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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.
'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.
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.
This is the same DoJ that claimed that George Washington and Abraham Lincoln made wide use of electronic surveillance against citizens...
A proper mature response to the troll would be, "no, you move."
you would not be fined $222,000 if you stole a few CDs from Walmart.
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?
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.
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.)
Remember kids: it's very important to be a selfish, slovenly pig. When you get 'caught' doing something everyone else does, just pay a small fine and go back to wallowing in your own filth.
I'm in Canada. I don't need to pay a fine before wallowing in my own filth!
Trolling is a art,
...says the anonymous coward...
Don't tell me to get a life. I'm a gamer; I have LOTS of lives!
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
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.
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.
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.
$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....
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
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.
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
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
Ray Beckerman +5 Insightful
$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).
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.
J'aime mieux les méchants que les imbéciles, parce qu'ils se reposent. -- Alexandre Dumas
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.
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