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.


Commentary & discussion:

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


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?

Unknown said...


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?

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!

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?

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

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.

The Common Man Speaking said...


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.