Jammie Thomas Wants a Retrial, Says Damages Unconstitutional

For many, the very thought of going up against the record labels in the United States over file-sharing is something most aren’t exactly capable of doing – let alone three times. This is precisely what Jammie Thomas is after according to recently submitted court documents.

Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes

A few days ago, we noted that Jammie Thomas and her lawyers vowed to appeal the $1.92 million damage award saying that the award was unconstitutional. Court documents (PDF, source with built-in PDF viewer, hat tip Ray Beckerman) recently released certainly backs up what the lawyers had said they’d do now.

While the documents border on being considered a lengthy read, it’s certainly well worth it as one can very easily see the amount of research that actually went in to this motion. There are several pages that point out what we have suggested in a previous posting – that there is quite a discrepancy between how much one pays for a single track on iTunes (we suggested it was 99 cents per track as this has been the classic price-point for a single song, but the documents say $1.29) and the actual award ($80,000 per track)

So, starting from the beginning of the filing, the motion argues, unsurprisingly, that the award amount for damages is unconstitutional. How this argument was brought about, and is repeated throughout the entire document, is what makes this argument fascinating. It’s not entirely the large number, $1.92 million, that is seen as grossly excessive, but the damage of cost versus damages. In this case, on a per song basis with the knowledge of what a single track costs on iTunes – $1.29 – the damages ratio is 1:62,015.

If $1.92 Million was bad PR, imagine the kind of PR the RIAA would get if they sued for $134.24 Million.

The filing further argues that if each song was compared to an album for sale, the ratio is a whopping 1:5,333.

The document explains, “such a judgment is inconsistent with the Due Process Clause of the United
States Constitution.”

In a later part of the document, Thomas’ lawyers cite another case that pin-points why the ratio is extremely important in determining the constitutionality of the award:

Campbell, 538 U.S. at 418. Although the Supreme Court has declined to state a bright-line rule about the maximum permissible ratio, it has repeatedly held that “few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process.”

So, at most, the damage award would be 1:9, or $1.29:$11.61 on a per track basis.

To put the whole concept of the currently awarded damages into another perspective, there’s this particular passage later on in the court documents that highlight further why $1.92 million, or $80,000 per track, is grossly excessive:

Had the recording companies sued on all the songs they claim to have found on Mrs. Thomas’s computer, the verdict would have been $136,240,000. This does not show that they are “being reasonable” by seeking only $1.92M; it shows, rather, that $80,000 per song is a grossly excessive and therefore unconstitutional civil penalty.

“Mrs. Thomas did no physical harm; any harm that occurred was purely economic,” the document further argued, “to the tune of $1.29 for each of the 24 songs or $15 for each of the 24 albums at issue. See also Wechsberg v. United States, 54 Fed. Cl. 158, 167 (Fed. Cl. 2002) (requiring plaintiffs to offer evidence of actual injuries if these are used to justify an award of statutory damages higher than the minimum). Her conduct did not evince any indifference or reckless disregard for the health of safety of others since, again, any harm she did was purely economic. And the targets of her conduct are the largest recording companies in the United States and are hardly financially vulnerable relative to those plaintiffs — maimed children, for example — who we think of as most deserving of punitive damages.”

Not only was there arguments against such a high award, Thomas’ lawyers argued that the discrepancy between the initial $222,000 and the newer $1.92 Million is cause for concern. The document says, “BMW of North America, Inc. v. Gore, 646 So. 2d 619, 626 (1994) (per curiam) (describing disparity between $4M punitive-damages verdict by one Alabama jury and $0 punitive-damages verdict by different jury in case on same facts). “The real problem, it seems, is the stark unpredictability of punitive awards.” Exxon Shipping Co. v. Baker, 128 S. Ct. 2605, 2625 (2008). In this case, this unpredictability is stark indeed: two different juries returned punitive awards that differ by almost an order of magnitude.”

Another note-worthy point being made can be found in this excerpt:

Importantly, the legitimate interests in relation to which a civil penalty must be reasonable are those related to punishing and deterring a defendant for her conduct and the injury that she caused to the plaintiffs. It is unconstitutional to impose a civil penalty on a defendant for either the conduct of others or her own conduct that harmed those who are not plaintiffs. See Philip Morris USA v. Williams, 549 U.S. 346, 353—54 (2007). The plaintiffs in this case repeatedly argued that, in selecting what damages were appropriate, the jury should consider not only the harm to the recording companies, but also to artists creating music (who the recording companies’ representatives repeatedly testified are independent third parties, not employees) and to consumers of music.

What makes this point particularly interesting is the fact that the copyright industry in the United States have stressed for years that the lawsuit campaign is merely an education campaign. An underlying point through legal threats read by tens of thousands is that you could be hauled to court and forced to pay millions in damages if you don’t pay the settlement. That, legally speaking, if this argument goes over well in court, could be the industry’s own undoing. Another way of putting this is, is one user liable for the actions of another user in a given network or should that second person be liable for their own actions? This question has an interesting resemblance to the safe harbour clause in the DMCA that an ISP is not liable for the users of their own network. In this case, say you upload a copyrighted work to three individuals and leave that swarm. Should you be liable for the actions of those users after you leave that given swarm? The industry certainly seems to want compensation not just for the actions of a given user, but for every user involved in uploading a given work. Trying to get a total award out of just one person is certainly an interesting legal question.

So what is being requested includes the following:

Defendant Jammie Thomas respectfully requests that this Court (1) alter or amend the judgment under Rule 59(e) to remove the award of statutory damages; (2) order remittitur of the statutory-damages award to the statutory minimum; or (3) order a new trial on all issues under Rule 59(a).

Another interesting point being brought up is that Media Sentry had illegally obtained evidence against Thomas. The motion to suppress the evidence was denied because the court only looked at Minnesota law. Since Media Sentry was operating outside of that state, the original motion to suppress the evidence was denied. So where was Media Sentry operating? Turns out, they were operating in New Jersey. Since that is a known fact now with regards to this case, Thomas’ lawyers looked at applicable private investigators acts and determined that the activity conducted by Media Sentry was illegal. This was said at the time:

Neither MediaSentry nor Plaintiffs have disclosed the location of MediaSentry’s activities in February 2005. Media reports in 2005 indicate that MediaSentry most likely conducted its activities from either New Jersey or Maryland. Both New Jersey and Maryland have private investigator and wiretap statutes that MediaSentry would have violated if it conducted its activities from these states. See N.J. Stat. §§ 45:19, 2A:156A-2; Md. Code, Business Occupations & Professions § 13-801; Md. Code, Courts & Judicial Proceedings § 10-402.

This court document certainly has a lot of food for thought on the legalities of file-sharing. It also shows that even though the DMCA exists to supposedly make the legal issues of file-sharing as clear as black and white, there’s still a huge grey area – namely around awards in part, thanks to the fact that there hasn’t been any other file-sharing case that has gone this far that’s related to an individual user.

Currently, the RIAA already wants Thomas to destroy all copies of copyrighted works and hinted at wanting more than the $1.92 Million awarded in court. One can easily see that this particular legal case is far from over even though it’s been carrying on since 2007.

Drew Wilson on Twitter: @icecube85 and Google+.

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