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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."
"The code of tribal wisdom says that when you discover you are riding a dead horse, the best strategy is to dismount.
In law firms, we often try other strategies with dead horses, including the following: buying a stronger whip; changing riders; saying things like 'this is the way we have always ridden this horse'; appointing a committee to study the horse; arranging to visit other firms to see how they ride dead horses; increasing the standards to ride dead horses; declaring that the horse is better, faster, and cheaper dead; and finally, harnessing several dead horses together for increased speed."
-- Judge Thomas Penfield Jackson, 16 February 1999, in the courtroom after lunch on the second day of testimony from Microsoft's Brad Chase.
After considering the Court’s Order, Plaintiffs regretfully must decline to accept the remittitur since the rationale underlying the remittitur is inconsistent with the Copyright Act and its legislative history, as well as established case law.
I am not a lawyer but how many times can you prolong at trial? I'm aware of the appeal process but is this even an appeal? It sounds more like they're saying "we refuse to accept the court's decision" which is not quite how I recall law in the United States to work.
Then their filing says this:
In light of the foregoing, Plaintiffs respectfully decline to accept the Court’s remittitur and shall work with Defendant’s counsel and the Court to set this matter for a new trial on the issue of damages.
Emphasis mine. So this isn't an appeal or a retrial but instead a new trial? How many times must Thomas-Rasset go to court for copyright violation on twenty four songs?!
Further more, if any lawyers are reading this, does this affect the precedence that this verdict would set? Will Capital v. Thomas be referenced with an asterisk indicating that the first eight trials found her on the hook for any amount between $24 and $2 million causing the judge to finally throw it out on the ninth "new trial"?
Whatever happened to due process and not being able to stand trial for the same crime twice? Is this new trial a civil suit where the first two trials were criminal suits?
I understand some issues are not clearly defined in law but this is turning into a circus.
My work here is dung.
I pity the independent singer songwriter or now author who is blamed as part of the economic ecosystem of this mess. They may have a stigma attached to them they cannot shake and cannot grow beyond.
Why would/should independent artists be blamed? The blame lies totally with those who signed up as members of RIAA.
The largest prime factor of my UID is 263267.
The Saints submitted notice to appeal their Super Bowl win, on the grounds that the Colts unfairly bunched up at the line near the end of the first half, forcing a turnover on downs, and causing the Saints to settle for a field goal on a subsequent series. Sean Peyton, coach of the Saints explained that while they could only lose the game due to appeal, and could in no way increase their margin of victory, they hoped that by filing they may increase their chances of a higher pick in next year's draft. Drunken fans in the french quarter cheered the announcement, and said they "waited 43 years for this, why not wait a little longer".
no comment
Goliaths know that whoever has deeper pockets to pay legal expenses for a longer period of time, generally wins lawsuits. Frivolous lawsuits filed by large companies on individuals and small entities are more often than not seen as a war of attrition that they have no way of losing. As someone was once the victim of this, it makes me incredibly angry. I was frivolously sued by a large company. Even though I won the case (basically by showing up and showing the contract vis a vis their allegations), I had to spend a few thousand dollars defending myself (I'm lucky it wasn't tens or hundreds of thousands). They're trying to ruin this individual, and make an example out of him. It's one of the most evil aspects of corporations and is what's most wrong IMO about our legal system.
The Institute of Incomplete Research has determined that 9 of out 10
Who checks to see if an artist is in the RIAA BEFORE they buy a song or CD? It is guilt by association, much like all bankers are "fat cats ripping us off", all singers and authors are just money grubbing self important prima donas because I read where they sue unemployed mothers living in Harlem with insecure wireless access points. See how that works?
no comment
There are many legal avenues that a well-paid legal team can travel down to simply outpace the individual in both resources and time.
I'm going to tell a quick story. When I was a minor (though admittedly close to 18), my parent and I filed a lawsuit against [z] for wrongful discipline. It wasn't really wrongful discipline, but that's the easiest way to put it: [x] had broken code/regulations dozens of times during the course of the incident after I had unknowingly done something wrong due to a "disability"; my lawyer discovered all of this, and we filed the lawsuit. During the first settlement meeting, they were in one room, we were in another, our lawyers/mediators were jumping all over and meeting privately at times. (Typical mediation.) They were extremely heavy-handed and wouldn't settle for more than a meager amount at first. Four hours into the meeting, the mediator and my lawyer came in the room and we began talking. I decided to play the best card I had after the mediator had informed me that they will be willing to spend however much money it takes, and go through trial for probably over a year, (that that is their main weapon against litigants that are common folk without much money.) I made it very clear to the mediator: "Listen, I'm going to be honest, I don't care about this settlement, it's not even a dent in my worth. I want them to learn their lesson, and I will not walk out of here without getting at least 20x what they are offering. When I turn 18, I am inheriting over two million dollars and will be more than happy to pay as many lawyers as it takes. [$x] is an insult to me and my family, and unless we see [$20x], we'll be looking very forward to trial and the ability to speak to the press about this whole ordeal."
Long story short, after 5 hours worth of arguing over the size of a three digit settlement, the mediator came back and informed us that over the course of five minutes, they accepted the five-digit number upon finding out about my inheritance and my eagerness to go to trial. For me, it wasn't a risky move: my lawyer already had the media lined up to speak to me and break the story, I really was inheriting a very large amount of money, and I was dying to go to trial (because of the severity of the "awe" factor in my favor). It's important to note, however, that if you have these three things against you, it becomes a much risker move to make. Though it's a risky move, its very effective, because as this article clearly shows, a large corporation/entity's main weapon is the fact that they can afford far more legal action than you can. Also please note that I was blessed to have had a great lawyer: my family and I were literally going days without eating in order to pay the mortgage and one or two bills a month (single parent), but my lawyer offered to take the case and allow me to pay him once I turned 18 or when we won. Because I was a minor, the settlement wasn't given to me until I was 18 anyway. I was very lucky to have such a large upper-hand against an entity that had an enormous advantage to begin with.
Moral of the story: as soon as they found out I was willing to dish out just as much (if not more) money than they were to fight, they backed down and realized even 20x the original settlement amount is worth ending the matter ASAP. Granted, this article is dealing with the RIAA and I have nowhere near the amount of available resources that they do. Because of that, they will continue fighting this battle just because they can and would like to deter file-sharers from doing this in the future. Legal fights are all about money: ever seen the lower-class people on Judge Judy fighting over $100? How long do those cases last? Think about it, it's all about money, and unfortunately when an entity as large as the RIAA sues an individual, it is a very uneven fight.
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.
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.
Thanks for that link. If I may address a few points...
1) My previous post notes that "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."
You mention this in your brief on page 6:
They seek statutory damages of from $750 to $150,000 as to each MP3 file, without regard to whether what they have proved, as to that file, is mere “downloading” -- i.e. violation of the reproduction right -- or “distribution”, i.e. violation of the distribution right.
...In the case of a “distribution” -- i.e. defendant's having acted as a “distributor” and having actually disseminated actual copies to the public, by a sale or other transfer of ownership, or by a license, lease, or lending -- the actual damages would no doubt be greater than 35 cents, and the subject of further proof.
You explicitly note that actual damages would be higher, but suggest that they be the subject of further proof. Statutory damages under 17 USC 504 do not require proof of actual damages. Rather, the plaintiff merely has to show infringement and opt for statutory damages, and the defendant may show proof of actual damages to mitigate the statutory damages. Neither Tenenbaum nor Thomas ever showed proof of actual damages.
2) Continuing in the same paragraph:
Suffice it to say, however, that in 40,000 cases and counting, these plaintiffs have never been able to find or prove any such “distribution”.2
So while there exists a purely theoretical possibility that plaintiffs will be able to prove that Joel Tenenbaum was some sort of “distributor” of MP3 files, if all they ever prove is downloading, then they are seeking multiples of more than 2,100 to 425,000, which would clearly be unconstitutional under any standard.
This is not true. In the Thomas-Rasset case, the MediaSentry evidence showed distribution, and was not excluded (whether it should have been is a different question). In the Tenenbaum case, he admitted distribution under oath. Thus, in both cases, plaintiffs explicitly proved distribution:
"Mr. Tenenbaum, on the stand now, are you now admitting liability for downloading and distributing all 30 sound recordings that are at issue and listed on Exhibits 55 and 56 of the exhibits?" Answer: "Yes."
So, returning to your earlier point, the actual damages for infringement of the distribution right are "no doubt" greater than 35 cents.
Your remaining arguments address the disparity between the 35 cents damages and the $750-$150k per work statutory damages. However, as shown above, you admit that actual damages for infringement of distribution rights are greater. How much greater? Michael Jackson purchased the distribution rights to 200 Beatles songs for $47 million. $235,000 per work is significantly higher than the statute allows, but let's consider that an upper limit for a fair market value. Statutory damages in the range of half actual damages certainly don't seem out of line under Gore or State Farm.