Slashdot Mirror
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.'"
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?
Given the track record of her lawyers, she could end up with a life sentence.
'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.'"
Of course they're disproportionate to any actual harm. That's the whole point. The damages are meant to be a deterrent against future abuses. The RIAA is sticking her head on a pike as a warning to others.
When our name is on the back of your car, we're behind you all the way!
Well she is clearly one of the biggest threats to this world. I think she's got off light. She should have had to pay infinity billion dollars and spend the rest of her life in Guantanamo Bay.
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.
A truly excellent pizza parlor is a delight unto the heavens. Treasure the sauce and the toppings!
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.
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.
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.
As far as I know, this isn't a consideration. Damages have to be limited to the infringement by the defendant, not what someone else did because of the defendant's infringement.
An example would be this: someone purchases a newspaper from a self-serve machine and holds open the door while he and 10 other people all take copies that they didn't pay for. The actual damages that the first person is responsible for are limited to the paper he stole. While he enabled others to steal newspapers, he did not commit the actual theft. He could be hit with punitive damages related to enabling others to commit the crime, but he cannot be sued for the $3.00 that was lost due to the 10 other people taking papers.
Your 'logical' case that damages=24x$1xNxBxLxD rests on the premise that it is reasonable to hold a single person responsible for an arbitrary amount of distribution on the internet. This is nonsense.
If you really think it is reasonable, I suggest you start figuring out how to prove that it wasn't you who killed my dog. I mean, for all I know, it was you.
Nerd rage is the funniest rage.
The maximum penalty for willfully infringing on someone else's copyright is $150,000 per infringement. That would $150,000 x 24 = $3,600,000 as a maximum penalty.
The fact is that she was found to be infringing and was given a the minimum, then she challenged that and was found to be willfully infringing and given a median amount of $80,000 per infringement.
There is a pretty strong logical case that one should calculate damages according to the applicable laws and not by one person's (probably selfish) desires.
There is no "-1 offended" or "-1 you don't agree with me" mod options for a reason.
Actual harm should be related to actual revenue. It could be current revenue or it
could even be the maximum annual revenue that these works ever generated. One key
fact that seems to be glossed over here is that these are OLD works. Many of them
would have fallen into public domain on their own by now if the law had not been
recently changed to specifically favor Disney.
The RIAA likely does not see 80K in a year from the 20 year old Richard Marx song involved.
That clearly limits the likely possible damages here.
In general, a statutory damage award 50% of the maximum probably should never
be applied to a copyrighted work that is 20+ years old.
After considering the issue further (based on this verdict) it seems that it
might be unjust even to subject a professional bootlegger to this verdict.
A Pirate and a Puritan look the same on a balance sheet.
"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). "
OK, but that would also mean that a person who downloaded a song from her cannot be sued by the RIAA because it already received the damages for that. It seems fair to me that Jammie has a right of recourse on the downloader, although I doubt that would make her happy.
I think it is also fair that the RIAA proves that the 24 songs were not already paid for by someone else they had sued.
Bert
Who no longer has any illegitimate songs (and movies), but does have CDs now from several of the tapes he had when he was a student. If that makes the RIAA happy, I've bad news. iTunes allowed me to buy several songs for which I'd never bought the CD, but now I've effectively stopped buying music.
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.
And another thing...
It doesn't even pass the laugh test. $2 million for 24 songs?????
Ask a silly question - If the $1.9M was paid - would his not mean that anyone who downloaded the named tracks during the time period (the damage the $1.9M is expected to cover) could have a claim that payment has already been made and thus not be liable ?
I wouldn't be surprised if at the appeal her fine is raised to a round $20 million dollars.
Seven puppies were harmed during the making of this post.
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.
Ok heres a question for everyone. Say you make $30,000 a year. How are you expected to pay a judgment of nearly two million dollars? Thats more than you'd make in several lifetimes. Do they garnish a percentage of your wages or negotiate installment payments?
Only the State obtains its revenue by coercion. - Murray Rothbard
One commenter made a comparison to the Exxon Valdez case and other punitive damages cases where the damages award was reduced to be more proportionate to the actual harm. Unlike those cases, there is a statutory damages regime here, and long standing Supreme Court precedent establishes that courts must be very deferential to awards within the statutory framework. In particular, statutory damages are reviewed under a standard even more deferential than the already deferential abuse of discretion standard: whether the award is "so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable." St. Louis, I.M. & S. Ry. Co. v. Williams, 251 U.S. 63, 66-67 (1919). Also see, Douglas v. Cunningham, 294 U.S. 207, 210 (1935) (Congress's purpose in enacting the statutory-damage provision of the 1909 Copyright Act and its delineation of specified limits for statutory damages "take[] the matter out of the ordinary rule with respect to abuse of discretion") (via). Appellate courts are also somewhat loathe to disturb jury verdicts. The standard in the Eighth Circuit, where the Thomas case was decided, is whether 'no rational jury' could have found as the jury did. Dace v. ACF Indus., 722 F.2d 374, 376 (8th Cir. 1983).
You might say, well, the ratio of damages to actual harm here is roughly a factor of 80,000, so surely that is sufficient even under that high standard. The RIAA is likely to argue that only the increased damages due to willful infringement are punitive and that the the underlying statutory damages are not inherently punitive. Should it prevail on that theory, then the resulting substantially lower ratio is likely to be seen as constitutionally permissible. Furthermore, the Supreme Court has upheld ratios as high as 113:1, for example, and the ratio alone is not sufficient to overturn the award. Phillip Morris USA v. Williams, 549 U.S. 346 (2007).
Another commenter made reference to the "cruel and unusual punishment" clause of the Eighth Amendment. The Eighth Amendment does not apply to civil cases (not even the "excessive fines" clause). See, Ingraham v. Wright, 430 U.S. 651 (1977).
But the real crux of the issue is that the Copyright Act simply does not make an exception for individual non-commercial infringers. Assuming the facts of the case are accurate--and appellate courts do not like to disturb jury fact finding--then by the plain language of the statute Ms. Thomas is liable for a minimum of several thousand dollars in statutory damages. In my opinion the most likely outcome is that the appellate courts will let the verdict stand but strongly suggest that the legislature revise the Act to exempt individual non-commercial infringers from the statutory damages regime.
The "correct" method would be to model the network, and fine her the difference between the number of songs shared by the network without her presence and that number with her involvement. For an analogy, it would be the drop of current in a resistor network caused by the removal of a particular resistor. This would represent that actual harm that she did. Since this depends greatly on the topology of the network, this is of course not feasible without some assumptions. The theory of random graphs (see e.g. work by Bollobas) might be helpful here. Not that I'm really advocating such a mathematical approach to law.
The upshot of this is that, assuming a relatively highly-connected graph (high Fiedler number), her impact is probably very, very small. For an extreme example, consider the difference in effective resistance between 100 1-ohm resistors in parallel and 99; it's tiny.
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.
She wants to get it appealed to something that wont bankrupt her? $100 ?
Whether or not it was possible for her to cause $2m damage to the recording industry is beside the point; the damages are meant to be punitive, to make an example of her and act as a deterrent. Psychologically, for a deterrent to be effective, the severity of the penalty must be exponentially proportional to the likelihood of getting away with it; as such, the sky's the limit.
From my reading here it is clear there are two amounts concerned in the judgement: compensatory damages and punitive damages. The former is supposed to compensate the winner for losses, and clearly goes to them. My question is, who gets the punitive damages? The deterrent represented by these punitive damage awards is a parallel to the sentence or fine in a criminal case, both of which are collected by the State on behalf of society. Is that the case in these civil litigations in the US, or does the winner claim that as well?
Patent litigation: A doctrine of Mutually Assured Destruction... in which everyone seems willing to push the button
The whole business of making music would become a perverse combination of hype and ownership on a multinational level
Would become? I think perhaps we're there already.
when she downloads a song in MP3 format, she is not stealing it from the RIAA so that they don't have a copy of it anymore, she is making a copy of an existing MP3 format. If the RIAA proves that she downloaded the song without paying for it, charge her $1 per song which was the going rate back in 2004. I fail to see how she did $1.92 Million in damages unless she downloaded 1.92 million songs.
I remember when they busted Kevin Mitnick, they tried to charge him for the cost of developing the software he stole, his lawyers claim they couldn't charge him for the entire cost of developing the software as he only stole a copy of it and did not delete the original from the source. I forgot how Mitnick got out of that one, but they tried to make an example out of him by charging the full cost of developing the software he downloaded, instead of the actual cost of buying a license of said software.
Let me put it this way, it is more like stealing a $1 pair of sun glasses from a store, you don't charge the shoplifter for the full price of developing the pair of sunglasses, but the actual price the sunglasses sold for. But it isn't even stealing sun glasses it is more like taking a picture of said sun glasses in the store and then sharing that picture with random strangers on the Internet. In fact this is more like the 1970's and 1980's when people bought an LP and then copied it to a cassette tape for their friends to listen to or recorded songs off FM Radio stations to Cassette tapes and shared them with friends. It is not the original LP they are stealing, but a copy of it or a copy of the recording of the song. This is legally no different than hearing the song on an FM Radio station for free, except she has control over what song plays and for how long. Will the RIAA go after people who listen to FM Radio songs next, or stop libraries from carrying Audio CDs that can be checked out for free, or the Internet Radio programs that play a random MP3 file as well? How can you justify a $1.92M charge, and that much damage was done? The answer is you cannot, because you don't know if the copy of the songs lead anyone to actually buy a legit version of the song after hearing the pirated version and liked it enough to buy a legal copy and other things by the singer or band who made the song they like. In that case a pirated copy of a song is no different than hearing the same song on an FM Radio for free because the FM Radio is sending out a copy of the song to every FM Radio tuned in to that station. This woman did the same thing an FM Radio station would do, beam up copies of the recorded song for free. You'll have to prove that she charged for each song in order to prove piracy and loss of sales, or else it ends up the same legal status as an FM Radio station or Internet Radio Station, etc.
Remember, Slashdot does not have a -1 disagree moderation, and no, troll, flamebait, and overrated are not substitutes.