What separates a progressive democracy from stagnant authoritarianism is proportionality, we know that littering isn't equal in effect or damage to murder, so the punishment is proportioned to match that. We also know that in America all people should be equal before the law, with concrete evidence deciding a trial, in a situation where justice is blind from any outside influence that may affect a decision.
This case seems to break all three of these precepts, for one, the figure of $80,000 per song seems over-the-top for the crime. Two, it was openly admitted by the prosecutor Tim Reynolds that the above figure was chosen to make an example of Thomas-Rasset. And then to cap it off, the evidence of the crime seems based on very shaky waters. For one, the Record Industry Association of America (basically an affiliation between the biggest and most powerful record companies in the world) hired a company called MediaSentry to prove that the accused was guilty of copyright infringement. The company MediaSentry has been in hot water before; their tactics of attaining information can be described as dubious, at best.
Two years ago MediaSentry, again hired by the R.I.A.A, attempted to investigate students in various universities around the US. Their techniques of proving that students were guilty, involved MediaSentry visiting file-sharing sites, finding the posters of the material, then sending a ‘pre-litigation' letter to the University. These letters were not legally binding but were intended to be sent to the accused students, asking them to visit https://www.p2plawsuits.com/ where they could quickly pay $3500 for their infringement and settle their debts by credit card. Helpfully avoiding the pressures and openness of the legal system.
However, the University of Oregon fought back, refusing to send out the pre-litigation letters, and going further to allege that MediaSentry was ‘obtaining private, confidential information unrelated to copyright infringement' . A scary precedent for a company that had no license for private investigation, a must for this kind of operation.
With Thomas-Rasset, MediaSentry did the same thing. They visited the file-sharing site Kazaa, posed as any other user and then downloaded 24 songs that the plaintiff had posted. That was the sum-total of the evidence the prosecutor relied on. As Steve Karnowski from Associated Press writes
‘Although the plaintiffs weren't able to prove that anyone but MediaSentry downloaded songs off her computer because Kazaa kept no such records, Reynolds told the jury it's only logical that many users had downloaded songs offered through her computer because that's what Kazaa was there for.'
Is that how we'd like our justice system to operate? Dishing out judgments and fines, based on assumption rather than evidence? This idea sets incredibly dangerous precedents for future trials of copyright infringement. It could easily result in a first time user to a file-sharing site, posting material that only one party downloads then being lumped in with much bigger and more established posters. Proportionality, it seems is disappearing into a very sticky Web.