Twenty-four songs, three verdicts, nearly seven years

The suit concerned twenty-four songs Jammie Thomas-Rasset was accused of sharing on Kazaa. The music industry's lawyers turned those twenty-four songs into what some secondary sources describe as the first RIAA file-sharing case to reach a jury, and then into three jury trials, two verdicts north of a million dollars, two judicial reductions, and an appeal that landed exactly back where the first trial had started.

The final number: $222,000. The same number as trial one.

What the papers say

The plaintiffs were Capitol Records, Sony BMG Music Entertainment, Arista Records, Interscope Records, Warner Bros. Records, and UMG Recordings. Secondary sources report the case was filed on April 19, 2006 against Jammie Thomas-Rasset of Brainerd, Minnesota, alleging willful infringement under 17 U.S.C. sections 101, 106, and 501-505 by downloading and distributing twenty-four sound recordings via the Kazaa peer-to-peer network. (Scholarship on the case suggests the original complaint named "Jammie Thomas," so the "Thomas-Rasset" caption on the original filing may be anachronistic.)

The record's best details: MediaSentry, hired by the labels, traced the Kazaa username 'tereastarr' to her IP address. Her share folder contained more than 1,700 music files. A forensic investigator testified she replaced her computer's hard drive after investigators notified her. She denied ever using Kazaa, and at the second trial suggested her children or her ex-boyfriend might be responsible. The plaintiffs sought only statutory damages under 17 U.S.C. 504(c), not actual damages.

The money

Trial one, October 4, 2007: $9,250 per song, $222,000 total. On September 24, 2008, the district court vacated the verdict and ordered a new trial over the 'making available' jury instruction. Trial two, June 18, 2009: $80,000 per song, $1,920,000 total. On January 22, 2010, Judge Davis remitted the award to $2,250 per song, $54,000 total, calling the jury's award 'monstrous and shocking.' The plaintiffs declined the remittitur, opted for a new trial on damages, and reportedly offered a $25,000 settlement, which she declined. Trial three, on damages only, delivered its verdict on November 4, 2010 (per contemporaneous press reporting): $62,500 per song, $1,500,000 total. On July 22, 2011 (per contemporaneous press reporting), the district court reduced it again to $54,000, this time on Due Process grounds.

On September 11, 2012, the Eighth Circuit reinstated the original $222,000. The Supreme Court denied certiorari on March 18, 2013 (per contemporaneous press reporting). The final judgment stands at $222,000, and before the suit was even filed, in August 2005, the RIAA had reportedly offered to settle for $5,000, which she declined. The opinions and court records do not publish either side's legal bills, so no fee figures appear here.

The ruling

The Eighth Circuit, in an opinion by Judge Colloton joined by Judges Murphy and Melloy, held that the original $222,000 award was constitutional under the Williams standard for statutory damages and should not have been reduced on Due Process grounds. It also held that the injunction should have barred Thomas-Rasset from 'making available' sound recordings for distribution, while declining to decide whether making-available alone infringes the distribution right. Her cross-appeal, arguing that any statutory damages were unconstitutional, failed.

Translation: the appeals court sent the number all the way back to the first jury's verdict. Nearly seven years, three trials, two reductions, one appeal, and the number that survived was the number from October 2007.

Afterward, press reports in 2013 said she was considering filing for bankruptcy to avoid paying, and that the RIAA had offered to reduce the judgment if she took part in anti-piracy campaigning; she refused. As of April 2016, secondary sources reported the RIAA had announced no payments received.

The risk ledger

The case ran from the 2006 filing to the March 2013 certiorari denial: nearly seven years of litigation, three jury trials, and two district-court damage reductions. This is the cost-of-being-right case inverted: the labels won liability at all three trials and prevailed on appeal, yet ended with a $222,000 judgment against a defendant who said publicly she had no assets to collect, with no payments publicly announced.

She declined a reported $5,000 pre-suit settlement and a reported $25,000 post-remittitur offer. Her trial-two and trial-three counsel reportedly worked pro bono. The opinions do not publish either side's legal bills, so this article will not invent one. What the docket shows is the most expensive way to win $222,000 the record industry ever found.

The meter runs whether you win or lose. Sit with that.

The coverage lens

This is the exact class of allegation that media liability coverage is built for: a straightforward copyright infringement claim over reproduced and distributed sound recordings, with statutory damages that can multiply far beyond the dollar value of what was taken. Defense costs are a central part of what the coverage line addresses, and the defense bill is the certain bill in every case like this one. It arrives for winners and losers alike, years before anyone knows who won.

No promises here. Whether any particular claim would be covered depends on the policy as issued, its terms, conditions, limitations, and exclusions, and the facts of the claim. But the category exists because of cases like this.

The docket

• Eighth Circuit opinion, 692 F.3d 899 (Justia): law.justia.com
• District court remittitur order, January 22, 2010 (PDF): cases.justia.com
• Mezei, "Copyright Liability and Music Piracy — Capitol Records v. Thomas-Rasset" (SSRN scholarship discussing the original caption): publicatio.bibl.u-szeged.hu

Sources

• Eighth Circuit opinion, Capitol Records, Inc. v. Thomas-Rasset, 692 F.3d 899 (September 11, 2012): law.justia.com
• District court remittitur order, Doc. 366 (January 22, 2010) (PDF): cases.justia.com
• Mezei, "Copyright Liability and Music Piracy — Capitol Records v. Thomas-Rasset" (SSRN scholarship discussing the original caption): publicatio.bibl.u-szeged.hu
• Note: details not stated in the published opinions — the original caption, the bankruptcy discussion, the anti-piracy-campaign offer, and the absence of announced payments — are reported in secondary sources and are labeled as such in the text above.

Legal disclosure

SongSure LLC is an insurance agency. This article is for general information and education only. It is not legal advice, not insurance advice, and not an offer, quote, or promise of coverage. Case summaries are based on publicly available court records and are simplified; they may omit details. Any coverage would be subject to underwriting review, carrier approval, and the terms, conditions, limitations, and exclusions of the policy as issued. Past case outcomes do not predict future results or coverage decisions. SongSure is in pre-launch and is not currently writing coverage. Consult a licensed attorney for legal questions and a licensed insurance producer for coverage questions.