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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.'"
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.
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.
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.
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.
It seemed to me that a disproportionate damage award may have been the strategy all along, given the performance of her attorneys.
The AntiJoey
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?
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!
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.
Punitive damages can only be awarded in effort to deter the defendant from committing the same infringement again. It is expressly forbidden to make an example of a defendant by awarding a grossly high settlement for the purpose of making others think twice before doing the same thing. It is also expressly forbidden to award higher damages for acts that were not included in the trial. For example, in this case, there were 24 files in question. It's possible the jury said "I'm sure there were a lot more" and award damages with that in mind. They can't do that.
If either of those things occurred, the verdict is immediately nullified. I'm sure they will be raised on appeal, but they will be hard to prove. If you read the jury instructions on this case, it clearly explicates that they are to award damages ONLY for the files in question. There was even a neat little worksheet to help them with it.
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.
Their payday is in marketing dollars, and it's very real. 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. As a result, my name is "known" locally in the industry, and when a really tough case comes up, just about everyone says "you'd better get Overzeetop to look at this one." I'm so busy - in the middle of this recession and in one of the heavily affected industries - that I'm working 60-70 hours a week (no, that doesn't include /. time).
Trust me - this is not to fill some magical well of karma. It's to make a name, and to make a name is to make money.
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.
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.
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.
The deterrent is the chance of being caught. In Somalia, or any other country without an effective police force, the chance of being caught is zero, so there is no deterrent. The actual magnitude of the punishment has surprisingly little deterring effect, and in some cases can make crimes worse: back when capital punishment was applied to just about every crime, there was a big incentive to kill all witnesses to reduce the chance of getting caught, leading to many more murders than would otherwise have been the case.
I suffer from attention surplus disorder.
Secondary uploaders are individually liable for the people who downloaded it from them directly (in theory) and everyone else even further down the chain from them (in RIAA logic). This means that the RIAA can collect fees from Jammie, from the people who downloaded off her and uploaded it, from the people 2 levels down, 3 levels down, and so on, effectively being paid hundreds of times for the same thing.
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.
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.
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.
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.
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