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Jammie Appeals, Citing "Excessive" Damages
Peerless writes "Capitol v. Thomas defendant Jammie Thomas has officially appealed the RIAA's $222,000 copyright infringement award. She is seeking a retrial to determine the RIAA's actual damages, arguing that the jury's award was 'unconstitutionally excessive': 'Thomas would like to see the record companies forced to prove their actual damages due to downloading, a figure that Sony-BMG litigation head Jennifer Pariser testified that her company "had not stopped to calculate." In her motion, Thomas argues that the labels are contending that their actual damages are in the neighborhood of $20. Barring a new trial over the issue of damages, Thomas would like to see the reward knocked down three significant digits — from $222,000 to $151.20.'"
her suit was almost frivolous, in that she was in no way innocent, she did what she was accused of, and she knew it. Had she got away with it, it would have been a bad thing for the courts.
The problem is the RIAA wanted her to pay their fine originally, a 'legal' fine imposed without recourse to legal help for the victim. That was also wrong. So she put herself in a position where she was at risk from an unsuitable scale of punishments, because the RIAA have avoided having file sharing properly tested in court, so the punishment scale is way too high.
In a reasonable world, file sharing would attract a parking ticket type fine, and too many would mean your ISP would cut you off for a month or so, or for good if your stupid and don't pay your fines.
1. Fight the RIAA, go for the jury trial
::cough cough:: is against our Constitution in America.
2. Hold your ace close and play the first round to lose
3. ???
4. Less PROFIT for the RIAA!
And now we know that #3 is:
Appeal $220k reward on Constitutional grounds! BRILLIANT!
Seriously! There is at least one juror who has already opened his mouth to the press and said something to the effect of "the punishment is so high because we want to send a message that this is a bad thing to do... mmmmKay..." Which...
Using openSUSE instead of Windows since 9th of October, 2007 and liking it.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
"A great democracy must be progressive or it will soon cease to be a great democracy." --Theodore Roosevelt
I don't agree that it wasn't a case worth fighting. They had no evidence that she committed any copyright infringement. Only that her computer, probably at her direction 'made files available' for copyright infringement. The judge changed his mind on the basis of an argument misrepresenting another court case, to allow making available to also be classified as copyright infringement in the jury instructions. Without that jury instruction, it's entirely possible she would have been found not liable, as the music company didn't even look for infringement, just for the possibility of it.
In that light, I expect all photocopiers to now be removed from US libraries, as they are also making available books and a means to copy them.
However, I do agree that if someone were to be found liable for copyright infringement for non-profit and personal use, the fine should represent actual losses plus a bit, rather than a hundred times them as a deterrence. The scale should distinguish between commercial large scale infringement for profit, and small scale personal infringement.
To draw a a parallel with the drug laws in my country, small possession for personal use of illegal drugs is treated a lot less harshly than running a drug distribution business. A punishment, increasing for repeat offenders; but not a life-destroying punishment for a first, small personal offence.
Remember kids, it's all fun and games until someone commits wholesale galactic genocide.
All I'm saying is, it's not entirely clear in US law that an actual copy must have been made (the "do" part), it may be enough it was put up for distribution (the "authorize" part). You certainly see arguments along those lines.
Live today, because you never know what tomorrow brings
In the real world you have been caught uploading files to 10 million of your closest friends on the P2P nets. Music that sells at $1 a track through iTunes. The $20 video, the $50 video game.
Broadband penetration in the U.S. is about 40%. The service costs $20 to $50 a month. The file sharer on any scale will have a mid-line system or better - with hundreds or thousands of gigabytes of storage.
To the civil jury you don't look like a senior on a starvation budget. You look like a petty thief and a liar, a white collar criminal who sees his free media fix as a middle class entitlement.
The civil jury isn't a traffic court, it doesn't issue fines payable to the state. That is not its job.
The civil jury compensates the injured party. It awards punitive damages when the public interest demands it.
It can be very comfortable awarding damages based on a rigorous statutory formula that treats the uploader as an unlicensed wholesaler whose total distribution has no known or knowable limits.