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Why the RIAA should have won (though the fine was too high)

Record labels should have won case against Minnesota woman who was probably sharing copyrighted music on Kazaa. The problem is the $220,000 penalty.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
3 min read

The Recording Industry Association of America probably should have won its lawsuit against a Minnesota woman accused of sharing songs through the Kazaa file-sharing network.

There was enough evidence linking Jammie Thomas' computer to an IP address that was offering a slew of copyrighted songs to other Kazaa users. A jury in Minnesota, hardly the record labels' home turf, unanimously thought so too.

The problem isn't the verdict. It's the penalty.

After decades of special-interest lobbying by large holders of intellectual property rights, U.S. copyright law has spiraled out of control. It's been transformed from limited protections of authors' rights for 14 years to a juggernaut with criminal enforcement, sky-high penalties, and up to 120 years of legal protection.

Copyright no longer abides by the fundamental principle of law, which is that the damages awarded should be related to any harm committed. No wonder Jammie Thomas got slapped with a $222,000 bill. (And I wouldn't be surprised to see attorney's fees add another $100,000 on top of it.)

"It doesn't strike a regular person that by passing a CD around the neighborhood, they should have their house taken away," says Lew Rockwell, president of the free-market Mises Institute in Auburn, Alabama. "And by electronic means it shouldn't be any different."

Copyright law is, as Berkeley law professor Pam Samuelson points out, way too verbose; it's now swollen to an unbelievable 200 pages long. It's complex, incomprehensible, designed to favor large copyright holders over defendants, and thoroughly out of touch with reality.

This should be no surprise. The technical term for this is "rent-seeking," meaning special-interest coalitions who pressure the government to transfer wealth to them. The general public (reasonably) can't keep track of the minutiae of proposals to expand copyright law, but RIAA lobbyists can devote 100 percent of their time to the job. What happens is that copyright law continues to clamp down on Americans, inexorably, like a ratchet.

Consider what aggressive rent-seeking has achieved for the music and movie industries--and some certain large software companies--in the last decade alone: The Sonny Bono Copyright Term Extension Act. The Digital Millennium Copyright Act. The Family Entertainment and Copyright Act (more P2P penalties). The No Electronic Theft Act (file-swapping criminalized).

So what should Jammie Thomas have been required to pay? She's accused of sharing 24 songs, or two CDs worth. We don't know how many people downloaded those songs, but if 10 people did, that's perhaps $250 in value. If 100 people did, that's $2,500, and so on.

Walter Block, an economics professor at Loyola University, is no fan of copyright law at all. (He'd abolish it.) But his suggested penalties for physical larceny are worth taking into account. "My view is two teeth for a tooth, plus expenses, plus cost of capturing, plus a scaring penalty" that would provide additional deterrence and avoid allowing the wealthy to flout the law, he said on Friday. In other words, let the punishment fit the crime.

Under the judge's interpretation of copyright law, unfortunately, the RIAA wasn't required to prove how many songs were downloaded. Maybe nobody did; maybe thousands of people did. All the RIAA needed to do is prove Thomas made them "available" through Kazaa.

Although we can't make any reasonable estimate, we can nevertheless say it's unlikely that Thomas would be required to pay $222,000 plus attorneys fees if copyright law were reasonable, fair, and just. But it is now none of those, so she is.