Kazaa user Jammie Thomas-Rasset is asking the Supreme Court to hear her appeal of an order requiring her to pay the record labels $220,000 for sharing 24 tracks.
She argues that the six-figure award doesn't reflect any damages that she caused the record industry. "Even if Thomas-Rasset had never used Kazaa, the 24 popular songs at issue would nonetheless have been available, for free, from other Kazaa users," she argues in her petition, filed this week by Texas attorney Kiwi Camara and Harvard Law School professor Charles Nesson. "Thomas-Rasset may have thrown one stick on the recording industry’s pyre, one stick out of tens of millions, but Napster, Kazaa, and the like were the ones who set it on fire."
The Thomas-Rasset case has a long, tortured history. Briefly, Thomas-Rasset was one of around 12,500 people sued by the Recording Industry Association of America during a five-year campaign targeting individual file-sharers in court. Many of the people sued resolved the cases by forking over four-figure settlements to the RIAA.
But Thomas-Rasset bucked the trend and went to trial. Unfortunately for her, that decision didn't work out so well. In 2007, a jury found her liable for infringement and ordered her to pay $220,000, or $9,500 per work infringed. That award was later set aside, following which a second jury ordered her to pay $1.92 million.
At that point, U.S. District Court Judge Michael Davis reduced the verdict to $54,000, using a procedure called "remittitur." But the RIAA rejected the remittitur, paving the way for a third trial, solely focused on damages. That proceeding 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. In September, that court reinstated the original $220,000 verdict.
The copyright statute itself calls for damages ranging from $750 to $150,000 per work infringed. At $9,500 per track, the verdict falls within that range.
But Thomas-Rasset argues that the figure is so arbitrary -- as shown by the fact that three juries reached widely different damage awards -- that it violates her constitutional right to due process of law. "The verdicts are unpredictable and, in a deeper sense, arbitrary; they are not tied to any fact or rationale that justifies them, that explains why the law imposes this particular penalty on this particular defendant," she says in her papers.
The petition for review also sweepingly condemns the entire RIAA litigation initiative. "It is unfair, it is not due process, for an industry to sue 12,500 people ...wielding a statute for which they lobbied, under which they can threaten hundreds of thousands or millions of dollars in statutory damages, where the only way to resist is through modern, complex, expensive federal process, so that the only reasonable choice is to pay the settlement and be done," they argue.
Thomas-Rasset makes some good points. The record industry might have been reeling from peer-to-peer technology when it filed suit, but hauling random file-sharers into court was always a problematic strategy. It generated ill will, panicked users, clogged the court system, and didn't appear to do anything to actually reduce copyright infringement.
And it's hard to see how any rational system can justify imposing an order directing a music fan to pay six or seven figure damage awards for downloading or uploading music that was available from numerous other peer-to-peer users.
The record industry clearly doesn't agree. Nonetheless, in 2008 the RIAA said it would cease suing individual file-sharers and instead work directly with Internet service providers to end file-sharing. That plan, which involves a series of warnings sent to people who allegedly share copyrighted tracks, hasn't yet launched.