Lawyers for Jammie Thomas-Rasset, a US mother of four fined $1.9m (about £1.2m) last month for illegally downloading 24 songs, have filed a request for a new trial. And they're right. The judgment is ridiculous.
The lawyers claimed the damages - which comes out at around £50,000 per song - "shocks the conscience and must be set aside". They're asking the US District Court of Minnesota to take one of three actions:
1) Toss out the statutory damages, which Thomas-Rasset's team claims are based on an unconstitutional provision of the Copyright Act.
2) Reduce the fine to $18,000 (£11,000) on the basis that, if the statutory-damages provision of the Copyright Act is deemed constitutional, the jury's application of it was "excessive, shocking and monstrous".
3) A third jury could set an even lower fine.
Last month's trial was actually a retrial of an October 2007 case in which Thomas-Rasset was found guilty of copyright infringement and ordered to pay $222,000 - or $9,250 per song downloaded and shared via a peer-to-per file sharing network. That verdict was later overturned by a US district judge.
In their bid to toss out the most recent judgment, Thomas-Rasset's lawyers accurately point out that the fine doesn't match the crime:
"The statutory damages awarded in this case - which are nearly an order of magnitude greater than the statutory damages assessed in the first trial - bear no reasonable relation to the actual injury suffered by the plaintiffs. The damages awarded are grossly in excess of any reasonable estimate of that injury. The plaintiffs did not even attempt to offer evidence of their actual injuries, seeking instead an award of statutory damages entirely for purposes of punishment and deterrence."
Writing for PC Advisor sister site PC World last month, JR Raphael wrote that the damages of $1.9m are not only disproportionate but unconstitutional.
"The Supreme Court has previously indicated that 'grossly excessive' punitive damage awards are a violation of the US Constitution," he wrote. "An award can be considered 'grossly excessive' if there's too big a gap between the actual harm done and the amount of money being named. Courts can also consider the 'degree of reprehensibility' of the defendant's actions, along with how the penalty compares to similar ones issued in the past."
Furthermore, the jury was granted too much leeway to determine the appropriate fine, which should range from $750 to $150,000 per violation, according to US copyright law.
Digital rights watchdog groups such as the Electronic Frontier Foundation believe juries aren't given useful guidelines on how to determine appropriate fines, a problem that leads to absurd damages such as these.
Will the Minnesota pirate mum get a new trial? Let's hope so. But let's also hope the new jury gets better instructions this time around. Or better yet, the Recording Industry of America (RIAA) could simply settle out of court with Thomas-Rasset for a few thousand dollars, the same approach the industry group has taken with other pirates in recent years.