Jammie Thomas who lost to the tune of $222,000 her file sharing case against the RIAA has decided to appeal the verdict. She's not challenging the decision to hold her responsible for copying without permission, just the size of the award made against her.
"Defendant, by and through her undersigned attorney, hereby moves the Court for an
order granting a new trial pursuant to Fed. R. Civ. P. 59, or in the alternative, for
remittitur. Defendant’s singular grounds for the relief sought is that the amount of the award is excessive and in violation of the Due Process Clause of the United States
Defendant requests that the Court grant a new trial on the issue of damages so that
the Court can determine the extent of plaintiffs’ actual damages or harm suffered by the uploading of the 24 subject recordings. This inquiry is necessary because the amount of any award above and beyond actual damages or harm suffered is purely punitive, and as such must be scrutinized by the Court to insure that it is not grossly excessive, thereby violating the Due Process Clause of the United States Constitution.
Alternatively, the Court is urged to order remittitur. Song recordings are typically
purchased over the internet for about one dollar. Assuming plaintiffs receive 70 cents per song,1 and pretending that defendant’s downloading went to someone other than plaintiffs’ agents, plaintiffs’ damages would be $16.80.2 Multiplied by the maximum Constitutional limits suggested in BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S. Ct. 1589, 134 L. Ed. 2d 809 (1996) and in State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408, 123 S. Ct. 1513, 155 L. Ed. 2d 585 (2003), a proper remittitur would be in the amount of zero dollars to $151.20.
If the Court decides that the minimum amount of the remittitur is fixed at $750 per
song recording, defendant argues that the Court has the authority, if not the duty, to test the Constitutionality of the application of the minimum statutory amount in the instant matter, because that number is more than 1,000 times the actual damages or harm suffered by plaintiffs...
...the Court is beseeched to grant a new trial, or alternatively, remittitur for an amount that does not offend the Due Process Clause of the United States Constitution, which amount should be between zero dollars and $150 total, comparing actual damages to the penalty; or $750 total if the Court chooses to aggregate and deem all 24 song recordings a single infringing act and then applies the statutory minimum penalty notwithstanding the ratio of actual damages or harm suffered to the penalty amount."
Somehow I don't think the RIAA will go along with the notion that she is only responsible to the tune of $151.20 or $750 and sadly I can't see the appeal court overturning the statutory damages of upwards of $750 per item either. We can only hope proportionality through due process will prevail though it doesn't tend to be a prominent feature in modern IP cases.