Fighting the Neverending Battle

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By Aaron Thalwitzer

The recording industry is suffering, but it also has deep pockets. The industry has been fighting Jammie Thomas-Rasset (whom I will call Rasset, just because) through some serious litigation. Accordingly to a Minnesota jury, a couple dozen songs (that, admittedly weren’t Thomas-Rasset’s) are worth $1.92 million. Or . . . no they’re not. The judge reduced it to $2,250 per song.

Let’s back up a few steps. Ten years ago, you were in your dorm room, snuggling up with that T1 connection, double-clicking on every Third Eye Blind abomination in sight just because you could. No, you didn’t really want it, you won’t listen to it, but gosh-sarn-it it’s there, it’s free, and like the sample sticks of deodorant your co-worker brings in, you cannot resist the lure. (I admit it, this is autobiographical).

But, unlike that irresistible deodorant, the songs are not really free (except when they are). They were unlawfully ripped, distributed, and then you unlawfully downloaded them! You are bad! But you are not in the recording industry’s sights (except when you are).

Rasset, however, is in their sights, but the industry just can’t pin her down. Nine months after the judge slashed the damages, and mere weeks before the third jury trial was to begin, Rasset asked the judge to change the order and find that the damages were unconstitutionally separated from the actual harm. This would end the trial and open the case to the wonderful world of appeals, and also, mercifully, brings us to the heart of our story.

Rasset doesn’t have millions of dollars and never will. The recording industry knows this. They really want to set some good ole’ fashioned precedent, and the only way to do that is to get an appeals court to rule in their favor. Litigating trial after trial is expensive and ultimately pointless unless they get that sweet, sweet, precedent. But, Rasset is also succeeding/failing in antagonizing the recording industry. Their lawyers recently said, “[Rasset’s] request for reconsideration is based not on compelling circumstances, but rather on her desire to avoid another trial in this case, which she masks as an appeal to judicial economy . . . What [Rasset] really seeks is not judicial economy, but to avoid the possibility of another verdict by a properly instructed jury that reinforces the reasonableness of statutory damages well above the range she thinks is appropriate or constitutional.”

In other words, “Now, [dramatic pause] it’s personal.”

Really? Probably not, but it beats lawyer-speak.

Now, the industry doesn’t want to keep trying the same case; it wants to make law favorable to its interests. But, it already prepped for the third trial, so it wants to go forward with it. Consider this though: three huge jury verdicts in the same case would set their precedent, or at least a heckuva good record on appeal. At some point, the judge is bound to withhold his discretion and let the jury do its thing.

The endgame isn’t pretty for either party: keep trying cases, proceed to the appeal, or if you’re Rasset, pay up (and let us not forget the attorneys’ fees).

Just hope no one finds out about all those Third Eye Blind songs.

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FRIDAY, OCTOBER 24, 2014

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