Lawyers for Jammie Thomas-Rasset urged a federal judge on Monday to set aside the $1.92 million judgment a jury levied on her last month for infringing24 copyrighted songs on the Kazaa file-sharing network.

Thomas-Rasset, 32, is the nation's only file-sharing defendant to go before a jury out of the30,000-plus cases brought by the Recording Industry Association of America the past five years. Most all defendants settled out of court for a few thousand dollars. Trial for the second defendant seeking a jury is set to begin in three weeks.

Among other things, Thomas-Rasset's lawyers claimed Monday a so-called "due process" violation in the jury's conclusion to ding her $80,000 a copyrighted track. The Copyright Act allows for fines of as much as $150,000 a song.

Thomas-Rasset also claims that the evidence the jury relied on should have been excluded. Her lawyers maintain that the online services of MediaSentry, the RIAA's former investigator based in Maryland, should have acquired a license to do business in Thomas-Rasset's home state of Minnesota.

Threat Level, meanwhile, wrote two weeks ago it was unlikely Thomas-Rasset would win a retrial on the so-called "due process" claim for a host of reasons. Among them, Thomas-Rasset likely was not the victim of a "due process" violation" under U.S. legal precedent. The law clearly stated that her conduct could result in fines of as little as $750 up to $150,000 an infringement.

That said, Thomas' lawyers do recognize they have bumpy legal terrain to navigate to convince U.S. District Judge Michael Davis to declare the Copyright Act unconstitutional. After Thomas-Rasset's first trial in 2007, in which Davis declared a mistrial because of an error in a jury instruction, the judge noted that the original verdict of $222,000 for the same 24 songs was ridiculous but nevertheless suggested Congress should change the law.

On Monday, the lawyers told (.pdf) Davis "Mrs. Thomas contends that even if the statutory damages provision of the Copyright Act is constitutional, the jury’s application of it in this case is excessive, shocking, and monstrous." They suggested Judge Davis reduce the fine to the minimum $750 per song if he doesn't order a new jury to retry a new damages award.

Whether Davis would go for such a plan is anybody's guess. Yet he might not be so sympathetic toward Thomas-Rasset. During the first trial, Thomas-Rasset told jurors that a unknown hack or crack hijacked her WiFi connection and infringed the songs – even though she didn't have a wireless home connection. At the second trial, she testified the culprit might have been one of her four children.

Clearly, we think the award levied against Thomas is absurd. But there's something to be said about the old legal adage that bad facts make bad case law.

The defendant's other main claims are alarming: that MediaSentry should have had a business license in Minnesota to view online and make screen shots of her open-to-the-public Kazaa share folder that nailed her, in the jury's view, dead to rights in both trials. MediaSentry also made downloads of the songs as well.

"Mrs. Thomas now, out of an abundance of caution and in an effort to give this court a final opportunity to reconsider its order, moves for a new trial … on the ground that there is not sufficient admissible evidence to sustain the jury’s verdict because the evidence collected by MediaSentry should not have been admitted," defense attorney Kiwi Camara, Thomas-Rasset's lead attorney, wrote Monday.

Judge Davis already rejected such a suggestion ahead of the second trial. It should also be rejected by those who welcome a border-less internet – an internet that does not require online commerce sites or pajama-clad bloggers hawking shirts and hats to register as a business in all 50 states.

Photo: Marmadon

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