Here's a unique defense to a Recording Industry Association of America file sharing lawsuit: Admit liability and challenge the law under which you're being sued.

That's what a Bronx woman did Monday in New York federal court (.pdf). Denise Barker is accused of file sharing eight songs on the Kazaa network in 2004. If found liable, she faces fines under the Copyright Act of $750 to $150,000 per song.

Barker's attorney, Ray Beckerman, admitted the woman file shared and challenged the constitutionality of the Copyright Act, the law under which the RIAA sued Barker and thousands of others. The fines the act authorizes for each download is unconstitutionally excessive and against U.S. Supreme Court precedent, Beckerman said.

Beckerman, who writes the Recording Industry vs The People blog, estimated its costs the industry $3.50 per download, meaning the penalties could exceed thousands of times the actual injury to the industry. Rulings by the U.S. Supreme Court and other courts say financial punishments exceeding a 9-to-1 ratio are unconstitutional.

"It's an ideal case to litigate the damages issue. She actually did make some copies through Kazaa," Beckerman said in a telephone interview.

The RIAA has sued more than 20,000 individuals for illegal file sharing. Most of the accused settle out of court for a few thousand dollars.

Only one case has gone to trial.

In that case, A Duluth, Minnesota jury last year ordered Jammie Thomas to pay $222,000 for file sharing 24 songs on Kazaa. She denied her guilt and challenged (.pdf) the constitutionality of the Copyright Act after she was found liable in October.

The Bush administration weighed-in, urging Judge Michael Davis to uphold the penalty.

A hearing in Thomas' case was set for Monday, where the arguments instead are expected to focus on the so-called "making available" argument.

The RIAA claims that file sharers are liable for infringement solely for making available copyrighted works of music on peer-to-peer file sharing networks. Among the reasons the RIAA makes such an argument is because it's technologically impossible to know if a file sharer's music has been downloaded by somebody who has not been authorized to copy it.

The judge in the Thomas case is considering ordering a new trial. He's concerned that he erred when he instructed jurors in October that the "making available" argument amounted to unauthorized distribution.

Illustration courtesy chazlarson

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