On Monday, Jammie Thomas’ attorney, Brian Toder, filed a motion asking that the judge set a new trial to determine damages or, in the alternative, for a remittitur.  Thomas is the woman who was recently found guilty of copyright infringement as a result of which the Plaintiff was awarded $222,000.

The Federal Rules of Civil Procedure gives the judge sole discretion to require that the plaintiff “remit” a portion of the award back to the defendant if he finds that the award is “palpably and grossly excessive” as a matter of law.  See Douglas v. Cunningham, 294 U.S. 207, 210, 79 L.Ed 862, 55 S.Ct. 365 (1935).  The motion requests that U.S. District Michael Davis reduce the award to between zero and $150 dollars.  As an alternative, if the judge deems all 24 uploads to be a single infringing act, an aggregate punitive award of $750.  The defendants entire brief can be read on the blog, Recording Industry v. the People

Thomas’ attorneys base their requests on the sole grounds that the award of $222,000 is excess and, therefore, violates the Due Process clause of the United States Constitution. 

Courts have universally found that when a punitive damage is awarded, as is the case with the statutory damages awarded in Thomas, the defendant must be given due process with regard to the award of the damages.  Her attorneys are arguing that Thomas did not receive due process in this case because the award of $222,000 was grossly in excess of the actual damages sufferred by the Plaintiffs for the infringement of 24 songs which could be purchased online for $1 each. [They cite Zomba Enterprises v. Panorama Records, Inc, 491 F.3d 574 (6th Cir. 2007) and State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408, 123 S. Ct. 1513, 155 L. Ed. 2d 585 (2003), both infringement cases where the ruling was that due process was violated because the punitive damages were over 100 times greater than the actual damages).

This is a very viable motion and one which I feel the court might seriously entertain.  However, there is one other alternative available to the Court: the Court can treat each song as an act of infringement and therefore award statutory damages of $750 for each infringement, which would make the remititur closer to $18,000.  It would certainly be ironic, if not a bit poetic, if the Court remitted the award to somewhere between $3,000 and $5,000 which is exactly what the RIAA proposed to the recipients of its pre-litigation letters.

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