Last-Ditch Effort to Scuttle RIAA File Sharing Verdict | Threat Level | Wired.com

Last-Ditch Effort to Scuttle RIAA File Sharing Verdict
By David Kravets August 31, 2009
Jammie Thomas-Rasset

Much of Jammie Thomas-Rasset’s legal arguments following this summer’s $1.92 million Recording Industry Association of America file sharing jury verdict against her don’t have much weight or precedent.

Clearly, that a jury in June ordered her to pay $80,000 for each of the 24 music tracks she infringed on Kazaa is outrageous and shocks the conscience – and there’s no rational relationship between the amount of harm suffered by the recording industry and the award granted.

Thomas-Rasset wass the nation’s first sharing defendant to go before a jury. The RIAA has filed more than 30,000 lawsuits targeting individuals, and most have settled out of court.

That said, in their latest court papers, (.pdf) Thomas-Rasset’s legal team again is sticking to the argument that the whopping jury award is a due process violation – all in a bid perhaps to secure a third trial. (The first ended in a $222,000 judgment against the Minnesota woman, but a mistrial was declared after the judge conceded he gave faulty jury instructions)

Still, it is true that the U.S. Supreme Court and the lower courts have repeatedly reduced lofty jury awards based on so-called due process breached. But those were punitive damages awards, not statutory damages awards.

Those punitive damage reductions, including the Exxon Valdez oil spill disaster, do not apply to Thomas-Rasset’s case – although Thomas-Rasset’s defense team suggests there’s always a first.

Punitive damages are the amount a jury awards to punish conduct of an offender. Up until recently, there generally has been no limit. But the Supreme Court has suggested that punitive damages should be limited to about no more than 10 times the amount of actual damages a jury awards.

Higher ratios, the courts have said, are due process breaches because defendants have no notice ahead of time about the lofty financial consequences of their actions.

But the law is crystal clear when it comes to the Copyright Act, the law under which the RIAA sued Thomas-Rasset. Juries can award up to $150,000 per violation. Punitive damages do not fall under the Copyright Act.

One of the only points in Thomas-Rasset’s brief that makes a compelling argument is that the Copyright Act, when amended in 1999, didn’t conceive of non-commercial cases the RIAA has been bringing the past six years.

“The notion that Congress decided that the award of statutory damages in this case was somehow appropriate or tailored to ensure deterrence is a fiction that the plaintiffs would have this court adopt. The Congress that enacted the statutory-damages provision of the Copyright Act could not have had the kinds of illegal but non-commercial music downloading here at issue in mind,” defense attorney K.A.D. Camara argues in recent briefs.

It’s true: There’s no doubt that a $1.92 judgment over $24 worth of music provides the clearest example yet of the abuses made possible by the 1976 Copyright Act, which Congress modified in 1999, at the behest of Hollywood and the recording industry, to carry a maximum penalty for a single infringement of up to $150,000.

That statutory penalty was intended to bankrupt large-scale commercial pirating operations, like organized DVD and CD bootleggers — not to put individuals like Thomas-Rasset in debt for the rest of their lives.

Still, the RIAA is crying foul.

After Thomas-Rasset refused to settle out of court, the industry is now demanding that Thomas-Rasset pay up. The RIAA is also seeking U.S. District Judge Michael Davis to issue an injunction barring her from future file sharing.

“Plaintiffs’ evidence showed that defendant knew what she was doing was wrong, that she did it anyway, and then lied about it for years. Through two trials, defendant still shows no remorse whatsoever for her actions and has made it clear that she has no intention of ever satisfying any portion of the judgment against her,” Timothy Reynolds, the RIAA’s attorney, wrote (.pdf) Davis.

Judge Davis of Minnesota could rule on the retrial and injunction issue any time.
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