No Appeal For RIAA Victory
“In its reply to Thomas' motion, the RIAA argued that statutory damages need not have any relationship to actual damages. Furthermore, the group said that she had no basis to challenge the constitutionality of the damages since she had not objected to the jury instructions.
The Department of Justice agrees. "This Court may find that defendant has waived her challenge to Congress's statutory damages provision by submitting 'jury instructions and approv[ing] the verdict form that allowed the jury to consider the full range of statutory damages under the Copyright Act," the DoJ argued in its brief.
The DoJ also says that Thomas' motion ignores the fact that statutory damages are given in place of actual damages. "Statutory damages compensate those wronged in areas in which actual damages are hard to quantify in addition to providing deterrence to those inclined to commit a public wrong," argues the DoJ.
It's also impossible for the true damages to be calculated, according to the brief, because it's unknown how many other users accessed the files in the KaZaA share in question and committed further acts of copyright infringement. That's significant, because it shows that the DoJ is siding with the RIAA when it comes to the issue of whether making a file available for download on a P2P network constitutes distribution. It was a contentious issue during the Thomas trial, with the jury instructions originally stating that making songs available is not the same as distribution. The RIAA objected to that instruction, and in its final form, all the jury had to do was find that Thomas made the files available.”
We have a sneaking suspicion that we haven't quite heard that last chapter in this particular saga.