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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.'"
'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.
Courts have found in the past you cannot waive certain due process rights, and I'm pretty sure they may say you can't waive your rights prohibiting a cruel and unusual punishment.
Google fails me at the moment, but I remember a case a few years back about a death row inmate arguing he should be allowed to hang, but the courts said he couldn't agree to it because it's cruel and unusual.
This may be in the same category.
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.
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?
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.
You should admit you're wrong here I think.
If a court finds her rights were violated - then we agree that no matter what she agreed to or what her opinion is makes absolutely no difference. Since we also agree that she can't waive her constitutional rights by agreeing to the instructions - all we are left with by her implicit acknowledgement is an *opinion* that her rights were not violated. Since she is not a constitutional expert nor has she given any arguments for why she believes her rights were not violated, this opinion carries no weight.
Fair enough.
"A great democracy must be progressive or it will soon cease to be a great democracy." --Theodore Roosevelt
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
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.
Quite simple. Bush is well known for his malapropisms, so let's file this one into the same category.
It's a spelling error, and I suspect we're the ones making it. When they say the word "Just-us" we hear it and think they mean "Justice."
The living have better things to do than to continue hating the dead.
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.
Only under perjury that the notice is sent with the good faith belief that there is infringing going on. If you set it up specifically to look like an infringement, it wouldn't go far.
It's the same argument some pinheads use to go out and sell fake weed. They figure if an undercover cop buys some, hee hee, jokes on him because it's just oregano. Sorry Charlie, it's still trafficking and you still get raped in prison.
I don't need no instructions to know how to rock!!!!
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.
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.
$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).