COPYCENSE

Technology publication ArsTechnica is reporting that Jammie Thomas’ appellate strategy will be to question the damages award first, leaving to a later date the broader (and arguably more important) issue of whether or not “making available” files violates the reproduction and distribution rights in Section 106. Ars reports that if the court decides against granting a new trial, Thomas would have 30 days to appeal the original verdict, and she could use that opportunity to argue against the “making available” doctrine, which the judge conveyed in jury instructions.

William Patry has observed that he would be “stunned if there is any room for overturning the award. There is doubt that any award within the permissible range, even the tippy-top, is subject to review. I think there may well be cases where a damage award may be constitutionally flawed, but this is not one of them.”

Still, since Thomas currently is responsible for more than $200,000 in statutory copyright infringement damages, there is little surprise that she would look to reduce that figure. The strategy, however, smells like an unfortunate case of CYA and seems narrow considering the broader stakes at hand.

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Thomas and her counsel certainly knew this case would be a high profile matter, but both also had to know this case would have a significant effect on the substance and interpretation of copyright law. It is reasonable to expect any party in litigation to do only what is best for their personal and legal interests. Likewise, attorneys have an obligation to work primarily in their clients’ best interests. But in light of the context, it also seems reasonable for those interested in copyright to expect the litigants in these high profile, important cases to recognize the cases’ legal and societal issues and attempt to resolve such issues, while continuing to do what is best for the client.

We recall Lawrence Lessig’s mea culpa about losing the Eldred v. Ashcroft case

The mistake was made early, though it became obvious only at the very end. Our case had been supported from the very beginning by an extraordinary lawyer, Geoffrey Stewart, and by the law firm he had moved to, Jones, Day, Reavis & Pogue. There were three key lawyers on the case from Jones Day. Stewart was the first; then, Dan Bromberg and Don Ayer became quite involved. Bromberg and Ayer had a common view about how this case would be won: We would only win, they repeatedly told me, if we could make the issue seem “important” to the Supreme Court. It had to seem as if dramatic harm were being done to free speech and free culture; otherwise, the justices would never vote against “the most powerful media companies in the world.”

Lessig remained convinced that “the court would not hear our arguments if it thought these were just the arguments of a group of lefty loons.” But his litigation team remained firm:

In the moot before the lawyers at Jones Day, Don Ayer was skeptical. Don had served in the Reagan Justice Department with Solicitor General Charles Fried and had argued many cases before the Supreme Court. “I’m just afraid that unless they really see the harm, they won’t be willing to upset this practice that the government says has been a consistent practice for 200 years. You have to make them see the harm—passionately get them to see the harm. For if they don’t see that, then we haven’t any chance of winning,” he said.

Lessig, drawing on his experiences as a clerk to Justice Antonin Scalia, continued to differ. The result, as we now know, was defeat. In hindsight, Lessig reviewed why the Supreme Court didn’t buy his constitutionally-based arguments.

As I read back over the transcript from that argument in October, I can see a hundred places where the answers could have taken the conversation in different directions, where the truth about the harm that this unchecked power will cause could have been made clear to this court. … There were a hundred places where I could have helped them want to, yet my stubbornness, my refusal to give in, stopped me. I have stood before hundreds of audiences trying to persuade; I have used passion in that effort to persuade; but I refused to stand before this audience and try to persuade with the passion I had used elsewhere. It was not the basis on which a court should decide the issue. … We had in our Constitution a commitment to free culture. In the case that I fathered, the Supreme Court effectively renounced that commitment. A better lawyer would have made them see differently.

In the end, Lessig recognized he had not just a duty to his client, but a duty to try affirm a broader policy he sincerely thought was embedded in the Constitution. Lessig also seemed to recognize that in meeting his duty to affirm the broader policy, he also would be fulfilling his duty to his client.

We think Thomas and her legal team — in this case, with these issues — have a duty similar to the one Lessig accepted when he decided to push the Eldred case. The major difference between Eric Eldred and Jammie Thomas, of course, is that Eldred was a plaintiff whose livelihood had been influenced by a major, retroactive change in the copyright law, while Thomas is a defendant liable for copyright infringement after providing an excuse a jury of her peers found wholly incredible.

The more we dig into this case, the more likely we are to conclude that Thomas was the wrong defendant to support in the wrong case. A five-minute deliberation on liability indicates Thomas’ liability never was in doubt. That fact alone suggests Thomas (as well as proponents for balanced copyright) would have been much better off had she settled for $3,000.

(Interestingly, this may answer the rhetorical question we posed in last week’s Clippings, in which we wondered aloud about the absence of the Electronic Frontier Foundation in this case.)

Good party or no, good facts or no, Thomas now is in the belly of the beast, but in ways much more significant than the $220,000 in damages she must pay. This verdict will embolden the music industry to continue its ridiculous litigation campaign; at a minimum, focusing on continuing the campaign likely will keep the industry from making the fundamental business changes it needs to make in order to provide valuable services to consumers in a vastly changed business environment. No one wins in this arrangement.

We were willing to go along with the “Free Jammie” ride so long as she and her legal team recognize they have a responsibility to litigate and resolve the broader, more significant policy issues — particularly this issue of “making available” being made a de facto seventh exclusive right in Section 106.

But if Thomas and her legal team are unable or unwilling to make a legitimate attempt to resolve this and similar broader policy issues, we cannot continue to support their cause because it seems there is no doubt she committed widescale copyright infringement and her appeal seems confined to soothe the sting of what seems to be a sound, if harsh, penalty. We would much rather support litigants like Tanya Anderson, who is much more the victim of RIAA’s overly aggressive and flawed litigation tactics than Thomas seems to be.

See also:
Eric Bangeman. Appeal in RIAA Case to Focus on “Unconstitutionally Excessive” Punishment. ArsTechnica. Oct. 15, 2007.

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