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RIAA Insists On 3rd Trial In Thomas Case
NewYorkCountryLawyer writes "Not satisfied with the reduced $54,000 verdict which the Judge allowed it in Capitol Records v. Thomas-Rasset, representing approximately 6500 times the amount of their actual damages, the RIAA has decided to take its chances on a third trial, at which it could only win a verdict that is equal to, or less than, $54,000. Since a 3rd trial in and of itself makes no economic sense, and since the RIAA's lawyers inappropriately added 7 pages of legal argument to their 'notice', it can only be assumed that the reason they are opting for a 3rd trial is to hope that they can somehow bait the Judge into making an error that will help them on an appeal."
IAAL. It is really a part of the same trial-- the rules of remittitur say if you don't like how the judge reduced your award, you can try the issue of damages again. Basically means if you think the judge wrongly reduced the jury verdict, you can and should have the jury try again, so we know, on appeal, what a second jury verdict was (a perspective on the reasonableness of how much the judge chopped off the first verdict). If I were an appellate court judge I think I'd want to see that.
Those are my principles, and if you don't like them... well, I have others.
Does the idea of double jeopardy apply in civil law?
Yes, though slightly different - it's called judicial estoppel, and essentially means that your previous losing judgement is precedent for your later suit.
If not, what prevents a plaintiff with very deep pockets from suing a defendant for something, losing, suing them again, losing, etc until the defendant's funds with which to defend themselves run out? Because this sounds like a pretty open-and-shut case of the RIAA doing exactly that, and the overall effect is that said defendant effectively loses even if they win.
Nope. The RIAA won both of the previous trials. In the first one, the jury found Thomas liable, and awarded $222k. She appealed, and got a new trial due to a jury instruction error. In the second trial, the RIAA won again, and the jury awarded them $1.9 million (ooops). The judge reduced the award to $54k and gave the RIAA the option of either accepting the $54k, or returning to trial. At this trial, it will just be on damages, so it should go faster. But the second and third trials aren't the result of any sort of frivolous litigation by the RIAA, even if the first one was.
b) The judges have so far ruled that the cases be dismissed WITHOUT PREJUDICE.
Not true. The RIAA won the first trial, and were awarded $222k in damages. The judge dismissed that one due to an error in the jury instructions. The RIAA won the second trial and were awarded $1.92 million in damages. The judge reduced the award to $54k, and the RIAA has opted for a new trial on damages rather than accept that. The previous trial is not dismissed without prejudice - rather, the jury findings that Thomas was liable for 24 counts of willful infringement of the right to copy and 24 counts of willful infringement of the right to distribute aren't touched. This trial will only be on what level of damages are awarded.
And, it makes sense for the RIAA... The judge reduced the damages from $1.92 million to $54k in a post-trial opinion. The RIAA didn't get to argue that that was improper, so they'd have nothing to appeal. This new trial gives them a chance to argue that decision.
And don't weep for Thomas-Rasset. Her lawyers are working pro bono.
c) The judges have not ruled against the cases to be unconstitutional.
Yeah, and NYCL's wishes aside, they're really unlikely to do so. Article I, section 8, clause 8 expressly gives Congress the power to create copyright law. That's clearly constitutional - the only issue for unconstitutionality is statutory damages, but that's a tough road to hoe. First, because Congress has the power to create copyright law, then the courts have to defer to how they create the law, provided they're within the bounds of the 5th amendment. Second, if you want a original-intent argument, copyright law has included statutory damages since the original 1790 Act, only three years after the Constitution. Third, the arguments that statutory damages are out of proportion with actual damages ignore most of the damages, specifically the infringement of the right to distribute. It's like saying that sending someone to jail for 5 years for speeding is grossly excessive, and neglect to mention their DUI and hit and run.
The MAXIMUM actual damages for an unauthorized download of any of these mp3 files is AT MOST about 35 cents.
1. Wholesale price=70 cents
2. Expenses=35 cents.
3. ???????????
4. Profit!!!!!!!!!! [35 cents]
(That's assuming every single unauthorized download = a lost sale, which is obviously not the case. See, e.g. USA v. Dove.
Ray Beckerman +5 Insightful
But there's another right that was infringed, the right to distribute, for which Thomas-Rasset was independently found liable. And distribution rights are much more expensive
First of all, nobody proved she was distributing the songs. They made up the bogus notion of “making available” to get around it.
Nope, that was the first trial. The judge fixed the jury instructions and removed "making available", and the jury found her liable in the second trial.
Secondly, Thomas wasn’t acting on her own. She was part of a massive file-sharing network.
Can you quote a line from the statute where that makes a difference? It's 17 USC 501 and up, if that helps.
People didn’t download the files from her, they downloaded the files from the file sharing network and there is a possibility that she participated in making the files available on that network.
Nope - the RIAA's evidence included direct downloads from her. Bear in mind that she was on Limewire, not Bittorrent.
Since the files would have still been available for distribution on the network if she had not been sharing them, it is absurd to think that she, on her own, caused $x in damages for distribution, where $x would be the amount it would cost to become a legal distributor of the songs.
Ah, but she did. Consider, as I pointed out above, Apple paying large amounts of royalties to become a legal distributor, even though those songs are already available at record stores. Since they already were available for distribution, would Apple not be liable for those royalties if they suddenly refused to pay?
Divide up $x amongst the millions of people in the network, or just the hundreds or thousands who are sharing that particular song, and each person doesn’t really cause much damage on their own. Singling one out is just finding a scapegoat.
There's no requirement of joint or several liability in the statute. This was intentional - if I make one copy of something and give it to you, and you make one copy and give it to a friend, and they make one copy and give it to someone else, etc., would the copyright owner have to file millions of individual suits? And could they even, when the costs for a single suit may be thousands of dollars? No, Congress explicitly considered this when they put in statutory damages - the copyright owner isn't required to go after everyone, and the damages are sufficiently high that the costs of a suit aren't a deterrent to a legitimate copyright owner who wants to protect their rights.
I suspect this is a somewhat silly question, but ...
Will the extra costs incurred to Thomas after the 54k verdict be plaintiff? I.e. if the RIAA's tactic here incurs an extra 5,000 dollar in legal fees, will she be allowed to deduct that from the next verdict?
Or can this be seen as a tactic to put more strain on her financial situation? I.e. they know they can't get more than 54,000 dollars, but if they can force her into bankruptcy by not only holding that 54,000 dollar verdict over her head but also constantly increasing legal fees, they can force her into an out of court settlement that may be cheaper for her (legal fees only), but kept under wraps so as not to set precedent.
1. In the present posture, she can't win, absent an appeal. The second trial is just about the amount of damages.
In actuality the RIAA will incur at least a hundred thousand dollars for another trial, probably more. And that's not counting the other expenses, such as employee time, etc.
I think, but am not sure, that there was a special agreement in this case precluding attorneys fees.
Sometimes settlements are entered into the public record, sometimes not. Either way, they are not judicial precedents.
Ray Beckerman +5 Insightful
For anyone interested in the constitutionality of the RIAA's statutory damages theory I suggest reading our revised amicus curiae brief filed in SONY v. Tenenbaum, and -- if you wish to go further -- reading the 3 law review articles cited in the brief.
Ray Beckerman +5 Insightful
Ray's point was that you are using YOUR definition of the word distribution. THE WORD IS NOT DEFINED. I have been trying to find a concrete legal definition for the word for ten years. (I write software for a living and have an intrinsic interest in what defines "distribution" of my copyrighted software.)
In the US there is no single definition. It is VAUGE to say the least and varies greatly on jurisdiction. Some places require a physical copy to be transferred (bits on a hard drive may or may not count) AND its use. Other jurisdictions require that the recipient be aware of the transfer, others do not. Some jurisdictions require that parties understand that the transfer is taking place (think being handed a mix tape but you don't know about the 5th track). Currently in at least one jurisdiction distribution includes a computer transferring a programs executable data into ram. There is no single definition of distribution. Without that, how can you say that the defendant did or did not do something. It is undefined!
Just read the commentary on the GPLv2 and GPLv3. They changed the wording to avoid using the word distribution because it was undefined.