Argues that the RIAA “cannot trace and, indeed, made no attempt to trace, the particular injury” she is alleged to have caused by illegally sharing 24 copyrighted songs, and that since the “Constitution requires some proportionality between actual damages and statutory damages imposed to punish and deter” it should be reduced to a “take-nothing verdict.”
Last month Jammie Thomas, the first person to ever go to trial for illegal file-sharing in the US, was handed down her third verdict in the long running dispute with the RIAA over 24 songs she’s accused of illegally sharing via KaZaA, and now she’s filed a motion to have that judgment reduced from $1.5 million to zero because the RIAA has failed to prove she caused the music industry any actual damages.
“This award violates the Due Process Clause because it bears no reasonable relationship to the actual damages that the defendant caused,” reads the motion. “While the plaintiffs offered evidence of the harm caused by file sharing in general, they were unable to present evidence of any harm caused by this defendant in particular. Because the plaintiffs failed to prove that this particular defendant did them any identifiable harm, even an award of the minimum statutory damages permitted by the Copyright Act would be unconstitutional.”
Back in October of 2007 a jury first found Thomas guilty of copyright infringement and ordered her to pay $9,250 for each of the 24 copyrighted songs for a total of some $222,000 in total penalties.
Almost two years later the retrial was finally held, and the verdict was even worse than the first – $1.92 million, or $80,000 p/song.
The third, and likely not the last verdict, was decreased slightly to a no less staggering $1.5 million, or $62,500 for each of the 24 songs.
Thomas’ attorneys also challenge the premise that the RIAA, by its own admission, needs large judgments like this to serve as “educational tools” to warn others about the dangers of illegal file-sharing, and that it’s unfair to hold a defendant responsible for the actions of millions of other file-sharers.
The statutory damages assessed in this case bear no relation to the actual injury that this defendant caused. The plaintiffs complain that this is because the injury they suffered due to distribution of free music on KaZaA cannot be traced to any particular defendant. That may be true, but it does not follow that one defendant can be punished for the harm that KaZaA itself — that file-sharing technology itself — caused. The testimony was clear that the plaintiffs cannot trace and, indeed, made no attempt to trace, the particular injury that this defendant caused. If this Court agrees that the Constitution requires some proportionality between actual damages and statutory damages imposed to punish and deter, then the complete dearth of evidence of actual damages that the plaintiffs presented in this case requires a take-nothing verdict.
The reasoning is along the same lines as that postulated by Harvard law professor Charles Nesson, the noted attorney representing convicted file-sharer Joel Tenenbaum. In that case it’s his contention that if an individual file-sharer is not proven to have caused actual losses that they can’t be held liable for damages.
“Moreover, the evidence at trial showed that millions of others were also using KaZaA,” it continues. “If the defendants collected the award in this case from even just 1,000 other users, their total recovery would be $1,500,000,000.”
Though the RIAA would love the extra $1.5 billion I don’t think even it is willing to argue that’s a fair remedy. If it’s not the RIAA’s intent to hold all file-sharers accountable with a large verdict such as this then it’s admitting by default that it’s only purpose is to use the verdict as lesson to others, thereby holding Thomas accountable for the actions of the millions of other KaZaA users at large.