Jammie Thomas-Rasset, the Brainerd mother of four, this week lost yet another court battle over whether she committed copyright infringement by distributing 24 songs on the KaZaA peer-to-peer file sharing network. She has to pay $1.5 million. That works out to over $60,000 per song.
How is that computed? TechDirt has the answer today, saying it's in the instructions to the jury.
Under the Copyright Act, each plaintiff is entitled to a sum of not less than $750 or more than $30,000 per act of infringement (that is, per sound recording downloaded or distributed without license). Because the defendant's conduct was willful, then each plaintiff is entitled to a sum of up to $150,000 per act of infringement (that is, per sound recording downloaded or distributed without license), as you consider just.
TechDirt says there's not much a juror could have done:
They're exactly what the law basically says the judge should say. But, if you're the average person in the jury box, these instructions effectively say "pick a number higher than $30,000 and less than $150,000." That's basically it. The numbers are framed right there, and the jury just has to pick. So, the last two juries picked $80,000 and now $62,500. If you're on the jury, you're not really thinking about what this actually means, or if the punishment fits the actions. You're told, by law, you should pick a ridiculously high number, and then you just sorta pick one within that frame, which has already been set for you.
To many people, Jammie Thomas-Rasset is a hero in efforts to "free" the Internet. But this week, the Internet made a hero out of someone whose situation is more closely aligned, perhaps, to the dastardly recording industry -- a woman whose work was stolen via the online route.
Monica Gaudio, of Pennsylvania, found out a magazine, Cooks Source, lifted her online work and published it in the magazine. So Gaudio sent the publisher a note asking for a donation to the Columbia School of Journalism, then got this note in return:
..Honestly Monica, the web is considered "public domain" and you should be happy we just didn't "lift" your whole article and put someone else's name on it! It happens a lot, clearly more than you are aware of, especially on college campuses, and the workplace. If you took offence and are unhappy, I am sorry, but you as a professional should know that the article we used written by you was in very bad need of editing, and is much better now than was originally. Now it will work well for your portfolio. For that reason, I have a bit of a difficult time with your requests for monetary gain, albeit for such a fine (and very wealthy!) institution. We put some time into rewrites, you should compensate me! I never charge young writers for advice or rewriting poorly written pieces, and have many who write for me... ALWAYS for free!"
That's when the Internet went nuts.
The magazine's Facebook page has been today's most entertaining read:
Humorous as it is -- and it is -- the outcry raises a big question: How can two people on opposite sides of a copyright debate, both be Internet heroes?
Perhaps people don't equate file downloading being on par with plagarism.
Sure both are crimes, but in one instance (file downloading) you have a criminal that is viewed like a modern day Robin Hood and in the other you have an editor ala Sheriff of Nottingham commiting the crimes.
Also, I think there's something of a "little guy" vs the "big guy" mentality that helps smooth out the cognitive dissonance.
I agree with David on the "little guy/big guy" point. With the Cooks Source debacle, though, there are a couple of other things (at least!) to consider:
1) The Cooks Source site is ad-supported; the editor swiped content FOR PROFIT. Wasn't Thomas-Rasset file SHARING, vs file SELLING? I'm really asking. Correct me if I'm wrong.
2) It's just hilarious that the Cooks Source editor takes Ms. Gaudio to task for her writing skills and gets all grandiose about her own, when clearly her writing skills could use, um, a little work. Starting with, shouldn't it be "Cook's Source" or "Cooks' Source"? Please, lady. The Internet loves mockery, and that kind of irony is blood in the water! Of course people are going to line up with their cream pies, and she is taking them right in the face. Total amateur.
David is right, but obliquely. The internet, in the sense that it has a collective sensibility, takes the side of individual rights against institutionalized creativity. Thus the opposition to corporate media entities abusing their intellectual property monopolies, but the advocacy of individuals enforcing their IP monopolies against media entities.
If government policy is to grant creators monopolies over ideas, there is no inconsistency in embracing the paradigm but rejecting the prevailing market conditions where the monopoly powers tend to accumulate and expand in massive corporate entities to the detriment of individuals.
More like "Crook's Source."
I think the Internet masses aren't taking a stance on intellectual property cases so much as siding with individuals over institutions. Not really a huge shock for me there, despite the contradiction there.
"The response she got combined three things that inspire online rage: misinformation, disrespect for creative people, and jaw-dropping condescension."
Regarding the difference between the two, I don't think it's any more complicated than that.
I'm a bit interested to see where these copyright suits go from here. It seems to me that the law provides such a bloated compensation range per song in order to deal with the cascading nature of the infringement. That is, if I share a song with you, then you might share it with five other people who might in turn each share it with five other people - and so forth.
The notion that this woman was responsible for 1.5 million dollars in damages certainly seems a bit silly, even in that light. What I find curious is that the law allows for the music industry to essentially double-dip on these suits. It holds the original infringer responsible for cascading losses, but then it also allows the industry to pursue each individual infringer down the line and go after the same compensation.
Of course, the industry would be insane to (a) go after its consumer base and (b) think it's actually going to get that kind of compensation from anyone. They're obviously making an example out of her. It's just interesting what the current copyright law allows here.
In addition to the reasons mentioned by other commenters, I think that "the internet" in general views the specific copyright rules surrounding digital media and the associated fines to be overly restrictive, so they are hoping that Ms. Thomas-Rasset's fight will lead to a relaxing of those rules. I think most anyone would agree that Thomas-Rasset was in violation of current copyright laws, but that perhaps those laws are unjust towards consumers.
I'm no lawyer or judge. But I don't read those instructions the way TechDirt did. To me it looks like the upper boundary is moved when it is a willful act, but I don't see anything that moves the lower boundary. So the range should be $750-$150,000 per incident not $30,000-$150,000.
Does the case say anything about the number of downloads? That might enter into the calculation of the "number of incidents" and reduce the award per incident from the seemingly outrageous $60,000.
So close to an election, it's difficult not to map this onto a political spectrum where right and left meet on the other side. On the left, we have a desire for the free circulation of information; on the right, we have a desire for the free circulation of gov't services. It's hard to imagine how either could be sustainable.
On the Cooks Source home page, it clearly states "Please Visit our Facebook Page" in nice neat script. hilarious. Those wacky New Englanders...
I've been wondering something similar for quite some time now, it annoys me to see aspiring authors who post their content on the internet tear other internet users apart for plagiarizing their work (even with credit given) knowing that the same people probably don't even blink before downloading a song or other media illegally.
That being said it always hurts more when it's your stuff that's getting stolen. There's been a bit of noise on Twitter recently from authors and game designers upset about illegal downloading of their work and people have come down on both sides of the issue in their defenses.