Sony BMG Music Entertainment, et al v. Tenenbaum

Filing 58

CITATION of supplemental authorities pursuant to Fed. R. App. P. 28(j) filed by Not Party US in 10-1883, Appellant/Cross-Appellee US in 10-1947, 10-2052. Certificate of service dated 03/07/2011. [10-1883, 10-1947, 10-2052] (JAC)

Sony BMG Music Entertainment, et al v. Tenenbaum

Doc. 58

U.S. Department of Justice Civil Division, Appellate Staff Room 7243, 950 Pennsylvania Ave., NW Washington, D.C. 20530-0001 Jeffrey Clair Tel: [phone] Fax: [phone] E-mail: [e-mail]

March 7, 2011

Mr. Richard C. Donovan Clerk, United States Court of Appeals for the First Circuit 1 Courthouse Way, Suite 2500 Boston, Massachusetts 02210 Re: Sony BMG, etc.,, et al. v. Tenenbaum. Nos. 10­1883, 10-1947, 10-2052. Dear Mr. Donovan: This case is scheduled for oral argument on April 4, 2011. Pursuant to FRAP 28(j), the United States respectfully directs the Court's attention to supplemental authority refuting plaintiffs-appellants' contention that the Copyright Act divests district courts of their longestablished, common law power to remit excessive damage awards. Plaintiffs argue that because the statute, construed in light of Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340 (1998), generally empowers the jury to enter any damage award that is "just," the trial court has been stripped of its traditional common law remittitur power to review and set aside an excessive jury verdict. See Plaintiffs-Appellants' Response/Reply Brief at 26-29. In United States v. Texas, 507 U.S. 529, 534 (1993), however, the Supreme Court held that Congress is presumed to intend common law principles to be retained absent clear evidence to the contrary, and that "[i]n order to invade a common law principle, the statute must `speak directly' to the question addressed by the common law." Here, neither the statute nor its legislative history makes any express reference to extinguishing the trial court's powers of remittitur. Contrary to plaintiffs' contentions, the mere fact that the jury is now empowered to enter a "just" award is not sufficient to overcome the presumption that Congress intends the trial court to retain its long-established power to review that award under common law standards of excessiveness. Moreover, the Federal Rules of Civil Procedure provide (1) that the court may grant a new trial for any of the reasons recognized at common law (see FRCP59 (a)(1)(A)), and (2)) that

Dockets.Justia.com

these and other provisions of the rules "govern the procedure in all civil actions and proceedings" in district courts, except as expressly stated in FRCP 81. See FRCP 1. Taken together, these rules expressly incorporate the court's prior, common law power of remittitur and make remittitur available in all civil actions unless a statute explicitly provides otherwise. Nothing in the Copyright Act purports to limit the application of these rules in actions for statutory damages. Sincerely, /s/ Jeffrey Clair, Attorney Room 7243, Dept. of Justice 950 Penn. Ave., N.W. Washington, D.C. 20530 [e-mail]

cc

(via ECF filing) Paul D. Clement Jeffrey S. Bucholz Erin E. Murphy King & Spaulding, LLP 1700 Penn. Ave., NW Washington, D.C. 20006 [phone] [e-mail] Timothy M. Reynolds Eve G. Buron Holme Roberts & Own 1700 Lincoln, Suite 4100 Denver, CO 80203 [phone] Counsel for the Plaintiffs-Appellants

Charles Nesson 1525 Massachusetts Ave., G501 Cambridge, MA 02138 [phone] [e-mail] Counsel for Defendant-Appellee -2-

Michael Barclay Electronic Frontier Foundation 454 Shotwell St. San Francisco, CA 94110 [phone], ext. 138 [e-mail] Counsel for Amicus Electronic Frontier Foundation

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