Mules, long noted for stubbornness, would seem to have nothing on either the music labels or Jammie Thomas-Rasset. Both sides have dug in deep and are prepared, almost unbelievably, to have a third trial on the question of whether Thomas-Rasset was a dirty P2P pirate... and of what she should pay if she was.

Thomas-Rasset was the first US defendant of the RIAA lawsuit campaign to take her case all the way to trial. That first trial in 2007 found her liable for copyright infringement and fined her $222,000. She was then granted a retrial by the judge on the grounds that he had been misled on one particular jury instruction that described simply "making available" a copyrighted file as copyright infringement. Citing Eight Circuit precedent, the judge decided that this wasn't good enough and that only actual proof of a file transfer could be counted.

At the second trial, in 2009, Thomas-Rasset was again found liable, but the jury this time fined her $1.92 million. Last week, federal judge Michael Davis decided that this was "monstrous" in its disproportionality and slashed the damages to $54,000. The recording industry could either accept his decision or request a third trial.

The RIAA then sent a letter to Thomas-Rasset's lawyers with an alternate offer. Thomas-Rasset could settle for only $25,000 ("We are willing to negotiate a payment schedule for this sum," said a copy of the letter seen by Ars), and she wouldn't even need to pay the labels—all cash could go to a charity benefiting musicians. The entire settlement would be conditioned on the judge vacating his recent remittitur order.

"We do not believe embarking on a third trial is in anyone's interest," said the letter. "Continuing to use scarce judicial resources as well as spend our respective clients' time and money strikes as unwise and pointless."

It does not strike Thomas-Rasset that way. While the RIAA asked for an answer by Friday, January 29, Thomas-Rasset's lawyers have already responded: no deal.

I checked in with Kiwi Camara, one of Thomas-Rasset's lawyers. who confirmed that the settlement was ruled out. He added that Thomas-Rasset would likewise rule out any settlement asking her to pay damages, and that the Camara & Sibley law firm was ready to represent her pro bono once more.

Third time's the charm?

It's hard to see how this will play out, but a few things are clear: Judge Davis, despite strong criticism of the damage award, had no kind words for Thomas-Rasset. He noted that "Thomas‐Rasset’s refusal to accept responsibility for her actions and her decision to concoct a new theory of the infringement casting possible blame on her children and ex‐boyfriend for her actions demonstrate a refusal to accept responsibility and raise the need for strong deterrence." The judge even concluded that she "lied on the witness stand by denying responsibility for her infringing acts and, instead, blamed others, including her children, for her actions."

Given the facts in the case, which after two trials don't appear to be in dispute, it's hard to see how Thomas-Rasset hopes to prevail without paying a dime, but that appears to be the plan. If she had been willing to pay something, she would have done so long ago, when the RIAA offered her a settlement of a few thousand dollars. Instead, Thomas-Rasset has spent years of her life working with two law firms on two federal trials, and she's willing to risk a third.

The stubbornness isn't just on one side of the aisle, however. The RIAA is completely unwilling to abide Judge Davis' ruling that the jury's damage award was excessive. Accepting the ruling would set an unacceptable precedent for judges to alter jury awards in copyright cases at their whim. It's not the amount, but the principle—something shown by the fact that the trade group is willing to drop roughly a bazillion dollars more on the Denver law firm that has been prosecuting the case in order to do it all again. In addition, conversations with industry lawyers and executives over the years have also revealed a strong sense that Thomas-Rasset needs to take responsibility and pay something; there's a very real sense that, apart from issue of statutory damage law, Thomas-Rasset is thumbing her nose at the industry and hoping to get away with no penalty.

Thus—a third trial. "It is a shame that Ms. Thomas-Rasset continues to deny any responsibility for her actions rather than accept a reasonable settlement offer and put this case behind her," RIAA spokesperson Cara Duckworth told Ars. "Given this, we will begin preparing for a new trial."

Camara & Sibley are also ready to go, so it looks like everyone will trek back to Minnesota to rehash the same issues for a third time. Judge Davis' patience with the entire proceeding seems thin; he has already trashed two jury verdicts and called publicly on Congress to change the law, but he has also made clear that Thomas-Rasset should take responsibility. The judge must be about as thrilled as we are to see the case take up another full week on his docket.

Class-action suit against labels still coming



Much more interesting, however, would be a major class-action lawsuit against the recording industry. Such a lawsuit would get even more intriguing if the prosecuting lawyers said that they plan to "get the $100 million that [the RIAA] stole" by suing people and collecting settlements. (The RIAA says it has not earned $100 million from the campaign, and that it actually lost money after paying all the lawyers.)

That's exactly what Camara plans to do. He told us about it last year but indicated that the case would be coming by the end of summer 2009. Is the case still in the works? Camara tells us today that it is.