Wednesday, 27 January 2010

The topsy turvey world of US damages ....

I have to say that from a personal UK perspective I find the damages awarded by US juries in both the Joel Tenenbaum and the Jammie Thomas-Rasset file swapping cases extraordinarily high. That the two defendants were unlucky enough to get caught in the first place and then perhaps foolish enough not settle was bad enough. To then face damages of $675,000 and $1.92 million respectively seems somewhat harsh, to say the least. The sums awarded to the record industry are also, it would appear, wholly unrealistic and will never be paid. Tenebaum, a student, made it clear that he would (pending an appeal) probably seek bankruptcy protection and single mum Thomas-Rasset made it clear she didn’t have the nearly two million dollars sum lying around to pay the labels. That said, the awards fell well within the statutory tariffs set by US law. Tenebaum’s appeal, which is still ongoing, prompted a filing from the The US Department of Justice defending the $675,000 damages award arguing that Tenenbaum's actions caused "great public harm" saying "In establishing the range [of copyright damage amounts: $750 to $150,000 per infringement], Congress took into account the need to deter the millions of users of new media from infringing copyrights in an environment where many violators believe they will go unnoticed" and the DOJ filing notes "The harms Congress sought to address, moreover, are not negated merely because an infringer does not seek commercial gain. Accordingly, the statutory range specified by Congress for a copyright infringement satisfies due process."

Now a US judge has intervened in the Thomas-Rasset case and whilst Judge Michael Davis rejected the defendant’s request to reduce the fine to the legal minimum of $18,000, he did cut the award by ninety seven percent to about $54,000. What’s significant is that the decision did not make any ruling on points of law, but rather adjusted the amount to what the judge considered an appropriate penalty. Judge Davis, chief judge for the U.S. District Court for the District of Minnesota, said the original fine was “monstrous and shocking” and that the new amount was more appropriate, being “significant and harsh” but at an appropriate level to act as both punishment and deterrent, with Judge Davis saying that that a jury acted irrationally in deciding upon the size of an award, perhaps a first in a copyright case.

Despite what many might consider to be a ‘victory’ over the Recording Industry Association of America, Thomas-Rasset’s doesn’t seem very impressed with the result and one of her lawyers told reporters that the reduced amount was like “the difference between Joseph Stalin and the Khmer Rouge” and that they are still considering a constitutional challenge using the argument that the law itself is unfair. There is also the possibility of a further challenge by the Recording Industry Association of America which may argue that the judge had no right to use remittur in the case. That said, the RIAA seem to be stuck between a rock and hard place – the possibility that bringing appeal might generate yet more bad publicity – but to accept Judge Davis decision might set an unwanted precedent. and

1 comment:

mcvooty said...

Can't speak about UK copyright law, but US law gives the author the right to publicly display his/her work. Looks to me like The Independent made a public display of the work, even if the work is being viewed one person at a time.