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Copyrights and Wrongs
Mark Rasch, 2007-12-11

On October 1, 2007, Jammie Thomas -- a single mother living in Brainerd, Minnesota -- was sued in civil court for copyright infringement by the Recording Industry Association of America. Three days later, the jury returned the verdict; Ms. Thomas was liable for willfully infringing the copyrights on 24 songs. The fine: $222,000.

Once the case got whittled down, the jury had to consider whether Ms. Thomas was using a peer-to-peer network to download those 24 songs. The jury found that she had used Kazaa and had both downloaded the songs and in the process “made available” the songs for downloading by others. Thus, for each song, there were several acts of infringement: downloading, storing, copying, posting (“making available”) and potentially aiding and abetting of the copying by others. Many of these terms overlap each other –- for example, you can’t download a song without copying it –- even streaming a song copies it.

It could have been worse, much worse. Had she been prosecuted to the fullest extent of the law, Ms. Thomas could have been fined $3,600,000 plus been forced to pay Capitol records’ attorney’s fees and costs. And that is just the civil fine. She could also be forced to pay a criminal fine of $6,000,000 and make restitution to the record companies, as well as serve 120 years in jail. In fact, had she previously been convicted of infringement -- a matter of timing of the prosecution -- she could have been sentenced to 240 years in jail. And that is just for 24 songs.

Just highlighting the possible sentencing demonstrates that there are several problems with the Thomas case. First and foremost, it really does not recognize -- as current copyright law fails to recognize -- the way normal, and presumedly law abiding, people use the Internet. Indeed, the odds are very good that you committed a copyright infringement this morning, and, if not, you will by the end of the day.

As University of Utah law professor John Tehranian points out (PDF) that mundane activities like downloading, copying, automatically replay to, or forwarding e-mails could be read to constitute copyright infringement. That’s right -- almost all emails are copyrighted. Tehranian points out that just copying and replying to 20 emails could lead to $3 million dollars in statutory damages. So too are such things as forwarding family photographs or pictures of the company holiday party that you didn’t take, singing “I Wish You a Merry Christmas” at the party and videotaping the singing of the song, or posting the latest “Dilbert” comic on your cubicle wall. All create potential civil and criminal infringement liability.

Indeed, Tehranian notes that his hypothetical infringer, doing nothing more than the average person does, and not including any peer-to-peer file sharing, could have potential annual statutory civil liability of more than $4.5 billion. And, of course, that is just in the United States. The Internet, being a transnational medium raises the specter of infringement liability in many countries at the same time.

So in a way, Thomas got off light with a judgment of only $220,000.

But it's also setting a legal precedent that has significant problems. The United States Department of Justice recently filed a brief (PDF) supporting the position of the movie and recording industries, urging that both the judgment and the fine against for copyright infringement against Jammie Thomas be affirmed.

Now, I am no fan of copyright infringement. Movies studios spend millions creating and marketing copyrighted works, as do record companies, publishers and others, and they are entitled to protect their works from harmful and infringing activities. Copyright infringement, of songs, music, software, books, articles, and even user generated content costs the bottom line, injures reputations, and in the long run may -– and I emphasize may -– discourage the creation of new copyrighted works. At least it may discourage their digital distribution.

I am also willing to accept the jury’s finding that Ms. Thomas acted willfully, and that the songs she downloaded were posted on Kazaa for others to download. Perhaps millions of people downloaded the songs she posted, perhaps nobody did.

Yet, the law has still not caught up with the technology.

Story continued on Page 2 

Mark D. Rasch is an attorney and technology expert in the areas of intellectual property protection, computer security, privacy and regulatory compliance. He formerly worked at the Department of Justice, where he was responsible for the prosecution of Robert Morris, the Cornell University graduate student responsible for the so-called Morris Worm and the investigations of the Hannover hackers featured in Clifford Stoll’s book, "The Cuckoo’s Egg."
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Copyrights and Wrongs 2007-12-11
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