The Obama administration told a federal judge Friday the $1.92 million jury verdict against a Minnesota woman for sharing 24 music tracks on Kazaa was constitutionally sound, despite defense claims it was unconstitutionally excessive.

After the June verdict against Jammie Thomas-Rasset, defense attorneys urged U.S. District Judge Michael Davis to set it aside or reduce dramatically the $80,000-per-song award, arguing it was "excessive, shocking and monstrous."

In response to that challenge to the Copyright Act, which allows damages up to $150,000 per song, the Justice Department told Davis in a 26-page brief that the verdict should not be overturned on grounds it was unconstitutionally excessive.

"The current damages range provides compensation for copyright owners because,* inter alia*, there exists situations in which actual damages are hard to quantify," the government wrote. "Furthermore, in establishing that range, Congress took into account the need to deter the millions of users of new media from infringing copyrights (.pdf) in an environment where many violators believe that they will go unnoticed."

At the time of the Minnesota verdict, Thomas-Rasset, 32, was the nation's only file-sharing defendant to go before a jury out of the 30,000-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 to go before a jury ended last month with a $675,000 verdict in favor of the RIAA for sharing 30 songs online.

It is not unusual for the government to weigh into a case in which the constitutionality of the law is at issue. The Obama administration, and the Bush administration have weighed in on lawsuits in which the Copyright Act was under the microscope – always in support of the law.

But Friday's filing was the first time the government announced that an eye-popping $80,000 per track in damages was not excessive.

Thomas-Rasset must navigate bumpy legal terrain to convince Judge 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.

Most important, Thomas-Rasset's claim of a so-called due process violation is likely to fail. That's because Thomas-Rasset most 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. (Due process generally means having advance notice of the trouble one can get into for unlawful conduct.)

Sensing a losing position, the defendant's lawyers told Judge Davis last month 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 the judge reduce the fine to the minimum $750 per song if he doesn't order a new jury to retry a new damages award.

Photo: Marmadon

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