Oct. 16: Music downloader asks judge for reduced verdict

  • Article by: LARRY OAKES , Star Tribune
  • Updated: May 15, 2008 - 10:20 AM

The attorney for Jammie Thomas asked the judge for a substantial reduction. The industry plans to fight the motion.

DULUTH - A jury's $222,000 award earlier this month against Jammie Thomas of Brainerd, Minn., for downloading copyrighted music should be reduced or she should get a new trial, her attorney argued in court papers filed Monday.

Attorney Brian Toder of Minneapolis argued in a motion filed in U.S. District Court that the jury's award on Oct. 4 was too far above any actual damages proven to be constitutional. "The ratio of actual damages to the award is not only astronomical, it is offensive to our constitution and offensive generally," Toder wrote in the 12-page motion.

The Recording Industry Association of America responded in a prepared statement that it will oppose the motion. "It is unfortunate that [Thomas] continues to avoid responsibility for her actions," the statement said. "We will continue to defend our rights."

In a verdict the recording industry praised as a warning to would-be music pirates, the jury found that Thomas, 30, violated the copyrights of six recording companies and should pay them $222,000. The jury found that Thomas, operating under the user name "tereastarr" on the Kazaa file-sharing network, copied or distributed 24 songs, and it set damages at $9,250 for each.

The civil trial drew national attention because it was the first Internet piracy suit by the recording industry against a customer to go to trial. Jurors were instructed that simply placing the songs on the Kazaa network could be considered distribution, even in the absence of proof that anyone received them.

Because the jury found the copyright infringement "willful," it could have awarded damages as high as $150,000 per song under the law, according to instructions to the jury.

But Toder argued in Monday's motion that the award should have been limited to an amount much closer to the recording industry's "actual damages," which he defined as 70 cents a song. He cited case law that he said supports the argument that if that amount is multiplied to punish infringement, the maximum award for each song should still not exceed $151.20.

Grossly excessive awards violate the due-process clause of the Constitution, Toder argued. He said Monday's action is not technically an appeal because it asks the original trial court, not an appellate court, to change the result.

The recording industry's statement said the verdict was proper, given the damage file-sharing has done:

"It is precisely the kind of illegal activity that the defendant was found liable for that has inflicted enormous harm on the music community -- thousands of layoffs, artists dropped from rosters, and less investment in music," the statement said.

Larry Oakes • 218-727-7344



Larry Oakes • loakes@startribune.com

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