Jammie Thomas asks for new trial
Update 5:48 p.m. PT: To include quotes from Thomas Rasset's attorney.
Jammie Thomas-Rasset, the Minnesota woman found liable for willful copyright infringement of 24 songs last month, has asked a federal court for a new trial or a reduction in the amount of the $1.92 million damages she was ordered to pay.
Thomas-Rasset, who a jury found liable for willful copyright infringement, asked the court Monday to either alter or amend the judgment, remove or change the award of statutory damages to the minimum, or give her a new trial. The minimum damages would be $18,000.
Joe Sibley (left) and Kiwi Camara, attorneys for Jammie Thomas-Rasset.
(Credit: Camara & Sibley law firm)"(The $1.92 million) judgment is grossly excessive and, therefore, subject to remittitur as a matter of federal common law," her lawyers wrote in the filing with U.S. District Court for the district of Minnesota. "Moreover, such a judgment is inconsistent with the Due Process Clause of the United States Constitution."
In 2007, the Recording Industry Association of America accused Thomas-Rasset, 32, of copyright infringement. The trade group for the four top recording companies initially accused her of sharing 1,700 copyright songs--the equivalent of 150 CDs--but the RIAA whittled down the number to 24. A jury heard the proof against her as well as her defense, which boiled down to her denying any wrongdoing, and rendered a $222,000 verdict against her.
That decision was thrown out by the judge after he acknowledged erring in his jury instructions. Last month, Thomas-Rasset's retrial again saw 12 jurors decide against her. This time, however, they awarded damages of $80,000 for each of the 24 songs she was accused of sharing.
The $1.92 million award outraged many, and last week, Joe Sibley, one of her attorneys told CNET News that she would appeal on the constitutionality of the damages. He said Monday night that he and and legal partner Kiwi Camara still intend to file the appeal but have some time before the deadline.
Jonathan Lamy, an RIAA spokesman declined to comment on Monday, but last week, following Sibley's statement that Thomas-Rasset would appeal, Lamy said: "What's increasingly clear, now more than ever, is that she is the one responsible for needlessly prolonging this case and refusing to accept any responsibility for the illegal activity that two juries decisively found her liable for."
In the filing, Sibley and law partner Kiwi Camera once again took aim at the evidence gathered on behalf of the RIAA by MediaSentry, the Web sleuths that gather evidence of copyright violations for entertainment companies. MediaSentry did so for the RIAA in the case of Thomas-Rasset.
Sibley and Camara argued that the evidence submitted by MediaSentry is inadmissible because it was collected through illegal means. In Thomas-Rasset's retrial, she alleged that MediaSentry violated private investigator and wiretap statutes in the states in which it operated.
The judge in the case denied her original motion to suppress the evidence. Finally, Thomas-Rasset's attorneys wrote that the courts must distinguish between commercial and non-commercial forms of copyright infringement when assessing penalties.
"Even the plaintiffs were shocked by the verdict," Thomas-Rasset said in her motion. "No one could have expected $1.92 million for 24 songs. That alone justifies remittitur; at a minimum, Mrs. Thomas should not be subjected to a penalty that no reasonable person could have expected would flow from the noncommercial music sharing of which she stands convicted.
"But the verdict reveals a deeper problem with the statutory-damages scheme of the Copyright Act as applied in cases like Mrs. Thomas'. The Act does not distinguish, in determining the range of statutory damages, between commercial and noncommercial infringers, between those who infringe for great profit and those who do so for personal use."
Corrected at 4:40 p.m. PDT: The document filed by Thomas-Rasset's attorneys on Monday was a motion for a new trial.
Greg Sandoval covers media and digital entertainment for CNET News. He is a former reporter for The Washington Post and the Los Angeles Times. E-mail Greg, or follow him on Twitter at http://twitter.com/sandoCNET. 
The $222,000 judgement against Jammie Thomas was high, but $1.92 million against a single mother with no means to pay the award, surely is excessive by any reasonable measure. Hence, the gift the jury gave to Jammie Thomas and her legal defense.
The US Constitution applies to all laws, not the least of which, the entire US Code, Title 17- Copyrights, Chapter 5 - Copyright Infringement and Remedies, Section 504 - Damages and Profits, and Section 506 - Criminal Offenses.
And, at last, if you don't believe me, you can read Ars Technica: http://arstechnica.com/tech-policy/news/2009/06/whats-next-for-jammie-thomas-rasset.ars
Or, if you're still in doubt, you could have read the original article by Greg Sandoval, and noted that the lawyers filed for an appeal in the FEDERAL District Court, based on lack of DUE PROCESS...otherwise known as a guarantee provided by the 5TH AMENDMENT of the United States.
The copyright act provides for statutory damages. The jury followed the laws and for the Supreme Court to intervene is extremely unlikely to say the least. The Supreme Court will get involved if the damages award is incorrect as a matter of law (as it was in the Exxon case in 2008 Exxon v. Baker), but with these statutory damages being so clearly defined in the law that's not a problem. Again there's a big difference between the 8th amendment and finding that a judgment violated the law.
1996, BMW of North America v. Gore, the Supreme Court DID rule against excessive punitive damages that was awarded by the jury.
Under cross examination, the RIAA's own witness couldn't come up with any way to determine the amount of damages. In previous interviews, lawyers for the record companies admitted as much, as not being able to determine how much actual damage P2P users cause.
So let's do a little math. The actual cost to the RIAA, per downloaded song (if you exclude a retailer's profit) is closer to $0.30 ~ $0.80 per song, depending upon the label, which would give you a calculated number of over 100,000 people accessing Jammie Thomas' computer for ONE song (based on the $80,000 award). Multiply that by the number of songs and the number of bytes in an average MP3 file @ 128 Kbps bitrate of 4MB. Then assume she had a 4 Mbps connection. She would have had to keep her folder open 24 hours a day for 212 days continuously for 100,000 downloads each of 24 songs, no interruptions for surfing the internet.
If that's not unreasonable - remember this is NOT a punitive award - then I don't know what is.
and on top of that, 2 million dollars for 24 songs? 2 million?! that is far too much. the time doesn't equal the crime in this case. make her pay a measily 30 bucks and call it a day. if the case is she shared these songs with others, then prosictute them. i mean where do you figure she got the songs from? it's peer to peer sharing.
and i dont need a job. i'm very well off thank you.
it's a matter of justice.
what penalty represents the crime.
and to hope evils upon another person is just cruel.
you are ignorant for your statement
@mike
Do you get paid per personal attack? A reasonable argument made discussing excessive fines and you RIAA shills come out of the woodwork.
While I am sure there are still folks out there sharing music, I'm not sure why anybody even bothers any longer. One can buy a song from Amazon, iTunes, and elsewhere for $1 now. If folks are unwilling to do that, there is little the RIAA will be able to do. There will always be a certain number of people engaging in file sharing. It's a total and complete waste of time trying to chase down individuals like this. Even if they are able to "make an example" out of her, most people sharing files are probably entirely unaware of this lawsuit and ... so on it goes.
Just look at the picture of Joe Sibley and Kiwi Camara. They sure are happy with themselves having sold this woman down the river.
Death to the original intent of copyright laws...long live the corporate right to control your life!
A. Why do you assume that she is GUILTY?
B. The RIAA nearly 10 years ago said that an MP3 player (the Rio MP3 player) was a product that infringed upon copyrights. It seems that the RIAA can be wrong. But maybe the manufacturers should have caved in and stopped making MP3 players, huh? After all, that was written in the US Code Copyright section.
C. So what if P2P monitoring has been going on for a decade? There are serious concerns about HOW the RIAA has been allowed to make a showing of evidence WITHOUT actually showing that other people had downloaded a single file. What the RIAA has said - and has been accepted by some judges - is that simply showing that files existed in a public folder, is proof enough that a copyright was violated.
D. The RIAA probably knew that suing was not effecting change, and therefore recently announced changes to their strategy...by engaging ISPs to cut off users. Again, the RIAA is trying to find ways around due process, by skipping the court's rules of evidence, and pushing ISPs to act as their agent of enforcement.
As you're well aware of, copyrights dictate how we use media including newspapers, magazines, books, movies, radio including music, television, and the internet (where much of this media is now distributed). Therefore, if we do not agree with the Sonny Bono Act that declared 120-year lifespans of copyrights - nevermind that the original 1790 copyright law had a 28 year limit - we should simply stop reading magazines, books and newspapers, stop watching movies and television, and stop listening to music, including live music of cover songs, or going out to eat at restaurants that pipe in music from CDs (a violation of copyright laws).
As Moby recently posted, "the riaa needs to be disbanded."
Or as Chuck D of Public Enemy once said about the RIAA's lawsuits, "those scare tactics are pure Gestapo."
And as noted last year by Don Reisinger, the RIAA in fact argued that artists should "accept less money in order to keep the whole industry alive."
That's who you're defending, and who you think Jammie Thomas should have settled with.
A. I assume she's guilty because she's been found to be guilty by two juries. What more does she need? What defense has she not aired?
B. The RIAA interpreted laws in its own favor. Who doesn't? Rio brought a suit and won on time/place shifting. They could have folded but didn't and they got to sell a product. It's a trade off.
C. Since P2P monitoring has been happening for so long, she should have known not to download this music. She knew she was doing something wrong and should have known that she was being watched. Hence she's now being punished
D. Lawsuits are a big waste of time. The RIAA is skipping the courts which are not effective for anything other than legal bills. Go start a business as I have and spend money and time in a single lawsuit.
Regarding your other post, so you want to have your cake and eat it too. First you want to consume all these nice corporate media products, but at the same time you want to abolish big media. It wouldn't be hard to avoid big media if you tried.
There are plenty of independent publishers, indie music groups, independent news outlets, geez. If big media made me this unhappy I would just stop interacting with it. It sure isn't going to go away just because you want it to.
This lady has nothing to lose by dragging it out.
The RIAA is a criminal organization that produces nothing, gives nothing to those it claims to represent and has turned off the majority of people. They are no longer required, just another bloated middle man selling an artificial and third rate product.
- by BantryBay July 30, 2009 10:05 AM PDT
- What part of stealing does this woman not understand. Everytime she appeals she loses, as she should. Maybe jailtime will cool her heals and make her think for once in her life.
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