A Silly Argument . . .

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The case of Capitol v. Thomas is going to be appealed.

On what grounds? Let me allow Ms. Thomas to tell us what her attorney told her:

“He explained how we’re going to take the RIAA’s theory of making available and appeal it. He also explained how if we win, this would stop the RIAA dead in their tracks!!!”

That’s nice, but there’s one small problem with that. The people working for the RIAA just didn’t go on Kazaa and note how many songs were in her shared folder. They also downloaded a number of files from her.

So even if an appeals court said, “Just proving that these files were available isn’t enough, you have to show they were actually downloaded,” Ms. Thomas is still dead because the RIAA can prove that files were downloaded from her folder.

All that would mean for future cases is that the RIAA will need to download some files for each case. That will be more time, more expense than just a Kazaa scan, but it certainly won’t stop them “dead in their tracks.”

No, Ms. Thomas’ attorney didn’t overlook that point, as Ms. Thomas tells us:

“. . . if we can win this appeal, they would actually have to prove a file was shared and by someone other than their own licensed agent.”

Whoa! If someone steals from you, any (otherwise legally permissible) evidence you come up with to prove that doesn’t count?


Let’s say some people started taking all the current Anandtech articles, reformat them, and put them on their website as their own. The Anandtech people find out about this, and just to make sure all the legal requirements are met, hire some company to copy the guilty files and properly document the infringements for court.

Can you imagine some court, any court saying, “No, you can’t submit this as evidence?” Well, that’s exactly what Ms. Thomas’ attorney wants. Ridiculous, isn’t it?

No, what the RIAA did was not entrapment. Entrapment occurs when agents of the government induce you to commit a crime. The RIAA and Company aren’t the police, and there was no inducement by the RIAA to get Ms. Thomas to put those files in that Kazaa folder.

But for those doing the same thing with a J.D from TV, this sounds like entrapment, and if your goal is propaganda to those masses rather than a serious legal case, that’s all you need.

This is just a silly argument.

What I think is a better argument is the one that claims that the statutory damages allowable under current law can be so out of proportion to the actual economic damage caused by this practice that they’re unconstitutional.

Under current law,
the plaintiff has a choice in these kinds of cases: seek a judgment based on the actual economic damages caused by the infringement, or accept a dollar range (normally $750-$30,000) per infringement. This provision was first enacted back in 1976 (with the dollar amounts periodically revised upward over time, originally it was $250-$10,000). It was enacted long, long before the situation we have today, and was originally intended for commercial infringement.

While I don’t think this argument will win (courts heavily defer to Congress in copyright law), it’s at least a reasonable argument, and even if it eventually loses, is far more likely to have a court say, “Hey, Congress, you need to update your laws,” much as they did in Sony.

What’s really needed, of course, is for the U.S. Congress to get some cojones and write a 21st century copyright law.


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