Kazaa File Sharer Gets Help Fighting Capitol

     (CN) - Imposing a $1.5 million fine against a woman who shared 24 songs is excessive and stifles innovation, a coalition of libraries, public interest and online privacy advocates told the 8th Circuit.
     In a joint amicus brief filed Friday, the Electronic Frontier Foundation, the Internet Archive, the American Library Association and others urged the St. Louis-based federal appeals court to accept a reduced damage award against Jammie Thomas-Rasset.
     Capitol Records sued Thomas-Rasset in 2006 for posting songs by bands like Aerosmith and Green Day on the peer-to-peer file-sharing program Kazaa.
     Marking the first individual file-sharing action to go to trial, Thomas-Rasset was initially fined $220,000 for 24 songs that had been downloaded from her account.
     But the judge convened a retrial, and a third jury ultimately awarded Capitol $1.5 million in damages. The judge reduced that figure to $54,000, calling the verdict "so severe and oppressive as to be wholly disproportionate to the offense and obviously unreasonable."
     Capitol is appealing for more money, but the Electronic Frontier Foundation and others have come to Thomas-Rasset's defense in favor of the reduced award.
     The amicus brief argues that damage awards must pass constitutional due-process review. Without that review, damages can be unpredictable and can discourage Internet users from reasonably using copyrighted materials.
     "Excessive (and unpredictable) statutory damage awards can stifle creativity and innovation that involves even a small risk of copyright liability," according t othe brief authored by Corynne McSherry, the intellectual property director at Electronic Frontier.
     "That chills, in turn, reasonable uses of copyrighted material, especially in the digital environment," the brief continues.
     McSherry also asked the court to reject Capitol's theory that making a copyrighted work available to the public is the same as "distributing" it. Her colleague, Michael Barclay, echoed that argument in a statement on the foundation's website.
     "The Copyright Act is very clear: a work isn't 'distributed' unless someone actually downloads it," Barclay said. "In essence, the labels want the courts to give them a pass on proving a crucial part of their case."
     Public Knowledge, the Internet Archive, the Association of Research Libraries, the Association of College and Research Libraries, and the American Library Association co-signed the brief.