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.'"

Comments

The good news...

[nunyadambinness]

That's not the DOJ's decision to make.

no surprises here then...

[advocate_one]

the American legal system, the best justice money can buy... stays bought...

Re:no surprises here then...

[zsavior]

And yet if you sue a company for killing a loved one, or if a doctor leaves his watch inside your loved ones body, they want you to be limited to how much you can sue them for. She is paying over 1k for a single song. But you have to limit yourself if a corporation or doctor takes your family members life. Good thing we know our priorities.

Re:no surprises here then...

[OrangeTide]

It is pretty obvious that Britney Spears and Usher are the priority in our society.

Re:no surprises here then...

[Man On Pink Corner]

It is pretty obvious that Britney Spears and Usher are the priority in our society.

They are indeed. Think about it: what else does America produce anymore besides "intellectual property"?

You can expect more Draconian copyright and IP as time goes by, not less. Our country has literally nothing else to offer the rest of the world.

Re:no surprises here then...

[Danse]

That single song - worth 99 cents on iTunes - may have found its way to 2,000 other PCs. It's a real shame then they didn't prove that it found its way anywhere at all. We should just assume that huge damage was caused even though there's no evidence of it? Apparently the government believes we should. Well, except for our President of course. He thinks sentences are too tough, at least when they apply to his friends.

Re:no surprises here then...

[Fallen Kell]

That single song - worth 99 cents on iTunes - may have found its way to 2,000 other PCs.

And they only have proof that it was indexed, not even proof that it made it to ONE other PC. To sue someone and say that the one individual is responsible for all other copies of that file on the internet would then mean that the single person is paying the bill for all those other people who then shared that same file out and others copied from that new location.

The RIAA is saying that because there are say, 50,000 copies (made up number) of that file on the net, this individual is responsible for all them. And they sue to get damages. They also press suits against all those other 50,000 people who have other copies, and sue each of them, again saying they are responsible for 50,000 copies. So, you are saying that the RIAA gets to sue for 50,000 people each for 50,000 copies, for a total of 2,500,000,000 copies, when there are only 50,000 in existence? Use some logic here. As much as I agree that she owes something for infringement, they should be able to collect damages from that person for the damages caused by other people down the chain. That is why you sue the person down the chain for their part. The problem is, the RIAA doesn't have the evidence to show who did what damage, but that problem shouldn't be the dependent's problem. The damages is always a problem for the plaintiff to show and PROVE. They can not PROVE ANY actual infringement, other then a name, an email, a screen name, and an index, but that doesn't prove how many people connected to her computer and downloaded a full copy of a song.

Re:no surprises here then...

[cpt kangarooski]

The copyright owner has the exclusive right - the constitutional right - to profit from his own creation.

That's not a very accurate statement.

First, copyright holders are not necessarily the authors of the works to which they hold a copyright; often the work is not their creation.

Second, copyright does not include an exclusive right to profit from a work.

Third, copyright is not a constitutional right. That Congress has a copyright power which it can exercise, or not, as it sees fit is not the same thing; if it were, I'd have a constitutional right to social security and freeways, since Congress exercised its powers to create those as well.

Re:no surprises here then...

[cfulmer]

Statutory damages are not based on actual damages. In most copyright infringement cases, damages are very hard to measure.

Let's turn this around and say that you actually had to prove damages to have any sort of recovery. In that framework, about the only thing the RIAA could do is get an injunction telling her to stop. But, that doesn't deter anybody from infringing. In fact, it's effectively a license to infringe until you're caught.

Re:no surprises here then...

[westlake]

seriously, who's paying you to write such rubbish on slashdot?

the uploader risks exposure to statutory damages for the simple reason that his contribution to the P2P nets may be copied and recopied without any known or knowable limits.

Why am I not surprised?

[PhxBlue]

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.

Re:Why am I not surprised?

[PhxBlue]

Try "A branch of the American government that's come to represent the exact opposite of its name." What kind of "justice" department condones torture?

Love the logic.

[Basilius]

'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.'

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.

Re:Love the logic.

[Pharmboy]

Next up:

Well, you have a gun. We aren't sure how many people you killed, but you might have killed a bunch, so we are going to electrocute you. 9000 times. Thank you.

Re:Of Course They Do

[pravuil]

A proper mature response to the troll would be, "no, you move."

It is excessive because...

[Alexpkeaton1010]

you would not be fined $222,000 if you stole a few CDs from Walmart.

Two cents (no, really)

[wile_e_wonka]

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).

File sharing math

[CopaceticOpus]

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.)

Re:NO

[Cassius Corodes]

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).

Further acts of infringement

[BootNinja]

'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.'

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?

Re:Further acts of infringement

[Dhalka226]

You are the one who started the ball rolling. You are the one who made it possible.

So what?

If I have a gun in the house and somebody uses it to kill somebody, am I charged with murder? If I borrow my brother's car and accidentally leave the keys inside and somebody steals it, am I a car thief?

Or more applicable to the situation, if I sell you drugs and you sell them to 10 other people, do I get charged with 11 counts or 1?

If I make files available, I should be liable for the people who download it from me. I should absolutely NOT be liable for what anybody who got it from me does with it; that responsibility falls on them the same as it fell on me.

Re:NO

[timmarhy]

your problem is that it's not the juries job to calculate the conceivable losses, but the actual losses. the reasoning being that it's conceivable that the RIAA lost NOTHING due to her pirating.

$9000+ per song is nonsense, the music industry would do far better if they took a more generous stance in these matters

Re:She deserves the fine

[vux984]

it's paying as a punishment for illegally redistributing it, and as a deterrent to future piracy.

Gotcha, so why exactly do we multiply the punishment times the number of songs that were simultaneously shared from a single computer as part of a single instance of a single crime?

$9250 total already seems a bit excessive as punishment for a first conviction of illegally sharing some songs via p2p for no personal gain.

$9250 per song... that's just stupid.

I know a 12 year old who shares some 10,000 songs via p2p; should he or his parents really be fined $92 million?

And for each instance, there should be a greater than 1 to 1 fine so that it's actually a punishment and deterrent.

Right, but its only one instance of the crime. They only got convicted once. It doesn't matter that they were sharing multiple songs.

If a guy steals a handful of bulk M&M's do you count the M's? If a cop pulls you over for speeding do you get charged for each yard you were observed speeding or for each mile over the limit you are? I can see it now...

"Sir, I followed you for the last mile and you consistently went 67. This stretch is a 55. So I'm fining you, and we really need this to be an actual punishment and deterrent so I'll set the base fine at $9250 per instance of the crime."

"Now lets see, there are 63360 inches in a mile, and you were speeding in each one of them... so 63360 x 9250... you owe just over 586 million dollars. I hope you've learned your lesson, son. Your just lucky I pulled you over when I did, I have a suspicion you would have kept up your pace at least another 20 miles if I hadn't. And you know,... this town has always wanted its own jet fighter squadron."

Re:NO

[Danse]

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. You speak as if the jury actually had a choice. With all the instructions they are usually given, they often have little if any choice between letting the person off completely or throwing the Library of Congress at them. I don't know what the judge's instructions to them were, or why, but I think that you're assuming too much. Then there's the fact that the RIAA wasn't able to prove any damage at all, only the possibility that there could have been damage. In light of that, it would seem that the courts should show a bit of skepticism regarding the very large amounts that the plaintiffs are after.

Re:NO

[mmeister]

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.

OK, let's try 100 times actual damages!

[argent]

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.

Re:NO

[quest(answer)ion]

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. you are dead right in pointing out that this is about distribution infringement, not any kind of "using without paying" nonsense, and i'm glad somebody is finally drawing attention to the difference. fact is, a better comparison is a radio station, which pays something much closer to nine grand a song for the right to play it repeatedly and make money off it. IANAradiohost, but you get the idea.

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.

Re:NO

[spun]

Why does everything need to be hate-bush-speak? Because there is so much to hate? He is the worst president, ever. Bar none. Most of the country feels that way. There have been no repercussions for his crimes. We still talk about it because we're still angry that nothing has been done. Clinton gets impeached for lying about a blow job, Bush lies about everything and gets away scott free.

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.

Who Gets the Money?

[aplusjimages]

Seriously, do the artist get the money from these lawsuits, or does it go straight into an executives pocket?

Re:Why is this tagged Republicans?

[coolGuyZak]

Quite possibly because the DOJ is controlled by one or more Republicans at the moment.

Bogus

[Anonymous Coward]

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.

Re:She deserves the fine

[NewYorkCountryLawyer]

It it was simple to pay and didn't have a serious impact on the convicted then it wouldn't really be much of a fine now would it. 1. She wasn't "convicted" of anything.

2. It's not supposed to be a "fine", it's supposed to be a civil jury verdict awarding reasonable compensation from the defendant to the plaintiff.

Re:She deserves the fine

[ccady]

You cut off one finger. You cut off ten. Tell the victim that it makes no difference--it's only one crime. You kill one person, you kill a thousand. It's still one bomb. Explain that to the families.

Tough on crime?

[patiodragon]

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.

Re:NO

[NewYorkCountryLawyer]

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.