It had to happen sometime. In a week where we have seen Lord Carter’s Digital Britain report criticised for a failure to provide any real measures to crack down on online piracy and the Intellectual Property Office propose raising the maximum fine for Copyright Infringement in the Magistrates’ Court from £5,000 to £50,000, a Minnesota Woman was yeasterday found liable for illegal file-sharing and ordered to pay $1.92 Million in damages to a group of major US record labels.
Not only is the amount of the damages awarded significant, but so is the number of specific songs that Jammie Thomas-Rasset was alleged to have downloaded – 24. This equates to around $80,000 for each song. The case actually got underway back in 2006, when Jamie Thomas Rasset was sued by six of the major US record labels and ordered to pay $200,000 in damages; a retrial was ordered after a Judge found that the Jury had been given the wrong instructions.
A case like this has been a long time coming. Whilst the international Entertainment Industry has been calling for tougher measures to be taken against file-sharers and the RIAA (a traded group representing the US recording industry) has been especially active in pursuing them, this is the first case which has actually gone to trial, and in front of a Federal Jury. While the significance of the verdict is already in dispute, the RIAA is celebrating a decisive victory in its ongoing battle against filesharers, which has seen over 30,000 individual claims brought since 2003.
Although we are talking about a US decision which may not yet set a precedent due to the fact it was a jury trial and set in a system which allows for much greater punitive damages awards than in the UK, the significance of this case can’t be ignored. It throws into sharp relief many of the practical issues surrounding how illegal downloaders may be dealt with by the Court – the RIAA has settled claims against the vast majority of other downloaders it has pursued for an average fee of $1,500 and has said that it was always willing to come to a settlement in this case without going to trial, but it looks as if Thomas-Rasset was determined to have her day in Court and this may well be what has led to such a huge award of damages. Although she only downloaded 20 or so songs, she was also accused of uploading around 1700 songs to the web via the Kazaa file-sharing site, which has recently become a legal download service.
Under UK law, we’d have to look at similar issues. It is an infringement of copyright to copy a song via a P2P file-sharing service onto your computer but it’s also an infringement to make a copy available to the public via uploading it for other users to copy from you. This is the major issue behind illegal downloading; people sharing their entire record collections with the world in such a way as to prevent record companies charging for them. Either way, copyright infringement is punishable by the Civil courts through claims being brought by Copyright Owners but it’s also a criminal offence punishable by an unlimited fine.
Previous cases in the UK have seen very large-scale downloaders punished, but so far the Music Industry and the Government have refrained from going after users who have copied a smaller amount of material. The Music Industry has lobbied the Government to cut off the internet connections of persistent offenders after a warning and “three strikes”. France passed a similar law recently, only to see it repealed on the grounds of being unconstitutional. This week’s Digital Britain report out Ofcom in charge of reducing illegal downloading, but takes a “gradual” approach, beginning with warning letters to filesharers and eventually slowing down their broadband connection.
The Music Industry was outraged and has always wanted the Government to take a more proactive role in curtailing the problem, as the only other way to do so would be for the BPI or record labels to follow a similar campaign and sue downloaders individually, which would lead to huge legal costs and most likely see the Courts flooded with similar claims. It’s also not straightforward to prove exactly who downloaded illegally when a number of people use the same computer. Thomas-Rasset claimed that her ex-Husband or even her Children may actually have been the guilty parties.
But there’s also another issue. Thomas-Rasset has said that she simply can’t pay the fine. This will be the major problem for the Music Industry if a similar trend for prosecutions begins in the UK. Copyright cases are usually expensive for a Record Label to litigate and there’s no guarantee that a man in the street would be able to pay the Claimant’s costs if a claim came before the Civil Courts, or even a fine in the Criminal Courts, potentially leading to a number of phyrric victories for the Music Industry which will almost certainly generate a huge amount of bad publicity in exchange for creating a deterrent to illegal filesharing which will take some time to filter through into the public consciousness.
A number of measures need to be put in place to control the problem – firstly the Government needs to educate the Public on how Copyright works and why illegal downloading is such a problem. Secondly, it needs to deal with offenders in a way which sends a clear message that filesharing will not be tolerated in their new “world-leading knowledge economy” and finally it falls to the music Indusry to make as much content as they can available for legal download at an affordable price and look at new ways of doing business and engaging with their Customers.
Even so, it’s probably only a matter of time before the first major deterrent case against an individual filesharer comes before the UK Courts. Although it could be a public relations disaster for the music industry to turn on its users, it may be the only way for them to get their message across. It’s very doubtful that a UK Court would ever award such a huge amount in damages, mainly because our system would value each song at the sale price charged for it and then consider the number of times it has been copied to come up with a figure. It’s a fairly safe bet that the Royal Courts of Justice won’t award £50 to 60,000 for a song which could be purchased via iTunes for around 80p. Any criminal penalties, though, could be very severe if prosecutions are brought after the proposed raising of the maximum fine for copyright infringement in the magistrates Court being from £5,000 to £50,000.
Apparently the RIAA’s US campaign has seen a cut in illegal downloading figures. If the Government really does intend to reduce filesharing by 70%, it’s likely that we’ll see more extreme measures used to reach that target.