Final Appeal Brief to the First Circuit

On Thursday, we filed our final brief to the First Circuit. The brief concludes two rounds of briefing by both sides (our earlier brief can be found here, and all the prior briefing by the parties can be found here). This is the last word to the Court before an oral argument in front of a three-judge panel that will take place sometime this spring or summer. After that, the case will be in the judge’s hands. They have no precise timetable for making their decision, but we expect something to emerge before the end of 2010.

The brief begins with an overview of the big issues in the case before proceeding to a more detailed rebuttal of what we believe are the many errors and distortions in the Record Industry’s arguments. Thus, we first discuss how critical it is to construe Supreme Court decisions and the Copyright Act itself to comport with reason. At a basic level, it should be clear that a penalty of either $675,000 or $67,500 against a college student for sharing thirty songs is beyond all reason. We show how neither the Supreme Court nor the Congress ever envisioned a lawsuit where a big record company would sue an individual, not-for-profit consumer copier. Accordingly, slavishly following procedures that were designed for very different contexts is the main reason that the damages award defied all reason.

As many long-time readers know, this is the first case to hit any federal Court of Appeals after a full trial against a filesharer. But because we are the first, the judges on the Court may be blissfully unaware of the assault on consumers launched by the Industry and now by other copyright holders. We therefore felt the need to briefly sketch the remarkable scope of the Industry’s unprecedented litigation campaign to emphasize how critical it is for this Court to address all the important issues on appeal.

This helps us in at least two ways. First, it emphasizes that the issues in this case are still important even though the Record Industry itself has ceased its litigation campaign — for the moment, at least. Second, it helps put into context some of the accusations the Record Industry has made that we have forfeited many of our most important arguments for technical, procedural reasons. We believe these accusations are meritless, but even if the Court sides with the Recording Industry on those points, we wanted to show that it can and should address all major arguments anyway because of how rare and important this case is.

Specifically, in 2005, our best estimate is that cases against individuals were occupying fully half of all copyright cases filed in the United States. Over the course of the campaign, the Industry by its own sworn admission contacted over 18,000 not-for-profit individuals and formally sued over 12,000 of them. Their financial power and legal advantage is so overwhelming, however, that this initial pool of 18,000 was whittled down to only two individuals who went to trial: Joel and Jammie Thomas-Rasset in Minnesota. For the Record Industry to pretend like this was just an average copyright suit is therefore sheer fantasy. We also make the Court award of new “copyright plaintiffs” like the U.S. Copyright Group and Righthaven that are once again beginning to clog the federal courts with thousands of copyright suits against individual filesharers and even bloggers in the hopes of obtaining quick, highly coercive settlements.

Finally, we delve into the details of the core arguments and reply directly to several points by the Record Industry. For instance, we counter the Record Industry’s suggestion that the only available precedent for reviewing an award of damages under the Due Process Clause is a 1919 Supreme Court case called St. Louis Railway v. Williams. That case involved a Due Process challenge by a railroad to a $75 award it had to pay two women whom it had intentionally overcharged. The Supreme Court said that the award could stand because it was not “so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable.” We have disputed that this is the proper legal standard, and we point to more modern cases that only permit damages awards that have specific ratios of punishment-to-harm. But even if the Industry is correct, we argue that what might be a “severe and oppressive” penalty against a major railroad in 1919 is vastly different from what is “severe and oppressive” to an individual college student like Joel accused of sharing 30 songs. We also respond to other arguments about, among other things, whether the jury was instructed properly.

We’ll keep you posted with further developments. In the meantime, spread the word about the brief by using the #jfbcom hashtag on twitter. Feel free to contact us at joelfightsback@gmail.com with any feedback.