O.K. Let me first say I'm sorry for the lack of postings for the last few months. I have had a lot on my plate this past 6 weeks, for which I will spare you all the details. But I promise I am going to make up for the missing posts over the remainder of the summer.
For those of you who have been following the Jammie Thomas-Rasset saga, a jury has yet again found her guilty of willful copyright infringement--this time, however, they have awarded the labels who sued her $1.92 million. (For those of you unfamiliar with this case please Click here and here.) In her prior trial, which was overturned by the trial judge for an erroneous jury instruction, Ms. Thomas-Rasset was ordered to pay $222,000 in statutory damages. This recent result greatly increases the stakes of this very dramatic test case.
There are so many interesting facets of this case, it is hard for me to pick one to blog upon. One of the recent plot twists that caught my attention was the post-judgment statements of the Recording Industry representatives. The Associated Press has reported that the RIAA has made statements that settlement is still a possibility (see the second link above).
While I believe that such a settlement would be in all the parties' best interests, it will not be in the best interests of the law. Why might a settlement between two private litigants not be in the best interest of the law? Because such settlement agreements almost always contain a clause requiring the defendant (Ms. Thomas-Rasset in this case) to waive any right to appeal the verdict and in return she will have to pay a small amount (around the $3,000 to $5,000 others have paid to settle their file-sharing cases) to the Plaintiffs. Such a settlement will keep the constitutional issues of whether such extremely large statutory-damage awards, ones that are disproportionately large compared with the actual damage done by the file sharing, are unconstitutional.
Many of us in the legal community have been eagerly awaiting a copyright case of sufficiently high statutory damages to trigger an appellate battle that could get the attention of the U.S. Supreme Court. There is little in the way of case law to offer guidance to the intellectual property bar or the trial judges. This could indeed be the case that settles this important constitutional issue--but only if Ms. Thomas-Rasset is willing to continue the fight. Part of me hopes she will and part of me hopes she will come to her senses.