Obama's DOJ Skewers P2P File-Sharer

Copyleft lawyers take note: Your arguments against heavy fines for illegal music downloads don't stand a chance.

That much became clear today, when the U.S. Department of Justice supported the $1.92 million in damages Jammie Thomas-Rasset must pay for downloading 24 songs on the Internet.

Thomas-Rasset's case was closely watched, as it was the first file-sharing lawsuit that the Recording Industry Association of America brought to trial. A jury found her guilty of willful copyright infringement in June, with Thomas-Rasset failing to secure a better verdict than the first time she was on trial. Her lawyers are now arguing that $80,000 in damages per song is excessive and unconstitutional.

In a memo, spotted by Wired, the government wrote that such high damages are allowed because the actual costs are difficult to quantify, and because such high damages scare people who might otherwise think they won't by punished.

This is an unsurprising stance from a department that has recently hired several former Recording Industry Association of America attorneys. No fewer than five former RIAA lawyers are working in the Justice Department, including Donald Verrilli Jr., who represented the RIAA in Thomas-Rasset's first trial (and MGM and its friends in the 2005 case against Grokster). Thomas-Rasset can still appeal the case, of course, but the DOJ's opinion won't help.

I know the law can work in mysterious ways, but the DOJ's logic is flawed. If it's hard to pin down the RIAA's actual losses from downloading and sharing a song, why does the industry get such a wide berth? The maximum damages allowed by law is $150,000 per song, but clearly that amount needs to be questioned for individuals. As TechDirt's Mike Masnick points out, that law was originally created to protect against commercial damages, rather than personal use.

More importantly, the idea of high damages as a scare tactic is irrelevant if the RIAA truly intends to stop filing lawsuits over file-sharing. The music industry trade group has said it wants to focus instead on working with Internet service providers to warn and punish file sharers, though any ongoing litigation -- from the moment a "John Doe" is named as the defendant -- will move forward. Eventually, though, there will supposedly be a time when individuals won't face millions of dollars in damages for downloading a few songs, so why pursue these cases now?

The sad thing is, I don't see any hope in sight for anyone who's currently caught in the RIAA's Web, thanks to the aggressive stance of Barack Obama's DOJ. As the department wrote in March (.PDF) in regard to the Joel Tenenbaum case, it agrees the RIAA shouldn't have to prove a defendant gained commercially from downloading, and constitutional protection against excessive damages doesn't apply since copyright statutes are civil, not criminal matters involving the government.

That means Tenenbaum, a college student who was ordered to pay $675,000 for downloading 30 songs, is also screwed.

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