Jammie runs out of dodges as DOJ backs RIAA

IN REPLY to a motion filed by Jammie Thomas, the US Department of Justice (DOJ) sided with the Recording Industry Association of America (RIAA) to argue that the jury's $222,000 damage award is not unconstitutonal.

Thomas was found to have willfully infringed the music company's copyrights on 24 songs she made available on the Kazaa file-sharing network. The jury awarded the RIAA $9,250 per track for a total award of $222,0000.

The US Copyright Act allows statutory damages ranging from $750 to $150,0000. Thomas has argued that the damages assessed violate the Due Process clause of the US Constitution, which says that legal penalties imposed may not be "so severe and oppressive as to be wholly disproportioned to the offense or obviously unreasonable."

Thomas' motion claims that even the minimum $750 statutory damage amount is excessive because the record labels make only about 70 cents per track sold.

It asks that damages assessed be limited to actual damages proven, or at most, ten times actual damages. It terms any award more than the record label's actual damages "purely punitive."

In another case, a judge allowed the same argument, writing "a court may... prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered."

The RIAA argued that statutory damages need not relate to actual damages. At trial, it didn't quantify its actual damages.

It also said that Thomas has no grounds to oppose the jury's damage award because she failed to object to the jury instructions at the time.

The DOJ supported the RIAA's position and made a couple of additional points.

It said that statutory damages can be awarded in place of actual damages, writing: "Statutory damages compensate those wronged in areas in which actual damages are hard to quantify...."

More importantly, the DOJ argued that it's impossible to determine actual damages, since it's not known how many other Kazaa users accessed Thomas' file share and committed additional copyright infringement.

The DOJ's entry in the RIAA's corner isn't too surprising, because it has a duty to argue in support of US federal laws like the Copyright Act unless and until they are ruled unconstitutional.

However, by making the argument that it's impossible to calculate the RIAA's actual damages because the extent of actual file-sharing is unknown, the DOJ lends its support to the RIAA's contention that merely making files available on a peer-to-peer network equates to actual distribution, without any real proof.

This issue came up during Thomas' trial. The jury instructions initially read that the act of making files available did not by itself constitute distribution. But the RIAA objected to that particular jury instruction, and it prevailed. The final jury instructions stated that the jury had only to find that Thomas had made the files available in order for it to conclude that she committed copyright infringement.

If Thomas loses this motion, she can argue against that ruling in an appeal. µ

L'INQ
Ars Technica