The attorney for a woman recently ordered by a Minnesota jury to pay $222,000 in damages for violating music copyrights said Thursday he is asking the judge hearing the case to consider reducing the amount to about $150.

"We are asking the judge to go below the statutory guidelines, though the government says you can't," said Brian Toder, attorney for Jammie Thomas, in a copyright infringement lawsuit brought by the Recording Industry Association of America (RIAA). He hopes to convince the judge to apply a punitive damage standard in arriving at a lower final number, instead of the statutory damage standard that has been applied in the case, he said.

In its lawsuit, the RIAA claimed that Thomas had illegally shared 1,702 songs belonging to six music labels over the Kazaa file-sharing network. The case itself focused on a representative sample of 24 of those songs. After a four-day trial in October, a federal jury in Duluth, Minn., decided Thomas should pay the six music labels $220,000, or $9,250 for each of the 24 songs that were the focus of the case. Under the law, she faced damages ranging from a statutory minimum of $750 per infringement to $150,000 per infringement for willful violations.

Thomas filed a post-trial motion asking for the jury award to be slashed, or to have a new trial. She argued that the jury award was far in excess of any actual damages the music labels might have suffered and therefore was unconstitutionally excessive. Thomas argued that since the music labels made just around 70 cents per song, even the minimum statutory damages of $750 were excessive.

In a response to that motion, the Department of Justice earlier this week ruled that the award was indeed constitutional, and that the damages awarded under the Copyright Act's statutory damages provision did not violate Thomas' due process rights. In making its argument, the DOJ noted that such damages were crafted to ensure both a "compensatory and a deterrent purpose."

Speaking with Computerworld on Thursday, Toder said that all that opinion means is that the original jury award is not unconstitutionally high and that the DOJ opinion by itself does not preclude the judge hearing the case from reducing the amount.

In fact, Toder said he was asking the judge to consider lowering the award by applying a punitive damage standard, under which damages awarded must be reasonably related to the actual harm. Typically, punitive damages are computed at no more than nine times the actual damage that might have been caused, he said. So since the labels made just around 70 cents per song, if the punitive standard was used, the damage amount worked out to a maximum of $6.30 per song infringed, or around $150 for all 24.

It might take the judge at least a month to come to any decision on what the final amount should be. Then, if the amount is indeed reduced, the plaintiffs in the case have to agree to that amount. If they won't agree, a new trial will need to be held with a different jury to decide the actual damages that should be awarded in this case. "We knew the chances of winning this trial were very slim," Toder said. "They put us in a position where we had to prove a negative. There was a lot of circumstantial evidence incriminating Thomas, and the challenge was to try and provide an alternative theory as to why it was there."