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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.
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.
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.
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).
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.)
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?
$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....
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."
It's not enough to bash in heads, you've got to bash in minds. - Captain Hammer
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