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RIAA's $222,000 defendant asks for a new trial

Attorneys for Jammie Thomas, who was slapped with a whopping fine after allegedly "making available" music on Kazaa, say the penalty is unconstitutionally onerous.

Jammie Thomas, the Minnesota woman who was recently slapped with a $222,000 penalty for allegedly sharing music on the Kazaa network, is asking for a new trial.

Jammie Thomas

Thomas' attorneys on Monday filed a motion asking for a new trial on grounds that the statutory damages that the jury awarded are excessive and therefore violate the U.S. Constitution's due process clause.

Alternatively, if U.S. District Judge Michael Davis refuses to grant Thomas a new trial, her attorneys have asked him to lower the damages to between zero dollars and $150. They cited an affidavit by analyst Aram Sinnreich estimating that record labels get 70 cents of the $1 that consumers typically pay for a song online.

Such miniscule damages are appropriate, attorneys Brian Toder and Bryan Bleichner say, because "any award above and beyond actual damages or harm suffered is purely punitive" and there was no evidence that anyone but a representative of the Recording Industry Association of America actually downloaded music from Thomas' computer. (Under federal copyright law, damages are based on the number of songs at issue--rather than the number of times they were downloaded.)

This is not exactly a novel approach: some legal academics have argued for a while that statutory damages are out of line with reality. Because copyright law sets the amount of damages at between $750 and $30,000 per infringement, someone sharing 2,000 songs can face between $1.5 million and $60 million in damages. "Willful" infringement ups the penalty to $300 million.

Which is why defendants in other RIAA peer-to-peer cases have argued that copyright's statutory damages are unconstitutional. (The text of the Bill of Rights' 8th Amendment prohibits courts from imposing "excessive fines.")

In another RIAA case in New York state, UMG v. Lindor, defense attorneys claimed that "the statutory damages sought by plaintiffs are unconstitutionally excessive and disproportionate to any actual damages that may have been sustained."

In a preliminary ruling in November 2006, a New York federal judge ruled that it was not a frivolous argument:

Thus, at this juncture, the court need only determine whether an affirmative defense alleging that statutory damages are unconstitutionally excessive is frivolous. Foremost, plaintiffs can cite to no case foreclosing the applicability of the due process clause to the aggregation of minimum statutory damages proscribed under the Copyright Act. On the other hand, Lindor cites to case law and to law review articles suggesting that, in a proper case, a court may extend its current due process jurisprudence prohibiting grossly excessive punitive jury awards to prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered...For purposes of the motion for leave to amend, Lindor's affirmative defense is not frivolous. The court will address the merits of the affirmative defense, if necessary, at a later date.

Judges do have the legal authority to lower damages below the $750 limit, but only in the rare case of so-called innocent infringement, where the defendant "was not aware and had no reason to believe that his or her acts constituted an infringement of copyright."