Thomas verdict: willful infringement, $1.92 million penalty

A new lawyer, a new jury, and a new trial were not enough to save Jammie Thomas-Rasset. In a repeat of the verdict from her first federal trial, Thomas-Rasset was found liable for willfully infringing all 24 copyrights controlled by the four major record labels at issue in the case. The jury awarded the labels damages totaling a whopping $1.92 million. As the dollar amount was read in court, Thomas-Rasset gasped and her eyes widened.

Kiwi Camara, Thomas-Rasset’s lead attorney, spoke briefly after the trial. He told reporters that when he first heard the $80,000 per song damage award, he was “angry about it” and said he had been convinced that any liability finding would have been for the minimum amount of $750 per song.

As for Thomas-Rasset, she appeared shaken by the verdict but didn’t blame the jury. “They did their job,” she said, “I’m not going to hold it against them.” She added, though, that the recording industry would never collect the money. “Good luck trying to get it from me… it’s like squeezing blood from a turnip.”

The recording industry lawyers, though clearly pleased, had no desire to showboat this one. The massive damage award, which increased from $9,250 per song in the first trial to $80,000, might sounds like a “win,” but will probably stoke grassroots anger against the industry’s campaign… if the music business tries to collect. There are hints that it might not.

Spokesperson Cara Duckworth of the RIAA, who attended the trial, told reporters afterwards, “Since day one we have been willing to settle this case… and we remain willing to do so.” The industry appears to be doing everything it can not to appear vindictive in these cases, though Duckworth refused to discuss any details of what a proposed settlement might look like.

Camara acknowledged the settlement offer and said that his side would certainly investigate it, but he made clear that he intends to file numerous motions if Thomas-Rasset wants to continue the fight. Motions on the constitutionality of such massive damages and other issues can still be filed with the judge, and then there’s the entire matter of an appeal.

Thomas-Rasset sounds inclined to fight on. The case was “one for the RIAA, not the end of the war,” she said.

As for Camara, he intends to press ahead with his class-action lawsuit against the recording industry, in which he will take up the daunting task of trying to claw back all the money that the recording industry has collected in the course of its legal campaign to date.

Not good enough

A vigorous defense from Kiwi Camara and Joe Sibley was not enough to sway the jury, which had only to find that a preponderance of the evidence pointed to Thomas-Rasset. The evidence clearly pointed to her machine, even correctly identifying the MAC address of both her cable modem and her computer’s Ethernet port. When combined with the facts about her hard drive replacement (and her failure to disclose those facts to the investigators), her “tereastarr” username, and the new theories that she offered yesterday for the first time in more than three years, jurors clearly remained unconvinced by her protestations of innocence.

Camara suspects that the jury thought Thomas-Rasset was a liar and were “angry about it,” thus leading to the $80,000 per-song damages.

The case is a reminder that in civil trials, simply raising some doubt about liability is not enough; lawyers need to raise lots of doubt to win the case, and Camara and Sibley were unable to do so here.

The jury found Thomas-Rasset’s conduct to be willful, which means that statutory damages under the Copyright Act can range from $750 per infringement up to $150,000. In his closing statement, defense lawyer Joe Sibley made clear that even the minimum award would run $18,000 (24 songs x $750 = $18,000), an amount that he said was unfair and crippling to Thomas-Rasset. The jury decided that the per-song penalty would be $80,000, for a total damage award of $1.92 million, over $1.7 million more than the award in her first trial.

The complete trial account (in chronological order)

Day one: Jury selection
Day one: The recording industry’s major misstep
Day two: Jammie Thomas-Rasset takes the stand
Day three: Thomas-Rasset appears as the only defense witness
Day four: Closing arguments