RIAA vs. the Rest of Us: The Same Old Song

Bet you thought we'd put the RIAA's ugly file swapper witch hunt behind us. Well, guess again. It's back in the news, now that Minnesota's file-swappin' momma Jammie Thomas-Rassett just lost for the third time in her battle against the RIAA.

Amazingly and possibly insanely, she has vowed to fight on. Why, exactly, is not entirely clear. In case you haven't been following this story assiduously over the past three years, here's a quick recap:

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In October 2007, Thomas-Rassett was sued by the recording industry for uploading 24 songs to the KaZaa file-sharing service. Her defense was pretty inept (for example, her attorneys claimed someone else accessed KaZaa by hacking into her Wi-Fi network, when she didn't actually own a Wi-Fi router). A jury found her guilty and awarded the record companies $222,000 in damages, or $9,250 per song.

Thomas-Rassett said, I'm not paying, and instead appealed. She was found guilty again by a second jury, who upped the damages to $1.92 million, or $80,000 per song (which is about $79,999 too much to pay for "Bills, Bills, Bills" or "Run, Baby, Run").

Thomas-Rassett said, I'm not paying, and again appealed on the basis that the award was outrageous. A judge agreed, but Thomas was still guilty of violating copyright law, so he knocked the damages down to $54,000.

Apparently, after each trial the record companies offered to settle for $25,000 and an admission of guilt. For them it's not about the money -- they've surely spent tens of millions on attorneys in suing 35,000+ alleged file swappers -- but rather, the example. They don't want people to think they can fight the record labels and win. The music industry wants the world to think it's in the right, and no amount is too much to spend.

But Jammie said, No, I'm not paying, and appealed once more. Earlier this week a jury found her guilty for a third time and assessed damages of $1.5 million, or $62,500 per tune (repeat: $62,499 more than anyone should ever pay for Bryan Adams' "Somebody").

You can guess how Thomas responded to that. Nope, she's not paying. And so it continues.

I'm all for digging in on matters of principle, but at a certain point you gotta cut your losses and move on. Her attorney is fighting the good fight, but does he really see this going to the Supreme Court? It's not like the Supes currently in place are going to rule against multinational cartels like the recording or movie industries. That's not how they roll.

Still, it could be worse. At least Thomas is not Joel Tenenbaum, a Boston University grad student who cheerfully admitted in court to illegally swapping files, or his Harvard Law School attorney Charles Nesson, who crumbled up styrofoam in court to demonstrate how files are sent across the Internet and admitted to smoking pot in the courtroom (that's where he admitted it, not where he smoked it -- I think). Not surprisingly, Tenenbaum lost too.

As regular readers can attest, I'm no fan of the RIAA or MPAA and their battle to use copyright law as a blunt instrument to beat on college students and dead people. It's a long and shameful history that also includes using p-to-p nets to distribute spyware in the guise of MP3s, in possible violation of federal wiretap laws.

And it's all based on a lie. File sharing isn't killing the recording industry; this is a self-inflicted wound. Actually, it's a series of wounds, starting with the industry's absolute refusal to adapt to a changing distribution model and either create its own electronic store back in the 1990s when the opportunity arose or make a deal with Napster or MP3.com, both of which were eager to provide the kind of all-you-can-eat subscription services that are now the industry norm. Combine that with the fact that, after iTunes came along, people realized they didn't have to spend $19 on a crap CD when they could buy the two songs they liked for 99 cents apiece.

In short, the record companies are hurting because they treat their customers like manure. They always have. The Internet just gave people a way to fight back.

Equally at fault here is U.S. copyright law, which is really designed to thwart large-scale counterfeiters and plagiarists, not average citizens who use easily accessible technological tools to make and share personal copies. Forcing juries to decide fines ranging from $750 to $150,000 per offense for "willful" infringement is ludicrous. That needs to change.

But damn, girlfriend. Haven't you had enough? I'm thinking it's time to pay up and move on.

It's unfortunate that the two parties who've chosen to stand up to the RIAA's Gestapo tactics have been so, well, lame, and that their attorneys have been a few dime bags short of a full lid -- because there's a lot of wrong here and very little right.

Who do you think is right? E-mail me: cringe@infoworld.com.

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