Woman challenges $1.5 million downloading verdict

By Sylvia Hsieh

The Daily Record Newswire

The lawyers for a Minnesota woman who downloaded 24 songs are planning to challenge the third verdict against her on constitutional grounds.

On Nov. 3, a jury ordered Jammie Thomas-Rasset to pay the recording industry $1.5 million for infringing their copyright on two dozen songs she shared on the file-sharing site KaZaA in 2005.

Thomas-Rasset's attorney, Kiwi Camara of Camara and Sibley in Houston, plans to file a motion with the trial judge, U.S. District Court Judge Michael Davis, alleging that the statutory damages under the Copyright Act are excessive.

"They have to bear a reasonable relationship to actual damages and can't be wholly arbitrary," said Camara.

The Act allows damages of $750 to $150,000 per willful violation. The verdict represents $62,500 per song.

Even the minimum statutory damages of $750 per song - which would total $18,000 in the case -- would be unreasonable, according to Camara, given the actual cost of $24 for downloading the songs.

Only one court has struck down an award in a music-sharing case on constitutional grounds.

In that case, U.S. District Court Judge Nancy Gertner in Massachusetts, ruled that a jury award of $675,000 in damages against a college student who shared 30 songs was grossly excessive in violation of the Due Process Clause considering he did not profit from the sharing.

She reduced the verdict to $67,500, or $2,250 per song. (Sony BMG Music Ent. v. Tenenbaum, NO. 07 CV 11446-NG, D. Mass., July 9, 2010.)

Ironically, Gertner referred in her ruling to Judge Davis' decision reducing the second verdict against Thomas-Rasset from $1.92 million to $54,000 under remitittur.

However, the recording industry rejected the judge's reduction and made a $25,000 settlement offer -- with the money going to a charity for struggling musicians. Thomas-Rasset then rejected that offer, leading to the most recent trial on damages.

While the judge's ruling on constitutional issues cannot be rejected, it can be appealed -- and odds are it will be.

"I expect whoever loses to appeal to the 8th Circuit," Camara said.

Published: Mon, Dec 20, 2010

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