A third trial is set to begin in a bitter, closely watched legal battle between Minnesota native Jammie Thomas-Rasset and the Recording Industry Association of America (RIAA).
The trial is scheduled to begin November 2 in federal court in Duluth, Minn. and will focus solely on the damages that Thomas-Rasset will have to pay to six music labels for pirating 24 songs.
Two previous federal juries in two separate trials have already found Thomas-Rasset liable for illegally copying and distributing the songs and have assessed massive damages against her.
At the end of the first trial in 2007, Thomas-Rasset was ordered to pay a fine of $222,000 to the six music companies for pirating the 24 songs. In the second trail, the jury raised the amount nine-fold, to a stunning $1.92 million , or $80,000 for each infringement.
U.S. District Court Judge Michael Davis of the District of Minnesota has refused to consider a motion by Thomas-Rasset to determine the constitutionality of the award.
He has also refused to entertain Thomas-Rasset's request that the damages be reduced to $18,000 or $750 per violation, which is the minimum available to the jury under the copyright statute under which she was sued.
However, in January of this year, Davis reduced the damages to $54,000 , which he said was the maximum that was reasonably allowable. He called the new amount "significant and harsh" but no longer as "monstrous and shocking" as the original $1.92 million award had been.
Shortly after that move, the RIAA, which has been doggedly pursuing Thomas-Rasset since 2006, agreed to settle the case for $25,000, saying that it would donate the money to struggling musicians. Thomas-Rasset's refusal to accept the offer and the judge's refusal to consider the constitutionality of the fines available under the copyright statute have resulted in the new trial November 2.
The chances that the verdict will be substantially different from the first two trials are slim said Ray Beckerman, a New York-based attorney who has helped defend individuals hit with RIAA music piracy lawsuits.
"I believe that with the jury instructions framed the way they are, the jury is likely to return a verdict in the tens of thousands of dollars per mp3 single," he said. "There is likely to be another outlandish verdict," which Judge Davis is likely to reduce to $54,000 again because he has already determined that is the maximum allowable in the case, Beckerman said.
"Then, I believe, the appeals court will find that the district court erred in failing to determine the constitutional issue, and will remand to the district court for further proceedings," he predicted.
Though the RIAA has filed thousands of music piracy lawsuits against individuals over the past few years the Thomas-Rasset case is one of only two that has actually ended up in a court room.
The other case involves Joel Tenenbaum , a Boston University post-doctoral student who in 2009 was hit with a $675,000 fine for music piracy.
Opponents of the RIAA's campaign against music piracy have highlighted both cases as examples of the trade association's high-handed approach to dealing with the problem. Several have questioned its use of a copyright statute meant primarily for commercial copyright offenders, to go after individual offenders.
The copyright statute that the RIAA has been seeking to enforce allows for damages of $750 to $30,000 for each copyright violation.
The RIAA has maintained that such lawsuits are the only way to try and curb what it claims is unfettered music piracy online.
Even so, last year it announced that it was dropping its strategy of filing mass lawsuits and will instead try to work with ISPs in enforcing copyright protections.