Recording Industry vs The People: DOJ Asks Court to Avoid Constitutional Question in Capitol v Thomas

Saturday, August 15, 2009

DOJ Asks Court to Avoid Constitutional Question in Capitol v Thomas

In Capitol Records v. Thomas-Rasset, the opposition briefs in connection with the post-trial motions were filed yesterday. Reply briefs are due Friday, August 21st.

The RIAA defended the $1.92 million verdict based on infringement of 24 mp3 files.

The US Department of Justice, although agreeing with the RIAA that the award was constitutional, urged the Court to avoid the constitutional question by instead addressing the question of whether the verdict merited being set aside on "common law" grounds, as being "shocking to the conscience".

Ms. Thomas-Rasset filed a brief opposing the RIAA's motion to amend the judgment by adding an injunction.

Plaintiffs' Opposition Memorandum
DOJ Opposition Memorandum
Defendant's Opposition Memorandum

[Ed. note.

1. The US Department of Justice (a) continues to debase itself by misstating the law in its unseemly haste to provide cover for the RIAA, and (b) sinks to a new level of debasement by arguing that an award of 228,000 times the actual damages satisfies due process standards. Its awareness of the frivolousness of its constitutional argument is betrayed by its urging the Judge to reach the same result -- the setting aside of the verdict -- on non-constitutional grounds, the "common law" ground for remittitur that the verdict is "shocking to the conscience". A complete answer to all of the legal points argued by the DOJ's frivolous brief is found in the amicus curiae briefs which we filed in SONY v. Tenenbaum and SONY v. Cloud.

2. The RIAA's brief is another in the long line of frivolous briefs they have filed, arguing that the size of the verdict can be measured against all of the damages the plaintiffs have suffered from all of the copyright infringements since time immemorial, and wallows in speculation -- unsupported by any actual evidence and based solely upon two inhouse lawyers' opinions -- as to how much actual damage Ms. Thomas-Rasset's alleged 24 downloads caused.

3. Both the RIAA and DOJ briefs take the "ostrich" approach to the Supreme Court's jurisprudence regarding due process standards for "punitive awards".

4. The defendant's brief correctly observes that the court was under no obligation to tack on an injunction to its ludicrous $1.92 million money judgment.

-R.B.]

Commentary & discussion:

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Keywords: lawyer digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property portable music player

7 comments:

Anonymous said...: A quick question for you. If Statutory awards are codified by Congress, how can one successfully argue against the 8th amendment? I get that this is a civil matter, but the principal actor (whether a state prosecutor or RIAA attorney) can exact a punishment against the defendant proscribed by the same authority (Congress). Shouldn't the 8th Amendment apply even if it's a civil matter? How would this differ from a law from congress that made the fine for jay walking $1M?; August 15, 2009 at 4:51:00 PM EDT
Unknown said...: Wow.

Satisfies due process, but is shocking to the conscience.

Common law?

Where did the due process requirements come from in the first place? Have they abstracted away both history and ethics?; August 15, 2009 at 8:02:00 PM EDT
The Common Man Speaking said...: While statutory damages exist to allow for the purpose of assessing damages where actual damages are exceptionally difficult to determine, no one in their right mind can possibly state that 228,000 times the actual damages of a single song file can possibly be an approximation of those actual damages. If there was ever an argument for the RIAA to just die, dry up, and blow away as a wisp in the wind, their defense of this concept more than satisfies that requirement.

They cannot accurately claim that Ms. Thomas-Rasset's alleged 24 downloads caused any amount of significant damage since they have never contended that she is the initial source of the music placed out on the P2P network, nor that she herself uploaded any significant number of songs to enough other people to justify this amount of damage. The mere limitations of her Internet connection prove that impossibility even if only the 24 songs in the suit were ever uploaded to any other person – never proven, of course.

And Ms. Thomas-Rasset is in no way responsible for the actions of anyone else who may – never proven – downloaded the song files from her. If the RIAA seeks further damages then they should seek out and sue those people as well.

It is a case taken to absurdity that shows the foolishness of any given law. This case has well demonstrated the foolishness of the statutory damage provisions of the current Copyright Act, as well as the horrible people in the Obama (you absolutely cannot blame this one on Bush) in-Justice department!; August 16, 2009 at 4:36:00 AM EDT
Anonymous said...: I think that they are all scared of the supreme court because they KNOW that this award is unconstiutional.

How much did the RIAA pay for this statement?; August 16, 2009 at 12:24:00 PM EDT
Anonymous said...: I see that the Crown expects all settlers to pay set taxes on tea.

I also see this as just a part of the bigger problem: corrupting influence in our government. This is my opinion, that of a man who works hard and plays fair. I am always disheartened when our government does not abide by the very rules our country was founded on.

Oldphart in Kansas; August 17, 2009 at 12:40:00 AM EDT
Unknown said...: The Obama Justice department seems to have turned a department filled with political appointees ment to further the 1000 years of Republican rule, into the Copyright Enforcement Department.

I am saddened by this obvious level of just corruption and gamesmanship in the highest levels of the Justice Department.; August 17, 2009 at 7:19:00 AM EDT
The Common Man Speaking said...: Sebastien,

This man feels your pain and disappointment that the Hope and Change you were promised isn't coming about in the ways that you had envisioned for it.

Wait, no he doesn't. This man is not at all surprised by Obama's actions since he is doing pretty much everything he said he would do when not trying to pretend to be in the center. This man is only glad that he didn't vote for Obama himself and can say, "If you're unhappy now, why didn't you listen to Obama during the campaign? He's doing everything he said he would, and this case is a sad example of it."

This man hopes that the Constitutional issue cannot be dodged and must be addressed by the Supreme Court. Even if SCOTUS confirmed the award things wouldn't be any worse than they are now.; August 17, 2009 at 5:12:00 PM EDT

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JUDICIAL QUOTATIONS

"[T]he Court is concerned about the lack of facts establishing that Defendant was using that IP address at that particular time. Indeed, the [complaint] does not explain what link, if any, there is between Defendant and the IP address. It is possible that Plaintiff sued Defendant because he is the subscriber to IP address .... As recognized by many courts, just because an IP address is registered to an individual does not mean that he or she is guilty of infringement when that IP address is used to commit infringing activity." -Hon. Barry Ted Moskowitz, Chief Judge, S.D. California. January 29, 2013, AF Holdings v. Rogers
"The complaints assert that the defendants – identified only by IP address – were the individuals who downloaded the subject “work” and participated in the BitTorrent swarm. However, the assumption that the person who pays for Internet access at a given location is the same individual who allegedly downloaded a single sexually explicit film is tenuous, and one that has grown more so over time." - Hon. Gary R. Brown, Magistrate Judge, E.D.N.Y. May 1, 2012, K-Beech v. Does 1-37
"The concern of this Court is that in these lawsuits, potentially meritorious legal and factual defenses are not being litigated, and instead, the federal judiciary is being used as a hammer by a small group of plaintiffs to pound settlements out of unrepresented defendants."
-Hon. S. James Otero, Dist. Judge, Central Dist. California, March 2, 2007, Elektra v. O'Brien, 2007 ILRWeb (P&F) 1555
"The University has adequately demonstrated that it is not able to identify the alleged infringers with a reasonable degree of technical certainty...[C]ompliance with the subpoena as to the IP addresses represented by these Defendants would expose innocent parties to intrusive discovery....[T]he Court declines to authorize discovery and quashes the subpoena as to Does # 8, 9, and 14" -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, November 24, 2008, London-Sire Records v. Does 1-4
"[C]ounsel representing the record companies have an ethical obligation to fully understand that they are fighting people without lawyers... that the formalities of this are basically bankrupting people, and it's terribly critical that you stop it...." -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, June 17, 2008, London-Sire v. Does 1-4
"Rule 11(b)(3) requires that a representation in a pleading have evidentiary support and one wonders if the Plaintiffs are intentionally flouting that requirement in order to make their discovery efforts more convenient or to avoid paying the proper filing fees. In my view, the Court would be well within its power to direct the Plaintiffs to show cause why they have not violated Rule 11(b) with their allegations respecting joinder. [I]t is difficult to ignore the kind of gamesmanship that is going on here.....These plaintiffs have devised a clever scheme... to obtain court-authorized discovery prior to the service of complaints, but it troubles me that they do so with impunity and at the expense of the requirements of Rule 11(b)(3) because they have no good faith evidentiary basis to believe the cases should be joined." -Hon. Margaret J. Kravchuk, Magistrate Judge, District of Maine, January 25, 2008, Arista v. Does 1-27, 2008 WL 222283, modified Oct. 29, 2008
"[N]either the parties' submissions nor the Court's own research has revealed any case holding the mere owner of an internet account contributorily or vicariously liable for the infringing activities of third persons.....In addition to the weakness of the secondary copyright infringement claims against Ms. Foster, there is a question of the plaintiffs' motivations in pursuing them..... [T]here is an appearance that the plaintiffs initiated the secondary infringement claims to press Ms. Foster into settlement after they had ceased to believe she was a direct or "primary" infringer." -Hon. Lee R. West, District Judge, Western District of Oklahoma, February 6, 2007, Capitol v. Foster, 2007 WL 1028532
"[A]n overwhelming majority of cases brought by recording companies against individuals are resolved without so much as an appearance by the defendant, usually through default judgment or stipulated dismissal.....The Defendant Does cannot question the propriety of joinder if they do not set foot in the courthouse." -Hon. S. James Otero, Central District of California, August 29, 2007, SONY BMG v. Does 1-5, 2007 ILRWeb (P&F) 2535
"Plaintiffs are ordered to file any future cases of this nature against one defendant at a time, and may not join defendants for their convenience."
-Hon. Sam Sparks and Hon. Lee Yeakel, District Judges, Western District of Texas, November 17, 2004, Fonovisa v. Does 1-41, 2004 ILRWeb (P&F) 3053
"The Court is unaware of any other authority that authorizes the ex parte subpoena requested by plaintiffs."
-Hon. Walter D. Kelley, Jr., District Judge, Eastern District of Virginia, July 12, 2007, Interscope v. Does 1-7, 494 F. Supp. 2d 388, vacated on reconsideration 6/20/08
"Plaintiffs contend that unless the Court allows ex parte immediate discovery, they will be irreparably harmed. While the Court does not dispute that infringement of a copyright results in harm, it requires a Coleridgian "suspension of disbelief" to accept that the harm is irreparable, especially when monetary damages can cure any alleged violation. On the other hand, the harm related to disclosure of confidential information in a student or faculty member's Internet files can be equally harmful.....Moreover, ex parte proceedings should be the exception, not the rule."
-Hon. Lorenzo F. Garcia, Magistrate Judge, District of New Mexico, May 24, 2007, Capitol v. Does 1-16, 2007 WL 1893603
"'Statutory damages must still bear some relation to actual damages." Hon. Michael J. Davis, Dist. Judge, U.S.District Court, Dist. Minnesota, January 22, 2010, Capitol Records v. Thomas-Rasset
"[T]his court finds that defendants' use of the same ISP and P2P networks to allegedly commit copyright infringement is, without more, insufficient for permissive joinder under Rule 20. This court will sever not only the moving defendants from this action, but all other Doe defendants except Doe 2."
-Hon. W. Earl Britt, District Judge, Eastern District of North Carolina, February 27, 2008, LaFace v. Does 1-38, 2008 WL 544992
"[L]arge awards of statutory damages can raise due process concerns. Extending the reasoning of Gore and its progeny, a number of courts have recognized that an award of statutory damages may violate due process if the amount of the award is "out of all reasonable proportion" to the actual harm caused by a defendant's conduct.[T]hese cases are doubtlessly correct to note that a punitive and grossly excessive statutory damages award violates the Due Process Clause....."Hon. Marilyn Hall Patel, Dist. Judge, N.D. California, June 1, 2005, In re Napster, 2005 US DIST Lexis 11498, 2005 WL 1287611
"[P]laintiffs can cite to no case foreclosing the applicability of the due process clause to the aggregation of minimum statutory damages proscribed under the Copyright Act. On the other hand, Lindor cites to case law and to law review articles suggesting that, in a proper case, a court may extend its current due process jurisprudence prohibiting grossly excessive punitive jury awards to prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered....."-Hon. David G. Trager, Senior District Judge, Eastern Dist. New York, November 9, 2006, UMG v. Lindor, 2006 U.S. Dist. LEXIS 83486, 2006 WL 3335048
"'[S]tatutory damages should bear some relation to actual damages suffered'....(citations omitted) and 'cannot be divorced entirely from economic reality'". -Hon. Shira A. Scheindlin, Dist. Judge, Southern Dist. New York, August 19, 2008, Yurman v. Castaneda
"The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer to peer network cases.... The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts..... [T]he damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs." -Hon. Michael J. Davis, District Judge, Dist. Minnesota, September 24, 2008, Capitol v. Thomas
"If there is an asymmetry in copyright, it is one that actually favors defendants. The successful assertion of a copyright confirms the plaintiff's possession of an exclusive, and sometimes very valuable, right, and thus gives it an incentive to spend heavily on litigation. In contrast, a successful defense against a copyright claim, when it throws the copyrighted work into the public domain, benefits all users of the public domain, not just the defendant; he obtains no exclusive right and so his incentive to spend on defense is reduced and he may be forced into an unfavorable settlement." US Court of Appeals, 7th Cir., July 9, 2008, Eagle Services Corp. v. H20 Industrial Services, Inc., 532 F.3d 620
"Customers who download music and movies for free would not necessarily spend money to acquire the same product.....RIAA’s request problematically assumes that every illegal download resulted in a lost sale."
-Hon. James P. Jones, Dist. Judge, Western Dist. Virginia, November 7, 2008, USA v. Dove