Friday, August 14, 2009

Obama Justice: $1.92 million Thomas-Rasset verdict is constitutional; cites need for deterrence

The $1.92 million jury award against Jammie-Thomas Rasset passes constitutional muster, the Department of Justice stated in a brief filed today.
DOJ Brief in defense of Thomas-Rasset Award

In June, a Minneapolis federal jury found that Thomas-Rasset had used KaZaA to download and "share" 24 songs without permission, and awarded the record label plaintiffs $80,000 per work. Thomas-Rasset has challenged the award on both common law and constitutional grounds, but today's brief from the government comes down squarely against her on the constitutional issues. In a strong endorsement the Copyright Act's statutory damages provisions, DoJ argued that Congress specifically authorized awards of up to $150,000 per work to deter infringement, including infringement via peer-to-peer networks:
Copyrights are of great value, not just to their owners, but to the American public as well. Congress has recognize this value from the first days of the Republic. The federal copyright statute...has consistently authorized the awarding of statutory damages to ensure significant monetary awards in copyright infringement lawsuits that will make copyright owners whole and deter further infringement. This historical approach is followed in the current version of the Copyright Act's statutory damages provision; it provides compensation to copyright owners who have to invest resources into protecting property that is often unquantifiable in value and deters those infringing parties who think they will go undetected in committing this serious public wrong. Congress' expressed desire to increase deterrence, accompanied by Congressional findings, demonstrates that Congress gave due regard to the public harm, opportunities to commit multiple violations, and need to ensure compliance in establishing its statutory range. The Court should defer to Congress' reasoned judgment. The proper place for any policy debate of what should be the level of deterrence resides in the halls of Congress.
The DoJ brief -- which reflects positions it has taken previously in this and the Joel Tenenbaum cases -- takes no position on Thomas' non-constitutional challenges to the verdict, whose size stunned even the plaintiffs themselves.

But, argues DoJ, if the court reaches the constitutional challenge, it should reject Thomas-Rasset's insistence that the verdict be evaluated under the Supreme Court's BMW v. Gore line of cases, which established limits on juries' award of punitive damages, largely on the grounds that -- unlike with statutory damages -- there are no explicit limits on juries' discretion. Instead, says the brief, the court should apply "extremely deferential" standard established in St. Louis, I.M. & S. Ry. Co. v. Williams, 251 U.S. 63 (1919), which upheld a statutory damages scheme involving railroad passenger fares. Under Williams, an award of statutory damages survives constitutional challenge unless it is "so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable" -- which DoJ says the $1.92 million Thomas-Rasset award is not.

After the first Thomas-Rasset trial in 2007, in which the jury awarded $222,000, Judge Michael Davis criticized the amount as "wholly disproportionate to the damages suffered by Plaintiffs" and urged Congress to lower the range of statutory damages for unlawful p2p use. However, he did not address Thomas-Rasset's constitutional argument, having granted a new trial on unrelated grounds. The second trial featured a less plaintiff-friendly set of jury instructions, but resulted in a jury verdict almost nine times as large. (As Jon Healy of the LA Times put it so well, "Maybe [she]should have quit while she was behind.")

The plaintiffs are expected to file their own brief in defense of the Thomas-Rasset award later today.


  1. A predictable position proposing a predictable approach, i.e., the avoidance of constitutional issues whenever possible.

    Of course, other than bemoaning that the DOJ is in the pocket of the music large part due to the injustice of its hiring former attorneys who litigated on behalf of the record labels, I expect no less from blogoshphere experts and numerous academics than a loud and thunderous wail that "Gore controls, Gore controls, etc."

    Perhaps there is a constitutional doctrine upon which an infringing defendant can hang his/her hat with respect to statutory damages awarded in his/her particular case, but I am hard pressed to say that "due process" is the appropriate doctrine.

  2. This will accomplish the opposite of deterrence. It will further polarize the issue. Illicit p2p use grows year after year despite all of the propaganda by the content cartels.


Comments here are moderated. I appreciate substantive comments, whether or not they agree with what I've written. Stay on topic, and be civil. Comments that contain name-calling, personal attacks, or the like will be rejected. If you want to rant about how evil the RIAA and MPAA are, and how entertainment companies' employees and attorneys are bad people, there are plenty of other places for you to go.