Wednesday, February 10, 2010

RIAA opts for new trial in Capitol Records v. Thomas-Rasset

In Capitol Records v. Thomas-Rasset, the RIAA has opted to request a new trial.

Notice of election for new trial

[Ed. note. Not satisfied with a judgment for 6500 times their actual damages, the RIAA has opted to spend additional time and attorneys fees on a trial that cannot result in a higher amount than that, and may well result in a lower amount. Hopefully Judge Davis will reach the constitutional issue next time around, and limit the plaintiffs to the constitutional limit, would be around $1.40 per infringed work. -R.B.]-

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

17 comments: said...

"...the constitutional limit, would be around $1.40 per infringed work"

That would be a wonderful day indeed, heck! I'm willing to pay the $1.40 x 24 fine if that day comes even though i swore the recording industry would never get a another dime from me ever again..

Anonymous said...

I believe it's called job security.
Besides the longer they can stretch it out, the more money they can bleed from their overlords.

As you said, hopefully Judge Davis does reach the constitutional issue. That issue has to be addressed by a courageous judge in some circuit sooner or later. Sooner would be nice.


Unknown said...

I hope Capitolist Records loses completely this time. I'm amazed that they are allowed to do this to people it's just obserd. I refuse to buy cd's these days out of principle.

Anonymous said...

"...the constitutional limit, would be around $1.40 per infringed work"

People, get it through your head already: she's not charged for DOWNLOADING, she's charged with making available for download. The damages are not the fact that she stole 24 songs without paying for them. The damages are that she made those songs available for free to millions of people.

Anonymous said...

The logical fallacies in the RIAA brief here are astounding, even for them. Among other things, Plaintiff took the judge to task for creating a treble damages standard when the judge specifically stated he was doing no such thing. Besides, it would be treble damages compared to the arbitrary $750 figure, not compared to actual damages. Plus, Plaintiff conveniently failed to mention that the motion for remittitur in Tenenbaum has not yet been decided. That might be helpful for the judge seeing as how Plaintiff uses Tenenbaum's damages award to justify their current position.

I see Plaintiff also dug out the old chestnut about "Defendant refuses to settle." To me, the post-trial settlement offer looked like an attempt at post-settlement vacatur. Insurance companies have been using this trick for years to keep their records cleaner with state regulators and with the courts. See this article for an explanation. This attempt at vacatur could only have been to avoid an adverse decision in Thomas-Rasset regarding vacatur from being used against them in Tenenbaum and other cases. It's a sleazy practice, and I'm glad Defendant refused to play their game.

Finally, what's this bit about $2,250 not being a sufficient amount to warrant a lawsuit? Sure, no one ever brings a lawsuit for that "small" of an amount for any reason. That's why the small claims courts in every district in America sit empty day after day after day. Oh, wait, no, in the county where I used to live and have a case pending, there's a four-month backlog.

Nice work, RIAA. Why didn't you just say you wanted a new trial and be done with it?

Note: I am not a lawyer, and if you think anything in here is legal advice, you are gravely mistaken.

- Andrew

Anonymous said...

I'm pretty sure that he's going to go for the Constitutional issue if given the opportunity. Ouch. I didn't think that RIAA was going to be so stupid as to play chicken like this with the legal system- the odds are good they're going to foot-gun themselves on this one- with a nice big bazooka.

Anonymous said...

@anon:8:53- The reality is, though, they can't PROVE that she did anything illegal. Making available isn't illegal- making tons of unauthorized copies IS, per the laws. If they can't prove that she actually made any copies past the ones they did to get "proof" she was sharing (to whit, they CAN'T) then the most they can hope for is what they got handed to them in the last case. If they do this again, there's a good chance they'll get it lowered to that limit you went "get it through your heads". Get it through YOUR head- what they claimed and what they get aren't the same and they can't really pin much of anything on her.

derivative said...

"She's charged with making available"

And that might matter if that were actionable. But I don't see it in the copyright statute, do you?

Anonymous said...

""...the constitutional limit, would be around $1.40 per infringed work"

People, get it through your head already: she's not charged for DOWNLOADING, she's charged with making available for download. The damages are not the fact that she stole 24 songs without paying for them. The damages are that she made those songs available for free to millions of people. "


I think this is well known. The reason why this is still a serious issue is that the plaintiff have provided no evidence that anything was actually transmitted to a third party. They simply have proven that the defendant "made available" certain works for download.

If you can not prove that a work was distributed then I think a very reasonable damage award should be either $0 or at most the value of a single distribution of that work. That would make the damage award in this case between $0 and $16.8 ($0.70 x 24).

Unknown said...


One thing I'm confused about, and was hoping you could explain.

I get that the judge knocked the amount down to $54k.

And I get that the RIAA is well... not appealing that, but saying they don't accept that and are going for a third trial.

Where I'm lost is how you've determined that they can't get more than that $54k.

As I understand it, the judge knocked it down because he found that, absent specific listed damages (which the RIAA can't provide), the most they could get was $750 per song * 24 songs * triple damages.

Is what you're saying is that if a jury returned any amount above $54k, the judge would reduce it to that amount?

Anonymous said...

Has it been proven beyond reasonable doubt that anyone actually downloaded the songs from her computer? I don't think so. Proving that she made them available does not prove that anyone actually downloaded them. The RIAA has not proven any "damages" beyond the cost of the songs that she downloaded.

For me, this is the most shocking aspect of this trial. The damage award is grossly disproportionate to the actual provable damages.

T2 said...

Even if she did deliver copies of songs via uploads (which has not been proven), the actual damages attributed to a single uploader are peanuts. Either the RIAA proves she was one of few uploaders (and hence somehow responsible for disseminating illegal copies to millions) --- but they cannot prove that. Or they merely _assume_ she was an uploader, but then that assumption is equally applicable to all other peers on a P2P network and hence all were uploaders and thus Jamie herself played a negligible role in the distribution of copies and personally caused peanuts of incremental actual damages. Either way, the RIAA's argument does not hold, folks.

(See my comments in an earlier, recent article, about a more formal argument and model regarding the actual damages of uploading.)

raybeckerman said...

1. It's not that the RIAA isn't appealing. It can't appeal yet, because the case isn't final yet.

2. The judge has stated that no award greater than $54k would be reasonable; he's also stated that if he were a juror he might have awarded less than $54k.

Anonymous said...

"Has it been proven beyond reasonable doubt that anyone actually downloaded the songs from her computer? I don't think so."

This is a civil suit, I thought the bar was lower as to what must be proven. I may well be quite wrong on this one

Anonymous said...


I like your analysis, but I think this is the wrong way to attack a claim of distribution damages.

First there is no uploading on the so called peer to peer networks we are talking about. In order for user A to upload a file to user B's PC, user A would have to have OS rights to create a new file on user B's PC. I have seen nothing to indicate anyone other than user B creates the files on that PC, and that would be a download not an upload.

Second in order to to have liability for distribution damages, user A has to transfer ownership of the physical copy to user B. User A never owns the copy on user B's PC and cannot transfer ownership to user B who has owned the media all the time.

just a biased observer

Albert said...

One of the critical things that I see in this case, is at NO time is proof of the exact timeframe that others are alleged to have downloaded files from her. Even the songs downloaded by the RIAA agent do not have an exact time attached to them.

I would expect proper evidence to be a log something like: "I downloaded the song 'steal me' From 1/1/2010 from 12:30 eastern time to 12.53 pm on the same date.

Songs are not downloaded instantly, each song will take a finite amount of time to download, and the upstream bandwidth of the connection will limit how many songs downloaded.

From my understanding, the RIAA agents cannot attest in any case to specific times and songs other than the ones they downloaded. Any statements about others downloading from a specific person is therefore pure speculation.

Since the ISP statement only applies to a specific exact time and date in these cases, strictly speaking, the only proof pointing at the defendant is only 1 song, whichever song was being downloaded at the exact time/date attested to by the ISP. During any other time, there is NO evidence it was the Defendant, as a different customer might have had the IP address during the times NOT stated in the ISP statement.

Therefore, I suggest the damages are limited to the download of exactly 1 song, and the wholesale cost thereof. Since the Downloader is an agent of the RIAA, and a copyright holder cannot infringe its own copyright, the damages therefore should be ZERO.

I think it borders on perjury to state ongoing infringement when you only have proof of the Defendant having access to the IP address for a very short moment of time. Since the ISP letters never give a range of times, they do not even have proof for all the songs in the complaint.


Nohwhere Man said...

"Defendant refuses to settle" for the amount offered by the plaintiff. I'd bet that the plaintiff wouldn't settle for any amount offered by the defendant. Life's like that.