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Best Student Oral Argument Ever


Jason Harrow on behalf of Joel Tenenbaum before the United States Court of Appeals for the First Circuit, Boston. April 4, 2011. Questioning by Chief Judge Sandra Lynch

file sharing is not theft – sharing is not stealing

jeffrey clair speaks for the department of justice of the united states of america

jeffrey clair

note what is to mr. clair a mystery
and what mystifies judge toruella

listen with awe

questioning by judges toruella and thompson



parker on fried-liberty

assignment to my American Jury class

obtain and read

“[A]s a great popular leader [Mussolini] has said to an applauding multitude, ‘We will trample upon the decomposing body of the Goddess of Liberty.” W.B. Yeats, Irish Independent, Aug. 4, 1924, quoted in R. F. FOSTER, 2 W. B. YEATS, A LIFE 265 (2003).

“[H]e [l’abbé de Mably] hated individual liberty as one hates a personal enemy.” Benjamin Constant, De la liberté des anciens comparée à celle des modernes.

For Benjamin Constant—sometimes called the inventor of liberalism, my kind of liberalism—“individual liberty is the first need of modern man.” He and his friend Madame de Staël had survived the communitarian utopia of Robespierre’s republic of terror only to be sent into exile by Napoleon’s empire of the grandiose. “By liberty I mean the triumph—not just independence, the triumph—of individuality, as much over authority which would govern by despotism, as over the masses that would subordinate the minority to the majority.” When he returned to serve the monarchy of Louis- Philippe and that king in gratitude and admiration paid off his many debts, Constant warned that this would not in the least prevent him from criticizing. It was said of him that he sold himself many times, but never delivered. It is from Constant that Isaiah Berlin, in his celebrated Two Concepts of Liberty, took the contrast between the liberty of the ancients and the liberty of the moderns. Constant did not think them at all equivalent. The liberty of the ancients, the liberty of a people to govern their own state subject to no other ruler, was often the best that men could hope for in a time when wealth was tied to land and the only escape was to exile, loneliness and misery (think of Socrates choosing the hemlock over exile from Athens), but Constant saw that this “liberty” often goes along with the total, the Spartan annihilation of the individual. “It makes the individual a slave so that the people might be free.” In modern times a man can flee across borders with money in his wallet (or an “Inverted Jenny” postage stamp worth a fortune or an account number and a password) to build a new life elsewhere. The liberty Constant valued was the liberty of a man to live his own life as he thought best. Then as now America—to which Constant as a young man thought of emigrating —is the closest thing to that ideal.
That is what I grew up to believe. My family and I were chased from Prague—that most prosperous, most commercial, most comfortable, bourgeois and civilized of cities—by a homicidal maniac who like Robespierre and Napoleon had a vision of the glory of a nation and a people but cared nothing at all about persons. Then with Hitler gone and my father on the point of taking us back to Czechoslovakia, that country was put in the pocket of another mass murderer with an even more lethal—because more plausible—nightmare vision, that of a universal equality, in which every man would belong to everyone and all men belong to the state.
It is of the liberty of persons not peoples, it is of the liberty of the moderns that (to borrow from the opening of the Aeneid) I sing.

The greatest enemy of liberty has always been some vision of the good. It might be the good of community engaged for the glory of a city, nation, race, or party. This is best captured in the image of tens of thousands of slaves broken by the labor of building the great Pyramids of Egypt, with a result that must have amazed, still amazes. True, as much as a reach for glory, these tombs may have been one of the more sensationally desperate attempts to overcome the fact of death—as sealed away with the preserved body of the Pharaoh were the rich accoutrements of his life. But then glory has always been an avenue on the quest for immortality. The Pharaohs may have built for their own glory and immortality, but always and everywhere many religions have been ready to sacrifice the liberty of those whose lives they touched—whether as adherents or not—to what they took to be the greater glory of their gods. Power, magnificence and beauty are among the glories on which men have freely spent their own energies and the unwilling energies of others. But a way of life—whether of great simplicity or of complex ritual observance—has also seemed a good so surpassing that others must be bent to its pursuit. Think of the rural idyll-nightmare which Pol Pot sought to impose on Cambodia, but also of the complex observances of the mediaeval Japanese court.

Those who impose on others are convinced that the good they are after is a good as much for their victims as for themselves and so they claim that there are no victims at all. But just as often there is no thought of the good of the oppressed: Hitler thought of the good and glory of the German race—supermen ruled by a superman—a vision to which the elimination or subjugation of inferior races was integral, a vision in which those races obviously were not asked to share. And indeed the question whose good is it—cui bono—in many instances misses the point of this way of thinking, for it is the good in the abstract that is the goal, not any particular person’s good. The religious manifestation is the clearest—the service of the gods is not the service of any man. But running through this history of subjection and enslavement is the claim of some to coerce the service of others, whether for a common good, the good of the oppressor, or some good that is an abstract from both and applicable to all.
In this catalogue of oppression the idea of equality plays a prominent, yet ambiguous, part. Liberty is so important that everyone should have as much of it as possible. But there is another way of taking equality. Equality is so important that liberty, and not only liberty but every other good thing, should be enjoyed only to the extent that it may be enjoyed equally. In this second way, equality is more like the other goods I have mentioned—national glory or the service of the gods: it is a good that overrides the good of particular persons in so far as the well-being of some are sacrificed to it, and even if the well-being of others is not enhanced. This demands leveling down—deliberately hurting some people, without helping others—if that is the only way to come closer to equality. This was Pol Pot’s project as he emptied the cities and killed or drove into the fields the educated and most prosperous townspeople: Equality as a Great Pyramid. The Great Pyramid view of equality subordinates the goods—the well-being of individuals—to that one great abstraction.

We may know what counts as the power of a nation: its wealth or its successful conquests. Those who seek the glory of their gods seem to know what makes for that glory. But what is liberty? Here is a first, very general idea.

Liberty Is Individuality Made Normative

Individuals come first. Whoever says otherwise is trading in metaphors. There are societies, nations, families, teams, but they are all made up of individual persons. Together persons create traditions, adhere to religions, make up communities, constitute the spirit of a time or place. Individuals inhabit traditions as they inhabit the societies and nations they constitute. They may be said to inhabit the language and culture to which they contribute and which contribute to their consciousness. But all these things—societies, nations, families, teams, traditions, religions, languages and cultures—are the products of individual persons. There would be no language if no one had ever spoken it, although it can be written down, recorded and in that sense take on a life of its own. So also a culture or a society (or corporation or football team) may be said to have a life of its own. Individuals move through these entities, and when they are gone the entities are still there—though changed in large or imperceptible degrees by the persons who have moved through them. But the individual is primary in the sense that only individuals have eyes, ears, mouths, hands and brains, and it is only by individuals making, saying, drawing, writing and other individuals seeing, hearing and understanding, that languages are spoken and remembered, that traditions are felt and passed on.
Everything that matters to a person, to persons in general, everything humanly of value is first of all experienced by individual persons. I now take the next step; and it is a large one. Everything that matters to persons, that is humanly significant is chosen by individual persons, is the responsibility of individual persons, one-by-one. Here as I use the word responsibility, it is I who may be accused of dealing in metaphors, but consider the sense in which a belief—a quite ordinary belief—may be said to be chosen by the one who believes it. The matter of belief, whether it be what a person directly perceives of the outside world or what others tell him, must somehow come to a man’s consciousness and there he must weigh it, decide whether to credit it, or whether to dismiss it as an illusion, a mistake, a falsehood. Overwhelmingly these judgments are snap: almost everything I see I accept as really there without giving it a second thought, but I do give it a first thought. Mostly if someone tells me a simple thing—“Take your umbrella, it is raining”—I do not pause to consider whether to accept that it is in fact raining. And yet I must take in what was said and make a snap judgment that the person who is talking to me is in earnest or joking, a normal observer or a madman. I may judge credulously, impetuously, foolishly or ignorantly, but these are all modes of belief and they are mine.
And so it is also with my judgments of what I should do, what is good or bad, right or wrong. However much my choices may be influenced by prejudice, emotion, fear of others, it is still I who must choose before I act. And the beliefs, choices and actions that make up the human world are those of individuals—discrete points of perception, thought, judgment and choice. They may coalesce in cultures, spirits of the time, but these are made up of individual perceptions, conclusions, choices, actions. And each individual experiences these as ineluctably his, whatever else they may be. In this sense he is responsible for all of them.
In addition to judgments and choices being mine, so also the pains and pleasures, the satisfactions and disappointments, the passions that give my life energy are also ineluctably mine. This has nothing to do with selfishness or altruism. Whether I take pleasure only in comfort and luxury or my happiness consists in the beauties of art and nature or in the thriving of my family, friends or of all humanity, still it is I who seek these goods and am elated or dejected by their attainment or failure. And again this is not at all to say that I choose the good of humanity or the production of great beauty because of the satisfaction they procure for me; I feel the satisfaction (or dejection) because these things are good in themselves. If by some magic I would have to choose between the satisfaction and the thing itself, it is the thing itself I would choose. So the lover seeks the good of his beloved not because of the pleasure he attains when the beloved is well, but for her sake. (Think of Rick on the runway in Casablanca as Ilsa and Laszlo make their escape.) And still all of these goods—high and low, selfish or generous—are sought by us because of what we judge them to be. They are our goods. Finally, this individualism should not be confused with solipsism. What I have been arguing does not at all commit me to the proposition that whatever an individual chooses or experiences as his good is therefore good after all. There may be—I believe there is—a fact of the matter about what is good or bad, right and wrong, worthwhile or degraded. The choosing individual may be profoundly mistaken, superficial, criminal, shallowly selfish; that he chooses as he does, does not determine the judgment on what he does. He is responsible for his beliefs, judgments, choices and actions. To argue that because they are his they cannot be good or bad is just a mistake; but it is a mistake that deprives a man of responsibility.
It is this rock-bottom, indigestible fact of each person’s lonely individuality, his ultimate responsibility for his own beliefs, judgments and choices that grounds our demand that we be free, that is the ground for our liberty. When others try to force me to do what I judge I do not want to do, or try to trick me into believing what I would not otherwise believe, they disrespect—they attack—my person at its deepest level. Because that is where the attack on our liberty comes, it follows that there is a difference between what others do to me and what they merely allow to happen to me when they will not help me or get out of my way. In doing to me, they do indeed take my person into account and make that part of their project. In refusing to help or get out of my way they may fail to acknowledge me as a judging, feeling, choosing individual, but in doing something to me they acknowledge that and use it for their own purposes. They (try to) deprive me of my liberty.
Liberty is individuality made normative. The person who disregards me—turns away or runs over me—ignores my individuality; he pays no mind to the fact that I have a distinct consciousness, plans, judgments. For example, the man who throws me out of a window onto his enemy in the street below in a sense uses me—but as an object, a dead weight, not as a thinking, responsible being. And he does not violate my liberty. It is the man who takes account of my individuality—my thinking, reasoning, judgment—and forces me to bend my will to his who violates my liberty. His plan depends on the fact that I have plans and he makes his plans part of my plans. I am the means to his ends; that is, I as an independent, responsible consciousness. A violation of liberty tears something: a man recognizes me, recognizes me as being a person like him, but then contradicts that recognition by using against me and for himself the very things that make him and me persons. It is this relationship between us that implicates liberty; liberty is fundamentally about relations between persons.
Now you may be thinking that as a thinking, feeling being I have plans of my own—selfish or generous—and these plans (what might be called for short my good, or my goods) are what I care about. And these plans may be frustrated as much by another’s running over me or passing me by as by his using me. More, there is scarcely anything I can accomplish without others: I would not have been conceived, born, reached maturity, learned language without others. If I had been ignored, I would have died. The success of my plans always depends on others. Yes, but as we acknowledge that, notice how it is we depend on each other. We depend on each other to deal with us—for us and against us—as thinking, choosing beings: as persons, as individuals (perhaps not in our conception and infancy, but soon after that). So all these good things implicate liberty because they depend on our eliciting, discouraging, modifying other people’s choices; they implicate how we treat each other as persons and not as inert objects to be ignored or obstacles to be got out of the way. The running over and passing by are secondary, secondary to our dealings with each other as persons. We run over or pass each other by on our way to something else, in pursuit of some plan, and that plan almost always will count on cooperating with or using others—their capacities to understand, value and choose.
Liberty is implicated when we take those capacities into account. Consider two opposite ways in which we take into account other persons and their distinct capacities as individuals: we can cooperate with them or we can coerce them. (I use the term coercion to cover threats, orders and not physical restraint—it is the difference between pointing a gun at a prisoner while ordering him to move and frog-marching him.) In cooperation we elicit choices by inviting the other to join in our choices, to make our choices his. Now I know that cooperation can be made to look like coercion—the offer you cannot refuse. Take an extreme and obvious example: the bank manager can be said to cooperate with the bank robber by opening the vault to save a hostage’s life. And a less obvious example: the landlord insists on a greatly increased rent to renew the lease of a successful restaurant that has over the years come to be identified with a particular neighborhood. And at the other extreme, Mozart and the librettist da Ponte working together to create The Marriage of Figaro, or the joining of lovers. In all of these examples—even the bank robbery— individuals make use of each other as persons, in all liberty is implicated, but only in the first example of the bank manager is it clear that liberty is violated. It will just exactly be my job in succeeding chapters to unravel when liberty is violated and when it is invoked. (A glance forward: we will see that a complete idea of liberty implies a notion of rights, and others can trespass on my rights inadvertently, heedlessly as well as willfully and viciously. I may, and the state should, protect my rights in both cases. But the trespasser conceives of me differently in the two cases, and the extent and kind of justified defense will differ too.)

will joel’s issues be heard



Children’s understanding of copyright and fair use, and how it changes over time


to testify to the human impetus to share songs and the ubiquity of the songs joel shared on the net.

* Incubus – New Skin
* Green Day – Minority
* Bad Religion – American Jesus
* Outkast – Wheelz of Steel
* Incubus – Pardon Me
* Sublime – Miami
* Nirvana – Come As You Are

If one searches for any of these songs on YouTube today, one finds numerous instances of each, sometimes numbering in the dozens or even hundreds.


For the overwhelming majority of users, file sharing is purely for enjoyment and sharing with friends in an entirely non-commercial setting. Live music performances are in demand and that industry branch is flourishing and utilizing Internet technology. The traditional mass-market music CD album sales are in terminal decline due to technology progress and destructive business strategies of the past decade.

nov 18 – building it

filed my brief, felt good about what i said and how i said it, cold water from jason worried about offending, disappointment from phil that he hadn’t had his chance at it, nothing back from anyone else; suppose i’m just wrong, the merits don’t count because they are not being presented right, that can’t be, or can it; is the fact that my style is not that of a law firm a strike against me?

just felt power from the dealer’s position, pushed in with a bet six times larger than the limpers, poker a betting game depending a lot on position, looking either for a good hand or good position with what you see as weakness already shown in front of you where they see strength from you and even if they think you are bluffing have nothing to bluff you out with but a bluff of their own, which you’d best watch for, and watch for the guy doing the position play to be vulnerable to it. i wish i had full feel for it, for the variation of how the cards play into the betting game as the tournament moves along, the sit and go table a training marvel. see and feel the basic move from dealer’s position when the action is limped around to you

you don’t exist in cyberspace if you don’t exist on the net. if you do exist in cyberspace you be. be. budha says be. i & i be by blogging thought in action in thinking and doing

ok, so edit today’s email thread. i follow the link to darnton.

Can We Create a National Digital Library?

fight my way through a poll but because it’s the new york review of books i don’t mind

he begins with a questionable statement:
“Simple as it sounds, the question is extraordinarily complex.”

more to say

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!


lisa carlivati offers reaction and critique on the penultimate draft

Judgment Notwithstanding the Verdict for Jammie Thomas




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.


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.


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.

(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.

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

thanks to cyberprofs

to cyberprofs, those who joined my amicus brief in support of whitney harper’s petition for certiorari, ned snow, ray beckerman, michael rustad, raymond ku, ralph clifford, robert heverly, llewellyn joseph gibbons, malla pollack and caroline wilson

the case was on for conference yesterday, the result to be announced at ten o’clock monday morning

whatever the outcome, thanks for your support.