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EFF Defends $54,000 Award against Music-Sharer

A 5-year-old case drew a wide range of penalties and the EFF now argues to let the latest fine stand -- but one music label wants more.

When Jammie Thomas-Rasset illegally shared 24 songs she downloaded from the Internet more than five years ago, little did she know that the act would launch her on a roller coaster ride through the courts. In three trials and two appeals, she's been hit with damage awards of $222,000, $1.92 million, $54,000, $1.5 million, and $54,000 again.

That last award was too low, argues Capital Records, which has appealed the case and is seeking restoration of the $1.5 million award against the Native American mother of four from Brainerd, Minnesota, who works as a natural resources coordinator for the Mille Lacs Band of Ojibwe Indians.

The Electronic Frontier Foundation (EFF) -- joined by the Internet Archive, the Association of Research Libraries, the Association of College and Research Libraries, the American Library Association, and Public Knowledge -- is arguing differently, and Friday it filed a "friend of the court" brief with a federal appeals court in Minnesota asking it to uphold the lower court award.

In its brief, the EFF asserts that excessive damage awards in copyrights cases can discourage what copyrights were created to encourage: innovation.

 "Copyright law should encourage innovation, creativity and the dissemination of information," EFF Intellectual Property Director Corynne McSherry says in a statement. "But fear of crushing liability if you guess wrong about whether a court will decide you are protected by fair use can chill experimentation and the creation of new consumer products and services."

"We don't know what will be the next YouTube, Spotify, or Pandora --- and we'll never know if creators of technology are scared away from developing new ideas," she adds.

The EFF is also asking the appeals court to reject the record company's contention that making copyrighted material available -- on a peer-to-peer network, for example -- is the same as distributing it. That's important because the penalties for distributing a copyrighted work are more severe than just infringing it.

The copyright law requires that a transfer take place, such as a download, before someone can be considered distributing anything. "Distribution liability based on anything less would  transform [the Copyright Act] into an unbounded form of civil attempt liability, even where no copies had ever been distributed and thus no harm had ever been inflicted on the copyright owner," the EFF brief says.

"Getting this issue right is also crucial in light of the extraordinary penalties available in copyright cases," the EFF adds. "A finding of infringement can open  a gateway to statutory damages far out of proportion to any actual harm -- as in this case, where the third jury found  the defendant  liable for over $1,500,000 when the reasonable actual damages were no more than $360."

While the music industry organization the Recording Industry Association of America has scaled back its legal activity against individual file-sharers, Capital is an exception to the rule. Not only is it pursuing the case against Thomas-Rasset, but it's also trying to shut down the music reseller site ReDigi. Earlier this week, an effort by Capital to suspend operation of the site was rebuffed by a federal district court judge.

The EFF and its allies hope the judge in the Thomas-Rasset case will adopt a similar course of action.

Follow freelance technology writer John P. Mello Jr. and Today@PCWorld on Twitter.

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