The (Fluctuating) Cost of Free Music

Submitted by patentadmin on Wed, 12/12/2012 - 11:46

Over three years ago, we first told the story of Jammie Thomas-Rasset, who was found guilty of copyright infringement over 24 songs she had downloaded and shared via the Kazaa file-sharing service.

Initially hit with a $222,000 judgment for damages, Thomas appealed and was hit with a $1,920,000 judgment in her second trial. She appealed again, and the damages amount was reduced (but not by much) to $1.5 million. The $1.5 million verdict was then slashed to $54,000, which is much better but still pretty overwhelming for Thomas, a Native American and mother of four who works as a "natural resources coordinator" for a band of Ojibwe Indians.

U.S. District Court Judge Michael Davis has overturned jury decisions against Rasset-Thomas three times now. He ruled that the initial $222,000 fine was "disproportionate t the damages suffered" by the RIAA. When the second trial brought her a verdict of $1.5 million, Judge Davis called the award "appalling," "severe and oppressive" and "obviously unreasonable."

"In this particular case," he wrote in the verdict, "involving a first-time willful, consumer infringer of limited means who committed illegal song file-sharing for her own personal use, an award of $2,250 per song, for a total award of $54,000, is the maximum award consistent with due process. This reduced award is punitive and substantial. It acts as a potent deterrent.”

That was a year and a half ago. Given the wild fluctuations in the amounts of the jury awards against her, you might think that Thomas-Rasset would stop while she's ahead (and $54K, while it may seem excessive for a measly 24 songs, beats the heck out of $1.5M).

But instead Thomas-Rasset is still at it, and has petitioned the U.S. Supreme Court to hear her case. The petition argues that her due process rights were violated because the Copyright Act doesn't provide for an "abuse of discretion" review of damages awards. Thomas-Rasset believes that the damages penalty imposed on her represents not so much a punitive measure for her own acts of infringement, but as a deterrent to others.

And her lawyers point out in a statement that precedential Supreme Court cases from the 1990s and 2000s could lead to a more favorable verdict for Thomas-Rasset, if only the Supremes will hear her case:

"In those cases, Thomas–Rasset argues, the Supreme Court held that damages imposed in a civil case must bear a reasonable relationship to the actual injury inflicted on the plaintiff by the defendant. Because the damages in her case seek to punish her for file-sharing in general rather than her own conduct in particular, Thomas–Rasset contends
that those damages are unconstitutional under these cases."

We'll be watching this case in 2013 to see whether Thomas-Rasset gets her chance to be heard by the Supreme Court, or if the Supremes turn her down and she has to just face the music and dance.

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