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Verdict Reached In RIAA Trial
jemtallon writes "The jury in the previously mentioned Captiol v Thomas story has reached a verdict. They have found in favor of the plaintiffs, Capitol, and ordered that she pay a $222,000 fine for 24 cases of copyright infringement."
I wonder if she'll be allowed to pay the settlement like the recording industry did theirs. In unpopular CDs that cost pennies to make but apply to the fine at retail price.
"Common sense will be the death of us all"
Whereas in Soviet Russia, fiction is intellectual property. Oh wait...
(This post was written by a would-be novelist, but is 59,970 words too short to qualify as a novel.)
The amount awarded per song ($9250) is downright ridiculous
Not many people know this, but that's the price they originally wanted to charge per song on iTunes.
The theory of relativity doesn't work right in Arkansas.
Prosecution:
...her user name, IP address, Modem MAC address, pass-word-protected computer, and the songs in the shared folder matched her musical tastes.
...Thomas replaced the hard drive in her computer two weeks after an investigation. Defendant:Tried to get the RIAA president to testify, who has nothing to do with the facts of the case.
...There could have been a computer party at Thomas's home or someone could have been outside her window with a laptop.
...suggested that computer hacking or IP spoofing could as explanations. The RIAA had facts, and the defendant had excuses. I know everyone wants to defend the little guy, but please pick a better case than this one to represent the people. The only thing I see odd here is the fines. THAT is ridiculous.There is a case that challenges the constitutionality of such high fines. I believe our very own NewYorkCountryLaywer (912032) is counsel for the defendants.
One thing you point out is paramount. Since this was a civil case, the fine should be only enough to promote equity rather than be punitive in nature.
Another interesting thing is that, averaged out, this adds up to $9250 per infringement. At that price the defendant could have physically stolen about 600 copies of each work (assuming around $15 per work). So it pays to remember that the fines for physically stealing copyrighted works are much less than infringing on them.
Anyone who uses TOR for file sharing is either maliciously or negligently engaged in the destruction of the network. TOR cannot handle file-sharing loads. The most that TOR can handle is control communications (like tracker communications in BitTorrent). If you actually start passing data transmissions through it, you'll kill its usability.
You're better off using a P2P program that's designed to hide your activity than slapping TOR over one that isn't designed for it.
If it's for-profit but free, you're not the customer -- you're the product (e.g., the Slashdot Beta's "audience").
> "Don't do the CRIME if you can't pay the FINE !!"
Kevin Smith on Prince
... as soon as the judge backtracked this morning and ruled that "making available" was adequate evidence to demonstrate a violation of the copyright holder's rights. From Ars:
"Instruction no. 14 proved to be a sticking point, as Thomas' counsel Brian Toder told Ars tonight that the judge's proposed instruction indicated that the plaintiffs must show that an actual transfer took place in order for there to be a finding of infringement. "
Later, the judge reversed his opinion, at which point I knew this was over, but was at least still hopeful that the damages would be somewhat reasonable.
According to the coverage at Ars, it was pretty clear that the RIAA had found the right person; they had used this same account name for an email address that a witness had verified was hers. The only remaining question in my mind was how well the making available argument would hold up before a jury. Unfortunately, it appeared as though the defense didn't focus any attention on this critical part of the prosecution's argument (until the 11th hour when the judge was deciding what instructions to give the jury for deliberations). Had the defense been pounding the drum of "making available is not provable infringement" instead of "let me show you how fast you can rip a CD", then this jury (and perhaps even the judge with respect to the jury instructions) may have been compelled to decide differently.
In any event, it is what it is. The RIAA set their desired precedent, but for me there are still a couple of lingering questions:
1. Is this really a good thing for the RIAA? I mean, we've heard about the lawsuit threats against dead people, grandmas, and kids, but now there is an actual verdict in a jury trial that pins a $220K judgment against a single mother. I have this feeling that this case is going to make much greater waves in the main stream media then the no-go lawsuit threats (dismissed with/without prejudice) or the tens of thousands of settlement cases. Because of this I also think there is a huge potential for blowback on a large scale, not just in the geek circles.
2. Does the judge have any discretion to lower the damages? It seems as though he's given the defense every opportunity to succeed, from the "this courtroom is not your soap box" comments to the RIAA, to initially requiring evidence of a file transfer actually taking place in the jury instructions. If he does have discretion, I would be surprised if he didn't use it.
All in all, this is a sad situation. Single mother, probably with little to no idea what she was doing, targeted by the RIAA, then levied with enough fines to ruin her life. The RIAA, a lawsuit happy organization continuing to rob artists, consumers, and own our government, are having a champagne toast tonight thanks to their victory in court today. Enjoy your victory, and as far as "setting a precedent," you should be careful what you wish for.
She'll have no choice but to file bankruptcy and have this discharged. This is a clear case of the punishment not fitting the crime. Maybe her attorney will give her a break on the fee to file Chpt 7.
Perhaps a copyright lawyer will come by and put me in my place.
Okay.
In the 1976 Act the amounts were $250 - $10,000, and could be lowered to $100 or raised to $50,000. Congress amended this in 1988, making the new amounts $500 - $20,000, $250, and $100,000. Congress amended it again in 1999, making the new amounts $750 - $30,000, left the minimum possible floor at $250, and $150,000.
I'm thinking that the forces that got Congress to raise the statutory damages in 1999 were well aware of how cheaply copying could be done for. Likewise, the idea that not all copying was commercial and that individuals acting noncommercially could run afoul of copyright laws was well known at that time.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
Yes, Edgar Bronfman, The Warner Music CEO said he was certain his kids downloaded music. But don't worry, he gave them a stern lecture about the music they downloaded... so they won't do it again.
Ever ripped a CD? You might as well have.
The moral of the story? THE RIAA IS SCARED STUPID. She had 400 CDs at one point!!!!!!! They just sued the shit out of one of their best customers!
Fuck these people. Hey, I just 'stole' a CD. Yep, I got a perfect digital copy of the recording and the recording industry didn't get a DIME. Know what I did? I bought a USED CD! Roll up a hondo and snort that Sony.
So that's the moral of the story. BUY USED MUSIC. Hey, old vinyl is cheaper than iTunes and sounds better too. It's the best way to 'steal' from the music industry because it's 100% legal, and it robs them of a sale from a person WHO IS ACTUALLY WILLING TO PAY MONEY FOR THE MUSIC.
If you're a musician, record yourself, it's far easier than it ever was. Then sell your own stuff through iTunes or something if you want to get paid. You don't need these people unless you want them to pay for publicity or your recording (but they'll just take it out of your check anyways).
It sounds way better than mp3, it's cheaper, and best of all you'll be doing YOUR part to help kill the record industry!
considering the record industry believes that ripping a cd is "stealing" and there are few sources for drm-free downloads, they've really got us all in an ugly catch-22. i've bought music online, and i've been burned too many times with the issues of compatibility. i have an xbox 360 and an ipod. if i want to be able to play my music on all the devices i own, it's either got to be mp3s that i "stole" by ripping my music collection or .aacs that i broke the DMCA by decrypting. if you buy the record company's line that ripping is "stealing" i cannot listen to the music i want to on the devices i own.
i guess they're just trying as hard as hell to make sure i don't listen to new music (which they're doing anyways--all of it sucks!) and i don't spend any money beyond what i have already spent building my collection. i might by emi music because i can get that in a format that will play on both of my devices, but that leaves all the other riaa companies in the lurch.
regardless, a $222,000 verdict for 24 songs is ridiculous. i haven't listened to a cd in my life that was worth $20,000 a song.
Yo shmuck.. Read the details.. She owned 500 legal CDs. That's $9,000. Think the publicity this creates is going to encourage anyone to contribute any more money to these immoral bastards? Think the record company is going to see a dime of that $200k? This is like Bush saying he's a compasionate conservative, and wanting to give a strong message to all those would-do-harmers out there, then ineptly invading a country.
Consider what likely went on in this woman's mind. She was an avid fan of music. She has acquired music probably with no real issue with the market prices. She most likely bought both albums and singles - a perfect music-industry customer. Then a new medium arrived where you can community-build.. Share interests.. Share similar tastes in music.. Sure it's free, but if anything else, the medium is more attractive.. Less restrictive than portable physical medium.
As any good netizen, she wants to contribute.. So while she may very well have downloaded quite a bit.. She was more than happy to share what she had (considering the neglegable cost to her - just setup time).
Consider that she's probably spent her whole life making mix-tapes.. Copying a CD or VHS to family and friends. We've had 20 years of built up social 'morals' with respect to sharing with friends. All perfectly legal.
So now RIAA starts tries to define the rules of this new media. US Court enforced 'backup copy' protection is in uncharted territory. People aren't profiting on piracy, they're merely part of a social network. The term Piracy is a horrible bastardization.. Piracy is when you pilfer (often via death) the wares of other sea-goers that are helpless. You then sell the pirated goods (boot-leg) at various ports.. People come to know that if you want cheap 'knock offs' you go to a port and buy from the pirate and their minions. There's an obvious moral imperative when you buy such boot-leg, because you must know that someone probably died to provide these cheap goods to you.. So using the terms Piracy and Boot-legging are supposed to associate large amounts of guilt.
So later boot-legging was the audio-taping of concerts against the permission of the artists. This was really an arbitrary determination by artists and labels that is akin to no 3'rd party food in a Theater. No moral obligation, merely an attempted monopoly by the vendor. If they can do it fine.. But I strongly oppose federal laws that encourage this behaviour - such that a Movie theater could hand a citizen over to the police for eating cokes bought at home.. Or likewise bringing a tape-recorder to a concert.
Back to our lady. Does she see the various RIAA advertisements? Maybe, maybe not. Perhaps she's a perfectly naive and innocent girl. Maybe she knew full well that the RIAA was cracking down on Kazza, and she had the 'stick it to the evil empire' mentality.. Many rock-fans and alternative-fans were made to think this way through the very music that they're being sued for. Bitter Irony I would say. Most likely, however, she acted indifferently, much like the selection of our presidents are a matter of indifference to most Americans. The RIAA is slowly becoming irrelevant, and we are watching it's death-throws. US music is abominable compared to the rest of the world. The quality of work has continously degraded for the past century - thanks to the ability to amplify profits through brain-washing (repeated paid-for spots on radio/TV). Audiences develop a taste through repeated use.. And it's sad, but taste Americans are developing is mostly bland (with a few category exceptions). Singers have less and less attractive sound. Music is extremely repetative from one song to the next (if not already synthesized). Lyrics are a joke. The message is less and less condusive to society building or even renewing (even older angry Rap represented a contemporary cry for change).
This debate is endless. I don't expect to convince others that Patents and Copy-Right are evil capitalistic ventures of the old British Empire that unfortunately worked their way through the likes of Benjamin Franklin and others into the US.
-Michael
I'd rather believe these guys:
The condemnation of jury nullification is a relatively recent event in the nation's history. In the North around the time of the Civil War, juries often use nullification in order to protect runaway slaves, which were required by law to be returned to their so-called "owners." Now, though, we've gone from jurists encouraging nullification when needed, through active discouraging using nullification, through dismissing potential jurors who even know what nullification is, all the way to fellow jurors being encouraged to rat you out for dismissal if they suspect that you might be making decisions based on nullification.
Nullification at one time was thought of a person's last best defense against bad laws. This case is a perfect example of why we still need it, so that people can affect the outcome of such cases in a just and equitable manner, not merely in a way that lobbyists have paid politicians for.
Oh well, chalk it up to yet one more noble goal of our system that's gone down the drain. However, people need to know that in spite of anything the courts tell you, you do have the right of nullification. As a juror, you need to make decisions not only on the letter of the law, but the spirit of the law as well. As has already been pointed out, though, don't give any indication that you're smart to know that or you will be immediately dismissed.
You couldn't be more wrong.
...in a society committed to the rule of law
The U.S. is supposed to be a society committed to justice and the spirit of the law. The quote from U.S. vs Thomas makes it seem like the letter of the law is most important. It isn't. Or at least it shouldn't be.
That's the WHOLE POINT of trial by jury "of your peers". If the letter of the law was the only criteria for judging guilty vs. innocent, then it wouldn't matter at all who's peers sat in the jury box.
My "personal issues" are exactly what makes me a much better juror than some thoughtless Turing machine.
U.S. vs. Thomas is a travesty if you value trial by jury as envisioned by our founding fathers.
Give the FIJA site a thorough reading. It ought to be mandatory grade-school curriculum.
Operator, give me the number for 911!
That's a crock.
"The jury has the right to judge both the law as well as the fact in controversy." - Chief Justice John Jay
"It's not only ....(the juror's) right, but his duty, in that case, to find the verdict according to his own best understanding, judgement, and conscience, though in direct opposition to the direction of the court." - John Adams
"The judge cannot direct a verdict it is true, and the jury has the power to bring in a verdict in the teeth of both law and facts." - Oliver Wendell Holmes
"In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction." -- Constitution of the State of Maryland
At the time of the framing of the Constitution, it was well understood that a jury meant a panel of persons empowered to render judgment on both the facts and the law. The ignorance - or straight-out power grabbing - of later judges cannot remove this right.
(I also note that despite the erroneous statement you quote, the court did find the dismissing the juror was an error and remanded the case for new trial.)
There is a large difference between "having personal issues" that make one partial to a person involved in the case, and judging the law and finding it wanting.
Tom Swiss | the infamous tms | my blog
You cannot wash away blood with blood
She will go bankrupt and tell the RIAA to eat a dick, but they already knew that. They just want to get it in the paper, "Jury awards 222,000 to RIAA from single mother who shared mp3s online." That's all they're looking for.
They have such as system in place already. Its called "Fergie".
To boldly use to and too two times and get it right too! They're not gonna believe their eyes when they see it there!
A verdict of $222,000.00, for infringement of 24 song files worth a total of $23.76?
In a case where there was zero evidence of the defendant having transferred any of those files?.
It is one of the most irrational things I have ever seen in my life in the law.
If the Judge doesn't set aside the verdict sua sponte, I expect there to be motion practice to set aside the verdict, based on its obvious unconstitutionality and numerous other reasons, and if that fails I expect there to be a successful appeal.
It is an outrage, and I hope it is a wakeup call to the world that we all need to start supporting the defendants in these cases, and the attorneys who are sacrificing so much to represent them. And the support cannot be with words, it must be with check books. And it cannot be next year, it must be now.
All the business people who make a living from the vibrancy, democracy, and freedom of expression which is the internet, need to get behind the RIAA's victims; if they do not, the world in which they hope to thrive and prosper will disappear rapidly.
The RIAA ghouls smelled blood in Duluth, and I guess they were right.
But it isn't over.
Ray Beckerman +5 Insightful
I mean who else could possibly get hurt buy killing off the media industries?
You seem to be missing the joke. Buying used CDs will not actually kill the record industry, any more than piracy will. But the record industry should and will eventually have to change, and it will ultimately benefit both consumers and musicians much more- but at the big boys' expense. This is because their primary role, putting physical discs on shelves, is no longer necessary. That's just how technology works, it changes things- but they want to blame something they think they have (some) control over.
When everyone has a huge hi-def screen connected to a ultra-high bandwidth connection, television companies and movie chains will no longer control distribution of content either. Everyone from Joe Schmoe to NBC will have their own spot on the dial. Movie theaters will have to get into the 21st century in a big hurry or they will be a thing of the past too.
The main thing that's happening is not piracy, that's a consequence of the technology but not the fundamental shift that these people most fear. They need to maintain their control of the distribution system far more than they need to contain piracy. Piracy can't get much worse in music and people are still making money. Piracy will always be a psuedo tax on any information industry but the real shift will be who makes the money.
You bash indie movies, music etc, but it's just a consequenece of lowering of the barriers to entry. The big boys can still play, and will still make whatever you're willing to pay for- they will just have much more competition. (That being said, big budget popcorn movies are definitely going to be an endangered species- mostly because video games will almost completely kill them. People will have to go back to telling stories.)
You complain, but you will love it. You're disrespecting indie music and movies because you have a preconceived view of them- you won't once more people like you start doing that stuff, and once technology makes creativity king once again. While high end equipment gets cheaper, better and more user friendly, people's ears and eyes will notice the high end less and less. When industries begin to mature, that's what happens.
So, now remind me... what part of musicians keeping more of their money and their rights is going to discourage them from producing good music again?
Actually, it will be automatically discharged, unless RIAA contests it in adversarial proceeding. If they wanted to be real pricks they could probably drag it out for some time. This is nothing new, Scientology has done it to a bunch of their critics.
That said, bankruptcy judges typically take a rather dim view of creditors that try to do this -- the whole point to bankruptcy is to give the honest person a fresh start (there aren't supposed to be debtor's prisons in the US). Besides which, the whole point of the RIAA suits isn't to collect money. It's to get the headline of "Jury awards $220,000 to RIAA for file sharing". There is exactly zero chance that they will ever collect any sizable sum of this money, bankruptcy or not. Take a look at OJ Simpson. How long has he dodged that judgment?
Filing for bankruptcy has become more difficultThat's a myth. It's become more expensive for those filers that retain an attorney, because of the new requirements imposed under BAPCPA. There's also the added cost of the required credit courses and consoling, but this is typically not a huge expense.
and the consequences more far-reachingAnother myth. The consequences of filing BK didn't change at all under the new laws. The only 'consequence' that changed is that you have to wait 8 years before you can file again, vs 6 years under the old laws. The biggest consequence of filing bankruptcy is that it goes on your credit report for 10 years. It's a myth that you won't be able to obtain credit after a BK. I'm two years from my Ch 7 and I have a car loan at 5.5% and $5,900 worth of credit limits. I could probably obtain more if I wanted to (why bother?)
It is not an easy way out.It is what it always has been -- a last ditch safety net for those with no hope of ever repaying their debts. Unless this woman makes a huge amount of income and can realistically pay this debt back in the next five years, this sounds like the perfect reason to file bankruptcy to me. With few exceptions (student loans, taxes, child support) we don't allow debtors prisons/debt slavery in the United States.
And yes, I've been through all of this. I filed Chapter 7 under the old laws. I still maintain a relationship with the attorney that did my case. I wound up becoming his computer consultant. He would be the first to tell you that not too much changed under the new laws. 95% of his clients are so deeply in debt that they qualify for a Ch 7 even after the "means test" imposed by BAPCPA. The image of scores of deadbeat debtors with the money to repay their debts abusing the bankruptcy system was nothing more then propaganda put out by the credit industry.
I want peace on earth and goodwill toward man.
We are the United States Government! We don't do that sort of thing.
Somebody else in this discussion had a valid point. You are sitting on the jury for Rosa Parks. Technically she broke the law. Do you find her guilty? Go back further. You are sitting on the jury for a runaway slave. Technically he also broke the law. What if you were on the jury for the Scopes Trial?
Hmm, jury nullification is starting to sound better now, isn't it?
There is a good reason why the court system tosses our jurors who know about and are likely to practice jury nullification- because they're loose cannons that pervert the mechanisms of the courts.There is also a good reason why our constitution requires a trial by a jury of your peers. If the law you are accused of breaking is fundamentally unjust then do you really deserve to be punished for breaking it? Are you telling me that if you were sitting on the jury for any of the above examples you'd allow a conviction to happen? Or how about some modern examples? Would you send a terminally ill person with cancer to prison for possessing medical marijuana?
Short of armed insurrection, the jury system is our last line of defense against Government abuses of power. No wonder the courts and "good lawyers" (to quote you) hate it.
I want peace on earth and goodwill toward man.
We are the United States Government! We don't do that sort of thing.