Wednesday, October 20, 2010

Judge Davis refuses request for "reasonable damages" instruction in Capitol v Thomas-Rasset

In Capitol Records v. Thomas-Rasset, Judge Davis has refused to instruct the jury that their statutory damages award must bear a reasonable relationship to the actual damages, and is instructing the jury that the defendant has violated the plaintiffs' distribution right.

October 13, 2010, Decision
Court's proposed jury instructions

[Ed. note In view of the jury instructions the judge is planning to give, it seems highly likely that the jury is going to feel compelled to once again come in with an award that is somewhere between $750 and $150,000 per work. I think the judge has erred once again. The jury will, apparently, not be able to consider the facts that (a) there was no evidence of a "distribution" within the meaning of the Copyright Act, and (b) plaintiffs' actual damages are in the neighborhood of 5 cents per work. And will not be instructed that its statutory damages award should be reasonable. How on earth can the judge have a problem with instructing the jury as to a long standing principle of copyright law, that statutory damages are required to bear a reasonable relationship to the actual damages. Sad. Very sad. -R.B.]

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Anonymous said...

Looks like another round of faulty Jury instructions. I particularly object to proposed instruction 19 where it says

"You are hereby instructed that a jury in a previous trial has already
determined that the defendant infringed the plaintiffs’ copyrights in the
plaintiffs’ works listed on Trial Exhibit 1 and Trial Exhibit 2 by reproducing and
distributing these works to the public without the plaintiffs’ authorization."

This is completely inaccurate in saying that trial 2 found that the defendant infringed both the reproduction AND distribution rights. The verdict form only asked if there was infringement, where the possibilities were reproduction OR distribution. As a result, there is nothing on the record for either infringement by reproduction or infringement by distribution.

just a biased observer

Anonymous said...

Ray -

Jury instruction #11 states:

"Knowledge may be either actual or inferred from the evidence. Moreover, knowledge can be established by intentional concealment of copyright infringement."

I interpret that to suggest that, if a person is proven to have infringed, then covered up or concealed that infringement, then s/he was aware of what s/he was doing.

Then Jury instruction #22 states in pertinent part:

"You are hereby instructed that a jury in a previous trial has already determined that the defendant's infringement of plaintiff' copyrights was willful."

Okay, so the judge is telling this jury what a different jury did.

I have no issue with either of these instructions taken separately.

Taken together, however, it looks to me like the judge is implicitly telling the jury, in effect, that the defendant knowingly infringed and turned around and covered it up. That seems awfully prejudicial to me. Or am I barking up the wrong tree on this one?

-Quiet Lurker

raybeckerman said...


There was absolutely no finding of there being a dissemination of copies to the public through a sale, or other transfer of ownership, or lease, rental or lending.

Anonymous said...

Maybe the judge is trying to show how unreasonable the damages are by having the jury return another outrageous verdict and then reducing it again? He did it once. . .


raybeckerman said...

I would think he has better things to do with his time... and taxpayer money.