Archive for the 'rhetorical space' Category

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BENCHSLAP II : What will “Above the Law” say this time?

BENCHSLAP! i needed that. Perhaps i’ve learned from my mistake
:<)
just filed and this time asked for permission first!

thomas_jnov.pdf

lisa carlivati offers reaction and critique on the penultimate draft
WS119656.lisa

Judgment Notwithstanding the Verdict for Jammie Thomas

In the UNITED STATES DISTRICT COURT for the DISTRICT OF MINNESOTA

CAPITOL RECORDS INC.;SONY BMG MUSIC ENTERTAINMENT; ARISTA RECORDS; INTERSCOPE RECORDS; WARNER BROS. RECORDS INC.; and UMG RECORDINGS INC.,
v.
JAMMIE THOMAS

____
AMICUS BRIEF IN SUPPORT OF JUDGMENT NOTWITHSTANDING THE VERDICT

Federal Rule 59(d) empowers the Court on its own motion to “order a new trial for any reason that would justify granting one on a party’s motion.”

Jammie Thomas has been tried three times, each time according to a script that has led to outlandish jury awards. Clearly something is wrong in the interpretation and application of the law that produces and replicates such result.

Amicus Curiae urges the Court, on its own motion, to recognize the errors of the previous proceedings against Jammie Thomas and to enter a judgment in her favor notwithstanding the verdict.

STATEMENT OF THE CASE

In the defendant’s third trial, the Court introduced the case by twice telling the jurors that the plaintiffs are entitled to a statutory damage award between $750 and $150000 for each of 24 infringements. Tim Reynolds, counsel for the recording industry, in his opening statement, was permitted to tell the jury that his clients could have sued Jammie Thomas for 1700 infringements but chose to sue for only 24 infringements, and to urge the jury to award damages sufficient to deter piracy on the net, not just Jammie Thomas but all music piracy on the net. At trial, executives of the recording companies were permitted to testify that piracy on the net caused half the employees of the plaintiff companies to lose their jobs and the companies to lose half their value, measured in billions. Despite the fact that this trial was to be on damages only, weighty testimony was admitted to prove that copyrighted music was downloaded to the defendant’s computer: A digital investigator, an executive from an internet service provider, and a forensic expert were permitted to testify at length. The defendant was then impeached with evidence that she had not owned up forthrightly to her infringements.

At the close of the evidence the Court instructed the jury that it should award between $750 and $150,000 for each infringement:

The instructions I am about to give you now are in writing and will be available to you in the jury room. All instructions, whenever given and whether in writing or not, must be followed. Do not allow sympathy or prejudice to influence you. The case must be decided by you solely and exclusively on the evidence received here in court. You should consider each expert opinion received in evidence in this case, and give it such weight as you think it deserves.

Your verdict depends on whether you find certain facts have been proved by the greater weight of the evidence. The burden of proving a fact is upon the party whose claim depends upon that fact. The party who has the burden of proving a fact must prove it by the greater weight of the evidence. In order to find that a fact has been proved by the greater weight of the evidence, you must find that it is more likely true than not true. It is determined by considering all of the evidence and deciding which evidence is more believable.

You should consider and decide this case as a dispute between persons of equal standing in the community, of equal worth, and holding the same or similar situations in life. A corporation is entitled to the same fair trial as a private individual. All persons, including corporations, and other organizations stand equal before the law, and are to be treated as equals.

This is an action for copyright infringement. A “copyright” is the exclusive right to copy. One who reproduces or distributes a copyrighted work during the term of the copyright, infringes the copyright, unless licensed by the copyright owner.

“Willful” means that a defendant had knowledge that her actions constituted copyright infringement or acted with reckless disregard of the copyright holder’s rights. You are hereby instructed that a jury in a previous trial has already determined that the defendant’s infringement of plaintiffs’ copyrights was willful. In this case, there is no issue as to the defendant’s liability for willful copyright infringement. As a result, your sole responsibility is to determine the amount of damages to be awarded to the plaintiffs for the defendant’s willful infringement of the plaintiffs’ copyrights.

Each plaintiff has elected to recover “statutory damages” instead of actual damages and profits. A copyright holder may recover statutory damages even if it did not submit evidence regarding actual damages. Under the Copyright Act, each plaintiff is entitled to a sum of not less than $750 or more than $30,000 per act of infringement (that is, per sound recording downloaded or distributed without license).

Because the defendant’s conduct was willful, then each plaintiff is entitled to a sum of up to $150,000 per act of infringement (that is, per sound recording downloaded or distributed without license), as you consider just.

In determining the just amount of statutory damages for an infringing defendant, you may consider the willfulness of the defendant’s conduct, the defendant’s innocence, the defendant’s continuation of infringement after notice or knowledge of the copyright or in reckless disregard of the copyright, the effect of the defendant’s prior or concurrent copyright infringement activity, whether profit or gain was established, harm to the plaintiff, the value of the copyright, the need to deter this defendant and other potential infringers, and any mitigating circumstances.

The verdict form is simply the written notice of the decision that you reach in this case. You will take this form to the jury room, and when each of you has agreed on the verdicts, your foreperson will fill in the form, sign and date it, and advise the court security officer that you are ready to return to the courtroom.

The jury retired to deliberate. After hours of deliberation the jury sent a note to the judge to ask a question:

to which the answer the jury was given was “yes.”

Shortly thereafter, the jury returned the verdict form with numbers filling in the blanks.

The jury filled in each of the twenty-four blanks on the form with “62,500.” Based on the jury’s verdict, the Court entered judgment against Jammie Thomas for $1,500,000.00.

ARGUMENT

This third overblown verdict in this case demonstrates that something is radically wrong. A jury has spoken for a third time and its verdict is constitutionally unsupportable. Our government is seen to support the imposition of exemplary punishment on individuals who have done no appreciable damage. The question is, what is wrong and how to fix it? A ruling on the constitutionality of the Copyright Act as applied to impose draconian punishment on file-sharing can no longer be deferred. It is now time for this Court to rule by interpreting the Copyright Act to apply in a constitutional manner.

I. CONSTITUTIONAL GROUNDS
(a) Congress has no constitutional power to enact a statute that places in private corporate hands authority to ask a jury to impose draconian exemplary damages on individual citizens who have caused no actual damage.

The Court instructed that “A copyright holder may recover statutory damages even if it did not submit evidence regarding actual damages.” As stated this is tantamount to telling the jury that actual damage does not matter. Not only does this instruction erroneously assume congressional power to punish citizens for conduct which has caused no damage, and power to punish this conduct with draconian consequence, it assumes that Congress could constitutionally and has in fact put this exemplary punishing power into private (corporate) hands.

Noted economists Mitchell Polinsky and Stephen Shavell write:

An important result in the economic theory of enforcement is that, under certain circumstances, it is optimal to impose the highest possible fine — equal to an individual’s entire wealth — with a relatively low probability of detection. The reasoning supporting this conclusion, which is usually attributed to Gary S. Becker (1968), is well known: if the fine is not at its highest level, enforcement costs can be reduced without affecting deterrence. This can be done by raising the fine to its highest level and lowering the probability of detection proportionally, so that the expected fine — and thus deterrence — is unchanged. Hence, according to this argument, it cannot be optimal for the fine to be less than an individual’s wealth.

It is puzzling, of course, that this result differs so much from reality. Fines equal to an individual’s wealth hardly ever are imposed.

In the standard model of public enforcement of law, sanctions are evaluated in terms of their costs, but there is no sense in which sanctions are considered to be fair or unfair. It is apparent, however, that individuals do in fact have opinions about the fairness of sanctions. Notably, they tend to believe that a sanction should not be out of proportion to the gravity of the act committed. For example, if an individual double parks, a fine of thousands of dollars or a jail term is likely to be considered unfair in view of the modest harm caused by the act.
[from Optimal Fines and The Fairness of Sanctions, American Economics Review]

Exemplary punishment imposed on Jammie Thomas unconstitutionally punishes her for what others have done. A fine imposed on an individual for downloading twenty-four songs of hundreds of thousands of dollars is unfair and unconstitutional because the amount of the fine bears no fair relation to the defendant’s actions.

(b) Congress has no constitutional power to require juries to award statutory damages within an arbitrarily broad range.
The range in this case was created by Congress to encompass all manner of commercial copyright infringement. Here the range was described to the jury as if Congress created it specifically to apply to willful infringement of copyrights in sound recordings:
Because the defendant’s conduct was willful, then each plaintiff is entitled to a sum of up to $150,000 per act of infringement (that is, per sound recording downloaded or distributed without license), as you consider just.

This was grossly misleading. The range, by encompassing all commercial copyright infringement yet being brought to bear on a non-commercial individual who caused no actual damage, is so broad as to leave the jury without proper guidance or adequate context to render fair judgment. The arbitrariness of the choice posed for the jury by the range is highlighted by the rhetorical framework within which the Court instructed the jury that it must consider the case:

You should consider and decide this case as a dispute between persons of equal standing in the community, of equal worth, and holding the same of similar situations in life. A corporation is entitled to the same fair trial as a private individual. All persons including corporations, and other organizations stand equal before the law, and are to be treated as equals.

This imposed surrealism creates an unsolvable problem for the jury, how to be just to both sides, taking both to be persons of equal worth, when in reality the worth of one side measures in billions while the other measures in pennies to make ends meet. $62,500 means something very different to the plaintiff companies and to Jammie Thomas, yet the jury is asked to make an award just to both. The jury’s plea for guidance testifies to the incoherence of this task, and was not illuminated by the Court’s response.

(c) The Copyright Act is unconstitutional if interpreted to permit multiplication of statutory damages by any number of copyright infringements, as if each infringement is the same, on and on to infinity.
The threat over Jammie Thomas held by Plaintiffs of 1700 infringements translates to a mandatory minimum directed jury award against her of $1,275,000, and to possible maximum award of $255,000,000. Congress has no power to impose such unlimited non-compensatory civil liability on individuals, and no power to place discretion to exact it in private (corporate) hands.
Counsel for individuals confronted with such threats who have tried to raise protest at the extortionate demands for settlement made by Plaintiffs are met with response from the Court that their motions to dismiss are “premature” when raised in advance of trial. Such motions are deferred because they raise grave questions of constitutional law which might not need to be faced depending on how trial turns out. The Court, as the surreal instruction emphasizes to the jury, blinds itself to the disparity of weaponry and resource between the parties, and assumes it is equally fair to both sides to allow the proceedings to continue. But three trials here and one in Massachusetts, each resulting in excessive verdicts, testify to the ripeness of the constitutional issues to be faced. The time is now appropriate.

II. STATUTORY GROUNDS
There are dispositive statutory interpretational issues capable of avoiding constitutional questions yet warranting judgment notwithstanding the verdict.

(a) The Court misinterpreted and improperly instructed on the meaning of “willful” as used in section 504(c).

“Willful” means that a defendant had knowledge that her actions constituted copyright infringement

This definition of “willful”, drawn from usage in other contexts and misapplied here, defeats the structure of § 504(c). The statute establishes three levels of exposure to statutory damages — the lowest level for innocent infringement, a top level for willful infringement, and a middle category in between for infringements neither innocent nor willful. This category refers, then, to infringers who are not innocent because they have knowledge that they are infringing copyright but who are not willful.

Plaintiffs deny there are three categories. They say the innocent category is gone, eliminated by §402 because they put copyright notices on physical phonorecords. Capitol Records, Inc. v. Thomas-Rasset, Case No.: 06cv1497 (MJD/LIB) Doc. 419 (Plaintiff’s Response to Amicus Curiae Brief on the Issue of Jury Instruction). According to Plaintiffs, the “innocent” category of §504 thus moves up from the eliminated bottom position to become §504′s middle category; knowing infringement becomes the statute’s top category, encompassing all infringements ranging from the merely knowing to the egregiously willful, thus supporting the excessive awards the Recording Industry has obtained. They reason that because “standard infringement requires no knowledge or intent,” the “willful infringement” top category requires no more than knowledge. Ibid. But this extends the notion of copyright as a strict liability beyond where its logic carries. Copyright infringement as a strict liability offense describes the result in commercial disputes over profits made by someone from unintentional infringement. As between the copyholder and the unintentional infringer it is fair that the profits should go to the copyright holder, a “strict” liability in that no proof of intentional infringement is required. But that sensible logic breaks down entirely when the dispute is between a copyright holder and a defendant who has made no profit. To use the language of strict liability from one context to dictate outcome in another makes no sense, and makes nonsense of the statute itself. This cannot be the law, yet the Court’s instruction defining “willful” as satisfied by mere knowledge rests upon it.

(b) Section 504(c) should be narrowly interpreted so as not to apply statutory damages against noncommercial infringers who have caused no actual damage.
All authority to date resists this with assertion that no such narrowing interpretation of the statute is possible given the statutory language. But this assertion of impossibility is based only on refusal to look at the history and structure of the statute. This history, carefully recounted by Professor Samuelson and Tara Wheatley, shows that the statutory damage remedy adopted by the congress in §504(c) was adopted to solve the problem of those copyright holders who had lost real profits but would be unable to recover under §504(b) because of difficulty in proving the amount of lost proceeds by admissible evidence. Section 504(c) is thus open to interpretation that it extends no further than the cases of actual damages and profits covered by §504(b). While plaintiffs need not prove actual damages to recover statutory damages, the defendant should not be precluded from proving that there are none, and thereby avoiding the imposition of a statutory award.

This narrowing interpretation of the statute takes section (b) and (c) as co-extensive, and limits the reach of section (c) to addressing the operational problem of section (b), namely commercial cases where for evidentiary reasons lost profits cannot be proved. This is not only a possible interpretation of the statute, fully consistent with the structure and history of the statute, but a far more sensible interpretation than one that extends mandatory statutory damages to all cases of infringement regardless of whether the infringement actually causes any actual damage.

Respectfully submitted,

Pro Hac Vice

lessig on fire – hacking at the root of evil

‘Should Corporations Decide Our Elections’ A Big Apple Coffee Party Forum–7:00pm-October 15, 2010 at the All Souls Unitarian Church, in NYC, NY

the audio condenses to essence (3:30)

LESSIG LEAD WIPO

my edit of what lessig has to say

:<)

design and build a digital registry of copyright and public domain

embedded in larger design of the digital library of knowledge

facing cary

nice comment
led me to look back the poem
only to find it
still apt to the present moment
:<)

i must turn to you and write
not enough to speak to myself and feel i’m done
i must speak to you

who am i talking to?
to whom am i speaking?
i&i speak to u&u

i speak to riaa

to u
cary

you make the best argument you can for your client
i speak down to you
that will never do
i am u

i am your sons and daughters
who have grown up on the wealth you have provided
fancy cars and ear phones all the way
i am u

make connection
stop recording
hold sammy in your arms
give sammy to fern to whom he wants to go
two points together with love between
start listening
turn up volume
let flow

dear cary
come sit down in virtual space as avatar for riaa
speak with university
is2k7

let’s play virtual let’s play real
let’s make a party
let’s make a deal

we consider anything reasonable which does not impede the accomplishment of our mission

we play an interactive video game in which your avatar is controlled from your side and mine controlled from mine
engaging in a structured negotiation
scared professoriat at one side all wired in against whatever hollywood has to offer

eon

Amicus to the Supreme Court – Whitney Harper

Charles Nesson’s Amicus Reply* to
Respondent’s Brief in Opposition to Whitney Harper’s
Petition for Certiorari to the United States Supreme Court

Section 504(c) of the Copyright Act establishes three levels of exposure to statutory damages — the lowest level for innocent infringement, a top level for willful infringement, and a middle category for infringements which are neither innocent nor willful. Whitney Harper epitomizes the innocent infringer category: she had no knowledge or understanding that she was infringing copyright by listening to music on her computer.

Respondents deny that there are three categories. They assert, “The Copyright Act has only two levels of culpability: infringement, which is a strict liability offense, and willful infringement, which requires knowledge or reckless disregard.” Capitol Records, Inc. v. Thomas-Rasset, Case No.: 06cv1497 (MJD/LIB) (2010) (Plaintiff’s Response to Amicus Curiae Brief on the Issue of Jury Instruction). They say the innocent category is gone, eliminated by § 402 because Respondents put copyright notices on the physical phonorecords. Innocent (unknowing) infringement thus moves up from the eliminated bottom category, according to them, to become §504′s middle category; knowing infringement becomes the statute’s top category, encompassing all infringements ranging from the merely knowing to the egregiously willful.

It is this absurd interpretation of § 504 that undergirds the exorbitant and wildly unconstitutional awards Respondents have obtained against Jammie Thomas-Rasset (first trial – $221,000; second trial – $1,900,000; third trial – $1,500,000) and Joel Tenenbaum ($675,000). Respondents reason that because “standard infringement requires no knowledge or intent”, the “willful infringement” top category requires no more than knowledge or intent. Ibid.

This cannot be the law, yet it is the premise on which outlandish awards against downloaders have been based and are presently being defended. It will become the law if the judgment of the court below against Whitney Harper is allowed to stand.

Respectfully submitted,
Charles Nesson
with assistance of Phil Hill, J.D. ‘13

*The Supreme Court does not permit amici to file reply briefs, but here’s what I would like to have filed.

***
from ray beckerman’s blog

Wednesday, November 03, 2010

According to court records Capitol v Thomas-Rasset damages retrial commenced yesterday, continued today

According to court records, the damages retrial in
Capitol Records v. Thomas-Rasset commenced yesterday and was continued today, Prof. Nesson was granted leave to file an amicus brief, and the RIAA filed a responding brief.

Nesson amicus brief
RIAA response

***


podcast interview with kiwi camara, whitney harper, joel tenenbaum:
kiwi tells it like it is
:<)

no small victory — order granted extending time

DEFENDANT-APPELLEE/CROSS-APPELLANT’S UNOPPOSED MOTION FOR EXTENSION OF TIME TO FILE BRIEF

Defendant-appellee/cross-appellant Joel Tenenbaum hereby respectfully moves this Court for an order extending the due-date for his brief for thirty (30) days from the current due date of November 26, 2010, to and including December 27, 2010. This is Defendant-appellee/cross-appellant’s first request for an extension of time. The reasons for the extension are as follows:
1. On October 27, 2010, Plaintiff-appellants/cross-appellees Sony BMG Music Entertainment et al. and, separately, the United States served upon movant their respective principal briefs. Under the provisions of Rule 31 of the Federal Rules of Appellate Procedure and this Court’s prior order, movant’s brief is due to be filed on November 26, 2010.
2. Charles Nesson is pro bono counsel and a full-time professor at Harvard Law School. He is assisted by full-time law students Jason Harrow JD ‘11, Andrew Breidenbach JD ‘11, Nathan Lovejoy JD ‘13, and Phillip Hill JD ‘13. They have been diligently conducting research to prepare a brief, but the opening briefs raise significant issues that merit further consideration than the current timeline will allow. Due to the constraints of their academic schedules, they are unable to devote their complete attention to the brief under the current timeline. All are taking a full-course load and have impending exams.
3. Additionally, the fact that the current due date of November 26, 2010 is the Friday after Thanksgiving presents additional difficulties. The Thanksgiving holiday is a time to spend with family and, as students, a time to catch up with schoolwork.
4. A thirty-day extension would allow sufficient time to prepare a brief for this Court while also permitting students to complete their course work for the semester before the filing deadline.
5. This motion is unopposed by both Plaintiff-appellants/cross-appellees Sony BMG Entertainment, et al., and by the United States.

WHEREFORE, the undersigned respectfully requests that the Court extend the time to file movant’s principal/response brief by thirty (30) days, to December 27, 2010, to permit a thorough consideration of and response to the Plaintiff-appellants/cross-appellees’ opening brief.

Respectfully submitted,

Charles Nesson
with assistance of:
Jason Harrow JD ‘11
Andrew Breidenbach JD ‘11
Nathan Lovejoy JD ‘13
Phil Hill JD ‘13.

AMICUS to Judge Davis

just prior to the thomas-rasset re-retrial
my amicus brief to Judge Davis

STATEMENT OF INTEREST

Charles Nesson is the William F. Weld Professor of Law at Harvard Law School as well as Founder and Faculty Co-Director of the Berkman Center for Internet & Society. He teaches the Law of Evidence and the American Jury. He is counsel for Joel Tenenbaum, the defendant in Sony BMG Music Ent’mnt v. Tenenbaum, No. 07cv11446-NG, 2010 WL 2705499 (D. Mass., July 09, 2010), which is currently pending appeal. As the only other individual filesharing case to go trial, its eventual outcome may be influenced by the jury instructions to be given by this Court in the re-retrial of Jamie Thomas-Rasset to commence on November 2, 2010.

In the re-retrial of Jamie Thomas-Rasset, the only issue to be tried is the amount of the statutory damage award the copyright holders are receive. The jury in the case should be instructed to return a damage award that is “just.” No mention of the statutory range should be made. To do so would exceed and indeed contravene the mandate of 17 U.S.C. § 504 and would violate the Seventh Amendment.

Given the non-commercial nature of the defendant’s actions in this case, presenting the statutory maximum to the jury sets an anchor to the damage range which is both prejudicially biasing to the jury’s judgment and unconstitutional.

The language of the Copyright Act of 1976 and its predecessor contemplated that the amount of statutory damages assessed for copyright infringement would be decided by judges and not juries. See 17 U.S.C. § 504(c) (2006) (statutory damages set “as the court considers just”); Pub. L. 60-349 § 25 (1909) (damages to be set “as to the court shall appear to be just”); see also 4 Nimmer on Copyright § 14.04(C)(1) (2010) (the “dominant view” before 1998 was that “it is for the judge, in the exercise of his discretion, to award statutory damages”). But in 1998, the Supreme Court, in Feltner v. Columbia Pictures Television, Inc., held that “the Seventh Amendment provides a right to a jury trial on all issues pertinent to an award of statutory damages . . . including the amount itself.” 523 U.S. 340, 355 (1998). Congress has not amended the fundamental structure of the statute in light of this decision — instead, the overall scheme remains the same, except that the amount of damages is sent to a jury unless the jury trial right is waived.

Overlaying a jury trial onto the pre-existing statutory damages regime invites arbitrariness because “[u]nlike juries, judges can draw on their experience of setting awards in other copyright cases, as well as their research regarding the awards imposed by other judges, in settling on an appropriate figure.” 145 Cong. Rec. S7453 (Sen. Hatch). Indeed, there has been a staggering difference between statutory damages assessed by juries and those assessed by judges in filesharing cases, which ultimately speaks to the error in the jury’s instructions.

The statute requires an award which is “just.” Yet, giving the jury a dollar range displaces the jury’s delicate and inchoate common sense notion of what is “just” and substitutes a mandate to choose within an expansive range. The verdict form in Tenenbaum, like the verdict forms in the two trials of Thomas-Rasset, directed the jury to answer:

“If you answered “YES” [to "willful" (defined as "knowing")], what damages do you award the Plaintiff for this copyrighted work, from $750 to $150,000?”

This sentence is repeated in the verdict form for each separate infringement. Coupled with the instructions given by the judge, the extremes of the statutory range are driven into jury consciousness. The task of setting a “just” award is displaced. The statutory maximum is provided with no context for understanding it. A juror will “start with some anchor, the number [she] know[s], and adjust.” Richard H. Thaler & Cass R. Sunstein, Nudge: Improving Decisions About Health, Wealth, and Happiness 23 (2008). This is problematic because “adjustments are typically insufficient.” Id. Thus, when charities are seeking donations, the particular suggested amounts influence what people donate — when the suggestions are higher, the donations are as well. Id. The impact of the $150,000 range limit (with no instruction explaining that the higher end of the range is reserved for egregious commercial infringers) will work to encourage jurors to adjust their award upward, well beyond what is constitutionally permissible against a non-commercial defendant who has made no profit and caused minimal if any damage. Anchoring the range at a maximum that has already been held to be unconstitutional as applied to another individual non-commercial filesharer, see Tenenbaum at *26 (determining that $2,500 per infringement is “the maximum amount that is consistent with the dictates of the Due Process Clause”), invites arbitrary and excessive jury awards.

Indeed, the outcomes from the previous verdicts in this case bear this out. The juries, both informed of the statutory range, predictably returned wildly excessive and disparate awards, in the first trial $9,250 per infringement for a total of $221,500 and in the second trial $80,000 per infringement totaling $1,900,000, Capitol Records Inc. v. Thomas-Rasset, 680 F. Supp. 2d 1045, 1048 (D. Minn., 2010). In Tenenbaum, with the jury likewise instructed, the jury set $22,500 per infringement for a total of $675,000. Even when lowered by a factor of ten, Judge Gertner described the amount as “significant and harsh . . . [and] higher than I might have awarded in my own independent judgment.” 2010 WL 2705499, at *27. The awards from these cases demonstrate the folly. An instruction to the jury that it can return an unconstitutional verdict leads to the possibility of endless retrials. Every case has produced jury awards from three to thirty-six times the maximum the constitution is said to allow.

Instructing the jury on the statutory range is not required by the statute. The statute explicitly charges the judge, not the jury, with fitting the “just” award within the statutory range. Let the jury determine the “just” award in the absence of numeric anchors. Let the judge subsequently adjust the award to fit the statutory range. Nothing in the Seventh Amendment requires the jury to perform the task of adjusting the award it determines to be just to fit within the statutory range. If there is any such requirement it must be found within the statute, but of course, no such requirement is there.

Instructing the jury on the maximum range introduces extreme arbitrariness into the process because the jury has no basis for contextualizing the maximum.

The extraordinarily broad statutory range provided in 17 U.S.C. § 504(c) is intended to cover the gamut of infringing activities. Unfortunately, Congress provided no explicit guidance on how to ascribe damages within that range. Since the passage of the 1976 Copyright Act, Superior Form Builders, Inc. v. Dan Chase Taxidermy Supply Co., 74 F.3d 488 (4th Cir. 1996) is the only final decision ascribing a statutory maximum for copyright infringement. Dan Chase Taxidermy Supply Company had become the largest taxidermy supplier in the country by consistently and deliberately copying its competitors’ animal mannequins, consciously disregarding copyright laws, and continuing despite being sued several times for infringement. In fact, at the time of trial, eleven plaintiffs were suing the company for similar infringements. Id. at 497.

The company purchased animal mannequins from copyright holders using pseudonyms, removed their copyright notice, and attached its own. It went on to register its infringing works with the copyright office and advertise itself as the originator of the goods, warning consumers to “Beware of looka-likes” and vilifying other suppliers, including the original copyright holder, as “desperate ‘copy cats’ working overtime in an attempt to deceive the public and violate the rights of others.” Id. at 492. The trial court determined that “Chase had been involved in similar infringement suits for years and that only substantial awards of damages as well as attorney’s fees will deter Mr. Chase from continuing this willful and outrageous conduct.” Id. (quotations omitted). The court also found that Chase was in violation of the ethical rules of the National Taxidermy Association, to which he was a member, against reproducing works of others. Id.

Judges have means to contextualize the statutory range. Juries do not. To force juries to award damages with inadequate and positively misleading direction from the Court does the institution of the jury and the law no service—the jury because its verdicts are disconnected from the common sense on which its respect depends, the law because its process is manipulated to produce and project a draconian message at odds with sense and constitution.

The Court could diminish the arbitrariness of the jury’s task by explaining how to determine a damage award that would be “just.” Your duty in instructing the jury is to fill the void left when Feltner took the task of setting the statutory award away from judges and gave the task to jurors. Bottom line, you should instruct the jurors in a way that provides them with meaningful context, and avoid instruction that invites arbitrariness. Judge Gertner’s constitutional ruling and your previous opinions in this case provide the base on which to build. Your instruction should identify the noncommercial character of the defendant is case as ” an individual who reaped no pecuniary reward from [her] infringement and whose individual infringing acts caused the plaintiffs minimal harm, Sony BMG Music Ent’mnt v. Tenenbaum, No. 07cv11446-NG, 2010 WL 2705499 (D. Mass., July 09, 2010). You should instruct that if the defendant’s actions were knowing but not willful, then the minimum of $750 per infringement would be appropriate; you should instruct that if the defendant’s actions were willful, then, depending on the degree of willfulness, the jury could lawfully set the award as high as treble the $750 minimum. Within that range the jury should set an award it considers to be just.

The Court could also rationalize its instruction on willfulness with § 504(c). The statute creates three distinct categories of infringer: innocent, the lowest category; willful, the highest category, and a now indefinable middle category, neither innocent (defined as “not aware” and with “no reason to know”) nor willful, presently misdefined as satisfied by “knowing.” Since lack of knowledge is the defining characteristic of innocent infringement, a determination of knowledge has the effect of merging the top two gradations of infringement, both “willful”. Moreover, the R.I.A.A. has so far succeeded in removing innocent infringement from consideration. See Maverick Recording Co. v. Harper 598 F.3d 193 (5th Cir. 2010); B.M.G. Music v. Gonzalez 430 F.3d 888 (7th Cir. 2005). This further collapses the tripartite structure of infringement into a single category, flouting the manifest design of the statute.
This need not, and indeed should not be the structure of § 504(c) presented to the jury. Instead infringement should be placed within a structure sensibly aligned and contextualized to express the statute. Innocent infringement would be explained as infringement occurring with no knowledge on the part of the defendant that she was infringing, e.g. Harper. Then a spectrum of non-innocent/non-willful infringement should be described to the jury, starting at the base of the second category of infringement with mere knowledge and extending to end of the spectrum, covering infringements that exhibit willfulness in high degree, e.g. Builders. Such instruction would aid, not displace the jury’s ability to decide on an award that is “just”.

Respectfully submitted,

Charles Nesson,
with assistance of Phil Hill, JD’13

exemplary statutory awards

against individual citizens not proven to have caused any actual damage imposed through civil process at the behest and discretion of corporate plaintiffs who hold effectively unlimited prosecutorial power in their hands.

thomas-rasset, tenenbaum, whitney harper

i was writing for all of them when i submitted this reply to the response riaa was requested to file when judge davis admitted my amicus brief.

I. STATUTORY DAMAGES ARE NOT PENAL.

The legal core of the plaintiffs’ case is its assertion that copyright statutory damages can be used to teach people a lesson. Tim Reynolds in his opening statement to the jury makes clear that the jury’s damage award is to be based in part on what the jury thinks is needed to deter filesharing. Plaintiffs see copyright as a strict liability offense backed by penal statutory damages imposed with the function and purpose not only of compensating the plaintiffs for whatever damage this defendant has done to them and deterring the defendant from future infringing conduct, but, critically, to make an example of the defendant to deter others. This equation of exemplary with statutory damages is not the law.

Listen to Mr. Justice Roberts speaking for the Supreme Court in Douglas v. Cunningham, 294 U.S. 207 (1935), addressing the statutory precursor to 504(c):

“The phraseology of the section was adopted to avoid the strictness of construction incident to a law imposing penalties.”

The idea that statutory damages could be justifiably used to impose exemplary punishment on a civil copyright defendant crept into the law not from any word spoken by the Supreme Court of the United States, which was at pains to assure their non-penal nature, and was surely never articulated in any debate in the United States Congress. No Congress ever gave the giants of corporate copyright the power of to impose mandatory exemplary damages on an individual civil defendant, without debate or dissent. Such an interpretation of the statute would test the constitutional limits on congressional power.

The idea that statutory damages could be justifiably used to impose exemplary damages on a civil copyright defendant crept into the law by casual use of words in situations in which the significance of their use was not addressed, followed by repetition in the excellent briefs with which the plaintiffs supply the judges before whom they litigate.

Damages come in three flavors, compensatory, punitive against the individual, and exemplary, sending message out to others. Justice Roberts, referring to “penalties”, was not ruling out treble damage awards and the like to deter the defendant’s future conduct. He is speaking of exemplary damages, imposed on a defendant before the court to teach others a lesson. To so use federal civil process is wrong.

II. “WILLFUL” MUST MEAN MORE THAN “KNOWING.”

The plaintiffs legal theory rests on a two-legged stool. They pull the third leg out from under. Their strict liability copyright logic pulls them down.

The unmistakably three-legged structure of the statute allows mitigation if the copyright infringement is innocent, as in the case of one who has no understanding of copyright at all. Plaintiffs deny that this statutory category of innocence any longer exists. They base this on the bizarre claim that copyright notice posted on physical album covers in record stores eliminates the innocence of a digital downloader. Plaintiffs somehow persuaded a panel of the Fifth Circuit to accept this innocence-eliminating theory. Whitney Harper is presently asking the Supreme Court of the United States to review, with[link petition] Kiwi Camara as counsel to Ms. Harper and Charles Nesson as amicus.

But even if their bizarre theory that notice on a CD cover on an album in a record store should eliminate the innocence of a digital downloader is accepted, the innocence category of section 504(c) is still the bottom category, it mitigation still available against copyright holders who have not put notices on their album covers. The innocence (not knowing) category still exists, distinct from the two categories above it.

Now consider the top category. Plaintiffs say that willful infringement requires “no more than knowledge.”

This cannot be right. The immensely wide range of damage awards demands that the top category be comprised of elements more culpable. If the top category is “no more than knowing”, and the bottom category is “not knowing”, nothing is left in the middle. Plaintiffs try to make this the category of innocence now that they say the innocent category is gone.

US Copyright Group Spamigation

———- Forwarded message ———-
From: K.A.D. Camara

Date: Thu, Jun 3, 2010 at 10:04 AM
Subject: Re: US Copyright Group Spamigation – Invitation to fight
To: sikkim, Charles Nesson

We would be willing to represent a defendant willing to stand for all the other defendants as class representative. We have discussed this with eon, the dean of cyberspace.

Kiwi

On Wed, Jun 2, 2010 at 11:59 PM,

Dear Mr. Camara,

As you, no doubt, already know, there is a quiet wave of racketeering-like civil actions filed by a Virginia law firm of Kurtz, Dunlap, Grubb, and Weaver (also known as US Copyright Group). The massive scale of this fishing net is horrifying. “Pay us or we will sue” in absence of any real evidence seems to be predatory. For people who are innocent, the threat of a lawsuit alone is enough to start borrowing money from friends to pay to make this go away, although who can be sure that the agreement they are signing is anything but an invitation to further shake-downs?

You are a famous person in cyberspace. Your willingness to work pro bono on the lawsuit opposite of RIAA is impressive. In the age when attorneys side with big companies at the expense of the average Joe, your work is uplifting, to say the least.

Are there real remedies for the innocent average Joe or is paying these scumbags $1,500 (or $2,500 – if one does not respond within 21 days from the receipt of the first settlement letter) all one can do? This seems like an impossible preposition, especially in a country that claims to be equitable and money- and color- blind.

Do you still do pro bono? Someone has to take a stand. Could this be you?

Why is national news silent on this? Why doesn’t New York Times publish something? Why is all this so quiet? With a reported 50,000 people being milled in this machine, why isn’t there a massive outcry? This is not justice, this is extortion!

Please talk to me, am I the only one outraged by this?
Saffron