‘Insane’ file-sharing verdict could challenge law’s constitutionality

Muriel Kane
Raw Story
Jun. 28, 2009

In the first file-sharing case to go to trial in the United States, a Minnesota jury has ruled that a 32 year old woman must pay the music industry $1.92 million dollars for illegally making 24 songs available for sharing from her hard drive.

The woman, Jammie Thomas-Rasset, had originally been accused of uploading 1700 songs to Kazaa. An earlier verdict of $220,000 was overturned because of a faulty jury instruction, with the judge describing even that lower amount as “unprecedented and oppressive.”

After today’s ruling, Thomas-Rasset called the damages “ridiculous” and said she had no means of paying them. A representative of the Recording Industry Association of America said the music companies were willing to settle for a much smaller amount, which based on past cases might still be in the tens of thousands of dollars.

A blog entry at technology news site ZDNet, however, describes the verdict as “insane” and suggests that it “could prove [the] RIAA’s downfall.”

Lawyer and tech writer Richard Koman points out several serious problems with the amount of the verdict. For example, the law used in the case normally prescribes damages of $750 to $30,000 per infringement. The judgement against Thomas-Rasset comes out to $80,000 per song — an amount which is considered appropriate only when there has been “willful” infringement, which would seem to mean a crime committed for profit or out of a desire to do deliberate harm.

Koman says he also spoke with Ray Beckerman of the blog Recording Industry v. the People. Beckerman has been following the case closely and has no doubt that it could serve as a test cast to challenge the constitutionality of the law. He told Koman, “Courts have repeatedly held that statutory damages can be more than actual damages but only by two or three times.”

An analysis by the Electronic Freedom Foundation goes more deeply into the constitutional issues. It notes that “recent Supreme Court rulings suggest that a jury may not award statutory damages for the express or implicit purpose of deterring other infringers who are not parties in the case before the court. … If the record industry lawyers urged the jury to ’send a message’ to the millions of other American file-sharers out there, they may have crossed the constitutional line.”

At his own blog, Beckerman points out that in this case, the statutory damages are 228,571 times as much as the actual damages of $0.35 per song. “it is clear from reports I am seeing that this verdict is making the US an international laughingstock,” he states, “providing great fuel to those inclined to laugh in their beer at the US justice system. When will the courts do something to stop this madness?”