The statutory damages awarded in this case — which are nearly an order of magnitude greater than the statutory damages assessed in the first trial — bear no reasonable relation to the actual injury suffered by the plaintiffs. The damages awarded are grossly in excess of any reasonable estimate of that injury. The plaintiffs did not even attempt to offer evidence of their actual injuries, seeking, instead, an award of statutory damages entirely for purposes of punishment and deterrence. The closest they came was in identifying, mainly in arguments by counsel, injuries to their industry as a whole caused by illegal music sharing as a whole; when pressed, their witnesses — recall the testimony of Mr. Leak — were not able to attribute any particular part of this injury to Mrs. Thomas’s alleged actions. An award of statutory damages of $1.92M for 24 songs assessed as punishment, not compensation, shocks the conscience and must be set aside.The defense brief offers Judge Davis -- who termed the first jury's award of $222,000 "wholly disproportionate to the damages suffered by Plaintiffs" and "unprecedented and oppressive" -- three routes to set aside the award here:
First, Mrs. Thomas contends that the statutory-damages provision of the Copyright Act, as applied in her case, offends the Due Process Clause and is not law. If she is correct, then the statutory-damages portion of the verdict, which rests on this unconstitutional provision, must be set aside under Rule 59(e). Importantly, this would not be a remittitur, but the correction of an unconstitutional verdict: the plaintiffs are not entitled to elect a new trial, but, having declined to seek a jury finding on actual damages on which judgment could be entered instead, must accept a take-nothing judgment.... Second, in the alternative, Mrs. Thomas contends that even if the statutory damages provision of the Copyright Act is constitutional, the jury’s application of it inthis case is excessive, shocking, and monstrous so that remittitur is appropriate as a matter of federal procedural law.... Mrs. Thomas contends that even the minimum statutory damages, $18,000, which would result in punishment ratios of 1:581 in terms of $1.29 songs and 1:50 in terms of $15 albums, would be unconstitutional if assessed in her case. But if any award is appropriate, it would be the minimum. Accordingly, in the alternative, Mrs. Thomas seeks remittitur of the statutory-damages award to $18,000. Third, in the alternative, if this Court prefers to allow a third jury to select a different, lower, number, Mrs. Thomas respectfully requests a new trial on all issues.The brief goes on to make now-familiar arguments that the constitutional limits on punitive damages under BMW v. Gore and its progeny should apply to statutory damages -- an argument that has been raised in several copyright cases but, as far as I am aware, never actually embraced by any court.
Two big questions in my mind:
1) What is the Department of Justice going to do? After the first trial, DoJ filed a brief in defense of the constitutionality of the $222,000 award, concluding that that sum "did not violate the Due Process Clause [because it was] not 'so severe and oppressive as to be wholly disproportioned to the offense or obviously unreasonable.' Williams, 251 at 67." Does DoJ feel the same way about an award of $1.92 million for the same misconduct? Will it defend this award as well, or sit this one out?
2) What are the plaintiffs going to do? Within 5 minutes of the verdict, plaintiffs indicated that they remained willing to settle, and they have assiduously avoided saying that the size of the award was correct. Thomas-Rasset has, so far, refused to settle. But could the plaintiffs use this defense motion as a vehicle to effectively force a settlement? Here's what I mean: What if the labels filed a brief saying something like this:
Plaintiffs maintain that the amount the jury awarded does not exceed what is permitted under either the US Constitution or federal common law. However, the court need not decide these difficult issues. Plaintiffs are willing to accept an award of minimum statutory damages, only $750 per work, or $18,000 total -- a reduction of 99% from the actual jury award. Such an award is at the bottom of the range of what Congress permits, and is by definition by constitutional and reasonable...The court could then rule, "I hereby accept the Plaintiffs' offer to reduce the award to $18,000, find that amount constitutional and reasonable, and order that the judgment be amended to reflect a reduced amount of $18,000." Such a dramatic move would be unusual, and I haven't researched whether it's even procedurally viable, but I think it could be a very attractive for the judge, who clearly thinks the $1.92 million is excessive, but may not want to take the (I think) unprecedented step of declaring unconstitutional a copyright statutory damages award. And I very much doubt Judge Davis wants to sit through a third trial of this defendant.
Watch for a flood of amicus briefs on this very important issue. It could be many months before this is resolved.