Tuesday, January 26, 2010

Labels: We need more time to ponder remittitur decision in Thomas-Rasset case

When Chief Judge Michael Davis slashed the jury's award against Jammie Thomas-Rasset from $80,000 to $2,250 per song, he gave the record label plaintiffs two choices: 1) accept the reduced award; or 2) return to Minnesota for a new trial on damages. And he gave them seven days to tell him their decision. Well, it looks like they're having a bit of trouble making up their minds, and are now asking for an additional ten days to mull it all over:
Plaintiffs' request for extension re remittitur decision

Interestingly, for reasons I explained yesterday, plaintiffs faced with such a choice almost never choose a new trial. According to this academic study of cases from 1991-2000, "when judges remitted jury verdicts, in 98% of the cases the plaintiff either accepted the remittitur (in 71% of the cases) or settled the case (in 27% of the cases). In only 2% of the cases did the plaintiff take the new trial." The labels' motion indicates that Thomas-Rasset does not oppose the request for an extension.

Update: the court has granted the motion, giving the plaintiffs until Monday, Feb. 8 to make their choice.


  1. You may find the following article of interest as you look into the vagaries of remittitur:


  2. I can understand the labels' hesitancy. They've just been handed an upper bound to their ability to intimidate.

    If they allow the $2250 per song judgement to stand, this may limit returns from subsequent lawsuits. On the other hand, if they decide to fight it, the question of how much actual damages incurred is almost certainly going to be investigated.

  3. Is this really so big a precedent as it first seems? If it's about the ability of judges to lower stautory awards whenever they want, or any award involving statutory copyright damages in any case then sure (although maybe someone else can be left to fight that sometime in the future when the odds are better).

    But I think there is something reasonable in seeing a problem where there's a wide range of statutory damages, where the upper range of damages is intended to be applied to large commercial infringement and yet where it's being applied to an individual looking to avoid buying music. That's made clear in the order. Would that not be the specific precedent, so that in a future trial involving, say, Google, where you really would want the higher end of damages the precedent of remittitur for Thomas-Rasset wouldn't reasonably apply? Or, better yet, the law might be revised in the meantime so that it doesn't catch the little fish in the big net? (Although, good luck to anyone wanting to define commercial vs non-commercial on the internet.)

    And the reduced award, I think, is more effective as a deterrent. It's hard to be deterred by things you just can't imagine happening to you - witness the lack of the death penalty for jaywalking. Ideally, I suppose, the labels would want to accept the award, possibly saying it was never about the money but the principle, but disagree on the manner it has come about and make it clear that in other circumstances they would fight.

  4. CS Clark -

    It's a huge precedent where the Judge has essentially re-written copyright law, and given the plaintiffs a choice of a new trial (run by his new re-written rules) or to accept the reduced damages (of whether it's uncertain that the court had the power to reduce the statutory award) and waive any right to appeal.

    Moreover, you seem to parrot the argument that "the upper range of damages is intended to be applied to large commercial infringement and yet [] it's being applied to an individual looking to avoid buying music." Do you have any support for this statement? Because the court certainly didn't assign any to it's passing statement on the matter either.


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