Saturday, August 29, 2009

Parties file post-trial reply briefs in Thomas-Rasset case

The parties in the record labels' case against Jammie Thomas-Rasset each filed their reply briefs in support of their post-trial motions on Friday.

Here's Thomas-Rasset's Reply in support of her Motion for a New Trial, Remittitur, and to Alter and Amend the Judgment. As Thomas-Rasset notes at the outset, there is little new in this brief, which seeks a reduction in the jury's award of $1.92 million for downloading and "sharing" 24 songs. Thomas-Rasset once again asks the court to apply the BMW v. Gore line of cases about punitive damages to reduce an award of copyright statutory damages -- an apparently unprecedented step . Here's the plaintiffs' opposition, and the government's brief in defense of the award.

And the record labels filed their Reply in support of their motion for a permanent injunction. The labels' brief focuses on rebutting Thomas-Rasset's argument that they are not entitled to an injunction under the standards announced by the Supreme Court in eBay v. MercExchange. "Contrary to Defendant’s contention, eBay did not even address much less alter the established law with respect to the presumption of irreparable harm in cases of proven copyright infringement," argue the plaintiffs, emphasizing that eBay was a patent case.

Judge Michael Davis has not announced when, or whether, he will hold oral argument on the post-trial motions, which are now fully briefed.


  1. Thanks, Ben, this is really helpful. I've long believed that, contrary to the labels' position, that eBay is readily translated to the copyright context. Irreparable harm seems much more likely in patent, where damages are lower (and statutory damages unavailable) than in copyright. Moreover, of course eBay didn't address copyright - the question is whether it represents the Court's overall approach to injunctions in IP cases. I suspect it does.

  2. To distinguish eBay on what is essentially the basis that it is a "patent" cases misses the mark. The Supreme Court could not have been more clear that injunctive relief finds its roots in equity, and as such the traditional factors must be considered no matter the type of case, "patent" or otherwise.

    Take the same issue in a "copyright" case to the Supreme Court and I daresay it will result in a 9-0 opinion citing eBay as controlling.

  3. It's actually not clear what eBay did to the presumption of irreparable harm. The Court held that IP injunctions are not automatic, which I think applies to copyright as much as patents. But that doesn't mean there are no more presumptions.

  4. Mr. Boyden,

    I do not believe eBay made any substantive changes as to how the permanent injunction factors are to be evaluated. What it did do was strike down the notion that infringement=virtually automatic injunction.

    Perhaps some insight into how this issue may be treated under copyright law will be presented when and as Judge Davis rules on plaintiffs' motion for a permanent injunction in the JRT case in Minnesota.


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