Info, Law, IP & Ethics

The well-publicized court trials of Jammie Thomas-Rasset and Joel Tenenbaum have brought the issue of copyright infringers penalization into the public eye.

For some background on the two cases:

Jammie Thomas-Rasset was charged with illegally sharing 24 copyrighted songs.  Her original ruling was to pay $222,000 in statutory damages.  After fighting this ruling, Thomas-Rasset went to trial for a second time, in which her ruling was considerably more favorable.  The judge significantly reduced the charge by 97% to $54,000 per song total (Edit by Rowe), to which the RIAA reduced the charge even further, by offering Thomas-Rasset a settlement of only $25,000.  But Thomas-Rasset refuses to pay any money.  She has declined RIAA’s offer and will be facing her third trial in hopes of eradicating her charges entirely.

Joel Tenenbaum, a physics graduate student at Boston University, is the second person brought to trial by jury for copyright infringement of music files.  Tenenbaum faced the RIAA for illegally obtaining and sharing 31 copyright songs. The fine for Tenenbaum however, is much higher than Thomas-Rasset.  The court ordered Tenenbaum to pay $675,000 in fines for his illegal downloading.  Like Thomas-Rasset, Tenenbaum is also fighting this fine.

Despite the fact that both cases have had dramatic antics take place – Thomas-Rasset lying about replacing her hard drive, blaming her children for the infringements, Tenenbaum’s lawyer asking the jury if they liked his black turtleneck sweater – one can see to the core of the issue.

Both parties are being asked to pay large settlements (Tenenbaum significantly more than Thomas-Rasset) for damages that, most likely, in my opinion, are not aligned with real numbers.  That is – the damages that Tenenbaum and Thomas-Rasset inflicted on the recording industry was not that of $700,000 (Tenenbaum and Thomas-Rasset’s charges combined).

Are these two people being asked to pay for the potential damages that the file-sharing community at large has accrued?   Is that fair?

My answer is, simply put, no.  Two people should not be used to set an example to the population at large about something so widely spread.

Here’s what Judge Michael Davis, Chief Justice of the Minnesota District Court had to say when granting Thomas-Rasset a second trial:

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…

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‐ to‐peer 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 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…

Judge Michael Davis hits the nail on the head on how outrageous the punishment is for the crime.  Thomas-Rasset isn’t a business.  She’s a working mother of four living in Minnesota.  How can ordinary people be expected to pay such large sums of money?

A blog on p2p.net comments on how ordinary people are being sued by large corporations for infringement and questioning their criminal status:

But every single one of the 40,000 people who have received RIAA subpoenas has sat back in shock, wondering how they can possibly take on a hugely wealthy Vivendi Universal, EMI, Warner Music and Sony Music with their immense legal, financial and political resources?

The answer is: they can’t, and the people who run, and who work for, the RIAA such as it’s bosses, Mitch Bainwol and Cary Sherman, and Cara Duckworth and Jonathan Lamy, know it as they accuse their victims of stealing, when nothing’s been stolen, of being criminals, when no crime has been committed, of having caused misery to record industry workers, when the people behind the ‘trade’ association are wholly to blame.

Jammie is just one of the completely innocent, and very ordinary, men, women and children across America whose lives have been made almost unbearable by threats of law suits and fines they’d never be able to pay.

The blog touches on another important aspect.  How can something so widespread have such a harsh punishment?

To date, BitTorrent, a file-sharing program, uses 35% of all internet bandwidth.  That doesn’t mean that 35% of all internet usage is illegal.  However — a great deal is, and file sharing doesn’t seem to be decreasing any time soon.

All things considered, proving the damage of file sharing, and questioning the impact of illegal file sharing, still continues today.  Even with RIAA taking on alternative methods to combat file sharing, the overlying issue is: what damage is really being done?