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The defunct file-sharing service Limewire is facing off with the record labels this week in front of a New York jury, and reports from the courtroom are relaying passionate arguments on both sides. The record label want to get a damage verdict greater than $1 billion, and Limewire will be hard-pressed to limit the damage to something that isn’t financially devastating to its founder, Mark Gorton.
The record industry wants to make a powerful example out of Gorton, and is demanding the maximum damages from the company and its founder–which would be $1.4 billion, according to CNET’s reporting from the courtroom. That’s far more than Gorton has, although he is wealthy–the RIAA’s lawyer made sure to mention to the jury that Gorton has a $100 million retirement fund and a fancy Upper West Side home.
Limewire lawyers said the service was being treated like a “scapegoat.” Record sales were dropping before Limewire took off, and in any case, file-sharers have been able to switch easily from one service to another since the dawn of the Internet. Gorton shouldn’t have to pay anywhere near the maximum damages, argues his lawyer, Joseph Baio. “Music that is free is here to stay,” he told the nine-person jury. “The consumer has won.”
The lawyer representing the record labels, Glenn Pomerantz, told the jury that what Gorton did was tantamount to stealing–and Gorton knew it. He designed Limewire so that he could pretend like he didn’t know illegal file-sharing was going on, working hard to establish “plausible deniability.” Pomerantz told the jury that Limewire had kicked off “the biggest theft of music in the history of the world,” according to a report in Courthouse News Service.
How will these competing narratives go over with the jury? It’s always hard to say, but I wouldn’t bet on Limewire in this situation. This is only a trial focused solely on damages–Limewire has already been found to be guilty of copyright infringement, and the jury has been told that. Juries in such a situation, knowing that a judge has already evaluated the case and favored one side, can sometimes be prone to judge somewhat harshly–consider the multiple tough judgments against the two individual file-sharers that have gone in front of juries, Joel Tenenbaum and Jammie Thomas. In addition, the RIAA is making emotional and moral arguments about right and wrong, which are easier to grasp than the economic arguments that Limewire is making.
In a sense, Limewire’s argument to jurors has to be “We know we’re bad, but come on, we’re not that bad.” It’s tough to make that argument in a compelling way. If Baio manages to limit the damage here, it will be impressive.
The jury, composed of eight women and one man, appears to be mostly middle-aged, according to CNET’s Greg Sandoval. That doesn’t favor Limewire either, since those more familiar with file-sharing–and perhaps sympathetic to it–tend to be younger and male.
The judge notified lawyers on Wednesday that the trial could last four weeks, which seems to me like a long time. I’ve seen complex patent cases argued to juries within six or seven days, so holding a four-week trial for a case that isn’t that complicated seems like it could be overkill. But judges do have great discretion in scheduling matters.