RIAA defendant asks the judge to set aside the verdict

THE WOMAN ordered to pay the RIAA $222,000 for allegedly sharing 24 copyrighted songs moved to set aside the trial verdict Monday, on the grounds that the jury award is unconstitutionally excessive compared to any conceivable valuation of the RIAA's injury.

If successful, Jammie Thomas' petition could take the wind out of over 20,000 similar RIAA lawsuits, a fact that the RIAA has acknowledged in another file sharing case in New York.

It challenges the constitutionality of the penalty provisions of the 1976 Copyright Act, which authorise fines of $750 to $150,000 for each instance of copyright infringement. Thomas' lawyer Brian Toder argued that such high penalties are excessive for downloaded music, even offensive, and counter to established US Supreme Court precedent.

Assuming that each song is valued at the Itunes rate of 99 cents, the minimum fine of $750 is more than 750 times the amount of financial injury.

If each downloaded song deprived the music industry of only 70 cents in revenue, Toder argued, then the proportion of the minimum fine to actual damages would be more than 1,000-to-1. He pointed out that prior court rulings, including by the US Supreme Court, have held that financial penalties above a 9-to-1 ratio to actual damages suffered are excessive.

He wrote, "Whether the court recognizes actual damages of zero dollars, $20 or whatever figure plaintiffs suggest ... the ratio of actual damages to the award is not only astronomical, it is offensive to our Constitution and offensive generally."

Toder asked the trial judge to either reduce the amount of the award or order a hearing to establish the amount of actual damages. No hearing date for Thomas' motion has been set. µ

L'INQ
Wired