The case of Jammie Thomas, convicted yesterday in the United States of sharing music files, offers us a lot to consider:
1. The Recording Industry Association of America knows it can’t get enough money to offset the losses they think they have suffered, and have argued that they have launched many suits such as the one against Thomas as a deterrent. "This does send a message, I hope, that downloading and distributing our recordings is not OK," the lead attorney for the music companies that sued the woman said after the victory.
Ferocious penalties, like the $220,000 awarded to the RIAA yesterday, for an activity described simply as "not OK," have never been successful. In the 17th and 18th centuries, the English aristocracy, which had a firm grip on the government, started slapping the death penalty on such annoyances as stealing horses or sheep, cutting down trees and being out at night with a blackened face. The law became known as The Bloody Code. Public executions at Tyburn attracted thousands of gawkers. But somehow England was never rid of the thieves, scoundrels and miscreants who did things that were, um, "not OK." Thus enlightened, England started getting rid of capital offences in 1815, almost two centuries ago.
Compared to public executions, Jammie Thomas’ fine of $220,000 is way down on the discouragement scale. If public executions didn’t work, what hope of deterrence can a fine of $220,000 have?
2. I’m not concerned about Jammie Thomas going bankrupt. The saner elements of the legal profession have rallied to her defence, and will either win on appeal or gather the money from the public to help her out. My bet is she will win on appeal.
3. Chasing individual downloaders is so patently absurd that at some point the owners of the record labels — multinational tycoons who are almost totally insulated from the reality of the music marketplace —must surely notice the damage this strategy is doing to their recording businesses.
They have a way out while saving face: Declare the strategy of deterrence to have been unsuccessful, and acknowledge that sales of compact discs are falling not because of file-sharing, but that CDs are rapidly becoming extinct as a medium for music sales. That's not a strategy so much as a reality.
4. The judge’s instruction to the jury in the Jammie Thomas case appears to be as seriously flawed as Thomas’ lawyers claim. If Thomas' lawyers appeal and win, what will the RIAA do then? Continue on its merry litigious way, raking in pennies from paupers as further deterrents?
5. Yes, working for the RIAA and riding Big Music’s gravy train must be nice for the lawyers charged with making people like Jammie Thomas miserable, but at some point surely they have an obligation to recommend their bosses back off. Or is this expecting too much of the legal profession? Or will the record companies’ investors get wise and start applying pressure to the most vulnerable part of the corporate empire: Shareholder value?
Perhaps shareholders are the people who should be made aware of where their investments are going.
