Irrational rights

Happy July Fourth! This is the day we celebrate the United States declaring itself free from the tyranny of British rule and that "all men are created equal" and have "unalienable rights."

All good stuff to be sure, but it seems that while we strive to ensure the equality of all men (and women), the citizens of this country are not the only ones with rights. Nope, there are big corporations that are zealously defending their rights and they appear to be treated as more equal under the law.

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The latest example of this was the award early last month of -- I am not kidding -- $1,920,000 against a single mother of four children for downloading 24 songs some two years ago using the Kazaa network. Let me put that in perspective: It works out to $80,000 per track! That better be the best music ever recorded.

Now, it is true that the perp, one Jammie Thomas-Rasset, was indeed as guilty as they come. She didn't download just 24 tracks, she downloaded 1,702 tracks. But the prosecution, the Recording Industry Association of America (RIAA), chose to focus on just 24 of them.

Worse still, Thomas also lied under oath to the court. She blamed the downloading on her ex-boyfriend, then her kids (how warped is that?), and tried to destroy the evidence by getting her hard drive replaced and then lied about that. She was, shall we say, not playing with a full deck. Indeed, she had a losing hand.

But what amazes me is the size of the award. The amount is actually based on statutory damages, which is to say that it is set in the laws under which the case was brought, which if you're interested is TITLE 17-COPYRIGHTS, CHAPTER 5, § 504.

This subsection specifies that the damages should be "not less than $750 … [and] where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000." In other words, Thomas could have theoretically been penalized to the tune (pun intended) of $3,600,000!

But when you can buy a song from iTunes for $0.99, doesn't a value inflation of just over 80,000% seem, shall we say, somewhat excessive?

It has been suggested that the jury was angered when it was established that Thomas was lying her head off and thus decided to go medieval on her. Even so, a fine she could have conceivably paid, $18,000 at the lowest level, would have been far more effective.

Of course there's no chance that the RIAA will collect anything. Heck, Thomas still owes her previous attorney $130,000 (perhaps she could give him a couple of tracks … of course, he'd owe her $30,000).

The conclusion of this case is obvious: Thomas, who earns $36,000 per year (less than one track), will file for bankruptcy and as a consequence the judgment will be wiped out. No one will get a penny.

Over the last six years the RIAA has accused some 35,000 people of piracy with all but a handful settling out of court (whether guilty of not) for around $5,000 each. Ms. Thomas is their first successful prosecution.

The RIAA has committed to ending its "search and settle or sue" program (because it costs too much) and will replace it with a deal they struck with major, but as yet unnamed, ISPs. Under the new program alleged offenders will be warned, then (should they not stop) have their connections slowed and finally cut off.

But will the RIAA's targeting of offenders be any better than it has been historically? I doubt it. It will be interesting to see how someone who is accused and gets their connection terminated will fare against the ISPs acting as the RIAA's lackeys.

We, the people, should be worried.