Thoughts from the Mark Kerzner
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In a surprise decision, the jury imposed damages against Thomas-Rasset, who was originally accused of sharing more than 1,700 songs, at a whopping $80,000 for each of the 24 songs she was ultimately found guilty of illegally sharing. One can find an account on CNET news here. There is also a lively tail of comments, discussing whether this is right or wrong and whether Jammie deserved it.
I am not going to talk about the legal merits of the case, but rather venture my understanding of the situation and its possible future consequences.
I don’t think that Jammie’s defense team expected a win. The retrial went through the same arguments as before. If anything, Jammie performed worse than at the first trial, was caught in multiple contradictions, and the defense team did not succeed in their arguments, such as “fair use” theory.
Yet I would say that the defense team may still have walked away a winner. The award sum of 1.92 million is just as uncollectable from Thomas-Rasset as the first verdict of $222,000. And, as comments discuss, it is not even a deterrent, since new potential awards will just go to the end of the queue. Rather, the disproportion and grotesque of the situation became even more obvious than it was before. If the RIAA lawyers realized what public face they are presenting, they should have lost the case.
It would make sense for them to loose, and would create an even better deterrent: for who wants to go through what Thomas-Rasset went through, and a regular letter from RIAA demanding a settlement of around $4,500 is bad enough. Then the public opinion might even conceivably move their way. Had they been even smarter to give her amnesty, they would have won for sure.
However, this requires a free and unorthodox thinking, and in a large bureaucratic hierarchy it is rarely found. The future logic of events will play out without brilliant moves that could potentially slow down or even temporarily reverse the progress of technology.
Enough has been said about the need for the music industry to find a business model which would not put them at odds with their customers. Technology empowerment should not be denied or fought – but understood and harnessed. If you can’t beat them (but hopefully can understand them) – then join them.
Could it be that the defense team who no doubt had Professor Charlie Nesson as a consultant has actually planned it as a strategic move for the next battle?
Ars reports here: (http://arstechnica.com/tech-policy/news/2009/06/whats-next-for-jammie-thomas-rasset.ars) that the enormous sum is already gaining steam against the RIAA. From their report under “Change the Law” even some big copyright proponents are speaking out against the large sum suggesting that the law must be changed. This could turn into the same “win” that was The Pirate Bay trial. Yes the RIAA won, but at what cost? The Pirate Bay is still up and running, The Pirate Party won a seat at the EU and now in Germany, and the case is highly disputed and likely to head to appeals. I feel a similar wind blowing in the Rasset case.
I feel that the damages are way out of line with reality. This women was not a commercial infringer. She profited 0 from sharing those files. She may be guilty, but an award of even 750 per song is way out of line given that no proof of actual sharing, outside of RIAA, took place and she profited 0. Settle for 10x the price of a song and be done with it.
Danke f