Minnesota's top federal judge, Michael Davis, certainly seems like a man who just wants the (in)famous Jammie Thomas-Rasset peer-to-peer file-sharing case on his docket to just go away. And the recording industry, which has prosecuted Thomas-Rasset through one name change, two trials, and three years, appears to be under the distinct impression that it's getting picked on.
Thomas-Rasset was the first P2P user in the US to take her copyright infringement case all the way to a federal trial, where she was found liable for $222,000 in damages. After the trial ended, Judge Davis tossed the verdict and granted Thomas-Rasset a new trial on the grounds that one of his jury instructions was flawed.
That second trial again found Thomas-Rasset liable, and jurors upped the damages to a shocking $1.92 million for the 24 songs at issue in the case. This time, Davis ruled the amount "monstrous" and slashed it to $54,000. The RIAA could take that amount or it could choose a third trial, limited to the issue of damages.
It chose a third trial. But instead of letting the case play out, Davis in June 2010 ordered the parties to meet with a Minneapolis arbiter to hash out their differences.
This has all happened before
This would not necessarily be unusual—federal judges demand settlement talks all the time—except for the fact that Davis had already tried the same tactic several times. Both sides had failed to settle before going to trial. In the run-up to the first trial in 2007, Davis ordered them to try again, though he later rescinded that order.
Before the second trial, Davis demanded another settlement conference; after a half day of mediated talks in 2009, this broke down.
After the second trial, the parties again talked voluntarily and could reach no agreement. According to a both sides, they were "stymied by their substantially divergent views on the law and on this case."
So when Davis ordered both sides into mediation again last month, lawyers on both sides must have practiced their eye-rolling skills. What was the point? But Davis also noted something specific and unusual in his June 18 order: the arbiter would be paid $400 per hour, and "the fees incurred for the settlement proceedings shall be paid by Plaintiff." That is, by the recording labels.
Um, remember us? We won. Twice.
Predictably, the talks broke down. In a joint motion filed with the court Monday, both sides agree that nothing will be gained by proceeding further with the mediation, and both were irritated at having to go through the process. "The appointment of the Special Master for settlement purposes can only be done with the consent of the parties and after the parties have been provided notice and an opportunity to be heard," they tell the judge. "In this instance, the parties neither consented nor were provided an opportunity to be heard."
But the recording industry was even more upset by the issue of payment.
The Plaintiffs, on their own, also object to that portion of the June 18, 2010 Order that obligates them to pay the Special Master’s fees. Plaintiffs brought this case alleging that they were the victims of Defendant’s copyright infringement. Twice, Plaintiffs have obtained verdicts by juries that Defendant willfully infringed their rights. Twice, the Court has set aside those verdicts and the case is now set for a retrial on the question of damages alone. The Defendant is an adjudged, willful infringer of Plaintiffs’ copyrights and, while Plaintiffs strongly subscribe to the Court’s desire to settle this case, Plaintiffs believe that the financial burdens associated with the appointment of a Special Master for purposes of pursuing a Special Master should not be placed upon them. The perception that Plaintiffs have greater resources to shoulder those financial burdens should not automatically dictate that they should bear those costs, especially given that they are the prevailing parties. Indeed, pursuant to 17 U.S.C. § 505, Plaintiffs have the right to obtain costs from Defendant, including any costs associated with a Special Master. As such, Plaintiffs do not believe that they should bear the burden of compensating a Special Master.
Judge Davis certainly isn't on Thomas-Rasset's "side" here; indeed, when slashing the second trial award, he trashed Thomas-Rasset for the moment when she "lied on the witness stand by denying responsibility for her infringing acts and, instead, blamed others, including her children, for her actions."
But he certainly doesn't intend to let a huge damage award escape his courtroom. When reducing the $1.92 million award to $54,000, Davis arrived at this amount by awarding triple the $750 minimum for statutory damages. This amount is still "significant and harsh," he noted, but it's a "higher award than the Court might have chosen to impose in its sole discretion."
After multiple settlement talks, two trials, and two judicial decisions to set the verdicts aside, Judge Davis still hasn't rid himself of the troublesome case. Come October 4, 2010, Jammie Thomas-Rasset and the RIAA lawyers will again appear in his 15th floor Minneapolis courtroom for a third trial on damages.
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