Don't stop believing in the RIAA's capacity for evil

Another file-swapping lawsuit, another outrageous verdict. Something's deeply wrong with the laws controlling copyrights

Stop me if you've heard this one, but: Illegally downloading music files is probably not a good idea. And if you don't believe me, there's a 32-year-old Minnesota mom who might convince you otherwise.

Last week, a second jury convicted Jammie Thomas-Rasset of using her Kazaa account to illegally download 24 songs. The actual number of songs she allegedly snagged is roughly around 1,700, but she got sued for just these 24 little ditties.

[ Brush up on the Jammie Thomas/RIAA case -- through the eyes of Cringely -- in the earlier post "Lawyers, guns, and the RIAA" | Stay up to date on Robert X. Cringely's musings and observations with InfoWorld's Notes from the Underground newsletter. ]

The first jury found her guilty and assessed a fine of $222,000, or roughly $9K per tune. Jury No. 2 decided jury No. 1 simply didn't appreciate Vanessa Williams or Journey enough, and upped the ante to nearly $2 million, making those songs worth $80,000 a pop.

I admit, "Don't Stop Believing" does sound better if you haven't heard it for a while, but is it $71,000 better? That's kind of hard to swallow. Reactions from the blogosphere ranged from "insane" to "friggin' insane" to words I am not allowed to repeat here because there might be children present.

First, let us stipulate for the record that the defendant is not the sharpest knife in the drawer. She's more like a spoon, or maybe a plastic spork.

Judging by what I've read of her defense (Ars Technica has served up a lovely summary of the case), Thomas-Rasset's attorneys didn't deny music files were downloaded to her computer. They simply tried to claim the ex-boyfriend did it, or maybe the ex-husband, or maybe gremlins snuck into her house in the middle of the night and logged on to Kazaa using the same online handle she's used for 15 years.

The human-to-computer connection is almost impossible to prove without eyewitnesses or videotape. Trouble is, the RIAA didn't have to prove Thomas-Rasset actually swapped files. They just had to convince a jury of that. The fact that Jammie appears to have tried to fool the RIAA by submitting the wrong hard drive to them during the first trial's original discovery period probably didn't help her case. Just a hunch.

The file-swappin' Minnesota mom says she's broke, so I guess the record companies will have to send their goons over to her house to collect her furniture and sell it on eBay. Maybe she can work off the debt by agreeing to wash RIAA chief Mitch Bainwol's cars.

However, PC World's JR Raphael points out the excessive size of the award could play to Thomas-Rasset's favor:

The Supreme Court has previously indicated that "grossly excessive" punitive damage awards are a violation of the U.S. Constitution. An award can be considered "grossly excessive" if there's too big of a gap between the actual harm done and the amount of money being named. Courts can also consider the "degree of reprehensibility" of the defendant's actions, along with how the penalty compares to similar ones issued in the past.

So it's remotely possible some good may come from this case by revisiting the insane financial penalties tacked onto copyright infringement (up to $150,000 per violation). It won't let Jammie Thomas-Rasset off the hook (at least, not entirely), but it might help other folks who get squashed by bloodless corporate cartels.

If the record companies were hoping this trial would make them look less like Snidely Whiplash tying poor Nell Fenwick to the railroad tracks, they are mistaken. But it seems they don't really care what people think of them.

Over the last five years (and some 35,000 lawsuits), the RIAA has been using the same tactics employed by terrorists: Isolate and attack vulnerable individuals to intimidate the general populace. But over the past year, even they have had to accept that this strategy isn't working. Now they're trying to get ISPs to play bad cop. Same evildoers, different tactics.

And now for the usual disclaimer: Nobody here is saying artists shouldn't get paid. They should. The question is by whom and how much. What are the odds of any of the artists whose songs got shared seeing a dime of that $1.92 million judgment? Not bloody likely.

The more important case to watch is unfolding in Rhode Island right now, as Joel Tenenbaum and a team of Harvard legal eagles are trying to put the RIAA and its terrorist tactics on trial. The attorneys in that case and Thomas-Rasset's are also teaming up to cook up a class-action suit against the RIAA. (Let's hope Joel's attorneys are driving that bus, not Jammie's.)

Like Vanessa Williams sings, "Save the Best for Last."

What do you think is a fair penalty for illegal file sharing? Post your thoughts below or e-mail me:


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