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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.'"
151.20 actually has more significant digits than 222,000. (Perhaps "orders of magnitude" was the term peerless wanted?)
But who cares, when you're coming up with a cutesy way of saying something, right? (Make sure to use the terms "north of" and "south of" when comparing numerical values.)
Apology to Ubuntu forum.
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."
If they include legal fees, and what they spend tracking down file sharers, it just might be more than she has to pay.
Libertarian Leaning Political Discussion Forum.
The US constitution grants the vast majority of American's rights and freedoms, so when these are attacked the constitution is always cited. There are sections in there that grant all rights not mentioned (or thought of at the time of writing) to the people and the states -- not the federal government. So even if a violation is not specifically mentioned in the constitution, the constitution can still be used as a defense (ambiguous to be sure, but it works as a potential argument when the government tries to assert an authority it shouldn't have).
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.
Agreed. At the absolute most the RIAA should have to prove how many people actually downloaded from her and then multiply that with the retail cost of the music. That's an absolute most (a better way would be to prove the people who downloaded from her would otherwise buy the actual song if they couldn't illegally download it. Given the amount of digital piracy that goes on its quite impossible for most to buy all of what they illegally pirate).
Using openSUSE instead of Windows since 9th of October, 2007 and liking it.
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.
Using openSUSE instead of Windows since 9th of October, 2007 and liking it.
The Constitution doesn't "grant" us our rights and freedoms, it legally protects them. This is not a minor philosophical point.
SIERRA TANGO FOXTROT UNIFORM
Money for nothing, pix for free
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
Actually, the correct Latin is "vira" (it's one of those odd neuter words that look masculine at first glance) but as stated by another responder, the correct English is "viruses."
By reading this you acknowledge that you have read it.
Imagine you are in the dark ages and you are summoned for not having paid tithe to the local church.
The church complains that not only they are entitled to it by divine right, but also that it's not fair you benefit from the innumerable and priceless services they provide to the community (such as hunting for heretics) without contributing what they ask for.
Knowing that the penalty may range from outrageous fines to beheading even (and especially) when confessing, what would you say when asked whether you did in fact pay your tithe?
Now replace "dark ages" with "ip dark ages".
Your step 2 is unreasonable. Causing a miniscule amount of harm is still a miniscule amount of harm, even if, say, the police choose seldom to investigate. (perhaps /BECAUSE/ the harm done is miniscule)
If you steal a single apple from your neighbour, it's not reasonable to argue that the risk of being convicted after having stolen a single apple from a neighbour is 1:1000000, so despite the apple being worth $0.20, you should be fined $200000. It's an unconstitutional excess to put someone in debt for life for the crime of stealing a single apple.
A different problem is that when a huge part of the population is guilty of breaking a certain law, but the risk of being investigated are very low, and punishment very high, this has the effect of giving whomever decides who to investigate the power to essentially punish people at will.
Politicians should make law. Police should investigate. Courts should convict. (or not) That's the way it's supposed to work. With filesharing it works more similar to this:
Politicians make a law, that a huge part of the population breaks regularily.
Police essentially never investigates anyone for breaking it.
Private companies are free to, according to their own criteria, decide who to investigate.
Courts tend to convict (not surprising, since most people are guilty)
This puts a -HUGE- amount of power in the hands of those private companies. I'd guess in a average group of college-students, that company is, currently, free to bankrupt for life anyone they chose to. Well, not -EVERYONE- but close enough. (certainly 90%)
But then again, if you just want to sit around and make-up stuff to believe instead of actually reading up on some of all the research that's being done, be my guest. Hey, why don't you start a church?
Money for nothing, pix for free
Even if someone is as guilty as sin then they deserve justice and a "punishment" that is proportionate to the "crime" ( whether or not "crime", "punishment" or "guilty" are appropriate words in a copyright case, charging a private individual a six-figure sum sounds like a "punishment" to me). "Waive your right to a fair trial and pay us $2000 now, or enjoy your right to a trial and risk us taking your house" is not justice, it is a license to extort.
If a civil court feels that a defendant has lied, it should bring a criminal charge of perjury and let a criminal court decide the punishment. It should not be the place of a civil court to punish someone, without trial, for a criminal offence ramping up the so-called "damages".
If a civil court feels that a defendant has wasted their time and the plaintiff's money by fighting bringing a meritless case, they should add to the reasonable and audit-able damages, some or all of the reasonable and audit-able costs of the case (...bearing in mind that the defendant already has their own costs and that a large, corporate plaintiff may have lawyers on staff, and that its not unreasonable for the main beneficiaries of artificial laws like copyright to bear some of the cost of enforcement ). They should not leave it to a jury to pull some figure out of a hat and call it "damages".
In a survey of 100 programmers, 111111 thought that duck-typing was a good idea.
I'm sorry, perhaps you missed the part where I quoted statistics from your own study that seem to oppose your argument? As I said, I didn't have time to read the entire thing in detail, but there were several other sections that were not nearly as one-sided in their view as you're making out, either.
But since you don't seem to read your own links, here's another one for you from the summary you cited this time:
An explosion in research (mainly dependent on access to proprietary data) as a result of public interest in these issues means that we are now in a position to provide answers with some degree of certainty. The basic result is that online illegal file-sharing probably has some negative impact on traditional sales but the effect is appears to be quite small. The size of this effect is debated, and ranges from 0 to 100% of the sales decline in recent years, but a figure of between 0 and 30% would be a reasonable consensus value (i.e. that file-sharing accounted for 0-30% of the decline in sales not a 0-30% decline in sales). At the same time there is still substantial disagreement in the literature with the most impressive paper to date (Oberholzer and Strumpf 2005) estimating no impact from file-sharing.
I've even emphasized the important parts for the hard-of-reading. Clue: this clearly states that on the basis of all the studies to date, file-sharing is not an overall positive influence on sales. The only question is how much of a negative impact it has, and figures quoted in the literature cited work out to millions of dollars per week in some cases. And this is from a literature survey with a slight bias in its presentation!
If you disagree, post your argument. (-1, Overrated) isn't your personal censorship tool for views you don't like.
it's a motion to set aside the verdict, which is quite different than an appeal.
An appeal is to a higher court.
This is a motion directed toward the trial court.
Ray Beckerman +5 Insightful
Yes, the article summary used the term incorrectly, but no, 151.20 does not have more significant digits than 222,000 in this case. Both are exact numbers, are not rounded in any way, and so can be thought to have an inifinite number of significant digits.
"National Security is the chief cause of national insecurity." - Celine's First Law
Photoshop is a good example.
This product is so expensive that I am willing to bet that 90% of copies are unlicensed.
Now, if I were a professional photographer, or graphic artist, I wouldn't hesitate for a moment to purchase a copy of Photoshop. (In fact, when I had access to a reasonably priced version, I did purchase it)
Ignoring music for a moment. This is a significant problem in the software industry. They have set the price so high that I'm certain that they expect, and potentially even encourage limited piracy to increase their market saturation.
In cases like that, can they even argue that there is a monetary loss? I suppose that is why set penalties are in place.
Out of modpoints but really liked a post? 1BDkF6TtmmeZ3yqXbz9yhdYVqRYnwFoXDj
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.
Your point of view, however, the idea that the only rights we have are those granted to us by the constitution, has become much more common, and it's a big part of why we're in the legal and political mess that we are. The question is no longer "what is the government allowed to do," but "what are the people allowed to do." Our freedom is limited, not the freedom of the government.
This is the very reason some of the founders resisted adding the Bill of Rights to the constitution; they feared that it would become an enumerated list of all of our rights. Indeed, it has; as far as I know, not a single case in all of American legal history has turned on the 9th amendment.
Thomas Galvin
The US constitution grants the vast majority of American's rights and freedoms
No, the Constitution affirms a number of rights and freedoms which all people innately have, and defines bounds on the extent to which government may restrict those rights and freedoms.
In this particular case, the most applicable passage from the Constitution would likely be Amendment XIII: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."
The law, as written, allows copyright holders to collect statutory fines from infringers far greater than actual damages. But if the appeals court finds that such statutory fines can meet the Constitutional standard of "excessive", then the law providing for such fines will be found in violation of the Constitution, and overturned.