Late last week, the poster child for P2P piracy, Jammie Thomas (who now goes by Jammie Thomas-Rasset) was found liable for copyright infringement … again.
The first time, which occurred in a U.S. District Court in Minnesota back in 2007, a jury found her liable to a tune of $220,000. She and her attorneys thought this was an injustice of the highest magnitude so they appealed.
Their wish was granted and they got a new jury (in the same court) to consider whether Thomas would be liable and if so, for how much. This new jury thought the first jury got it wrong. They thought $220,000 was much too small an amount for Ms. Thomas to pay for her illicit actions and they came back with a verdict for $1.92 million. Yes, that’s right, almost $2 million for infringing 24 songs. I bet that $220,000 verdict is looking pretty good to Ms. Thomas and her attorneys right about now.
So what does all this mean? Well, first off to fully understand what this means you need to know a little something about the copyright law. Under the copyright law, plaintiffs may be awarded statutory damages ranging from $750 to $150,000 for each work infringed. Ms. Thomas infringed 24 works so the damages could have been as low as $18,000 or as high as $3.6 million. In reaching a verdict of $220,000, the first jury decided on an award of just over $9,000 per work. The second jury’s award was $80,000 per work infringed – which is just about the mid-point in the possible range of statutory damages.
The recording industry plaintiffs did not ask for this amount. This is the amount that the jury thought was just. Both juries could have awarded less. The copyright law provided the juries with tremendous flexibility in awarding a lower amount, but they did not choose to take it advantage of it.
Secondly, you need to know that Ms. Thomas does not appear to be God’s gift to defendants. She was caught “bending” the truth more than a few times during the trial. For example, during the trial it was proven that the hard drive that she submitted into evidence was not the actual hard drive that was in her computer when she was caught. Being caught in the ole evidentiary switcheroo can’t possibly have helped her case, and likely pissed off the jury. As if that was not enough, Thomas’s statements under oath in both trials were inconsistent with regards to whether the infringing music files were made available by her ex-boyfriend or her children or her.
Juries can put up with a lot, but in my experience they will not put up with being lied to. They also aren’t sympathetic to the parent who throws their children or significant other “under the bus.” This certainly seemed to be the case here. Both juries must have found Ms. Thomas’ actions reprehensible. How else to explain such a high damage award?
The jury was clearly sending a message here. They were going to make Ms. Thomas pay for her sins of piracy and dishonesty before the court. It’s also possible that the jury wasn’t fond of her appealing the case to get the amount she’d owed lowered. They also may have set such a high damage award as a way to deter her – and possibly others — from engaging in future acts of music piracy. No matter the case, the jury that awarded $80,000 for each song infringed clearly had reason for doing so, otherwise they would have awarded much less.
And don’t feel sorry for Ms. Thomas. She could have paid much less had she settled with the plaintiff recording studios when she had the chance. She knew that by going to court there was a risk that she might have to pay a lot more then the recording industry was asking her to settle for. She decided to role the dice and pursue the case. She took a chance and she lost.
Copyright owners – and in particular the music industry – have been criticized for being too heavy handed and forcing defendants to sign unfair settlement agreements. Can that really be true when the amounts being asked by these copyright owners to settle pale in comparison to the damage awards being handed down by a jury of their peers?
Some people don’t get it, though. Some people think this verdict is a signal that the copyright law needs to be changed. That makes little sense to me. So what if the law was changed, the jury still would have found her liable – two juries now have.
What she did was wrong. She copied a copyrighted work without permission of the law or the copyright owner. Protection against unauthorized copying is the hallmark of copyright law. It has been since the advent of the very first copyright laws. The only way to defend her illicit acts is to support a complete annihilation of copyright law in the United States and throughout the rest of the world. Frankly that’s a topic too big to entertain here and gives way too much credence to Ms. Thomas, who wasn’t try to push the boundaries of copyright law or fair use, but was just simply stealing music.
If it’s only the amount that people are so up in arms about, then ask yourself this - why didn’t the jury come back with a smaller damage award? Even if the law were changed to allow for a lower range of statutory damages, it’s pretty clear that the jury would have still come back with a pretty hefty sum. After all, if the jury thought the range of statutory damages allowed under the law was so disproportionate to the “crime” then they could have awarded the minimum amount of law. They did not do that. Those who think the damage award here is too high may blame the jury or the massive amounts of music piracy taking place that the jury tried to account for, but it’s hard to fault the copyright law here.
The jury was sending a message to Ms. Thomas of the wrongness of Ms. Thomas’ acts. I wonder how many more million dollar (or even thousand dollar) verdicts need to be handed down before all the other music, movie, and software pirates finally get the message.