COPYCENSE

In October 2007, we wrote in these digital pages an article entitled “Should We Still ‘Free Jammie’?” The article’s title referred to a then-existing campaign to elevate Jammie Thomas-Rasset (then Jammie Thomas) to political prisoner status because she lost at trial after being sued by several record companies for copyright infringement.

The core issues in Thomas-Rasset’s second trial, which concluded last month, were substantially similar to those litigated in her first trial as defendant, in which a federal jury found her liable for copyright infringement, and awarded the copyright-owning record companies $222,000 in damages. At the time, we questioned whether the “Free Jammie” campaign was appropriate, given the facts of the case and Ms. Thomas-Rasset’s reported appellate strategy:

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.

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.

…

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.

…

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 [defendants] like Tanya Anderson, who is much more the victim of RIAA’s overly aggressive and flawed litigation tactics than Thomas seems to be.

Ms. Thomas-Rasset ended up getting a reprieve, as a federal judge vacated the first jury’s verdict because of an errant jury instruction. At the time, William Patry opined that he failed to see where the $222,000 verdict could be overturned on constitutional grounds. Ms. Thomas-Rasset refused to settle the case with RIAA, leading to a retrial that occurred last month.

In the second trial, a second federal jury determined that Ms. Thomas-Rasset committed copyright infringement by downloading 24 songs onto a personal computer over which she had control (or to which she had access). The second jury then awarded the copyright owning music companies $1.92 million in willful infringement damages per Section 504(c)(2). In the wake of this second verdict — in which the jury took only five hours to deliberate (compared to five minutes in the first trial) — much of the commentary has been about potential backlash against the recording industry, the recording industry’s “capacity for evil,” and the “scapegoating” of Ms. Thomas-Rasset.

What? Are you kidding us?

As before, Jammie Thomas-Rasset is the wrong person to support against the music industry. Let us elaborate, so no one gets the idea that we’re front running only on winning cases (of which there really have not been many) or cherry picking cases or factual circumstances to create an ideal situation in which individuals can avoid purchasing music or other forms of entertainment.

We purchase a lot of media: literally, thousands of dollars per year in compact discs, DVDs, and game cartridges. Almost all of that content is material we have purchased from a retail outlet: despite having had this outlet for more than five years, we tend not to get schwag. It’s all good, though, because creators tend to get penalized when the copyright-owning company sends out promos and schwag. Since we buy what and who we like, we’re more than happy to support the artists we like through media sales and through tickets to live performances.

So merely as consumers and purchasers of copyrighted material, we have no sympathy for Jammie Thomas-Rasset. (And let’s not get into puerile arguments about privilege, net worth, disposable income or the ability to pay for music or entertainment.)

Additionally, though, we have no sympathy for Ms. Thomas-Rasset from a broader legal and policy perspective. As we mentioned in 2007, if your issue becomes a legal case that encapsulates a broader societal or political issue, we believe you and your attorneys have a broader obligation than just winning or working exclusively for a singular benefit. This is not too much to demand from Rasset-Thomas, as she has been willing to benefit all she can from martyrdom. But with her willingness to benefit from that role comes the responsibility of doing the right thing for a broader effort (especially where that effort is put forth in the name of balanced copyright). Thus far, though, it seems she has been willing to benefit from the quid, but not provide the quo.

Twice Thomas-Rasset has remained defiant after a jury’s overwhelming swift conclusions that her explanations had no credibility, explanations that effectively blamed her children for the downloading of 1,700 songs. (The latest willful infringement award is based upon 24 songs.) Given that the recording industry has shown absolutely no compunction in chasing after children and senior citizens in this litigation campaign, why would she do that?

Twice she has been to trial, and twice she has lost convincingly on a matter of significant legal, societal, and policy importance. And she has lost primarily because no one on either jury believed her; twice a jury of her peers has determined that Jammie Thomas-Rasset had absolutely no credibility.

Twice, she has benefited from legal representation that she either has yet to pay for, or has gotten free of charge.

We have scorched the music industry repeatedly in these pages for business and strategic errors, sloth, greed, and frequently (and with Congress’ help, successfully) tilting copyright law beyond what we believe (and our extensive research has proven) is a Constitutionally-mandated balance that should benefit creators, owners, and the public equally. But in its case against Thomas-Rasset, we have absolutely no problems with what the labels did and why they did it. Even though hers were civil jury trials, there can be no reasonable doubt: Jammie Thomas-Rasset was downloading and exchanging hundreds of songs without compensating the artists or the copyright owners, and she got caught.

As much as we think the music industry’s broader campaign against customers is poor business and policy, we completely support a system in which a copyright owner has the exclusive right “to do and to authorize” anything under Section 106 or Section 106A. We never have questioned that principle, or the system that supports that principle.

Jammie Thomas-Rasset has violated these principles without a legal excuse or limitation, and it seems she has played the public for foolishness by taking advantage of a broader anger at the music industry specifically, and more generally, a U.S. copyright system that has some problems and needs calibration, but still is one worth supporting.

Ms. Thomas-Rasset should pay her lawyers for their work, and the copyright owners for her infringements.

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