Cases and Courts:
- Capital Records, Inc. v. Thomas-Rasset (D. Minn.).
- Sony BMG Music Ent’mt v. Tenenbaum (D. Mass.).
Background:
Of the roughly 30,000 individuals targeted by the RIAA’s effort to stamp out the trading of their member labels’ recordings over peer to peer networks, the overwhelming majority have quietly settled their disputes for a few thousand dollars. Of that small minority who have fought these cases, only two have seen a jury, both with disastrous results for the defendants.
The first case, involves single mother Jammie Thomas-Rasset, accused of downloading and sharing 24 songs over the KaZaA network in 2005. Early in the dispute, Thomas-Rasset refused to settle the case for $5000. Her first jury trial ended with an award of $220,000, an amount the district court concluded was “unprecedented and oppressive” and “wholly disproportionate to the damages suffered by Plaintiffs.” But after determining that its instruction to the jury regarding the record labels’ “making available” theory of distribution was flawed, the court ordered a new trial.
The second Thomas-Rasset trial, during which the defendant contradicted her own earlier statements and blamed her children for the alleged acts of infringement, resulted in an even greater statutory damages award of $1.92 million, a figure that shocked even the lawyers for the plaintiffs. Thomas-Rasset has asked the court to reduce the statutory damage award or order yet a third trial.
The second case follows a similar pattern. Joel Tenenbaum, a graduate student, was accused of downloading and sharing 30 songs owned by the plaintiff record labels. Tenenbaum, initially unrepresented, enlisted the representation of Harvard’s Charlie Nesson and a team of his students. The Tenenbaum team then proceeded to concentrate on a series of rabbit holes and dead ends, among them a relentless effort to webcast the trial, a self-styled fair use defense, and Nesson’s one man mission to record and post every communication, privileged or otherwise, relating to the case, even going so far as recording calls over the objections of plaintiffs’ counsel and the judge.
After all the sturm und drang, the Tenenbaum defense ended with something of a whimper. The labels won summary judgment on Tenenbaum’s purported fair use defense, and the defendant admitted his peer to peer use from the stand, resulting in a directed verdict on liability and leaving only the question of statutory damages in the hands of the jury. Their answer: $675,000.
What’s at Stake:
Although media coverage has understandably focused on the colorful cast of characters representing the defendants, these cases teach some important lessons and raise even more important questions.
In the short term, the Thomas-Rasset/Tenenbaum cases are a win for the record labels. They underscore precisely the message the RIAA hoped to send future defendants. In a word: settle. If the best defendants who fight these suits through to a jury trial can achieve is bankruptcy, even fewer accused file sharers will put up a fight. Regardless of your stance on the RIAA’s litigation tactics, the economics are clear. Unless you are demonstrably innocent, cut your losses and pay up.
But despite their immediate effectiveness, I’m willing to bet the record labels would have preferred significantly smaller awards in both of these cases. These awards, which are grossly disproportionate to any actual damages suffered by the copyright holders by any reasonable estimate, reveal in stark relief the potential constitutional infirmities of the Copyright Act’s statutory damages provisions. Those provisions provide juries with discretion to award between $750 and $150,000 per work with little to no guidance. Both Tenenbaum and Thomas-Rasset have to varying degrees raised these constitutional concerns, although neither court has yet ruled on them. The DOJ, meanwhile, has voiced its support of the statutory damages provisions in both cases.
The constitutional arguments are simply too complicated to summarize in this post, so I will refer you to Statutory Damages in Copyright Law: A Remedy in Need of Reform, a forthcoming article by Pam Samuelson and Tara Wheatland, that admirably lays out the constitutional challenges facing the statutory damages scheme, a system that was crafted by a Congress that could not anticipate the degree to which copyright targets acts of non-commercial copying by individual citizens, rather than acts of commercial copying by business competitors.
See also:
- Ben Sheffner, Oy Tenenbaum! RIAA wins $675,000, or $22,500 per song, Ars Technica (Jul. 31, 2009).
- Nate Anderson, What’s next for Jammie Thomas-Rasset?, Ars Technica (Jun. 21, 2009).
- Ben Sheffner, Posts with label “Jammie Thomas”, Copyrights & Campaigns (May 12, 2009-present).
- Ben Sheffner, Posts with label “Tenenbaum”, Copyrights & Campaigns (Jan. 17, 2009-present).