Monday, February 8, 2010

Labels reject remittitur, opt for third trial on damages in Jammie Thomas-Rasset case

The record label plaintiffs have opted for a third trial against Jammie Thomas-Rasset rather than accept the court's decision to reduce the jury's award from $1.92 million to $54,000. In a six-page notice filed late today, the labels said they "find it impossible to accept a remittitur that could be read to set a new standard for statutory damages – essentially capping those damages at three times the minimum statutory amount of $750 (or $2,250) for any 'noncommercial individuals who illegally download and upload music.' (Id. at 2, 25.) This far-reaching determination is contrary to the law and creates a statutory scheme that Congress did not intend or enact."
Plaintiffs' Notice of Decision re remittitur in Capitol v. Thomas-Rasset

Given the labels' decision -- presented to them in the court's January 22 order cutting the Minneapolis jury's award by 97 percent, from $80,000 to $2,250 per song -- there will be a third trial, though this one will concern only damages. The jury in the first trial in 2007 awarded $9,250, totaling $222,000 for 24 songs, but that verdict was thrown out after Judge Michael Davis determined that one of his jury instructions was improper.

It remains unclear exactly what a third trial will look like. As I've noted:
[T]he court, in its Jan. 22 order, has already determined that $2,250 per work "constitutes the maximum amount a jury could reasonably award to both compensate Plaintiffs and address the deterrence aspect of the Copyright Act." Order at 25-26. So what happens if there's a new trial and the jury again comes back with an award greater than $2,250 per song?... Can this go on ad infinitum?
Also unclear is how the court will instruct the jury. Will he tell them that $2,250 per work is the maximum, or will they once again be permitted to return with a verdict of up to $150,000 for each infringed song? If, as seems likely, the jury once again returns with a verdict of over $2,250 -- which the court would presumably remit again -- it appears only the Eighth Circuit can save us all from a real-life Groundhog Day.

Update: here's the RIAA's statement about the current state of affairs:
We have done everything within our power to resolve this case on fair terms. The defendant is someone who knowingly distributed hundreds upon hundreds of unauthorized songs without any regard for those who created them, likely bent on the brazen assumption that she’d never get caught. During both trials she lied about her actions while under oath. Ironically, Ms. Thomas-Rasset claimed during the trials what an ordeal this has been. Meanwhile, every move she and her counsel have made has been with the intent to prolong this case while refusing every reasonable settlement offer. Unfortunately, despite two jury decisions against her and a federal court’s affirmation of her liability and irresponsible behavior, Ms. Thomas-Rasset even refused a settlement offer that was less than half of the judge's remitted amount and that would have been donated to a charity for struggling musicians. In fact, Ms. Thomas-Rasset has asserted that she never intends to pay a penny to settle the case. With the benefit of free counsel, she now seeks to gut the laws that she has repeatedly and blatantly violated.

American taxpayers should not have to bankroll a publicity campaign that the defendant and her counsel apparently seek. But if another trial is what is needed to close the book on this case once and for all, then we are left with no choice but to reject the Court's remittitur and proceed to a new trial on damages.


  1. Clearly, if I were the defendant's attorney, I'd strenuously argue for an instruction based on the court's language that $2250 per infringement is the maximum damage allowed. If the court allows it, it is tantamount to holding the plain language of 504 unconstitutional. If it denies it, then it implicitly admits to the hypocrisy of its previous decision because how, one the one hand, can the court say $2250 is the maximum due process allows, and on the other, allow the jury the liberty of violating due process with a higher range from which to choose?

    How do the Plaintiffs make it to the 8th Circuit if their only options, ad nauseum, are to retry damages or accept remmititur? Is there any chance for an interlocutory appeal on the matter if the Court adopts an instruction limiting the maximum damages to $2250?

  2. @Anonymous:

    As to your last question: yes, if we are still in this seemingly endless loop after 3 trials, I think there's a good chance the 8th Cir. would be willing to step in and entertain an interlocutory appeal to stop the madness once and for all.

  3. "American taxpayers should not have to bankroll a publicity campaign" - that's kind of cute coming from the RIAA, as they have stated that the entire lawsuit campaign is for...Publicity!

  4. @Anonymous 11:37:

    Do you have a citation for the RIAA supposedly saying "the entire lawsuit campaign is for...Publicity!"? The campaign was to vindicate their legitimate rights under the Copyright Act (as courts have repeatedly held), and to deter others from infringement (which is effected via the public attention directed to these suits).

  5. Ironic isn't it? She refuses to settle and is such a horrible person for doing so, wasting the taxpayers money and whatnot, yet it's the PLAINTIFFS and not the defendant who's forcing a third trial. Why is it okay for the plaintiffs to continue where it's not okay for the defendant? Why can't the Plaintiffs accept the remittitur as they claimed they would in their last brief opposing a new trial? Seems they're wasting just as much taxpayer dollars as the defendant.

    Both sides seem to think they have a good case, the plaintiffs with protecting their copyrights and the defendant with proving how unconstitutional the law is with the statutory damages scheme allowing for up to 150K times the value of the product in damages. There are always two sides to every coin, just wish you would start showing both Ben.

  6. @Anonymous 6:12:

    The notion that I haven't shown the "two sides to every coin" is demonstrably false. Since I started covering these issues on this blog, I have always done my utmost to fairly present the defendants' arguments in these cases, even where I disagree strongly with them. And, just as important, I upload and link to original documents whenever possible, so that readers can judge the arguments for themselves (and to help keep myself honest).

    "Why can't the Plaintiffs accept the remittitur as they claimed they would in their last brief opposing a new trial?"

    First, plaintiffs didn't say they would accept any remittitur. They said they would accept one under certain circumstances -- circumstances they don't believe were satisfied here. And second, the reason they won't accept the remittitur here is clear: they believe Judge Davis' ruling sets very bad precedent that, if left undisturbed, will haunt them in future cases. They want it off the books.

  7. "With the benefit of free counsel, she now seeks to gut the laws that she has repeatedly and blatantly violated."

    I have rarely seen such Awesome in the form of Sauce. Indeed, this girl brews a mean batch of Awesome Sauce.


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.