Thoughts on Capitol v. Thomas

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Record labels have filed over 20,000 lawsuits related to file sharing since 2003, and the first one to go to trial received a verdict yesterday in Minnesota. The jury found defendant Jammie Thomas guilty and ordered her to pay the six record companies that sued her $9,250 for each of the 24 songs they decided to focus on.

It doesn’t take a rocket surgeon to realize that this is an extremely unfavorable outcome.

  1. The record labels will take this victory as “a validation of its “sue our fans” strategy, rather than realizing it’s finally time to try a different model.” (Techdirt)
  2. This case will have absolutely no effect on file sharing. “According to BigChampagne, an online measuring service, the number of peer-to-peer users unlawfully trading goods has nearly tripled since 2003, when the RIAA began legal onslaught targeting individuals.” (Wired)
  3. The record industry needs to stop fighting the inevitable. “Eventually, unless governments are willing to take drastic measures to protect the industry (such as a mandatory music tax), economic theory will win out and the price of music will fall towards zero.” (TechCrunch)

The case has potentially set a number of legal precedents favoring the record industry, such as “making available”, described by Declan McCullagh in his excellent analysis:

Jury Instruction 15 is more important. It says that the RIAA doesn’t need to offer any evidence that rapacious Kazaa users actually downloaded songs from Thomas’ computer. All they need to do is claim that Thomas left the songs in a publicly accessible directory where they could have been downloaded. Big difference.

Wired has more:

In proving liability, the industry did not have to demonstrate that the defendant’s computer had a file-sharing program installed at the time that they inspected her hard drive. And the RIAA did not have to show that the defendant was at the keyboard when RIAA investigators accessed Thomas’ share folder.

Also, the judge in the case ruled that jurors may find copyright infringement liability against somebody solely for sharing files on the internet. The RIAA did not have to prove that others downloaded the files. That was a big bone of contention that U.S. District Judge Michael Davis settled in favor of the industry.

That’s just wrong. Is it illegal to leave a music CD out in the open? Of course not, but anyone could come along and steal it or copy it. How is leaving music files out in the open any different? Copying media for personal use is considered Fair Use (though the RIAA is doing everything they can to change that). As I understand it, combining your Fair Use rights with an open Wi-Fi connection (the default setting on virtually all wireless routers) would then make you liable for copyright infringement, if the precedent set by this case holds.

I’m not sure the precedent will be upheld, however. Last December the judge in UMG v. Lindor ruled that the record labels would have to show that Lindor actually shared the files. Demonstrating that she made the files available for download was not enough. Actually, I’m not sure why that earlier decision was not used in this case against Thomas.

Another problem is the fine amount. I think $9,250 per song very clearly conflicts with the Eighth Amendment, which states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The songs in question are available in the marketplace for less than $1. Furthermore, wholesale pricing has been confirmed by record label executives as being close to 70 cents per track. From that perspective, the fine levied against Thomas is almost surely excessive.

These lawsuits are very clearly about money, not about protecting artists. I look forward to the day when record labels as we currently know them cease to exist. It’s only a matter of time.

There is a ton of commentary on this story at Techmeme. That’s how I found Michael Geist’s post, in which he explains the Canadian context. Definitely worth a read.

  • Not sure how the US Court system works. However, the judge in Thomas’ case may not have to follow UMG v. Lindor because they are in different states. For example, the Alberta Court of Appeal does not have to follow Ontario’s Court of Appeal, although their reasoning may be strongly persuasive. I’m sure the lawyer for Thomas would have included UMG v. Lindor in their arguments – but the judge and jury don’t have to buy it.

  • I don’t know how it works either, but that could very well be the case. If it got to a federal level court, then it needs to be followed right?

  • Don’t Courts have different "circuits"? Anyhow, the judge can always find facts to "distinguish" the case and say that it doesn’t have to follow precedent.