Music Pirate Mom Deserves a New Trial

Attorneys for Jammie Thomas-Rasset, a Minnesota mother of four slapped with a $1.92 million fine by a federal jury last month for illegally downloading 24 songs, have filed a request for a new trial.

They're right to request one because the judgment against the music-sharing mom was ridiculous.

The award for damages-which comes out to $80,000 per song-"shocks the conscience and must be set aside," Thomas-Rasset's lawyers wrote. They're asking the U.S. District Court of Minnesota to take one of three actions:

1)     Toss out the statutory damages, which Thomas-Rasset's team claims are based on an unconstitutional provision of the Copyright Act.

2)     If the statutory-damages provision of the Copyright Act is deemed constitutional, the jury's application of it was "excessive, shocking, and monstrous," and the fine should be reduced to $18,000.

3)     A third jury could set an even lower fine.

Last month's trial was actually a retrial of an October 2007 case in which Thomas-Rasset was found guilty of copyright infringement and ordered to pay $222,000-or $9250 per song downloaded and shared via a peer-to-per file sharing network. That verdict was later overturned by a U.S. district judge.

In their bid to toss out the most recent judgment, Thomas-Rasset's lawyers accurately point out that the fine doesn't match the crime:

"The statutory damages awarded in this case - which are nearly an order of magnitude greater than the statutory damages assessed in the first trial - bear no reasonable relation to the actual injury suffered by the plaintiffs. The damages awarded are grossly in excess of any reasonable estimate of that injury. The plaintiffs did not even attempt to offer evidence of their actual injuries, seeking, instead, an award of statutory damages entirely for purposes of punishment and deterrence."

As my PC World colleague J.R. Raphael wrote last month, the damages of $1.92 million are not only disproportionate, they're unconstitutional:

"The Supreme Court has previously indicated that 'grossly excessive' punitive damage awards are a violation of the U.S. Constitution. An award can be considered "grossly excessive" if there's too big of a gap between the actual harm done and the amount of money being named. Courts can also consider the 'degree of reprehensibility' of the defendant's actions, along with how the penalty compares to similar ones issued in the past."

Furthermore, the jury was grated too much leeway to determine the appropriate fine, which should range from $750 to $150,000 per violation, according to U.S. copyright law.

Digital rights watchdog groups like the Electronic Frontier Foundation believe juries aren't given useful guidelines on how to determine appropriate fines, a problem that leads to absurd damages like in the Thomas-Rasset case.

Will the Minnesota pirate mom get a new trial? Let's hope so. But let's also hope the new jury gets better instructions this time around. Or better yet, the Recording Industry of America (RIAA) could simply settle out of court with Thomas-Rasset for a few thousand dollars, the same approach the industry group has taken with other pirates in recent years.

Contact Jeff Bertolucci via Twitter (@jbertolucci) or at jbertolucci.blogspot.com.

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