• by Wendy Davis , Staff Writer @wendyndavis, September 11, 2012

Kazaa user Jammie Thomas-Rasset must pay $220,000 to the record labels for sharing 24 files on Kazaa, a federal appeals court ruled today.

The decision, issued by the 8th Circuit Court of Appeals, reinstated a 2007 jury verdict against Thomas-Rasset -- the first of three jury verdicts issued in the long-running case. The decision obviously is bad news for Thomas-Rasset, who now must cough up six figures to the record labels.

But the 8th Circuit also didn't give the RIAA everything it had requested. That organization wanted a ruling that people who make tracks available on file-sharing services infringe copyright -- even if no one downloads those files.

Instead, the appeals court declared that issue "moot."

The 8th Circuit's opinion seems particularly messy -- which probably is due to the tortured procedural history of this case. Briefly, in 2007 a jury found that Thomas-Rasset had infringed copyright by sharing 24 tracks on Kazaa and ordered her to pay $220,000. But the trial judge, Michael Davis, set that verdict aside. He did so because he had instructed the jury that it could find Thomas-Rasset liable if she had made the tracks available on Kazaa -- regardless of whether anyone downloaded them. After the first trial ended, Davis decided that instruction was mistaken.

A second jury trial resulted in a finding that she had infringed copyright and a decision that she pay $1.92 million. Davis slashed that verdict to $54,000, but didn't rule that it was unconstitutional. The record industry then demanded a third trial solely on damages.

That third trial resulted in a jury verdict that Thomas-Rasset should pay $1.5 million. Davis ruled that the $1.5 million verdict was unconstitutional and cut it down to $54,000.

All sides appealed to the 8th Circuit. Thomas-Rasset pressed the argument that large damage awards are unconstitutional for non-commercial file-sharers such as herself. (The statute calls for damages ranging from $750 to $150,000 per work infringed.)

For its part, the RIAA continued to argue that merely making tracks available online infringes copyright.

The 8th Circuit decided to simply reinstate the original verdict without ruling on whether the mistrial was proper. The court also said that the original six-figure damage award wasn't unconstitutionally high -- but indicated that a larger award might have been.

"The absolute amount of the award, not just the amount per violation, is relevant," the 8th Circuit wrote, referring to whether the damages were too high. "If and when a jury returns a multimillion dollar award for noncommercial online copyright infringement, then there will be time enough to consider it."

Thomas-Rasset's lawyer, Kiwi Camara, says he intends to ask the U.S. Supreme Court to hear the case. He tells MediaPost he will argue that a damage award of $220,000 for sharing two dozen tracks is unconstitutionally excessive.

Thomas-Rasset is one of only two defendants sued by the RIAA to take their case to a jury. Many of the other 18,000-some people accused of infringing copyright on peer-to-peer networks paid four figures to settle the matter. The other person to go to trial, Joel Tenenbaum, also lost; a jury ordered him to pay $675,000 for sharing 30 tracks.