,000 on top of it.)

"It doesn't strike a regular person that by passing a CD around the neighborhood, they should have their house taken away," says Lew Rockwell, president of the free-market Mises Institute in Auburn, Alabama. "And by electronic means it shouldn't be any different."

Copyright law is, as Berkeley law professor Pam Samuelson points out, way too verbose; it's now swollen to an unbelievable 200 pages long. It's complex, incomprehensible, designed to favor large copyright holders over defendants, and thoroughly out of touch with reality.

This should be no surprise. The technical term for this is "rent-seeking," meaning special-interest coalitions who pressure the government to transfer wealth to them. The general public (reasonably) can't keep track of the minutiae of proposals to expand copyright law, but RIAA lobbyists can devote 100 percent of their time to the job. What happens is that copyright law continues to clamp down on Americans, inexorably, like a ratchet.

Consider what aggressive rent-seeking has achieved for the music and movie industries--and some certain large software companies--in the last decade alone: The Sonny Bono Copyright Term Extension Act. The Digital Millennium Copyright Act. The Family Entertainment and Copyright Act (more P2P penalties). The No Electronic Theft Act (file-swapping criminalized).

So what should Jammie Thomas have been required to pay? She's accused of sharing 24 songs, or two CDs worth. We don't know how many people downloaded those songs, but if 10 people did, that's perhaps $250 in value. If 100 people did, that's $2,500, and so on.

Walter Block, an economics professor at Loyola University, is no fan of copyright law at all. (He'd abolish it.) But his suggested penalties for physical larceny are worth taking into account. "My view is two teeth for a tooth, plus expenses, plus cost of capturing, plus a scaring penalty" that would provide additional deterrence and avoid allowing the wealthy to flout the law, he said on Friday. In other words, let the punishment fit the crime.

Under the judge's interpretation of copyright law, unfortunately, the RIAA wasn't required to prove how many songs were downloaded. Maybe nobody did; maybe thousands of people did. All the RIAA needed to do is prove Thomas made them "available" through Kazaa.

Although we can't make any reasonable estimate, we can nevertheless say it's unlikely that Thomas would be required to pay $222,000 plus attorneys fees if copyright law were reasonable, fair, and just. But it is now none of those, so she is.

The Recording Industry Association of American got a chance on Thursday to show everyone just how heavy and intimidating the legal club of copyright law can be.

As my colleague Greg Sandoval wrote a few hours ago, a Minnesota woman named Jammie Thomas was sued by the RIAA for allegedly making available some 1,702 songs through the Kazaa network (though only 24 were at issue in the case). A federal jury sided with the RIAA and returned a verdict of $222,000.

I've put some recent documents in the case online here for your perusal.

So why did this verdict happen?

1. The RIAA was able to match a username and IP address with Thomas. There's not always a 1:1 mapping between IP address and a specific computer, of course, as people who are behind a corporate firewall probably know. But home users tend to be more easily identified, and it's trivial nowadays for a lawyer armed with a subpoena to find out who they are. Large Internet service providers have entire departments to respond to these requests.

The fact that Thomas publicly used the nickname "tereastarr" including as a tereastarr@hotmail.com e-mail address -- and then chose it as a Kazaa username as well -- may have helped the RIAA immeasurably. If she had used a Kazaa username of "anonymous" instead, I wonder if the jury would have been more likely to take her side. The jurors seem to have flatly rejected (and reasonably so) her lawyer's claim of possible IP address spoofing.

2. The RIAA's jury instructions. Both the RIAA and the defense submitted proposed jury instructions (see my link above). Both are pretty similar because of the constraints of 8th Circuit precedent.

The key difference is that the RIAA offered two suggestions, which would eventually become Jury Instructions 14 and 15, which the defense left out. Once U.S. District Judge Michael Davis sided with the RIAA on that crucial point, which he did, and adopted its suggestions, the recording industry had a much easier time of it. Those two crucial instructions are:

JURY INSTRUCTION NO. 14: The act of downloading copyrighted sound recordings on a peer-to-peer network, without license from the copyright owners, violates the copyright owners' exclusive reproduction right.

JURY INSTRUCTION NO. 15: The act of making copyrighted sound recordings available for electronic distribution on a peer-to-peer network, without license from the copyright owners, violates the copyright owners' exclusive right of distribution, regardless of whether actual distribution has been shown.

3. "Making available." Jury Instruction 15 is more important. It says that the RIAA doesn't need to offer any evidence that rapacious Kazaa users actually downloaded songs from Thomas' computer. All they need to do is claim that Thomas left the songs in a publicly accessible directory where they could have been downloaded. Big difference.

This is not an outlier, by the way. A Pennsylvania judge came up with the same making-available-is-infringement conclusion in February. Marybeth Peters of the U.S. Copyright Office has argued that "making (a file) available for other users of a peer to peer network to download... constitutes an infringement of the exclusive distribution right, as well of the reproduction right." Judge Davis' interpretation of the law may not be the only one, but it's a defensible one. Here's his reasoning.

4. Copyright law is harsh. Once the jury decided that Thomas was behind the IP address in question, there was almost certainly going to be a stiff fine--of at least $18,000. In this case, the jury was given these instructions:

JURY INSTRUCTION NO. 22: In this case, each plaintiff has elected to recover "statutory damages" instead of its actual damages and profits. Under the Copyright Act, each plaintiff is entitled to a sum of not less than $750 or more than $30,000 per act of infringement (that is, per sound recording downloaded or distributed without license), as you consider just. If, however, you find that the defendant's conduct was willful, then each plaintiff is entitled to a sum of up to $150,000 per act of infringement (that is, per sound recording downloaded or distributed without license), as you consider just.

In determining the just amount of statutory damages for an infringing defendant, you may consider the willfulness of the defendant's conduct, the defendant's innocence, the defendant's continuation of infringement after notice or knowledge of the copyright or in reckless disregard of the copyright, effect of the defendant's prior or concurrent copyright infringement activity, and whether profit or gain was established.

In this case, the jurors chose $9,250 in damages for each of the 24 songs, or $222,000. They could have gone as low as $18,000 in total or as high as $720,000, and seemed to want to pick something closer to the middle.

So what happens next? Thomas can appeal. Or, if the RIAA's smart, its lawyers will offer her some kind of not-entirely-punishing settlement that's a tenth of today's damage award and strongly encourage her to take it. That would avoid the worst of the negative publicity, but still let the record labels wave around a pretty big club.