• by Wendy Davis , Staff Writer @wendyndavis, October 22, 2010

It's been almost two years since the Recording Industry Association of America said it would stop bringing lawsuits against individual non-commercial file-sharers, but winding down the cases already in the pipeline has proven fairly complicated. The major reason: Judges are struggling to figure out what kind of monetary damages are appropriate when individuals might have shared music, but did so without a profit motive.

Early next month, the RIAA and Jammie Thomas-Rasset are scheduled to face off in court for the third time, but this trial, unlike the prior two, will focus solely on how much Thomas-Rasset should pay for sharing 24 tracks on Kazaa.

At her first trial, a jury ordered her to pay $220,000, or $9,000 per track. The presiding judge, Michael Davis, later vacated that verdict because he gave the jury incorrect instructions. (He had told the jurors they could hold Thomas-Rasset liable for infringement if she made tracks available to other Web users, regardless of whether anyone had downloaded them.)

A second trial resulted in another verdict against Thomas-Rasset -- this one for $1.92 million.

Davis reduced that award to $54,000 -- an amount he described as "significant and harsh," but "no longer monstrous and shocking."

But Davis also said the RIAA could reject the reduction and request another trial, solely to assess damages. The RIAA offered Thomas-Rasset a chance to settle by making a $25,000 charitable donation, but she declined.

Thomas-Rasset recently filed a motion asking Davis to reconsider an argument that the $1.9 million award was unconstitutional. Had he done so, the RIAA could have appealed the decision, but there wouldn't have been a third trial. Davis rejected that motion today, setting the stage for a new trial, Ben Sheffner reports on his blog, Copyrights and Campaigns.

Meanwhile, a separate RIAA lawsuit involving a very similar issue could well end up in the U.S. Supreme Court. A trial judge in that case -- a lawsuit against Whitney Harper, who downloaded 37 tracks while still in high school -- ruled that Harper was an "innocent infringer" and need only pay $200 per track. An appellate court reversed that decision. Harper is now asking the Supreme Court to take up her case. The RIAA recently filed papers opposing that request, arguing that the Supreme Court need not get involved, noting that the industry had already ended its litigation campaign -- an initiative that lasted from 2003 to 2008 and resulted in legal action against at least 18,000 individuals. "Contrary to [Harper's] contention," the RIAA wrote, "a ruling from this court would not impact 'tens of thousands of cases' because such cases do not exist."