Andre Yoskowitz
20 Jun 2009 19:31
On Thursday, Jammie Thomas was found to have "committed willful violation" of the copyrights of 24 songs she shared via P2P and the jury awarded the RIAA and the media companies $1.92 million USD, equivalent to $80,000 for each song.
Quite obviously, the RIAA will never see that full amount, but thanks to a recent decision by the Ninth Circuit Court of Appeals in San Francisco, the group may not see a cent.
Ira Rothken, the US-based lawyer who in the past has represented public torrent indexers TorrentSpy and Isohunt says Thomas may be able to get out of the debt through bankruptcy court, something that was not an option until that recent San Francisco decision.
The case, Barboza vs. New Form, made it clear that "willful violation" is different in civil court than in bankruptcy court. "Now her conversation must be 'Hey, if we can't settle, I'm going to go forward and file for bankruptcy,' and they'll say 'Well, you'll have to have another trial,'" added Rothken, according to CNET.
Now, in copyright cases, "willful" must imply the defendant's intent was to cause harm, a point the RIAA did not prove in their case against Thomas.
Kathryn Bartow, a lawyer with Manatt, Phelps & Phillips, works for the major film studios, but also agrees it will be hard for the RIAA to collect the money:
"(Barboza) serves as a warning to trademark and copyright owners as well as the counsel who represent them in willful infringement cases. When presenting evidence and crafting jury instructions, beware. In willful infringement cases, to prevent an individual defendant from having its debt discharged in bankruptcy, the plaintiff should consider introducing sufficient evidence and including additional jury instructions to satisfy the Bankruptcy Code's definitions of 'willful and malicious.'"
Fred von Lohmann, an Electronic Frontier Foundation attorney, agrees the RIAA will have their hands full in bankruptcy court.
"No. 1, I'm not at all sure that they'd be interested in trying this case again," says von Lohmann. "And No.2, I'm not sure they'd win. Just because you think she did it doesn't mean necessarily that she knew and intended to harm the industry. We know that lots of people are running Kazaa without understanding that they're sharing (the music files) at the same time."
What is next is whether Thomas and the RIAA will settle, whether the RIAA will get sued over the damages on a constitutional basis, or whether Thomas will go to bankruptcy court and the RIAA will be forced to take her to court again. It seems the fun has just begun.