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Jammie Thomas To Appeal $1.9 Million RIAA Verdict
CNet reports that the lawyers representing Jammie Thomas-Rasset have confirmed she will be fighting the $1.9 million verdict handed down in her case against the RIAA.
"The Recording Industry Association of America said on Monday that it had made a phone call to Sibley and law partner Kiwi Camara last week to ask whether Thomas-Rasset wanted to discuss a settlement. An RIAA representative said that its lawyers were told by Sibley that Thomas-Rasset wasn't interested in discussing any deal that required her to admit guilt or pay any money. ... 'She's not interested in settling,' attorney Joe Sibley said in a brief phone interview. 'She wants to take the issue up on appeal on the constitutionality of the damages. That's one of the main arguments — that the damages are disproportionate to any actual harm.'"
And when did deterrents ever stop murders or kids making copies of songs for their friends?
The big fines were intended to make professional copyright violations where some factory turns out hundreds or thousands of copies of fake product unprofitable. Using the same law to beat up some random person is disproportionate.
Which her lawyers believe is unconstitutional, hence the appeal. Making an example of one particular offender isn't the way the law is supposed to work. You transgress, you are punished appropriately. The problem is that the law, written in a different age, and with different parameters in mind, should not be applied in this fashion. Unfortunately, in this case, the defendant does not have the financial means to set this straight. The lawyers, with deep pockets and a public name to make for themselves, do have the means. There is no doubt in my mind that they are not doing this altruistically, but they happen to be fighting what many believe to be a poorly written statute and in that sense are fighting for the common good at the same time. I've got no problem with their desire to gain reputation in the process.
Is it just my observation, or are there way too many stupid people in the world?
Seriously, who could not have seen this coming.
This verdict had to have been the RIAA's worst nightmare. They had to know, as they left the courthouse that they had just snatched ultimate defeat from the jaws of temporal victory.
NOW it all comes into play again, out from under easily impressed small town judges and professionally packed juries.
The entire investigative tactic, the improper application of laws, (not to mention that little phrase containing the words "Cruel or Unusual Punishment") comes under high level review.
They can't have wanted this. They would have been happy with 100K verdict. This is their worst nightmare.
Sig Battery depleted. Reverting to safe mode.
I'm not so sure, actually. If the defendant were not clearly guilty, the ruling might simply be overturned. In this case, with it pretty darned likely that she did do what did, the real case here is what kinds of limits should be set for recovering legal damages. Is non-commercial distribution really worth an amount equal to destroying the rest of your life? I would think that the plaintiff would need to show _actual_ damages, or be limited to a nominal fine. That is true for most litigation I'm involved in (architecture/engineering disputes). Unless you get into personal injury and pain-and-suffering cases, you've got to show actual damages and actual repair costs attributed _directly_ to the act. Consequential and incidental damages are very hard to win. Content industries insist on trying to chase the low hanging fruit (file sharers) because the law stacks the deck in their favor. If they can't provide an actual value, they get to select a prescriptive (that's not the right word...I know) value which is orders of magnitude larger than the original item.
If they can't prove the actual losses, they should get 3x the value (or 5x or 10x, not 100000x). That means finding the people who downloaded the songs and (1) determining that they did not already own that song in another form (vinyl, magnetic, CD, or commercial download) and (2) that they would have purchased the item if it were only available through a commercial site. Simple cause-effect analysis.
Is it just my observation, or are there way too many stupid people in the world?
Am I alone in thinking this is exactly what the (pro bono) defense wanted? As I see it, wearing my tinfoil hat, they wanted an insane fine to be imposed so they could defeat it as unconstitutional. They would then establish the "right" fine appropriate with the offense (many opinions on this but most agree it should be in the hundreds of dollars, not thousands - these are songs that sell for 99 cents a piece, after all...). Once that's established, THEN they can fire up their class action suit which is where the real money is to be made. I know I'm being all conspiracy-theory with this but I think most of us agree that the defense didn't exactly do the best job possible and they are very intelligent people so I'm left wondering why - why didn't they do the best job possible? And the only answer I keep coming back to is because there's no money to be made winning _THIS_ case but there's truckloads to be made from winning the class action suit down the road.
Can we say bad analogy? I see no parallel between those two cases except that Exxon and Thomas are both being defendants.
If I had mod points this morning, I would mod parent up. Sicne I don't have any at the moment, I'll argue why someone else should mod parent "insightful" or maybe "informative".
If the defendant were not clearly guilty, the ruling might simply be overturned.
This is exactly why I'm pleased that she is appealing the ruling on constitutional grounds. The appellate courts can (and should) look for every other possible basis for deciding a case before they start looking at constitutional issues and setting precedents. Since the preponderance of evidence says that the law was broken, this is now the first good test to see whether the law itself is good. And, ideally, whether the techniques of institutional barratry used by the RIAA and their member corporations are legal.
Will
Agreed. If law said the sentence for drunk driving were 20 years, and you wanted to challenge the constitutionality of the long sentence, by definition the defendant would have to have driven drunk. That said, it would be possible to get a more sympathetic defendant in this case - maybe someone who unwittingly fileshared songs. e.g. They installed Kazaa, tried it briefly, and stopped using it not realizing it stayed active in the background sharing their legit MP3 collection (ripped from CDs they owned).
Yeah, I can understand being awarded multiple times the value of the song. If she were penalized just 1x the cost of buying the songs (as some here have proposed), then you'd have nothing to lose by downloading. If you're caught, you only pay as much as if you'd bought it. If you're not caught, you get it for free. So clearly the penalty has to be more than the cost of just buying the songs.
But the award in this case works out to $1.9 mil / 24 songs = $79k per song. If you look at the RIAA's 2001 marketing stats, they made about $500,000 per new CD release. If you figure a CD averages 8 songs, that's only $60,000 in annual worldwide revenue per song in the first year as a new release. i.e. The award has her paying more per song than the average revenue the RIAA gets per new song in its first year. You don't even need to check if the award is "cruel or unusual punishment." You can tell it's way too high because it makes it a better business model to sue filesharers than to actually sell the songs on the market. The initial $220k award was possibly unconstitutional. The current $1.9 million award is insanity and would destroy capitalism if it stands.
How does Jammie Thomas stack up against the EXXON Valdez case?
If Exxon had been offered a chance to settle for $5000 at the start, they would have taken it.
if Exxon had been offered a chance to settle for $5000 after their first court loss, they would have taken it.
Hence, you can't really compare Exxon to Thomas, as Exxon is not stupid.
EXXON got its punitive damages reduced.
If Thomas gets lucky, and the statutory damages are reduced from $80k per song to the statutory minimum of $750 per song, it will still come out to more than the RIAA has repeatedly offered to let her settle for.
True, though that's why this is unjust. It's unjust because there is a staggering difference between commercial for-profit infringement and what Thomas has done. Measures intended to deter the former should never be used against the latter. It is my belief that it would be better for the RIAA and all of its member companies to go bankrupt than for our legal system to be perverted and used as a tool of revenge in this way.
Incidentally, since when did our justice system start caring about making sure that commercial lawbreaking is not profitable? They certainly don't seem to care about this for antitrust cases...
It is a miracle that curiosity survives formal education. - Einstein
I always appreciate a good devil's advocate argument. But you don't have to work through any math to realize that $1.92 million is a ludicrous figure for this small number of non-commercial, personal acts of infringement. At her salary, it's more money than she'll make in a lifetime (ok, fine, I worked through some math there, so sue me). Blindly using these same formulas one would conclude that amount approaching and exceeding several billion in damages would be justified for common cases of infringement when an individual has been sharing hundreds or thousands of songs. If you're looking at this mathematically, this is the point where you step back and look for a sign error somewhere, because you know the result can't be correct.
And regarding your match analogy, IANAL either, but I think that yes, damages should be reduced if 100 others were involved. Why are you being held fully responsible for damages for which the responsibility demonstrably falls in the hands of others? Can your neighbor, after successfully suing you, go on to sue someone else for the same damages, thereby being allowed to receive 100 times the amount than if you alone had caused the damages? Yes, shared responsibility makes the logistics difficult, but avoiding difficulty is not an excuse for unjustly assigning the responsibility.
Furthermore, with multiplicative formulas such as yours, it can be very unreasonable to ballpark figures as you have. Small errors in these numbers result in large errors in the result. And when the difference is between a reasonable fine and ruining someone's life, surely you can agree that it is unacceptable to simply ballpark the figures.
"But the 100 people she gave songs to, also gave them to 100 people, exponentially."
Your argument makes absolutely no sense. She should be punished for the copyright infringement of others? Why haven't they tracked down those people yet, if they have so much evidence against her?
Still waiting on Serviscope_minor to wake up to fucking reality and realize that Jessica Price isn't going to fuck him.
And this is what people just can't get a good perspective on. They are basically sentencing her to be a slave for the rest of her life and that is even more cruel than execution. Moreover when you have nothing it is extremely difficult to make large amounts of money. That 2 million would be very very difficult to pay off even if you are left after the sentence with all possessions you got (job, house etc). But probably they will take everything that woman owns and tell her to pay off the rest. But in both cases the woman is just a slave. She is not a prisoner like in some russian work camp, but all the freedom she has is to live and give everything she gets to some faceless corporation and that is slavery.
I just find it despicable that those monsters (yes, those people should be put to jail) are ready and willing to destroy your life and seriously impact the life of your relatives just for a few shared files which are fucking sold for $1!
Trolls are like broken clocks. They show the truth two times a day. The rest of the day they talk nonsense.
That's all beside the point. The damages awarded were statutory damages as set by the law.
Correct.
However, statutory damages are supposed to be a reasonable substitute for actual damages when actual damages are difficult to compute. So its fair to point out that the 'statutory damages' are not only out of line, but are out of line for any case in this 'class' (of noncommercial p2p infringement), and that they are so out of line that that the statute itself is defective, even unconstitutional.
On the first glance it seems that $80K per song is too high but then I don't know the technical argument for it.
There is no technical argument for it. The statute was written to address and punish people who created and sold counterfeit copies of books, movies, records, etc.
P2p internet sharing didn't exist. At the time to do any serious infringement, you needed replication equipment, and blank media, and so on... it would be time consuming and expensive. The people doing it would have to be deliberately engaged in this, and would almost invariably be charging money to cover their costs. It would almost have to a fairly large scale commercial enterprise to be of significant scale.
The idea that a barely computer literate person could commit "massive unauthorized distribution infringement" on the same scale, at no cost whatsoever, as essentially a "side effect" of obtaining a few songs for their own personal noncommercial use, via a simple computer program and a few mouse clicks was simply unimagined by the statute authors.
Doesn't it mean that she is admitting that harm occurred and only challenging the amount? It seems like her main argument is at odds with her unwillingness to accept any guilt or settle for any amount.
Admitting harm occurred is not the same as admitting personal culpability for the harm.
Suppose you came over to my house, twisted your ankle on the front step, and then sued me.
I'm going to deny that I'm responsible. My front step is well maintained, with a solid railing, and a non-slip mat. It is level, clear of toys and other hazards. I refuse to accept guilt or settle. I have done nothing wrong.
But that's not to say I'm going to deny you were harmed. Your ankle was twisted. I accept that.
So you sue me, and the jury sides with you. So be it, that's life. Then the court awards you 20,000,000 dollars.
And I'm in the same position as Jammie. I maintain I did nothing wrong, I agree you twisted your ankle, and am disputing the amount of the award.
You are not reading the grandparent's comment. The average total income from selling a song is $60,000. That is, the total money made from selling every copy of a song that is sold, is $60,000. With this in mind, the average value of the copyright of a particular song is $60,000, because that is the total amount of money that can be made from owning the copyright. The cost of buying a non-exclusive distribution license for a song is going to be less than the cost of buying the copyright outright, and if the value of the copyright is $60,000 then the distribution rights will be less.
There are, of course, some outliers. A small number of songs will make a lot more money, while a large number will make a lot less. If you picked a band at random from the list of those signed by the RIAA and offered them $79K to make their song available for download for free then they would most likely accept; there are very, very few who would make more money by not accepting your offer.
The problem with the $79K award is that, if you work on the assumption that she is expected to be able to pay, then the damages an artist can get from a single count of copyright infringement is greater than the total income that they would otherwise get from selling music.
If she is not expected to be able to pay - if the statutory fine set at a level intended to bankrupt infringers - then there is a good case for the level of the fine being unconstitutional. If, on the other hand, she is expected to be able to pay, then level of the fine is such probably unconstitutional under Section 8 because creating an economic environment where it is more lucrative to sue for copyright infringement than distribute your creative works will not 'promote the Progress of Science and useful Arts'.
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The existence of an offer to settle doesn't change the fact that the original sentence is cruel and despicable.
Trolls are like broken clocks. They show the truth two times a day. The rest of the day they talk nonsense.
But, if that happened, then owning the rights to music would become more important to music labels than actually producing good music. The whole business of making music would become a perverse combination of hype and ownership on a multinational level. Then, their legal arm would grow stronger and stronger and it would begin a maffia-like extortion of insignificant music downloaders, ruining people's lives without regard for any kind of proportion.
Imagine such a world.