Technically Legal

Yesterday, the third installment in the Jammie Thomas-Rasset case began in the district court of Minnesota.  As has been noted by several others, this case only involves the issue of damages, not liability.

Recall back in 2009, a jury found Ms. Thomas-Rasset liable for infringing the copyrights on 24 songs and awarded the record company $1.92 million dollars in statutory damages.   On granting a motion for remittitur, Judge Michael Davis reduced the damages to $54,000 noting that the statutory damages must bear some relation to the actual damages incurred by the plaintiffs.

When a judge reduces damages on remittitur, the plaintiff then has two immediate procedural options:  accept the reduction or have a new trial on the issue of damages.  In this case, Capitol Records opted for the new trial.

Since the previous trial already resolved the issue of liability, the only issue before the jury in this case is the amount of damages that should apply. At the heart of this issue are the “statutory damages” provisions in the Copyright Act, which lay out a spectrum of damages per instance of infringement.  If the infringement is proved to be “willful,” as was the case in the Thomas-Rasset trial, the spectrum is $750 – $150,000 per instance of infringement.  Since there were 24 songs at issue, that’s 24 instances of infringement.  For Ms. Thomas-Rasset, this means the jury can award Capitol Records somewhere between $18,000 – $3.6 million.

Since this is an abbreviated trial, I would expect arguments and witness examinations by the attorneys to conclude quickly–probably either today or tomorrow. Then the Judge Michael Davis will issue jury instructions and send the jury off to deliberate over the award of damages.   Updates will be posted as soon as they are known.

Huge thanks to Ars Technica for their endless coverage.

Comments Off Posted in: Commentary, Links on November 3, 2010

Judge Nancy Gertner granted a motion for directed verdict (also known to as a judgment as a matter of law) for the plaintiffs in Sony v. Tenenbaum.   The fatal blow to the trial was dealt after Tenenbaum himself took the stand and admitted “us[ing] P2P” and “lied about it” in response to a cross-examination question. The remaining issue in this portion of the litigation is a determination of damages.

A Judgment as a Matter of Law is a procedural device under the rules of Federal Civil Procedure (see F.R.C.P 50) whereby a party may make a motion requesting a verdict be granted by the judge.  The key inquiry is whether based on the evidence presented up to the point the motion is made, is there any way a reasonable jury could only come to one conclusion.  To ensure some measure of fairness, the motions are evaluated by the judge in “a light most favorable to the non-moving party.”  The judge must find that a “reasonable jury would not have a legally sufficient basis to find for the non-moving party on the issue.”

In a copyright infringement case, a key matter is whether the defendant was in fact responsible for a violation of the exclusive rights to a copyright holder.  At several points during the litigation, Tenenbaum has attempted to shift the blame to other people, claiming he was not responsible himself for the acts of infringement.  Once Tenenbaum admitted to using P2P software in his testimony it was a nail in the coffin on this particular issue.  This empowered the plaintiffs to move for a judgement as a matter of law; and, in effect, this killed the disputed factual elements of the case.

The next portion of the proceedings moves on to a determination of damages.  The jury will be responsible for this determination and must come up with an amount of damages based on the statutory scheme of the Copyright Act.  The Act provides a spectrum of figures that guide damage awards: $750 minimum to $150,000 maximum per infringement.  In this case, that means at a minimum Tenenbaum will be found liable on 30 songs for $22,500, and at maximum $4.5M.

What remains now is still a significant question:  what amount will the jury award?  At this point we’ve seen one other case go to a jury on a determination for damages (Jammie Thomas) which returned an award of $1.92M based on an infringement of 24 recordings.  Many critics of the statutory damages have challenged the nature of high damage rewards based on infringement of a small number of sound recordings, particularly where statutory damages are grossly disproportionate to the amount of actual damages suffered by a plaintiff.  Indeed, a ripe issue on appeal will be whether such damages can pass Constitutional muster.  This is sure to be hotly contested by Tenenbaum’s counsel following the damage award.

Update: As of 2 P.M. Friday, July 31, the case was handed off to the jury.  More to follow.

Update 2: The jury came back with the damages award, only a few hours after deliberations began.  Here’s the bad news:  $675,000 ($22,500 per song).

Comments Off Posted in: Analysis on July 31, 2009