News
The song is a steal at $12,000
First published in the Dominion Post, 18 October 2007
The recording industry's first major win of its kind against an individual in the fight against music piracy in the US has attracted global attention. Bell Gully's Heidi Leslie looks at the case some say is a further warning that individuals breaking the law on home computers may face tougher action.
A single mother in small town Minnesota has just been ordered to pay a whopping US$222,000 (NZ$291,000) for breaching copyright over the download of 24 songs in a case that is being watched by industry and authorities globally.
The decision is being seen as a landmark one in the global recording industry's drive to combat online music sharing - not just by big-time music pirates but individuals at home - and it's particularly notable by the size of the damages - US$9250 (NZ$12,000) for each tune.
In the first lawsuit of its kind to go to trial, the Recording Industry Association of America (RIAA) has been successful in its case against Jammie Thomas (30) who has been ordered by a jury to pay the US$222,000 in damages for breaching the US Copyright Act. Jammie committed the breach by "making available" music by the likes of Aerosmith and Gun'N'Roses online.
Just this week she lodged an appeal against the size of the damages but not the jury decision itself - reinforcing the potential ramifications for other would-be file sharers.
However, even if her appeal is successful, Jammie likely faces damages of at least $18,000. The United States Copyright Act allows for claims of "statutory damages" rather than actual damages and these can range from a minimum of US$750 to a maximum of US$30,000 per infringement "as the court considers just". The RIAA elected to recover statutory damages and, in this case, the jury went for an amount in the bottom third of the range, awarding damages of $9,250 per song or $222,000 for all 24 songs.
Could this happen in New Zealand?
New Zealand's Copyright Act doesn't set out statutory minimum or maximum damages but it does allow for civil court action to be taken where damages must be proven. This means that standard common law considerations of loss and contribution would be used to determine the level of damages.
As a result, damages in New Zealand could in theory exceed $30,000 per infringement but in practice this is unlikely, especially when the infringer is an individual like Jammie Thomas who didn't profit from her actions, rather than someone engaged in a large piracy operation for profit.
The Sione's Wedding case is a good example. Earlier this year Freddie Junior Higgins was found guilty of stealing a pre-production copy of the movie Sione's Wedding and distributing it. The New Zealand Federation Against Copyright Theft said at the time that South Pacific Pictures estimated that the pirated copies of the film cost the company $300,000 in lost box office returns and $200,000 in DVD sales. However, it appears that South Pacific Pictures didn't sue for damages. Higgins did not walk away without paying for his crime - he was sentenced to 300 hours of community service for theft under the Crimes Act and for distribution of copies under the Copyright Act.
Whether the Jammie Thomas case sets off a chain of large awards for damages overseas will be watched with interest - as will the outcome of her appeal.
