Best of 2011: Infinite loop

Originally posted 2011-12-30 01:44:12. Republished by Blog Post Promoter

First posted (in updated form) on September 20, 2011.Essex County historic courthouse detail(Originally published on July 22, 2011; see update at bottom!)

It can only mean one thing when you read this in a news article:

On Friday morning, the RIAA released a brief statement; “We disagree with this decision and are considering our next steps.”

That’s right:  It means U.S. District Court Judge Michael Davis has once again — for a third time — knocked down a jury’s copyright verdict against  Jammie Thomas-Rasset for the unlawful act of uploading other people’s music to the Internet so others could have it for free.  This time the remitittur was from $62,500 to $2,250 per song.  Yes, per song.

I’ve never suggested that’s uploading music to the Net okay.  It’s not, and consistent with what I said yesterday, whether it’s just plain disregard for other folks’ rights and property or ideologically-tinged civil disobedience, if it’s unlawful it should be punished.

But as I also said in a post called “‘Infinity Dollars’ — IP damages and the jury” a while back, where is the sense of proportion among people, the so-called “peers” of the defendant, who could possibly vote for such a preposterous verdict?  Is its source news reports about free-money-type verdicts given out like Pez candies to all kinds of legal claimants, utterly out of proportion to the damages suffered?  Is it some kind of reverse weird class consciousness punishment thing that I can’t begin to comprehend?  Is the distortion caused by allowing the jury to consider the punitive and seemingly arbitrary range of statutory damages available in copyright?

Well, it sure isn’t found in the law or the Constitution, not according to me or according to Judge Davis, who wrote, this time around:

The court is intimately familiar with this case. It has presided over three trials on this matter and has decided countless motions. It has grappled with the outrageously high verdict returned in a case that was the first of its kind to go to trial. The court is loath to interfere with the jury’s damages decision. However, the Constitution and justice compel the Court to act. . . .

To protect the public’s interest in enforceable copyrights, to attempt to compensate plaintiffs, and to deter future copyright infringement, Thomas-Rasset must pay a statutory damages award,” Davis wrote. “Plaintiffs have pointed out that Thomas-Rasset acted willfully, failed to take responsibility, and contributed to the great harm to the recording industry inflicted by online piracy in general. These facts can sustain the jury’s conclusion that a substantial penalty is warranted. However, they cannot justify a $1.5 million verdict in this case.

And here we go again.

Judges can’t fix this; it isn’t even their job.  Congress, for its part, is running in the completely opposite (wrong) direction.

It’s the Kopyright Krackup all right.  Coming soon to a streaming server far, far from you… and right in your living room.

UPDATE:  And the First Circuit sends it right back — the infinite loop continues!  As Venkat explains:

The $625,000 award in favor of Sony is reinstated, and Judge Gertner has to give Sony the choice between accepting a lower award ($62,500) or a new trial. Judge Gertner’s analysis of the Due Process limits on statutory damages and the feelings of Congress about peer-to-peer file sharing, while interesting, are swept aside (for now). The million dollar question, and one I wish the court had answered, is whether Sony can immediately appeal the reduced award or whether it has to proceed in the trial court. Will Sony be trapped in an “endless loop” of going through trials resulting in a damage awards that the court reduces on the basis that the awards are “excessive”? (See Ben Sheffner’s post about the Thomas-Rasset case: “Labels reject remittitur, opt for third trial on damages in Jammie Thomas-Rasset case.”)

The other question that the First Circuit’s opinion raised but didn’t address is: if statutory damages are to be determined by the jury, why does the trial court get to take this decision away from the jury and reduced it via a remittitur? What is the effect of Feltner on the common law practice of reducing damage awards? Where an award is within the statutory range, it seems odd for the court to have authority to reduce it via a remittitur–isn’t this the point of Feltner?.

 

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Author:Ron Coleman

I write this blog.

2 Responses to “Best of 2011: Infinite loop”

  1. John David Galt
    October 5, 2012 at 10:05 pm #

    Why do you say “judges can’t fix this; it isn’t even their job”? Doesn’t the Bill of Rights say “excessive fines shall not be imposed”?

    The infinite loop will end when the appellate court sets a specific dollar limit, or at least a repeatable way to determine a specific limit in each case. Until then the court is copping out.

    • October 11, 2012 at 1:19 pm #

      My view is that it’s not their job because this problem requires policy determinations more appropriately made at the legislative level.

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