Cloud & Services

Convicted music pirate asks Supreme Court to review case

A woman ordered to pay $222,000 for pirating 24 copyrighted songs has taken her fight against the Recording Industry Association of America (RIAA) to the Supreme Court.

In a petition filed Monday, lawyers for Minnesota native Jammie Thomas-Rasset urged the nation's highest court to review both the fairness and the constitutionality of the fine.

The petition contends that the damages awarded against Thomas-Rasset violated her due process rights and was not tied to any actual injury suffered by the recording companies as the result of her piracy. Instead, by securing such a large verdict against her, the RIAA was hoping to send a message to other copyright infringers.

"Thomas-Rasset cannot be punished for the harm inflicted on the recording industry by file sharing in general," the petition notes. "While that would no doubt help accomplish the industry's and Congress's goal of deterring copyright infringement, singling out and punishing an individual in a civil case to a degree entirely out of proportion with her individual offense is not a constitutional means of achieving that goal."

The petition is the latest in a saga dating to 2005 between Thomas-Rasset and six recording companies that include Sony BMG, Arista Records and Warner Brothers. The music companies accused her of illegally downloading and distributing more than 1,700 songs. They sued her over a representative sample of just 24 of those songs. The copyright laws under which Thomas-Rasset was sued allow for statutory damages of up to $150,000 per infringement.

The first jury to hear the case, in 2007, found Thomas-Rasset liable for willful copyright infringement and awardedthe music companies a total of $222,000 in damages.

That verdict was later set aside on a legal technicality and the case went to trial for a second time in 2009. This time, the jury hit Thomas-Rasset with a $1.92 million fine, a figure that was knocked down to $54,000 by the presiding District Court judge, who described the jury award as out of proportion to any damages the music labels may have suffered.

The case went before a jury for the third time in 2010, after the music labels challenged the $54,000 verdict and claimed that they were entitled to higher statutory damages. The third jury too agreed and awarded the music labels damages of $62,500 per song for a total of $1.5 million.

That figure was again reduced to $54,000 by a federal judge who held the amount was the maximum allowable under the Due Process Clause, which holds that punitive damages may not be unreasonably excessive and must always be proportional to the actual damages suffered by an entity.

The RIAA appealed that decision with the U.S. Court of Appeals for the Eight Circuit, which last year sided with the music labels and reinstated the $222,000 verdict handed down by the first jury.

Monday's petition marks the second time that an RIAA music piracy lawsuit has ended up before the Supreme Court. In May, the court refusedto hear a similar petition filed by Joel Tenenbaum, a former Boston University doctoral student hit with a $675,000 fine for illegally downloading and distributing 30 songs. Like, Thomas-Rasset, Tenenbaum's petition asked the court to consider the constitutionality and fairness of the award.

Whether, the court will act differently with this week's petition remains an open question.

"We cross our fingers," K.A.D. "Kiwi" Camara, the lawyer representing Thomas-Rasset said in response to a question from Computerworld.

The recording companies will file a response as well as the Solicitor General on behalf of the U.S., Camara said in an email. "Then the Supreme Court will decide whether to grant certiorari. This usually takes a couple of months," Camara said. If the review is granted, the case would likely be argued in the fall of 2013, he said.

"I fervently hope the petition is granted," said Ray Beckerman, a New York attorney who has represented clients in RIAA lawsuits. Very few certiorari petitions are granted, he added, "So the odds are always about 200 to 1 against it. But in my opinion this situation cries out for Supreme Court review."

Cara Duckworth, a spokeswoman for the RIAA said the trade group had no comment on the petition. "But I'd note on background that Tenenbaum's petition for cert was denied by the Supreme Court."

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

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