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.