RIAA File-Sharing Suit Will Go To A Third Trial

The RIAA’s suit against Jammie Thomas-Rasset for sharing music files looks like it is headed for a third trial. In order to avoid this trial, Thomas-Rasset would have to accept the settlement offered by the RIAA. Her lawyers have stated that she will not accept it, reports Wired, making another trial likely.  The lawsuit has attracted critical attention because of the massive damages awarded in two earlier trials, and because it is part of a larger RIAA lawsuit campaign against music file-sharing. Thomas-Rasset was the first U.S. defendant in this campaign to take her case to trial.

Timeline

The first trial took place in 2007. A jury found that Thomas-Rasset (then simply Thomas) had “willfully” infringed and held her liable for $222,000 in damages. That figure came from a penalty of $9,250 per song, out of the $150,000 per song maximum permitted by the Copyright Act .

Thomas was granted a retrial because of a jury instruction that making a copyrighted file “available” was sufficient to show infringement. Federal Judge Michael Davis, who presided over the first trial, came to believe after appeal that his jury instructions were incompatible with Eighth Circuit precedent. Citing National Car Rental System, Inc. v. Computer Associates International, Inc. (8th Cir. 1993), Judge Davis decided that the plaintiff had to show that defendant actually shared a file with a third party, rather than simply making the file available for sharing.

In the second trial in 2009, Judge Davis set aside a jury award of $1.92 million, calling it “monstrous” and pointing out that Thomas-Rasset did not make a monetary profit from her infringement. Davis reduced the damages to $54,000, allowing the parties to accept the award or proceed to a third trial.

The RIAA not only accepted the damages, but reduced them further in a settlement offer of $25,000. The RIAA’s terms allowed Thomas-Rasset to pay the award in installments to a fund for musicians. As a condition for the settlement, the RIAA said the judge would have to vacate his remittur (reduction) of the jury award.

Thomas-Rasset’s lawyers have announced her intention to reject this and any other settlement offer that requires her to pay damages. The RIAA’s deadline for accepting the offer was last Friday, January 29th.

Issues

The major issue raised in this case is the constitutionality of the awards against Thomas-Rasset—and, by implication, future file-sharers like her. She intends to challenge the constitutionality of not only the $1.92 million jury award in the second trial, but also the judge’s reduced award. Even the reduced award, her lawyers contend, is unconstitutionally excessive: it is 2,250 times the usual $1 price of a downloaded song.

The RIAA is adamantly opposed to any finding that the judge’s awarded damages are unconstitutional. Moreover, the RIAA is trying to vacate the judge’s remittur because it is keen to prevent any precedent allowing judges to reduce jury awards in copyright infringement cases. That is why the vacature (making the original judgment legally void) of the remittur was the sole—and firm—condition of its settlement offer. For its absolute insistence on this point, the RIAA has been accused of bullying. Joe Sibley, one of Thomas-Rasset’s attorneys, recently described the situation as the RIAA trying to “scare” people into paying “exorbitant” damages. Nevertheless, the RIAA continues its attempt to vacate the remittur and thus keep the legal door open for million-dollar damages awards in file-sharing cases.

This trial raises another issue, namely what exactly it takes to prove infringement against a particular individual. Proving that songs were shared from a particular computer or IP address is often simple. However, proving that a particular user of that computer was the infringer is a different matter. Here, the files were shared from Thomas-Rasset’s password-protected computer at her IP address, using a username she had used for a number of years. The two juries evidently found this compelling evidence of Thomas-Rasset’s guilt, although Thomas-Rasset’s lawyers argued that anyone could have used the computer and username in question. Judge Davis was not convinced by and did not approve of Thomas-Rasset’s attempts to suggest that her children or ex-boyfriend infringed using her computer. The defense lawyers argued that alternative explanations were possible, and that MAC and IP addresses (identifiers for a particular computer that are transmitted during file-sharing) can be spoofed, though they offered no evidence that this had happened here.

Possible Future Developments

Wired recently described the RIAA as “winding down” its lawsuit campaign against file-sharers and shifting its efforts to getting internet access to infringers cut off. But there are still loose ends. Thomas-Rasset insists on going to a third trial rather than accepting a settlement. Therefore, it is still unclear whether there will be the precedent of a judge setting aside a jury award in a copyright infringement case will stand. That will depend on the outcome of the third trial.  Additionally, Thomas-Rasset’s challenge to the constitutionality of the judge’s award is still unresolved.

Furthermore, a second infringement case with a U.S. defendant also went to trial in July 2009: the recording industry’s suit against Joel Tenenbaum. The jury held Tenenbaum liable for $22,500 per song; since he was found to have infringed 30 songs, this amounted to $675,000 in damages. The judge finalized the jury award in December 2009. Like Thomas-Rasset, Tenenbaum is challenging the award’s constitutionality. Anyone who has ever shared a song using BitTorrent, Kazaa, or LimeWire should probably pay attention to what happens next.

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