Monday, June 29, 2009

Is Jammie Thomas-Rasset still refusing to settle?

Sounds like it. Reports CNET's Greg Sandoval:
Just a couple days after Thomas-Rasset was found [liable for] willful copyright infringement and ordered by a jury to pay $1.92 million, attorneys with the Recording Industry Association of America called to ask whether Thomas-Rasset was willing to discuss a settlement, a spokesman for the RIAA said Monday.

Thomas-Rasset's lawyers responded that she wasn't interested in any deal that required her to pay any money or admit any guilt, according to the RIAA's spokesman. That was the same response the 32-year-old Minnesota woman gave after a jury decided against her in October 2007.

Contacted at his office on Monday evening, Joe Sibley, one of Thomas-Rasset's attorneys, told CNET News that he wasn't aware of any settlement talks but needed to ask his law partner.
How often does a plaintiff who just won a huge award at trial run to the defendant and offer to settle? And how often does a defendant who was just ordered to pay $1.92 million blow off the chance to settle for what I suspect is a tiny fraction of that? I'm still betting that Thomas-Rasset will come to her senses and settle. Even if bankruptcy can protect her from the judgment -- no sure thing -- that route is no picnic.


  1. Actually, I think bankruptcy may well be much less a picnic for the labels than for Ms. Thomas-Rasset. Those who are interested in the law on this subject may want to consult a memo I prepared for EFF on the topic that I recently revised.

  2. Fred -- even given your analysis, BK still seems like a bad option for JTR. She has basically 2 choices:

    1) Settle at what I would guess would be about a 99% discount from the judgment currently hanging over her head; or

    2) File BK and ruin her credit, and then: go through a whole other proceeding to determine whether her infringement was "willful" within the meaning of the BK code (which she might lose, in which case the $1.92 would be nondischargeable), or possibly the BK court could disagree with your analysis and simply conclude that "willful" in the Copyright Act means the same thing as "willful" in the BK code, in which case the $1.92 would be nondischargeable as well.

    True, we don't know either the labels' current settlement offer, or JTR's precise financial situation (she's not rich, but not destitute either). I still think she's better off settling than going into a BK proceeding where the huge debt she faces is not even certain to be erased.

  3. Despite what one must admit are some unfortunate choices by Ms. Thomas -Rassett, I feel she actually has a fairly strong case, and I hope that those who support reasonable copyright infringement awards will support her. The actual damages, in the case of most of the songs in question -- which are readily available on iTunes or other legit services -- should not be more than 99 cents per song. One could argue that this should be multiplied by some hypothetical representing the file sharers who obtained these songs -- but since anyone who obtains such a song could, in fact, share it again, this would rapidly lead to a "reductio ad absurdum" -- one could hold Ms. Thomas - Rassett liable for every fileshared song downloaded by anyone during the time these songs existed on her family's account -- an amount even higher than the award which a jury has, clearly for punative reasons, awarded.

    Nothing in current copyright law -- especially the ill-named "Digital Millenium" act -- anticipates or realizes the consequences of the current situation. There is no physical "product" to be stolen; once downloaded and shared, there is no physical limit on further sharing; what's more, the recording industry itself now makes a large percentage of its current and back-catalog titles available via iTunes or eMusic without any DRM protection at all. In fact, the lack of the protection makes the music more marketable, more "valuable" in fact -- and will eventually render file-sharing a moot point, as the vast majority of consumers will consider it less onerous to pay 66 or 99 cents than to spend hours trolling filesharing sites.

    The RIAA's real problem is that, in essence, it represents a distribution model, a business model, which is rapidly ceasing to exist. It may once have been about legitimate copyright concerns, but it is now rather like steamship companies suing airlines for getting people where they want to go much faster.

    I teach Media Studies and we often have healthy classroom discussions of this issue -- the ultimate verdict, most of my students agree, will be in favor of something much closer to what the EFF has argued for than what the RIAA invokes.


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