By Nate Anderson
Thong underwear sold by Jammie Thomas-Rasset after her first trial to pay her legal bills
Jammie Thomas-Rasset, the first US resident to have the file-sharing lawsuits against her go all the way to trial and verdict back in 2007, “lied in her trial testimony," said federal judge Michael Davis today. And her “past refusal to accept responsibility for her actions raises the need for strong deterrence."
But that deterrence won't come courtesy of a jury, which last year found Thomas-Rasset liable for $1.5 million dollars—$62,500 for each song she was accused of sharing on the KaZaA peer-to-peer network. That case was her third time through a trial; the first two trials had ended with Thomas-Rasset on the hook for $222,000 and $1.92 million, respectively. In each case, Judge Thomas has altered or set aside the jury's verdict, and he did so again this morning.
Davis has found that the $1.5 million award was unconstitutional; he slashed it to $54,000—$2,250 per song. And even then, the amount was "a higher award than the Court might have chosen to impose in its sole discretion.”
Davis has done this before. After the second trial and its $1.92 million verdict, he also reduced the award to $54,000, but he elected not to do so on constitutional grounds. That decision led to Thomas-Rasset's third trial, but today's constitutionally based decision should end the matter at the District Court level. If this case is pursued—and we suspect it will be—the trial phase will end and a federal Appeals Court will take over.
Sections of the verdict are worth quoting in full; they illustrate Judge Davis' deep common sense about the case and provide a worthwhile framework for thinking about similar P2P cases.
The Court concludes that an award of $1.5 million for stealing and distributing 24 songs for personal use is appalling. Such an award is so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable. In this particular case, involving a first-time willful, consumer infringer of limited means who committed illegal song file-sharing for her own personal use, an award of $2,250 per song, for a total award of $54,000, is the maximum award consistent with due process.
This reduced award is punitive and substantial. It acts as a potent deterrent. It is a higher award than the Court might have chosen to impose in its sole discretion, but the decision was not for this Court to make. The Court has merely reduced the jury’s award to the maximum amount permitted under our Constitution.
Davis had nothing positive to say about Thomas-Rasset, who he faulted for lying and for denying responsibility by “casting possible blame on her children and ex-boyfriend.” As for her argument that she caused no harm to the music industry, Davis “rejects her suggestion" and calls for a penalty in order to enforce copyright law, compensate the record labels, and “deter future copyright infringement.”
But Davis was at his most Old Testament when blasting the huge damage awards handed down.
There is no doubt that a multimillion dollar penalty is overkill to deter a private individual from obtaining free songs online… Although Thomas-Rasset played a role in the web of online piracy, she played a minuscule role… It cannot be that she must pay the damages caused by millions of individuals because she was one of two users caught, sued, and subjected to a jury trial… [Joel Tenenbaum in Massachusetts was the other.] This award constitutes the maximum amount a jury could award, consistent with the due process clause.
His $2,250 per song figure is three times the minimum statutory damages of $750, though Davis does acknowledge the difficulty of drawing exact lines between fair and unfair judgments. “Any specific dollar amount will appear to be somewhat arbitrary,” he wrote. “Why is an award of $2,251 per song oppressive while an award of $2,250 is not?" The "3x" multiplier seemed to him a fair one, as such multipliers are routinely used to punish willful offenses (the same amount was chosen in the Tenenbaum case when the judge likewise gutted that verdict).
Thomas-Rasset has made clear to me at her trials that she can't and won't pay even a reduced $54,000 amount, and she has apparently rejected music industry settlement offers that would have her pay even less. Where we go from here is therefore anyone's guess—but continued court action looks likely.
(Sidenote for copyright wonks: Judge Davis declined to include in his injunction against Thomas-Rasset a clause that would bar her from "making available" the songs at issue here. "The Copyright Act does not provide a making-available right," he wrote.)
Update: An RIAA spokesperson tells Ars, "We disagree with this decision and are considering our next steps."
Kiwi Camara, a lawyer representing Jammie Thomas-Rasset, called today's decision "an excellent result. I am sure that the recording industry plans to appeal; when they appeal, we will file a cross-appeal also."
As for Camara's one-time plan to file a class action lawsuit against the entire music industry, I asked him if that was still in the works. "As for the class action," he replied, "you know [Harvard Law's] Charlie [Nesson] and you know us—anything could happen!"
Thong underwear sold by Jammie Thomas-Rasset after her first trial to pay her legal bills
Jammie Thomas-Rasset, the first US resident to have the file-sharing lawsuits against her go all the way to trial and verdict back in 2007, “lied in her trial testimony," said federal judge Michael Davis today. And her “past refusal to accept responsibility for her actions raises the need for strong deterrence."
But that deterrence won't come courtesy of a jury, which last year found Thomas-Rasset liable for $1.5 million dollars—$62,500 for each song she was accused of sharing on the KaZaA peer-to-peer network. That case was her third time through a trial; the first two trials had ended with Thomas-Rasset on the hook for $222,000 and $1.92 million, respectively. In each case, Judge Thomas has altered or set aside the jury's verdict, and he did so again this morning.
Davis has found that the $1.5 million award was unconstitutional; he slashed it to $54,000—$2,250 per song. And even then, the amount was "a higher award than the Court might have chosen to impose in its sole discretion.”
Davis has done this before. After the second trial and its $1.92 million verdict, he also reduced the award to $54,000, but he elected not to do so on constitutional grounds. That decision led to Thomas-Rasset's third trial, but today's constitutionally based decision should end the matter at the District Court level. If this case is pursued—and we suspect it will be—the trial phase will end and a federal Appeals Court will take over.
Sections of the verdict are worth quoting in full; they illustrate Judge Davis' deep common sense about the case and provide a worthwhile framework for thinking about similar P2P cases.
The Court concludes that an award of $1.5 million for stealing and distributing 24 songs for personal use is appalling. Such an award is so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable. In this particular case, involving a first-time willful, consumer infringer of limited means who committed illegal song file-sharing for her own personal use, an award of $2,250 per song, for a total award of $54,000, is the maximum award consistent with due process.
This reduced award is punitive and substantial. It acts as a potent deterrent. It is a higher award than the Court might have chosen to impose in its sole discretion, but the decision was not for this Court to make. The Court has merely reduced the jury’s award to the maximum amount permitted under our Constitution.
Davis had nothing positive to say about Thomas-Rasset, who he faulted for lying and for denying responsibility by “casting possible blame on her children and ex-boyfriend.” As for her argument that she caused no harm to the music industry, Davis “rejects her suggestion" and calls for a penalty in order to enforce copyright law, compensate the record labels, and “deter future copyright infringement.”
But Davis was at his most Old Testament when blasting the huge damage awards handed down.
There is no doubt that a multimillion dollar penalty is overkill to deter a private individual from obtaining free songs online… Although Thomas-Rasset played a role in the web of online piracy, she played a minuscule role… It cannot be that she must pay the damages caused by millions of individuals because she was one of two users caught, sued, and subjected to a jury trial… [Joel Tenenbaum in Massachusetts was the other.] This award constitutes the maximum amount a jury could award, consistent with the due process clause.
His $2,250 per song figure is three times the minimum statutory damages of $750, though Davis does acknowledge the difficulty of drawing exact lines between fair and unfair judgments. “Any specific dollar amount will appear to be somewhat arbitrary,” he wrote. “Why is an award of $2,251 per song oppressive while an award of $2,250 is not?" The "3x" multiplier seemed to him a fair one, as such multipliers are routinely used to punish willful offenses (the same amount was chosen in the Tenenbaum case when the judge likewise gutted that verdict).
Thomas-Rasset has made clear to me at her trials that she can't and won't pay even a reduced $54,000 amount, and she has apparently rejected music industry settlement offers that would have her pay even less. Where we go from here is therefore anyone's guess—but continued court action looks likely.
(Sidenote for copyright wonks: Judge Davis declined to include in his injunction against Thomas-Rasset a clause that would bar her from "making available" the songs at issue here. "The Copyright Act does not provide a making-available right," he wrote.)
Update: An RIAA spokesperson tells Ars, "We disagree with this decision and are considering our next steps."
Kiwi Camara, a lawyer representing Jammie Thomas-Rasset, called today's decision "an excellent result. I am sure that the recording industry plans to appeal; when they appeal, we will file a cross-appeal also."
As for Camara's one-time plan to file a class action lawsuit against the entire music industry, I asked him if that was still in the works. "As for the class action," he replied, "you know [Harvard Law's] Charlie [Nesson] and you know us—anything could happen!"
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