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IN THE UNITED STATES OF DISTRICT COURTFOR THE DISTRICT OF MINNESOTA

CAPITOL RECORDS, INC.,

et al

.,Plaintiffs,vs.JAMMIE THOMAS-RASSET,Defendant.Case No.: 06cv1497-MJD/RLE

NOTICE OF PLAINTIFFS’DECISION RE: REMITTITUR

Plaintiffs submit this notice pursuant to the Court’s January 22, 2010 Orderregarding remittitur. (Doc. 366.) After considering the Court’s Order, Plaintiffsregretfully must decline to accept the remittitur since the rationale underlying theremittitur is inconsistent with the Copyright Act and its legislative history, as well asestablished case law.In its January 22, 2010 decision, the Court recognized the scope and gravity of theconduct engaged in by Defendant Jammie Thomas-Rasset by specifically noting that shewillfully infringed Plaintiffs’ sound recordings, was aware that what she was doing wasillegal, lied to the jury, and never accepted responsibility for her actions. (Doc. 366 at13-14.) The Court agreed that Thomas-Rasset’s actions in downloading Plaintiffs’recordings without authorization and then distributing them through KaZaA for millionsof other users to download had caused Plaintiffs substantial, yet unquantifiable, harm.(

Id.

at 16, 21.) Finally, the Court acknowledged that Plaintiffs demonstrated a need todeter both Thomas-Rasset and others from engaging in such blatant infringement. (

Id.

)

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The seriousness of Thomas-Rasset’s conduct and its impact on Plaintiffs was notlost on the twenty-four individual members of the two juries who rendered verdicts in thismatter. They easily (and quickly) found that Thomas-Rasset had willfully infringedPlaintiffs’ copyrights. The first jury awarded damages of $222,000 ($9,250 per work)and the second jury awarded $1.9 million ($80,000 per work).While Plaintiffs do not believe that either verdict was improper under the law, orthat the second verdict should be remitted, they would have considered accepting aremittitur simply so that this case could finally come to an end. However, any remittiturmust otherwise be consistent with the law and be guided by what actual juries haveawarded under similar circumstances.

Unfortunately, Plaintiffs find it impossible toaccept a remittitur that could be read to set a new standard for statutory damages –essentially capping those damages at three times the minimum statutory amount of $750(or $2,250) for any “noncommercial individuals who illegally download and uploadmusic.” (

Id.

at 2, 25.) This far-reaching determination is contrary to the law and createsa statutory scheme that Congress did not intend or enact.The Copyright Act sets forth a statutory damages range for cases of willfulinfringement of $750 to $150,000. Neither the Copyright Act nor any case law

The awards of other juries are the best evidence of what a reasonable jurywould do. Yet, the Court discounted the first jury verdict in this case and disregarded theverdict in

Sony BMG Music Entertainment v. Tenenbaum

in which the jury returned averdict of $675,000 ($22,500 per work). (Doc. 366 at 19.) There is, however, no disputethat thirty-four men and women have considered the willful infringement of thesedefendants and awarded sums from $9,250 to $80,000 per work. Those verdicts speak volumes and should not be ignored.

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distinguishes – as this Court did – between “commercial” and “non-commercial”infringers for statutory damages purposes. Moreover, neither the Copyright Act nor anycase law contains any authority for capping damages at three times minimum damages inparticular cases. It is not for the courts to fashion a limit on damages for any particulartype of infringer or any particular type of infringement. That job belongs exclusively toCongress.

See Eldred v. Ashcroft

, 537 U.S. 186, 222 (2003) (“[T]he Copyright Clauseempowers Congress to determine the intellectual property regimes that, overall, in thatbody’s judgment, will serve the ends of the Clause.”)Indeed, Congress has spoken on this very topic. Congress deliberately andpurposefully established a range of statutory damages that applies

without regard

to thecommercial motivation of the defendant. When Congress last took up the question of statutory damages in the Digital Theft Deterrence and Copyright Damages ImprovementAct of 1999, it specifically increased the range of available damages to address conduct just like Thomas-Rasset’s:By the turn of the century the Internet is projected to have

more than 200 million users

, and the development of new technology will createadditional incentive for copyright thieves to steal protected works. . . .

Many computer users

are either ignorant that copyright laws apply toInternet activity, or they

simply believe that they will not be caught or prosecuted for their conduct

. Also, many infringers do not consider thecurrent copyright infringement penalties a real threat and continueinfringing, even after a copyright owner puts them on notice that theiractions constitute infringement and that they should stop the activity or facelegal action.H.R. Rep. No. 106-216 at 3 (emphasis added). Thus, Congress specifically recognizedthe harm caused by “computer users” like Thomas-Rasset and increased the range of