After three federal trials, a failed appeal to the 8th Circuit Court and a last-ditch run at the U.S. Supreme Court, the tortured case of a Duluth music pirate has finally come to an end, leaving her owing $222,000 for sharing 24 songs on the Internet.
And Jammie Thomas-Rasset, now living in Brainerd, says she’d do it all over again.
The 35-year-old environmental rehabilitation coordinator for the Mille Lacs Band of Ojibwe says she believes that her case led the music industry to retreat from its strategy of suing thousands of suspected music pirates. The turning point came after a federal judge in Minneapolis ruled that her practice of posting copyrighted music files was not the same as distributing them, a key component of copyright law.
Until then, Thomas-Rasset said, industry groups were suing thousands of people at a time and demanding settlements of several thousand dollars.
“It was right after my first trial [in 2007] that they decided they would stop suing people, so I would not do it differently,” she said Monday after the U.S. Supreme Court declined to hear her appeal.
Some judges have disagreed with the ruling in her case by Chief U.S. District Judge Michael Davis. Subsequent agreements reached between the recording industry and major Internet service providers to send alerts to subscribers that they may be violating copyrights likely played a significant role in the decision to abandon the mass copyright suits as well.
Industry still willing to settle
The Recording Industry Association of America (RIAA) issued a statement saying that it appreciates the Supreme Court’s decision, bringing an end to a case that began in 2005 when a consultant spotted 1,700 copyrighted recordings on a file-sharing service called Kazaa that were later linked to Thomas-Rasset.
“We’ve been willing to settle this case since Day One and remain willing to do so,” the industry group said Monday.
Thomas-Rasset said she has no way to pay and will simply file for bankruptcy if necessary. “If they try and come after me for it I’m not going to have any choice,” she said. “If I have to file bankruptcy that would probably ruin my credit for seven to 10 years, but my credit’s not really that good anyways.”
The lawsuit against Thomas-Rasset was filed in April 2006. A jury awarded the plaintiffs $222,000 in October 2007, charging her $9,250 for each song. But Davis concluded that he erred in a jury instruction and granted a new trial. He held that making a copyrighted work available to the public is not “distribution” under the law.
The jury in the second trial was even less sympathetic. It awarded the plaintiffs $1.92 million, or $80,000 per song.
Davis found that amount “shocking” and cut the award to $54,000, or $2,250 a song. The plaintiffs refused the award, bringing a third trial in November 2010. That time, jurors awarded the plaintiffs $1.5 million, or $62,500 per song.
Thomas-Rasset appealed, arguing that the award violated the due-process clause of the Constitution. Davis agreed and reduced it to $54,000 again. The appellate panel reversed his decision in an 18-page opinion and remanded the case with instructions to reinstate the $222,000 judgment.
The appellate panel declined to decide the question of whether making copyrighted materials available for download violates federal law. But it did find that Davis should have barred Thomas-Rasset from doing so regardless, as the industry plaintiffs had requested.
Case watched widely
The Thomas-Rasset case was watched by intellectual property attorneys nationwide. Some have cited the case as leverage to get other defendants to settle.
The fact that the Supreme Court declined to resolve that issue can be seen as kind of victory for the defense lawyers who’ve spent untold hours and money representing Thomas-Rasset at no charge, said Kenneth Port, director of the Intellectual Property Institute at William Mitchell College of Law. “They are the heroes in this case,” he said.
Unfortunately, Port said, it remains unresolved whether active distribution is required for a copyright violation to occur. Port, who wrote a friend-of-the-court brief in the case, said the plain language of the statute does not equate “distribution” with making a protected work available to others. Congress has amended the law a number of times but has failed to change that, he said.
Issue could resurface
Kiwi Camara, a Houston intellectual property lawyer who represented Thomas-Rasset in the appeal to the Supreme Court, said in an e-mail that its refusal to hear arguments in the case was disappointing. He said the issue could return to the court in the case of Joel Tenenbaum, which is currently pending in the First Circuit. Tenenbaum faces a judgment of $675,000 for 31 songs he distributed while a student at Boston University.
Thomas-Rasset said she hasn’t been thinking much about her case. She said she has more important considerations, like the arrival of her first grandson, Cole, nine months ago. “He’s a hoot!” she said.
Dan Browning • 612-673-4493