Content owners celebrate US court successes

August 2009


Jammie Thomas-Rasset, the single mother of four convicted of copyright infringement and currently liable for damages of $1.92 million, intends to appeal her case with her lawyer telling CNET News that “She’s not interested in settling …. she wants to take the issue up on appeal on the constitutionality of the damages. That’s one of the main arguments that the damages are disproportionate to any actual harm”. When the decision came out, Fred von Lohmann, a lawyer with the Electronic Frontiers Foundation had said “The disproportionate size of the verdict raises constitutional issues” adding “was the jury punishing her for what she did, or punishing her for the music sharing habits of tens of millions of American Internet users?”.  Thomas-Rasset had previously indicated that she had tried to settle the case and then made it clear after the conviction that she could not pay the fine saying “Now the record industry has a $2 million award against me. The only thing I can say is good luck trying to get it, because you can’t get blood out of a turnip”. The Recording Industry Association of America (RIAA) said that it had contacted Thomas-Rasset’s lawyers Joe Sibley and law partner Kiwi Camara to ask whether Thomas-Rasset wanted to discuss a settlement. An RIAA representative said that its lawyers were told by Sibley that Thomas-Rasset wasn’t interested in discussing any deal that required her to admit guilt or pay any money. “The defendant can, of course, exercise her legal rights,” said an RIAA spokesman “but what’s increasingly clear, now more than ever, is that she is the one responsible for needlessly prolonging this case and refusing to accept any responsibility for the illegal activity that two juries decisively found her liable for”. Sibley told CNET that following Thomas-Rasset’s first trial, the trade group offered to settle for $25,000. The Thomas-Rasset case has set an important precedent in the US by establishing that simply offering up music tracks for sharing is sufficient to establish infringement; in a separate US case New York District Judge Harold Baer has ruled against internet aggregator, saying the online service is guilty of direct, contributory and vicarious copyright infringement, and of inducing others to infringe. The decision against the subscription based aggregator, which provided links to both licensed and unlicensed music and film content, provides further clear guidance in the USA that websites which provide links to infringing content, without actually hosting any of the content themselves, can still be liable for infringement claims. In a decision welcomed by the RIAA Judge Baer specifically denied the right of directors to use so called ‘safe harbour’ provisions in US copyright law to protect the service against illegal acts committed by their customers. The judge also criticised the company behind the service, its directors and its owner Gerald Reynolds for deliberately hindering the legal process by wiping hard drives and sending key witnesses on paid holidays to Europe to avoid having to testify.

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