As many of you know, there is a substantial question as to the constitutionality of the RIAA's $750 per song file damages theory, in view of the fact that its actual lost profits are in the neighborhood of 35 cents per song file.
The revelation in Capitol v. Thomas (formerly Virgin v. Thomas) that they are seeking even more than $750 per song file -- in this case they asked for from $750 to $150,000 per song file and were awarded $9250 per song file, thus receiving a verdict of $222,000 for $23.76 worth of files -- underscores the importance of getting pretrial discovery into the revenues and expenses of the plaintiff record companies for authorized downloads, so that the constitutionality defense can be fully shown.
In view of Holmes Roberts & Ownen's ardent stonewalling of discovery into this area, it is doubtful that the jurors in Thomas were shown that the RIAA'a actual damages were about $8 (i.e. 1/30,0000 of the damage award).
In UMG v. Lindor, the plaintiffs stonewalled the revenue question for about six (6) months until they finally entered into a stipulation providing for the revenue number to be supplied. Now they have been stonewalling with respect to the expenses information, forcing Ms. Lindor's attorneys to make a motion to compel an answer to defendant's single interrogatory on the subject.
A word to the wise: if you want to be able to show that the RIAA's damages theories are unconstitutionally disproportionate to the actual provable damages, be aggressive about getting pretrial discovery on the issue, from the outset.
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