Jammie Thomas Challenges “Arbitrary” $80,000 p/song Verdict

Argues that there’s no way Congress had “illegal but noncommercial music downloading” in mind when it enacted the statutory-damages provision of the Copyright Act, and that the music industry cannot prove any actual damages caused by her “beyond perhaps $1.29 per song or $15 per album in lost sales.”

Jammie Thomas is appealing her sickening $80,000 per song file-sharing judgment this time making the argument that her due process rights were violated because the statutory damages awarded in the case “are punitive in purpose or effect.”

“The concerns that trigger the due process inquiry — arbitrariness, variability, and unpredictability in awards — are here in spades; of this, the nearly order-of-magnitude difference between the verdicts in the first and second trials of Mrs. Thomas is unquestionable evidence,” reads the brief filed with the court. “An arbitrary award imposed pursuant to a statute is still arbitrary.”

Her lawyer cites the wide disparity between the $9,250 originally awarded for each of the 24 illegally shared songs and the $80,000 later awarded in a retrial of the case after Judge Michael Davis said he erred in instructing the jury that simply making music available in KaZaA’s “shared folder” was the same as copyright infringement.

Also taken to task is the fact that the music industry believes Congress intended for statutory damages to have a deterrence effect on others being that when it enacted the statutory-damages provision of the Copyright Act there’s no way it could have foreseen illegal, but noncommercial downloading of copyrighted material.

It continues:

The plaintiffs were not able to offer testimony about any actual damage one to them by Mrs. Thomas’s conduct beyond perhaps $1.29 per song or $15 per album in lost sales. In fact, under cross examination, Mr. Leak testified that he could not identify the particular harm, if any, caused by Mrs. Thomas’s conduct in particular. The testimony that the plaintiffs describe in their response relates to harm to the music industry from illegal music downloading in general, not from Mrs. Thomas’s conduct in particular. It would be unconstitutional to punish Mrs. Thomas for the generalized and widespread conduct of others, whatever the effect of that conduct might be on the plaintiffs.

Statutory damages were intended to seize any profits from commercial piracy not the sort of noncommercial activity seen here.

In fact, he Supreme Court has previously ruled that “compensatory damages are intended to redress a plaintiff’s concrete loss” which in this case is a mere 35 cents — 70 cents minus 35 saved for not having to distribute it — per each illegally downloaded song. A ratio of at most 10:1 makes $3.50 for each song for a grand total of $84 dollars and not $1.92 million.

For in 2003, in State Farm v. Campbell, the court ruled that a single-digit ratio (that is, no more than 9 to 1) was appropriate as a matter of due process in all but the most exceptional cases. Anything greater is excessive and violates the Due Process Clause of the Fourteenth Amendment.

The RIAA seems mostly unconcerned with her arguments and instead focuses mainly on barring Thomas from engaging in any future file-sharing as though her tiny 24 song, perhaps 200MB at most, music folder was the single cause of its deteriorating profits.

“Two separate juries have now found that Defendant engaged in willful copyright infringement of Plaintiffs’ sound recordings. The evidence at trial showed that Defendant knew what she was doing was wrong and that she did it anyway. The evidence also demonstrated that, after Defendant was caught, she tried to conceal her infringing conduct and provided false evidence to Plaintiffs and to her own expert in an effort to avoid liability. Since the second jury verdict against her, Defendant has remained unrepentant and obstinate, and has avowed that Plaintiffs will never recover any monetary relief from her. These circumstances demonstrate that Defendant’s illegal conduct will not be restrained by mere monetary damages, and that a permanent injunction in necessary to require that Defendant simply comply with the law under the Copyright Act,” it writes in its opposing brief.

All of this wasted time and effort for what? Making sure a suburban housewife from Minnesota locks up her 24 MP3s for good? I know guys running full-time servers sporting in excess of 2TB worth of music 24/7. At the end of the day the verdict won’t have the deterrence effect the RIAA seeks because the award is so obscenely high. It’s an amount beyond the comprehension of the majority of folks out there who probably earn an average of $40-50,000 per year.

If the damages awarded had been around $10 or 20,000 people would have taken notice and perhaps deterred them from engaging in illegal file-sharing, but $1.92 million might as well have been $1.92 billion or trillion.

Stay tuned.

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