Reduced award called too high in music piracy case

Lower penalty of $54,000 against Thomas-Rasset is excessive, says lawyer

A federal judge's decision today to substantially lower the damages in a music piracy case involving Minnesota native Jammie Thomas-Rasset should come as no surprise, considering the massive size of the original $1.9 million jury award against her.

But even the reduced amount of $54,000 is huge and is likely substantially higher than what the court would have awarded on its own discretion if a jury had not been allowed to determine the damages, said Ray Beckerman, a New York-based lawyer who has handled several music piracy lawsuits.

"It is obviously a great improvement, but it is still excessive," Beckerman said. "It seems to be based on the judge's conclusion that [Thomas-Rasset] lied under oath." What's surprising, however, is the fact that Judge Michael Davis did not rule on the constitutionality of the damages awarded by the jury, Beckerman said.

The Recording Industry Association of America, which is representing the music labels in this case, has seven days to accept or reject the award. If it rejects it, the case will likely head for another trial. In a statement sent via e-mail, RIAA spokeswoman Cara Duckworth said the industry body is still reviewing the decision and declined further comment.

Thomas-Rasset's lawyer could not be reached immediately for comment.

Thomas-Rasset was found liable last June of willfully infringing the copyrights on 24 songs and was ordered to pay damages of $1.92 million to the six music labels whose songs she was accused of pirating. The verdict required her to pay $80,000 for each of the songs she was accused of illegally distributing over the Kazaa file-sharing network.

In their lawsuit, the six music companies claimed that Thomas-Rasset had illegally distributed 1,702 copyrighted songs, though they chose to focus on only a representative sample of 24. The copyright laws under which Thomas-Rasset was prosecuted allowed for a minimum statutory damage of $750 per infringement to a maximum of $150,000 per infringement.

The $1.9 million verdict was nearly nine times the $222,000 in damages assessed against Thomas-Rasset in a first trial by another jury. That verdict, in October 2007, was overturned in September 2008 by Davis on technical grounds. Davis is the same judge who presided over Thomas-Rasset's first trial.

Thomas-Rasset appealed the award and requested that it be reduced to the statutory minimum of $750, or a total fine of $18,000.

In rejecting that request, Davis noted that Thomas-Rasset had acted in a manner that was clearly willful and deliberate. He also said that she had refused to take responsibility for her actions and had lied under oath. He cited both actions as reasons for rejecting her request and instead awarding statutory damages of three times the minimum, or $2,250 per song.

That award represents a figure that is "no longer monstrous and shocking," Davis wrote in his 38-page ruling. "This reduced award is significant and harsh. It is a higher award than the court might have chosen to impose in its sole discretion, but the decision was not entrusted to this court." Rather, it was the jury's province to determine the damages, and all the court could do was reduce money damages to a more reasonable figure, he wrote.

"The need for deterrence cannot justify a $2 million verdict for stealing and illegally distributing 24 songs for the sole purpose of obtaining free music," he wrote.

The judge's ruling indicated that if he were hearing the case without a jury, "he would not have awarded this amount. He would have awarded less," Beckerman said. The judge reduced it to what he considered the "outside extreme" for a case like this without completely overturning the jury verdict, he said.

The Thomas-Rasset case was the first RIAA music piracy case to go to trial. The only other such case involves Joel Tenenbaum, a postdoctoral student at Boston University who was also found liable in a jury trial last year for willfully infringing copyrights. Tenenbaum was ordered to pay a fine of $675,000, or $22,500 for each of the 20 songs he was accused of willfully pirating.

Tenenbaum's lawyer, Harvard Law School professor Charles Nesson, appealed the size of the verdict and challenged the constitutionality of the law. Nesson today declined to comment on the Thomas-Rasset ruling or how it might influence the judge in the Tenenbaum case.

According to Beckerman, today's decision is unlikely to have a bearing on the Tenenbaum case.

Jaikumar Vijayan covers data security and privacy issues, financial services security and e-voting for Computerworld. Follow Jaikumar on Twitter at @jaivijayan, send e-mail to jvijayan@computerworld.com or subscribe to Jaikumar's RSS feed .

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