Gary Wade Leak, a Sony lawyer who was a star witness for the RIAA in the recent Jammie Thomas trial has said today that even he is “shocked” by the amount of money Thomas is now being forced to pay, a gigantic $1.92 million sum.
Speaking at an alumni event at Columbia University, Leak added: “We were shocked. I suspected we were going to win, but I really thought they would come in with a lower number.”
However, during the trial, Leak made it very clear that the jury could charge the maximum $150,000 USD per song in damages, as it would be “certainly appropriate” given the circumstances.
Leak did admit that he expects the award to be reduced either in a settlement or on appeal, and it may be pushed back to the original award of $220,000 or even less.
Result for: riaa
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.
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.’”
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Result for: riaa
Last September, Minnesota woman Jammie Thomas was convicted of sharing 24 unauthorized tracks via P2P and was told to pay the RIAA $220,000 in damages. Thomas was granted a retrial however, which has gone to verdict today.
Thomas was found to have “committed willful violation” of the copyrights on the 24 songs and the jury has this time awarded the RIAA and the media companies $1.92 million USD, equivalent to $80,000 for each song.
The defendant had been given a retrial because a judge in the original case admitted to making an error in jury instructions.
The new outcome is substantially worse for Thomas, as the penalty now stands $1.92 million compared to the original $220,000 fine.
