Earlier this fall, the Court adjudicating Capitol Records, Inc. v. Thomas, vacated a $222,000 jury verdict because the Court found it had erred by instructing the jury that U.S. law provides a "making-available right." I have discussed the profound and numerous flaws in that ruling here. I discussed the downright disturbing flaws in Section K of that ruling, (which contains the Court's associated advisory opinion on copyright reform), here.

After the ruling, the Thomas Plaintiffs did just what they should have: They filed a motion to certify the Court's making-available-right ruling for an interlocutory appeal. Thomas is an ideal case for an interlocutory appeal: the recent self-reversal in Thomas would require the parties to re-try the entire case because the Court used internally inconsistent reasoning to adopt a minority position on a pure question of law that admittedly causes the United States to violate nine international agreements. Stronger grounds for an interlocutory appeal are scarcely conceivable.

Unfortunately, on December 23, 2008, the Court in Thomas denied the motion to certify an interlocutory appeal--for an absurd reason. According to the Court, there can be no substantial disagreement that it was bound to deny that a making-available right exists by the "binding precedent" established in the second of three alternative holdings in the contract-interpretation case National Car Rental.

I discussed the near-frivolity of this argument here, on pages 14-17. To summarize, were it permissible for a federal judge to interpret the concept of "precedent" so over-generously as to find "binding precedent" in National Car Rental's a dictionary-definition case of non-binding obiter dicta, then that interpretation would also necessarily conclude that the "precedent" set in National Car Rental's alternative holding was overruled by the Supreme Court's subsequent alternative holding in New York Times Co. v. Tasini.

Consequently, the latest ruling in Thomas repeats the fatal error that eviscerated the Court's making-available-right analysis: again, the Court has taken a very weak legal argument and made it laughable by decreeing--not just that reasonable persons could believe it--but that no reasonable person could have any substantial doubt that the dictionary definition of obiter dicta in a case about the interpretation of a contract imposed a "binding precedent" upon district courts adjudicating infringement claims. If anyone on the other side of the making-available right debate wants to defend the Court's now-even-more-absurd account of the "binding precedent" established by the Eighth Circuit in National Car Rental, I invite them to do so.

Sadly, the Court's latest absurd decision raises some hard questions for the Thomas Plaintiffs. Were any possible avenue for appellate review to remain, it would seem unwise for the Plaintiffs to retry Thomas before a jury that will be guided by a Judge who has now made gratuitous public pronouncements about the Defendant's motives, culpability, and the amount of damages award needed to deter her--pronouncements that imply, repeatedly, that previous jurors who had disagreed with the Court's opinions on these matters were obviously unreasonable....

In such a situation, the Plaintiffs can consider the option of invoking the All Writs Act and petitioning the Eighth Circuit for an extraordinary writ. There are at least two ways to proceed.

One option involves filing a motion to disqualify Judge Davis for creating the appearance of partiality, and then--should that motion be denied--petitioning the Eighth Circuit for a writ of mandamus directing the Judge to disqualify himself. This is a recognized use for mandamus. Moreover, the Court's gratuitous public pronouncements about the merits of the Thomas case recorded in Section K, (discussed here at pp. 2, 4-7), do seem to justify such a motion. Nevertheless, a motion to disqualify should always be a last resort.

The other option would be to petition the Eighth Circuit for an extraordinary writ relating more directly towards the merits of the case. For example, a writ of mandamus could be sought to inform Judge Davis that "binding precedent" did not preclude him from confronting the substantive merits of the motion to certify. The Eighth Circuit even seems to have some older precedents that preserve the possibility of certiorari jurisdiction in appropriate cases.

While these are less well-established bases for seeking an extraordinary writ, they could be worth a try. After all, the Eighth Circuit might be sympathetic to claims that it is just plain absurd to hold that the dictionary-definition of obiter dicta that the Circuit once used to illustrate the legal principle underlying the second of three alternative holdings on the interpretation of a software-licensing contract inarguably binds district judges adjudicating copyright infringement claims to hold that the United States is negligently or maliciously violating the nine international agreements that have, since at least 1973, required the U.S. to provide a making-available right to owners of copyrights in sound recordings.

posted by Thomas Sydnor @ 4:24 PM | Enforcement & Remedies, Free Culture Movement, Internet: P2P, Search Engines..., Privacy and Security, Universities

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