San Francisco - The Electronic Frontier Foundation (EFF) and a coalition of libraries and public interest groups have asked an appeals court to affirm the downsized copyright damage award in Capitol v. Thomas-Rasset – the first individual file-sharing case to go to trial.

Juries in this long-running case have come up with different damage awards against Jammie Thomas-Rasset for sharing 24 songs: one for $220,000 and then, when the case was retried, another for a staggering $1.5 million. Last year, a federal judge reduced the award to $54,000, calling the jury's verdict "so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable." However, Capitol Records did not agree and appealed the judge's ruling to the 8th U.S. Circuit Court of Appeals.

In an amicus brief in support of Thomas-Rasset filed today, EFF explains that statutory damage awards must pass constitutional due process review. Without that review, damages are incredibly unpredictable and can discourage reasonable uses of copyrighted material that involve any legal risk.

"Copyright law should encourage innovation, creativity and the dissemination of information," said EFF Intellectual Property Director Corynne McSherry. "But fear of crushing liability if you guess wrong about whether a court will decide you are protected by fair use can chill experimentation and the creation of new consumer products and services. We don't know what will be the next YouTube, Spotify, or Pandora – and we'll never know if creators of technology are scared away from developing new ideas."

EFF also asked the court to affirm the district court's rejection of Capitol's "making available" theory, which claims that a person legally "distributes" a work if she simply makes it available to the public.

"The Copyright Act is very clear: a work isn't 'distributed' unless someone actually downloads it," said EFF Fellow Michael Barclay. "In essence, the labels want the courts to give them a pass on proving a crucial part of their case."

EFF's brief was joined by the Internet Archive, the Association of Research Libraries, the Association of College and Research Libraries, the American Library Association, and Public Knowledge.

For the full amicus brief in Capitol v. Thomas-Rasset:


Corynne McSherry
   Intellectual Property Director
   Electronic Frontier Foundation

Michael Barclay
   Electronic Frontier Foundation

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