Do points 1, 3, and 4 need arguments spelled out? Is there some basis for disagreement on, for example, point 4 as to whether the US government routinely demonstrates courage in the face of demands that it spend other people's money on unsustainable but politically popular projects? If there were some thread of support for such an argument then I guess I could go back and spell out the obvious, but it hardly seems necessary, does it?

The question about how private insurance stacks up is an interesting one, although not relevant to this discussion. Even if a particular incumbent is incompetent for a job, that does not mandate that an untested incompetent be hired for life to replace him. And never lose sight of that fact - once the government gets power, it never gives that power back. When you hire government, you're making a hire for life. Has the US government really demonstrated that level of competence and trustworthiness?

The case for private insurance essentially boils down to two elements of choice. First, there are ~1300 private insurance companies, each offering a plurality of plans. Further, the 1300 companies are regulated by the states, so the plans that they offer are influenced by state regulatory boards to serve the specific needs of people in each state. There is no possibility that the fed plan will include either that many choices or that level of individual targeting of essential features, so the fed plan will necessarily be inferior in the degree of choice and the suitability of coverage. It's possible, I suppose, that a monolithic federal bureaucracy will also have advantages over the present system, but it will necessarily have those disadvantages.

The second element of choice is whether to have coverage at all. Insurance is a negative expected-value instrument, mathematically speaking. It means that you expect to put more in than you take out. In simplest terms, it only works when most people lose money on the deal. Most readers have paid more into car insurance, home owners insurance, etc. than they'll ever get out because that's how insurance is supposed to work.

Contrast that with things that are properly within the scope of government such as building roads, bridges, and schools. Those are positive expected-value instruments because we expect to get more value from a road or a bridge than the cost to build it. There is at least an economic justification for allowing government to confiscate my money to do those things.

There are some people for whom negative expected-value instruments like insurance are worth it. They value the peace of mind, certainty, and other things more highly than they value the money they lose. That's fine. They are free to make that choice and we wouldn't want it any other way.

The way to offer those elements of choice without locking in an incompetent incumbent for life is to use private insurance.

The other thing to consider is that the roads, bridges, schools, and other things that are properly within the scope of government control (but even then not exclusive government control) is that they generally neutral in that they tend to accrue to the benefit of all and, taken as a whole, tend to spread the benefits more-or-less uniformly. Forcing all to participate in an insurance scheme that is designed to lose money would be a bad idea anyway, but here it is worse because it is not neutral. It forces me to lose money to subsidize people who make poor choices.

I understand that it also forces me to subsidize the unlucky, which is fine, but most of the money that the government will confiscate from me will go to support the obese and smokers. 70% of our health care costs are spent on five diseases, four of which are caused or substantially aggravated by lifestyle choices. I haven't made any of those choices the wrong way, so I do not favor a system of confiscating my money to support those who have. I favor a system in which people who make choices intelligently keep our money so that we may invest it in positive expected-value instruments like education.

The short answer is that settlement offers are not admissible at trial. Actually, that's the long answer too. The $500 is irrelevant for purposes of trial.

The bar to successfully arguing ineffective assistance of counsel is very high. The short answer is: forget it. Proving that your lawyer slept through the trial AND that he called no witnesses AND that he did not cross-examine the witnesses put on by the other side is so grossly insufficient to show ineffective assistance of counsel that you may well be sanctioned for making the claim on such weak evidence. Believe it or not, there is not the slightest possibility that anyone would even file such an appeal in this case and less chance that it would be granted.

I'm not a politician, so I don't try to solve every problem with a new government program. I'm a businessman so I try to solve every problem by hiring or contracting with someone to fix it for me. On occasion, I hire the government, but only when I'm ready to hire someone for life because the government will never give back power.

The first step in hiring is to list the requirements for the position. For the health care problem, that seems to be pretty straightforward:
1. Demonstrated ability to effectively administer large medical programs.
2. Demonstrated ability to manage costs in large and complex programs.
3. World-class expert in managing new technology and the myriad changes arising therefrom.
4. Courage to do the right thing in the face of heartbreaking demands by people who need exceptions.

Now we compare that list to the qualifications of the applicants. Let's start with the first applicant, the US government.

As to point #1, I think that Medicare and Medicaid speak for themselves. If you disagree, any of the doctors fleeing the programs will be pleased to speak for them.

As to point #2, they continuously conflate the idea of prices and costs. They force prices of some products down at gunpoint, often to levels unsustainably close to or below costs, without regard to the effect on the rest of the system. It works as well as it does, which it pitifully, for exactly one reason: there are parts of the system that they do not control, hence parts of the system to which they can still push costs without constraint. If they own the whole system, there's no place left to relieve the pressure that they create with misguided policies and the system explodes.

Point #3 hardly needs analysis.

Point #4 needs even less.

Thank you for your application, Uncle Sam. We'll contact you when we find an opening for someone of your skills. In the meantime, we'll keep your application on file. The circular file.

If he's current on his taxes then he's paid up in full so there's no need to leave a check. He's probably going to have to abandon his Social Security, but there's no way to get a check for that. Check exchange problems solved. Please proceed to the airport.

I think it's a good brief and makes the best arguments available to the defendant's side. I don't think that the jurisprudence on statutory and punitive damages is as closely linked as the defense would like. However, I certainly agree that it seems to be the strongest argument available, so that's what you go with. The facts on this one are pretty ugly; we're not going to enjoy the precedent that comes out of a case with such an unsympathetic defendant.

Some courts have signaled that they don't like the immense damages imposed, so they may accept the argument whether they actually believe it or not just to get to a "just result". That's certainly far from unheard-of. Your brief quotes one court imploring Congress to take another look at the liability and damages that arise from this statute. Maybe this court will seize upon the chance to conflate statutory and punitive damages to apply the 14th amendment to achieve a result that levies lower damages.

There are some who believe that the Supreme Court took In re Bilski because the Court is tired of waiting for Congress to do sensible things with IP law and now the Court is ready to make its own policy. If true, they could also be ready to take a look at this area of IP law.

As a matter of existing law, I think Thomas is doomed, but if the Supreme Court really is ready to rework IP policy and if they choose to use the Thomas case as part of that then this could be the argument that gets Thomas before them. They are generally more likely to take a Constitutional question than than one of the civ pro questions about multiple unrelated John Does in a single filing (not sure whether that played a role here, but it's a typical RIAA tactic so I presume that it did).

It looks like our discussion here may be winding down. In case we don't get a chance to chat again, I'll take this chance to thank you for writing lucidly on tricky legal topics for a non-legal audience. Separating procedural and substantive issues and helping people understand what's important at the trial court versus appeals court levels is not easy to do well and the subtleties can easily be lost on the layman. Also, the Slashdot crowd is pretty quick to stone government in general and lawyers in particular so I can't imagine that it's always highly rewarding work, but I think that it's important and that you do it well.

Very best regards,

Mike

It's pretty clear. I understand all of it. Why do you ask?

The idea behind deference to statutory damages is that Congress specifically authorized an award beyond actual damages, perhaps far beyond actual damages, do accomplish various public policy goals such as deterrence, judicial economy, and justice to the plaintiff in cases where proving actual damages is difficult or impossible. It is well settled that where the intent of Congress is clearly expressed in the language of a statute, the inquiry by the court is at an end. In Parker, the court worried that the interplay of two statutes created a situation that Congress did not intend. Interesting case, but unrelated to the instant case.

Likewise, Napster, Lindor, and Brennan are interesting cases, but are district court cases from other districts. They are therefore not binding precedent in this case. I'm sure that they were given due consideration, but consideration is all that they are due; deference is not required.

If district courts receive no deference, the law review articles have less claim. Interesting reading, no doubt, but hardly determinative.

Gore notes early on that one of the factors that made the 500x multiplier unreasonable is "there is no suggestion that he or any other BMW purchaser was threatened with any additional potential harm by BMW's nondisclosure". Here, of course, the whole idea is that she made the songs available for download, which threatened substantial harm to plaintiff. The key is the reference in Gore to the threat of additional harm. By making the songs available, she created the threat of additional damages to plaintiff. Whether that threat was realized is another question, and an irrelevant question here because Gore specifically focuses on the threat created by the activity, not by the actual outcome.

Note also the portion of your brief in which you state that one of the key tests is "the disparity between... the potential harm... and the punitive damages award." Setting aside the punitive versus statutory damages part of the argument, the potential harm to plaintiff of requiring him to compete for sales with a free source of the same product is obviously very high.

State Farm is pretty clear. First, it's a straight-up punitive damages case as opposed to a statutory damages case. However, assuming that it was relevant, which it is not, we review a few selections from the case: "We decline again to impose a bright-line ratio which a punitive damages award cannot exceed." A "higher ratio might be necessary where 'the injury is hard to detect or the monetary value of noneconomic harm might have been difficult to determine'". In other words, the Supreme Court declined to set a hard limit on punitive damages, much less statutory damages, and acknowledged that a fact-specific inquiry may well find good reason to impose very high multipliers.

Indeed, you note in your brief that a district court may have implicitly acknowledged exactly this point. After citing a handful of nonbinding precedent and a book by Nimmer, you quote a court "implor[ing] Congress to amend the Copyright Act to address liability and damages" in cases like this. In other words, the statute binds the court to do things it does not want to do and the court implores Congress to change the statute because the statute binds.

In summary, and in response to your remark, I disagree with some of what you say but I do think that it's fair to say that I understand it.

Respectfully yours,

Mike

PS - It is the practice of lawyers to overstate their own cases and trivialize those of their opponents. Ray is a lawyer, so I've followed that practice here. However, one particular application of that rule in the foregoing troubles my conscience. I note for the non-lawyers present that the "book by Nimmer" that I so casually dismissed above, while not being even close to precedent or binding on any court, is regarded by many as the most authoritative work on copyright available anywhere. If I was in the shoes of either plaintiff or defendant, I'd quote Nimmer at least once just to be on the safe side. Ray knows this well, of course; I note that here only for the benefit of those without legal training.

"Monopoly" has a specific legal meaning. One of the key elements is pricing power, which means that the monopolist can raise his price above what he would be able to charge in a competitive market. As the RIAA is organized, it does not have pricing power over any records, CDs, etc., so it cannot be a monopoly. It can be a cartel that illegally exercises market power; that's more of an anti-trust issue. However, that would require a court to define the set of people who infringe music copyrights as a market and there are good reasons not to do that. However, I've heard it discussed and it may happen. I'm not here with an opinion, just a definition.

As to the extortion charge, the situation you describe is merely the quid pro quo on which all of commerce is based. Wal-Mart does the same thing: "Give us $0.75 or you're never gettin' outta here alive with that candy bar!" Real property works the same way: "Give me the rights to quiet enjoyment of the house, garage, AND the yard or I'm not buying the property!" So you trade the copyright and the text of a paper or a book for something that you want more. If you don't like it, don't publish, self-publish, or go with a less reputable publisher, but then feel the pain when you come up for tenure and promotion. Having seen the (utter and total lack of) success of at least one applicant apply for a job in the Mathematics Department on the basis of his "publications" in the editorial column of his local newspaper, I'd say you're doing the right thing for your career in trading away the copyright.

Punitive awards come from the jury. Juries do not hold hearings, have access to experts, or otherwise have the ability of a legislature to make the best decisions. Juries are also not elected by the public to carry out public policy. For those reasons, excessive punitive damages are subject to challenge. Exxon Val is one of many examples. End of discussion of punitive damages, wholly irelevant to this case because no punitive damages have been awarded.

Beginning of discussion that is actually on point, which is a discussion of statutory damages:

Statutory damages are damages whose amount is prescribed and proscribed by the legislature. Legislatures can hold hearings, can hire experts, can consider a wide range of facts and circumstances that may not be present in any single particular case, and have been elected by the public to define public policy. The fact that they can do those things does not mean that they do, or that they do them competently, however, the fact that they can is what gives statutory damages a status different from the status of punitive damages.

Fairness to a defendant is one of the things that the legislature considers. However, it also considers fairness to the plaintiff, deterrent, and judicial economy, to name but a few. (It also considers who has paid into the re-election kitty and in what amount. If you want to be the first person to point out that the system is imperfect and contains elements of corruption, you're too late.) In order to legally do what she did, which is make the songs available to anyone with access to an internet connection, Thomas would have had to negotiate and pay for a fixed-price perpetual license for unlimited worldwide distribution of those songs. What price would the record companies have negotiated for that? Congress thought it over and came up with the wide range of $750-$150K and left it to the jury to fix a specific price in specific cases.

There are demonstrably songs for which such a license would be worth more than $150K, and songs for which $750 would be ludicrously high. However, Congress established that range to achieve a range of policy goals. Because those are statutory, meaning that they are specified in the statute, they are not subject to the challenges that a punitive damages award might draw. Comparisons to Exxon are misplaced. Because the money is not paid to the government, references to the 8th Amendment's prohibition against "excessive fines" is likewise unavailing.

If you want the Supremes, or any other court, to overturn an award of *statutory damages*, you must prevail on one of two points. First, you could successfully argue that there was abuse of discretion. For various technical reasons, this will not work. Second, you could argue that Congress erred in setting the bounds on damages. In that case, you must argue for having judges rewrite the law or do what postings in other /. forums would decry as "legislating from the bench." Those are the choices.

When you say "own", people may assume that this is a copyright thing. It's not. In Feist v. Rural, the US Supreme Court ruled 9-0 that facts cannot be copyrighted (owned). This database is just a collection of facts, hence not subject to copyright. It's basically exactly like the case in Feist v. Rural in which the parties were fighting over the list of names in the white pages of a phone book. For those who like legalese, try http://www.law.cornell.edu/copyright/cases/499_US_340.htm.

That's why these guys are coming at it with contract law instead of copyright. They're telling libraries that the contract they signed to get the data controls what the libraries can do with the data. The contract apparently says, or the data provider wants people to believe that it says, that libs can use the data themselves, but cannot transfer it.