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.'"

Comments

Exxon Valdez, Anybody

[MarkvW]

How does Jammie Thomas stack up against the EXXON Valdez case? EXXON got its punitive damages reduced. Why won't the same arguments work for Ms. Thomas? Any lawyers with opinions out there?

Re:Exxon Valdez, Anybody

[causality]

Can we say bad analogy? I see no parallel between those two cases except that Exxon and Thomas are both being defendants.

I don't know for sure what the GP was saying. However, rather than balk at this, I will apply just a tiny bit of common sense and see where that takes me.

Assuming that punitive damages were awarded agains Exxon and that Exxon argued that those damages were excessive and therefore unconstitutional, perhaps Thomas could make a similar argument. I am "assuming" that because there is no other way that the GP's statement could make any sense, therefore it must obviously be what he meant.

Having established the strong likelihood of that, the question now is whether Thomas is some kind of special case that can't use those arguments.

Re:Exxon Valdez, Anybody

[mrchaotica]

Incidentally, there's a reason that there's such a high cap on punitive damages in infringement cases. If that weren't the case, large companies could attempt for-profit infringement, and even if they did get caught and had to pay damages based on actual damage, those fines would be largely covered by the profit made infringing!

Wait, that doesn't make sense: the profit should be used up covering the fines for the compensatory damages (by definition!); punitive damages, even if proportional to the compensatory ones, would be over and above that.

Re:Exxon Valdez, Anybody

[CodeBuster]

I am no so certain that Thomas is being stupid by continuing to fight. There are some really good Constitutional points to be argued, particularly with regard to damages, and since she seems willing to go forward then I say lets see how far this goes. Her case, sympathetic or not, has already generated lots of publicity and is seen by many, at least within the technology industry, to be an important part of a larger debate on copyright going forward. If this case is going to be the showdown of the century with the copyright cartels then I say lets have it now; before the RIAA and their Justice Department cronies can get DMCA 2.0 and secret copyright treaties pushed through a distracted Congress without any substantial public debate.

Re:Exxon Valdez, Anybody

[Anonymous Coward]

The defendant's profit has nothing to do with the damages: if I burn down your car I am not making any profit what so ever, I am even at loss spending my gas and matches, do you believe that no material damage would be caused in this case? You don't need to prove how much profit the defendant had made in order to claim damages.

Re:Exxon Valdez, Anybody

[gnasher719]

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.

I personally disagree completely with the distinction between commercial or for-profit and non-commercial infringement. I think there should be fines that are based on the best possible estimate of actual damage. It seems obvious that a commercial infringer, who tries to make money from infringement, is much more likely to cause actual damage - if a commercial infringer makes money, it is very likely that there is actual damage at least equal to that amount and likely higher; Jammie Thomas on the other hand most likely didn't cause much damage at all. So in practice, commercial infringers tend to cause more actual damage and should be punished harder accordingly, but not because it is commercial, but because it is more damage.

Re:Exxon Valdez, Anybody

[Keeper Of Keys]

It would be a far more interesting test case if she came out and admitted she did it. Then they lawyers would have to make the case that (non-profit) file sharing is actually legal, and/or that the damages are unconstitutional. The last trial was just about the technicalities of whether the prosecution could prove she did it, and they did quite a good job of that.

Re:Exxon Valdez, Anybody

[AK Marc]

I see no parallel between those two cases except that Exxon and Thomas are both being defendants.

And that's enough or a parallel. I'm not fully up, but I think the Supreme Court said that punitive damages should be capped at no more than three times actual damages. That's simple, clear, and since there was no actual damage that can be demonstrated, should have punitive damage at 3x zero, for $0. After all, they never addressed her having them illegally, but uploading them, and there is no proof that anyone actually got them from her other than people that already had permission.

Re:Of Course

[Cowclops]

IANAL but if I recall correctly, punitive damages are typically considered unconstitutional if they exceed 10 times actual damages. Feel free to correct me on that one.

Worrisome Potential Precedent

[resistant]

I'm worried that the Supreme Court, should it eventually take this case, might find a way to justify these hugely exorbitant awards on technically narrow and nit-picky grounds that nonetheless are broad enough in reality to make fighting the RIAA essentially a hopeless cause financially for most people. The Kelo decision shows the kind of sloppy reasoning that can lead to appalling results. It surely doesn't help that Jammie appears to be guilty of deliberate file-sharing and tampering with evidence after the fact. One could wish heartily for a much more sympathetic defendant.

It was impossible to cause that much damage

[slashqwerty]

If one does the math it is easy to see it was impossible for her to have caused $1.92 million damage. The offense occurred in 2004. Back then a typical cable modem had an upload speed of 256kbps shared with the neighbors. A typical song costs $0.99 on iTunes. An average MP3 is about 3MB. To upload 1.92 million songs would take 2,184.5 days (almost six years) with no protocol overhead, no downtime (infinite nines!), nobody using bandwidth to search for songs, no neighbors using any of the bandwidth, and no one in her house using the internet for anything but uploading files. Kazaa had only existed for three years at the time. She would have had to start before even Napster existed.

We already know the plantiffs were unsuccessful in several of their download attempts (this was brought up at trial). So it seems many attempts to upload files failed which means it would have taken even longer to cause $1.92 million in damages.

Oh yeah, also note today is Independence Day in the U.S. Four of the companies that sued her are headquartered outside the U.S. The one U.S. company has a CEO from Canada.

Re:It was impossible to cause that much damage

[harlows_monkeys]

If one does the math it is easy to see it was impossible for her to have caused $1.92 million damage. The offense occurred in 2004. Back then a typical cable modem had an upload speed of 256kbps shared with the neighbors. A typical song costs $0.99 on iTunes

Your first mistake is using the iTunes price. Last time I checked, if you get a song from iTunes, it does not include a license to make the song available for an arbitrary, untracked, number of uploads to other people. If you were to write to the rights holders for the songs involved and ask what it would cost to get a license for unrestricted, untracked, copying and redistribution, I am pretty sure they would ask for more than $1 per song.

This is why it is often expensive for movie producers to use popular songs in their soundtracks. Did you think they just went to the iTunes store, downloaded a copy for $1, and then used it in their movies, without paying more?

For movies, the licenses can be thousands of dollars per song. If she had to pay similar per song, and had to pay for all the songs she was sharing, not just the 24 that were brought up in trial, it would actually come in the ballpark of $1.92 million. However, that's not really relevant, and that brings is to your second mistake.

The $1.92 million is not meant to represent actual damages. Actual damages are very hard to prove in most copyright cases, and so the plaintiff can elect to take statutory damages, which are defined in the statute (hence the name). They are from $750 to $150000 dollars, with the jury deciding where they go. The jury went for something in the middle of that, per song, for the simple reason that she was not very good at lying to them. Juries do not like it when clearly guilty defendants tell a shifting tale of several badly told obvious lies, and that tends to push damages up.

Re:It was impossible to cause that much damage

[clarkkent09]

That's all beside the point. The damages awarded were statutory damages as set by the law. It is impossible for the plaintiff to prove the actual damages because there is no way to tell how many people downloaded those songs that she uploaded so the law sets a default amount. On the first glance it seems that $80K per song is too high but then I don't know the technical argument for it.

Tactically, I think she and her lawyers are making one mistake after another and she will eventually have to pay a lot more than she could have if she settled right away. Here is the part I don't understand: on one hand she is not "interested in discussing any deal that required her to admit guilt or pay any money" but on the other hand the main argument of the appeal is "that the damages are disproportionate to any actual harm." 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.

Re:It was impossible to cause that much damage

[sumdumass]

I believe she was the one who paid for the Kazza program and originally claimed that the content came with the membership.

In that case, she could admit damages but not admit her own wrong doing because she acted in what appears to be a legal and lawful way.

Re:It was impossible to cause that much damage

[Anonymous Coward]

Oh yeah, also note today is Independence Day in the U.S. Four of the companies that sued her are headquartered outside the U.S. The one U.S. company has a CEO from Canada.

So... you're saying that only US-based companies actually have any rights in the USA, that suits against US citizens can only be brought by US-based companies, and that if a foreign-based company feels it's been wronged by a US citizen, the only thing they're entitled to is a "sucks to be you"?

You've got a good point otherwise, but this particular bit of (literal) xenophobia didn't exactly increase your cred.

Re:It was impossible to cause that much damage

[TheRaven64]

Last time I checked, if you get a song from iTunes, it does not include a license to make the song available for an arbitrary, untracked, number of uploads to other people. If you were to write to the rights holders for the songs involved and ask what it would cost to get a license for unrestricted, untracked, copying and redistribution, I am pretty sure they would ask for more than $1 per song.

Correct. However, SoundExchange offers, to anyone who wants them, at $.0019/song/listener (2010 rates, have increased every year). If you can classify your peer-to-peer program as an Internet Radio Server then you can stream over 500 copies of a song for $99.

If the downloader chooses to store a copy of the stream in a file, rather than just listening to it once, then they are the ones committing copyright infringement.

Re:It was impossible to cause that much damage

[kylemonger]

She won't be a slave. If she loses the appeals she can file chapter 7 bankruptcy and walk away from the whole mess. Not a happy outcome for her, but way better than having her wages garnished for the rest of her life. The RIAA knows they aren't going to see a penny of that huge settlement if they insist on breaking her; that's why they want to settle for a smaller amount.

What I think her penalty should be

[selven]

Madoff - $60 billion, 150 years - $400 million per year Thomas - $2 million / $400 million = 0.005 years = 2 days in prison. It all works out nicely.

Re:Of Course

[Culture20]

It's worth noting that the deterrent in question [...] is applied pretty inconsistently. Only a tiny percentage [...] are targeted[...]. Someone has probably researched how such things correlate to the effectiveness of the deterrent, but I haven't looked into it. Purely talking out of my ass, I suspect it weakens the social effect considerably.

Slightly edited, this fits speeding laws, enforcement, ticketing, and the revenue stream of such. Imagine if speeding laws were enforced uniformly and swiftly (a la the GPS system suggested recently); no more ticket money. The RIAA wants this kind of money, so they'll be sure not to over-fish these waters.