Thomas-Rasset gearing up for an appeal

Written by Tim Smalley

July 7, 2009 // 3:44 p.m.

Tags: #appeal #jammie #kazaa #rasset #riaa #thomas #thomas-rasset #trial #unconstitutional

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.

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