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Jammie Thomas calls for file-sharing trial #3

$1.92m fine 'excessive, shocking, and monstrous'

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Faced with a $1.92 million fine, convicted file-sharer Jammie Thomas-Rasset's is seeking to undergo a third trial or have the "excessive, shocking, and monstrous" verdict against her reduced.

The Minnesota mom of four was found guilty of copyright infringement last month for downloading and sharing 24 songs through the Kazaa file-sharing network.

Thomas-Rasset's lawyers argue in a motion filed yesterday that damages awarded to the Recording Industry Ass. of America are "grossly excessive" and were calculated to make an example out of her rather than pursue justice.

"The plaintiffs did not even attempt to offer evidence of their actual injuries, seeking, instead, an award of statutory damages entirely for the purposes of punishment and deterrence," the filing stated.

"An award of statutory damages of $1.92m for 24 songs assessed as punishment, not compensation, shocks the conscience and must be set aside," it continues.

The motion points out that each of the 24 songs she is accused of are available for $1.29 each on iTunes. A $80,000 per song penalty meted out by the jury is at least 63,015 times their actual value and "bears no reasonable relation to the actual injury suffered by the plaintiffs," it claims.

Her lawyers request that damages be put aside, the fine be reduced to the minimum $18,000, or a third jury be allowed to select a different, lower number in a new trial.

The motion contends that the $1.92m in damages are a violation of the Fifth Amendment in the US Constitution, which guarantees due process of law:

The Due Process Clause of the Fifth Amendment provides some protection against excessive and unpredictable punishments imposed in civil cases. In a line of cases stretching back well over 100 years, the Supreme Court has held that the Due Process Clause imposes substantive constraints on civil punishments and, in particular, on the relationship that damages imposed as punishment must bear to the actual injury proved by the plaintiffs.

Thomas-Rasset's lawyers also claim a civil penalty must be deduced to punish and deter the person being charged for their conduct — and not based on the generalized problem of illegal music downloading as a whole.

The RIAA has argued the true extend of "exponential" infringement set in motion the 24 songs Thomas shared online are "literally incalculable." Thomas' attorneys beg to differ:

Mrs. Thomas was a single mother who, at worst, downloaded and shared some music on KaZaA, music for which she had already lawfully purchased the CD's, without any hint at all of a commercial motive. Her wrongdoing is a far cry from that which normally results in a $1.92 million verdict. Even if this Court rejects Mrs. Thomas's constitutional arguments, it should exercise its discretion to reduce the award of statutory damages to the statutory minimum.

Judge Michael Davis, who presided over the trial, previously slammed what he called an "unprecedented and oppressive" $220,000 fine levied against Thomas in the first trial — so there's a fair chance the motion will be heeded.

Thomas is also appealing to have evidence from the RIAA investigator MediaSentry excluded because the company wasn't licensed as a private investigator in the states where it operated.

Get 'yer copy of the motion right here (PDF). ®

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