Thomas-Rasset gearing up for an appeal

Thomas-Rasset gearing up for an appeal

Jammie Thomas-Rasset is gearing up for an appeal as her lawyers have filed a motion requesting a new trial or for the judge to alter the jury's verdict.

Jammie Thomas-Rasset's lawyers have filed a motion requesting a new trial or for the judge to alter the jury's "shocking" verdict, which awarded $1.92 million in damages to the recording industry.

The defence argues that the jury's verdict of $80,000 per infringed work is unconstitutional because it violates Due Process and, as a result, the judge should reduce the damages award to a more reasonable figure. Alternatively, Thomas-Rasset wants this verdict to be set aside and for yet another jury to be selected for a third trial.

"For 24 songs, available for $1.29 on iTunes, the jury assessed statutory damages of $80,000 per song - a ratio of 1:62,015. For 24 albums, available for no more than $15 at the store, the jury assessed statutory damages of $80,000 per album - a ratio of 1:5,333," said the filing.

"Such a judgment is grossly excessive and, therefore, subject to remittitur as a matter of federal common law," the filing continued. "Moreover, such a judgment is inconsistent with the Due Process Clause of the United States Constitution. To the extent that such a judgment is permitted by the Copyright Act on evidence such as was presented in this Court, the statutory-damages provision of the Act offends the Constitution and is not law."

"The plaintiffs did not even attempt to offer evidence of their actual injuries, seeking, instead, an award of statutory damages entirely for purposes of punishment and deterrence," argued Thomas-Rasset's lawyers. "The closest they came was in identifying, mainly in arguments by counsel, injuries to their industry as a whole caused by illegal music sharing as a whole; when pressed, their witnesses - recall the testimony of Mr. Leak - were not able to attribute any particular part of this injury to Mrs. Thomas’s alleged actions."

In essence, the defence wants the Supreme Court to step in, as ruled that "grossly excessive" punitive awards are disallowed by the Due Process clause - this part of the motion filed by Thomas-Rasset's lawyers is against the size of the award, and not what the defendant did or didn't share on KaZaA.

It's not the only thing that the defence is arguing over though, as Thomas-Rasset claims that the information collected by MediaSentry was done so illegally. It claims that: "Neither MediaSentry nor Plaintiffs have disclosed the location of MediaSentry's activities in February 2005. Media reports in 2005 indicate that MediaSentry most likely conducted its activities from either New Jersey or Maryland. Both New Jersy and Maryland have private investigator and wiretap statutes that MediaSentry would have violated if it conducted its activities from these states."

You can read the full complaint here. Do you think there's enough reason for a third trial? Discuss in the forums.


Discuss in the forums Reply
BentAnat 7th July 2009, 16:08 Quote
While i do think that piracy should be punished, i also think that 80Large per song/album is grossly excessive.
By all means, make the guy pay... he shouldn't come off scott free, but the fee is a bit high. Lower that to 80K total, and tell him to not do it again.
proxess 7th July 2009, 16:29 Quote
They should just make him pay the original album price, or the original itunes price, whichever is higher, and make him realize that it doesn't cost that much to actually own the music.
perplekks45 7th July 2009, 16:36 Quote
That's what I thought.
I mean we all remember 1.6 effin TRILLION. Even more ridculous than this. ;)
bogie170 7th July 2009, 17:05 Quote
Do you pay to listen to music on the radio? Do you pay to watch films on tv? (disregard the bbc licence fee).

So can you get punished for making a recording off tv of a film and watching it in your own time?

$80,000 for some **** song that you could easily listen to on the radio is absolutely disgusting.
Kode 7th July 2009, 17:19 Quote
its a she i believe
Drexial 7th July 2009, 17:22 Quote
He is not being punished for the songs he had, he could have acquired them legally. Its that he was sharing them. They are punishing him for the lost sales due to him making them available for free. But I highly doubt he shared those songs with 80,000 people each.

For bootleggers that sell copies of movies its easier to mark lost sales because they have a physical item. then fines on top of that. But in a virtual environment, when an item could exist infinitely, its really easy for them to put a bloated price on each item.
Drexial 7th July 2009, 17:23 Quote
Originally Posted by Kode
its a she i believe

good call...
Mcmonopoly 7th July 2009, 17:28 Quote
also a single mother I believe, I mean WTF are they trying to do, make an example of her.
The best they could do is sue a woman who had 24 "illegal" songs on her computer? WTF
I know people that never paid for music and they got humongous music collections, that's the people they should go after, but again some people are wiser than others when it comes to dloading stuff from the interwebs...
Necrow 7th July 2009, 17:36 Quote
Does anyone know how many times the album(s) was downloaded? Well if they do then maybe she could petition to get the people who downloaded the tunes to say that they deleted the files and never listened to them and all is sorted, no one gets hurt. I think that they are trying to make an example of this woman but this will cause a bigger stir in the pirate / uploader circles. They should fine her alright but make it relative to her income, not to what the huge multi-national record companies "think" they're out of pocket by. As far as I remember the albums she uploaded were crap anyhow so there was probably only a few downloads of them.
pizan 7th July 2009, 17:46 Quote
Originally Posted by Necrow
Does anyone know how many times the album(s) was downloaded?

Nope, no one knows, not the defense nor the prosecution. How could they?
Fod 7th July 2009, 18:05 Quote
and supposing she did somehow manage to pay this. do you honestly think the artists who recorded the songs he downloaded would see a single penny? hmmmm?
perplekks45 7th July 2009, 18:09 Quote
If the MPAA/RIAA really cared about the artists/actors I'd be more than surprised.
airchie 7th July 2009, 18:36 Quote
Originally Posted by bogie170
Do you pay to listen to music on the radio? Do you pay to watch films on tv? (disregard the bbc licence fee).
Kinda like saying "do you pay to drive a car? (disregard the road tax, insurance costs, fuel and cost of the car itself)" :D
We all pay as they're funded by advertising or the license fee.
Originally Posted by bogie170
So can you get punished for making a recording off tv of a film and watching it in your own time?
They wanted it to be illegal back when VHS and Betamax were released.
Same argument when home taping off the radio was common.
They launched the olden day equivalent of the knock-off Nigel ads back then saying piracy was killing music.
Funnily enough, it didn't.
And that's also where the pirate bay's logo came from, the old piracy ads. :D
Originally Posted by bogie170
$80,000 for some **** song that you could easily listen to on the radio is absolutely disgusting.
Obviously the quality of the song is subjective and if she went to the trouble of downloading it, she didn't think it was ****. And you can't listen to it any time on the radio, you have to listen to what they're playing at that time and more importantly, the adverts between the music. ;)

IMO, one download does not equal one lost sale.
Since she didn't share them for profit it could be interpreted as free advertising for the artist.
Basically, I agree with everything the defendant's lawyers have said.
B3CK 7th July 2009, 19:21 Quote
Originally Posted by airchie

Basically, I agree with everything the defendant's lawyers have said.

(thumbs up)
HourBeforeDawn 8th July 2009, 01:49 Quote
well others have stated for him to pay what it cost to buy it and well thats not enough how do you learn your lesson then??? I think like the first poster stated, drop it to 80k total not 1.92mil but even at 1.92mil doesnt matter all he will do is file for bankruptcy.
frojoe 8th July 2009, 02:52 Quote
The statutory fines are not meant to coincide with money the industry actually lost, it is supposed to be punitive. Just like a $500 fine for littering, does it cost them that much to clean it up, no, its so you won't do it again. That said, 80,000 a song is beyond ridiculous and a single mother will never pay it whether they change it or not. I am more concerned with the other part of her lawyers argument. If it can be proven that the RIAA gathered this information illegally all of the cases will be thrown out. Let's hope so.
Blademrk 8th July 2009, 10:26 Quote
Originally Posted by Mcmonopoly
The best they could do is sue a woman who had 24 "illegal" songs on her computer?

I believe there were more than 24 songs on her computer, but they limited the case to just 24 songs.

Payment way over the top, I don't think they expect to get a penny of it.
ChaosDefinesOrder 8th July 2009, 20:36 Quote
I can't remember where I read it (probably Slashdot) but firstly, Jammie is a woman, and was a single mother at the time of the infringement (was Thomas then, but has married <Bloke> Rasset since trial started) the court fees so far has seen her file for bancruptcy - she is completely penniless so even if the damages fee holds, no money will ever be exchanged, it is merely a media frenzy example. This could possibly be why such a rediculous fee was levied, as the judge knew it wouldn't actually be paid and so set it as high as he could get away with to serve as a deterrant ("I don't have that much money, do YOU? Don't steal from teh tubes" etc.)

Put simply, the whole trial is a complete farce. The evidence is hotly disputed, there's plenty of evidence that sharing music actually benefits the artists (Shaggy in the UK would never have gotten to his heights without Napster) and that total is an absolute joke. As has been pointed out many many times in various places, the artists will not see a single penny or cent from that total - partly because Jammie legally cannot pay it due to bancruptcy and partly because the RIAA will take a huge chunk for themselves, the lawyers will get a huge chunk and the record labels will absorb the rest for themselves.

What they need to do is a test case study. Get permission from the record label to host a song on a fileshare service and log the number of people that download the song. That number should then be multiplied by the cost on iTunes or similar and that is the fine. That's all.

On a lighter note, part of me thinks it'd be amusing if the judge when passing on the fine accidentally added an extra 3 zeros ("damn, was it million or thousand, always get them mixed up") and when he realised dismissed it as too late to change...
[USRF]Obiwan 9th July 2009, 11:59 Quote
Sums up:

1) She downloaded it and shared it (unknowingly) she did not bought it. So no income anyway for Record industry
2) Then it got downloaded by a unknown amount of people (we make a gamble and guess its 80 people) those people did not bought it so this is also no income for Record Industry.

Conclusion: Record Industry did not loose any money because none of the dowloaders actually bought it or wanted to buy it. Else they would have gone out to the recordstore or itunes store.

When I am home, turn on the radio and invite all my friends for a party. I share hours and hours of music to about 40 people coming out of my loudspeakers. (probably sharing music to my neighbors to)

So thats is a multiple loss of income for the Record Industry or is it not? I am waiting for them to sue me now...
perplekks45 9th July 2009, 12:39 Quote
That's why every supermarket/clothing/electro chain has to pay fees to be allowed to play music in their stores.
And why you pay a quarterly fee for public channels on TV and radio in many countries.

And I don't think you can say that none of the people who downloaded music from her wouldn't have bought it if they hadn't had the chance to download it for free. Some of them might have bought it in a shop but decided to download because it's cheaper [F-R-E-E].

80k per song is a bad joke but what she did was wrong. Illegal downloads are wrong, ethically. Why it breaks the law to download a song instead of recording it from [digital] radio is beyond me but morally it is wrong in our society.
[USRF]Obiwan 9th July 2009, 12:53 Quote
Originally Posted by perplekks45
Some of them might have bought it [F-R-E-E].

And I might have shoot my own leg. And I might have jumped out of the window. And I might be breathing fresh air.

The probability that they did not bought it in a store/online is more then the might have bought it. Or you can turn it around and they might not have downloaded it but and just looked at it..

I can download music and movies legally for studying or own usage. I just may not sell, distribute or upload them. I may even rent a music cd or dvd movie and copy it for my own use. Its in our book of law since 1912 (with added aditions for modern carriers). The exception of this rule are data and computer programs like games, databases and operating systems.

I pay fee allready for the current carriers. And I will probaby soon pay a fee for flashdrives, hd's and all other computer related data carriers, the fee is handled by the Home Copy Foundation and from there the money gets distributed equally to the rightful owners. (artist etc)

Currently the fee is for every single item:
Data cd-r/rw: € 0,14 per disc
Blanco dvd-r/rw: € 0,60 per 4,7 gigabyte*
Blanco dvd+r/rw: € 0,40 per 4,7 gigabyte*
Audio cd-r/rw: € 0,42 per uur (€ 0,52 per 74 minutes)
HI MD € 1,10 per carrier
Blanco dvd-RAM (fee-free)
Video analoog (videocassettes) € 0,33 per hour
Audio analoog (cassettetapes) € 0,23 per hour
MiniDisc € 0,32 per hour

Even if it is from my own data I have to pay, like a recording of my own music, movie of my family etc.

for more information see here...

This is only for the Netherlands so don't make a mistake about that ;)
perplekks45 9th July 2009, 13:16 Quote
Then you're lucky. In almost every other country it's illegal to download stuff because it's considered theft.
I know the studies that say that illegal downloads actually help sales but I think that a lot of people would buy their music if it wasn't that stupidly easy to download it. I mean every idiot and his/her dog know how to use Kazaa/Limewire and more and more morons learn about BitTorrent. Then there's 1-Click hosters like RapidShare, MegaUpload, EasyShare, etc...
I've been on private boards and trackers before most of the kids using Kazaa and stuff even went to school and I find it shocking what has happened to the downloading scene!

That's why I don't think it's more realistic to say none of them would've lived without the music rather than paying for it if they couldn't download it for free. It's just too damn easy.
[USRF]Obiwan 9th July 2009, 13:47 Quote
Yeah since the p2p era downloading for the chosen few is gone. I wish it would have stayed in the underground scene, the damage would not be as much as it is now.

I am a great fore stander to breakdown the whole p2p provider engine with no excuses. This will probably stop 80% of the downloading and kick it back to the underground scene where it suppose to be. (read; in a controlled environment) P2P biggest excuse, the distribution of large files are irrelevant since most of the worlds population have high bandwidth access. And company's that distribute have large connections to survive a mass download.

Or make the fee for all datacariers (cd/dvd/flash/usbsticks/hd etc) global. This will generate enough income to keep all of them happy including downloaders and the companies and artist on the other side of the rope.

You see there is no possible way to prevent downloading other then pulling the internet plug...
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