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

Re:Of Course

[camperdave]

For example - I do training exercises, and spend time with local officials - free of charge - to help them understand the technical points of building codes. I do this for local contractors and architects as well.

Mike Holmes? Is that you?

not necessarily disproportionate

[bcrowell]

Okay, this is going to be wildly unpopular on slashdot, but I'm going to play devil's advocate and argue that the damages are not necessarily disproportionate to the actual harm.

It's definitely not correct to calculate the actual harm like this: 24 songs, multiplied by a market price of $1 per track on iTunes, giving 24x$1= $24. She wasn't being sued for obtaining single copies of the 24 songs illegally for her own use, she was being sued for giving them to other people -- possibly a very large number of other people.

Another possibility would be to take 24x$1, and then multiply by the number of people who actually downloaded the specific copies of the songs that she made available. There are a couple of problems with this. One is that nobody has any data on how many people downloaded those specific copies. Maybe zero people downloaded them. Maybe 10 people downloaded a particular song, each of them copied that copy 10 times for 10 friends, and so on, so that conceivably there are millions of mp3 files of that song out there that are all descended from Jammie Thomas's original. We just don't know, because the copies don't carry a history that allows us to know how they spread. You could argue that other people may have bought CDs of the same songs, ripped them, and put them online; again, there was no data about this at trial. And in any case, it's kind of morally obtuse to say that what she did isn't really so bad, because lots of other people were doing it as well. If you want to argue that what she did wasn't blameworthy, then you need to do it on other grounds, e.g., US copyright laws are unjust; well, I agree that US copyright laws are unjust, but we're talking about a court case here, so that's irrelevant. Suppose I set fire to the trees behind my neighbor's house, and around the same time 100 other people are also lighting matches and throwing them into the same bushes. My neighbor's house burns down, and he sues me. IANAL, but I doubt that the court is going to reduce the damages they make me pay by a factor of 100, on the theory that there were 99 other people attempting to do the same thing.

So it seems to me there's a pretty strong logical case to be made that you should calculate the damages like this: 24x$1xNxBxLxD. N is the total number of people who downloaded the song (and, as argued above, not just the number who got a copy directly from the ones Thomas put up). B is a factor that takes into account that only a fraction of the blame is hers, but I argued above that setting B=1 is reasonable (or at least not so unreasonable that it's obviously unconstitutional). L is a factor that measures how much the industry really loses when songs of a certain market value are downloaded. The industry usually assumes L=1, i.e., that every illegal download equals one lost sale. We actually don't know what L is. It's possible that 75% of downloaders would never have bought the song (e.g., they're 12-year-olds who have no money), in which case L=.25. It's even possible that L is negative (illegal downloads publicize and popularize the music, thereby driving legal sales). But these things are all impossible to determine, so I don't think it's completely crazy to say L=1, as a ballpark figure. (Again, the issue isn't whether it's exactly correct, the issue is whether it's so crazy that it gives a result that is obviously unconstitutionally disproportionate.) And finally D is the deterrent factor. When you sue someone for copyright violation, you're allowed to sue for more than the actual damages. As an example, if you write GPL'd software, in many cases the market value of the software is vanishingly small because you're intentionally giving it away for free; nevertheless if you satisfy certain technical requirements, you're allowed to sue for more than your actual damages, i.e., D can be much greater than one. (This is one reason that the GNU project encourages authors of GNU software to formally register a copyright, and sign over the copyrights to GNU. If you don't file a formal copyright re

Re:It was impossible to cause that much damage

[hansamurai]

They don't want to settle because they want the smaller amount, they want to settle because they don't want to go to court against a defendant with balls. They've already spent ten to hundred times the results of the settlement on their lawyers.