It was thus a bit of a surprise that last week's decision by Chief Judge Michael Davis of the District of Minnesota reducing the Thomas-Rasset award by 97 percent -- from $80,000 per song down to $2,250 -- rested on the common-law doctrine of remittitur, avoiding the constitutional issue altogether. But did the court actually have the authority to employ remittitur to reduce an award of copyright statutory damages within the range established by 17 U.S.C. § 504(c)? I admit I haven't done much independent research on this issue. But having read the cases cited in support of the authority for remittuitur here, in both Thomas-Rasset's briefs and the court's order, I was struck by the extremely thin support for the notion that a court may remit an award of copyright statutory damages within the statutory range.
Thomas-Rasset's 13-page post-trial motion to reduce the award devotes a single paragraph to the issue. See Br. at 10. This paragraph cites two cases regarding remittitur, and highlights their holdings that "Remittitur is appropriate where the result on a verdict 'is monstrous or shocking.'" Id. (citing Thorne v. Welk Investment, Inc., 197 F.3d 1205, 1211–12 (8th Cir. 1999); Jenkins v. McLean Hotels, Inc., 859 F.2d 598, 600 (8th Cir. 1988)). But Thorne (a sexual harassment case) and Jenkins (a personal injury case), neither of which involved statutory damages, let alone copyright statutory damages, do not address the issue here: whether, where Congress has established a statutory damages range, and the jury's award falls within it, the court has the authority to reduce an award it finds excessive. The Department of Justice's brief defending the Thomas-Rasset award on constitutional grounds also takes the position that the court has the power to remit on common-law grounds. See Br. at 7-8. DoJ's brief cites a copyright case, Superior Form Builders, Inc. v. Chase Taxidermy Supply Co., 74 F. 3d 488, 496-97 (4th Cir. 1996), in support of this argument. But I think Superior Form Builders is weak authority for this point. First, that case merely seems to assume, but does not actually analyze whether, a judge may reduce a jury's award that falls within the statutory range. And it notes that "if the jury was presented with evidence justifying a finding of willful infringement, it is given broad discretion to award up to $100,000 [then the statutory maximum] for each work copied." Moreover, it declines to reduce the award.
The labels' brief in defense of the Thomas-Rasset award does argue that the court lacks the authority to remit a copyright statutory damages award. See Br. at 21-22. Their argument is that the Supreme Court's Feltner opinion clearly held that the jury -- not the judge -- determines the proper amount of statutory damages within the range established by Congress:
Feltner does not hold nor contemplate that a judge has the right to alter a jury’s statutory damage award if that award falls squarely within the statutory damage range prescribed by Congress. See also SESAC, Inc. v. WPNT, Inc., 327 F. Supp. 2d 531, 532 (W.D. Pa. 2003) (rejecting request for remittitur of statutory damages for copyright infringement because "[t]he court should not interfere lightly with a carefully crafted statutory scheme by substituting its judgment for that of the legislature").Their brief notes, however, that "Plaintiffs might accept a remittitur under certain circumstances," including adequate recognition of Thomas-Rasset's wrongdoing, in the interest of "finality." Id. at 22-24. Thomas-Rasset's reply brief does not even mention remittitur, focusing solely on the constitutional issues.
Judge Davis' order addresses the issue of his authority to remit on pages 7-8. It does not cite any cases holding that a judge has the power to remit a copyright statutory damages award. Rather, it simply notes Feltner, acknowledges that deference must be paid to the jury's decision, and concludes that "there is no authority for Plaintiffs’ assertion that the Court does not have the power to remit an award of statutory damages." The order then cites Thorne and Corpus v. Bennett, 430 F.3d 912, 917 (8th Cir. 2005) (Section 1983 police excessive force case) as authority for the proposition that a judge may remit a jury's damages award even where the plaintiff has a Seventh Amendment right to a jury trial. (Feltner's holding was based on the Seventh Amendment.) But again, I don't think this answers the question whether a judge has the authority to reduce a jury's award where that award falls within a statutory range specifically spelled out by Congress. Neither Thorne nor Corpus involved a statutory damages range.
The bottom line is that, as far as I am aware, Judge Davis' decision is without precedent; it stands alone as the first and only decision ever to reduce an award of copyright statutory damages, on any ground, common-law or constitutional. I realize it's hard to prove a negative (i.e., that there are no other such decisions), but the failure of either Thomas-Rasset's highly competent attorneys, or Judge Davis, to find one, is telling. See Pls.' Br. at 17 ("In fact, Plaintiffs have not located a single case, in the nine decades since Williams was decided, in which a court relied on Williams to reduce or eliminate an award of statutory damages because of a due process violation. See, e.g., Colleen P. Murphy, Judicial Assessment of Legal Remedies, 94 Nw. U. L. Rev. 153, 202 (1999) (noting that in the context of the Copyright Act, '[n]o reported decision has reduced a litigated award that was within the appropriate statutory range')").
The labels now have some difficult decisions to make. Do they take their $54,000, declare victory, and go home? That might be the best PR move, but it would appear to result in their forfeiting of the right to appeal the damages ruling. See Donovan v. Penn Shipping Co., 429 U.S. 648 (1977) (noting "settled rule that a plaintiff who has accepted a remittitur may not appeal to seek reinstatement of the original verdict."). Or do they reject it, so that they can argue to the Eighth Circuit that Judge Davis lacked authority to remit? From a long-term strategic perspective, it is surely not helpful to have a case on the books holding that a trial judge does have the authority to reduce a jury's statutory damages award. (Pursuant to Judge Davis' order, the labels have until Friday, Jan. 29 to decide whether to accept the reduced award or head back to Minnesota for a third trial.)
It will also be interesting to see what the labels argue in their brief in opposition to Joel Tenenbaum's motion seeking a reduction in the jury's award against him. Tenenbaum's brief barely even mentions common-law remittitur; it discusses the issue only in a short paragraph at the very end, see Br. at 25-26, which cites two cases, neither of which is about copyright or statutory damages. See Correa v. Hosp. San Francisco, 69 F.3d 1184, 1197 (1st Cir. 1995) (claim under Emergency Medical Treatment and Active Labor Act (EMTALA), 42 U.S.C. § 1395dd); Milone v. Moceri Family, Inc., 847 F.2d 35, 37 (1st Cir. 1988) (maritime personal injury case). Judge Gertner will surely have read Judge Davis' opinion, and no doubt will be tempted to follow its mode of analysis, i.e., to declare that the award shocks her conscience, and thus to remit on common-law grounds, thus avoiding the constitutional issue. The labels' brief, in which they are likely to try to convince her otherwise, is due this Thursday, January 28.
Update: Thomas-Rasset's counsel Kiwi Camara sent me the following email, which he gave me permission to post here:
Ben:I read your two blog posts on Judge Davis's order. Another interesting point: we challenged statutory damages as unconstitutional all the way to the minimum. We argued that even if Judge Davis were to remit to the minimum, the resulting statutory damages would still be unconstitutional. See M. at 4.This means that the RIAA cannot avoid the constitutional issue even if they accept the remittitur. Of course, accepting the remittitur may put them in a better position to defend the constitutionality of the award of statutory damages on appeal since the reduced award is less objectionable than the original award, though still in our view unconstitutional.Kiwi
Camara also told me that if the labels accept the reduced award, Thomas-Rasset still intends to appeal on the grounds that the award of $2,250 per work is unconstitutionally excessive.