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Did Jammie Thomas case backfire on file sharers?

Jammie Thomas-Rasset was supposed to become the Joan of Arc of file sharing. Instead, copyright owners appear to be the ones benefiting most from her legal challenge.

Jammie Thomas-Rasset was supposed to lead the major labels into a trap.

Proponents of less restrictive copyright laws predicted that the decision by the four biggest record labels to drag a single mother of modest means into court for allegedly sharing music over the Web would lead them into a legal, political, and public relations killing field.

"Ordinary Americans could have chosen figures at the lowest range of the statutory guidelines but went much higher."
--RIAA attorney

Since 2006, when Thomas-Rasset first refused to settle the copyright complaint brought against her by the Recording Industry Association of America (RIAA), the labels' trade group, her supporters said her case would illustrate how impossible it was to definitively prove who was sitting at a computer when music files were illegally distributed over file-sharing networks. If she somehow lost her case, then it would cast a bright light on the unfairness of assessing huge damage awards on people who download music for their own use.

Many predicted the court fight would prove the futility of filing these kinds of lawsuits and discourage others from filing them.

But on Wednesday, Thomas-Rasset saw the third jury of her peers vote against her. This time, since the Minnesota native had already been found liable of copyright infringement, the jury was tasked only with determining what she should pay in damages. They came down hard, assessing an amount of $62,500 for each of the 24 songs she was accused of illegally sharing. The total she owes is now $1.5 million.

This fight is a long way from being over. Thomas-Rasset's attorneys have vowed to continue to fight. They will likely argue that these types of damage awards for copyright infringement are unconstitutional. The case is likely headed to the 8th Circuit Court of Appeals or maybe even the Supreme Court. But all of that is still a ways off. In the meantime, her losses are arming copyright owners with valuable credibility and precedents. After four years of legal maneuvering and three separate trials, the evidence suggests that Thomas-Rasset's case was the wrong one to challenge the nation's copyright laws.

The RIAA can now point to three separate juries that believed a fair damages amount for Thomas-Rasset to pay was respectively: $222,000, $1.9 million, and $1.5 million. The range for statutory damages for each instance of copyright infringement is between $750 and $150,000. Instead of choosing the minimum amounts, the juries in the Thomas-Rasset trials chose respectively $9,250, $80,000, and $62,500.

Jammie Thomas-Rasset
Jammie Thomas-Rasset Jammie Thomas-Rasset

In the first trial, the judge tossed the award because he said he erred in instructing the jury. In the second trial, the judge reduced the $1.9 million amount to $54,000 and the RIAA appealed, which is how we ended up with this third trial. Should the judge consider reducing the $1.5 million amount, the RIAA can now point to three jury verdicts and argue that he is the one out of step.

Jennifer Pariser, the RIAA's senior vice president of legal affairs and litigation, said in an interview with CNET on Thursday that plenty of opponents have argued that Congress set the range for statutory damages on copyright infringement before the digital age and did so to discourage the commercial pirating of music and films. The amounts were not meant for individual users who just want to hear some tunes.

Pariser rejects the notion that the range doesn't apply in the file-sharing era or that lawmakers would necessarily reduce them now. She said the decisions by the juries in the Thomas-Rasset trials support that argument. "Ordinary Americans could have chosen figures at the lowest range of the statutory guidelines [for a total amount of $18,000] but went much higher."

When it came to proving that it was Thomas-Rasset who shared the songs, the RIAA won the first trial by showing that the 24 songs in question were shared on the Kazaa file-sharing network from Thomas-Rasset's Internet protocol address and using her Kazaa username. The jury made up its mind to rule against her in the first five minutes of deliberation, one member

Juries don't seem to like or believe Thomas-Rasset, another one of the liabilities in her case. On the stand, she was at times combative and even suggested that her own children or boyfriend may have downloaded the music.

Jennifer Pariser, the RIAA's senior vice president of legal affairs. RIAA

As for the music industry's image, there's no question it took a beating with music fans as a result of the trials. The PR hits, however, have been mitigated by the benefits of winning three high-profile jury decisions, complete with wince-inducing damage awards. The shock-and-awe factor of those awards is sure to provide copyright owners with a powerful cautionary tale.

The music industry may have given up on suing people for illegal file sharing two years ago, but the Thomas-Rasset case has thus far failed to deter other copyright owners from taking up where the RIAA left off. A growing number of independent film studios and adult-film makers this year began suing suspected illegal file sharers at a far faster rate than the RIAA ever did. This week, Kenneth Ford, one of the lawyers representing several adult-film makers, filed a lawsuit against a total of nearly 10,000 alleged illegal file sharers. In just the past two weeks, Ford has filed against nearly 17,000 people.

Lawyers representing those filmmakers can now carry the damages amount against Thomas-Rassets into the negotiations with suspected film pirates. The copyright owners can use her to illustrate that refusing to settle is risky. The lawyers could lay it out like this: The decision should rest on simple arithmetic. Thomas-Rasset could have settled with the RIAA for about $3,000. Instead, she fought--and the least amount she's been on the hook for since is $54,000.

For copyright owners, that's a big stick to wield. The vast majority of people accused by the RIAA during its five-year litigation campaign decided to settle for a few thousand dollars. The same goes for the copyright cases brought by indie film studios, according to the lawyers representing the defendants.

Tyler Ochoa, a law professor at Santa Clara University, said that the big problem isn't Thomas-Rasset's case.

"The law is on [the copyright owners'] side right now," Ochoa said. "The notion that there is a personal use exception to copyright has pretty much disappeared in recent years."

The good news for the file-sharing crowd is that there are other potential challenges to copyright law rising out of the suits filed by indie film studios. Some of the attorneys representing those accused by the filmmakers say there's a growing number of people who say they are innocent and are determined not to settle. Robert Talbot, a law professor at the University of San Francisco, represents 23 defendants.

"I have a couple of cases that would be good to take all the way."