Saturday, October 23, 2010

In Jammie Thomas case, Judge Davis refuses to consider constitutional issue; 3rd trial to commence Nov 1

In Capitol Records v. Thomas-Rasset, Judge Davis has denied defendant's motion for reconsideration, which asked the judge to determine the issue of the constitutionality of the award under on due process grounds. Presumably this means the third trial will commence, as scheduled, on November 1st.

Department of Justice Opposition Papers
RIAA Opposition Papers
October 22, Decision, Denying Reconsideration, Declining to Rule on Constitutional Issue

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Anonymous said...

So, a new trial goes forward on statutory damages.

But even statutory damages present a range of options to any jury.

I'm assuming that plaintiffs will present what they see as strong reason for a high award while defendant will present what they see as strong reason for low or no award.

If - and I do mean, IF - my assumption is correct, what are the chances anyone will introduce any evidence supporting the argument that even an award of $250.00 per work (as for innocent infringement) is constitutionally suspect (see Gore and its progeny for why) under these circumstances?

-Quiet Lurker

raybeckerman said...

1. Innocent infringement defense is not on the table for this trial.

2. The minimum statutory damages is $200, not $250, per work.

3. The jury doesn't get the issue of constitutionality; that is a judge issue.

4. IMHO under the present instructions, Jammie Thomas-Rasset has NO chance at all:

-the jury is being told that she did a bad thing

-the jury is being told that she violated the RIAA's distribution rights, which is NOT true

-the jury is being told that she is a distributor, so that the damage award can take into account her 'distributing'... as opposed to her downloading only

-the way the instructions are worded it is implied that the jury is supposed to bring in an award somewhere in between $750 and $150,000...

-if you were a juror, and read those instructions and followed them, you'd return an award in the neighborhood of $25,000 to $75,000 per infringed work

raybeckerman said...

The jury isn't even being instructed that the damages CAN'T be based on mere speculation.... which is ALL they would be based on, for anything but the downloads.

Anonymous said...

I wonder how Davis can reconcile his statements of September 24, 2008

[quote]"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[/quote]

and January 22, 2010

[quote]"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[/quote]

with his current rulings.

Not to denigrate any of our fine judges, but I have to wonder what judges are going for these days.