Jammie Thomas-Rasset, the first US resident to have the file-sharing lawsuits against her go all the way to trial and verdict back in 2007, â€œlied in her trial testimony," said federal judge Michael Davis today. And her â€œpast refusal to accept responsibility for her actions raises the need for strong deterrence."
But that deterrence won't come courtesy of a jury, which last year found Thomas-Rasset liable for $1.5 million dollarsâ€”$62,500 for each song she was accused of sharing on the KaZaA peer-to-peer network. That case was her third time through a trial; the first two trials had ended with Thomas-Rasset on the hook for $222,000 and $1.92 million, respectively. In each case, Judge Thomas has altered or set aside the jury's verdict, and he did so again this morning.
Davis has found that the $1.5 million award was unconstitutional; he slashed it to $54,000â€”$2,250 per song. And even then, the amount was "a higher award than the Court might have chosen to impose in its sole discretion.â€
Davis has done this before. After the second trial and its $1.92 million verdict, he also reduced the award to $54,000, but he elected not to do so on constitutional grounds. That decision led to Thomas-Rasset's third trial, but today's constitutionally based decision should end the matter at the District Court level. If this case is pursuedâ€”and we suspect it will beâ€”the trial phase will end and a federal Appeals Court will take over.
Sections of the verdict are worth quoting in full; they illustrate Judge Davis' deep common sense about the case and provide a worthwhile framework for thinking about similar P2P cases.
The Court concludes that an award of $1.5 million for stealing and distributing 24 songs for personal use is appalling. Such an award is so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable. In this particular case, involving a first-time willful, consumer infringer of limited means who committed illegal song file-sharing for her own personal use, an award of $2,250 per song, for a total award of $54,000, is the maximum award consistent with due process.
This reduced award is punitive and substantial. It acts as a potent deterrent. It is a higher award than the Court might have chosen to impose in its sole discretion, but the decision was not for this Court to make. The Court has merely reduced the juryâ€™s award to the maximum amount permitted under our Constitution.
Davis had nothing positive to say about Thomas-Rasset, who he faulted for lying and for denying responsibility by â€œcasting possible blame on her children and ex-boyfriend.â€ As for her argument that she caused no harm to the music industry, Davis â€œrejects her suggestion" and calls for a penalty in order to enforce copyright law, compensate the record labels, and â€œdeter future copyright infringement.â€
But Davis was at his most Old Testament when blasting the huge damage awards handed down.
There is no doubt that a multimillion dollar penalty is overkill to deter a private individual from obtaining free songs onlineâ€¦ Although Thomas-Rasset played a role in the web of online piracy, she played a minuscule roleâ€¦ It cannot be that she must pay the damages caused by millions of individuals because she was one of two users caught, sued, and subjected to a jury trialâ€¦ [Joel Tenenbaum in Massachusetts was the other.] This award constitutes the maximum amount a jury could award, consistent with the due process clause.
His $2,250 per song figure is three times the minimum statutory damages of $750, though Davis does acknowledge the difficulty of drawing exact lines between fair and unfair judgments. â€œAny specific dollar amount will appear to be somewhat arbitrary,â€ he wrote. â€œWhy is an award of $2,251 per song oppressive while an award of $2,250 is not?" The "3x" multiplier seemed to him a fair one, as such multipliers are routinely used to punish willful offenses (the same amount was chosen in the Tenenbaum case when the judge likewise gutted that verdict).
she still wont pay though, and they already offered to settle with her for less.