Cites & Insights: Crawford at Large
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Libraries · Policy · Technology · Media


Selection from Cites & Insights 10, Number 7: June 2010


Copyright Currents

Catching Up with the RIAA

Remember Jammie Thomas? Or, now, Jammie Thomas-Rasset? She was the subject of one of the more surprising essays in Cites & Insights (November 2007, 7:12): Sometimes They’re Guilty.

Briefly, Jammie Thomas was the defendant in the first case where an RIAA filesharing infringement suit actually went to a jury—despite RIAA’s best efforts to avoid that happening. Thomas seemed like a sympathetic defendant: Single mother, Native American. But her IP address was attached to a KaZaA account offering more than 1,700 recordings with a user name she’d apparently used for years on several different accounts…and shortly after receiving a settlement letter from RIAA, Thomas had Best Buy replace the hard drive in her PC. And, under questioning, said it had been replaced a year earlier. To make a long story short—up to October 2007, at least—the jury found her guilty, not surprising given the evidence in the case. The judgment was for $220,000. She appealed the decision, in part based on a claimed flaw in the jury instructions. That’s where things stood at the time of the earlier article.

Court activities can sometimes seem to be in very slow motion. Most of this article brings things up to date on the Thomas case—and, so you’re not too surprised, it’s not over yet. (There’s other stuff about RIAA and copyright at the end of the article—but the Jammie Thomas saga is fascinating.)

Narrowing Infringement

During the 2007 trial, the jury was instructed as follows:

The act of making copyrighted sound recordings available for electronic distribution on a peertopeer network, without license from the copyright owners, violates the copyright owners’ exclusive right of distribution, regardless of whether actual distribution has been shown.

The judge—Michael Davis—had second thoughts about that instruction and summoned the parties back to the court in August 2008 to consider whether that instruction was a “manifest error of the law.” Thomas’ side said it was—that something wasn’t distributed unless somebody actually took it. (I’m reminded of Michael Hart’s old claims, years ago, that Project Gutenberg had “given away” a trillion dollars worth of etexts—by assuming that everybody who had an internet connection had virtually received the texts.) You gotta love the recording companies’ response: It doesn’t matter—because MediaSentry, working on recording companies’ behalf, did download the songs. No evidence was offered that anybody else downloaded those songs. From Judge Michael Davis’ findings on appeal (from his own trial): “Thomas retorts that dissemination to an investigator acting as an agent for the copyright owner cannot constitute infringement”—basically, you can’t infringe your own copyright. Or, in this case, your hired gun can’t infringe your copyright acting on your behalf. The recording companies—let’s just call them RIAA from now on—disagree. The court sided with RIAA on this one…but didn’t think that was enough to preclude a new trial.

You can guess where the Register of Copyrights came down on whether making available is, itself, a violation of the distribution right (that is, whether the quoted instruction is legitimate). Even though “the leading copyright treatises” conclude that it’s not enough, the Copyright Office slanted toward the interests of Big Media. But there’s no single definition of “distribute” within copyright law—and “the Court notes that when Congress intends distribution to encompass making available or offering to transfer, it has demonstrated that it is quite capable of explicitly providing that definition within the statute.”

There’s a lot more in the 44-page decision, but it boils down to this:

Liability for violation of the exclusive distribution right found in § 106(3) requires actual dissemination. Jury Instruction No. 15 was erroneous and that error substantially prejudiced Thomas’s rights. Based on the Court’s error in instructing the jury, it grants Thomas a new trial. Because the Court grants a new trial on the basis of jury instruction error, it does not reach Thomas’s claim regarding excessive damages set forth in her motion for a new trial. Plaintiffs’ request to amend the judgment is denied because the judgment is vacated.

Davis didn’t stop there. He finds the current situation with statutory damages out of whack:

The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer-topeer network cases such as the one currently before this Court. The Court begins its analysis by recognizing the unique nature of this case. The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts. The myriad of copyright cases cited by Plaintiffs and the Government, in which courts upheld large statutory damages awards far above the minimum, have limited relevance in this case. All of the cited cases involve corporate or business defendants and seek to deter future illegal commercial conduct. The parties point to no case in which large statutory damages were applied to a party who did not infringe in search of commercial gain.

The statutory damages awarded against Thomas are not a deterrent against those who pirate music in order to profit. Thomas’s conduct was motivated by her desire to obtain the copyrighted music for her own use. The Court does not condone Thomas’s actions, but it would be a farce to say that a single mother’s acts of using Kazaa are the equivalent, for example, to the acts of global financial firms illegally infringing on copyrights in order to profit in the securities market…

While the Court does not discount Plaintiffs’ claim that, cumulatively, illegal downloading has farreaching effects on their businesses, the damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs. Thomas allegedly infringed on the copyrights of 24 songs—the equivalent of approximately three CDs, costing less than $54, and yet the total damages awarded is $222,000—more than five hundred times the cost of buying 24 separate CDs and more than four thousand times the cost of three CDs. While the Copyright Act was intended to permit statutory damages that are larger than the simple cost of the infringed works in order to make infringing a far less attractive alternative than legitimately purchasing the songs, surely damages that are more than one hundred times the cost of the works would serve as a sufficient deterrent…

Has Congress listened to Davis’ plea? Not so you’d notice, at least not so far: Statutory damages continue to be wildly excessive. (I don’t see a contradiction in concluding both that Thomas is probably guilty and that the judgment is wildly excessive: They’re two separate issues. I would note that 24 songs is the equivalent of two CDs—or maybe one compilation CD…but that’s irrelevant.)

Thanks to Charles W. Bailey, Jr., for the September 25, 2008 DigitalKoans post “Judge in Capital Records v. Jammie Thomas: Merely Making Available Not Enough for Infringement” and for including links to stories from EFF, Wired and Ars Technica offering details on the decision.

The Second Time Around

The new trial took place in mid-June 2009. The notes that follow come primarily from very thorough coverage by Nate Anderson of the trial and issues leading up to it at Ars Technica, including posts on June 4, 15 (two posts), 16 (two posts), 17, 18, 19 and 21, 2009—with the verdict discussed on June 19, 2009.

Going in to the trial, the two sides agreed on three things: record labels do print copyright notices on their CDs, Thomas had a Charter internet account and the MAC number of her cable modem did represent her cable modem. That’s about it.

Anderson’s summary of that Thomas’ attorney said its side would prove is thoroughly charming; here’s the start of it:

Buckle up, because this is going to be a white-knuckle ride through the Tunnels of Logic.

Thomas says that she will prove the following:

·         That she “never used KaZaA at all”

·         That every WMA song on her computer was ripped from her CD collection

·         That she “did not download and share any of these songs”

·         That her alleged file-sharing conduct—which, remember, she did not engage in— “did not cause substantial harm to the RIAA and would not even if widespread”

·         That any infringement she may have committed—with the KaZaA program that she did not use—is “fair use”

Thomas—through a new attorney—also asserted that MediaSentry’s downloads (from that nonexistent KaZaA account) shouldn’t count as distribution because it’s functioning as RIAA’s agent—but there’s precedent for demonstrating infringement by having hired investigators do the infringing. Ah, but if MediaSentry’s an investigator, where’s its license to be a PI in Minnesota (which requires such licenses)? There was also an underlying issue: That the statutory damages were so excessive as to be unconstitutional.

The RIAA’s case was simpler. 1,702 songs were being shared on KaZaA; the username and IP address both matched Thomas; claims by a computer science professor that Thomas might have been framed are “breathtakingly unlikely” or “downright impossible” (Anderson’s words)…basically, she’s guilty on the facts. The RIAA, being what it is, couldn’t “shy away from a bit of rhetorical overreach. For instance, it says in an early footnote that Thomas was distributing 1,702 digital audio files ‘to millions of users on a peer-to-peer network at the time Plaintiffs’ investigator caught her doing so.’” But Davis already concluded that making available is not distribution, so this is nonsense. (The RIAA wouldn’t give up this premise, raising a variant elsewhere in its filing.) There’s one more claim: That Thomas tried to conceal her infringement by replacing her hard disk. (RIAA wanted the fair use claim dismissed outright.)

Some highlights from the trial itself (again, excerpted and paraphrased from Nate Anderson’s excellent coverage at Ars Technica):

·         Of 19 potential jurors questioned, none admitted ever using a peer-to-peer program and nobody had any opinion of the recording industry. Anderson called the group “shockingly law-abiding.”

·         When defense lawyer Kiwi Camara pushed Sony lawyer Gary Leak on what’s reasonable as a penalty for this sort of copyright infringement (the legal range for statutory damages is $750 to $150,000 per song), specifically asking whether the maximum--$150,000 per song—would be an appropriate amount, Leak answered “Certainly!”

·         Camara proclaimed Thomas completely innocent, made a point of her owning 200 CDs and called her “one of the recording industry’s best customers,” and said the hard disk replacement was entirely innocent (and that Thomas never received either of two notices regarding the RIAA investigation, one electronic, one via FedEx). Meanwhile, a MediaSentry witness pointed to metadata questioning the defense claim that Thomas ripped all these songs from her own CDs.

·         By the end of the first day, the proposed fair use defense was eliminated, Sony had entered certified copies of its copyright registrations and MediaSentry’s evidence had been admitted.

·         One bit of drama came on Tuesday, June 16 when, at the end of a computer scientist’s testimony for RIAA, he mentioned a log file on Thomas’ computer—a log file that the defense hadn’t been informed of. Judge Davis considered tossing the expert’s complete testimony, but wound up excluding only the testimony related to the log file. I love the phrase used by a defense lawyer: the recording industry had “thrown a skunk in the jury box.”

·         While the defense was able to demonstrate that the hard drive in Thomas’ computer was damaged when it was replaced (because Best Buy wouldn’t have replaced it under warranty otherwise), its case wasn’t helped much when it became clear that Thomas had hired an investigator to examine the hard disk—the replaced hard disk, clearly manufactured after the alleged infringement. Eventually, Thomas herself admitted on the stand that her two previous statements under oath, that the hard disk had been replaced in 2004 and not since, were incorrect. Ah, but that KaZaA account, with a username that Thomas had been using for 16 years and kept password-protected? “It is not mine.”

·         The defense called only one witness—Thomas—who, among other things, said the computer scientist was brought in to give “false testimony” and the case (which she persisted in pursuing) had made her life a “complete nightmare.” She claimed she wasn’t lying about the year the hard disk was replaced; she was “consistently off” by a year in the depositions. She never got the instant message about the investigation, two weeks before her son “got frustrated by a computer game” and hit her computer, breaking the hard drive—and she threw away the FedEx letter without reading it. (Hey, you know, people send junk mail at FedEx rates all the time, right?) She offered various alternative explanations for the shared songs—some of them immediately undermined during cross-examination. Essentially, her defense gave up almost all of its claims and came down to the claim that, while her computer might be guilty, she wasn’t.

·         That’s how the closing arguments went. The defense argued that Thomas shouldn’t be found guilty because somebody else might have been using her computer. The prosecution discounted the various theories.

The Judgment and Beyond

Then it went to the jury—with somewhat shocking results. Not that she was guilty of infringement: That’s hardly shocking. What’s shocking: The amount of damages awarded to the recording companies for infringement of copyright on 24 songs. $1.92 million. That’s $80,000 per song—a little more than half the possible maximum (which RIAA never asked for), but many times more than at the first trial.

Thomas’ lead lawyer, Kiwi Camara, had been convinced that—even if she was found guilty—the liability finding would have been the minimum $750 per song or $18,000 (still more than three times the amount the RIAA first proposed settling for). Thomas said the companies couldn’t collect anyway—”Good luck trying to get it from me…it’s like squeezing blood from a turnip.” The RIAA made it fairly clear it was still willing to settle, that it had no interest in trying to collect such an absurd judgment. But Thomas planned to fight on, with Camara ready to file all sorts of motions.

Fred von Lohmann of the Electronic Frontier Foundation weighed in with a post questioning the constitutionality of the verdict—finding two concerns. First, “grossly excessive” punitive damages have previously been found to violate the Due Process clause—but these are statutory damages, not punitive damages. Second, there’s a hint in some rulings that you can’t award statutory damages “for the express or implicit purpose of deterring other infringers who are not parties in the case”—in other words, “sending a message” isn’t allowed.

Alan Wexelblat used the title “A Win Too Far?” on a June 21, 2009 Copyfight post about the verdict. The post includes an odd sentence: “To be fair, she probably wasn’t the one who shared the songs, but they were shared from her computer.” To be fair? Really? OK, she wasn’t sitting at the keyboard approving individual file sharing—but there didn’t seem to be credible evidence that anybody else used her protected account name. Wexelblat notes that Thomas could simply file for bankruptcy—and offers the opinion that “they’ll settle for some token amount. I can’t imagine either side wanting this fight drawn out further in the courts or in the press.”

David Cravets asked “Will File-Sharing Case Spawn a Copyright Reform Movement?” in a June 22, 2009 Wired post. The giveaway comes in the first paragraph:

Thursday’s $1.92 million file-sharing verdict against a Minnesota mother of four could provide copyright reform advocates with a powerful human symbol of the draconian penalties written into the nearly-35 year old Copyright Act. Then again, maybe not.

Of course the penalties are ridiculous when noncommercial sharing is involved. Yes, the size of the verdict is “the clearest example yet” of abuses arising from current copyright law. Absolutely, the damages are wildly disproportionate to actual damages. But…well, “She’s not quite the poster child for change.” Cravets calls her lines of defense (that a hacker hijacked her nonexistent wireless connection or that her kids did it) “ludicrous.” He notes that RIAA is largely winding down its horrendous punish-casual-sharers campaign.

Nate Anderson offered a fine summary on June 21, 2009 at Ars Technica: “What’s next for Jammie Thomas-Rasset?” The options he suggests, with brief versions of his commentary:

·         Pay it. Not gonna happen. She’s a “brownfield development coordinator” for the Mille Lacs band of the Ojibwe; she doesn’t have $1.92 million sitting around (and apparently her lawyers are acting pro bono).

·         Settle: Which she could have done years ago, for $3,000 to $5,000. But she claims innocence and won’t negotiate a settlement.

·         Bankruptcy: While some debts can’t be discharged in bankruptcy, this one wouldn’t be clear.

·         Constitutional challenge: Already discussed.

·         Appeal.

·         Change the law: Also discussed.

The article notes that the RIAA ran more than 30,000 of these infringement cases—with one, so far, going to jury trial and through to verdict. This one (the Tenenbaum case, discussed later, resulted in a directed verdict in favor of the RIAA). So far, the RIAA’s won—twice.

Since The Second Trial

On July 7, 2009, Nate Anderson reported on Thomas-Rasset’s appeal in “Jammie Thomas challenges ‘monstrous’ 1.92M P2P verdict” (again at Ars Technica). She asked the judge to reduce the damage award to the minimum ($18,000) or grant her a new trial. Here’s the start of the motion:

The verdict in this case was shocking. For 24 songs, available for $1.29 on iTunes, the jury assessed statutory damages of $80,000 per song—a ratio of 1:62,015. For 24 albums, available for no more than $15 at the store, the jury assessed statutory damages of $80,000 per album—a ratio of 1:5,333. For a single mother’s noncommercial use of KaZaA, and upon neither finding nor evidence of actual injury to the plaintiffs, the judgment fines Jammie Thomas $1.92 million. Such a judgment is grossly excessive and, therefore, subject to remittitur as a matter of federal common law.

It’s hard not to ask right off the bat, “what does being a single mother have to do with anything?” As Anderson says, the ratios cited are essentially irrelevant—but “the jury’s verdict was nuts.” Meanwhile, RIAA asked for a permanent injunction against future infringement by Thomas. “One suspects, however, that if a $1.92 million award isn’t enough to make Thomas-Rasset stop sharing files, a permanent injunction won’t be any more effective.” Both Anderson’s wording and, maybe more so, the thread of comments suggest that Thomas just isn’t a very sympathetic defendant, single mother or no. Another filing says the judge should reduce the damage amount because the two verdicts were so different. (You can see that story, dated August 31, 2009 at Ars Technica, as “Jammie Thomas slams $1.92 million P2P verdict as ‘arbitrary.’”)

Now we jump to January 2010—when Judge Davis does reduce the damage award by 97.2%--down to $54,000. (“Judge slashes ‘monstrous’ P2P award by 97% to $54,000,” Nate Anderson, Ars Technica, January 22, 2010.) He notes the inconsistencies and perjury in Thomas’ testimony (saying flatly that she lied) and that statutory damages have both deterrent and compensatory purposes—but there are limits. He thinks $54,000 is still “significant and harsh,” but at least not “monstrous and shocking.”

The RIAA had a week to accept the reduced amount or ask for a third trial. It did neither. Instead, it sent a letter to Thomas’ lawyers saying that $25,000 would settle the matter, that the $25,000 could be on a payment schedule—and that the $25,000 would go to a charity benefiting musicians. The lawyers responded: No deal. As noted in a January 27, 2010 Wired story by David Kravets and a January 28, 2010 Ars Technica story by Nate Anderson, Kiwi Camara says “Thomas-Rasset would likewise rule out any settlement asking her to pay damages.” Joe Sibley (another defense lawyer) says the settlement offer “proves our point” about exorbitant damages. So a third trial seems likely. The RIAA won’t back down entirely—and, despite being labeled a liar even by the judge, Thomas-Rasset has lawyers ready to keep fighting. As Anderson says:

Given the facts in the case, which after two trials don’t appear to be in dispute, it’s hard to see how Thomas-Rasset hopes to prevail without paying a dime, but that appears to be the plan. If she had been willing to pay something, she would have done so long ago, when the RIAA offered her a settlement of a few thousand dollars. Instead, Thomas-Rasset has spent years of her life working with two law firms on two federal trials, and she’s willing to risk a third.

Will Thomas-Rasset become the figurehead for reform of outrageous copyright penalties—penalties that might make sense for commercial piracy but make no sense at all for casual file-sharing? So far, I’ve seen no signs of that. That’s unfortunate—but it’s just hard to view Thomas-Rasset as the right figurehead for the job. At this point, she may be doing reform more harm than good.

Other RIAA-Copyright Notes

Some of these date back almost two years. Sorry about that. As usual, they’re mostly chronological.

RIAA’s Bullying

Ray Beckerman wrote “Large Recording Companies v. The Defenseless: Some Common Sense Solutions to the Challenges of the RIAA Litigations,” which appeared in the Summer 2008 Judges’ Journal (an ABA publication). Links to the PDF are at recordingindustryvspeople.blogspot.com/2008/07/aba-judges-journal-article-large.html.

It’s a 9,000-word article that covers a lot of ground, and it’s fair to say Beckerman (a commercial litigator in a New York law firm) comes at it with a specific viewpoint, given that he runs a blog called Recording Industry vs. The People. I won’t attempt to excerpt the whole article, but you might find it interesting. It’s intended as an “attempt to remove some of the mythology regarding these cases, to make observations regarding some of the points at which the process is breaking down, and at each of those junctures, to offer one or more practical, constructive suggestions as to what the courts need to do to make the process more fair and balanced.”

He starts out by pointing up the “common misconception, actively fostered by the RIAA’s public relations spokespeople,” that these are downloading cases—which, as he says, is nonsense, since the cases are brought without any proof of downloading. (Except that MediaSentry, now apparently called SafeNet, downloads a few tracks as part of its “investigative” process.)

Beyond that, things get dense, as you might expect in a legal journal. I believe Beckerman’s arguing that the RIAA process does not meet the minimum standards needed for Federal lawsuits and that the whole process is unbalanced and abusive. (It’s certainly unbalanced, and I find it hard to argue with abusive as well.) Anyway, there it is, if you’d like to explore the legal issues from a lawyer’s viewpoint—a lawyer who is distinctly not on Big Media’s side. (Nate Anderson of Ars Technica calls him a “longtime RIAA scourge” in the article noted below.)

The Tenenbaum Case

I hadn’t been following this one—a graduate student, Joel Tenenbaum, accused of “sharing copyrighted music files for years on P2P networks,” to quote a May 21, 2009 article at Ars Technica by—oh, c’mon, by now you can guess who it’s by. The article’s title may say it all: “Copyleft vs. Copyright: FSF, RIAA face off in court.” To wit, the Free Software Foundation (Richard Stallman and friends) filed an amicus brief in the case, primarily saying the sheer size of statutory damage awards in these cases is inherently unconstitutional—and, indeed, that even the $750 minimum is too high. FSF asserts that there must be a link between statutory and actual damages—and further claims that “The RIAA’s lost profits in the case of an mp3 file are approximately 35 cents.” That’s presumably true if only one illegitimate copy was ever made. (Ray Beckerman cowrote the FSF brief.)

Did you know that Richard Stallman doesn’t browse the web? He says so in a December 19, 2007 post: “To look at page I send mail to a demon which runs wget and mails the page back to me. It is very efficient use of my time, but it is slow in real time.” That helps prevent wasting time following interesting links and maintaining focus on other things, I guess. Totally irrelevant to RIAA and copyright, but so interesting for a technology guru that I really couldn’t pass it up.

The Tenenbaum case appears to be somewhat of a zoo. The primary defense lawyer, Harvard Law professor Charles Nesson, asserts that noncommercial filesharing is presumptively fair use—that statutory damages only apply to commercial infringement. I’d love for that to be true, and I’m certainly no Harvard Law professor. At least the Tenenbaum case involves a headon attack on penalties rather than the Thomas “I didn’t do it” approach. (Tenenbaum did originally use “I didn’t do it” as a defense—but also offered a $300 settlement to counter RIAA’s $3,500 request. Later on, he admitted to downloading.) Is it a plausible argument? Lawrence Lessig says no—that it’s just not plausible to stretch fair use that far. Wendy Seltzer, who’s worked with EFF and runs the Chilling Effects website, finds the fair use argument puzzling and says, “I fear that we do damage to fair use by arguments that stretch it to include filesharing.”

The RIAA was less than kind about FSF’s brief, saying the organization has “an open and virulent bias against copyrights in general, and against the recording industry in particular” and should not be allowed to file a brief. RIAA’s accused Beckerman of vexatious litigation—which to some observers (such as another Ars Technica writer, Eric Bangeman) must feel a lot like the pot calling the kettle black.

By mid-June 2009, apparently, Judge Nancy Gertner had had enough. To quote Gertner (as quoted in a June 18, 2009 Ars Technica piece):

The Court’s indulgence is at an end. Too often, as described below, the important issues in this case have been overshadowed by the tactics of defense counsel: taping opposing counsel without permission (and in violation of the law), posting recordings of court communications and emails with potential experts (who have rejected the positions counsel asserts) on the Internet, and now allegedly replicating the acts that are the subject of this lawsuit, namely uploading the copyrighted songs that the Defendant is accused of file-sharing.

That’s right: Nesson apparently records everything he can and posts the recordings, even after being told not to do so. He also posted private email from other copyright experts (some of it noted above), “all of whom disagreed with Nesson’s view that P2P file-sharing was fair use.” And, yep, Nesson’s team “then uploaded every song at issue in the case to an online storage locker…and Nesson posted the details on his blog.” (Those details included the password, so anybody could download the songs.) Well, if noncommercial filesharing is fair use, what’s the problem? (Sigh: One of the first comments on the June 18 post was a classic “if you’re not doing anything wrong, why do you care about being monitored constantly?” bit.)

Some of what’s happened since then—noting that, in this case, Tenenbaum had pretty much admitted to the RIAA’s accusations (Ars Technica, EFF and a February 16, 2010 post at Out of the Jungle served as resources):

·         The judge originally accepted the possibility of fair use as a defense—but shortly before the jury trial began, she granted RIAA’s request for summary judgment on that issue. She found that there was no right for such a defense to go to the jury, because it’s a matter of law (the judge’s bailiwick), not facts (the jury’s role). She noted that the proposed defense was “so broad that it would swallow the copyright protections that Congress has created. Indeed, the Court can discern almost no limiting principle.” (Judge Gertner has come down hard on the RIAA as well.)

·         Jury selection must have been a kick to watch, with Nesson asking potential jurors how they felt about his wearing a black turtleneck or how they’d feel if they found out he’s a pot-smoker.

·         After Judge Gertner reviewed testimony transcripts, she granted a directed verdict: Since Tenenbaum explicitly admitted liability for “downloading and distributing all 30 sound recordings that are at issue…,” there is no question of fact, leaving the jury only to decide the size of the penalty (and whether the infringement was willful).

·         Guess what? This jury was no more ready to go for a flat $750/song than the Thomas jury was. They settled on $22,500 per song, or $675,000 total. It took them three hours. (The jury did find that his infringements were willful.) Nesson promises to soldier on through appeals and a class-action suit against recording labels. (Tenenbaum’s already said he’ll file for bankruptcy if the appeal fails.)

·         In December 2009, Gertner signed off on the damage amounts—while saying that, if the defense team hadn’t acted so inappropriately, she was “prepared to consider a more expansive fair use argument than other courts have credited.” But she couldn’t countenance what amounted to an attack on all copyright.

·         In January and February 2010, Tenenbaum’s team filed briefs and motions basically arguing the “unconstitutionally high damages” notion. And in March, the court assessed $2,249 in attorneys’ fees against Tenenbaum and Nesson related to a motion to produce evidence in the case.

One almost wonders how the RIAA could be so lucky as to have the only two cases that come to trial be ones where it’s hard to sympathize with the defendant. I’m no fan of Big Media and feel the RIAA and its members have done much to hurt themselves—but in both of these cases, the worst I can do is suggest a curse on both houses.

There are other cases…

Which usually don’t reach trial. For example, there’s one where a middle-aged woman thought the lawsuit was a scam and didn’t show up in court—but when she got help, the lawsuit was dismissed with prejudice (which means it can’t be refiled) and no money changed hands. That was a more typical RIAA overreaching: The “facts” on RIAA’s side were sloppy at best.

Looking for conclusions? If there are some, maybe Ed Felten gets them in a November 9, 2009 post at Freedom to Tinker: “Targeted Copyright Enforcement: Deterring Many Users with a Few Lawsuits.” Felten quotes a paper “The Dynamics of Deterrence” that explains how this can work. It’s an interesting read. Whether it could apply in this case—well, that’s not certain.

My own conclusions are as before, unchanged by two cases that both “went RIAA’s way” (and RIAA really wants the Thomas case to go away):

·         Of course statutory fines for noncommercial infringement are way out of line. In a saner world, Congress would address that.

·         That doesn’t mean noncommercial infringement—file-sharing—is either legal or ethical. I don’t believe it is, or should be, either one.

·         Theoretically, the courts could also address the absurdity here. Will they? We’ll have to wait and see.

·         Meanwhile, if you’re trying to make vast changes in a legal environment, lying usually isn’t the best way to go about it.

Cites & Insights: Crawford at Large, Volume 10, Number 7, Whole Issue 130, ISSN 1534-0937, a journal of libraries, policy, technology and media, is written by Walt Crawford.

This issue sponsored by the Library Society of the World (LSW).

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