Sept. 11, 2012: Ruling revives music-sharing case

A six-year battle over illegal music file-sharing was revived Tuesday when the Eighth U.S. Circuit Court of Appeals sent the case of Jammie Thomas-Rasset back to court in Minneapolis.

A panel of three appellate judges ordered Chief U.S. District Judge Michael Davis to reinstate a $222,000 civil jury award against Thomas-Rasset, of Brainerd, Minn. Davis had cut the award to $54,000.

The music recording industry praised the appeals court's ruling, which could potentially give record companies more leverage to extract settlements from file sharers. However, the appellate court sidestepped the key issue of whether making recordings available for download violates federal copyright law, and some experts were skeptical that the latest ruling would further deter people from sharing files they download illegally.

Although Thomas-Rasset said her attorneys plan to appeal the ruling to the U.S. Supreme Court, there's no guarantee the high court will take the case.

Thomas-Rasset became the face of the music industry's fight against illegal downloading in 2006 at age 28. Several music industry organizations sued her when an online investigative firm alleged that she had used a file-sharing program called Kazaa.

Unlike many others facing such suits, Thomas-Rasset refused to settle with the organizations. A jury awarded the plaintiffs $222,000 in October 2007, charging her $9,250 for each song. But Davis concluded that he erred in a jury instruction and granted a new trial. He held that making a copyrighted work available to the public is not "distribution" under the law. That issue has divided the courts.

A second jury awarded the plaintiffs $1.92 million, or $80,000 per song. Davis found that amount "shocking" and cut the award to $54,000, or $2,250 a song. The plaintiffs refused the award, and after a third trial in November 2010, jurors awarded the plaintiffs $1.5 million, or $62,500 per song.

In a statement, the Recording Industry Association of America said: "We are pleased with the appellate court's decision and look forward to putting this case behind us."

'I can't afford to pay'

Thomas-Rasset, an environmental rehabilitation coordinator for the Mille Lacs Band of Ojibwe, said her attorneys notified her Tuesday that they plan to appeal to the Supreme Court. Meanwhile, she remains unruffled.

"We kind of agreed with the $222,000 verdict, or what-have-you," she said. "We did it on the premise that we're going to appeal on the constitutionality of ANY verdict."

Strategically, accepting the verdict insulates her from a potentially larger judgment. "Basically, everybody knows I can't afford to pay anything," she said.

If she loses in the end, she said, she'd just file for bankruptcy protection.

Copyright questions remain

The appellate panel declined to decide whether making copyrighted materials available for download violates federal law. But it did find that Davis should have enjoined Thomas-Rasset from doing so regardless, as the industry plaintiffs had requested.

"An injunction against making recordings available was lawful and appropriate under the circumstances, even accepting the district court's interpretation of the Copyright Act," Judge Steven Colloton of Des Moines wrote in the panel's opinion. He was joined by Judges Diana Murphy of Minneapolis and Michael Melloy of Cedar Rapids, Iowa.

Ken Port, a professor and director at the William Mitchell College of Law's Intellectual Property Institute, said the case remains "the music industry's ... attempts to have a whipping boy" that can be used to intimidate file-sharers.

Port, whose organization filed a friend-of-the-court brief in the case, said the appellate panel engaged in judicial activism with its finding that Davis should have enjoined Thomas-Rasset from making music available for sharing.

The 1976 Copyright Act specifies that distribution can take place only by actively making a copy of a protected work, or by making a "phonorecord," a term of art referring to a physical object that contains a protected work.

"Congress has had many opportunities to change this and did not," Port said.

The appellate panel sidestepped the issue by finding that the music industry could get the remedies it sought against Thomas-Rasset without resolving whether making music available constitutes distribution.

"They were working very hard not to enter this mess," Port said. "They want Congress to fix it for them."