Thomas-Rasset's lawyers argued that (1) the jury's verdict of $80,000 per infringed work is unconstitutional because it violates Due Process; (2) that it is so unconscionable that the court may unilaterally knock the award down to a more reasonable number; (3) set aside this verdict and empanel yet another jury for trial #3.
The lawyers also said they planned to appeal on the issue of the admitted MediaSentry evidence and the lack of a certified copyright certificate.
Regardless of the theory, the main issue is the size of the award. The Copyright Law provides for a broad range of statutory damages per infringed work. One question is whether a "work" is a song (iTunes download) or an album. Either way you cut it, the ratio of statutory damages to value of the infringed work is mind-boggling.
For 24 songs, available for $1.29 on iTunes, the jury assessed statutory damages of $80,000 per song — a ratio of 1:62,015. For 24 albums, available for no more than $15 at the store, the jury assessed statutory damages of $80,000 per album — a ratio of 1:5,333.
"Grossly excessive" punitive awards are disallowed by the due process clause, the Supreme Court has ruled. The test for a due process violation is:
(1) the degree of reprehensibility of the defendant’s misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.
While the Court refused to recognize absolute numbers, it strongly suggested that anything over three or four or at the most 9 times the actual damages would fail the test. It would appear the Thomas-Rasset awards easily qualify.
Thomas-Rasset's lawyers largely skirt around the fact that the Court in Gore was dealing with jury awards. Here, the jury was applying a statutory scheme, which might require a finding that the law Congress passed is unconstitutional. But because the law provided for such extreme penalites, one could argue that there's little difference between Congress's numbers and ones a jury pulls out of a hat.
The defendant also asked the court to simply knock down the award to something reasonable under the federal common law remedy of remmittitur.
Remittitur is appropriate where the result on a verdict “is monstrous or shocking.” Here, where the punishment ratios are 1:62,015 measured in songs and 1:5,333 measured in albums, the verdict is both monstrous and shocking. 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.
Evidence appeals The defendant is also asking for a new trial on the basis that the court erred in admitting the MediaSentry evidence because it was illegally obtained.
Neither MediaSentry nor Plaintiffs have disclosed the location of MediaSentry’s activities in February 2005. Media reports in 2005 indicate that MediaSentry most likely conducted its activities from either New Jersey or Maryland. Both New Jersey and Maryland have private investigator and wiretap statutes that MediaSentry would have violated if it conducted its activities from these states.
The judge previously expressed outrage over the size of the original $222,000 verdit in Trial #1, so he may well welcome the opportunity to throw this one out, as well. Whether he would order a whole new trial is anybody's guess. And at this point, the RIAA probably would welcome seeing this one swept under the rug.