[Infowarrior] - Defense Asks RIAA Judge to Overrule 'Offensive' $222, 000 Award

[Richard Forno]

Defense Asks RIAA Judge to Overrule 'Offensive' $222,000 Award
By David Kravets Email 10.15.07 | 5:30 PM
http://www.wired.com/politics/law/news/2007/10/copyright

The Minnesota woman a federal jury dinged $220,000 for pirating 24
copyrighted songs asked the trial judge on Monday to set aside the verdict
on the grounds the judgment is unconstitutionally excessive.

It's a novel theory that, if successful, could undermine the Recording
Industry Association of America's litigation machine that has sued thousands
of alleged pirates.

The petition (.pdf) to U.S. District Judge Michael Davis, among other
things, challenges the constitutionality of the 1976 Copyright Act, the law
under which the RIAA sued Jammie Thomas of Minnesota, as well as over 20,000
other defendants. The $750 to $150,000 fines the act authorizes for each
download is unconstitutionally excessive and against U.S. Supreme Court
precedent, wrote Brian Toder, Thomas' attorney.

The RIAA said the argument is "baseless." In pretrial court documents in a
New York federal copyright case against a Brooklyn woman, the RIAA
acknowledged that such an argument might kill its zero-tolerance suing
machine by making "it economically unsound for any copyright owner to seek
to protect its copyright interests."

That case is pending trial in U.S. District Court for the Eastern District
of New York.

Thomas, 30 and a single mother of two, was the first RIAA defendant to go to
trial. The bulk of the cases have settled for a few thousand dollars each,
while others are pending or have been dismissed since the industry's
lobbying arm began suing individuals four years ago this September.

The minimum penalty under the Copyright Act equals a ratio of over 750 times
the actual injury, assuming the value of a single music track is iTunes'
99-cent rate. Rulings by the U.S. Supreme Court and other courts say
financial punishments exceeding a 9-to-1 ratio are unconstitutional.

Toder speculated that each digital download that is pirated costs the
industry only 70 cents -- meaning Thomas' conduct was punished at a ratio of
more than 1,000 times actual damages.

"Whether the court recognizes actual damages of zero dollars, $20 or
whatever figure plaintiffs suggest ... the ratio of actual damages to the
award is not only astronomical, it is offensive to our Constitution and
offensive generally," Toder wrote.

Toder wants the judge to reduce the award or order a trial on the amount of
damages the industry suffered by Thomas' conduct. The industry has refused
to divulge how much it loses per download, but says it loses billions of
dollars to piracy.

But whether Toder's legal position has any legal legs is uncertain. The RIAA
doesn't think so. In the New York case, which is raising the same argument,
the group's attorney, Richard Gabriel, called the assertion a
mischaracterization of the law.

Gabriel said in court documents that the 2003 Supreme Court precedent at
issue concerns constraining juries and judges from awarding unlimited
damages, while Congress has authorized a range of damages in the Copyright
Act serving "to constrain and limit the potential damages that any
particular defendant can be assessed, thereby eliminating the concerns
address by the Supreme Court."

Attorney J. Cam Barker took a position that supports Toder's claim, in a
2004 article in the Texas Law Review, noting that extreme monetary
damages-to-costs ratios were likely in the RIAA's digital downloading cases.
"At this point, a 'suspicious judicial eyebrow' might be raised," he wrote.

No hearing date in the Thomas case, tried two weeks ago in Duluth,
Minnesota, has been set.