Plaintiffs' Opposition to New Trial and Remittitur Motion
As did the Obama Administration in its brief filed earlier today, the plaintiffs argue that the BMW v. Gore line of cases limiting punitive damages does not apply to statutory damages. And, also echoing the Administration's brief, the labels say that the award, which represents $80,000 for each of the 24 works on which the labels sought damages (among about 1,700 in Thomas-Rasset's KaZaA shared folder), survives the more deferential standard set forth in St. Louis, I.M. & S. Ry. Co. v. Williams, 251 U.S. 63 (1919), under which an award must be upheld unless it is "so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable." The labels emphasize that Congress
has carefully adjusted this legislatively enacted range [of statutory damages] in response to external developments on a number of occasions, the most recent adjustment taking place in 1999 in response to increased copyright infringement via the Internet. H.R. Rep. No. 106-216 (1999).(emphasis in original).
The labels similarly reject Thomas-Rasset's argument that Judge Michael Davis has the authority to, and should, reduce the award under the common-law doctrine of remittitur. "Yet," say the plaintiffs, they "also recognize the substantial practical interest in ending this longrunning litigation, and especially in avoiding a third trial of this case" and thus "might accept a remittitur under certain circumstances." However, the labels say they will only do so if the reduced award adequately reflects the "infringement of a significant number of Plaintiffs’ copyrighted sound recordings ... as well as the substantial damage caused to Plaintiffs and their businesses by Defendant’s actions." And they will not accept a remittitur based on a reduction in the award on constitutional grounds.
Thomas-Rasset's opening brief is here; her reply is due Friday, August 21.
Posts
You might want to footnote the word 'remittitur'. I had to look it up on Wikipedia :).
ReplyDeleteThese (IMHO absurd) damages were set when Internet and the possibility of *non commercial* file sharing that comes along with it didn't exist. Their aim was to stop copyright infringement done for profit by criminal organizations, not sharing on P2P. In some way, this makes me think to those who defend same sex marriages by arguing that the law says nothing about the sex of the partners. I'm all for same sex marriages, but this rationale is simply dishonest since when this law was voted, same sex marriages would have been considered as true science fiction at best. So this remittitur sounds like a joke to me, these laws are obviously obsolete and need to be reconsidered (where do I send the patch? :)
ReplyDeleteIncidentally, when the government says that they do support such fines, this only shows how corrupt the system is. Legally, sure, but corrupt nevertheless (especially wrt "the most recent adjustment taking place in 1999 in response to increased copyright infringement via the Internet").
PS: Ben, if possible it would be nice to put alternative direct links to the PDF files.
"These (IMHO absurd) damages were set when Internet and the possibility of *non commercial* file sharing that comes along with it didn't exist."
ReplyDeleteReally? Because last I checked, the last revision to the statutory damages regime occurred at the height of the dot com boom when file sharing and online infringement was all the rage. It was so troubling that it even made it into the Congressional record. See H.R. Rep. No. 106-216 at 3 ("Copyright piracy of intellectual property fluorishes, assisted in large part by today's world of advanced technology" because "[m]any computer users are either ignorant that copyright laws apply to Internet activity, or they simply believe that they will not be caught or prosecuted for their conduct.”).
So I challenge your assertion that the "aim was to stop copyright infringement done for profit by criminal organizations, not sharing on P2P." Every piece of evidence contradicts such a claim, and given the more than 200 years since our first copyright statute, Congress has yet to make such a distinction. Why do you think that is?
The initial goal of these damages was to stop criminal organizations since related texts were drafted way before www meant something to anyone. Then with Internet, they simply refrained from reforming the law substantially. Why? I already tried to explain: legal corruption, also called lobbying. See how much both parties (Reps and Dems) are getting from the mafiaa and this should give you a clear hint on why the government feels compelled to support the current damages instead of reforming and adapting the law. You may also want to take a look at TorrentFreak's recent "is a fair P2P trial possible?" articles. Interestingly, in France and in the US, where content cartels are well established and have been lobbying since a long time, such a trial seems indeed unlikely. In Spain things look pretty different as non commercial sharing is considered fair use. Why do you think that is? :-p
ReplyDelete