File-Sharing Litigation Groundhog Day

RIAA file-sharing punching bag Jammie Thomas-Rasset lost for the third time, a Minnesota jury finding her liable on Wednesday for copyright infringement and ordering that she pay damages of $1.5 million.  A 2007 jury trial resulted in a $222,000 RIAA damage award against Thomas-Rasset.  She appealed, there was a retrial in 2009, and she lost again:  liability for copyright infringement and $1.92 million in damages to the RIAA.  The trial judge reduced that “monstrous and shocking” award to $54,000.  The RIAA offered to settle for $25,000, Thomas-Rasset refused, and the RIAA tried its case again, which brings us back to Wednesday’s verdict.  Thomas-Rasset’s counsel said she would appeal–to the federal judge who reduced the $1.92 million award.

And Yet Again

In 2007 RIAA v Jammie Thomas-Rasset (she was just Jammie Thomas then) resulted in a jury verdict and damages of $222,000 in favor of the RIAA.  A few months later the trial judge had second thoughts about his instructions to the jury and ordered a new trial.  In 2009 RIAA v Jammie Thomas-Rasset II:  Oops I Did It Again resulted in a jury verdict and damages of $1.92 million in favor of the RIAA.  A few weeks ago the trial judge reduced the damages to $54,000.  Last week the RIAA rejected the reduced award but offered to settle with Thomas-Rasset for $25,000.   She rejected the settlement, setting the stage for RIAA v Jammie Thomas-Rasset III:  Damages, in which the only issue will be how much the RIAA receives from its suit.  Her attorney has committed already to RIAA v Jammie Thomas-Rasset IV:  Oops the 8th Circuit Affirms the Constitutionality of Copyright Damages, the Supreme Court Denies Cert, and Thomas-Rasset Has Her Legacy.

Who knows. I am Mr. Glass Half-Empty. Maybe this will turn out not to be a disaster for Thomas-Rasset.

RIAA Wins

Minnesota music file-sharing defendant Jammie Thomas-Rasset yesterday completed her new copyright infringement trial.  Unfortunately the result was about eight times worse than October 2007’s trial, in which a jury found her liable and awarded the RIAA damages of about $240k.  This time the jury found her liable for infringing 24 song copyrights and awarded the RIAA damages of $80k per son, or $1.92 million.  Last year’s verdict, Thomas-Rasset’s appeal, the trial judge’s subsequent criticism of his pro-RIAA jury instructions that making copyrighted songs available for sharing constituted infringement, and the just-completed retrial received considerable notice, if you pay attention to these things.  (See prior posts here, here, here, here, here, and here.)  Thomas-Rasset’s response to the damage award was “good luck trying to get it from me . . . it’s like squeezing blood from a turnip.”  The RIAA reiterated its willingness to settle, an offer on which Thomas-Rasset has passed.

Ars Technica reports (see first linked article) there were ample grounds for the jury’s verdict:

The evidence clearly pointed to her machine, even correctly identifying the MAC address of both her cable modem and her computer’s Ethernet port. When combined with the facts about her hard drive replacement (and her failure to disclose those facts to the investigators), her “tereastarr” username, and the new theories that she offered yesterday for the first time in more than three years, jurors clearly remained unconvinced by her protestations of innocence.

Something in the evidence turned the jurors against Thomas-Rasset.  In 2007 she lost big.  This week she lost huge.  She says she plans an appeal, a stance aided by her pro-bono counsel.  I don’t know what grounds she would have for appeal.  Copyright infringement law is not on the side of file-sharers, no matter how many Harvard-trained lawyers they have.  I agree the law needs changing, and that for many the RIAA is a particulary unsympathetic plaintiff, but if Iwere representing a file-sharing defendant I would think deeply about the reasons for the jury’s decision.

Music Industry Updates

The music industry generated some news while was hobbling.

The RIAA announced that it is dropping its campaign of mass lawsuits.  The RIAA has filed copyright infringement lawsuits against over 35,000 people in the past five years for allegedly pirating copyrighted songs, a fact most college students know well.   Most suits were settled for between $3,000-$5,000, a significant sum for many of those sued but I would be surprised if the RIAA netted much money for its members after the cost of filing and administering the lawsuits.  The suits may have deterred some individuals from pirating copyrighted music–e.g., a lawyer-turned-college-professor with financial assets and a professional reputation to protect–but did not put a dent in the amount of piracy.  The RIAA’s new strategy is to enlist the support of ISPs who agree to tighten the screws on users the RIAA identifies as distributors of copyright-protected files.  Cooperating ISPs will forward RIAA-generated cease-and-desist letters to their offending users.  If a targeted continues to make copyrighted songs available for downloading “they will get one or two more emails, perhaps accompanied by slower service from the provider. Finally, the ISP may cut off their access altogether.” (Sarah McBride and Ethan Smith, “Music Industry to Abandon Mass Suits,”  The Wall Street Journal, 19-Dec-08)  The RIAA is not dropping pending lawsuits and may continue to sue high-volume individual file-sharers.  The WSJ’s law blog speculates the RIAA’s problematic lawsuit against Jammie Thomas was central to its change of strategy.  That’s the case in which the jury awarded the RIAA over $220,000 in damages for Thomas’s piracy, and the trial judge decided a few months later than his instructions to the jury were wrong.  He had told the jury that making copyright-protected songs available in a shared folder constituted copyright infringement.  He reconsidered his instructions after other court rulings undermined the “making available” theory, holding that the RIAA must prove  copyright protected songs were actually copied to establish copyright infringement.

Involving ISPs in an enforcement role is potentially quite effective, if enough ISPs join the effort.  A former student articulated this very concept in 2002.  After graduation he developed monitoring software and a business plan to implement the concept and wooed the RIAA and ISPs to its merits, without success.  He was a half-decade ahead of his time. Alert readers will note that the RIAA’s ISP initiative targets distributors, not downloaders; it appears that free-riders–those who take without giving–will continue to fly under RIAA radar.

Yesterday Apple announced two significant changes in the iTunes st0re, multi-tier pricing and DRM-free music.  The record labels have wanted iTunes to drop the flat $.99/song price model in favor of pricing that reflects a song’s popularity.  Now iTunes will sell songs for $.69, $.99, or $1.29; in exchange the record labels agreed that songs sold on iTunes will be free of digital rights management limits on copying and use on multiple computers.  These changes bring  iTunes in line with the Amazon’s MP3 store.

RIAA Appeals File-Sharing Decision

The RIAA has appealed Judge Michael Davis’s decision to toss out the $224 jury verdict in its copyright infringement case against Jammie Thomas. Last month the judge vacated the verdict after deciding he erred when instructing the jury that Thomas could be liable merely for making a copyrighted song available for sharing online, without regard to whether someone actually copied the song.