RIAA Insists On 3rd Trial In Thomas Case 280
NewYorkCountryLawyer writes "Not satisfied with the reduced $54,000 verdict which the Judge allowed it in Capitol Records v. Thomas-Rasset, representing approximately 6500 times the amount of their actual damages, the RIAA has decided to take its chances on a third trial, at which it could only win a verdict that is equal to, or less than, $54,000. Since a 3rd trial in and of itself makes no economic sense, and since the RIAA's lawyers inappropriately added 7 pages of legal argument to their 'notice', it can only be assumed that the reason they are opting for a 3rd trial is to hope that they can somehow bait the Judge into making an error that will help them on an appeal."
Re:New Trial? Whatever Happened to Due Process? (Score:5, Informative)
IAAL. It is really a part of the same trial-- the rules of remittitur say if you don't like how the judge reduced your award, you can try the issue of damages again. Basically means if you think the judge wrongly reduced the jury verdict, you can and should have the jury try again, so we know, on appeal, what a second jury verdict was (a perspective on the reasonableness of how much the judge chopped off the first verdict). If I were an appellate court judge I think I'd want to see that.
Re:Question for NYCL (Score:5, Informative)
Does the idea of double jeopardy apply in civil law?
Yes, though slightly different - it's called judicial estoppel, and essentially means that your previous losing judgement is precedent for your later suit.
If not, what prevents a plaintiff with very deep pockets from suing a defendant for something, losing, suing them again, losing, etc until the defendant's funds with which to defend themselves run out? Because this sounds like a pretty open-and-shut case of the RIAA doing exactly that, and the overall effect is that said defendant effectively loses even if they win.
Nope. The RIAA won both of the previous trials. In the first one, the jury found Thomas liable, and awarded $222k. She appealed, and got a new trial due to a jury instruction error. In the second trial, the RIAA won again, and the jury awarded them $1.9 million (ooops). The judge reduced the award to $54k and gave the RIAA the option of either accepting the $54k, or returning to trial. At this trial, it will just be on damages, so it should go faster. But the second and third trials aren't the result of any sort of frivolous litigation by the RIAA, even if the first one was.
The other side of the story (Score:3, Informative)
Mules, long noted for stubbornness, would seem to have nothing on either the music labels or Jammie Thomas-Rasset. Both sides have dug in deep and are prepared, almost unbelievably, to have a third trial on the question of whether Thomas-Rasset was a dirty P2P pirate... and of what she should pay if she was.
At the second trial, in 2009, Thomas-Rasset was again found liable, but the jury this time fined her $1.92 million. Last week, federal judge Michael Davis decided that this was "monstrous" in its disproportionality and slashed the damages to $54,000. The recording industry could either accept his decision or request a third trial.
The RIAA then sent a letter to Thomas-Rasset's lawyers with an alternate offer. Thomas-Rasset could settle for only $25,000 ("We are willing to negotiate a payment schedule for this sum," said a copy of the letter seen by Ars), and she wouldn't even need to pay the labels--all cash could go to a charity benefiting musicians. The entire settlement would be conditioned on the judge vacating his recent remittitur order.
"We do not believe embarking on a third trial is in anyone's interest," said the letter. "Continuing to use scarce judicial resources as well as spend our respective clients' time and money strikes as unwise and pointless."
It does not strike Thomas-Rasset that way. While the RIAA asked for an answer by Friday, January 29, Thomas-Rasset's lawyers have already responded: no deal.
I checked in with Kiwi Camara, one of Thomas-Rasset's lawyers. who confirmed that the settlement was ruled out. He added that Thomas-Rasset would likewise rule out any settlement asking her to pay damages, and that the Camara & Sibley law firm was ready to represent her pro bono once more.
It's hard to see how this will play out, but a few things are clear: Judge Davis, despite strong criticism of the damage award, had no kind words for Thomas-Rasset. He noted that "ThomasRasset's refusal to accept responsibility for her actions and her decision to concoct a new theory of the infringement casting possible blame on her children and exboyfriend for her actions demonstrate a refusal to accept responsibility and raise the need for strong deterrence." The judge even concluded that she "lied on the witness stand by denying responsibility for her infringing acts and, instead, blamed others, including her children, for her actions."
Given the facts in the case, which after two trials don't appear to be in dispute, it's hard to see how Thomas-Rasset hopes to prevail without paying a dime, but that appears to be the plan.
If she had been willing to pay something, she would have done so long ago, when the RIAA offered her a settlement of a few thousand dollars. Instead, Thomas-Rasset has spent years of her life working with two law firms on two federal trials, and she's willing to risk a third.
The stubbornness isn't just on one side of the aisle, however. The RIAA is completely unwilling to abide Judge Davis' ruling that the jury's damage award was excessive. Accepting the ruling would set an unacceptable precedent for judges to alter jury awards in copyright cases at their whim. It's not the amount, but the principle--something shown by the fact that the trade group is willing to drop roughly a bazillion dollars more on the Denver law firm that has been prosecuting the case in order to do it all again. In addition, conversations with industry lawyers and executives over the years have also revealed a strong sense that Thomas-Rasset needs to take responsibility and pay something; there's a very real sense that, apart from issue of statutory damage law, Thomas-Rasset is thumbing her nose at the industry and hoping to get away with no penalty.
Thus--a third trial.
Thomas-Rasset vows to pay nothing, so third trial inevitable [arstechnica.com] [Jan 28]
Re:New Trial? Whatever Happened to Due Process? (Score:4, Informative)
b) The judges have so far ruled that the cases be dismissed WITHOUT PREJUDICE.
Not true. The RIAA won the first trial, and were awarded $222k in damages. The judge dismissed that one due to an error in the jury instructions. The RIAA won the second trial and were awarded $1.92 million in damages. The judge reduced the award to $54k, and the RIAA has opted for a new trial on damages rather than accept that. The previous trial is not dismissed without prejudice - rather, the jury findings that Thomas was liable for 24 counts of willful infringement of the right to copy and 24 counts of willful infringement of the right to distribute aren't touched. This trial will only be on what level of damages are awarded.
And, it makes sense for the RIAA... The judge reduced the damages from $1.92 million to $54k in a post-trial opinion. The RIAA didn't get to argue that that was improper, so they'd have nothing to appeal. This new trial gives them a chance to argue that decision.
And don't weep for Thomas-Rasset. Her lawyers are working pro bono.
c) The judges have not ruled against the cases to be unconstitutional.
Yeah, and NYCL's wishes aside, they're really unlikely to do so. Article I, section 8, clause 8 expressly gives Congress the power to create copyright law. That's clearly constitutional - the only issue for unconstitutionality is statutory damages, but that's a tough road to hoe. First, because Congress has the power to create copyright law, then the courts have to defer to how they create the law, provided they're within the bounds of the 5th amendment. Second, if you want a original-intent argument, copyright law has included statutory damages since the original 1790 Act, only three years after the Constitution. Third, the arguments that statutory damages are out of proportion with actual damages ignore most of the damages, specifically the infringement of the right to distribute. It's like saying that sending someone to jail for 5 years for speeding is grossly excessive, and neglect to mention their DUI and hit and run.
Re:New Trial? Whatever Happened to Due Process? (Score:3, Informative)
Wrong. It does and it doesn't. There's some aspects of the Constitution which apply in full force (with changes in procedure that alter the nature of the BoR's impact on things...) and some things that don't.
For example:
A civil asset seizure, if not properly done under a valid Warrant is a violation of the Fourth Amendment- just as if it were a criminal one. If the assets so seized are not immediately remanded, it's a Fifth Amendment violation (Unlawful Takings...). Any Civil discovery or Criminal evidence obtained from such a seizure is no longer admissible in court and is typically ordered to be destroyed at the moment of the discovery that the Fourth has been violated.
Testimony not able to be cross-examined prior to a trial or during is generally held to be inadmissible as hearsay per the confrontation clause of the Sixth Amendment. Bank statements are excluded from this holding- but most everything else isn't going to fly.
In a courtroom, you may plead the Fifth in a Civil case, but you have to explicitly take it each and every time you are asked a question- and you can have negative inferences (i.e. it can be at least partly held against you in a decision...) from the Judge or Jury if you DO choose to take that route. And you can't let up once you start, you have to take it from that moment on.
You can't be tried under the Civil code by the the State or Federal government for something and then have it followed up by a Criminal code suit for the same specific violation (double-jeopardy). Though you can have a trial under the Criminal code and then be sued by the family of the deceased/injured in the context of a murder/manslaughter/etc. case as we've seen with the OJ Simpson story. That's allowed because it wasn't specifically the same cause (The state tried for murder, the family sued for damages, etc.).
The First Amendment is typically deemed to trump most every Civil and Criminal statute when applied in the manner it's usually done.
Most of these things apply to State level courts through the Fourteenth Amendment.
In truth, the Civil code's authority stems from the rules set forth in the Constitution and the Bill of Rights affects it as much as the varying Penal codes.
Re:I don't condone what the RIAA does (Score:5, Informative)
1. Wholesale price=70 cents
2. Expenses=35 cents.
3. ???????????
4. Profit!!!!!!!!!! [35 cents]
(That's assuming every single unauthorized download = a lost sale, which is obviously not the case. See, e.g. USA v. Dove [blogspot.com].
Re:I don't condone what the RIAA does (Score:5, Informative)
But there's another right that was infringed, the right to distribute, for which Thomas-Rasset was independently found liable. And distribution rights are much more expensive
First of all, nobody proved she was distributing the songs. They made up the bogus notion of “making available” to get around it.
Nope, that was the first trial. The judge fixed the jury instructions and removed "making available", and the jury found her liable in the second trial.
Secondly, Thomas wasn’t acting on her own. She was part of a massive file-sharing network.
Can you quote a line from the statute where that makes a difference? It's 17 USC 501 [cornell.edu] and up, if that helps.
People didn’t download the files from her, they downloaded the files from the file sharing network and there is a possibility that she participated in making the files available on that network.
Nope - the RIAA's evidence included direct downloads from her. Bear in mind that she was on Limewire, not Bittorrent.
Since the files would have still been available for distribution on the network if she had not been sharing them, it is absurd to think that she, on her own, caused $x in damages for distribution, where $x would be the amount it would cost to become a legal distributor of the songs.
Ah, but she did. Consider, as I pointed out above, Apple paying large amounts of royalties to become a legal distributor, even though those songs are already available at record stores. Since they already were available for distribution, would Apple not be liable for those royalties if they suddenly refused to pay?
Divide up $x amongst the millions of people in the network, or just the hundreds or thousands who are sharing that particular song, and each person doesn’t really cause much damage on their own. Singling one out is just finding a scapegoat.
There's no requirement of joint or several liability in the statute. This was intentional - if I make one copy of something and give it to you, and you make one copy and give it to a friend, and they make one copy and give it to someone else, etc., would the copyright owner have to file millions of individual suits? And could they even, when the costs for a single suit may be thousands of dollars? No, Congress explicitly considered this when they put in statutory damages - the copyright owner isn't required to go after everyone, and the damages are sufficiently high that the costs of a suit aren't a deterrent to a legitimate copyright owner who wants to protect their rights.
Re:New Trial? Whatever Happened to Due Process? (Score:5, Informative)
I suspect this is a somewhat silly question, but ...
Will the extra costs incurred to Thomas after the 54k verdict be plaintiff? I.e. if the RIAA's tactic here incurs an extra 5,000 dollar in legal fees, will she be allowed to deduct that from the next verdict?
Or can this be seen as a tactic to put more strain on her financial situation? I.e. they know they can't get more than 54,000 dollars, but if they can force her into bankruptcy by not only holding that 54,000 dollar verdict over her head but also constantly increasing legal fees, they can force her into an out of court settlement that may be cheaper for her (legal fees only), but kept under wraps so as not to set precedent.
1. In the present posture, she can't win, absent an appeal. The second trial is just about the amount of damages.
In actuality the RIAA will incur at least a hundred thousand dollars for another trial, probably more. And that's not counting the other expenses, such as employee time, etc.
I think, but am not sure, that there was a special agreement in this case precluding attorneys fees.
Sometimes settlements are entered into the public record, sometimes not. Either way, they are not judicial precedents.
Re:New Trial? Whatever Happened to Due Process? (Score:5, Informative)
Re:I don't condone what the RIAA does (Score:3, Informative)
Nope - although searching runs over a peer-to-peer network, file transfers are in the form of single server-single client
You’re just plain wrong. When you search for a file in Limewire, it shows how many people are hosting the file, and when you download the file, it connects to all of the hosts it knows of and downloads from as many as possible to increase the transfer speed. It shows how many people you’re downloading from.
Limewire is now bittorrent compatible, but wasn't at the time Thomas-Rasset was using it. Does that change your analysis?
Re:Wait, you check to see if a singer is in the RI (Score:3, Informative)
I always check first, via riaaradar.com. If the artist is represented by the RIAA, then I don't buy the CD, I don't buy the song on iTunes, nor do I pirate it, either. There are plenty of non-RIAA artists to lavish my limited funds on.
Re:New Trial? Whatever Happened to Due Process? (Score:3, Informative)
In the US there is no single definition. It is VAUGE to say the least and varies greatly on jurisdiction. Some places require a physical copy to be transferred (bits on a hard drive may or may not count) AND its use. Other jurisdictions require that the recipient be aware of the transfer, others do not. Some jurisdictions require that parties understand that the transfer is taking place (think being handed a mix tape but you don't know about the 5th track). Currently in at least one jurisdiction distribution includes a computer transferring a programs executable data into ram. There is no single definition of distribution. Without that, how can you say that the defendant did or did not do something. It is undefined!
Just read the commentary on the GPLv2 and GPLv3. They changed the wording to avoid using the word distribution because it was undefined.
Re:I don't condone what the RIAA does (Score:3, Informative)
Also, can you access this description?
Yes, and note Figure 2.1.12, Searching in Gnutella [kent.edu]:
Client A wants data and floods the network with a query for that data.
Hosts C and D respond that they have this data.
Client A then sends data requests to both hosts C and D to download part of the data from each of the hosts.
As I described, your client will connect to as many sources as possible to get you the best download speed. The reason for this is that most internet connections have much slower upload speeds than download speeds. If you can download at 300k/sec but the person you are downloading from can upload at only 60k/sec, you want to find more than one person to download from. Gnutella clients do this automatically.
(Using “client” and “host” to designate nodes that request and serve a file, respectively; understanding that all nodes act both as clients and hosts as the situation demands. Once a client finishes downloading the data, it typically continues to host it on the network, unless it is configured not to do so.)
Re:New Trial? Whatever Happened to Due Process? (Score:2, Informative)
http://en.wikipedia.org/wiki/MDY_Indus._LLC_v._Blizzard_Entm't,_Inc [wikipedia.org].
For at least the District of Arizona the natural physical action of running a program is distribution under copyright law. If you would like to find any reasonable or unreasonable situation I am sure we can find two opposing rulings in Federal law, both having equal weight.
The situation is on the whole, absurd.
Re:New Trial? Whatever Happened to Due Process? (Score:3, Informative)
Thanks for the explanation of why another trial is possible when the judge sets aside a civil jury's damage award. But, what's the point if it can only serve to uphold or reduce the current award?
In the context of this particular case, there is absolutely... no... point.