Ars Technica | Article Link
Thomas-Rasset was at first hit with a $222,000 fine in 2007, which was set aside in 2008. Another jury trial in 2009 ended with a $1.92 million judgment, which was set aside in 2010. In November 2010, a third trial ended with a $1.5 million verdict, which the judge is unlikely to allow (his previous orders suggested that a few thousand dollars per song would be the maximum permissible damages). At the moment, both sides are still arguing over the appropriateness of that $1.5 million damages award.
According to the RIAA, it's absolutely fair, falling right in the middle of the statutory damages range for copyright infringement. Besides, Thomas-Rasset was part of "the ubiquitous infringement engaged in by millions of peer-to-peer users" that has "cost the recording industry billions of dollars." If it's hard to pick out the specific harm caused by Thomas-Rasset, that's only because "the nature of the infringing technology that Defendant chose to use made such a particularized showing impossible."
Thomas-Rasset's defense lawyers see this as a violation of constitutional "due process" protections. They admit that file-sharing harmed the music industry, but argue that "the popular songs at issue in this case would have been available from Kazaa from thousands of users even if this defendant had never used Kazaa herself." Take Thomas-Rasset away from KaZaA, and all the same songs would have been available.
This defense has an obvious problem, and the lawyers admit it. "The problem, of course, is that every defendant could say the same thing—which is merely to restate the fact that the problem is one of a harm that can easily be traced to the collective actions of a large group but that cannot be traced to the individual actions of any of that group’s members."
In a situation where it's this difficult to apportion individual blame, Thomas-Rasset insists that "the Constitution protects her from being singled out for punishment as a representative of all file sharers. She does not deny the harm that file sharing in the aggregate has caused. She merely objects to imposing ruinous judgments on randomly selected individual file sharers as a solution to that problem." (The record labels deny that this is what happened.)
And so the case drags on, hitting its fifth anniversary in a few weeks. It's a depressing milestone for everyone involved. For the RIAA, that's five years of expensive outside lawyers and increasingly bad PR as the judgments zoomed up into the millions of dollars. The case has been going on so long that the recording industry has even dropped this approach to litigation against P2P users.
For Thomas-Rasset, it has been five years of her life, countless hours spent in courtrooms and at depositions, and the real possibility of bankruptcy or financial hardship at the end of the case.
And for the P2P lawyers who have recently followed in the RIAA's stead, it's a reminder that the apparently simple act of suing file-swappers can get very, very complicated.
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