The attorney representing a Brainerd, Minn., woman found liable for $222,000 for illegally sharing copyrighted music filed a motion in U.S. District Court Monday asking for a new trial, or alternatively that most of his client's liability be erased.
Minneapolis attorney Brian Toder said in his motion that the amount of the jury award is excessive and therefore violates the due process clause of the U.S. Constitution. If not granted a new trial, Toder asks the court for a remittitur -- a judge's order reducing a judgment awarded by a jury when the award exceeds the amount asked for by the plaintiff.
Toder argues that the music industry offered no evidence regarding what their actual damages were. He suggests that his client owes $16.80 for the 24 songs she illegally distributed.
Toder reached that figure based on an affidavit signed by a Los Angeles music industry analyst that he filed with his motion. The analyst stated that sound recording downloads are obtainable by the public for 99 cents per song with about 70 cents per song paid by the retailer to the record label.
On Oct. 4, after a three-day trial in Duluth, a jury found that Thomas willfully committed copyright infringement by distributing 24 songs on the KaZaA peer-to-peer file sharing network.
ADVERTISEMENT
Jurors determined that Thomas was liable for $9,250 per song. They could have awarded the companies between $750 and $150,000 for each song.
In his motion, Toder called the jury award "not only astronomical, it is offensive to our Constitution and offensive generally.''
Capitol Records Inc., Sony BMG Music Entertainment, Arista Records LLC, Interscope Records, Warner Bros. Records Inc. and UMG Recordings were the prevailing parties in the lawsuit against Thomas, a 30-year-old single mother of two.
"We think the amount of damages is absolutely unconstitutional,'' Toder said in a phone interview Monday. "As everybody in the world knows, the plaintiffs had no damages. The 24 songs were downloaded to MediaSentry'' -- an information security company the plaintiffs used to download the recordings from Thomas.
"The plaintiffs would contend that hundreds of thousands of songs were downloaded,'' Toder said. "There's no evidence of that, just speculation. In the United States of America you don't get damages based on speculation.''
The head of litigation and anti-piracy for Sony BMG Music Entertainment and Arista Records testified during the trial that music piracy has caused billions of dollars of harm to the industry. Another witness testified that more than two million people were on the file sharing network at the same time as Thomas.
In his motion, Toder argues that if the minimum statutory award is $750 per song recording, the court "has the authority, if not the duty, to test the constitutionality'' of that award because it is more than 1,000 times the actual damages or harm suffered by the plaintiffs.
Toder concludes his motion by stating if his client does not receive a new trial, the amount she owes should be between zero dollars and $150 total, comparing actual damages to the penalty; or $750 total if the court chooses to aggregate and deem all 24 song recordings in a single infringing act and then applies the statutory minimum penalty.
ADVERTISEMENT
Thomas has established a Web site -- "Freejammie.com" to help her with her legal fees.
"Hundreds of people are sending us thousands of dollars,'' Toder said. According to the most recent entry on the Web site Monday, Thomas has received almost $14,000 in contributions. She said the money is going directly into a trust account created for her by Toder to be used for her appeal, which she thinks may ultimately go to the Supreme Court.
MARK STODGHILL covers public safety and courts. He can be reached weekdays at (218) 723-5333 or by e-mail at mstodghill@duluthnews.com .
