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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.
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.
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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.
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.
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.
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
I'd say the defense should get shit for legal malpractice.
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.
Doing so by waiving viable defenses is borderline legal malpractice.
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.
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
Fine. Make it comparable to a shoplifting first offense.
That said. The RIAA should not be able to use the threat of megabuck jury
awards in order to extort easy settlements.
A Pirate and a Puritan look the same on a balance sheet.
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.
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.
Its actually less than $0.99 per song due to the profit margins that Apple/Amazon/etc has on the music.
Lets say:
24 songs
74 cents per song
100 leechers on P2P, per song
24 x $0.74 x 100 = $1776.
This is even more reasonable...
Sleep: A completely inadequate substitution for Caffeine.
You don't. You either: file for bankruptcy and wreck your credit history, or they pursue withholding out of your paycheck (say $200 a month), or you plead with the public for donations.
Camping on quad since 1996.
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
RIAA != music. Spend your music money on your local artists, they NEED it. Does Snoop Dawg really need a new yacht that badly? Chances are, the drummer in your local band has more talent in his little finger than Lars Ulrich has in his whole body.
Free Martian Whores!
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
$1.00 a month seems reasonable to me. At that rate she might even finish paying before the copyrights expire.
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.
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.
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.
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.
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?
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.
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.