RIAA preps for third trial in music piracy case

Defendant Thomas-Rasset ready to fight to the 'bitter end,' says defense lawyer

The long music piracy fight between the Recording Industry Association of America (RIAA) and Minnesota native Jammie Thomas-Rasset shows no sign of ending anytime soon.

RIAA spokeswoman Cara Duckworth today said the industry association is beginning preparations for a third trial in the case, after Thomas-Rasset rejected a $25,000 settlement offer it made earlier this week.

In an e-mailed comment, Duckworth expressed regret at Thomas-Rasset's refusal. "It is a shame that Ms. Thomas-Rasset continues to deny any responsibility for her actions rather than accept a reasonable settlement offer and put this case behind her," Duckworth said. "Given this, we will begin preparing for a new trial."

The RIAA accused Thomas-Rasset of illegally downloading and distributing 30 copyrighted songs belonging to six music labels. Thomas-Rasset is one of thousands who have been sued for music piracy by the RIAA, but her case is one of only two that has gone to trial. The other case involves a Boston University postgraduate student who was ordered last fall to pay $675,000for illegally distributing 24 songs.

In her first trial, which ended in October 2007, a jury found Thomas-Rasset liable for copyright infringement and ordered her to pay $222,000 in damages to the six music companies. That verdict was later overturned on technical grounds and a new trial was ordered. In the second trial, which ended last June, a federal jury again found Thomas-Rasset liable for copyright infringement but this time ordered her to pay damages of $1.92 million, or nearly nine times the original award.

Thomas-Rasset promptly asked for the damages to be reduced, arguing that it was unconstitutional and disproportional to any actual damages the music labels may have suffered as a result of the music piracy.

In a ruling last week, U.S. District Court Judge Michael Davis of the District of Minnesota reduced the $1.92 million damage award to $54,000. The reduced award, he said, was "significant and harsh" but no longer as "monstrous and shocking" as the original award had been. Davis also said that the court would never have awarded such high damages if the decision has been his to make rather than a jury's.

Shortly after Davis' action, the RIAA offered to settle its case against Thomas-Rasset for $25,000, but only if the court was willing to vacate or modify its ruling. According to the RIAA, portions of the judge's ruling were "inconsistent with Congressional intent and the law." The RIAA said that any money collected from Thomas-Rasset would be donated to a charity to help struggling musicians.

That offer, however, was quickly rejected by Thomas-Rasset. In an e-mailed comment, Joe Sibley, one of Thomas-Rasset's attorneys, reiterated her earlier position.

"She is going forward on principle," Sibley said. "We believe the copyright damages provisions are unconstitutional because they bear no relationship to any actual harm to the copyright holders. Jammie will never agree to pay them anything and will fight until the bitter end."

The judge had previously noted that if a third trial were held in the case, it would focus only on the issue of damages. The copyright law under which Thomas-Rasset was tried allows for statutory damages of between $750 and $150,000 per infringement. In the first trial, the jury held that Thomas-Rasset needed to pay $9,250 per infringed song to the music labels. The second jury ordered her to pay $80,000 per song.

Several lawyers, rights groups and even the judges in the two music piracy cases that have gone to court have questioned the constitutionality of the damages. They have said that the laws were meant to be applied against commercial copyright infringers and not individuals such as Thomas-Rasset.

Ray Beckerman, a New York lawyer who has defended clients in RIAA lawsuits, said today that there is no statute or rule that limits the number of possible trials in the case. "In this case, the verdict was set aside because the jury was unreasonable. Who's to say the next jury won't wind up being unreasonable too?" he asked. "Hopefully the judge will provide them with some instructions, this time, which will make it clear that they can't pull the numbers out of a hat but have to keep the statutory damages in some reasonable relationship to the actual damages."

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 .

Copyright © 2010 IDG Communications, Inc.

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