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

Impossible?

[juuri]

'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.

Re:The DOJ is Right

[palladiate]

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.

Freakin' twilight zone here.

[palegray.net]

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.

"impossible for the true damages to be calculated"

[Dekar]

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?

Possible Defense?

[provigilman]

You know, I was just doing some thinking, and why not take this supposed "cost of infringement" and apply to the total number of downloads?

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.

Re:NO

[Optikschmoptik]

At the risk of being stoned here I would like to say I agree with that argument.

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.

Re:NO

[Shakrai]

At the risk of being stoned here

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 it

As 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 download

And 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?