“Illegal, but common” were the words in the judge’s decision to grant a new trial in Capitol Records v. Thomas that made me end my run as a blogger. As a copyright attorney who works with a range of clients to protect their assets, reading a federal judge’s opinion that downloading music might be illegal but so common that damages the jury set were unreasonable. The amount the jury had awarded was $220,000.
After a four day trial that drew lawyers and journalists from around the country, the jury returned a verdict that apparently surprised everyone in the courtroom. Jammie Thomas, the jury found, had willfully violated the copyright in 24 songs by uploading them onto Kazaa, a p2p file sharing network. That the jury found her guilty of willful infringement may not have been that surprisng, no the greatest surprise was the amount of damages the jury awarded: $ 1.92 million.
$1.92 million dollars? That is a lot of smackeroos. Considering the outrage expressed over the initial amount, there is no surprise that the interwebs are going crazy over the verdict.
Of course this is not a win for the RIAA. Just as I wrote for news.com in 2007, wins do not help the RIAA. People like to paint the organization and its members as greedy, horrible corporate monsters.
But the RIAA did not set the damages. 12 jurors, including 2 college students, considered the evidence and found Thomas guilty. Based on the statutory damages for willful infringement, the jury set damages at $80,000 per song. The range from which they could choose was $750 to $150,000. Personally, I think it is telling that this jury set the amount at just over 50% of the rate.
Why? Because evidence suggests that Ms. Thomas may not have been 100% truthful during the trial. Again she had an excuse as to how the music from her computer ended up on Kazaa, this time it was her kids!
While the damages are shockingly high, the jury set them based on the law presented to them. The RIAA had nothing to do with it, other than for suing the defendant to enforce their members’ rights. But that will not matter on the interwebs…
