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DoJ Sides With RIAA On Damages
Alberto G writes "As Jammie Thomas appeals the $222,000 copyright infringement verdict against her, the Department of Justice has weighed in on a central facet of her appeal: whether the $9,250-per-song damages were unconstitutionally excessive and violated the Due Process Clause of the Constitution. The DoJ says that there's nothing wrong with the figure the jury arrived at: '[G]iven the findings of copyright infringement in this case, the damages awarded under the Copyright Act's statutory damages provision did not violate the Due Process Clause; they were not "so severe and oppressive as to be wholly disproportioned to the offense or obviously unreasonable."' The DoJ also appears to buy into the RIAA's argument that making a file available on a P2P network constitutes copyright infringement. 'It's also impossible for the true damages to be calculated, according to the brief, because it's unknown how many other users accessed the files in the KaZaA share in question and committed further acts of copyright infringement.'"
That's not the DOJ's decision to make.
the American legal system, the best justice money can buy... stays bought...
Donald 'Duck' Dunn: We had a band powerful enough to turn goat piss into gasoline.
She was obviously and unquestionably guilty and she had a slashbot's arrogance to go to court instead of paying a few grand.
Oh, right, because this is the same Department of Justice that doesn't see anything wrong with waterboarding, transporting people to secret overseas prisons, etc. It's the same DOJ that kowtowed to Microsoft pretty much the same day that President Bush swore his first oath of office.
!#@%*)anks for hanging up the phone, dear.
The America's government is corrup from the lobbyists who bribe politicians all the way up to the Congress and President who accept bribes every day.
A country which is run by bribes and corruption is always going to screw the common man to benefit the people who can afford to bribe the politicians.
This is what the RIAA's bribes paid for.
Maybe it wasn't that good an idea to appeal. It was pretty obvious to me that it would end like this. It just strenghtened the RIAA. However, not appealing could be interpreted as an acknowledgment from JT and the lawyers that the RIAA was right as well... This whole RIAA thing is very unfair in general, and the fact that the government not only allows it but even encourages makes it still more miserable.
'It's also impossible for the true damages to be calculated, according to the brief, because it's unknown how many other users accessed the files in the KaZaA share in question and committed further acts of copyright infringement.'"
Given that the fair market value of a song has been established at $.99 it sure seems like the DoJ is making a directly contradictory statement. They are saying that even though it is impossible for one to know how many accesses there were it's okay to go ahead and assume that number was over nine thousand. Didn't know the DoJ should be out there supporting assumptions... oh well.
--- I do not moderate.
Since it's unkown how many other users accessed the files, the possibility that the number is zero is as possible as any other number.
If you cannot prove HOW many accessed the file, you cannot prove ANY accessed the file. Yet simply making available is a violation anyway.
The award is ludicrous.
big problem. Forget that, the US is obviously bleeding dry financially from the ungrateful copyright infringers who can't even be considerate enough to log who downloaded files from their computer. No wonder congress won't fund the war in Iraq anymore, this is obviously an imminent danger to all of the world's economies. (end sarcasm) So each song that might have been downloaded has obviously been downloaded 9250 times? I wonder how much it would cost to hire hackers to find kazaa software installed on **AA servers? Perhaps they might find some seditious reading material to help us in the US all decide who to vote for in the coming presidential election. The MPAA's ISP was just served DMCA takedown notice because of their University Toolkit being in violation of the GPL http://www.boingboing.net/2007/12/03/mpaas-university-wir.html I seriously wonder what else can be found to be wrong with the **AA's internet infrastructure.
Support NYCountryLawyer RIAA vs People
If you RTFA, you'll find that the DOJ is siding with the RIAA because the defendant agreed to the terms put forth to the jury. She acknowledged and went along with the instructions, which included precisely how much she could be liable for if found guilty. In so doing she effectively waived her right to make this claim.
I'm one of the last people who would take something the DOJ says seriously these days, but their reasoning on this issue is sound.
More on this at Ars Technica.
Now, if only the artists were making a cent of that $9,250-per-song.... Guess the RIAA somehow convinced the DoJ that someone should make up for the lack of profit the new Simpson sister album is experiencing.
Laughter is the Spackle of the Soul.
..the Department of JUSTICE(emphasized for extra scariness)weighed in! Might as well stop the appeal and just pay up those fines when a government agency(which is surely free from media corporation corruption) weighs in. Hell, why doesn't Homeland Security and the FCC weigh in too? That would make this an open and shut case in the court system. President Bush, want to weigh in too?
"hehe, I love tacos."
This is the same DoJ that claimed that George Washington and Abraham Lincoln made wide use of electronic surveillance against citizens...
... I'd set up a honeypot limewire/kazaa/torrent/whatever and firewall access such that only the RIAA/MPAA 7 their tools can access it. And then populate the shared directories with files like:
BRITNEY_SPEARS_OOPS.MP3
METALICA_ONE.MP3
etc.
Of course the MP3's would just be actual MP3 audio of my kids singing some random song.
While I don't actually WANT to be sued, I would like to see them explain to a judge why they think they own the rights to my kids singing "The RIAA is a bunch of floppity-floofy heads!".
If only I wasn't so lazy...
Save the Music; Save the World at http://www.TuneTriever.com (Our latest Android game)
you would not be fined $222,000 if you stole a few CDs from Walmart.
Wait, so if I share a song with fifty people and they each share with fifty people are we all responsible for 2550 shares each?
So even though only 2551 people heard the song we owe, in total, 6.5m times the value of the song?
From the article summary: "...because it's unknown how many other users accessed the files in the KaZaA share in question and committed further acts of copyright infringement."
Sure, people can debate all day long about how much she should or shouldn't be held liable for given her infringing activities. But how the hell can you use other people's possible, but admittedly unverified activities which might have resulted from something you did to exact additional punishment on the "offender?"
Let's say I'm not paying attention and run over someone's cat. Am I now liable for the possible, but unverifiable, increase in the rodent population in my neighborhood, and consequently liable for potential damages in hospital bills for a contagious disease which might be spread by some lucky rat?
Someone's being prosecuted for stuff that may or may not have happened, and may or may not ever happen, but nonetheless is regarded as damaging in the eyes of the courts. Wow.
512 MB RAM, 20 GB disk, 200 GB transfer, five datacenters. $19.95/month.
So they are punishing her for the "further infringements" others MAY have done after the got the songs from her computer as well ?? This doesnt make any sense @ all to me ..
Case closed.
echo 'cat sig | sh' > sig
It is impossible to have an exact figure, but an accurate estimate, at least an order of magnitude, is entirely feasible.
They say they lose billions a year due to piracy. Let's say they are right and are losing 10 billions, not an unrealistic figure, but still on the high side.
There are over 1 million people in America sharing music. We all know it's a lot more than that, but let's be conservative.
That would leave an average of $10 000 lost due to each file sharer, and that is an the upper limit. Sharing less than 30 songs is probably under the average if there are indeed only 1 million file sharers, so there is absolutely no way $220 000 can be a correct punishment in this case.
What was so tough about this?
Two things.
1) It seems to me that, given the fact that statutory damages in copyright infringement claims, are allowed in place of actual damages in instances in which actual damages cannot actually be calculated--the statutory damages are an attempt by Congress to estimate the likely actual damages caused to the plaintiff. In this case, that amount seems to be on the side of outragiously overestimating actual damages.
2) The DOJ argues that a damage of the high award is mitigated by the fact that no one knows how many other people accessed the songs made available by the defendant. This bothers me because it basically states that it is ok to collect damages that were not properly proven (which is obviously not ok).
The DMCA was written by (predominately) Democratic lobbyists, advanced by Fritz "Disney" Hollings (D), and signed into law by President Clinton.
The Republicans may have been the majority party at the time, but at least own up and take some of the responsibility. This is bipartisan hatred-of-consumers.
Science advances one funeral at a time- Max Planck
The DoJ cost way too much money to tax payers, it's time to outsource it to a region where stupidity costs much less.
The right question is not how many times the song was downloaded but how much.
How much the song can be downloaded and therefore uploaded by you is limited by your upload bandwidth, which is lower than the download speed for DSL connections.
Also many filesharing programs show the upload/download ratio statistics.
Also, download speeds and therefore upload speeds reciprocally usually suck as far as I know it.
Hey don't blame me, IANAB
Within a P2P network, the total amount of uploading and downloading is the same. For every packet downloaded by someone, that packet was uploaded by someone. Therefore, the average user found to be sharing songs should be liable for two copies of that song: the copy they downloaded, and the copy they (probably) uploaded. Unless it can be shown that they did more than an average amount of uploading, this is the most reasonable assumption to be made.
The defendant was convicted for 24 songs. If we count each song as two infractions, this would be like stealing 4 CDs and giving 2 of those away. (Except that stealing the CDs would be worse, because it would be both retail theft AND copyright infringement.) What's the penalty for stealing 4 CDs? IANAL, but I'm pretty sure it's less than 1% of the penalty she received.
Any rational person would have to call this penalty absurd, unless they had ulterior motives to pretend otherwise.
(See also my post on why the RIAA thinks they are owed 83 trillion dollars.)
...says the anonymous coward...
Don't tell me to get a life. I'm a gamer; I have LOTS of lives!
That sounds like the person who made the first copy available should allso suffer for all the wrong-doings of whomever downloaded the copy (I sincerely doubt to the legality of that), while the RIAA is allowed to extract punishment (read: a lot of money) from them too !
So, while the RIAA demands a lot of dough with the reasoning that a single copy is (no doubt at all) the top of a destribution pyramid, a distribution they want to be re-embursed for, it has no qualms to use the same reasoning against whomever in that pyramid made a copy and allso distributes it.
That sums up (pun intended) to the RIAA demanding multiple payments for the same product.
The Law can be harsh, but a Law accepting that two people can be convicted for a "crime" for which one of them has allready payed is no Law at all, but a farce. But than again, Law and Right are not the same
Whoa. What does that have to do with anything? Do these damages preempt later damage claims?
"Believe me!" -- Donald Trump
Imagine someone shares a DRM-free song from Apple iTunes by posting it deliberately on a small file sharing network. Someone in that network turns around and "shares" it with millions. Then the RIAA says, "Okay, you want us to count all of the infringement? We subpoenaed some network and found that the one particular copy of the song has been downloaded 1 million times." [Cue Austin Powers little finger.] At .99 per download, that $990,000 in damages for that one song. And thanks to the fact that Apple listened to the demands for no DRM, we can now trace that one copy of the song back to the rightful owner, the original infringer. Here's a bill for $990,000. We won't bother with just asking for $9250 for that song.
:-)
Now, I realize that many of the million people wouldn't have paid 99 cents for the song in the first place. I realize that the band probably got some publicity. But it sure sounds to me like $990,000 is as fair a number as we can ever come up with. So maybe these statutory guesstimates aren't so bad after all. I've seen file "sharing" networks. I've seen the number of songs sloshing around college campuses. The more I think about it, the more I realize that $150,000 isn't tooo outrageous.
The so-called copyfighters should be careful what they wish for. If the RIAA is forced to actually count the downloads because some pedantic fool is able to successfully argue that "making available" isn't really infringement, then they're going to do it. And the numbers could be even higher and more damning. Computers can log a huge amount of data and 64 bit machines can count pretty high.
At the risk of being stoned here I would like to say I agree with that argument.
The amount presented per song as damages are not just "to buy that song" as some have argued here, but the equivalent of buying the right to distribute that song. When you purchase an album it does not give you the right to give it out to people, it just gives you the right to listen to it. Its also not unconceivable that the record companies lost that much money from her actions either, especially if she was one of the first to make it available for download.
The argument that making something available on a P2P network constitutes copyright infringement is quite logical. Imagine you were on a street corner giving out illegally burned cds, and the police come and arrest you. Do you think they would buy the argument that you haven't actually given out yet? Or that you were blindfolded so you don't know if you have given one out? Of course not. You could make the argument that she was unaware that they were available for download, but ignorance has rarely been a good argument to make in court (except for politicians).
Control is an illusion, order our comforting lie. From chaos, through chaos, into chaos we fly
I am very anti RIAA/MPAA, but this woman blew her credibility by LYING and destroying evidence.
The jury handed out the huge settlement in the RIAA's favor for this very reason.
She could have fought the RIAA and won if she had chosen to be honest about her actions.
She is no hero or victim. Instead she is an IDIOT.
We need to fight the RIAA/MPAA with the TRUTH to win.
That is technically incorrect. The lowest form of humor comes from the sounds and odors emitted from the typical human anus.
Come on man, everybody knows that. It's the one thing on this earth that you will find amusing on some level for your entire life.
When you were 2 you laughed when you farted. When you are 92 and sitting in a wheel chair in a nursing home you'll laugh at the old guy next to you who can't get away from your ancient mummy farts.
Appended to the end of comments you post. 120 chars.
Its not the size of your UID, its how you use it.
Remember kids, winners don't do drugs.
Control is an illusion, order our comforting lie. From chaos, through chaos, into chaos we fly
Fair enough.
How about a roadside traffic stop where the nice copper asks if he can search your car. You got nuttin' to hide right?
You just waived a right if you said yes.
Maybe I'm way off base here, but why aren't any further acts of copyright infringement the sole responsibility of those who commit that infringement?
Otherwise, it would seem to me that an affirmative defense would be that the RIAA has already recovered damages for your infringement because they already prosecuted your source.
Why should the RIAA recieve compensation from me for infringement that may or may not have been perpetrated by someone who is not me?
And what I said was that the Eighth Amendment may constitute a right you cannot waive. While that right cannot be stripped, it may also be a right you cannot waive, as in you cannot agree to a public dissection (drawing) if the DA wants to pursue that option. You cannot waive your right to be shielded from cruel and unusual punishment.
However, the same court said in Lockyer v. Andrade that life in prison for shoplifting $150 worth of video tapes was not excessive, so I doubt they'll have a problem with the constitutionality of the judgment.
If the owner of a record store left it unattended while going to the bathroom, he should be liable for ever possible for each person who could have come in and duplicated all the records (using a super secret instant duplicator) while he was taking a pee.
Since she destroyed evidence (log files) by having her hard drive replaced, she shouldn't get the benefit of the doubt about how many songs she uploaded
That should be
Remind me to sue for obscene amounts of money when my next photo gets 'borrowed'.
I don't get it either. If Jammie DLd those materials, just charge Jammie what they would have made on those DLs. It looks like they're going after all the sharing that took place through Jammie, then thy should try and go after all the DLs beyond her for actual damages. Was this a jury of people who had never heard of any of the backstory to all this? RIAA says burn her. Jury says burn her. DOJ says burn her. The rest of the world says hold on. It's like OJ's trial. They managed to find the only 13 people in the US who didn't think this guy was guilty as hell and got them in the same jury box.
"Win treats sysadmins better than users. Mac treats users better than sysadmins. Linux treats everyone like sysadmins."
In terms of excessive punishments, California sentenced a man to life in prison for stealing a handful of DVDs from a store. See Lockyer v. Andrade, life in prison for stealing $150 worth of DVDs was held by the Supreme Court to not be excessive.
I don't think the RIAA agree to that...
America has almost no exports.
Most of us (Americans) live at the end of a very long supply chain. We import most of our food, clothing, raw materials, etc...we even import the oil with which we power the vehicles we use for importing. We are very dependent on the rest of the world.
How do we pay for all this? We export our culture. That's it. We do that in digital form.
If the rest of the world refused to respect our concepts of digital information ownership, our exports would buy us a whole lot of nothing. The economic consequences of this would be very devastating.
So, it is in the selfish interest of all Americans that copyright law be accepted and strictly enforced across the globe. Like it or not, we need it.
Of course....perhaps the "right" solution would be for us to treat digital data in a manner that suits the technological landscape (meaning, redesign copyright law to have a very high tolerance for private duplication and distribution), and then for America to use all that latent entrepreneurial talent to come up with new exports and new ways of adding value to the old exports. While we are at it we could maybe start moving some of our production back on-shore and reduce our dependence on other countries (and maybe, just maybe, build some new exports for ourselves that way).
Unfortunately, doing that would cost a lot of rich people a lot of money. It *will not* happen until there is no other way. So...brace yourselves...things are going to get worse before they get better.
$9000+ per song is nonsense, the music industry would do far better if they took a more generous stance in these matters
If you mod me down, I will become more powerful than you can imagine....
Many people here are trying to equate her punishment to the actual damages she may have caused. You can't have a functioning society with that mentality. If you were fined actual damages when you broke the law, then everyone would try to shoplift what they were going to buy anyway. If they don't get caught, they get the stuff for free. If they get caught, they pay what they would anyway.
There has to be a lot more negative for getting caught breaking the law than the damage created. That ensures people will be discouraged from breaking the law. If you don't like the law, work to have it changed.
Ninjas don't carry tic tacs
Its fairly common for juries to award an estimate of possible damages when actual losses are disputed. In this case the jury obviously thought there was some damage done to the copyright owners.
Control is an illusion, order our comforting lie. From chaos, through chaos, into chaos we fly
If just making a file available constitutes infringement then just having the money available constitutes paying your taxes.
http://hypebot.typepad.com/hypebot/2007/07/itunes-hits-3-b.html/
7/31/07: Apple announces hitting the 3 Billion mark with it's iTunes downloads. Now, assuming that an equivalent amount have been distributed illegally since the inception of the internet we can come up with a conservative estimate of what the damages would look like.
$9,250 per song x 3,000,000,000 songs = $27,750,000,000,000
For those of your not used to so many zeroes that's 27.75 trillion dollars. You would have to almost take every sale of music since Edison first made the Phonograph to come up with that kind of money.
"Life's short and hard, like a body building elf." -- The Bloodhound Gang
"I am commuting the portion of Mr. Libby's sentence that required him to spend thirty months in prison. ... My decision to commute his prison sentence leaves in place a harsh punishment for Mr. Libby. The reputation he gained through his years of public service and professional work in the legal community is forever damaged."
-- George W. Bush
If we take that as a guideline for punishment, approved by the DOJ, for a serious crime,
then I think that the damage to Jammie Thomas' reputation would be penalty enough for a
finding of copyright infringement of 24 songs.
Intron: the portion of DNA which expresses nothing useful.
Heh, sounds like you are already stoned. Thanks for the RIAA's journey through the wonderful world of dorm-room-debate what-ifs which makes up their boilerplate logic of absurd extremes: ...like, what if everyone who could access the songs actually downloaded them? and what if each and every one of those guys was, like, someone who was totally going to go out and buy it, but didn't? Think about it, she would owe us, like infinity dollars!!! We should totally get that from her, because like, if bits were like physical CDs, she would be just like a street vendor, you know, and not a blindfolded street vendor.
Anyway, yeah, usually when RIAA guys are reciting that, they're wearing suits and not laughing, so some people get fooled into repeating the goofball logic and thinking it justifies total financial destruction of a few unlucky draft picks. I'm not saying people should never pay for music they hear, but there's something seriously wrong with the thinking process that leads to ruining the life of a middle-class family breadwinner who is guilty of about as much actual, real harm as that caused by speeding or smoking.
Very few people could afford to pay those kinds of damages. So someone downloaded some songs. The mafIAA might actually have a leg to stand on in the public eye if instead of these financial executions, they just went for some corporal punishment and made it sting a little. The common man isn't scared of a quarter million dollars in damages because he can't fathom ever being ABLE to pay that kind of money. Fine him $10,000, it looks more like you're interested in actual justice as opposed to heavy-handed, over-the-top financial brutality. and John Q. Public can relate to $10,000 because it's comprehensible to him.
It's senseless, financial violence, and it's counter-productive. The American public as a nation doesn't like being bullied into submission, and that's exactly what the RIAA is doing. Maybe the DoJ is keen to this, sick of the RIAA and keen to see them get the backlash they deserve. Somehow, I doubt it.
since when is slashdot full of folks who support the DMCA? i've been gone for awhile but the fact this thread even exists here shocks me. i hope you all get fines for jaywalking.
the concern with this topic is not this one case so much as the legitimacy of copyright statutes in the networked age. the idea of intellectual property and copyright is relatively new and obviously at odds with the internet. all the internet does is copy things and at worst copyright could lead to de facto criminalization of all citizens.
the absurdity of the penalty and whether this punishment/enforcement model is effective or sustainable is a much more pertinent topic than if she broke the law and if she deserved the penalty.
even the changes to copyright laws over the past few years are fairly terrifying unless you are already wealthy due to holding copyrights on work you did not personally create.
Oops I should have put, ^*at the very most*^ as much harm as a a smoker or speeder. Those people actually put people's lives at risk. File-sharers don't.
It's not enough to bash in heads, you've got to bash in minds. - Captain Hammer
Remember, these are the same guys that think that waterboarding isn't considered torture. Credibility: 0.
They argue that they cannot know how many people actually downloaded the works and with that argument, any file sharing on the network puts you in jeopardy of gigantic damages. There is a difference between illegally burned CDs sold on the corner (which they aren't doing much about) and sharing a file. The CDs have already been burned and it is easy to show intent to distribute with the idea of making a profit from someone else's work. IMHO, intent is harder to prove with file sharing, and it is certainly not motivated by profit (like selling illegal CDs is).
Everyday I grow to dislike RIAA more and more. Their actions have directly caused me to stop spending money on music as I don't want to endorse this abuse of theirs in any way. They need to pull their head out of their ass and find a new, customer friendly, solution to this issue, one that doesn't treat ALL your potential customers like criminals. If they don't -- I expect them to die way in the next few years, like the dinosaurs that they are.
Disclaimer: IAMAL, nor do I want to be one.
They're communications majors. They can't do math.
(I double majored in CS and Comm, so I have the right to make that joke. Tell that to any Comm major, and I can almost guarantee they'll laugh and say how true this is.)
Check out my sci-fi/humor trilogy at PatriotsBooks.
What's wrong with being stoned? ;)
but the equivalent of buying the right to distribute that song. When you purchase an album it does not give you the right to give it out to people, it just gives you the right to listen to itAs a legal argument I'd agree with that. However, don't we still have one problem?
Its also not unconceivable that the record companies lost that much money from her actions either, especially if she was one of the first to make it available for downloadAnd therein lies my problem with this. How can they prove how much they lost when they can't even prove how many people (if any) downloaded those songs from her? What if they lost nothing because nobody downloaded from her? Doesn't the plaintiff in a lawsuit usually have to prove how much damage, if any, they've suffered?
I want peace on earth and goodwill toward man.
We are the United States Government! We don't do that sort of thing.
Most clients keep a good record of exactly what your share ratio per torrent has been. If it's less than one, you don't owe so much. If it's more, you pay a little more. At least you could prove that you did not infringe enough to justify a $200,000 penalty.
The issues I have with this case were along the lines of the incredibly low standard of evidence used, and the apparent prejudice on the part of the jurors. That aside, the size of the judgment grossly exceeds the amount necessary to ensure that she doesn't do it again. It will likely drive her bankrupt as a result of the huge size of the judgment. I'd personally say that driving somebody to bankruptcy over a dozen or so songs is a burden. The fact that they allowed her to settle shouldn't factor into the calculation of whether or not it was appropriate.
It sounds like you are in favor of punitive damages, and I would think that most of the /. community would not argue with reasonable punitive damages. Damages in this case are not punitive, but statutory, and far beyond reasonable punitive damages. Refer, perhaps to the following:
http://en.wikipedia.org/wiki/Punitive_damages
"In response to judges and juries which award high punitive damages verdicts, the Supreme Court of the United States has made several decisions which limit awards of punitive damages through the due process of law clauses of the Fifth and Fourteenth Amendments to the United States Constitution. In a number of cases, the Court has indicated that a 4:1 ratio between punitive and compensatory damages is broad enough to lead to a finding of constitutional impropriety, and that any ratio of 10:1 or higher is almost certainly unconstitutional."
Many people here are trying to equate her punishment to the actual damages she may have caused.
OK, what are the "actual damages" in this case?
What she did: making 23 songs available over P2P that were already available over P2P.
If you can, with a straight face, say that the "actual damages" here are over two digits... you're a hell of a poker player.
If she had stolen those 23 tracks as a couple of physical CDs, she'd be facing well under $1000 in fines. $1000 seems a pretty hefty disincentive already: at least it works for petty theft. And seriously, whether you call this "theft" or not, it's pretty damn petty.
But let's go all out, let's make the fines 100 times the actual damages. Let's be really outrageous, and figure 10 lost sales for each song, and count the songs as if they were worth $1.00 each. Those are all pretty damn steep figures, but for the sake of argument... you're STILL off by a factor of 10.
If you don't like the law, work to have it changed.
That's what she's doing.
But, even though she may have "distributed" the songs, the main point of this should be that she didn't buy the songs, 9K a song is not justifiable. In your example the police might arrest you, but if you haven't given any out, the record company hasn't lost any money and the purpose of this case isn't to say that what she did was wrong or right, it was to repay the damages done, and there isn't 9K a song in damages. Think of it this way, if I slip on someone's sidewalk, the most I am really able to sue for (if the judge is sane) is for my medical bills, or perhaps if I missed work or the like but I can't decide to sue for 2 million for a broken wrist, unless somehow I Lost 2 million. 9K or even 1K a song is absolute nonsense. Think of it this way, that very song at .99 a song (which is the price of a typical song on iTunes and thats the most popular music store) she would have to give the song to 9,000 people in it's entirety (which is unlikely due to P2P's nature of breaking up the files) to be justified 9K. And even then for 20 some songs I doubt that in all she distributed to around 180,000 people. And even if all this is true, and it is somehow "justified" to pay 9K a song, that needs to be changed. If we keep looking at things like these and just comment, nothing will be done, call your congressmen and tell them to change it! We need action if we are to go anywhere, if software patents and the DMCA are killed, we can truly be free, otherwise pointless lawsuits like this will continue.
There is no "disagree" moderation, and troll, flamebait and overrated are not valid substitutes
But surely
(cost of digital download of song from itunes|wherever / file size) * upstream bandwidth * time file sharing software was running
is a simple upper bound on the measurement of "damage".
Thus destroying yet another market for RIAA to try to extort money out of.
It's hard to sue for damages when the product costs nothing.
-- Tigger warning: This post may contain tiggers! --
Can you summarise your argument? It seems you are all over the place. I think you would feel about the situation differently if it was your music or software that was illegally being distributed.
Control is an illusion, order our comforting lie. From chaos, through chaos, into chaos we fly
Damage to Thomas' reputation & a $250,000 fine... to complete your weak Libby connection. Why does everything need to be hate-bush-speak? Jeez.
boneheaded and venal as the RIAA's tactics and position here are, it's time to stop talking about the damages as if the media companies are just trying to make back the retail value lost when someone downloads instead of buys. this is about who has the right to make a song available for download, to whom, and at what price.
the real tragedy for me, and what strikes me as incredibly evil on the part of the media companies, is that most of the people they're targeting as copyright infringers (a) have no idea what it is they're being made to pay for, (b) had no intention to profit by it, and (c) individually made nowhere near the kind of negative impact on record company income that they're being made to pay for. IMO, the disparity between impact and punishment is what makes this whole business into extortion rather than fair legal action.
/. is what happens when geeks talk. get used to it.
Distributing for profit and for free is no different to the owner of the copyright. In both cases they lose out the same amount - and I think its disingenuous to pretend that there wasn't any intent to distribute if those files were made available for anyone on the P2P network to take!
Control is an illusion, order our comforting lie. From chaos, through chaos, into chaos we fly
"I Am Mot A Lawyer," said the man with the harelip.
Let us not become the evil that we deplore.
I actually like the idea that copyright infringement over a linux distro should incur damages rated at 50K for each package in the distro. This would land people like RIAA in interesting waters when they use FOSS without following the licenses as we've seen yesterday.
My watch contains Mp3's.
If a Doctor left that watch inside a patient, would that be "making those songs available" so the doctor can then pay $9250 per song to the patient?
My first Journal Entry ever, in 8 years! http://slashdot.org/journal/365947/aphelion-scifi-fantasy-horror-poetry-webzine
And it's not just his job as president I despise, oh no. I despise every single thing about the man. He has no positive qualities whatsoever. He's a lousy business man, a lousy husband, a lousy father, a coke snorting, frat-bastard, drunk driving, spoiled, over privileged, draft dodging coward. The man isn't fit to clean my toilets, let alone run the most powerful country on earth.
- None can love freedom heartily, but good men; the rest love not freedom, but license. -- John Milton
Sure beats falling on your own sword to get a pardon.
Twitter supports and protects racists - by smearing their critics with the "Hate Speech" label.
Seriously, do the artist get the money from these lawsuits, or does it go straight into an executives pocket?
Can I bum a sig?
I agree with your last point there. If you can't prove damages (i.e. you wrecked my car and I couldn't get to work for a week so you owe me a car plus a week's pay), how can you award them? The damages are virtual and unknown. They range from nearly zero dollars (nobody on the Kazaa network traded with her, but she owes for the music she downloaded) to millions (everyone on Kazaa was leeching from her and she has a DS3 piped into her NAS appliance full of music). Since nobody has actually run the numbers, the $9k per song totaling well over $200k is just a number from someone's ass.
It's a shame that the very companies who bring us entertainment content have to be so damn consumer-unfriendly. Like retail outlets, they should do what they can to keep shrinkage down but still accept that a certain percentage of their product will be lost to the public despite their diligence. Has Microsoft cracked down on every single mom and pop shop full of 5 unlicensed Windows workstations? Not really...because they see the big picture and know a certain amount of 'shrinkage' will happen regardless. I know I'm comparing apples to grapes here so I'll leave it at that.
let's see...
- Cruel and unusual punishment. Over $9000 for a song with a market value of 99c? Ridiculous
- Double Jeopardy. The plantiff filing an appeal, to go after the same person for the same offense? Unlawful.
- Getting punished for another's crimes. Other people's illegal happenings are none of the defendant's concern or responsibility.
- Innocent until PROVEN guilty. Getting punished over UNPROVEN damages is heinous.
- A judge that goes along with all of this? That's grounds for severe punishment, if not disbarment.
With respect, Sir or Madam ... you just provided a classic example of knee-jerk ignorance.
I urge you to lurk on some of the threads involving these issues and educate yourself more thoroughly as to what the stakes really are, or if you would like to get up to speed more quickly, visit Ray Beckerman's blog (he regularly posts relevant material on Slashdot and is known as NewYorkCountryLawyer hereabouts. He's an attorney who defends people from these lawsuits, and has kindly provided a wealth of information on the situation and its legal ramifications. I strongly suggest you read it before you post on this topic again.
The higher the technology, the sharper that two-edged sword.
Okay Mr. Stoner, now let's assume you're not just a shill or a righteous prick which seems kinda doubtful. But just to play devil's advocate, let's say you think you're making a legitimate point, so now Let's take another example.
What if she had played those songs as a Shoutcast without paying the licensing fees? Let's say she streamed those songs to a hundred listeners. That seems to be the closest analogy of all. What would you guess the licensing fees are to stream a few hundred RIAA songs to a few dozen users?
That's a very analgous case of distribution.
of the justice system.
proud caffeine whore
The quote saying they didn't have any idea how many people accessed the files made me laugh. Could be no one did, at least for some of the crap songs;-)
I mean seriously...if it's evil, they're all for it. Makes you wonder.
expandfairuse.org
If you consider that Apple supposedly pays about $.70/song for iTunes downloads, $9,250 of lost revenue per song would translate to about 13,214 downloads per song, or 303,922 downloads total. If the average mp3 is about 3MB, that puts the total data transfer at 911,766MB, or about 890.39GB of data. How long did she have this crap shared? I wonder what kind of DSL/Cable plan she was on.
I see one major problem with that logic. So, what happens if everyone who shares songs is forced to pay similar damages? It would turn a billion dollar industry into a trillion dollar industry due to lawsuits, which doesn't seem right. While it's hard to estimate the actual damages of one shared song, it's easier to estimate the total damages awarded if others were forced to pay. I'd argue that the damages for each person who shares songs shouldn't exceed the industry's total sales. With the millions (very conservative estimate) of songs that are being shared illegally, the total damages for each song would be so high that it would seem ridiculous, much like the decision in this case.
Not being a developer of P2P software or knowing how feasible this would be I have a plan.
Get somebody to write a program that lists on P2P networks songs from Metellica, Prince and all the other ones that are all over P2P as available for download. But have the open source software coded in such a way as it is impossible to actually download the music.
Then wait for a RIAA lawsuit against you for sharing music. Go to court and prove it is impossible for the software you have running on your machine to actually send out the files listed. Get a precedent set that just having music "available" does not prove it is actually been or is capable of being downloaded.
If a online project is done to do this which some support from a legal team anti RIAA and a few 10,000's being download and run the software wouldn't the RIAA be royally Fscked?
Lockyer's a three-strikes case. He wasn't sentenced to life for stealing dvds; he was sentenced for getting a third felony. I'm not defending that -- I disagree with the three strikes law and I think the High Court made the wrong decision here -- but the decision was about the three strikes law, not about what is a reasonable punishment for stealing DVDs.
Wonder how many digits my UID is...
If the RIAA assumes each download is a lost sale then logically every album downloaded must equate to one less record sale. If the number of lost record sales and the number of total downloads each year aren't equal I don't see how they can legally make the claims they do. 50 million downloads of pirated albums should equate to a 50 million unit drop in annual record sales, do we see that? I don't.
So, if every download can't with certainty be a lost sale, how can they claim such outlandish damages?
Murphey's fighting Occam, and we're in the stands.
The IRAA lost maybe $5.00 total. The fact here is that the people that use P2P software aren't going to buy the product anyhow. They will spend their money on other things, not music they weren't willing to pay for in the first place.
Another point to consider is where the song originated. Did it come from someone else who shared it? Did they already sue that person? You can't double dip the chip here. They should be forced to validate where the song was first released on P2P and prosecute that person.
If I understand correctly the "damages" are being paid to compensate for a possible loss and are not supposed to be a fine (on a side note, she hasn't gained anything by sharing, so the possible fine shouldn't be that hard on her anyway). So the 9250$/song figure is the base value of a "per song" loses. If we assume that a normal CD has 8 tracks this makes 74000$ per CD. Then, with the 15$ price tag on a single cd (20$ for a new one, 10$ for older one - I suppose there was a mix of those) we get the approximate number of 5000 CDs. Since the whole case is about 24 mp3s this makes 15000 CDs total. ;)
If she was the one who released those before the official release date, I'd say those damages are not high enough. However, if she was just sharing files available from multiple other sources then... well, those 15000 CDs could make even 5% or more of officially sold CDs. Catch a few more sharers and you can get platinum just for getting them sued. I'd love to see how did they come up with those numbers...
Anyway, I have better idea - check the number of available sources and divide the potential loses by their number for a more accurate "damages"
Ah, and on another side note - I wonder if the artists will get their share of those 15000 "sold" CDs...
The radio station pays to use the song? Not the way you describe. Did you forget Payola? If the station pays at all, it's a per play fee. The station keeps logs of what is played and who has to get paid.
Hey now. anonymous coward has a 3 digit uid. It's 666.
Seriously.
Everything I need to know I learned by killing smart people and eating their brains.
The DOJ is controlled by the Bush administration. The Bush administration is in bed with the *AA. As we have seen with Alberto Gonzales, the head of the DOJ, all that it has become lately is a tool to find some sort of legal justification for the administrations extremist views or corruption.
There's a brilliant idea encoded in your post. I wonder how much it would cost to get file-sharing insurance? You can get insurance for just about anything, so why not pay a few bucks a year to cover your lawsuit losses if you should happen to get caught and have to settle or be convicted for this? This would normalize the costs of songs quite nicely. :)
What do you expect? Bush BENDS OVER for big business! He could care about the 'little guy'-they don't bribe him! His Justice Dept. is stacked with hand picked cronies. It's a surprise to you that they think as he does?
... when you accuse everyone in power with a different opinion of being corrupt.
You know, there is a difference between trolling and pointing out the flaws in your reasoning. Just saying.
I think the logic that the punishment for a crime should be to pay the normal price is a bit interesting. If that was the case what would be the point in following the law and getting a licence for anything when the worst that would happen is that you would be forced to pay the normal cost!
Control is an illusion, order our comforting lie. From chaos, through chaos, into chaos we fly
It's good that making songs available was found to be copyright infringement. Otherwise, free software would be in big trouble. The GPL depends heavily on the fact that putting something up on a server for the public to download counts as distribution and requires copyright permission. That is what gives GPL the power to force source to be made available with binaries that are distributed via the web or public FTP servers.
I didn't say that though. We are talking about awarding damages here, not being punished for a crime. This is a private lawsuit against an individual, not a state or federal prosecutor trying to convict someone of a crime.
If you get in a car accident, you can sue for damages. You could get awarded damages to pay for medical bills, which are pretty obvious. You could also be awarded for emotional distress and whatever else a good lawyer can come up with. If your medical bills were $10,000, you won't get $100,000 for medical bills because you'd be getting reimbursed for money you never lost. You might get $100,000 still though, but that's because of the emotional distress and other good ideas from your lawyer.
Now, unless the RIAA can establish emotional distress or some other reasonable damages (which I don't think they've done, but I know they have tried), then I don't see how they could get awarded more than what they've lost. Again, I base "what they've lost" on the damages awarded in this case and the number of shared songs out in the world.
If the person was using bittorrent (I don't think they were) then the best number to use is 1.
Assuming that 1 person starts with a file and n more download it, then everyone has downloaded 1 copy and the average upload is n/(n+1) copies.
If you assume the person you "caught" is not the original seeder (who must have uploaded at least 1 copy), the average for all other downloaders is less than 1. 1 is a good number.
Let's penalise these people -- I think 3 times is the normal approach. So charge them 3 x the retail price of a download (about $3.00).
Not bagging your position here, because while it's one that I don't agree with I can see how, having not had personal experience with the vast majority of historical presidents and being presented with the continual illusion that the office of the presidency is solely responsible for not only foreign but domestic policy, you might land at that conclusion. My puzzlement stems from the "insightful" rating. I mean, really, this is a fairly widely held opinion and probably will be until the new guy starts screwing things up, just like with Clinton. And it's not exactly gleaned from a gaze which penetrates into the obscure complexities of politics and emerges triumphant bearing a gleaming truth which sloughs off years of misconceptions in the minds of the onlookers. And, finally, valid as generic expression of outrage and 'my political opponent eats babies' may be to the grandfather comment, it doesn't really have anything to do with anything in the more general sense, especially in context of this thread. In short, I'm slowly being convinced that the "mods on crack" cliche is less an amusing hyperbole and more a literal truth. (If this comment gets modded up it will be just as silly, by the way.)
...it's really a sad day for America when we require a goddamn ACT OF CONGRESS to make our DVD players work properly. ~
I've wondered this before.
Take her total upload since the first song and divide this by the average song size to get the max number of uploads.
Take her total upload since the first song subtract her average upload after the court case started then divide this by the average song size to get a lower number of uploads.
With these numbers, figure out how much money would have been made if she charged $.99 a song.
As much as my personal political leanings lead me to believe that the Democrats are more often on the right side of issues of rights and decency than the Republicans are on most issues, it's important that everyone remember we have no friends in Washington on issues of civil rights vs. intellectual property rights.
The Democrats sell us out happily on issues that Hollywood and the recording industry find important, and you'll find absolutely no disagreement from the Republicans on a sop to one of America's largest export industries. Don't expect much help from the Libertarians either -- they're pretty divided on the issue themselves, with many of the rather large contingency that places property rights over all other rights wanting this extended to IP as well.
If it's for-profit but free, you're not the customer -- you're the product (e.g., the Slashdot Beta's "audience").
Well, my country just went through an election. The government of the day lost. They have taken things to the courts claiming basically that the opposition stole the election. (To use broad terms, check the specifics if you care.)
This was on their watch mind you... What are they claiming about their competence to run the country?
So too with your post, what does this say about the quality of his opposition in the two elections?
all the best,
drew
FreeMusicPush If you want to see more Free Music made, listen to Free
I would love to see this logic applied to commercial radio stations:
It's unknown how many other users accessed the music distributed by the radio station in question and committed further acts of copyright infringement.
They are transmitting songs over the fcc-licensed airwaives, fully unencrypted, that anyone can just tap into and save. Those people can then distribute that music, and so forth. Apparently, the music industry is losing $1.2 x 10^13 a minute this way.
You speak as if the jury actually had a choice
The great secret about America is that there is judicial check. Juries can do whatever they want, and frequently do. I submit for evidence the case of Orenthal James Simpson. But also, plaintiffs and defendents do their best, really, to routinely avoid going to court because both sides are terrified at what a jury can do.
Sure, a judge can instruct a jury all he or she wants. But, at the end of the day, when a jury makes a decision, it is the jury's wishes that generally stand in criminal law, and are frequently damning in civil law. Seriously, if you were summoned for jury duty, would you really listen to the judge's instructions, or the lawyer's instructions. I can't see anyone on slashdot, regardless of political affiliation, that would.
This is my sig.
There is always the option for Jury Nullification.
Of course, IANAL, so check out http://en.wikipedia.org/wiki/Jury_nullification for a decent overview.
Navicula hydraulica plena anguilarum est. Omnes castelli tuus nostri sunt. Ed elli avea del cul fatto trombetta.
That is true, I concede that point.
Control is an illusion, order our comforting lie. From chaos, through chaos, into chaos we fly
Any punishment should always bear some actual resemblance
to the damage caused. This is a pretty fundemental idea in
Anglo-American jurisprudence. This principle only differs
in this case because of a law original intended for mass
bootlegging profiteers was distorted to be used against
normal customers.
Of course any thing that the DOJ has to say on the matter
is meaningless. They want the right to beat confessions
out of you with a rubber hose. It's much like asking a
fox what degree of physical security the hens should expect.
A Pirate and a Puritan look the same on a balance sheet.
Total, utter, bullshit.
The professional bootlegger is stealing a paying customer. Yes, that's a PAYING
customer. This is not some "theoretical paying customer" who has only demonstrated
a willingess to consume for free.
The copyright holders don't "lose out on the same amount" in both cases.
zero != some number other than zero.
A Pirate and a Puritan look the same on a balance sheet.
Typically from bootleggers you can get stuff for 90%+ off the normal price this way hence you could extend you argument to cover them as well. Copyright holders do lose out because the only thing of value they have is the right to distribute. If someone takes that from you then you lose out irrelevant of if they charge for it or not.
Control is an illusion, order our comforting lie. From chaos, through chaos, into chaos we fly
What bothers me is that they seem to be blaming her for what others do with the song once they get it from her. That's not her problem.
And as for how many times she distributed it, if they can't prove it was a certain number, how can they have a case? It may have been none for all they know.
The law makes it clear to an average guy reading it that there is not even the pretense of making the fine proportionate to the actual damages.
That's why it is so unethical. Proportionality is a core concept of justice, maybe even hardwired.
Punishment that does not fit the crime is not justice at all.
If the damages are awarded to cover not only the illegal downloading of the songs but also the "collateral" damage caused by other people downloading the songs from the defendant, then once those damages are awarded, should that not bar the RIAA from seeking further damages from other individuals who have downloaded copies? If the RIAA were to sue every individual who has a pirated copy of each of there songs, as they seem intent on doing, their so-called "damages" would be many thousands of times more than they could have made by selling legitimate copies of the tunes. That strikes me as being very unreasonable.
Actually.. a bootlegger only potentially steals a paying customer. In much the same way that a file sharer only potentially steals a paying customer.
the bootlegger would only steal a paying customer in the instance that the customer was willing to pay the retail price of the CD, but found the bootlegger and paid a lower price instead.
In any other case, a person who finds the CD worth $5, won't pay $15 for it. So if that person pays $3 for a bootleg, it isn't a lost sale to the record company.
All that said, I still find the damages ridiculous. I'd love to make the argument:
A) I have utter trash I can sell
B) I'm willing to sell it
C) No one is buying it
Therefore D) Someone is stealing my customers.
And have that argument be believed by someone with the ability to compel payment.
I don't expect morality, equality, consistency, or justice from the law. I expect only legality.
You haven't been following Australian Football then
If your neighbours roof is flying past your window, you know it's cyclone season.
There was nothing proven, nothing proven...
Control is an illusion, order our comforting lie. From chaos, through chaos, into chaos we fly
If i could only mod you up. Let me elaborate: The jury can let someone go free, even when they broke the law, IF they feel the law is unjust.
Seriously. How did we get from copyright law to bush lying ???
If the motion is granted, there probably will not be an appeal.
Ray Beckerman +5 Insightful
The DoJ also appears to buy into the RIAA's argument that making a file available on a P2P network constitutes copyright infringement. This statement is directly contradicted on the first page of the brief, where the DOJ states, in footnote 1, on the very first page: Because the defendant's motion does not contest the legal sufficiency of any of the grounds for recovery set forth in the jury instructions, and because we are participating solely to address the constitutional issue, we do not address which of the exclusive rights under the Copyright Act were violated here. (pdf)
Likewise, when the DOJ filed its brief in Elektra v. Barker, it said it took no position on the RIAA's "making available" argument, and had never prosecuted anyone for "making available".
Ray Beckerman +5 Insightful
You got me, I was expecting to get modded troll. I'm seriously disappointed in the moderators. I got modded troll for a funny quip against an AC, and this gets modded insightful? People must really be pissed at Bush. I was just yanking the second guy's chain, because the first guy wasn't really making a point about Bush at all and guy the second jumps in with his whiney "why must everyone bash Bush?" And it wasn't even Bush bashing! So I gave him some.
- None can love freedom heartily, but good men; the rest love not freedom, but license. -- John Milton
No, I wouldn't, and don't. The only type of unauthorized music distribution I really can't stand is when some teenage thug-4-life plays the stuff on his cell phone ringtone speakers on the bus during commuting hours.
What's wrong with being stoned? ;)
;-)
Stoning and being stoned is not the same thing.
http://en.wikipedia.org/wiki/Stoning
I see the smiley.. Don't stone me for my reply
The truth shall set you free!
Advocating jury nullification is a great way to be held in contempt of court.
*sigh* What a disappointment. It's doubly tragic as RIAA is coming undone. EMI is cutting funding to them. Other labels will follow as their own businesses suck too fully for them to be able to afford to fund the RIAA. Implosion may just be imminent. But first, pay us a quarter-mil. That's alotta college tuition right there.
USNG: 14TPU4605
I'll have to remember that next time I'm up for Jury duty...
Navicula hydraulica plena anguilarum est. Omnes castelli tuus nostri sunt. Ed elli avea del cul fatto trombetta.
Your cliquism is kind of annoying. Piss off, AC.
110100 1101000 1101000 1100110 0 1101111 1101000 1100011 1
DOJ: "It's over nine thousand!!!!!"
News Flash Knoxville Mayor Victor "Victoria" Ashe Named by Kitty Kelly Book as Cop-Killer George Bush Jr's Skull & Boner Boytoy As reported by John Lee on PIRATE NEWS and censored IDIOTBOX WARS for the past 3 years! Georgie "Lips" Bush Junior loves polishing the knob of bald men like James Guckert aka Jeff Gannon aka kidnapped Johnny Gosch - Senator John DeCamp reported in March 2005 that Gannon is in fact Gosch, and that Bohemian Grove presidential retreat snuff pornographer Hunter S Thompson was one of 4 deaths within days of Gannon/Guckert outed at White House, with further confirmation at TomFlocco.com - DeCamp is author of The Franklin Coverup snuff kiddie porn S&L drug dealing trials linked to George Bush Sr "I'm very impressed with James Guckert, aka Jeff Gannon. How often does an enterprising young man, heralded in press reports as both a reporter and a contributor to HotMilitaryStud.com, MilitaryEscortsM2M.com, WorkingBoys.net, and MeetLocalMen.com, get to meet the president of the United States? Who knew that a hotmilitarystud could so easily get face2face with the commander-in-chief?" -Maureen Dowd, NY Times, "Invasion of the Reporter Snatchers", Feb 18, 2005 (upset that she was denied a White House press pass while "Gannon" was allowed to live in the White House) "I'm also most appreciative of the Mayor of Knoxville, Tennessee for being here. I've known Mayor Ashe for years and years and years. And he has done a fabulous job of being a fine public servant in Knoxville. So, Victor, thank you for coming." --George W. Bush, head cheerlader at all-male Andover High School and cheerleader at all-male Yale University "I want to thank my old college classmate -- you used to call him Bulldog, we call him Victor -- the Mayor of Knoxville, Mayor Victor Ashe." --George W. Bush, Van Hilleary for Governor Luncheon, Knoxville, Tennessee, 2002-10-08, ("Bulldog" same nickname Bush Jr. gave "Jeff Gannon"/"Jim Guckert" (kidnapped, raped, tortured, mind-kontrolled Johnny Gosch?), his homosexual White House hooker/journalist at HotMilitaryStud.com, MilitaryEscorts.com and MilitaryEscortsm4m.com. Bush has gay-style excrement nick names for the people he hangs out with: "Turdblossom" for gay puppeteer Karl Rove. David Lewis went under the name Sally Suckemsilly. "Pooty Poot" term for Vladimir Putin, Russian President and Commie KGB chief. "Mr. Big O" term for lispy treasury secretary Paul O'Neill, ex-CEO of ALCOA Corporation in Alcoa, Tennessee. George earned the nickname "Lips Bush" for his skill at giving blow jobs to his fraternity buddies, according to Kitty Kelley. Roedy Green, The Wit and Wisdom of George W. Bush. Georgie Bush Junior loves touching and kissing heads of bald men and little boys.) "That's when Yale really started going downhill." --George W. Bush commenting on Yale's decision to admit women "Why is Bush so hostile to the idea of gay marriage? Perhaps because until 1987, George W. Bush was gay. According to a group of 29 Yale classmates who comprise Gay Ivy Leaguers for Truth, Bush was "known to be at least sexually experimental throughout his time in college." One of Bush's alleged former boyfriends, Anthony Berusca (class of '70), told The Dallas Morning News that Bush was "deeply conflicted about being gay, even somewhat self-hating." Berusca is convinced that this conflict led to Bush's drinking problems, but describes the President as a "gentle, caring lover". In 1986, the Bush family arranged for George to join Worthy Creations, a church group in El Paso that focuses on converting homosexuals through faith. A year later, Bush claimed to be straight, born again, and engaged to Laura Welch (Kitty Kelly in THE FAMILY wrote that Bush's twin daughters were not his offspring, but from a donor at a fertility clinic). Bush at all-male Phillips Academy in Andover, Massachusetts was "head" cheerleader. Drama club and cheerleading are where the gay boys hang out. George earned the nickname Lips Bush for his skill at giving blow jobs to his fraternity buddies, according to Kitty Kelley. Bush has gay-s
Yet, at the same time, the MPAA are sponsoring a "Copyright Awareness" scheme for scouts which tells them that illegal copying is no different from property theft.
They have to decide which way they want it: either it's equivalent to property theft, in which case the penalties should be the same, or it's a different offence which merits higher penalties.
The last scintilla of doubt just rode out of town
$10000 loss per filesharer each year, are you mad? I live quite confortably well and spend $150 to 200 every month in culture/entertainment, but concerning music, my #1 problem is not CD price or DRM, it's simply to find at least $50 worth of things to good enough to listen so when I found it, I buy it without second though (most of the time, the stuff happens to be about as old as myself, so the payola and other major advertisement tools don't help me).
Yup - the subject says it all!
Let's think a bit sideways here - Apple sells songs for 99c. Now, Apple makes a nice markup, and so does everyone else involved, the wholesale price is probably closer to 30c, if that. Now, I don't know about you, but if we can reach an average figure of say, 50c per song, the Jury's damage recommendations mean that the song was downloaded 18,000 times! Please!!!
This is just more proof that the RIAA owns the US government (as does big business in the US), and the RIAA can use its political connections to make the laws as they see fit. This is all to do with money, power and greed, and nothing to do with justice.
Just cos a song is up on P2P does NOT mean that someone downloaded it. And if no one downloaded it, or copied it, it has NOT been infringed. Can the RIAA prove that each song was downloaded, and by whom, and how many times, without a doubt? What happened to not convicting a person on a crime if there was 'reasonable doubt'?
The US is heading down the drain, especially with Bush Jr. and cronies (TM) in tow. I feel very sorry for Americans. My advice - renounce your citizenship and move north to Canada - a much better country!
Dave
Our lives begin to end the day we become silent about things that matter. --Martin Luther King Jr.
Very true. Given that I'd release music under Creative Commons, and software unger the GPL, I would indeed be upset if someone distributed without passing on the right to freely redistribute it and derivative works.
No tyrant thrives when every subject says no.
Sony, EMI ? Can someone please list all the large corporations behind the RIAA? I wish to write a few letters to my local Congressman about some illegal activies performed by at least Sony. Also, please list the names of the legal counsel behind the RIAA. Thank you.
$9000+ per song is nonsense, the music industry would do far better if they took a more generous stance in these matters The RIAA is not seeing the big picture. IMHO, their divebombing reputation is going to cost them more money in the long run than filesharing ever did.
I can only speak for myself, but right now, I'm so infuriated by them, that I will NOT be purchasing ANY albums from any of the RIAA-affiliated labels.
We should all do that, and see if we can cost them more than the amount they're trying to hit the defendant with.
I know it's a pretty tall order, but do you have friends? Co-workers? Relatives? Peers? Associates? Pass the word along. Convince them to stop buying large record label releases.
Before somebody goes into the whole "But I want to support my favorite artist!!" whine, just remember that the RIAA label is like a parasite between your money and the artist. It takes most of the money before the artist even sees it, and then uses it to fund the crap lawsuits like the one we're discussing here.
If you really want support your favorite artist, why not buy a t-shirt or go to a concert? If you absolutely do need to have a big label release from your favorite artist, buy a used copy. At least that way, you're not giving record labels money for newly-pressed copies of the discs.
Being able to fart in interesting ways was considered a valuable entertainment skill in the past - and in fact, until in the relatively recent past, too. Just look up Le Pétomane, for example.
thank you.
MP3 Search Engine
Let's take a previous poster's upper damage limit of $10 billion per year nationally. The Pew organization (http://www.pewinternet.org/PPF/r/113/press_release.asp) says 51% of online (81%) teenagers (12-17 yo) download music vs 18% for adults. Let's expand that to 12-21 yo: 51%*81%10*3.5E6 = 14.46 million younger downloaders, and for adults (21-40 yo) downloaders, lets say it's 18%*81%*20*3.2E6 = 9.33 million full adults, 23.8 million downloaders. So the upper limit average is maybe $420 per downloader per year. Also given that many internet accounts have upload/download bandwidth limits of 1 GB - 5 GB, at $0.70 Apple wholesale per 3MB file, that is a severe cap on any outrageous legal claim, $233/mo to $1165/mo as dedicated (no surfing, no downloading). Frankly I think any legal claim for more than the nominal $420/yr average should at least be required to show the ISP's upload consumption records for *any* additional damages to establish even *some* evidence of actual damages. Beyond that I would morally consider the accosting organizations as any violence threatening extortion agents.
Intresting point. I think this is an important subject worthy of it's own thread.
Maybe I was a bit short with my earlier reply because I had just woken up. Unless you missed the sarcasm in my first paragraph (using stoner speech patterns to give RIAA talking points), the point should be pretty clear. So here it is with out the /. snark: The damages you support are:
Then, I said, you must have been a bit too high yourself when you decided to carry the RIAA's water here on Slashdot, and I failed at humor. So, there it is. I don't see any sane reason why the defendant and her family's lives need total financial ruin, or how that could possibly right any harm done.
And one other thing, I've had time to formulate a little...
I think you would feel about the situation differently if it was your music or software that was illegally being distributed.Really? You think I could be swayed to endorse such nonsense if someone dangled a couple grand (or less, a few percent of the ~$10k/song penalty) in front of me? And not only that, but it's money need from someone who would need it a lot more than I would. Yeah, I'm pretty sure I would have no trouble passing on that financial windfall, whether it's my music or not. Why on earth would you think that? Are you that easy to influence?
Yes, they did have a choice, and made the choice to punish her severely — although not as severely as some of the jurors wanted. We even know their opinion on the matter:
In Soviet Washington the swamp drains you.
The going cost for the American Legal System and DOJ is up for Bids...So far the winning bidder is.....The RIAA! Amazing that without actual proof of damages a single mom is going to lose everything. Now to make matters worse the BUSH Cronies are siding with their recording buddies to make themselves a little more money. Guess I'm going to have to do away with all of my music and start humming to myself. I guess I can't even download or upload a classical rendition of Beethoven's Fifth Symphony or the William Tell Overture or the 1812 Overture because I might get sued for damages on account they might allegedly be on thousands of others computer. Oh well the RIAA and their artists don't need my money so TA-TA.
Time to pay the judge a visit.
Is this country so complacent that we've forgotten about taking matters into our own hands?
The judge should be visited by an angry public mob who knows better.
This type of unjust decision making just encourages corruption and... well, he needs to be taught a lesson.
This represents a fundamental failure to understand the damages issue here: each upload she contributed to is not the end of her violation. Instead, each upload triggers a downstream ripple effect of more uploads. It's simple math: if I share with two friends, and each of them share with two friends, etc. etc. etc.
Thus, the issue is not merely how many people she uploaded to, but rather the total amount of damages she inflicted upon the plaintiffs. The calculation of those damages has to include the collateral effects of her uploading, such as the ability (and proclivity) of those people to upload as well. This simply is not as straight-forward to calculate as you are suggesting.
"Stumble before you crawl"
Juries can do whatever they want, and frequently do.
Actually, that's infrequently do. Most juries have no idea that they have options other than the follow the Judge's order to the letter. The strength of a jurry is often limited by the character and knowledge of its foreman. Now realize for a second and think about the fact that most anyone with strong character and/or knowledge has already been eliminated from the hurry by the selection process.
There are also situations where juries simply do not understand their task. I've spoken with someone that told me the jury purposely awarded a large amount as punishment. They believed the amount they awarded represented the sum total. Once the judge heard this amount he them multiplied it to account for punitive damages. The jury, shocked, then informed the Judge they had made a mistake. The Judge refused to listen and insisted on using the award officially entered into record.
As one of the authors of the JN article (look for my name backwards) let me be first to say that JN doesn't work as well in civil cases. It's true that a jury COULD do whatever they want, but a judge has the power to reverse the jury in civil cases Judgment notwithstanding the verdict and, assuming a judge doesn't grant the JNOV, appeal the verdict to a higher court.
// This is not legal advice.
The reason it works so well in criminal trials is because there is no JNOV. If the jury acquits, the prosecutor cannot get a JNOV or appeal the jury decision.
That's great. Let' punish people for breaking the law. Now if someone steals my car, which *definitely* has a commonly agreed "blue book" type of value, then they should be made to pay me for it before they can go to jail. And when someone beats someone to a bloody pulp, what do they get...maybe 2 years in jail, probably out in a year? Payment to victim = 0.
The criminal justice system in the US can't do everything, so they have to make priorities. This is a huge red flag saying, "we don't give a damn about you victims of serious crimes that put an individual in a hole and/or shatter your life...but don't you dare go messing with a corporation's copyrighted material. Hoo no! That's worthy of few years of your livelihood, biatch. Mess with our major campaign contributors and it's gonna get ugly!" It is surreal. Absolutely absurd.
NO, it was the juries job to determine: 1. Guilty/Not Guilty 2. In the face of it being impossible to determine actual damages, go with a STATUTORY rather than COMPENSATORY award. Statutory allows the jury a great amount of leeway without having to calculate the incalculable.
What's not right is distributing something that isn't yours to distribute.
BOUGHT OUT
Read radical news here
its not really about proof, this isnt a criminal case, its a civil case.... they just have to show that they could have been harmed in some way...
I guess if they want to play the bad-guy, they can play the bad-guy. Congratulations, DoD, you've just made enemies out of some very able and skilled people. Well, relative to the average joe, they're more skilled and able.
You're now the enemy, too.
Internet: Serious Business
Apparently the minimum penalty is $750 and max is 125k per song, ~9k is pretty good by those options. The problem is calculating actual damages, they are somewhere between 0 and a lot :) If there is already 1k people sharing a file, you adding your copy to the share pool probably doesn't effect the outcome, those wanting an illegial copy can already get one, and at a fast download rate. If you are the first person to share, then you are making available something that wasn't before, so one could argue each copy that is available after that is because of you and say a legal download is .99 cents, then the calculation is simple for what your damages are. The problem is multiple people could rip the song and start sharing it, whos to say you are the source? I guess the bottom line is, if you don't want to risk being sued, then purchase your music legally and don't file share it.
I beleive that the phrase goes "Innocent until proven guilty." Untill the RIAA can PROVE how much they lost, they can go burn in hell.
So the damages are incalculable, I say they should either be infinite or nothing.
$9250 per song, so thats OVER 9000! copies.
I still find that cost excessive...
However, charging over actual cost is nothing new. Everying you buy is marked up.
If you break the law to get somethingor break the law and GIVE somethingshouldn't there be repurcussions over what it would naturally cost?
You wouldn't steal a car... and if you did, and were caught, they wouldn't charge you just the cost of the car (assuming they didn't file criminal charges!).
I read an article recently http://www.computermusic.co.uk/page/computermusic?entry=pirates_made_to_pay_as where some music companies used cracked software, which the software maker found out about. Per the article, several companies they "settled out of court 'for a sum several times in excess of the list price of the item concerned'."
Besides just the cost of the thing, there are damages, mental suffering, tons of other items one could add to a suit to bump up the price. Even if the song value was dropped to 99 cents per available download, the jury could still award $9000 for damages and mental anguish, per song. Right?
Bull Shit. If she uploaded to two friends then she is guilty of 2 counts of copy-infringement, if those two friends uploaded to two more friends, then each of the friends is guilty of 2 counts of copy infringement.
But then of course first you'd have to actually demonstrate that someone downloaded her files, which the RIAA can't. The certainly can't demonstrate any sort of ripple effect.
I was at the library yesterday with a digital camera. I could have photographed every page of every book there. That doesn't mean I'm guilty of anything.
There was NO evidence of any songs having been "distributed".
Ray Beckerman +5 Insightful
So was Warren G. Harding, but he was only bad for 2.5 years as opposed tot he current presidents 8.
Very good. Also, it's good to eat a balanced diet, and don't stare directly at the sun.
Now, would you like to say something about whether or not the damages awarded are reasonable?
While I almost agree with your reasoning, I want to play devil's advocate quickly here.
If she uploads to two friends, shouldn't her liability end with that, and the liability of her two friends begin with that? IMO the RIAA should only be paid for each upload once, if they get it from her then should her friends be let off the hook? If they get it from her friends, shouldn't she be partially let off the hook? It seems the equivalent to getting pulled over for doing 85 in a 65, even if you were going with the rest of traffic, and being ticketed for all of the cars on the highway because "they only have one hook."
Charging her the fine for HER violations, not for the violations of countless other users. The exception being if they can prove beyond a doubt that she was the originator of the content leak - like the person who first uploads the latest leaked pre-release movie to bittorrent. And I don't see that happening often, even in today's world.
I don't buy that. Does that mean I can sue the person who almost ran me over because I could have been harmed?
I want peace on earth and goodwill toward man.
We are the United States Government! We don't do that sort of thing.
How is any one person responsible for that song being downloaded from other people's computers? By that same logic every person who downloads that song is also responsible for every one else who downloads that song. It adds up to every person paying for every song that anyone else ever downloads that has ever been downloaded from their computer. It makes absolutely no sense. This one doesn't even need a lame analogy about everyone being responsible for every person who was killed by a gun they killed someone with. But, assume your argument is correct, the RIAA can't actually show that anyone downloaded the song, so at most the person is responsible only for sharing the file, and not for anyone downloading it. Lets do the math, 0...looks like they're off the hook.
The RIAA isn't going to "actually count" anything because they can't. If they could they'd have a better case.
Read my short stories - You won't regret it.
'It's also impossible for the true damages to be calculated, according to the brief, because it's unknown how many other users accessed the files in the KaZaA share in question and committed further acts of copyright infringement.'" Wouldn't this make those "other users" liable for a proportionate share of the damages?
- None can love freedom heartily, but good men; the rest love not freedom, but license. -- John Milton
No evidence of distribution does not mean she didn't violate copyright. Look up statutory damages on google. You really do not know what you are talking about.
I've been working in copyright law for 34 years. The RIAA claimed violation of 2 rights, the reproduction right (17 USC 106(1)) and the distribution right (17 USC 106(3)), but had proof of neither.
Ray Beckerman +5 Insightful
"Don't blame me, I wrote in Kucinich."
Well, there you go, the guy you felt was better didn't get any traction at all right?
So, what does that say about our systems?
How is that to be fixed?
all the best,
drew
FreeMusicPush If you want to see more Free Music made, listen to Free
Here's where I have a problem with the DOJ's logic. If 9 grand per song is appropriate, and *everyone* on the network with a copy of that song is a distributor (simultaneously), then either the damage amount should be divided by the estimated number of people distributing the song, or the industry is saying that people are doubly-liable.
In the street-corner scenario, there aren't 3,000 people each providing you with a sliver of a free CD, and you're not providing other people with a sliver of a free CD once you assemble a full disc. If the police come and arrest someone on a P2P network for distribution, distribution doesn't stop.
That fact makes it extremely hard for me to accept the argument that the 9,000 dollar amount is appropriate. The infringement (if it applies) is distributed, and infringement is not prevented, mitigated, or even temporarily stopped by the imposition of that fine.
The street-corner vendor is a different scenario. Once he's stopped, the flow of material stops immediately, and only a handful of people would get fined like that. They're not going to go find everyone who ever bought from him and charge them 9,000 for each song on each CD he provided.
When you talk about distributing a song, there are a lot of windy paths you can take. Is making a mix tape/CD for a friend distribution? Making a mix tape/CD and never giving it to a friend, although you plan to? How about storing a backup copy of a CD or song (zipped) in your Gmail account? What if you forward it to another account that belongs to you? Suppose you accidentally (or purposely) CC a friend when you do that? What if you invite a friend over to listen to a new CD? How about a hundred friends? A thousand friends (some people outside of slashdot may have that many)? What if you play your music loud enough that it can be heard through a wall and someone records it and puts it online without your knowledge? You could make the argument that you didn't know that sound propagates through solid material, but if ignorance doesn't count, then you could still be liable.
You're distributing any time you play music that someone else can hear and/or record, let alone using P2P apps, so that part of the argument doesn't persuade me much. The issue here is that copying is easier than it has been, and the copy's fidelity is high. A fact that the RIAA believes negatively impacts the sales of their members' artists' music.
If the reasonable expectation of a price for a single download of a song is in the $0.99 - $3.00 range, then the RIAA is saying that between 9,000 and 3,000 people were likely to have downloaded the material in its entirety from the accused. I dunno about you, but that seems to fall into the "unfair" category for me, if we're talking about recovering money for this.
We're not arguing right now about whether she had the right to do something...the issue is one of whether the cure is appropriate.
"Murphy was an optimist" - O'Toole's commentary on Murphy's Law
Do you still think the government works for the people?
Get rid of winner take all elections, they favor incumbents and a two party system. Use proportional representation. Or at the very least, use Condorcet voting. As to how we do either of those things when the entrenched power structure has no interest in changing the system that keeps them in power, I don't know. Education?
- None can love freedom heartily, but good men; the rest love not freedom, but license. -- John Milton
Yes, given that the damages are in the lowest 6th percentile and determined by a normal group of ordinary joe's that represent society. Yes I sure am.
I wish I could fit your post on a bumper sticker..... I'd slap it on all my cars and my .sigs as well ...
Well, if your so god damned smart why didn't you pro-bono for Ms. Thompson. Or are you stating that no one involved had a grasp on this like you do? All that RIAA had to do was prove 51%. It is a civil case...
I sort of like the idea of instant runoff elections for a start.
"As to how we do either of those things when the entrenched power structure has no interest in changing the system that keeps them in power, I don't know. Education?"
One idea I have had on the education front is to get school governments, frats, clubs, and the like to use these different methods in their elections so that people can get familiar and comfortable with them.
all the best,
drew
FreeMusicPush If you want to see more Free Music made, listen to Free
- None can love freedom heartily, but good men; the rest love not freedom, but license. -- John Milton
Yes, if you're rich and well connected enough.
There's no law, and no justice, that enough money and power can't buy. So much for equality under the law.
And people wonder why I proclaim that granting corporations equal rights as individuals was probably the worst day in human history.
We are the fire that lights our world.. and we are the fire that consumes it.
given that the damages are in the lowest 6th percentile
What? I'm not sure what you mean by that. Do you have a reference?
Still, I think these damages far outweigh the actual damages. I won't repeat my evidence, but I'd be interested if you'd like to refute that point.
It's worse than that. In many cases, they don't keep said log - they are charged instead for the average of what other stations in their market play. So if some math jockey in a back room somewhere figures that stations played Justin Timberlake's latest travesty 100 times in a month, they charge you for the same, even if you never played the song once.
I shudder to think about independent radio stations and what they have to pay to keep the wolves at bay, stations that likely don't play music by ANY major label artists.
We are the fire that lights our world.. and we are the fire that consumes it.
You have no idea who you're arguing with do you.
You really are an idiot. It's like the Freshman physics student walking up to Stephen Hawking and saying "I bet you don't know anything about black holes!" and then strutting around proudly at how smart they are, not realizing they just insulted one of the smartest men on the planet in the history of the world.
You're an idiot.
We are the fire that lights our world.. and we are the fire that consumes it.
Actually, if you look at the amount the jury chose, it's not far off from the harmonic mean of the minimum and maximum statutory damages.
hawk
> The DoJ also appears to buy into the RIAA's argument that making a file available
> on a P2P network constitutes copyright infringement
"Honest, officer! I didn't put my penis in the prostitute. She slid her body down around it!"
I humbly await my downmod by file sharing advocates outraged I said God doesn't exist.
(-1: Post disagrees with my already-settled worldview) is not a valid mod option.
The range of statutory award is $18k - $3.6 million. $220K is in the lowest 6% of that range. I really don't care to debate or refute any point. The jury and courts already have. If you really had a grasp of what statutory means you wouldn't bother. In fact, neither will I. If you have evidence you'll present it. If don't you won't. I have no idea what you mean by "I won't repeat my evidence"? Is it English or something?
"I think that's an excellent idea. Just getting the word out that there are other valid systems..."
Cool, I tend to talk a fair bit myself, but I think actually using alternate systems in day to day situations might make a bigger impact with people in their guts.
all the best,
drew
FreeMusicPush If you want to see more Free Music made, listen to Free
I have no idea what you mean by "I won't repeat my evidence"? Is it English or something?
Well, I changed my wording a couple times and must have gotten lost in the editing, but that's still proper English and shouldn't be that hard to understand, unless you want to argue about whether or not it's acceptable to refer to typing a message in a forum as talking. To repeat is to say or state something again, so to repeat my evidence is to state my evidence again. I explained before that I don't think these charges are reasonable based on the total amount that would be paid in damages if everyone who infringed on copyrights were to be successfully punished. For a bit of elaboration to that, read up the parent posts past the one where your comment diverged from the topic of damages.
Yes, I understand what statutory means. I'd still like a reference that specifies that as the range of a statutory award and in which court/s that range is applicable. I also understand how statutes are created, and that sometimes they become outdated or aren't relevant to the cases they are applied to. Again, because of the sheer volume of files traded and the damages that would be paid because of them, I don't think that the award is reasonable.
Its a bit of a straw man you attacked there - I didn't say it was because of the money that you would feel differently but because it would be your wages that are being stolen. That its a large faceless evil corporation its happening to dosen't really change the law.
In your list you are assuming that this is how the decision was made. The jury could have easily used estimates to make their damages based on probabilities, having said that - the people that downloaded without paying SHOULD have paid, so the damages are real even if the lost profits are not.
As for financial ruin of the defendant, while unfortunate, is what happens when you do stuff that is wrong. And that you know is wrong I might add. While they should get good PR and forgive a part of the damages, they are not under any obligation do to so.
Thanks for your reply
Control is an illusion, order our comforting lie. From chaos, through chaos, into chaos we fly
That's just not how the law works: when you commit a tort that is a necessary step in the commission of someone else's tort, you're almost always culpable for their tort. In criminal matters, it's even more so (in fact, the USA unlike other western countries still has the full version of the felony murder law, which here includes criminal liability for anyone who contributes to a murder basically).
Not only is her tort necessary for her friends' torts, it encourages it (if not outright soliciting).
"Stumble before you crawl"
Here's where the law and logic don't add up for me. I'm not going to argue since I agreed with the original point and you sound like you know what you are talking about with your explanation, however this brings up another point - when does the law go overboard?
In this situation, it is technically possible for the RIAA to go after the original uploader and each of her downloading friends, and down the tree as far as they can trace. At each level in the tree, they can claim damages for everyone at a lower level in that branch of the tree. It has been too long since my last discrete math class, but for the sake of argument lets just agree to use the phrase "exponentially" - Wouldn't then the gain from the RIAA be exponentially greater than the actual value of the perceived loss? I thought fairness was a concept inherent with the law, by this logic how is it fair that this organization can conceivably claim millions in lost revenue for one $.99 song?
Part of my point is - where do you draw that arbitrary line? In this situation why is it drawn where it is - which seams to me to be in obvious favor of the RIAA?
Hypothetically, what if a defendant could prove beyond a reasonable doubt that the only two people who uploaded a single song from her turned around and immediately deleted it without ever transferring the file to anyone else? Does she deserve to be charged more than the cost of lost revenue from 3 downloads (I'll even grant you the addition of attorney fees and punitive damages) This is part hypothetical, part curiosity... I really would like to find out the reasons why this law exists this way instead of just accepting that it is just and true. This case just doesn't make logical sense to me.
Right, so...because of the money. But since you call it my 'wages', it sounds like I have less lying around and need it a little more. If you're trying to set up some kind of them-or-me choice, that's the same shaky ground you were on before. Of course, if they were actually selling, and profiting off of my music, I would change my answer. But they're not. Technology has turned real scarcity into artificial scarcity, and a 6MB compressed version of a recording I made just isn't worth that much, as much as I, the hypothetical artist living off his work would like it to be.
While we're on the subject of, "If you were the artist." Let's look at it from the other side. There are pretty much two kinds of musicians out there: struggling, and household name. I know a few of the first kind, and I moonlight as one myself. I can't speak for all of them, but I know most of us would prefer our work gets shared 'illegally'/'stolen', to get it more exposure. If I were type 2, the household name, I wouldn't care at all, because, hey, I'm already loaded. Not enough money? Just do another concert or movie cameo. Labeling any of this as 'your wages are being stolen' is wrong (as in incorrect). There was a time when there were no recordings to sell at all, then it became profitable because it was so costly to reproduce recordings, and now, not.
As for financial ruin of the defendant, while unfortunate, is what happens when you do stuff that is wrong.Ok, next time someone cuts you off in traffic, I suppose you should rear-end them at the next light, at about 30mph. What they did was wrong, and they knew it was wrong; it put you at risk, and quite likely cost you money by making you late, maybe even to an important meeting! Apparently, that entitles you to ruin them, because there must be consequences. Seem excessive? You might have forgotten to include the properly scaled units in your calculation.
To be clear: I'm not arguing the RIAA's point here from an ethical standpoint, but rather explaining the legal issue. However I feel about a given law, I am nonetheless bound by it (and thus face consequences when I break it) unless I can show the law itself to have been unconstitutional. Here, however we all feel about these laws, this woman violated them and committed torts against the plaintiffs. She's liable, to the degree the law allows. Don' t like it? Change the laws.
Now, as to your specific point: your argument is valid, and I'm sorry to tell you that there isn't an easy answer.
First, all lines are arbitrary, when we decide that only Amount X of something is legal/non-tortious but all amounts above X are illegal/tortious. It doesn't matter whether we're talking about drugs ("personal possession" vs. "intent to distribute"), illegal funds, or copyright violations. So, something you've just got to accept is that the legislature (and to a lesser extent, the judiciary) are always forced to pick a line somewhere. The alternative is the absence of any line, i.e. complete legality. While we may argue for that sometimes, it doesn't change the responsibilities of the courts today.
Second, I agree with you entirely that file-sharing may, in fact, lead to greater sales in some situations for the RIAA. In fact, I think it's undeniable, in the same way that mix-tapes helped propel bands in the previous era of music (i.e. 70s-80s-early 90s). It is a simple fact that plenty of people are exposed to artists they would never encounter, in this fashion. However, it is entirely difficult (if not impossible) to determine the ratio of these sharing-generated sales to the sharing-lost sales.
Specifically, consider this: suppose I'm wishy-washy about a new Interpol album, and I download a track illicitly. I may or may not like the track, and thus may or may not buy the album as a result. How do you - in any reliable fashion - correlate the two in a manner that would enable the RIAA to know whether my sharing cost them a sale, or earned them one?
Now, you asked another question, which is pretty clever: what if the Defendant could prove conclusively that 100% of the people who downloaded data from her deleted it immediately, without either playing the data back (remember, a single playback is definitely a violation) or sharing it with others? Your question is clever because it proposes a situation where actual damages appears to be calculable (which would preclude the court from considering conjectural damages, generally). However, the issue is that it only appears so: in reality, the mere act of being visible as sharing is destructive to the trademark and copyright of the rights-owner. Think about it this way: if I see you on the street, offering to sell bootlegs of a movie in theaters, you're already damaging their rights. True, you may never sell a single bootleg, but the act of telling people that the copyrighted material is accessible in that way degrades the value of an exclusive copyright.
This is the issue many people have a hard time understanding: the value of a copyright/trademark is not just the right to exploit the intellectual property, but also the right to prevent others from exploiting it. By asserting your ability to exploit it regardless of the rights-owner's desire, you're actually diminishing the rights-owner's very rights! Damage is immediate.
Of course, the calculation of damages to be granted by the court is complicated, and I don't think I could do it full justice here without a series of legal citations, etc. Suffice to say, federal courts generally have a very significant discretion regarding damages (both juries and judges). There are limits - here, imposed by statute, if I recall correctly - but our nation's laws require the court to be able to make some plastic decisions about the particular issues in a specific case. This woman, as an example, blatantly lied to the court (as far as the fact-finders determined) about what happened, and for most courts that means greater fines. Perhaps if she'd come in contrite and penitent, they'd have given her a lighter fine. That's the vaguenesses of civil suits.
"Stumble before you crawl"
Ms. Thomas's lawyer presented the judge with a proper jury instruction. The judge initially agreed with him and accepted that instruction. Thereafter, the RIAA's lawyer convinced the judge to use an incorrect jury instruction. The instruction that was used relieved the plaintiff of having to prove any of the elements of a distribution under 17 USC 106(3). And indeed the plaintiffs had no evidence, and offered no evidence, of any of those elements.
Ray Beckerman +5 Insightful
We should also test the constitutionality and get a Supreme Court ruling on the definition of "limited", as it applies to the granting of copyright protections and as also applies to all other uses of the word "limited", from corporation "sales" to corporation and individual corporation actors liability, such as in Sarbanes-Oxley. I'm sure after we get the law establishing fines between $750 and $150,000 stricken from the law as unconstitutional, the next course of action goal should be to attack the length of time copyright applies. Certainly, it should be another easy Supreme Court victory to establish that "limited" certainly is not more than a lifetime.
I'd also like to see a ruling declaring that trolling the shared folders of others without a warrant, without a police license, for the purpose of criminal or civil suit is a violation of unreasonable search and seizure.
--monxrtr
I called it wages instead of money to make the distinction that its earned. Its not about artificial scarcity vs actual scarcity but that as the copyright owner you get to choose how much you charge for it. If I made a dodgy piece of software and demanded a million dollars for its purchase and you stole it, the judge wouldn't take into consideration if the software was worth the price, or if there was an 'inflated' demand as it was just ones and zeros - its my right to charge what I want for my stuff.
Your point about artists wanting exposure it true but irrelevant, as in this case they have signed a contract giving their intellectual property to the record companies for however much (which is irrelevant as a contract is a contract) which means that the record companies decide for the artist how to distribute the stuff. If the artists want their stuff shared they should look into alternative means of distribution or some other kind of contract with the record companies (which they are not likely to get). I'm not sure what you mean by the last line, but just as in software so it is in music that the cost of making a copy of the record is insignificant, and the real cost comes from making the first one! So that its inexpensive to reproduce is irrelevant as they are trying to recover and profit on the capital expense, not on the costs of reproduction!
This is a bit of a straw man attack - if someone cut you off, and it was illegal for them to do so (it would be difficult to prove in court) then you can recoup your damages in court - If it caused a substaticial amount of damage to you (i.e. they cut you off so you had an accident). Same here this woman caused damage to the record companies and so they have a right to recoup the cost (not lost profits but cost of the damage).
Thankyou for your reply.
Control is an illusion, order our comforting lie. From chaos, through chaos, into chaos we fly
You know, I don't think we're disputing any of this based on how the judge finds. The article, and the discussion here, is about scale. Getting nearly a quarter of a million dollars from a normal civilian is wrong. Yes, yes, so is distributing without copyright. But that doesn't make them equal. That's what the whole "You-break-the-law-you-go-to-jail" (or, in the case of your argument "-you-lose-all-your-money-forever") premise always seems to neglect. As to your new example of software, it's hard to imagine such a case in reality, but such a blatant display of disingenuous pricing and legal manipulation would hopefully factor into the court's decision; again maybe not on the judgment itself, but at least on the number of zeros in the penalty sum.
My point about artists was this: A lot of us don't like the charaterization making everyone think that Downloading Music From The Internet Is Illegal. It's often not illegal, and I would guess even more often not against the wishes of the artist. I am not speaking for Timbaland or Radiohead or anyone else, just the handful of guys I know who feel that way.
And finally, that was exactly my point you just made with the traffic case. You could try to take it to court; you'd probably have a tough case to prove. The scale of retaliation is different, and I would say the woman's actual harm done to the world is about the same scale of a bad move in traffic. Maybe wrong, buy definitely not worth that astronomical sum, unless it directly harmed someone.
Ok, I think we've done this to death, I'm afraid I've got some real work to get back to. Thanks as well.
Yes, but for the sake of accuracy let us remember that there was no proof of "distributing". The judge, at the RIAA's behest, specifically instructed the jury that the record companies did not have to prove that there was in fact any actual distribution.
Ray Beckerman +5 Insightful