Can 24 songs be worth $222,000?

Posted by Mark Raby

Opinion – By now you have probably heard it: The RIAA scored a big win in the first tried music file-sharing case: The music industry was awarded a stunning $222,000 or $9250 for each song covered by the suit. In what will forever be etched as a landmark case in intellectual property rights, we are scratching our heads over this one and there seems to be a sour taste left in the mouth of justice.

This week marked the beginning and the end of Sony BMG, Arista Records LLC, Interscope Records, UMG Recordings, Capitol Records and Warner Bros. Records v. Jammie Thomas, a 30-year-old single mother from a small country city in Minnesota.

Thomas was accused of sharing over 1700 songs on a Kazaa account in 2005, though the lawsuit only sought damages for 24 tracks.  The plaintiffs' main evidence was a set of IP records that traced the Kazaa account to Thomas's computer. Thomas claimed she never used Kazaa.  She further says she got rid of her hard drive after the RIAA started to come after her for copyright infringement charges.

If this had been a criminal case, there is likely no way she would have been convicted.  There is a reason that music downloaders have never been tried as criminals, even though this kind of alleged copyright infringement is a felony and punishable by prison time. Reasonable doubt mucks up much of the RIAA's evidence.  

In civil cases, though, the plaintiff or plaintiffs only need to show proof "by a preponderance of the evidence."  In other words, in this case the RIAA just needed to show a solid link between the defendant and the evidence in order to show malice intent.

A very vocal and perhaps justifiable comment with regard to Thomas' actions is that she should have settled, and paid only a meager portion of the $222,000 to which she was ordered to pay yesterday.

If Thomas is actually guilty of these allegations and was trying to cover her tracks too late, then yes, her wisest move of course would have been to settle for a couple thousand dollars. However, if she is innocent, this entire story is a colossal symbol of injustice. Either way, though, a $222,000 sentence is our opinion ridiculous, no matter how you look at it.

We only can make assumptions here, but it surely feels as if the jury members may have been pressured by their duty to set a precedent.  There is no denying that copyright infringement is illegal and is becoming a serious problem for everyone who is making any kind of content accessible on the Internet. And there is no denying many file swappers are engaging in an illegal activity and are becoming criminals as a result.  The question, though, is whether this specific case, with its specific facts, warranted such a large award.

In their directions from the judge, the jury was told, "The law demands of you a just verdict, unaffected by anything except evidence." So what is just? Is it just to give the music industry the $150,000 in damages per song it is asking for, or nearly $3.6 million for those 24 songs? Or is it just to reward $18,000 or $750 for every song, as it generally has been considered reasonable by some voices?

A tough choice. But anyone involved in a trial knows that law often isn’t just and often it can’t be. It seeks to provide the best compromise between two arguing parties, if the case isn’t exactly clear. Let’s just assume that Thomas had those files available for illegal trading and there was a strong indication that she had more before that on that other hard drive: What would that compromise be? Is $222,000 a good compromise between the $3.6 million and the $18,000?

Thomas's lawyer pointed out in his closing arguments that no one proved that Thomas herself, as a human being, was the one who infringed on the songs' copyrights. All the plaintiffs could do was show the username was linked to a computer she owned, via an IP address and a Kazaa username.  Yet the jury finds it just to penalize her $222,000.  Is it just us or does this really sound crazy?

Also let’s look at who sued whom. We see a powerful industry that is rightfully going after a single woman that has become the posterchild of what can happen to you if you share two dozen music files. We understand that there need to damages and punitive damages for what she did. But let’s be realistic: Did she have a significant impact on the revenue of the music industry? Would every single one of those people who may have downloaded one of her files bought the music track otherwise? Of course not. So, if she had no proven impact on the music industry, why is it necessary for the industry to take her livelihood over 24 songs to prove its point?   

We understand that the music industry wants to make a point here: Using peer-to-peer networks to distribute copyrighted material is illegal. And it will cost you big time, when you are caught engaging in illegal file sharing. However, that point could have been made at a much less costly rate.  The mere observation that it is this easy to award such a huge amount of money out of the pockets of a single mother for what is essentially a low-damage blue-collar crime on an individual basis shows an intrinsic flaw in the U.S. legal system.

The fact that the jury found it fair and legal to compensate the RIAA means they found the evidence against Thomas to be adequate. That decision can and should be respected.  However, the penalty amount they came up with is outrageous. Being fair in such a verdict means that monetary awards should be set to have an appropriate effect and punishment on the accused. If you are making millions a year, the $222,000 is a drop in the bucket. But for most of us or Thomas (assuming she isn’t wealthy anyway and hasn’t won the lottery recently), this ruling could mean a partial garnishment of her wages probably for the rest of her life.  It will ruin her credit rating, and it won't be difficult for her to slip into depression.

What a sad day for the U.S. justice system.

What is your take? Let us know what you think by leaving a comment below.