How Thomas-Rasset case would have played out, had we not been in the Parallel Universe

The normal world in which we litigators travel is that both sides are represented by lawyers, and there are a judge and jury to act as umpires, and cases are decided according to time tested principles of substantive and procedural law.

The RIAA cases, however, proceed in a parallel universe, where the plaintiffs are overlawyered, the defendants underlawyered, and the Courts misled by both. The courts have not received the benefit of the crystallization of issues that would normally result from the proper working of our judicial system, resulting in a “parallel universe” which, to an outside observer, might look like litigation, but is not.

So I thought to myself : “how would this case have played out in the real world, rather than in the parallel universe?”

Here's how:

Courtroom demeanor

None of the lawyers would have been permitted to mention, or educe any testimony, on any copyright infringement by anyone other than defendant, the alleged reasons for the large record companies' business difficulties, any other litigations, or the possible amount of any statutory damages award.


Liability-Reproduction right

Plaintiffs failed to introduce an iota of evidence that Jammie Thomas-Rasset had made a single copy using Kazaa.
Result: directed verdict on reproduction right.

Liability-Distribution right

Plaintiffs failed to introduce an iota of evidence that
(1) any copy was disseminated to anyone other than MediaSentry
(2) any dissemination “to the public” occurred
(3) any sale, other transfer of ownership, rental, lease, or lending occurred.
All of the above are necessary components to the distribution claim.
Result: directed verdict on distribution right

Evidence-Plaintiffs' Experts

(1) Under Fed. R. Civ. P. and Fed. R. Evid., MediaSentry was an expert; therefore testimony barred for failure to provide expert witness disclosure;
(2) Alternatively, MediaSentry documents and testimony barred for failure to satisfy Daubert and Fed. R. Evid. 702;
(3) Jacobson testimony barred for failure to satisfy Daubert and Fed. R. Evid. 702

Evidence-Defendant's Expert

Since he was a rebuttal witness, Court was wrong to prejudge what defendant's expert could and could not testify about; the scope of his testimony could not be determined until after plaintiffs' case had been put in.

Assuming the Court denied or reserved decision on defendant's motion to dismiss at close of plaintiffs' case, we reach the following:

Statutory Damages-entitlement-jury instructions

The jury should have been instructed that a “work” is an album, and that multiple mp3's from one album constitutes a single “work”.
The jury should have been required to make findings as to (a) the date defendant commenced using an “online media distribution system” (Kazaa) and (b) the copyright registration effective date of each work they find was infringed.
The jury could have been instructed that no statutory damages could be awarded as to any work whose copyright registration effective date was subsequent to the date of defendant's commencement of use of Kazaa [or the Court could itself have made that determination based on the answers to the verdict form].

Statutory Damages-amount-jury instructions

There is long standing case law under the Copyright Act that statutory damages should bear a reasonable relationship to actual damages, and that even in commercial cases the usual multiple is from 2:1 to 4:1. There having been no evidence of defendant having been a distributor, and the actual damages being as a matter of law something less than the maximum wholesale price of 70 cents, the jury should have been instructed to award $750 per work it found to have been infringed.

If the Court submits the case to the jury, and the jury awards $750 per infringed work, then the parties could litigate the constitutionality of that award in motion practice.

That's the way it would have played out in the real world.

I can dream, can't I?

-R.B.

[Ed. note. The above list of matters which were overlooked should not be deemed to be exclusive. I keep thinking of other things that appear to have been overlooked in this trial. E.g., was MediaSentry ever required to prove that the 24 song files in question were in fact song files? Most likely they only had 6 files or so with which to do that. -R.B.]

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