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Jammie Thomas lawyers push for zero damages

By | Published on Thursday 9 December 2010

Will Ms Thomas prove to be truly Jammie as her long running legal battle with the US record industry enters its final phase? Could one of the true celebrities of the Recording Industry Association Of America’s sue-the-fans litigation campaign really get away with paying no cents in compensation for her file-sharing ways? Well, her lawyers are having a go.

As much previously reported, that Thomas infringed copyright when she downloaded 24 songs via Kazaa is not of debate, the question is what sort of damages should she pay to the companies whose rights were infringed? US copyright law allows damages to be awarded of anywhere between $750 and $150,000 per infringement. In Thomas’s case, judges have tended to err towards the lower figure, while juries for some reason prefer the higher.

So when, at the end of her second trial, Thomas was fined $1.92 million by the jury, the judge hearing the case subsequently slashed the amount to $54,000. When Thomas refused to pay that (or half that, as the RIAA was offering in an out of court settlement), the record companies appealed the judge’s ruling, and another jury plumped for $1.5 million.

Responding to that ruling, Thomas’s lawyers this week made a filing asking the judge to cut the damages their client is due to pay to, well, zero.

Their argument goes like this. A $1.5 million damages payment (or even a $54,000 payment) bears no proportionality to the actual losses made by the record companies as a result of Thomas’s file-sharing, and the US constitution demands proportionality be considered, whatever copyright legislation might say about minimum and maximum amounts.

They add that, in terms of proportionality, the record companies have failed to present any evidence as to what actual damage Thomas’s specific file-sharing caused. They have spoken a lot about the general damage caused by the wider phenomenon of file-sharing but, the lawyers say, Thomas can’t be held liable for the wider phenomenon, only for her own infringement. And, they conclude, in the lack of any evidence presented by the claimants, the judge should declare a “take-nothing” verdict.

It’s a bold argument. The RIAA, which wants the most recent damages ruling to stand, will presumably argue that it is not for a judge to overturn a jury ruling that has been made on two separate occasions. Thomas’ people may say the constitutional element of their argument trumps both juries’ decisions. It will be interesting to see what happens next.

For its part, the RIAA also made a filing this week, though its focused more on demands for a permanent injunction against Thomas ordering her to never violate a record company’s copyrights ever again.

In sort of related news, the court has rejected a submission from Professor Charles Nesson, the lawyer and academic who led (and, some would argue, bungled) that other high profile file-sharing case, RIAA v Joel Tenenbaum. In his new paper he presented legal arguments as to why it was wrong to find Thomas guilty of copyright infringement in the first place. Judges said the paper “would not be of assistance to the court”.