Tuesday, October 09, 2007

Practice tip: Importance of getting pretrial discovery into plaintiffs' lost profits

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.


Keywords: digital copyright online 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


Jadeic said...

The key word here seems to be 'agressive'. We have now seen at first hand the RIAA's successful ability to brow-beat the judge in Capitol v. Thomas to change his jury instruction in which the whole case eventually pivoted. And we see here in UMG v. Lindor the RIAA's single-minded stonewalling in order to with-hold any information they deem prejudicial to their case. Your analysis and advice is, as ever Ray, succinct and pertinent. Every defence lawyer in the US dealing with these cases should by now be fully aware of what they are up against and only terrier-like determination will succeed.

Kind of related, because you raise the issue in this same post, is the whole question of how on earth the jury came up with the figure of $9250 per song file. It has to be said (and I hope I don't fall foul of your posting rules here) that having read the notes on PACER that detail the clarification sought by the jury on the range of statutory damages that could be awarded it seems to me that the person asking the question was barely literate. I quote "Judge Davis: Please clarify the range of infridgements". Given Judge Davis's response that "If you find the defendant's conduct was willful, you may award damages from $750 - $150,000" makes it even harder to see how they arrived at their final decision. For them not to have accepted the minimum $750 means that they must have been influenced by the RIAA's consistent and deliberate attempts to obscure their actual damages. Hence the importance of your advice to fellow lawyers. Elsewhere his advice to the jury after a request to have sight of Jammie's deposition was also singularly unhelpful, "You have all the physical and documentary evidence for your consideration in the jury room, With respect to Jamie Thomas's deposition, you will have to rely on your memory". I'm sorry, but IMHO it should be up to the jury to decide to which elements of the 'physical and documentary evidence' presented at the trial they should have access in order to make a decision on the case. I would be interested to know if any other depositions were provided 'in the jury room'.

And finally to link this to your post elsewhere on access to the trial transcript... Until we have a copy of this to hand we can not begin to unravel what went wrong here. There is nothing as yet posted at PACER. Ray, if you know where else this may be available, and if it is within my resources to obtain it, then you shall have it.


Igor said...


You should post the power point from media defender about their so called "lost profits" that was leaked with the emails with this post.


asldkj said...

Why are defense attorney's required to file "motion to compel" motions with the court after the court orders plaintiffs to do something?

Why are judges not holding the plaintiffs attorneys in contempt, or better yet, filing BAR grievances against those plaintiffs attorneys who feel they can run amok in court and violate rules of procedure, et al?

It would only take a single judge to get the message across. That is, once a single judge files a BAR grievance against a plaintiffs attorney, others would get the hint.

It seems that judges are condoning the behavior of RIAA attorneys.

Randy said...


I'd like to play devil's advocate here. How come their potential lost profits from any distributions aren't included in this calculation as it comes to jury awards?

I know that if Jammie had *downloaded* those songs, they would potentially lose those sales. And that would total the amounts that you list here. (Although isn't that hard for them to prove because the first sale doctrine+fair use defense would allow her to get her songs in any way that she wanted?)

But isn't the case about *UPLOADING* those files to others? Couldn't that affect this calculation if a defendant is found guilty of infringement here?

raybeckerman said...

randall, there's going to be a lot of action in Capitol v. Thomas in the days and weeks ahead. This case ain't over by a longshot. I can't get involved in "devil's advocate" discussions over the legal points in a public discussion forum like this one.

raybeckerman said...

Dear randall, I notice that you just joined blogger in July 2007 and that your profile is blank.

Please tell us a bit about yourself.