Has the RIAA's Fight Against File Sharing Gone Too Far?

Some legal experts question the constitutionality of a $1.92 million fine given to a woman accused of pirating 24 songs. A Minnesota jury ordered Jammie Thomas-Rasset to pay that yesterday, saying she "willfully" violated music copyrights and should cough up $80,000 per illegally downloaded track.

The verdict brings a new twist to a seemingly endless legal battle brought about by the Recording Industry of America (RIAA). The case originally culminated back in 2007, when a different jury slapped Thomas-Rasset with a $220,000 penalty (only about $9100 per song). Soon after, Thomas-Rasset filed an appeal and received a retrial, which led to this week's even costlier conclusion.

Jammie Thomas and the $80,000 Question

If $80,000 a song sounds unreasonable to you, you aren't alone: The blogosphere, as well as Twitter users, are buzzing with outrage. The shockwaves, by some accounts, started mere seconds after the verdict was announced.

"I think $2 million for downloading 24 songs strikes almost everyone as being a little disproportionate," says Fred von Lohmann, a senior staff attorney with the Electronic Frontier Foundation. "According to people who were in the courtroom, almost everyone inside uttered an audible gasp when that verdict came in."

The size of the fine was guided by U.S. copyright law, which provides for a penalty of anywhere from $750 to $150,000 per violation. It was up to the jury, however, to decide where to land within that spectrum. The problem, von Lohmann says, is that there are no meaningful guidelines on how that decision should be reached.

"The copyright law entitles people to essentially pull a number out of a hat, all the way up to $150,000 per song," he says. "If the copyright law were more reasonable--if, say, you had to make some sort of reasonable guess as to what the actual harm was--then I think juries would come in with more reasonable results."

The RIAA Case and the Constitution

Here's where things start to get dicey: The Supreme Court has previously indicated that "grossly excessive" punitive damage awards are a violation of the U.S. Constitution. An award can be considered "grossly excessive" if there's too big of a gap between the actual harm done and the amount of money being named. Courts can also consider the "degree of reprehensibility" of the defendant's actions, along with how the penalty compares to similar ones issued in the past.

It seems, then, there may be a clash between two ideals: The parameters of the copyright law and the protection provided by the Constitution. What's more, as the Electronic Frontier Foundation points out, recent Supreme Court rulings suggest a jury should determine damages based only on what's justified for the single defendant--not for the broader purpose of "sending a message" to the general public.

There's also the issue that the recording industry recently backed down from its heavily criticized process of suing suspected music sharers--people like Jammie Thomas-Rasset--and said it would instead start working with Internet service providers to find offenders and restrict their access. That means Thomas-Rasset's case is, to a large degree, a fight over the past.

"File sharers today doing exactly what Jammie Thomas had been doing do not stand any chance of being dragged into court," von Lohmann says. "The irony here is that five years and 35,000 lawsuit threats later, we have only one case that goes to trial--and it ends up giving us an outcome that I think everybody thinks is unsatisfactory."

The Next Steps

So what now? Any number of things could happen: Thomas-Rasset could move to settle the case; she could ask the judge to reduce the penalty; or she could file an appeal based on the constitutional concerns. She could also declare bankruptcy to try to avoid having to pay the full cost.

"It's hard to predict what exactly will happen next," von Lohmann says. "But it's certainly far from over."

More on the recording industry's recently revised stance against file sharing:

RIAA's New Piracy Plan Poses a New Set of Problems

ISPs Join RIAA's Fight Against Piracy: Is Your ISP One of Them?

RIAA Changes its Tune, But Lawsuits Continue

Connect with JR Raphael on Twitter (@jr_raphael) or via his Web site, jrstart.com.

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