Settle or Be Sued

Settle or be sued. These are the two options given by the settlement letters that many college students have received. The Recording Industry Association of America (RIAA) recently sent out its thirteenth batch of settlement letters and of the 401 notices, 50 target USC students. Most will probably settle, whether through the RIAA’s p2plawsuits.com or otherwise, but what happens if someone actually decides to go to trial? After 20,000 cases never made it into the courtroom, the first lawsuit to go before a jury against an individual file-sharer was resolved. The jury considered the case, Capitol Records v. Thomas, for four hours before declaring a verdict: the defendant was guilty of copyright infringement and charged with $9,250 in statutory damages for each of 24 tracks, totaling $222,000. Jammie Thomas, a 30-year-old single mother from Brainerd, Minnesota, was responsible not only for this sum, but also legal fees for both sides, making the total likely to approach $500,000. In statements during the days following the trial, jurors stated they came to the guilty verdict in a matter of minutes, with the majority of deliberation over the amount. While two jurors desired the maximum penalty of $150,000 per track, one held out for the minimum of $750 each. The final number of $9,250 was a compromise. While Thomas asked the district judge to set aside the judgment as "unconstitutionally excessive," the penalty was chosen by a jury of 12 ordinary Americans from her own state, making this a difficult point to argue. The real question, though, is how 24 tracks, which could sell for a total of $23.76 as legal downloads from the iTunes music store, are worth $222,000. The answer lies in current copyright law. While Thomas was accused of illegally downloading over 1,700 tracks from Kazaa, the lawsuit concerned 24 tracks found in her shared folder. The tracks Thomas made available could have been downloaded by thousands of users, or no one. There is then no way to calculate the exact losses to the copyright holders. In situations where exact monetary damages cannot be calculated, the copyright law allows for statutory damages of $750 to $30,000 per infringement (per track) and this can be increased to $150,000 for willful infringement. This means Thomas could have been held responsible for $3.6 million had maximum penalties been applied. Of course, the RIAA had a substantial amount of evidence against the defendant in this particular case. While Thomas' defense consisted largely of "I didn't do it" and the suggestion that someone else may have been using her Internet connection, the RIAA presented a number of counterarguments. Both the MAC and IP addresses of the file-sharer matched those of Thomas' computer at the time file sharing occurred. The computer was password-protected and only she had access to it. She had a 13-year history of using her Kazaa username ("Tereastarr") on everything from e-mail accounts to a match.com profile. There was a strong correlation between her musical tastes and the artists in the shared folder. She lied about the date she replaced her hard drive. The defense called no witnesses. It would be interesting to see how the case turned out with less substantial evidence. Guilt could be more difficult to prove in future cases. Jammie Thomas has responded to the lawsuit by saying she is innocent and vowing she will be "a thorn in the side of the RIAA" for the rest of her life. She is appealing the court decision and has set up a website for donations, which raised nearly $16,000 in the first few weeks after the decision. With over 20,000 lawsuits and thousands of pre-litigation letters sent to college students, the recording industry is spending millions of dollars trying to control piracy. According to The Daily Chorus, P2P downloading has actually increased by nearly 70 percent since the lawsuits began four years ago. There were at least 2 million users trading over 800 million total files the night Thomas was accused of sharing those 24 songs.

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Jammie Thomas’ 24 Shared Tracks:

• Aerosmith - Cryin’
• Bryan Adams - Somebody
• Def Leppard - Pour Some Sugar On Me
• Destiny’s Child - Bills, Bills, Bills
• Gloria Estefan - Coming Out of the Dark
• Gloria Estefan - Here We Are
• Gloria Estefan - Rhythm Is Gonna Get You
• Goo Goo Dolls - Iris
• Green Day - Basket Case
• Guns N’ Roses - November Rain
• Guns N’ Roses - Welcome to the Jungle
• Janet Jackson - Let’s Wait a While
• Journey - Don’t Stop Believin’
• Journey - Faithfully
• Linkin Park - One Step Closer
• No Doubt - Bathwater
• No Doubt - Different People
• No Doubt - Hella Good
• Reba McEntire - One Honest Heart
• Richard Marx - Now and Forever
• Sara McLaughlin - Building a Mystery
• Sara McLaughlin - Possession
• Sheryl Crow - Run Baby Run
• Vanessa Williams - Save the Best For Last

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