Posted by Ablang on 10/14/07 02:40

RIAA Win Could Bolster Efforts Against Illegal File Sharing
Where forensic evidence shows that an individual may have illegally
shared files, it may be far cheaper to accept the RIAA settlement
offer than to try and fight it, an expert says.
Jaikumar Vijayan, Computerworld
Monday, October 08, 2007 2:00 PM PDT

http://www.pcworld.com/article/id,138136/article.html?tk=nl_dnxnws

Look for the Recording Industry Association of America (RIAA) to try
and use Thursday's courtroom victory in a file-sharing case in
Minnesota to push those it has filed similar cases against to quickly
settle, according to some legal experts.

A federal jury in Duluth, Minn. ordered Jammie Thomas of Minneapolis
to pay US$222,000 to six recording companies for illegally downloading
and sharing 24 music files with others over a Kazaa file-sharing
network. The 12-person jury said Thomas must pay $9,250 for each of
the 24 songs that were the focus of the case, the first ever of its
kind to go before a trial court.

The verdict is sure to be used "as a banner by the RIAA" in its
campaign against those it suspects of illegal file sharing, said
Charles Mudd. Jr., a Chicago-based lawyer whose firm has represented
more than 100 clients in RIAA lawsuits.

"The jury verdict will add credence to and bolster the RIAA campaign
of pursuing file-sharers," Mudd said. "I believe the monetary award
has some significant deficiencies, but nonetheless, the jury verdict
will support the RIAA in its continuing effort to pursue those it
believes have illegally stolen copyrighted music," he said.

According to Mudd, the $222,000 in damages is much higher than what
many would consider to be reasonable compensation for any real damages
that the recording companies might have suffered as a result of
Thomas' actions. Even when statutory damages are claimed, the
threshold that is typically applied is about 10-times the actual
damages caused to a plaintiff, Mudd said.

It's unclear how the verdict will influence the thousands of similar
lawsuits that the RIAA is currently pursuing against individuals, Mudd
said. But a lot depends on the individual circumstances surrounding
each case. For instance, several of the individuals that Mudd's firm
has represented in RIAA lawsuits denied they illegally downloaded or
shared copyrighted music, he said. In cases where the forensic
evidence supported that claim, it has been a relatively
straightforward task getting the RIAA to drop its claims.

But where the forensic evidence shows that an individual may have been
illegally sharing files, it may be far cheaper to accept the RIAA
settlement offer than to try and fight it, especially in light of
yesterday's verdict he said. "I don't agree with the RIAAs tactics and
I don't agree with their settlement amounts," he said. "But paying
$4,000 to settle is certainly much better than what happened in
Minnesota."

Mark Avsec, a partner at Benesch, Friedlander, Coplan and Aronoff and
a former member of the 1970s rock band Wild Cherry, said the verdict
would have a "deterrent effect to some extent" on those inclined to
indulge in illegal file sharing. "It's going to make people think
twice. It sends a message to the real flagrant file sharers that the
Copyright Act is real and if you don't settle the actions that the
RIAA is vigorously pursuing you could be liable for real significant
damages."

He also said he was not entirely surprised at the size of the jury
verdict. "Once you start asserting an action under the Copyright Act
it is quite clear what you can recover in cases like this," he said.
He noted that the law provides for statutory damages of up to $30,000
per infringement.

At the same time, without some significant changes in the music
industry, verdicts alone will do little to completely eliminate
illegal file-sharing, he said. "I can see why the RIAA is bringing
suit in terms of infringement. But the labels need to look at the
deeper problem. People are not going to spend $18 on a piece of
plastic for one song they may want. They want better value than that."

Ray Beckerman, a New York-based lawyer who represents several
individuals in RIAA lawsuits, predicted the Minnesota verdict is
likely to be set aside or overturned. "Obviously, the verdict is
disproportionate in amount. When the damage you have suffered is
$23.76 of song files that were infringed and you have a verdict of
$222,000 that is about a 10,000-to-1 ratio."

Even so, expect to see the verdict have an "emotional impact" on those
dealing with RIAA litigation he said.

"People will be afraid," he said. "When I first spoke with them two
and a half years ago, they kept talking about a case in Illinois where
they had a $22,000 judgment against a woman who admitted to
downloading songs illegally. For four and a half years, they have kept
talking about that case because that was the only one case they ever
won. The woman didn't even contest the case really, but they kept
citing that case.

"Why would they want to even mention that one any more when they have
this verdict " to talk about now, he said.

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