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$1.9 Million Award In Thomas Case Raises Constitutional Questions
Techdirt points out that the EFF is examining the constitutionality of the recent $1.9 million verdict awarded in favor of the RIAA against Jammie Thomas. While on the surface it may seem that this excessive award should be easy to overturn since grossly excessive punitive damage awards are considered to violate the Due Process clause of the US Constitution, the Supreme Court seems to have been ignoring precedent and upholding copyright's importance at any cost. "Given the size of the statutory damages award, Ms. Thomas-Rasset's legal team will likely be seriously considering a constitutional challenge to the verdict. A large and disproportionate damage award like this raises at least two potential constitutional concerns. First, the Supreme Court has made it clear that 'grossly excessive' punitive damage awards (e.g., $2 million award against BMW for selling a repainted BMW as 'new') violate the Due Process clause of the US Constitution. In evaluating whether an award 'grossly excessive,' courts evaluate three criteria: 1) the degree of reprehensibility of the defendant's actions, 2) the disparity between the harm to the plaintiff and the punitive award, and 3) the similarity or difference between the punitive award and civil penalties authorized or imposed in comparable situations. Does a $1.92 million award for sharing 24 songs cross the line into 'grossly excessive?' And do these Due Process limitations apply differently to statutory damages than to punitive damages? These are questions that the court will have to decide if the issue is raised by Ms. Thomas-Rasset's attorneys."
Depressing as hell, but the system is bought, paid for, and bent beyond repair.
I think they should subpoena the jury and ask them exactly how they came up with $2M in damages. As I noted before. This sounds extremely fishy that they would award that type of money to the RIAA. I suspect there was jury tampering involved.
But this definitely should be examined. These asinine penalties for a non-commercial copyright infringement is just insane. Hell, even for commercial copyright infringement... $1.9 million for someone selling essentially two copied CD's? Does that sound right to anyone other than someone who works for the RIAA directly or indirectly?
My blog. Good stuff (when I remember to update it). Read it.
...if her lawyers planned or even steered this way since it may be a more fruitful avenue to pursue in the end. Either way it's absolutely absurd and obscene. It's pretty obvious this whole house of cards the recording industry has made will fall, the question is just which attack will make it finally crumble?
"Christ what a design! I could eat a handful of iron filings and PUKE a better emergency pump than that!"
How does a mere mortal actually pay a judgment like this?
The RIAA has been making very telling statements after the verdict. They realize that with a judgment like this public reaction is more than just turning on them. The fact that it is also hurting their brands (Sony, EMI, Universal, Warner Bros) is also worrying them. Eventually they will cave or lose.
When it's large damages against a company the Supremes know it's not good. But statutory damages to an individual that lines the pockets of business, that's great! (For 5 of 9 anyways). Summary: businesses good, people bad.
Terrorist, bomb, al Qaeda, nuclear, yellowcake, kill, assassinate. Carnivore is dead... long live Echelon.
The exxon valdez jury awarded 5 billion dollars in punitive damages. That oil spill has left a ring around that bay that is clearly visible to this day. The courts reduced this by a factor of 10. Because it would be unfair to make one of the worlds richest and most profitable companies pay for their own f--kups that continue to afflict Alaska. Will this kid get a reduction? No. Becouse the court is a conservative court of 7 justices apointed by republican presidents. What does it mean that the court is conservative? The Court sides with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff.â Thatâ(TM)s conservative jurisprudence in a nutshell.
I dont do meaning of life questions.
The RIAA always talks about how they are just protecting the interests of the artists. It stands to reason that this is a reflexive property.
If that is valid (and I certainly believe the first part of the supposition above is highly questionable), then here are the people you should hold accountable for this travesty of justice; the artists on her list:
I have a Green Day album and a couple Aerosmith albums. I figure to send it back with a suitably sardonic letter referencing the fact that I no longer want their music, and if they are in such financial hardship, they can re-sell it to help them put food on the table.
Stop-Prism.org: Opt Out of Surveillance
I think this was part of the defense strategy. I think they wanted a huge dollar amount awarded to the RIAA. Perhaps to get public sympathy, or even challenge it on the basis of due process. Besides, how can any average individual pay $2 million?
The amount is excessive, she should be fined something like $100 a song. With the option of buying songs for around a buck...come on...quit rippin off the artists....How long is this dead horse going to be beat?
The RIAA purpose is to protect the artists.
For some strange reason it is run by the record companies which are the biggest offenders for ripping off the artists. I have not seen one case of the RIAA trying to protect the artists from the record companies. There is also ample proof of them ripping off the consumers, suing on behalf of someone who released their songs for free download, blatant lies and slander. Oddly enough most of the proof of the lies and slander you can find by reading the press releases then going to the studies that they provide on the RIAA site that does not support their press releases.
So my question is with them being so blatantly illegal, why aren't these guys all in jail?
Microsoft, Apple, Google, Amazon what's the difference? All steal money from devs and control with walled gardens.
I wonder myself whether the defense DELIBERATELY anticipated a huge defeat in not refuting evidence or calling expert witnesses,
all in an attempt to "shoot the moon" and get unreasonably high damages awarded which would, as it happened, stir controversy and
undermine the RIAA in future venues up the court chain. Thomas was certainly painted as a victim in media coverage, (rightly so, yes)
and the idea that ANY song is worth 80,000$ for being stolen in ANY form is pretty ludicrous and now widely acknowledged as such.
Amendment 8:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Courts have held that damages awarded in civil suits are not "fines". Was this case a criminal or civil process?
-jcr
The only title of honor that a tyrant can grant is "Enemy of the State."
Just as somebody who really did not have any interest in this, and am quite willing to pay for music.
This is complete nonsense and will not even serve the RIAA's interests. This penalty is so far out of line that it is completely fantasy, the risk of being sued for millions of dollars is so abstract and impossible to prepare for that the logical thing to do is ignore it. Also even copying ONE song has in effect bankrupted you, so there is no financial incentive not to copy more.
If they really wanted to make a deterrent, a civil case where the person is fined about $50 per song would be much more effective.
Didn't the supreme's just set a precedent for excessive damage awards when they whacked the exxon valdez award a couples years back? Why not use that ratio as precedent for all such future damage awards?
Perhaps all those artists could do a benefit concert for Ms. Thomas and raise enough money to pay off the RIAA.
Beer is proof that God loves us and wants us to be happy.
24 songs
99 cents per song
100 leechers on P2P, per song
24 x $0.99 x 100 = $2376.
Still excessive, but not life-threatening.
That isn't a hard question to answer; they have a lot of money, and a lot of lawyers, and as such are not subject to the same law that you and I are subject to.
People,
Just stop buying products from the RIAA. Find a way to pay the artists directly ... This way, the artists will actually start to get some money.
As long as we fund the RIAA, these corrupt organizations will have the cash to hurt us all.
Cut out the middle man.
AC
PS F@ck the RIAA
The RIAA purpose is to protect the artists.
Nope. That's what they say, but I doubt it's ever been true. That "I" in there stands for "industry". In this case, the acronym is completely accurate. The association serves the industry, not the artists.
1) the degree of reprehensibility of the defendant's actions
File sharing with the intent to avoid paying for a product or help others circumvent paying for a product is, at least to some degree, reprehensible. (I am assuming objectivity and being reasonable.) However, from the facts of this particular case, it doesn't seem that the act is so blatantly reprehensible that it warrants a life-sentence worth of monetary damages.
2) the disparity between the harm to the plaintiff and the punitive award
This seems huge to me. Though I don't have the facts on this case and might judge differently if I did, it seems that the RIAA will have an incredibly hard time showing that the damages they incurred are even one a hundredth of the punitive damages. The 24 songs this woman had available would have to have been WIDELY disseminated to reach that kind of number. It will be interesting to see what kind of evidence they produce to address this question.
3) the similarity or difference between the punitive award and civil penalties authorized or imposed in comparable situations.
This is where the Eighth Amendment has tangential application. (None that takes direct legal effect, but still affects the approach that the courts' take.) This is obviously an incredibly excessive fine. Punitive damages, as the name obviously indicates, act to "punish" the individual for bad behavior. Two-million dollars as punishment for twenty-four files could very easily be considered excessive, egregious, unconscionable, or any other term for "whacked out" that I can think of.
Who the hell gave a jury of dumb-asses the authority to set the amount of the fine? What a bunch of ignorant incompetent couch potatoes!
How can they legally justify this fine when people who download the music, copy it unto disks and then sell it at car boot sales etc., only get a slap on the wrists if caught (for small quantities anyway- i.e. a dozen or so disks). Is the crime somehow worse if it's all done online?
Now that she's been sentenced to be an undischargeable bankrupt, is there actually anything more they can do to her in the civil courts? What's to stop her from ripping and sharing a hundred thousand songs from CDs at the library? What more can they actually do that they haven't, over a pissy 24 of them?
Seems like a pretty huge gamble to not only saddle your client with a huge unpayable debt but also set precedence for future cases just on the hope that it would stir public opinion enough to overcome the powerful RIAA lobby and get favorable legislative action on the issue, meanwhile hoping you can somehow get the ruling reversed on appeal (maybe due to ineffective counsel?) If my lawyer tried a tactic like that, they would be fired well before the trial.
Well, $1.92 million divided by 24 songs = $80,000 per song. I wonder what the artists received per song? I hope this triggers a review of the true costs and show how much the artists get.
I wonder if this might show that RIAA members are actually scamming the artists and don't deserve the damages rewarded.
Question for Lawyer types: If I buy an item from you for $1, then sell them for $5000 each, should damages be affected by the huge disparity is cost vs price?
As for me, I'll continue to boycott buying anything from Sony, etc. It is against my moral code to support companies that behave in such an evil fashion.
Place nail here >+
I'm perplexed by the statement about the US Supreme Court. The Supreme Court's jurisprudence in the area of knocking down excessive "punitive awards" is well established, and would most assuredly lead to the RIAA's statutory damages theory being crushed. See amicus curiae brief, which summarizes and discusses the applicable authorities.
Ray Beckerman +5 Insightful
Maybe we should just stop buying their music all-together. The RIAA will not last too long if they make $0.00 because no one is buying something that they are not allowed legal rights to any way.
I'd say the defense should get shit for legal malpractice.
Such rulings are abominations.
I am the richest astronaut ever to win the superbowl.
What happened to infringement needing to have some sort of commercial or otherwise monetary gain? P2P sharing is (generally) not for monetary gain. Regardless of whether it's right or wrong to do so, the intent of large damages is to discourage commercial copyright infringement, not to pick on the little people.
What a sad joke the judicial system is.
Is that supposed to be "justice"? I think by anyone's definition that is just plain stupid.
Not to mention pointless. The fine might as well be for a Gajillion dollars, 'cause she ain't got that either.
Paint her legal team and sell them as new.
--- What?
I know most feel the damages should be a fair price for the music but that system has no downside except for the mass downloaders. In France for example the fine for being caught hoping the turnstiles for the Metro trains is the price of a ticket. The end result is hardly anyone is fined and virtually everyone under the age of 25 hops the turnstiles rather than pay. The damages are laughable in this case which doesn't help their cause but the only way for the providers to survive is to make most people hesitate to download. Imagine shoplifting, yes I know all the digital arguments but say if you only had to pay for items you were caught taking and there was no jail time or record of the crime. How many people would shoplift? The numbers are high already so the numbers would explode and the stores would go out of business over night. The damages need to be more reasonable but if there's nothing punitive then there's no deterrent.
Uh, there's a problem with appeals and excessive amounts. In same cases (although not in civil courts I think, IANAL/correct me at will), you have to post a portion of the money to appeal directly. However in this case due to constitutionality might not be the case.
I'm wondering how good the replacement lawyer was and if that has a factor as well.
Basically the whole case is wide open to appeals though, all around.
From the sounds of it, the client was unable to pay their initial settlement offer of a few thousand.
If thats the case then is there much different between being bankrupt and unable to pay say $50,000 or $5,000,000?
I am a free slashdotter. I will not be modded, blogged, DRM'd, patented, podcasted or RFID'd. My life is my own.
I am a lawyer.
The EFF is going to run out of rope really fast. BMW v. Gore said it was about factors, but it was really about notice. Could BMW really expect such a dramatically large punitive-damages award? Maybe not, for the conduct alleged. Here, legally speaking, Jammie had notice: there was a statute putting her on notice of the fact that a jury could award these damages if it wanted.
Anyway, with the Court's current composition, arguing that BMW v. Gore should be expanded to statutory damages is a non-starter. That opinion barely made it through as it was. Just look at the dissents--Ginsberg, joined by Rehnquist? The Court's only gotten more government-friendly since then.
I don't know much adjudicatory criminal procedure; maybe the 8th Amendment is the way to go.
No system is perfect. Reforming could not make your system perfect. It doesn't mean that it would be as good as it can be, the best one around or even good. It is none of those.
Europeans have considered USA justice system a joke for decades. Where I live, it is very common subject for jokes. As in... You can sue for unbelievably stupid reasons. You can actually win those law suits. And you can win massive amounts.
In no other country than USA would MacDonalds be sued because the coffee is too hot and burns your lap when you spill it while drinking coffee and driving. And in no other country would Mac Donalds then decide "There is risk that this can happen again, so we need to specifically put a 'coffee is hot' warning label.". Same goes for suing fast food chains because you are too fat, suing microwave oven company because your cat died when you put it in a microwave oven...
No system is perfect but the one you guys have just sucks. A lot.
Don't you USians have that little clause that prohibits "cruel and unusual punishment"? 1.9M for an average person is their whole life earnings. She could have stole a CD from a store with 24 songs on it and got a slap on the wrist. What makes it so different that it is done on a computer? This cruel punishment should also apply to the people down there who take a pee in the bushes on their way home from the bar and are branded "sex-offenders" for the rest of their life. The US is hysterical and real people are being burnt as witches.
Shh.
Trillions in bailouts to banks that wasted the untold fortunes of the average person's retirement funds in vain attempts they knew should have failed to make the rich beyond need bankers even more fucking rich, and the courts have a audacity to award the perveyors of packaged pop poop almost $100k per song shared? You people are totally fucked in the head. If it gets like this in Canada I am leaving - but where can I go that's not that inasane? Jeebus jumpin jehosiphat!
Going on means going far
Going far means returning
I agree. Part of the problem here is that some jurors go nuts when presented with the opportunity to award seven-figure damages, since it's more money than most of them will ever deal with in their lives.
-jcr
The only title of honor that a tyrant can grant is "Enemy of the State."
A bunch of out of touch idiots who have no real idea how society or technology works.
My question is, "Was this case set up for an appeal?" It seems interesting that the defense made a very simple case at trial,did not oppose bad evidence with vigor and then didn't strenuously go after the jury instructions, which seemed to be missing quite a bit of important details. Almost was like the battle was forfeit to win the war at a later date.
Would be interesting to get a few attorneys to comment...
-- $G
If you don't understand the fact that Kazaa makes available for distribution to other people every file that you yourself download, then your actions are not morally reprehensible. Downloading is not infringement; unauthorized distribution of copyrighted material is.
I've abandoned my search for truth; now I'm just looking for some useful delusions.
The 8th has been dead for a long while. The death knell was when the electric chair was ruled as not being 'unusual' because it was used in the USA, and therefore legal (it's okay to be cruel or unusual, apparently, just not both).
I am TheRaven on Soylent News
1) the degree of reprehensibility of the defendant's actions
Reprehensibility? That's sure to be objectively defined and fairly applied. Is it illegal to be reprehensible now?
2) the disparity between the harm to the plaintiff and the punitive award
Seems to me that this difference should always be $0.
3) the similarity or difference between the punitive award and civil penalties authorized or imposed in comparable situations.
We have these things separated out for a reason.
Limit the civil awards in cases like these - copying widely sold information in this case a song - should be limited to 3 times the typical sale price.
If the we as a society determine that the "crime" of copyright infringement is so severe that it requires tougher sanctions, then make willful infringement a criminal offense.
This will do two things:
1) it will give the defendants many more rights and raise the bar to prosecution
2) it will gain more public attention and the people will rise up and demand that low-level infringement be decriminalized. Unless of course society does think it should be a crime.
In any case, civil damages beyond actual damages shouldn't be much higher than 3x.
Knowledge is how to play a game, intelligence is how to win, wisdom is knowing what game to play.
Jabari, a 300-pound gorilla, escaped from his enclosure and went on an angry rampage through the zoo. Police shot and killed him on the zoo grounds, but not before he seriously injured Reichert, Heard and 3-year-old Rivers Heard.
The Dallas City Council, which oversees the zoo, is scheduled to approve a $500,000 financial settlement with Heard and Reichert during a special meeting Friday at City Hall. The money is meant to compensate the women and their children for their physical injuries and emotional trauma.
State law caps civil damage awards against a city government at $500,000.
So the RIAA gets nearly $2 Million, while these people with real physical and emotional injuries get 25% of that.
I don't think so...
PS wasn't she guilty of making available. That's a continuous thing. You don't accuse someone of killing another and then multiply that by the number of days the person they killed isn't alive, do you?
"And the dead man has been dead for 832 days, meaning each day he's been killed by this man. He should serve 832 life sentences!!!"
Yeah, read the McDonald's case.
They consistantly brewed their coffee at 180F. Industry standard is 140F or so. There were multiple complains their coffee was too hot, dating back years. They were warned repeatedly about this. There was a paper trail. There were prior cases of 3rd degree burns.
Furthermore, the victim wasn't driving at the time. In the car, yes, but not driving. In fact, she was a passenger and the car was in park.
So when this case ended, McDonald's was slapped not only for this incident, but for their apathy for ignoring the problem for so long (which is what punitive damages are for: to finally get you to stop ignoring the complains and industry regulations.)
And sometimes lawsuits are the only ways to get companies to straighten up. Simple calls to Customer Service does nothing. If you want nutritional (heh) info on that chocolate shake, you'll likely have to sue them to actually get the attention of a corporation. Course, that's slightly different than suing them because apparently the fast food place tied you to a chair and force fed you burgers and fries a la the gluttony victim in Se7en... ...Not touching the cat one.
The courts are really the only route individuals have to get a company to pay attention about an issue. Furthermore, one of the GOOD things about our system is anyone CAN sue anyone else. It's just you've got the burden of actually having to prove your case when it goes to trial.
Judges can interpret and apply the laws in many ways. There are so many laws - they can pick the laws they want to apply.
:).
Same goes for the prosecution in criminal cases.
AFAIK nobody has ever been sentenced to life imprisonment for adultery in Michigan. Even though that is how the law is written. Go check it out
If 1.9 million for copying a song is not cruel and unusual punishment, then maybe life imprisonment for adultery is fine too.
Some may say adultery is not a serious offense, but a lot of spouses may argue otherwise.
Seems like a pretty huge gamble to not only saddle your client with a huge unpayable debt but also set precedence for future cases just on the hope that it would stir public opinion enough to overcome the powerful RIAA lobby and get favorable legislative action on the issue, meanwhile hoping you can somehow get the ruling reversed on appeal (maybe due to ineffective counsel?) If my lawyer tried a tactic like that, they would be fired well before the trial.
You'd have to assume that if it was done, it was done with Thomas's knowledge and consent... perhaps even her idea.
May I point you to http://en.wikipedia.org/wiki/Rosa_Parks and http://en.wikipedia.org/wiki/Claudette_Colvin .
Claudette got busted and had to serve the time, on the other hand Rosa Parks intentionally broke the law with the purpose of challenging it in court. So, no, I would not fire my lawyer if that was my intention.
I don't think that she would have gotten smacked down with a 2M fine had she plead guilty, there probably wouldn't have even been a trial. So even though her defense was weak could it have been intentionally so?
"She still spilled it." I believe there's a bit about the lids not fitting properly. That sorta negates your in-no-way-parallel example. Especially since your father is unlikely to have made the tea to 180, and I doubt the friend received 3rd degree burns.
Canada: The US's more awesome sibling.
You brew coffee at 195-205F. 140 would get you tepid colored water unless you increased the extraction time to something totally unreasonable for commercial production and even then it wouldn't taste quite right since both time and temperature determine what you extract from the grounds.
In the face of economic terrorism and a complete lack of juristic integrity I suggest a repayment schedule of $1.00 per month until the death of the defendant.
If I were compelled to pay (and had anything to take) I would destroy all cash, property, etc to deny the mafiosi their big score.
Better to destroy everything of value than yield to terroristic demands.
I killed da wabbit -Elmer Fudd
[...] fought for freedom and began a war of independence over unfair taxation?
Unfair taxation = "No taxation without representation."
I fail to see how either point is relevant here. She isn't being taxed by the government, she's being fined for infringing copyright (intent to distribute without the copyright owner's permission).
Additionally, this is a far cry from a struggle for parliamentary (or nowadays congressional) representation.
Please don't place our forefathers' fight for representation/independence on the low level of this woman's choice to download music illegally. She surely knew the illegality and that consequences would arise from her decision.
I suppose that's true, and maybe she was figuring she wanted to be the poster child for this fight and would just file for bankruptcy if it didn't work out the way she wanted it to. Not a road I would have chosen, but to each their own I guess.
I agree, if I didn't know better, I'd think it was the RIAA intentionally buying out the defense lawyers somewhere so they can set a legal precedent on a case ruling in their favor.
Because they fund the political campaigns of Democrats and Republicans.
Well, since they're changing copyright law from civil to criminal. I think we should raise arms and destroy RIAA as an Enemy of the People threatening the Constitution and the peace of the state.
They are a ''product'' so the best way to punish producers is massive boycott. It is totally lawful too.
If they see one stadium empty, they will be shocked. Imagine seeing 10 stadiums empty, we would see massive resignation of record company execs, liquidation of RIAA etc.
It is all up to their listeners. Especially Green Day listeners thinking they are socially something. Green Day is a 'rock' band and rock bands are the stadium fillers.
One question while we speak about Green Day... Do you think paying 2 million dollars on behalf of someone hurt them? Lets think in evil corporate way... How many tens of millions of dollars in publicity, image you can get by just paying 2M dollars? Also do you have the 'from left pocket to right pocket' saying there?
Their producers, management doesn't even get this idea?
1) Pay 2 M dollars on behalf of the woman
2) Publicly denounce RIAA and fight with your record company for being member of RIAA
3) Profit 10x in terms of PR and sales boost.
or...
Metallica. Why were we mad to Lars again?
180-185F is the proper temperature for steeping many teas.
1. once upon a time, there was a set of gentleman's agreements agreed upon between large publishers of vinyl and plastic cassettes
2. poof: teh intarwebs appears
3. new ability: every pock marked teenager in the world now has greater distribution powers than bertlesmann + time warner + every publisher that has ever existed: "hey my friend in novosibirsk, this is cape town: you want the entire creative output of that new zealand lounger singer bic runga? here ya go"
4. response of publishers to new ability: apply to every single pock marked teenager the set of rules agreed upon between rich executives in oak paneled golf clubs over mint juleps
intellectual property law is philosophically incoherent. it is your moral duty to ignore it or sabotage it
A burn is a burn, cold coffee is cold coffee. You be the judge. I always order my latte with milk at 150F otherwise I can't drink it for several minutes.
Views expressed do not necessarily reflect those of the author.
Rosa Parks intentionally broke the law because she was tired and didn't want to walk to the back of the bus.
I don't mean to play down the significance of what she did, I'm just saying that court was the farthest thing from her mind at the time.
I am Jack's complete lack of surprise.
"the degree of reprehensibility of the defendant's actions"
Yet another way her courtroom shenanigans and tomfoolery are going to bite her in the ass. I'm opposed to full-scale IP-less law(lessness), but I'm pretty much disgusted with everyone involved in this case, from the prosecution, to the defense, to the judge, jury, defendant and RIAA. They should all be ashamed of themselves for making a mockery of both copyright law and the American judicial system.
Porquoi?
I thought we were past worrying about the Constitution. Nobody pays attention to that dusty old relic except to pay lip service to it. I don't think the average congress critter has ever even read it.
Well, she's already saddled with an unpayable debt. Ultimately, once you get to a certain point, there's no tangible difference between one debt she can never pay and a much larger debt. There's no way she could have paid $222,000 either.
According to Robert Fripps Blog http://www.dgmlive.com/diaries.htm?artist=&show=&member=3&entry=8114 EMI Are selling King Crimson's songs without having a license an hence are infringing. If only 1% of US based slasdotters purchased one of their tunes.... and applying this precedent.... with additional damages because it was for money.... a thousand of listeners could wipe out EMI and finally an artist would get something!
First, you can make good iced coffee using cold extraction.
Second, he's actually referring to holding temperature, not brewing temperature (even though he says brewing temperature).
$1.00 a month seems reasonable to me. At that rate she might even finish paying before the copyrights expire.
The US system of justice gives the jury the authority to set the amount. The rule telling them what amounts are permissible is written into the DMCA. The DMCA was passed unanimously by the US Congress (except one abstention, I think). So that's who.
And since the statutory limits are between $750 and $150,000 per work infringed, the jury essentially answered the question "on a scale from 0 to 10, how willfully did she infringe the copyrights?" with a 5.3
So overall, I don't think it was the jury who was a bunch of dumb-asses.
I wonder myself whether the defense DELIBERATELY anticipated a huge defeat in not refuting evidence or calling expert witnesses,
all in an attempt to "shoot the moon" and get unreasonably high damages awarded which would, as it happened, stir controversy and
undermine the RIAA in future venues up the court chain.
It is not the job of the lawyer to change laws, and they know that. And if he didn't defend his client to the full extent of the law, he's going to lose his job pretty quickly.
If you want to change a law, send a letter to Congress, and do some bri^H^H^Hlobbying.
What I'm going to say here, I do not say specifically in context to the Jammie Thomas case - I do think this seems rather unreasonable for what she did. But, there is a larger question - is it ever reasonable to have punative damages that are much larger than the actual damage? I think that yes, in some cases there are.
Consider hypothetically any sort of business that profits from any sort of illegal activity - whether that's theft, or building unsafe cars knowing that only 3 out of a 100000 of your customers will actually be injured by the car. If you, as this company, only have to pay actual damages (or only small punitive damages) to those three out of 100000 customers, you might decide it's more profitable to break the laws regarding safety (because you have 99,997 customers who you won't have to pay damages to) and pay the damages, than to build the car the right way and save those three customers from death or injury.
Or, for theft. Let's say instead of sending thieves to jail (I'm not including copyright violators as thieves here, but people who really bust into people's businesses, houses or cars and take stuff, or pickpockets) we just made the thieves give back what they took, and maybe made them pay an additional $100. If you did that, you'd have a heck of a lot of thieves, because the chances are you'd only get caught thieving maybe 1 in 10. So, 90% of the time you get to keep what you stole (that is, you profit from it), and maybe 10 percent of the time you have to give it back and pay $100. If that were the case, theft would be highly profitable. So, you put very high punitive damages (in this case, years in jail) on the bad behavior, to make it so that even getting caught once makes it not worth it ever to steal (or at least, that's the theory).
The RIAA faces a somewhat analogous situation. In reality, they can only catch and sue a vanishingly small number of copyright violators - they can't catch and sue everyone who does it (I have no idea what the real numbers are, but I wouldn't be surprised if it was at least 1-in-a-million). So, they want to make it hella scary to face their lawsuits, so it's not worth it to risk even getting caught once. The question we have to decide as a society is, do we think copyright infringement is serious enough of a problem, like theft, or selling unsafe products, that it is just to severely punish that.
I'm not sure that 2 Million dollars is reasonable, but I can't help but thinking that it's gotta be much larger than the actual cost of the tracks that were illegally copied. Maybe something like $200 per song - so that would be damages of like $4,800 in this case. That seems steep enough, seems like, to be a somewhat effective deterrent, while being low enough that someone could reasonably be expected to be able to pay it without totally bankrupting them - you could setup monthly payments - $100/mo for 48 months or something like that. That would be enough damages to make me think twice about sharing out songs. Sure, it's still not super likely I'd be found and sued, but if I was, I'd know that I'd be facing manageable but very unpleasant consequences.
If they actually put it in working thermoses, it would stay hot for hours even if it started at an acceptable temperature. My thermos, for example, will keep drinking-temperature coffee at about the same temperature for at least 10 hours.
Rosa Parks intentionally broke the law because she was tired and didn't want to walk to the back of the bus. I don't mean to play down the significance of what she did, I'm just saying that court was the farthest thing from her mind at the time.
"People always say that I didn't give up my seat because I was tired, but that isn't true. I was not tired physically, or no more tired than I usually was at the end of a working day. I was not old, although some people have an image of me as being old then. I was forty-two. No, the only tired I was, was tired of giving in." -- Rosa Parks
Please at least try to learn something about what you're talking about before you say something foolish.
I don't think you make any sense here. If I understand your position correctly it is this:
1) Person A can get thousands(*) of items that each normally cost $0.99 without paying. Also Person A shares those thousands of items with all comers.
2) People B -- who would normally be paid -- should have to spend thousands of dollars to take Person A to court.
3) Person A should then be able to claim innocence in court -- while lying, destroying evidence, etc.
4) The jury finds person A liable.
5) Finally People B should be paid $0.99 per item, for a grand total of $23.76.
Sorry, but the system won't work under your fantasy rules.
* - Yes, she had thousands of songs in her kazaa share folder. They just chose 24 specific examples in order to keep things manageable in court.
Slapping a company with excessive punitive damages is one thing... even a gang of guys running a counterfeit / illegal CD duplication for profit being convicted and having to pay a huge fine is also just.
But dragging a mom with no money into the hole like that is just a bad example of using the law... yes, it was wrong what she did, but the fine is just grossly inappropriate, even if she lied to try to cover her ass... she should have been forced to pay a few thousand bucks for the infringement and community service for the perjury, but that's it.
They would never get the money anyway, but severely impact the rest of her life and her family. It's just not right.
You know, you Americans (whom I otherwise keep in high regard), with all your "right to bear arms" explained as a way to resist the govt. when it becomes too powerful, seem to take a lot of cock up your asses lately. The corporations are playing you like fiddle, and there is no sign of even indignation - there should be an upheaval, Iran-style, and they don't even have that constitutionally-given right to have assault rifles at home, like you guys do.
Also: Jammie Thomas has more balls than most men I know. In a country submerged by cynicism and hedonism, it's a miracle there's one person trying to fight for what's right. Not necessarily for the common good (though that would have been the consequence), but taking charge of her own life in a grand way. Good for you, Jammie, you're a great role model, and not allowing yourself to be a victim must feel fantastic.
America, your future is in the hands of the oil industry, Monsanto, the RIAA/MPAA and the various corporate psychopaths. Enjoy the fucking ride! Unless, I dare hope, America wakes up.
"The agriculture ministry is not in charge of Gundam" - Japanese ministry official.
You think you're alone? US citizens have consider the USA justice system a joke for decades too, you know.
Some parts of our system are great (freedom, even if right now we can be monitored etc is still unfettered freedom), a lot of law is practically made with swiss cheese, and the system is rigged to favor congresscritters. Of course it';s being abused.
Judges avoid setting precedents, avoid bucking the trends, so basically congressional folks that manage to get laws passed have free reign to cause whatever mixup has been created with the introduction of x new law. This is why not much hits the supreme court anyway.
The EU system isn't exactly perfect either, but they definitely use more logic in their rulings.
"It's easier to rally against the outside oppressor, than the enemy within."
On average, has a general value to society of around $600,000.
To award 1.9 million dollars is to say that her file sharing is
was bad as killing 3 people.
As it says in my sig, I'm Canadian, so I neither drink tea nor use Fahrenheit. I do believe I've now learned something about teas.
Canada: The US's more awesome sibling.
1) Person A can get thousands(*) of items that each normally cost $0.99 without paying. Also Person A shares those thousands of items with all comers. 2) People B -- who would normally be paid -- should have to spend thousands of dollars to take Person A to court. 3) Person A should then be able to claim innocence in court -- while lying, destroying evidence, etc. 4) The jury finds person A liable. 5) Finally People B should be paid $0.99 per item, for a grand total of $23.76.
Sorry, but the system won't work under your fantasy rules.
I think that the world would be a better place if the system didn't work so well. Brings me back to the statement I find myself using so much lately: "You say that as if it were a bad thing."
The case is not a criminal case. The award is not a punishment. The case does not a class action suit with hundreds of injured participants. The award is recovery. The highest price of the 24 items on sites offering them for download should be considered as the "loss". Court and legal costs should be added. The total should then be the amount of the reward.
I find it interesting how folks in the government complain how class action lawsuits have unjust awards that are destroying corporations but seem fine with individuals getting raped by a corporation.
Having to work for a living is the root of all evil.
First, you can make good iced coffee using cold extraction.
and then... warm it in the microwaves?
the whole deal with that case is absurd.
you should take care of what you order.
if someone put his eye out with his fork do we sue the restaurant?
180F is 80C it's not even acceptable for brewing coffee.
140 is lukewarm. i take baths in water hotter than that.
Looking for people to chat about multicopters, coding, music. skype: gtsiros
In the face of economic terrorism and a complete lack of juristic integrity I suggest a repayment schedule of $1.00 per month until the death of the defendant.
If I were compelled to pay (and had anything to take) I would destroy all cash, property, etc to deny the mafiosi their big score.
Better to destroy everything of value than yield to terroristic demands.
"Terrorism" - funny how they don't call it that when it's legal. Violent terrorists hurt, kill, and blow things up in order to create a climate of fear to bring about whatever change they are trying to force. Though they are nonviolent, legal terrorists ruin lives and "make examples" in order to create a climate of fear to bring about whatever change they are trying to force. They do so with the blessing of the legislators and the courts. What is the purpose of such high damages that don't remotely relate to any harm that the defendant could have done against the RIAA? The purpose is to scare the rest of us, to keep us in line.
It should be obvious that anyone who purchases any products or services from the *AAs is supporting this kind of bullying. In fact without such support, it would not be possible. The trouble with voting with your wallet is that most people don't do it with much of an understanding of what they are voting for.
Yes, she had thousands of songs in her kazaa share folder. They just chose 24 specific examples in order to keep things manageable in court.
Tough shit. If they want damages for each and every song in her folder, they have to give her the chance to defend against that. If it's far to expensive to go for damages in all of them, maybe they should have stayed the hell out of court.
This whole idea of statutory damage awards just boggles my mind. Sue for the actual damages you suffered, and if you think that's not enough go after aggravated or punitive damages, but this artificial inflation of damages by statute is ridiculous.
Rule of Slashdot #0: You and people like you are not representative of the larger population. - A.C.
No, that's propaganda spread by the lady's law firm to convince the jury (and it worked, not only on them but on a lot of people on the Internet).
Bunn is the largest manufacturer of commercial coffee makers in the U.S. They supplied the coffee makers when I helped manage a restaurant. They probably supply the coffee makers for McDonalds. They are the industry standard. If you go to their web store and scroll down, you will clearly see:
Ideal coffee holding temperature: 175F to 185F (80C to 85C)
Most all the volatile aromatics in coffee have boiling points well below that of water and continue to evaporate from the surface until pressure in the serving container reaches equilibrium. A closed container can slow the process of evaporation.
Ideal coffee serving temperature: 155F to 175F (70C to 80C)
Many of the volatile aromatics in coffee have boiling points above 150F (65C). They simply are not perceived when coffee is served at lower temperatures.
...justifying and increasing the ability to track sharing. They know they won't see any money from this case, but it's a precedent that strengthens their position when they apply for extended snooping powers. Which in turn allows them to find and shake down more sharers for settlements. That's where the real money is - fast, easy, minimal lawyer costs.
In the 1980s, the Supreme Court carved out all sorts of "exceptions" to the Fourth Amendment, to support the "state of emergency" created by the "War on Drugs." Now, with these due process issues, the same erosion of Constitutional protections is proclaimed against the War on Filesharing, soon to come to SCOTUS. (Much of the same rhetorical frame is used, in both). My guess is that they will do as the Rehnquist Court did for the Drug War: Intensify it. See my article over at CTHEORY: "Domestic Wars Redux: Obama, Digital Prohibition and the New Reefer Madness." http://ctheory.net/articles.aspx?id=607 >
Painful hot is about 110F. Water heaters are not supposed to come set at over 125F from the factory. You'd have 3rd degree burns after 30 seconds at 130F, so 140 is definitely not lukewarm.
Okay, I should have said she was tired of having to walk to the back of the bus. My point is still valid. She had no intentions of battling through a court trial or starting a revolution. Sometimes, revolutions happen by accident.
I am Jack's complete lack of surprise.
insteead of shooting up a school or a church why dont one of you maniacs got shoot up the RIAA building? Track down the people in charge and murder them instead of the innocent in the schools and churches!
Seems a much better use of ammunition, and you WILL be a famous hero to some in this country, instead of a pariah and a monster.
judgements. She'll die more in the hole than that due to interest that she can't afford to pay. Me, I'd quit my job, go on welfare, and start a virus that secretly uploads 100 cd's a month from whoever's computer it infects.
How much is your data worth? Back it up now.
That's nice but doesn't change a single thing. Whether she was physically or spiritually tired, she deliberately broke the law and set the ball rolling.
Dewey, what part of this looks like authorities should be involved?
It's only certain judgements that can't be dismissed. Honestly, a bankruptcy doesn't even do much to your credit after a few years of good payment history. (my wife had one a few years before we met)
How much is your data worth? Back it up now.
It wasn't so much as not being able to pay a few thousand dollars. She went this far on principles.
The RIAA managed to win themselves an unreasonably large amount of money, true. But, they have achieved little in doing so. First, they are risking Supreme Court exposure by requesting such a large sum. The added time and money required for a fight on the Supreme Court will only devalue the ridiculous sum they've earned, assuming they manage a victory. If they lose, they drastically reduce the effectiveness of their existing legal strategy.
Second, while they are fighting these legal and political battles, internet piracy continues to grow. The DRM mechanisms with which they had hoped to combat piracy have failed. The victories they won against Napster and Kazaa have only succeeded in making the newer applications more robust. The anti-piracy advertisements and campaigns haven't decreased piracy.
Third, politically they've bought themselves a lot. But, any moderately intelligent politician will do whatever they can to remain in favor of their constituents. The more the RIAA asks from the government, the more a connection to the RIAA becomes a liability, especially if public opinion sides against the RIAA.
In general, I think that the RIAA is struggling against the tide. Technological change does not occur according to anyone's schedule. When a new technology appears, you have to adapt to it as quickly as possible. The Music Industry still has not developed a successful means of dealing with the internet. So far, iTunes has been the only success. It says a lot when a Computer Hardware and Software manufacturer is the only successful intersection of music and the internet.
I see it as a race between:
US
UK
Germany
China
Sweden
Australia
Iran
Plus or minus a guest country.
It's always the same 7ish countries in YRO.
My first Journal Entry ever, in 8 years! http://slashdot.org/journal/365947/aphelion-scifi-fantasy-horror-poetry-webzine
They certainly could have gone for each song. But that would put an undue burden on the court. The final award wasn't for thousands of songs, it was for twenty four at the level of intentional copyright violations. So she gets the "I'm a greedy, amoral bitch" fine.
To the extent that money is borrowed into existence and lent at interest and the USA economy has (d)evolved past agriculture, manufacturing and soon past services, the only commodity that is left to back the currency is intellectual property. Basically, she was found 'liable of messing with that which backs the currency' and was made an example.
She appears to be a visibly recognizable (and therefore a reasonable expectation of protected status) minority. Where are the outcries from the appropriate ethnic defense lobbies? If this is going where I think it is going, then it appears that Big IP has trumped the protected ethnic lobby by reason of the GREEN thing.
I wonder if those jurors were either involved in creating IP and/or have retirement or other investments in IP companies. Why is that not cited as conflict of interests?
Submission as evidence constitutes plaintiff and/or prosecutorial misconduct.
The issue is that litigation costs are high enough that getting over the cost-benefit point would be pretty painful for your average American. Even in a really simple case, say your boss decides not to pay you for a month's work. To litigate you might run up $10,000 in costs. If you aren't making $240,000/yr you'll have no affordable recourse. Or someone smashes into your parked car and totals it. Or the banister of your stairway collapses and you fall and break your arm.
Having the system work, even for low cost items, is a good thing.
Thomas was certainly painted as a victim in media coverage
That is how is she was painted here.
But that isn't how the jury saw her - not the first time around and not the second.
There is a world beyond the blog.
It has its own rules and its own values - and in that world the geek doesn't fare so well.
I wonder myself whether the defense DELIBERATELY anticipated a huge defeat in not refuting evidence or calling expert witnesses
That would be just plain stupid.
The trial court or the appellate court is free to scale back the verdict without ever reaching the "due process" question.
It is also free to say that the finder of fact has twice reached the same conclusion - and is unlikely to reach any other conclusion no matter how many times the case is retried.
So much for the drama. Your case is now dead.
I don't have any dealings with RIAA type issues, as I am not a musician. However, I deal with publishers, who are fundamentally similar to record companies. I produce copyrighted work that I have to 'assign' the copyright to the publishers, in order to get my stuff into print (and this is only after going through the blind refereeing process). Moreover, I seldom get paid for my work. As a result, most professors like me hate publishers, but see them as a necessary evil.
That being said, I also have plenty of friends who are successful musicians -- real record contracts and a smattering of Grammies. Funnily enough, their attitude to their record companies is about the same as mine to publishers -- they stink, but are a necessary evil.
This parallel though suggest that their may be an alternative strategy available in the current context. Musicians and professors only deal with record companies/publishers, because there is no alternative. The question is why not? The answer is simple, these corporations are really diverse monopolies. "Ah ha!", someone will claim, "this is not so, as there are multiple record companies/publishers, thus there is 'choice', so it is not really a monopoly." However, when the record companies/publishers start to work together (e.g. in the RIAA), then they ARE working like a monopoly. Not only that, their business model is predicated on a form of extortion -- 'Give us the copyright, or your record does not get released/your paper does not get published'. Couldn't the RIAA and their like be put out of business on these kinds of grounds? Isn't this just the kind of thing that even the most foaming and rabid right winger would support? More to the point, why isn't somebody actually doing this?
Or just maybe Thomas is the iceberg who sank the the Geek's Titanic.
It seems she was kind of screwed either way - so why not be the poster child. From what I've read, there wasn't much she could hope for in terms of having been found not responsible... might have gotten a lesser dollar amount, but it's very likely that $100,000 is just as out of reach as $1,000,000.
I could fill terrabyte after terrabyte drive with music, and not have a million dollars worth of music...
(emphasis mine)
Why should one fill a mouthful of Earth with music? Now, if we were talking about Terabytes, I might understand....
What person will donate an airborne act of love?
What if the songs suck? She should have to pay a lot less.
you can't possibly expect proper coffee when you (try to) brew it at 140oF
Looking for people to chat about multicopters, coding, music. skype: gtsiros
She perjured. Ergo, my interest in Jammie's case has dried up. She should be held in contempt of court.
And what's the difference between an inability to afford the RIAA's settlement, and the ridiculous damages? She will declare bankruptcy either way.
There's no cure for fools.
It'd be interesting to see their reaction to Turkish coffee preparation where a little inattention can lead to an explosion of was-almost-boiling-but-now-is coffee and retains-its-heat-very-well superfine coffee grounds sludge.
...the idea that ANY song is worth 80,000$ for being stolen in ANY form is pretty ludicrous and now widely acknowledged as such.
Well that's exactly right. The $80K per song is not for just stealing, but for distribution -- a whole different ball game.
Taking one song and using it on my own is entirely different from taking that song and giving it to everyone else for free. There's no telling how many (potential) sales the woman destroyed when she chose to take part in "file sharing" the way she did.
Looks like the trial lawyers of america have gotten you with their propaganda. If this case truly was legitimate, why does Starbucks (and others) still serve coffee at 180 degrees or more? Try overlawyered.com for their coverage of the case. I used to be in your 'enlightened' crowd who thought the case was legit.
You would think so, but these are statutory damages. it's punitive (a punishment decided by Congress(!) to deter others), not compensatory (where the jury tried to figure out how much the record label was harmed, and chose an amount to set things right). Statutory damages are not merely civil court decisions; the legislative branch is neck-deep involved here.
It's a fine, and Congress did it.
That's the kind of thing the 8th Amendment and the rest of the Bill of Rights was specifically created to address.
As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
Unless your baths are less than six seconds long, no you don't.
Moreover, she asked McD to pay some of her hospital expenses for the 3rd degree burns. She only sued when McD refused that. Even then, she only sued for those expenses. It was the judge who slapped McD hard, partly for their legal teams bullying behavior in and out of court.
She was very reasonable throughout the process, but the urban legend exploded out of all proportion regardless.
No, just as you can't expect to take a bath in water at 140F. Coffee may be best brewed at 200 and served at 160. Baths are best around 100-103.
This won't work because for every 1000 pieces of downloaded-and-listended-to music, a certain amount of sales are truly lost. Conversely, a certain amount of sales are gained. But it's usually a net loss. This needs to be taken into account.
For downloaded-and-not-listened-to music, the number of sales lost and gained is very near zero and it's literally cheaper to ignore it than to try to assess it.
A suitable and reasonable carrot-and-stick approach would be:
*The first time you are caught downloading stuff for your own personal use, you pay for everything you are accused of downloading except those you claim you never downloaded. You also "agree" to be monitored for 6 months, details to be worked out later. As for claims and counter-claims, preponderence of the evidence and civil court procedures should rule.
*The second time within a reasonable period of time, you are sued for 3x the damages of what the RIAA thinks they can prove you downloaded plus attorney's fees. You can of course counter their claims. If you lose, the court also orders that you report to the court all music and video downloading except from a whitelist of legal sites. If you don't, it's contempt and a night in jail.
*The third time within a reasonable period of time and you should face a low-level misdemeanor charge. The burden of proof is much higher than in a civil case. The penalty will be a fine in the hundreds-to-thousands range and/or community service, but you will have a criminal record which can cost you for things like employment and the like for the next few years, particularly if you are an adult.
This is for consumer-grade "theft." For bulk "theft" if there are no lost sales then I don't see a crime or even a tort. If on the other hand the bulk copies are being pressed to CD or copied to MP3 players and sold on the street, well, that's a different manner.
There should also be breaks for people who are "young" and "naive" so the lesson isn't too painful.
There should also be blanket permission for an artist to "buy out" a defendant by paying the record companies full retail for a single copy of the album. Many artists will go on record saying "we will defend our fans," basically saying "if you download our stuff, please get around to paying for it if and when you can." Such musicials will be regarded as folk heroes.
Knowledge is how to play a game, intelligence is how to win, wisdom is knowing what game to play.
There are caps when a government is the defendant. This came out with the Bonfire tragedy at Texas A&M University some years back.
The Dallas Zoo is, surprisingly, owned by the City of Dallas.
There are states with caps on civil damages. I don't know if Texas is one of them. Anyone? Bueller?
Knowledge is how to play a game, intelligence is how to win, wisdom is knowing what game to play.
Rosa Parks was a case of theatre. It was carefully staged civil disobedience. When she got on the bus she was hoping she would be asked to move for the purpose of creating a case, if not in court, then in the court of public opinion.
She wasn't the first to try. One or two others tried but either the bus driver wouldn't bite and let them keep their seat or the case never got the traction it needed to change the world.
Knowledge is how to play a game, intelligence is how to win, wisdom is knowing what game to play.
Punitive awards come from the jury. Juries do not hold hearings, have access to experts, or otherwise have the ability of a legislature to make the best decisions. Juries are also not elected by the public to carry out public policy. For those reasons, excessive punitive damages are subject to challenge. Exxon Val is one of many examples. End of discussion of punitive damages, wholly irelevant to this case because no punitive damages have been awarded.
Beginning of discussion that is actually on point, which is a discussion of statutory damages:
Statutory damages are damages whose amount is prescribed and proscribed by the legislature. Legislatures can hold hearings, can hire experts, can consider a wide range of facts and circumstances that may not be present in any single particular case, and have been elected by the public to define public policy. The fact that they can do those things does not mean that they do, or that they do them competently, however, the fact that they can is what gives statutory damages a status different from the status of punitive damages.
Fairness to a defendant is one of the things that the legislature considers. However, it also considers fairness to the plaintiff, deterrent, and judicial economy, to name but a few. (It also considers who has paid into the re-election kitty and in what amount. If you want to be the first person to point out that the system is imperfect and contains elements of corruption, you're too late.) In order to legally do what she did, which is make the songs available to anyone with access to an internet connection, Thomas would have had to negotiate and pay for a fixed-price perpetual license for unlimited worldwide distribution of those songs. What price would the record companies have negotiated for that? Congress thought it over and came up with the wide range of $750-$150K and left it to the jury to fix a specific price in specific cases.
There are demonstrably songs for which such a license would be worth more than $150K, and songs for which $750 would be ludicrously high. However, Congress established that range to achieve a range of policy goals. Because those are statutory, meaning that they are specified in the statute, they are not subject to the challenges that a punitive damages award might draw. Comparisons to Exxon are misplaced. Because the money is not paid to the government, references to the 8th Amendment's prohibition against "excessive fines" is likewise unavailing.
If you want the Supremes, or any other court, to overturn an award of *statutory damages*, you must prevail on one of two points. First, you could successfully argue that there was abuse of discretion. For various technical reasons, this will not work. Second, you could argue that Congress erred in setting the bounds on damages. In that case, you must argue for having judges rewrite the law or do what postings in other /. forums would decry as "legislating from the bench." Those are the choices.
In some cases, stealing a $10 CD can get you jail time or community service, and a criminal record. Sure, you can usually get your record expunged after 5 or 10 years but just try getting a job in retail 6 months after being convicted of petty shoplifting. Unless the manager really likes you or is hiring you specifically because he wants to help rehabilitate you, it won't happen.
Knowledge is how to play a game, intelligence is how to win, wisdom is knowing what game to play.
What happened to infringement needing to have some sort of commercial or otherwise monetary gain?
That loophole was closed with the passage of the NET [No Electronic Theft] Act in 1997. NET Act
This is clearly the long-planned solution to debt owed by the United States to China.
Once these damages are accepted as established, the RIAA and the US Government can start suing large scale file sharing sites overseas. The resulting billion / trillion dollar fines well be settled against whatever debt is owed by the US to that sovereign nation. Why else would the current administration be placing RIAA Lawyers in charge of the Justice department?
I should have added that the NET Act criminalizes non-commercial infringement.
The rights holder has never been required to establish a motive for an infringement in a civil case. It doesn't matter why you stole your neighbor's cat - it only matters that you did steal your neighbor's cat.
I love you guys who spout these figures as though McDonald's were hell-bent on scalding the unassuming American public. Coffee brewed at 140 tastes like dishwater. Coffee is *supposed* to be brewed at 180-195 degrees. All they were doing was making decent coffee. Guess what temperature is used by Starbucks? 180 degrees. Legal and ethical angles aside, McD simply made coffee at the same temperature that you would at home. Why not brew your next pot at 140 degrees and let us know how it tastes? A similar suit was brought in the UK, as you are likely aware. In that case, they ruled that adults should be used to handling hot beverages- and dismissed the suit. "only in America..." RN
The problem with trying to tie the damages to something real, like the number of songs is that she is being sued not for having the songs or downloading them but for redistributing them. So having them counts for nothing.
Now, if there was clear evidence that the songs were redistributed "n" times I suppose you could compute some sort of actual damage estimate based on that. Unfortunately, there is no evidence at all of how many times the songs were redistributed, only that it was possible for them to be so. Whether it was 1 time or 1000 times nobody knows - there are no logs. And, furthermore, she attempted to hide the evidence of this by having the hard drive replaced. So even if there were logs by the actions of the defendent, these would have been lost.
The courts have a solution for this - statutory damages.
Unfortunately, the defendent chose to try to evade the whole process. By changing out the hard drive. By lying under oath. By trying to obfuscate her actions with a lot of irrelevent crap. None of this impressed the jury, which is what I think led to the judgement nearly 10 times the original one.
Suppose thousands of people from this site were to email the president? True, it wasn't his ruling, but this is prime material to contact the President and your local governors. I'd be willing to bet none of them would publicly endorse this kind of behavior, so give them the opportunity to get tons of feedback from other "real people" and make them respond or ignore it. Why not?
http://www.whitehouse.gov/CONTACT/
I suppose that's true, and maybe she was figuring she wanted to be the poster child for this fight and would just file for bankruptcy if it didn't work out the way she wanted it to. Not a road I would have chosen, but to each their own I guess.
The thing about filing for bankruptcy is, with the new changes to bankruptcy law made just this past year, a judge can rule specific debts be inadmissible for bankruptcy and you must pay it (Or face potential jail time if you can't.)
These judges are clearly so bought by the media companies to so obviously violate the letter and spirit of the law, I can't see them allowing her any of her other rights such as illegal financial slavery.
A legal strategy only works when there are set rules to play by and the score keepers follow them. That hasn't been true for a time now, so legal strategy is impossible and pointless.
You'd have better luck spinning the mad max thunder-dome wheel if justice is what you are wanting....
Frankly, true or untrue (and I'm inclined to believe she's telling the truth), there's nothing else she would say afterwards, is there? It's put rather poetically too, so at least she's evidently had time to formulate it nicely.
If you violate copyright, copyright will violate you.
Or, as they said in ancient Rome, "dura lex, sed lex" ("the law is harsh, but it is the law").
Should have have been able to sue for $1 million. For his own folly?
Why do you keep saying that?
She never sued McDonalds for a million dollars. In fact, she never wanted money from them.
So if she wasn't allowed to sue for a million, nor anyone else, why the hell would you expect you can?
Are you telling me that if you spilled coffee in your lap, and your plans were to shrug it off and go on your way, but some judge demanded McDonalds hand you a million dollars (Which is what actually happened) that you would turn it down?!?
If so, you clearly should not be put in charge of anyones money (Including your own)
That is actually wrong. The industry standard for the temperature of brewed coffee is ca. 190F. See for example http://overlawyered.com/2005/10/urban-legends-and-stella-liebeck-and-the-mcdonalds-coffee-case/
Corporations are big. "When you punish a corporation, you punish a lot of people, including innocent bystanders."
Or so the theory goes.
Computer memory is just fancy paper, CPUs just fancy pens with fancy erasers; the 'net is just a fancy backyard fence.
Actually, yes, there is a difference. She is young, she has a chance of landing a good job some time and paying it off with the lesser amount. With the larger amount, she probably won't ever get the opportunity to pay it off.
Read my brief, and get back to me. Tell me which part of it you don't understand.
Ray Beckerman +5 Insightful
What if she decided to become a doctor? An airline pilot? An escort? Or she wins the lottery. Are you saying this woman is incapable of setting change in motion such that her life might take a financial turn for the better?
Two hundred thousand or two million, doesn't much matter like you say, both of these figures are outrageous for 24 songs. What I see you are doing is naught more than placing a glass ceiling over the potential of someone you do not know.
'Never' is often a very transient state. Maybe you need to find some new words to use.
There have been cases where a court has re-interpreted a law and thus effectively re-written the law.
But we aren't asking for a re-interpretation.
We want the court to tell Congress (and the lobbies ) to either go back to the drawing board or do without this particular attempt to regulate "right" behavior.
Preferably the latter.
(Sure seems to be an awful lot of money in attempts to legislate "right" behavior these days.)
Computer memory is just fancy paper, CPUs just fancy pens with fancy erasers; the 'net is just a fancy backyard fence.
It's the end of the road for NYCL, me, and any other law firm or lawyer who has hung out a shingle offering to defend RIAA defendants. So far, from having met with many, many college students, parents of college students, and others, the take-away is that most people are freakin' sheep. And, in hindsight, maybe settling with RIAA like a freakin' sheep was the right thing to have done.
This was supposed to be the trial in which the defense would be well prepared and all possible defenses would be competently and fully presented. Maybe this trial was well defended, maybe instead it was badly lawyered, I wasn't there. What's true is that in the future, nobody in their right mind who is facing a threatened RIAA lawsuit will ever do anything but settle.
I'll go back to doing other stuff now.
Perhaps stop buying music from artists who sign with RIAA labels, but I see no reason to stop buying music from labels who treat artists and listeners fairly and reasonably. Quite to the contrary, those are the artists and businesses we should reward for showing that we can still enjoy commercial recorded music and help the artists we like without being called "pirates" or denying ourselves the fun of sharing stuff we like.
I don't like to repeat so much of what I recently posted, but a lot of these details are apropos in this thread as well. Magnatune is one music vendor offers a compelling deal to artists and listeners—you can get the music in multiple pre-encoded forms and/or on a physical CD (your choice), you can pay on a sliding scale (minimum of $5/disc, I believe), there are subscriptions for download and streaming available where you pay regularly or pay a large lump sum and get downloads forever (I did this), you can listen to their entire catalog online via Flash or via music players in MP3 or Ogg Vorbis, and all of the freely available tracks are licensed to share. Customers are told they can share a few tracks with others as well.
Artists get a good deal too which includes 50% of the take per track, licensing to Magnatune means artists keep their copyrights and enter non-exclusive deals with Magnatune instead of turning over control to a label and going into the label's debt only to get out at the label's permission ("That track isn't up to your standards! Record another track for us."),
Of course Magnatune doesn't accept everything that comes their way. There's no guarantee you'll be able to distribute through any label. But that's to be expected; part of the value of a label is their (metaphorical) discriminatory ear. I buy from Magnatune because I don't want to preview everything, I want them to filter out a bunch of junk for me. I might not share Magnatune's definition of "junk" but that's to be expected too; beauty is subjective. If you, the artist, want guaranteed distribution you should try another venue that doesn't discriminate and take the trade-off of being the gem in the pile of junk waiting for others to discover you.
Digital Citizen
A hypothesis built on unprovable assumptions is basically a hypothesis contrary to fact.
I'm sure you know this, but I'll repeat. When you deliberately start from a known false assumption, you can conclude anything and no one can prove you wrong. Example (should you really need one):
--
Teacher, if it hadn't rained yesterday, I'd have not only finished my report, I'd have done an "A" job on it. I promise. So you should give me an "A".
--
Okay, the failure to pirate is in many senses a known falsehood, but it's such an emotionally burdened falsehood that it's going to be hard for most people to point the falsehood out in public. Unprovable assumptions often have such known false assumptions hidden somewhere underneath them.
The unprovable assumption is your "net loss" assumption.
Net gain may not be "provable" but many statistical experiments demonstrating net gain have been performed. Attempts to prove net loss have been notoriously tortured.
And there is even a theory in circulation to explain the net gain. It goes like this:
If I have never heard a song, I'm not likely to buy it. If I have heard a song and liked it, I'm much more likely to buy it.
I know that the claim of net loss inserts an assertion here, that if I have the song already, I will feel no need to buy it, but that assumes that I have no sense of ethics or consequences, and no sympathy for the very artists whose work I find myself fond of listening to.
Self-interest can be unenlightened in precisely two cases: when people have no conscience because they have no conscience, and when people cease to be able to think clearly because the law has become too oppressive. Neither case is a good indication for a free society.
So, if you are theorizing net loss in a free society, I'm telling you that you're making wrong assumptions, drawing wrong conclusions, and should re-consider what you are saying.
Computer memory is just fancy paper, CPUs just fancy pens with fancy erasers; the 'net is just a fancy backyard fence.
Your probably forgetting one of the most important aspects of the case. The containers they were serving the coffee in wasn't fit to serve drinks that hot. The temp of the coffee actually exceeded the cup's rating making the neck of the cup where the lid attached melt or become weak which contributed to the spill.
People will claim it was her fault she spilled it. This wasn't entirely true and because of the history and documentation as you mentioned, it was a problem they were willfully ignoring and in effect serving a dangerous product.
is "grossly excessive" in the set of "ridiculous" or "heavily exaggerated"...
Privacy is terrorism.
You think you're alone? US citizens have consider the USA justice system a joke for decades too, you know.
Speak for yourself. There is a difference between thinking a system has flaws and considering it a "joke." And most Europeans get their ideas of the US from American sitcoms, so don't look to them for any special insight.
Judges avoid setting precedents, avoid bucking the trends, so basically congressional folks that manage to get laws passed have free reign to cause whatever mixup has been created with the introduction of x new law. This is why not much hits the supreme court anyway.
Judges can't win. They uphold the law, they're accused of giving in to corrupt congresspeople. They strike down the law and they're "judicial activists."
The EU system isn't exactly perfect either, but they definitely use more logic in their rulings.
I've read plenty of EU rulings, and wasn't particularly impressed. And some European countries have repulsive criminal court systems (thinking England and Italy especially).
Rosa Parks intentionally broke the law because she was tired and didn't want to walk to the back of the bus.
She didn't break the law, the bus driver did. She sat in the black section of the bus. She was never required to give up that seat. The driver moved the "whites only" sign behind her after she sat down, in violation of the law. She then didn't get up. The police were called after she didn't give up her seat in the black section (as it was when she sat there) and was never required to do so. She sat where she was supposed to. She was ordered to get up. She refused.
Learn to love Alaska
>>>The RIAA faces a somewhat analogous situation
Really? Oh yeah, everyone who downloaded that song from her, when they played it, burst into flames - ala Ford Pinto rear end collision.
The 8th amendment prohibits excessive punishment, fines.
The plaintiff should have to prove the number of times sounds were download from the defendant's computer. Not guesstimate. Prove. Period. Anything else simply proves everyone else's point - big corps run America.
There should be mandatory jail sentences for people with fucked up names like "Jammie". I'm tired of hearing about her.
"Okay, I should have said she was tired of having to walk to the back of the bus. My point is still valid. She had no intentions of battling through a court trial or starting a revolution. Sometimes, revolutions happen by accident."
Her actions were planned; it was no accident. She was a member of the local chapter of the NAACP and she opted to participate in the civil disobedience because Claudette Colvin wasn't an ideal specimen because of some personal details of her life. Rosa agreed that she would be a suitable "poster child" and history was made.
Sitting in my day care, the art is decopainted.
Seems like a pretty huge gamble to not only saddle your client with a huge unpayable debt but also set precedence for future cases just on the hope that it would stir public opinion enough to overcome the powerful RIAA lobby and get favorable legislative action on the issue, meanwhile hoping you can somehow get the ruling reversed on appeal (maybe due to ineffective counsel?) If my lawyer tried a tactic like that, they would be fired well before the trial.
*****
Yet, consider if you're in the situation where even a 50 or 100K judgment against you essentially destroys your life and is nearly unpayable. You have to eat and so on, and at even $1000 a month out of your paychecks, even 100K would take a bit over 8 years to pay off. I don't see how she has anything to lose here. At worst she declares bankruptcy and ignores at least 99% of the fine and isn't really any worse off than 100K or so worth of fines.
But, yes, it should be a simple "we caught you again this month - cough up $10 per song on this list".(rinse, repeat 100K+ times a month) At roughly $150 an album in fines, that is a strong deterrent to most people. The trick here is to be below an hour of legal work album, so they essentially HAVE to pay. The RIAA wouldn't even have to prove its case, either, because the charge is less than even an hours' worth of legal fees.
"Let's see - pay the RIAA $200 in fines or pay $250 an hour for a lawyer..."
And they get their money as well.
It's pretty clear. I understand all of it. Why do you ask?
The idea behind deference to statutory damages is that Congress specifically authorized an award beyond actual damages, perhaps far beyond actual damages, do accomplish various public policy goals such as deterrence, judicial economy, and justice to the plaintiff in cases where proving actual damages is difficult or impossible. It is well settled that where the intent of Congress is clearly expressed in the language of a statute, the inquiry by the court is at an end. In Parker, the court worried that the interplay of two statutes created a situation that Congress did not intend. Interesting case, but unrelated to the instant case.
Likewise, Napster, Lindor, and Brennan are interesting cases, but are district court cases from other districts. They are therefore not binding precedent in this case. I'm sure that they were given due consideration, but consideration is all that they are due; deference is not required.
If district courts receive no deference, the law review articles have less claim. Interesting reading, no doubt, but hardly determinative.
Gore notes early on that one of the factors that made the 500x multiplier unreasonable is "there is no suggestion that he or any other BMW purchaser was threatened with any additional potential harm by BMW's nondisclosure". Here, of course, the whole idea is that she made the songs available for download, which threatened substantial harm to plaintiff. The key is the reference in Gore to the threat of additional harm. By making the songs available, she created the threat of additional damages to plaintiff. Whether that threat was realized is another question, and an irrelevant question here because Gore specifically focuses on the threat created by the activity, not by the actual outcome.
Note also the portion of your brief in which you state that one of the key tests is "the disparity between... the potential harm... and the punitive damages award." Setting aside the punitive versus statutory damages part of the argument, the potential harm to plaintiff of requiring him to compete for sales with a free source of the same product is obviously very high.
State Farm is pretty clear. First, it's a straight-up punitive damages case as opposed to a statutory damages case. However, assuming that it was relevant, which it is not, we review a few selections from the case: "We decline again to impose a bright-line ratio which a punitive damages award cannot exceed." A "higher ratio might be necessary where 'the injury is hard to detect or the monetary value of noneconomic harm might have been difficult to determine'". In other words, the Supreme Court declined to set a hard limit on punitive damages, much less statutory damages, and acknowledged that a fact-specific inquiry may well find good reason to impose very high multipliers.
Indeed, you note in your brief that a district court may have implicitly acknowledged exactly this point. After citing a handful of nonbinding precedent and a book by Nimmer, you quote a court "implor[ing] Congress to amend the Copyright Act to address liability and damages" in cases like this. In other words, the statute binds the court to do things it does not want to do and the court implores Congress to change the statute because the statute binds.
In summary, and in response to your remark, I disagree with some of what you say but I do think that it's fair to say that I understand it.
Respectfully yours,
Mike
PS - It is the practice of lawyers to overstate their own cases and trivialize those of their opponents. Ray is a lawyer, so I've followed that practice here. However, one particular application of that rule in the foregoing troubles my conscience. I note for the non-lawyers present that the "book by Nimmer" that I so casually dismissed above, while not being even close to precedent or binding on any court, is regarded by many as the most authoritative work on copyright available anywhere. If I was in the shoes of either plaintiff or defendant, I'd quote Nimmer at least once just to be on the safe side. Ray knows this well, of course; I note that here only for the benefit of those without legal training.
You must be with the RIAA to see sharing songs, some of which are 20+ years old, as "amoral".
Who's the *real* greedy bitch here? I which I had a mafia to constantly strongarm people for money from a weeks worth of work I did 20 years ago.
"I did not have sex with that woman..."
It must be true!
They consistantly brewed their coffee at 180F. Industry standard is 140F or so.
You're still missing a key ingredient---the fact that McDonald's was deliberately overheating their coffee because their market research showed that it obscured the taste, so they could get away with buying and brewing lower-quality (read: cheaper) coffee. That's what people don't understand about the McDonald's case, and it's why the jury came out the way they did: The lady's injuries weren't an "accident," they were partially the result of Mcdonald's calculated decision to risk their customer's safety in order to save money by producing a lower-quality product.
She was also picked for the job by a group of black men and women who figured she'd be perfect for fighting the law. It's not a coincidence that the day of her arrest was also the day of a big civil rights protest in the city it happened in.
Cannons? Fireballs? Lightning? Fists? Feet? Bad Breath? Flatulence????
Over-the-top Response Guy! Giving "Over-the-Top Responses" since 1970.
The women in the McDonald's coffee case didn't intend to sue for obscene amounts of money. She got third degree burns on her lap, and she just wanted McDonald's to foot her hospital bill. No pain and suffering, just the hospital bill. They refused, and she lawyered up, and the lawyer started chasing dollar signs.
Learn something new.
No, its stated purpose is to "protect the artists." Its true purpose is to protect the recording industry. It's the RIAA, not the RAAA.
!#@%*)anks for hanging up the phone, dear.
First off I do not work for the RIAA.
America needs to wake up and realize the damage these PIRATES are doing to the economy. If they cannot pay the fines then they should be imprisoned for the equivalent number of years it would take for them to have earned the amount of money required for their fine.
In this case it is a simple calculation: Average Hourly wage in US: $18.46 (http://www.bls.gov/news.release/empsit.t16.htm)
Fine: $80,000 per song * 24 = $1.92 million
Jail time: ($80,000 * 24 songs) / $18.46 per hour
4334 days or 11.87 years in prison
Obviously America does not understand the vast natural resource and source of wealth music represents.
Lets take a look quick look at just on source of music distribution, the iTunes store.
As of February 2008 Apple has sold over 4 billion songs ( http://www.apple.com/pr/library/2008/02/26itunes.html) we know that the legal value of each digital copy those songs to be worth $80,000.
That is 320 trillion dollars worth of goods people, since just April of 2003 !!!!
Now consider that a song is copyright protected for the lifespan of the artist plus 150 years (let round that to 180 years). Now lets look at the math again.
Yearly value: $320 trillion / 5 years = $64 trillion per year
Value of the music that existed on February 2008 over the life of the copyright:
$64 trillion * 180 years = $11.52 quadrillion dollars
An that would be if no new songs were recorded over the next 180 years.
How important is that number?
Well in 2008 the GDP of the world was a paltry $69.49 trillion. (CIA fact book, all amounts are in USD) Which means that one can safely say that the value of music that existed Feburary 2008 is worth more than the sum of the GDP of the WORLD over the last 200+ years.
Not that the RIAA needs to brag, but evidently the music industry was responsible for the lion's share of the Worlds GDP in 2008.
Now you can understand just how much of a threat piracy is.
Gone to my happy place.
After the appeals and such run out, she may or may not be able to file bankruptcy. IANAL, but i found these bits of info interesting. 1)The jury found Thomas-Rasset's conduct to be willful, which means that statutory damages under the Copyright Act can range from $750 per infringement up to $150,000. http://arstechnica.com/tech-policy/news/2009/06/jammie-thomas-retrial-verdict.ars 2)Debts arising from copyright infringement judgments are generally dischargeable in personal bankruptcy proceedings unless the creditor (i.e., the copyright owner) can prove that the judgment constitutes a debt for a "willful and malicious injury" within the meaning of 11 U.S.C. 523(a)(6). Moreover, because the legal standards for "willful and malicious injury" differ from those governing "willful infringement" under the Copyright Act, even a willful infringement judgment may be dischargeable in bankruptcy. http://w2.eff.org/IP/P2P/RIAA_v_ThePeople/P2P_bktcy_memo.pdf
Tech Support: "No, sir...clicking on 'Remember Password' will NOT help you remember your password."
I was not old, although some people have an image of me as being old then. I was forty-two. No, the only tired I was, was tired of giving in." -- Rosa Parks
So, the Great Question of Life, the Universe, and Everything, is "How old Rosa Parks was?" ?..
Well she shared 24 songs, but one thing I've always noticed is that no one on either side of this case has published any figures for how many different people downloaded each song off of her share while she was running it. If it was only once each, then this was excessive. If she had it up for several months and distributed 10,000 copies a day, that comes out to less than a buck a copy. I'm figuring somewhere in between, but who knows how many?
The problem here is that even though she didn't take any profit from the share, if she did share 1,000s of copies of each song, that's still legitimate damage against the record company. I don't make the RIAAs claim that every illegal copy is a lost sale, but if you figure about 20% of those downloaders would have bought it on iTunes or somewhere, there's a real loss there. And if the quantities are that high, statutory/punitive damages start to creep into the constitutional range.
But this is all speculation because there's no evidence I've seen that says songs X, y and Z were downloaded n,p and q times each.
We are the 198 proof..
Why couldn't the OP link to the Eff story directly?
http://www.eff.org/deeplinks/2009/06/record-labels-awarde
I appreciate Techdirt 'getting the word out' and all, but their article hardly adds anything to what they include of the original piece.
"You can justify anything by putting it in quotes, adding a famous name and making it a sig" - Albert Einstein
That was funny - music replacing production of goods and service as primary national revenue generator.
Thanks, I liked the sarcasm :-)
Insert
The more I think about this verdict, the more it feels like a judicial setup for the RIAA.
By following a number of assertions to the letter, the judge arrived at a figure that was blatantly ridiculous.
By doing so, it practically guaranteed the following:
- progression to the next level up
- universal disgust for the RIAA
- an increased likelihood for the followup challenge to this verdict to fail.
It feels to me as following the method for testing a theory: stretch it to breaking point and see where it comes apart. OK, I may assign subtlety where none exists, but the verdict has resulted in adding oil to the fire, and a couple of gallons of alcohol.
Let's hope that sanity now prevails. This judgement has (IMHO) made that more likely.
Insert
Are you saying this woman is incapable of setting change in motion such that her life might take a financial turn for the better?
Yes. Short of extreme improbably good luck, she's not going to do any of those things.
A long, long time ago...
I can still remember
How that music used to make me smile.
(...)
Now the half-time air was sweet perfume
While the sergeants played a marching tune.
We all got up to dance,
Oh, but we never got the chance!
`cause the players tried to take the field;
The marching band refused to yield.
Do you recall what was revealed
The day the music died?
Don McLean
In order to form an immaculate member of a flock of sheep one must, above all, be a sheep.
and after 10 hours it drops suddenly ?
MP3 Search Engine
No, the sad fact is that Jammie is incompetent.
As much as I support her attempt at fighting the RIAA, the problem is that she lied in court, and she didn't challenge the real issues with the RIAAs claims (i.e. the fact their evidence is easily falsified and really proved nothing).
The reality is we shouldn't waste our time with Jammie, she's handing the RIAA victory on a plate and has done so twice now, which in the eyes of the average joe will make it look like the RIAA is in the right.
I feel for her, but on the same note, all the way through this she's been her own worst enemy and in the process has also been unhelpful to those who have been trying to support her cause by simply not taking advantage of the wealth of expert information available to her in defending herself.
Of course, more importantly, there's no way they could ever have known they'd get such a high judgement against her either. The very fact it's unconstitutionally high raises questions as there are many cases in other areas that are far more criminal but don't get handed down such high judgements.
I really think she's just been victim of her own incompetence coupled with a setence being handed down by a bunch of nutcases. The latter isn't a bad thing for the reasons you state, but I'm not convinced she's someone who can take that judgement and show it for the farce it is judging by her track record and the fact she's shot herself in the foot so many times before.
Which part or parts of it do you disagree with?
Ray Beckerman +5 Insightful
I think it's a good brief and makes the best arguments available to the defendant's side. I don't think that the jurisprudence on statutory and punitive damages is as closely linked as the defense would like. However, I certainly agree that it seems to be the strongest argument available, so that's what you go with. The facts on this one are pretty ugly; we're not going to enjoy the precedent that comes out of a case with such an unsympathetic defendant.
Some courts have signaled that they don't like the immense damages imposed, so they may accept the argument whether they actually believe it or not just to get to a "just result". That's certainly far from unheard-of. Your brief quotes one court imploring Congress to take another look at the liability and damages that arise from this statute. Maybe this court will seize upon the chance to conflate statutory and punitive damages to apply the 14th amendment to achieve a result that levies lower damages.
There are some who believe that the Supreme Court took In re Bilski because the Court is tired of waiting for Congress to do sensible things with IP law and now the Court is ready to make its own policy. If true, they could also be ready to take a look at this area of IP law.
As a matter of existing law, I think Thomas is doomed, but if the Supreme Court really is ready to rework IP policy and if they choose to use the Thomas case as part of that then this could be the argument that gets Thomas before them. They are generally more likely to take a Constitutional question than than one of the civ pro questions about multiple unrelated John Does in a single filing (not sure whether that played a role here, but it's a typical RIAA tactic so I presume that it did).
It looks like our discussion here may be winding down. In case we don't get a chance to chat again, I'll take this chance to thank you for writing lucidly on tricky legal topics for a non-legal audience. Separating procedural and substantive issues and helping people understand what's important at the trial court versus appeals court levels is not easy to do well and the subtleties can easily be lost on the layman. Also, the Slashdot crowd is pretty quick to stone government in general and lawyers in particular so I can't imagine that it's always highly rewarding work, but I think that it's important and that you do it well.
Very best regards,
Mike
...under the nom de plume "Pyrrhus".
If you look at the trial manuscript and evidence presented, you'll see that the woman didn't just get burned. She had the flesh literally melted off of half her thigh. It was remarked that her burns looked like something from a napalm victim. Additionally, all she and her family had asked of McD's was that they pay her medical bills and no more. FFS, she had to have multiple skin grafts and couldn't walk because of the incident. McD's didn't serve "hot coffee." They served napalm in a cup.
The original sum was $200,000. Now that the corruption of the system has been shown, the new absolutely ridiculous figure is just irrelevant. This is probably the last thing that the RIAA will ever do, for - even though for some reason people refuse to champion Jammie Thomas, I dont know why I guess people are just dickheads - the backlash from this will be the end of those financing them. I don't buy CD's anymore. I doubt anyone here does. I doubt I ever will again. What's that? You're a poor starving artist who relies on me? Yeah, but you're SHIT. You write crap music. That's why I give paypal/ccbill donations to THAT guy over there, and only for the songs of his that I like, the rest of his material is very mediocre. Yeah you're an artist. That doesn't mean you NECESSARILY work or deserve an income. And can somebody please fly a remote drone through the RIAA's head office just to drive the point home, PLEASE.
How much are they sliding to the judge under the table?
They have money to throw at the judge, to make sure to set a precedent, they are fueled by the big music and even movie companies to make this case a precedent. There will be money exchanging hands here for sure...also there is an obscene lack of introspective insight into the technology realm, maybe they could site the judge awarding such an amount, is due to the fact he does not even know what the songs are really worth! Isn't there a law against that?
But this is all speculation because there's no evidence I've seen that says songs X, y and Z were downloaded n,p and q times each.
For all we know, n, p and q are all 0. As far as I saw, there was no evidence that actual copyright infringement ever occurred. She was basically found liable, again, for "making available". Even though that's why the first trial was thrown out.
Unix is user friendly, it's just selective about who its friends are.
The Supreme Court's jurisprudence in the area of knocking down excessive "punitive awards" is well established, and would most assuredly lead to the RIAA's statutory damages theory being crushed.
Here we go again. Look, Ray, you seem to be a nice and intelligent guy. But if you're wrong on this one, too, (and I don't mean wrong on how it should be decided but wrong on how it is decided) will you please drop the whole 100% "I'm certain the RIAA is on the ropes" routine you've had at just about every stage of the Thomas trial?
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With which part of my brief do you disagree?
Ray Beckerman +5 Insightful
With which part of my brief do you disagree?
I have no idea. I am not a lawyer and without a great deal of study, I have no way to evaluate your brief. I'm not going to pretend I do understand it like I think a lot of people who post on these threads do.
As such, I just have to trust what people who are qualified say. And I'm afraid I'm beginning to lose a bit of my trust in your opinion, Ray. You say things will go way with such ironclad certitude and never explore the pragmatic reality that judges may disagree with you. I know this is a plus in your profession, but it makes it pretty hard to actually tell if you're right.
I just hope that if you turn out to be wrong (i.e. the judges don't decide the way you're sure they will), you'll maybe start giving us a little more objective commentary here on slashdot. You are obviously intelligent, so it'd be great to have some objective legal commentary that doesn't have to be prefaced by "IANAL," on both this subject and others you are interested in.
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