'Insane' $1.9 million verdict could prove RIAA's downfall

So Jammie Thomas-Rasset is a thief - a willful copyright infringer - who uploaded 24 songs to the Internet. At least, the jury in her second trial so found in delivering a $1.9 million verdict: $80,000 per song.

Under the law the jury could have imposed statutory damages up to $150,000 per work. So perhaps Thomas got off light with a $2m fine instead of the $3.6 million she coulda got. Not exactly.

The verdict should be set aside because it is not supported by the evidence. The jury was bound by the terms of Title 17, section 504: statutory damages of $750-$30,000 per infringement, or up to $150,000 per infringement if the defendant acted "willfully."

Willful infringer?

"Willful" means so bad that society needs to assign an extra-harsh punishment. $30,000 per violation is pretty harsh. And the jury thinks she deserved worse than that. Two-and-a-half times worse. So what did she do that was so bad?

Viewing the evidence in the light most favorable to the RIAA, she illegally downloaded songs via Kazaa and made them available over the network. That's it. (She also lied about her hard drive being replaced, but that that misbehavior is sanctioned by discovery rules and cannot be part of the calculation of the wrongfulness of her filesharing.)

I'm not convinced she even knew that Kazaa automatically shared her music with the network, but even if she did, that's not what "willful" means. "Willful" means, to my mind, a bad actor, a privateer, a counterfeiter, someone who is in the business of selling someone else's work for profit.

I talked to Ray Beckerman of Recording Industry v. the People who said the "insane" verdict wasn't even based on an inquiry into whether the copyrights were registered before she installed Kazaa. It also seems that some of the songs were from the same album, so those "works" would have to be stricken from the verdict.

Unconstitutional damages

There's no doubt, Ray said, that this case can be the test case to question the constitutionality of the statutory damages in the law. But before we even get there,

There's a very long body of law, that statutory damages have to bear a reasonable relationship to actual damages. Courts have repeatedly held that statutory damages can be more than acual damages but only by two or three time.

Then we get to the Constitution. In BMW v. Gorethe Supreme Court held that "grossly excessive" punitive damages awards violate due process. The court established three factors to analyze this:

• Most importantly, the degree of reprehensibility
• The ratio of punitive to actual damages
• The relationship of the award to criminal sanctions

In that case, a jury found that BMW had sold as new a repainted car and awarded punitive damages of $2 million -- 500 times the actual damages. The Court found that was grossly excessive. EFF's Fred von Lohmann asks:

Does a $1.92 million award for sharing 24 songs cross the line into "grossly excessive"? And do these Due Process limitations apply differently to statutory damages than to punitive damages? These are questions that the court will have to decide if the issue is raised by Ms. Thomas-Rasset's attorneys.

Fiasco for RIAA

The result is actually a disaster for the RIAA, Beckerman said.

The silver lining is that the RIAA's morons -- by carrying it to the logical extreme -- have bolstered the constitutional argument. If they were smart they would have asked for $750 - $3,000 per work. By allowing this to happen, they now have this public relations fiasco. They've been going all over the world to ask governments for help. This will force governments to take a second look. 'What are you kidding, we're gonig to give these maniacs information to go sue our citizens?'

For that, we can all give thanks to the RIAA.