Saturday, August 15, 2009

RIAA not prepared to waiver in Thomas damages

To be fair, the RIAA companies could hardly turn round now and say that, actually, nearly two million dollars in damages for sharing unlicensed music is a frankly absurd level of damages, and so it's unsurprising they're having to stick to their morally dubious beliefs and rejected Jammie Thomas-Rasset's appeal to have the jury award reduced to a less absurd figure:

[T]he labels say that the award, which represents $80,000 for each of the 24 works on which the labels sought damages (among about 1,700 in Thomas-Rasset's KaZaA shared folder), survives the more deferential standard set forth in St. Louis, I.M. & S. Ry. Co. v. Williams, 251 U.S. 63 (1919), under which an award must be upheld unless it is "so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable."

Although eighty grand for each instance of filesharing would seem to not just tick the "severe, oppressive and disproportioned" boxes, but also award house points and write 'good job' in big red letters next to them.

There is a grudging sign that not everyone in the RIAA companies is just plain evil, though, as they do offer to consider a remittur:
However, the labels say they will only do so if the reduced award adequately reflects the "infringement of a significant number of Plaintiffs’ copyrighted sound recordings ... as well as the substantial damage caused to Plaintiffs and their businesses by Defendant’s actions." And they will not accept a remittitur based on a reduction in the award on constitutional grounds.

Except, of course, the labels haven't been able to demonstrate serious damage to their businesses - either by filesharing generally, or Thomas' specific file-sharing - except to point to circumstantial evidence.

So, the RIAA line is effectively "we'll only come to terms if we still get a massive wedge, and nobody suggests the law allowing us to demand stupid money is broken beyond belief."

Their confidence is in part buoyed by the disappointing number of copyright fundamentalists who have been welcomed into Obama's White House. Earlier this week, the Department of Justice indicated it was comfortable with the two million dollar fine. Change?