It's well known that Jammie Thomas, the woman who lost
her case against the RIAA for unauthorized file sharing was planning to appeal her decision -- though, we questioned some of the wisdom behind her pursuing the case. She does have a point in questioning the instructions given to the jury, which say that "making available" is distribution when that's still an open legal question with some rulings on both sides. The problem, though, is that the evidence that Thomas did participate in unauthorized file sharing is rather strong, which makes her appeal a lot less sympathetic. It looks like her lawyers may be realizing that and may be recognizing that the biggest point in Thomas' favor is that nearly everyone seems to feel the $222,000 awarded for 24 songs ($9,250 per song) seems rather excessive. With that in mind, the lawyers have now asked the judge to overrule the fine as being constitutionally excessive
. You recall, of course, that the constitution has rules against cruel and unusual punishment. Two years ago there was even a research paper that argued
the rates set by the law for infringement were constitutionally excessive. A year ago, that theory was first brought up in court
. It's tough to see the court going for this argument, but it definitely would make the appeals process a lot more interesting.