Thursday, October 04, 2007

Excessive Damages: Less than 2 CDs = More than One House

Ars Technica and countless others are reporting that a jury in Minnesota has just awarded damages of $222,000 against a young native American single mother of two kids for downloading and "making available" 24 songs.

Duluth, Minnesota — After just four hours of deliberation and two days of testimony, a jury found that Jammie Thomas was liable for infringing the record labels' copyrights on all 24 the 24 recordings at issue in the case of Capitol Records v. Jammie Thomas. The jury awarded $9,250 in statutory damages per song, after finding that the infringement was "willful," out of a possible total of $150,000 per song. The grand total? $222,000 in damages.

That's $9,250 per song. That's more than 12 times the amount of the already absurd $750 "minimum" statutory damages award under US law. (In Canada, it's $500).

That's 9,343 times the so-called "normal" retail price of $0.99 each for the 24 songs, only a portion of which would be actual damages to the record companies.

That's cost of lots of peoples' houses.

RIAA arithmetic is this:

Less than 2 CDs worth of music = As much or more than many people's houses.

This a dark, draconian and disgusting day for the copyright system.

The statutory damages provisions of the US Copyright Act were put in place long before multiple downloads from a celestial jukebox were ever envisaged and were never intended to be used against ordinary people for ordinary activity.

Let us hope that Congress does something about this and that Canada ensures that such an outrage can never happen here.

When civil copyright infringement where no real damages can be proven becomes more punitive than medical malpractice, defamation, injuries inflicted by drunk drivers and other truly serious civil causes of action, there is something very wrong and very unsustainable in the legal world.

This is not about deterrence. It's about perverse and outrageous enforcement of a bad law for bad reasons with bad results that will be bad for everyone, no matter what their interest may be.

While the RIAA lawyers may be drinking very expensive champagne tonight, paid for by musicians, single mothers, and many other unwilling contributors, there will likely be side effects and hangovers galore starting tomorrow. They should be careful what they wish for.

To begin with, early reports and comments from a leading US downloaders' defense lawyer, Ray Beckerman, indicate that the judge's charge to the jury may have been quite erroneous, based upon RIAA submissions that the judge accepted concerning the law on "making available", etc. Hopefully, the appeal process will work.

So - add a 30 single mother of two who works at at Indian reservation to cap off the list of 26,000 or so dead grandmothers, 12 year old girls in subsidized housing, university students, and other common folk who may or may not have even been correctly identified, and even if so, are likely guilty of nothing more than loving music.

Welcome to shock and awe, testosterone, and the RIAA way of thinking.

Coming soon to Canada, eh?

CRIA, the so-called "Canadian" Recording Industry Association. has tried to do this in Canada and so far has lost badly, due in some measure to yours truly.

CRIA will doubtless try to catch up with its American masters by convincing Canadian policy makers that "shock and awe" is cool in Canada too.

Let us hope that Canadian policy makers see the truly repulsive results that can happen when copyright lawyers and lobbyists have their way with the system.

Today, I'm saddened, embarrassed but mostly furious that copyright law can be used for such a revolting result.

Enjoy your champagne, RIAA, while it lasts. It hopefully won't last long.


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