In Chapter 9 of “The Laws of Disruption,” I write about the ridiculous increases in statutory fines for copyright violations that the entertainment world has forced into law over the last few decades, even as the costs of production, marketing and distribution of content decrease with the advent of electronic channels. In the one file-sharing lawsuit against an individual user that actually went to trial, the RIAA won a judgment of $220,000 against Jame Thomas-Rasset, who was found to have shared 24 songs on a file-sharing network. (The other defendants, including teenagers and grandparents, all settled out of court.)
The jury instructions were fatally flawed, however, and the judge granted Thomas-Rasset a new trial. This time, as Declan McCullagh of CNET reported a few weeks ago, the retrial resulted in a new calculation of “damages.” The second time around, the jury awarded the RIAA almost $2 million for the same 24 songs! (The rather eclectic playlist, which Thomas-Rasset argued was not hers, is here.)
Thomas-Rasset moved again for a new trial, arguing that the fine is unconstitutionally high. Not so, said the Obama Justice Department, which filed a brief in support of the RIAA. Since the subsequent reposting of online files and the effect such infringement has on the legal market for copyrighted works is, in the DoJ’s word, “unknowable,” Congress sensibly developed default or “statutory” damages that the victims of consumers like Thomas-Rasset can use to calculate their losses and deter future miscreants. $2 million for 24 songs, on this view, is rational. The Bush DoJ made the same argument.
The Obama administration promised change, but the Justice Department, at least when it comes to copyright infringement, clearly didn’t get the message. The media industries are still pursuing their suicidal jihad against customers, aided and abetted by the elected representatives they’ve bought and paid for.
Individual lawsuits have been a PR nightmare for the recording and film industries, which have stopped bringing them. And collecting anything close to $2 million from the defendant, as everyone involved knows, isn’t going to happen. But for those who expected a new attitude toward copyright reform, here’s at least one data point to suggest otherwise.