Intellectual Property Law

RIAA Seeks Up to $150,000 a Song in File Sharing Trial

By David Kravets

The Recording Industry Association of America is going for the jugular in an ongoing file sharing trial in Massachusetts, urging a federal judge to clarify jury instructions so panelists would award up to $150,000 in damages for each of 30 songs at issue.

The move, made Thursday in the Joel Tenenbaum case, suggests the RIAA stands behind its $1.92 million jury verdict against Jammie Thomas-Rasset, the nation’s first defendant to take on the RIAA at a file sharing trial.

The RIAA has until Aug. 12 to inform the Thomas-Rasset judge whether the $80,000 fine a jury awarded for each of two dozen songs was so out of whack that it was unconstitutionally excessive. The June verdict garnered national headlines because of the unusually large award.

On Thursday, meanwhile, defendant Tenenbaum told his jury that he did indeed share copyrighted music on Kazaa. With the question of infringement out of the way, the jury is going to be left to decide a damages amount, and whether the infringement was “willful.”

A finding of willfulness by a jury allows panelists to ding Tenenbaum up to $150,000 per track under the Copyright Act. Good old rank-and-file infringement carries a mere penalty of $750 to $30,000 per track.

“We’re not asking for $150,000 a song. We’re asking the jury to consider willful infringement given that he’s admitted to downloading and distributing hundreds of songs while knowing his activity was illegal,” said Cara Duckworth, an RIAA spokeswoman. “There’s not a specific amount we are putting on.”

While it’s a Sisyphean labor to define willful infringement as opposed to regular infringement, the RIAA told (.pdf) U.S. District Judge Nancy Gertner that the draft jury instructions “should be modified so as not to improperly dissuade the jury away from willfulness or to a lower damages amount.”

Tenenbaum, a 25-year-old Boston University graduate student, is the nation’s second RIAA file sharing defendant to go before a jury. He is accused of sharing 30 songs on Kazaa. Why he went to trial defies the imagination.

That said, the RIAA has issued about 30,000 lawsuits during its nearly 6-year-old litigation campaign against file sharers. Most have settled out of court for a few thousand dollars.

The record labels have said they are ending the campaign, and are now lobbying ISPs in a bid to disconnect repeat music file sharers.

Our sister publication, Ars Technica, is providing Tenenbaum case coverage via copyright attorney Ben Sheffner.

The trial, which began Monday, resumes Friday.

Image: National Institutes of Health

See Also:

• RIAA File Sharing Trial Begins ? Update
• Court Bars RIAA Trial Webcast
• RIAA Seeks Web Removal of ‘Illegal’ Court Recordings
• Judge Mulls Sanctions Against Berkman Center Founder
• Berkman Center Founder Denies Pretrial Shenanigans

Full post as published by Threat Level on July 30, 2009 (boomark / email).