Juries Assess Large Damages against Music File Sharers in Minnesota and Massachusetts

Separate juries in Minneapolis and Boston assessed statutory damages totaling over $2.5 million against people accused of illegally downloading and sharing music in the first two file-sharing copyright cases to go to trial.

On June 18, 2009, a Minneapolis jury decided on a $1.9 million verdict against a woman accused of downloading and sharing 24 songs in violation of federal copyright law, in a retrial of the first such copyright lawsuit to go before a jury.

Jammie Thomas-Rasset, of Brainerd, Minn., was initially assessed $222,000 in damages on Oct. 5, 2007 in Capitol v. Thomas, C.V. 06-1497 (D. Minn. Oct. 5, 2007). However, according to the Minneapolis Star Tribune on June 18, 2009, U.S. District Judge Michael Davis granted a retrial because the initial jury was wrongly instructed that under the Copyright Act, 17 U.S.C. section 101 et seq., the “act of making copyrighted sound recordings available” is a violation of federal law “regardless of whether actual distribution has been shown.” The jury in the second trial, which concluded June 18, was told that either reproducing or distributing copyrighted material is infringement, but that merely “making sound recordings available” via the Internet without proof that other users actually downloaded the files does not constitute distribution.

The second verdict of $1.9 million amounts to $80,000 per song. The Copyright Act’s statutory damages system, codified at 17 U.S.C. section 504, allows a jury or judge to award anywhere between $750 and $150,000 for each work infringed.

The Star Tribune reported July 7 that in ordering the retrial, Davis also urged Congress to change the copyright law. “The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer-to-peer network cases such as the one currently before this Court. The Court does not condone Thomas’s actions, but it would be a farce to say that a single mother’s acts of using [file-sharing program] Kazaa are the equivalent, for example, to the acts of global financial firms illegally infringing on copyrights in order to profit in the securities market.”

The Recording Industry Association of America (RIAA) has sued about 35,000 people since 2003 for illegally downloading and sharing music through file sharing software. Thomas-Rasset’s case was the first to go to trial, as most people accused of infringement settled the suits outside of court for an average of $4,000, The New York Times reported in fall 2007.

In December 2008, the RIAA announced that it would abandon lawsuits against individual file-sharers in favor of an approach working more closely with Internet service provider companies to limit the practice. (See “Music Industry to Abandon Mass Copyright Lawsuits” in the Winter 2009 Silha Bulletin. For more on Capitol v. Thomas, see “Music Industry Wins First Internet Piracy Case” in the Fall 2007 issue.)

On July 7, the Star Tribune reported that lawyers for Thomas-Rasset asked the court to either reduce the “grossly excessive” and “unconstitutional” damages, or rehear the trial. Attorney Joe Sibley told the Star Tribune that damages for copyright infringement should match the amount of harm done, adding, “I don’t know how they can justify [the $1.9 million verdict] based on that principle.”

On August 1, Boston University graduate student Joel Tenenbaum was assessed $675,000 in damages – or $22,500 per song – for 30 songs he allegedly downloaded and shared. The trial, Capital Records, Inc. et al v. Alaujan, 1:03-cv-11661-NG (E.D. Mass. Aug. 1, 2009), received significant attention from the media, in part because Tenenbaum’s defense team included Harvard Law School professor Charles Nesson, who was assisted by several of his students. In April, the 1st Circuit U.S. Court of Appeals barred a live webcast of the trial, citing a local rule in the District of Massachusetts which prohibits photography, recording, or broadcast of courtroom proceedings. For more on that decision, see “1st Circuit Blocks Live Webcast of File-Sharing Trial” in the Spring 2009 Silha Bulletin.

According to The National Law Journal, Nesson wanted to argue before the jury that Tenenbaum’s downloading and sharing of songs was covered by “fair use,” an exception under section 107 of the Copyright Act often used to cover material used for educational or newsgathering purposes. But District Judge Nancy Gertner ruled before the jury was selected that the “fair use” defense could not be applied. The National Law Journal reported that Nesson called Gertner’s ruling on fair use “vulnerable,” and said he plans to use it as the basis for an appeal.

“It’s not a fair verdict because the jury never got to consider the fairness issue,” Nesson said. “We had a pretty darn good argument.”

The National Law Journal reported that while on the stand on July 30, Tenenbaum admitted liability for downloading and distributing the songs at issue in the case. Following that testimony, Gertner ruled that the jury no longer had to decide whether Tenenbaum was guilty of the infringement but rather only whether it was “willful,” and then to determine how much Tenenbaum should pay in damages.

According to The National Law Journal, Nesson’s closing arguments focused on trying to convince the jury to keep damages low. Plaintiffs “lobbed … numerous objections” during the closing argument, The National Law Journal reported, including when Nesson advised the jury that it had “the power not to fill in the boxes” on the jury form, which asks jurors to list damages for copyright infringement of each of the 30 songs. Nesson suggested damages of 99 cents per song would be appropriate, because “That’s what he has to pay for it if he purchases it from Amazon.”

Nesson also argued that Tenenbaum was “addicted” to downloading music, and that he was only taking advantage of technology available to him. “Progress happens, it’s not Joel who is responsible,” Nesson said. “There’s no reason for [the industry] to put their calamity off on kids.”

Blogger Accused of Streaming Unreleased Guns N’ Roses Album Sentenced

A blogger who was arrested in August 2008 and charged by federal agents with illegally streaming nine tracks from the then-forthcoming Guns N’ Roses album “Chinese Democracy” was sentenced to two months of home confinement, one year of probation, and must appear in an anti-piracy commercial, according to a plea deal reached July 14 in the federal district court in Los Angeles.

Kevin Cogill, a contributor to the music blog Antiquiet who wrote under the alias “Skwerl,” pleaded guilty to one misdemeanor count of copyright infringement as part of a deal with prosecutors in December 2008. (See “Update: Blogger Pleads Guilty for Leaking Guns N’ Roses Songs” in the Winter 2009 Silha Bulletin and “Blogger Arrested for Posting Unreleased Guns N’ Roses Songs” in the Fall 2008 issue.)

Reuters reported July 14 that Cogill’s anti-piracy public service announcement is expected to air during the Grammy Awards on January 31, 2010.

Cogill had faced a maximum of one year in federal prison, a $100,000 fine and five years’ probation, but according to Reuters, U.S. Magistrate Judge Paul L. Abrams said there was no profit motive behind his posting the songs, they were available on the blog for a short period, and his cooperation proved useful.

– Patrick File

Silha Fellow and Bulletin Editor

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