Wednesday, January 27, 2010

Labels offer to settle Thomas-Rasset case for $25,000 donation to charity, vacatur of remittitur order; Thomas-Rasset promptly rejects [UPDATED]

The record label plaintiffs have offered to settle the Jammie Thomas-Rasset case for a $25,000 donation by the defendant to "an appropriate charity benefiting musicians" and vacatur of the court's Jan. 22 order remitting the jury's award of $80,000 per song down to $2,250. The letter from plaintiffs' counsel Timothy Reynolds also indicates that if a settlement is not reached, the labels intend to reject the remitted amount, which would send the case back to the Minneapolis courtroom of Chief Judge Michael Davis for a third trial on damages.

But less than an hour after receiving the offer, Thomas-Rasset's attorney Joe Sibley rejected the offer -- and indeed any offer that involves the defendant paying money:
Jammie will not accept anything offer that requires her to pay money to or on behalf of the Plaintiffs. Thus, your offer of settlement is rejected.
Added Sibley in an email to C&C:
[A]s our response makes clear, Jammie is standing on principle here, and will not accede to payment demands that the RIAA is making thru an unconstitutional statutory scheme (that they lobbied for the creation of) and we will ride this train to it's appellate end no matter how many future remittiturs are rejected.
In response to Thomas-Rasset's rejection of the offer, RIAA spokeswoman Cara Duckworth confirmed that the labels will reject the remitted award of $54,000 and proceed to a third trial:
It is a shame that Ms. Thomas-Rasset continues to deny any responsibility for her actions rather than accept a reasonable settlement offer and put this case behind her. Given this, we will begin preparing for a new trial.
Letter from labels re settlement of Thomas-Rasset case
Added RIAA General Counsel Steven Marks in a statement:
After two unprecedented trials and a wave of national attention, there should be no doubt that illegal downloading is wrong and that there should be real consequences for those who ignore the law. The message is resoundingly clear. This case helped affirm the important principles of accepting responsibility for one's actions and compensating the people who create great music and bring it to the public. We've accomplished what we set out to do, and now we seek to resolve this matter fairly and expeditiously. We hope Ms. Thomas-Rasset accepts our offer.
Under the current schedule, the labels must inform Judge Davis of their choice between the reduced award or a third trial by this Friday, though they have asked for a ten-day extension. But given Thomas-Rasset's rejection of the offer, the extra time may no longer be necessary. Update: the deadline has been extended until Monday, February 8.

Updated to reflect Thomas-Rasset's rejection of offer.


  1. A very smart move on behalf of the plaintiffs. They recast the issue in terms of benefiting musicians, which is a win-win scenario. If she accepts, they get good PR for settling for a small amount which goes to musicians, a charge often levied against them. They also get to vacate the court's decision, which renders it's groundhog day scenario moot and wipes any adverse precedent from the books.

    And, if the defendant declines to settle, then the PR becomes "Music infringer refuses compromise that would benefit musicians from whom she was stealing," and they get to play the "We tried to be reasonable and settle" card.

    Nice work to the HRO team.

  2. "After two unprecedented trials and a wave of national attention, there should be no doubt that illegal downloading is wrong and that there should be real consequences for those who ignore the law. The message is resoundingly clear. "

    "Against the law" and "wrong" are two totally independent creatures having nothing to do with one another.

  3. "Nice work to the HRO team."

    After having boinked the trial from the beginning. Getting your act together years down the line is a far cry from "nice work".

  4. @Anonymous 1:13:

    How in the world did HRO "boink[] the trial"? They won huge verdicts at both trials.

  5. @Ben

    That's just the point. They've been supportive of bankrupting folks from the beginning to hang over the heads of others (look what could happen to you if you don't settle) by forcing account holders - not those who might really have infringed - into a settlement without evidence that those *account holders* did anything wrong in the first place.

    And now... they claim to be eager to "resolve this matter fairly" and settle for 25G - when really they just want to avoid precedent. Geez, can't really blame Jammie for not taking the bait.

  6. For many autistics, playing or watching the ultimatum game or the dictator game (involving non-autistics) is a bewildering affair. When they watch a player make choices that hurt themselves to spite another player, the irrationality is confusing.

    I feel this way as I watch both sides in this battle prepare to gear up for more legal fees out of principle.

  7. Shane: That's only the case if you consider failing to defend your property to be a positive choice.

  8. This is 100% absolutely Judge Davis's fault. He must feel completely PLAYED by Thomas-Rasset. First, she outright lies at trial, then he still reduces the award by 97%, trying to be the good guy or whatever he was thinking. Now, he sees that the plaintiffs are still offering half that in settlement and to charity no less!! and she rejects it. If I were Judge Davis, I would feel like a complete ass right now: I thought I was pushing a fair result, and now I realize the kind of utterly immoral person I am dealing with. He definitely screwed up here, all because he didn't want to deal with the constitutional question. At this point, the only proper thing for him to do is vacate his own remittitur order, decide the constituitional issue and let the loser appeal.

  9. Make the RIAA donate it to the RIAA defense fund.

  10. @Anonymous 7:01

    Or maybe Judge Davis feels that the RIAA is playing him since instead of accepting the remittitur the offer to settle for *half* of the remittitur order. What sane person would do that? Unless, of course, they have other motives.

    The other side of the same coin,

  11. halojones-fan,

    I'm not sure that's correct. It doesn't matter whether either choice, both choices, or neither choice will lead to a positive or negative outcome. The only thing that matters in game theory is where each outcome is relative to the other outcome(s).

    In this case, I believe both are negative choices, but that letting the judgment stand is the least bad choice for the RIAA. After all, for it to be a rational choice to appeal, they have to expect that it will lead to Thomas paying them more than she would otherwise, by an amount exceeding their legal costs.

  12. Shane -

    How is letting the judgment stand the least bad choice? Accepting the reduced award would:

    1) Prevent them from appealing the decision;
    2) Sanction the ability of a judge to rewrite the plain language of the statutory damages statute; and
    3) Leave damning legal precedent on the books which would greatly impair future litigations, even outside the realm of music infringement.

  13. How can the music industry claim that $2,500 per song for personal use (not for distribution, let alone sale) that sells for under $1, and for which they would get less than $1 (the seller has to make some money too, after all) is FAIR?

    Illegal downloads are a problem, though not as much as the music industry claims. Music sales went down after they closed down Napster, so they do get some benefit, but it is still wrong to steal the work of others. But they just go after the individuals downloading songs for personal use, not the real pirates who are SELLING their products and really cutting into their sales. And they blame all of their problems on downloading; the rotten economy is also a factor in reduced sales - if it is a choice between buying food and a song download, I'll take the food and do without the song.

    There has to be a better solution. One that is fair to the musicians, first of all; and to the media companies; and to the public, who are, after all, the customers who keep the companies in business.


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.