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Jammie Thomas Moves To Strike RIAA $1.92M Verdict
NewYorkCountryLawyer writes "Jammie Thomas-Rasset has made a motion for a new trial, seeking to vacate the $1.92 million judgment entered against her for infringement of 24 MP3 files, in Capitol Records v. Thomas-Rasset. Her attorneys' brief (PDF) argues, among other things, that the 'monstrous' sized verdict violates the Due Process Clause, consistent with 100 years of SCOTUS jurisprudence, since it is grossly disproportionate to any actual damages sustained. It further argues that, since the RIAA elected to offer no evidence of actual damages, either as an alternative to statutory damages, or to buttress the fairness of a statutory damages award, the verdict, if it is to be reduced, must be reduced to zero."
Resistance is futile in some cases ;-))
Disclaimer: The above sentence was intentionally left ambiguous if we relate to TFA context. As a hint, by "resistance",
"A force that tends to oppose or retard motion." was meant.
Everything I write is lies, read between the lines.
Don't do the crime.
"Why did they cancel my favorite Sci-Fi show? I downloaded ALL the episodes!"
are used when actual damages cannot be determined. Since the RIAA was able to show that there was distribution (the jurors bought it), they can seek statutory damages. They have no idea how many copies Ms. Thomas assisted in making. The law is crystal clear on this. In copyright law, plaintiffs can seek statutory damages when actual damages cannot be determined. I'm in no way defending the law, but it is clear. If this judge were to throw this out, it would be a case of exceptional judicial activism. I applaud his plea after the first trial to Congress to fix this problem. The courts have no authority to change something like this. I've been saying this since before her second trial, she should have settled, and she still should. The RIAA has gone out of its way to try to reach a settlement. In fact, according to Ars Technica (http://arstechnica.com/tech-policy/news/2009/07/jammie-thomas-challenges-monstrous-192m-p2p-verdict.ars) they are still willing to settle for less than the Copyright Act allows (24 *750 = 18,000). You got to know when to hold them and know when to fold them. She could get out of this surprisingly reasonably, but instead, she wants to hit a home run.
... to illegally download music. Heaven forbid that a corporation dare to try and make money. The law says that you should not download music without paying for it, and people who do so are in clear violation of the law. Why this site is full of proponents of such vile activities escapes me, especially when a good 90% of them probably get up in arms about Microsoft's various violation of the law (albeit a different law).
Honest opinion NYCL, what are her chances of getting the damages reduced to zero? Are they greater than zero? It is probably true to say that statutory damages of 1+ million for 24 songs strikes most reasonable people as ridiculously unfair. However, are not statutory damages as a general principle a sometimes useful concept in the law? For example, in cases where it is difficult to prove exactly how much loss a prevailing party has experienced? Perhaps the court will come up with some sort of reasonableness test for statutory damage awards in these cases. Is there a reason why it couldn't be $0.99 per song (the iTunes price) plus perhaps some modest fine (say not more than $500)?
I would like to see this turned around: because the RIAA's case did not offer any information about the damages done by download these 24 songs in the trial, the court should enforce that the RIAA sell all its tracks at the value assigned to each song by the jury (~$81,000). The court might even take pity of the poor industry and lower that to $40,000 if it assumes some reasonable amount of the fine (50%) was awarded for statutory damages. That way, if the RIAA accepts the ruling, they would immediately go out of business as every CD they sell would be marked up to $500,000. Why isn't there a Draconian party running for government anywhere?
/*No comment*/ #No comment
SCOTUS ? Sounds like a bunch of TP.
I think she got off light. She should have had to pay infinity billion dollars and spend the rest of her life in Guantanamo Bay.
Where is the good stuff? All the stories I've looked at are as boring as any other boring website. Where is the GOOD STUFF? Or is this all there is?
Jammie, be careful on who you listen to on the internet and get advice from.
Also, be aware of anything free or too good to be true on the inernet. Buy an Ipod and get an account with Itunes babe.
From her attorneys brief asking for the appeal: The second Gore factor is the factor commonly expressed in ratios of punitive to actual damages: "the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award." Campbell, 538 U.S. at 418. Although the Supreme Court has declined to state a bright-line rule about the maximum permissible ratio, it has repeatedly held that "few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process." Id. at 425. Even if, on occasion, awards with two-digit or even three-digit ratios are permissible, the damages award in this case, with its four-digit ratio looked at by album and five-digit ratio looked at by song is nowhere close to constitutionally permissible. "In sum, courts must ensure that the measure of punishment is both reasonable and proportionate to the amount of harm to the plaintiff and to the general damages recovered." Id. at 426.
Tech Support: "No, sir...clicking on 'Remember Password' will NOT help you remember your password."
Fellow pirates,
I implore you to continue your campaign on Slashdot to make me feel less guilty. I know that not paying someone for their work is wrong, but if Slashdot posts enough articles bashing the RIAA/MPAA/copyright law/whatever, it's easier for me to accept what I'm doing emotionally by visualizing someone else as the bad guy. Once on the forefront of relevant IT news, Slashdot is now a lame repository of mainstream pseudoscience links and pro-piracy articles to appease a dwindling readership. I am overjoyed.
Even though the open source community is about giving back as much as it is taking, I'm just going to take. I'm a human leech with self-serving beliefs and an inability to empathize with content creators who are trying to make a living.
I don't believe John Carmack should be paid for his work. I'm going to sit on my ass while he spends years coding the next advanced 3D engine from id Software. When their game comes out, I'm going to pirate it without giving a second thought about paying John Carmack for his work. I'm just so used to pirating things now that I take it for granted. If anyone mentions John Carmack to make me feel guilty, I'll look for Slashdot articles that bolster my viewpoint, such as this one [slashdot.org], amusingly posted in the Your Rights Online section even though none of my rights are being violated.
According to that study, it's okay to not pay people for their work because there's some vague hope that they'll make up the difference in income through "concerts and speaking tours." Artists are now forced to take time out of doing what they want to do. John Carmack must stop programming in order to make money from programming. It's genius. The study does exactly what I need it to--make me feel less guilty when I pirate. We've managed to stretch the truth so far that we're actually telling ourselves that we're helping artists by not paying them for their work. Excellent job.
I look forward to Slashdot telling me everyday who the bad guys are. Even though Slashdot has sued websites in the past for copyright infringement, and they've pretended to care about plagiarism [slashdot.org], we're supposed to go along with Slashdot's anti-copyright agenda. I'm okay with that hypocrisy because it serves me. It makes me feel less guilty when I pirate something. Remember, I'm not the bad guy--the RIAA/MPAA/whatever is. That makes it okay for me to not pay people for their work.
EULAs and copyright licenses are wrong, yet the GPL is good. Piracy isn't theft, yet GPL violations are referred to as "stolen GPL code." I accept all of these double-standards because it serves me. I pretend not to notice when someone points out that the GPL relies on copyright law, and if I want to get rid of copyright, my beloved open source code will no longer be protected by the GPL. I don't care, because I'm too busy concerning myself with what I want for free, not about the consequences. I want to get rid of copyrights because I've been told that copyrights are the bad guy, and they are an obstacle to my rampant piracy.
Fellow pirates, let us continue our selfish leeching. Let us paint others as the bad guys to absolve us of our emotional guilt. Our goal is to convince people that piracy is something the good guys are doing in a fight with the evil corporations. Making money is wrong, even though Slashdot displays ads, and it cost me money to buy the computer I'm using to pirate stuff.
Yours truly,
A fellow Slashbot
As per one of my previous posts postulated, they are not fighting based on technical defense, but on a constitutional one, the first court case was indeed a sham to coax the jury to make the biggest most outrageous damages they could. As per NYCL they didn't even call their own witnesses or cross examine (if memory serves me correctly).
...
I can't see this even being heard. The only way this flies is if there can be an accounting of actual damages, and that is not likely to happen. There is entirely too much information missing in this case to prove actual damages. The only thing you could potentially do is compare income on the songs prior to and after the incident, and do trending on similar songs. Since that evidence does not exist, how can it be introduced during an appeal?
The only effective appeal I see is based on the allowance of evidence from an unlicensed investigator, and frankly I think that was argued poorly enough that it would have a rough time on appeal anyways.
This is a terrible test case.
Fellow pirates, please allow me to intrdocue myself, I am a man of wealth and fame - and I did it all from being a pirate !! So can you !!
I implore you to continue your campaign on Slashdot to make me feel less guilty. I know that not paying someone for their work is wrong, but if Slashdot posts enough articles bashing the RIAA/MPAA/copyright law/whatever, it's easier for me to accept what I'm doing emotionally by visualizing someone else as the bad guy. Once on the forefront of relevant IT news, Slashdot is now a lame repository of mainstream pseudoscience links and pro-piracy articles to appease a dwindling readership. I am overjoyed.
Even though the open source community is about giving back as much as it is taking, I'm just going to take. I'm a human leech with self-serving beliefs and an inability to empathize with content creators who are trying to make a living.
I don't believe John Carmack should be paid for his work. I'm going to sit on my ass while he spends years coding the next advanced 3D engine from id Software. When their game comes out, I'm going to pirate it without giving a second thought about paying John Carmack for his work. I'm just so used to pirating things now that I take it for granted. If anyone mentions John Carmack to make me feel guilty, I'll look for Slashdot articles that bolster my viewpoint, such as this one [slashdot.org], amusingly posted in the Your Rights Online section even though none of my rights are being violated.
According to that study, it's okay to not pay people for their work because there's some vague hope that they'll make up the difference in income through "concerts and speaking tours." Artists are now forced to take time out of doing what they want to do. John Carmack must stop programming in order to make money from programming. It's genius. The study does exactly what I need it to--make me feel less guilty when I pirate. We've managed to stretch the truth so far that we're actually telling ourselves that we're helping artists by not paying them for their work. Excellent job.
I look forward to Slashdot telling me everyday who the bad guys are. Even though Slashdot has sued websites in the past for copyright infringement, and they've pretended to care about plagiarism [slashdot.org], we're supposed to go along with Slashdot's anti-copyright agenda. I'm okay with that hypocrisy because it serves me. It makes me feel less guilty when I pirate something. Remember, I'm not the bad guy--the RIAA/MPAA/whatever is. That makes it okay for me to not pay people for their work.
EULAs and copyright licenses are wrong, yet the GPL is good. Piracy isn't theft, yet GPL violations are referred to as "stolen GPL code." I accept all of these double-standards because it serves me. I pretend not to notice when someone points out that the GPL relies on copyright law, and if I want to get rid of copyright, my beloved open source code will no longer be protected by the GPL. I don't care, because I'm too busy concerning myself with what I want for free, not about the consequences. I want to get rid of copyrights because I've been told that copyrights are the bad guy, and they are an obstacle to my rampant piracy.
Fellow pirates, let us continue our selfish leeching. Let us paint others as the bad guys to absolve us of our emotional guilt. Our goal is to convince people that piracy is something the good guys are doing in a fight with the evil corporations. Making money is wrong, even though Slashdot displays ads, and it cost me money to buy the computer I'm using to pirate stuff.
Yours truly,
A fellow Slashbot
That's reasonable? 18,000 for sharing 24 files? You think she SHOULD have settled? REALLY??? Sure it's less INSANE than millions of dollars but it's still INSANE.
Hell, why don't we go back to sending kids who steal bread to Australia while we're at it.
These posts express my own personal views, not those of my employer
Nice post. Of course, another slashbot modded you down because you overloaded his logic circuit.
Can't have that!
I think the verdict should be reduced to below zero - entitling Jamie Thomas to a refund from those bastards.
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
Maybe I could sue for Punitive Damages that your giving me. Well, Punitive Damages here.
THL phish sticks
I don't know about Jammie Thomas-Rasset but if she es employed and has some kind of "normal" income it doesn't actually matter if she has to pay 18k or 1.9 million! She simply cannot! Thats all...If she wants to feed her children and tries to pay for their education...hell even paying for your own food might be impossible then...where is the difference? do you have 18k laying around?
its not a simple matter of mathematics...its a life we're talking about..at least one...She is porbably fighting for her very survival
Looks like another hustle for the Hamburger Pimp.
This could not happen in Europe because the UN declaration on Human Rights is built into legislation. Not surprisingly, British Conservatives want to get big business (and the US) on their side by derogating from it. This case is evidence of why we in the UK need to worry, not only about our present Government but the probable next one.
From scarped cliff or quarried stone she cries "A thousand types are gone, I care for nothing, no not one."
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That's all I can get from a case like this. 24 songs, a few hundred MB at most, and you're screwed for life. There's no connection between violation and verdict. I download that much when I hear a song I like on the radio, figure out which album it's on, and download the entire album to check out the other songs too. I've easily got more than a thousand albums downloaded (and that's not bragging in any way, I know it's not much compared to others yet). Have I robbed the music industry of billions of dollars?
Cases like these are exactly why I don't care about most people in the music industry. There's no sanity involved. Just "You don't obey us, we fuck you up". By most, I mean that I still want my favorite artists to stay in business. But people like those in the RIAA, who apparently solely exist to sue people, can be run over by a series of busses for all I care.
We are all God's parents.
So it should be execution for the killing of a single person. Or life (until death) in prison.
How you handle multiple murders, I can't tell. Maybe they get the dog too.
Whereas in this case it wasn't even one life paid. It was 24 days out of a life.
Assuming 80 years, that's about 28000 days or less than 0.1% of the damage done.
Assuming 99c per song, 24 songs, that would be... 2c.
According to Wikipedia, Don Schlitz wrote The Gambler and reached #65 on the country charts with it. Later, Kenny Rogers recorded the song and took it to #1 on the country charts and #16 on the pop charts.
As a hint, by "resistance", "A force that tends to oppose or retard motion." was meant.
Anyone else read that as "A force that tends to oppose a retard motion"?
... 100% with you, bro!!
Common sense comes in through "Common Man" theory, I believe. The issue you state is a fundamental difference in what we would like the law to do, and what it does. On the SCOTUS is emblazoned the phrase "EQUAL JUSTICE UNDER THE LAW". Equal has nothing to with what's FAIR. When one cuts a piece of pie exactly in half, that does does not take into account that one person getting a "cut" may be more hungry than the other person? Considering "hunger" in the splitting process falls into the realm of deciding "FAIR", not "EQUAL", outcomes. The pie analogy can be used to show the difference between "fair" and "equal" - Two selfish, pre-teen siblings argue over who will get the bigger piece. The father intervenes and says to the brother "you cut the pie" and, turning to the sister, says, "you choose first". My, that puts FAIR and EQUAL in perspective, doesn't it? Laws are meant to provide EQUAL protection, but not FAIR protection. FAIR is a MORAL issue...and it is up to each of us to decide what's fair, not the courts. But, base that decision of fairness from the "other side" of the issue, not your side.
First of all, the conduct being referred to regarding reprehensibility is supposed to be the action for which she is being sued, not her subsequent actions during the course of the trial. That's a separate matter. Not in the eyes of a jury, I'm sure, but still.
Second, you made the common mistake when you used the word "stolen", even in quotes. That's part of the RIAA rhetoric, not reality.
Third, what they're supposed to do is think about the consequences of her actions and their own.
Everything I've read and heard seems to indicate that the effect on the RIAA of her actions were basically positive, not negative. To say that what she did is "use without compensation" is misguidedly shortsighted. The term I like to use is "free advertising". That's how many bands feel about it, like Nine Inch Nails and Wilco, even including Metallica (until they got rich; it's a whole story but they really did at first like the free sharing of their music and it's part of how they got famous).
Then there are the consequences of the RIAA's own actions. Scattershot law suits and bizarrely aggressive legal manuevering in various cases has made any number of people vow never to buy another CD, ever. I know I've seen a number of such comments here on slashdot. I'm guessing quite a few other people feel much the same way.
From what I've seen, what they've done has damaged the music industry and what they should do is stop sueing customers who are actually helping the business. They should then sit back and enjoy the benefits of a business that grows and blossoms in ways that they didn't expect.
A couple years ago, some punk kid crawled into my car through the open sun-roof and stole a case full of CDs. It had at least 24 CDs in it. Each containing approximately 12 songs? Does that mean I could have sued him for 23.28 million? Damn!
In all honesty, he did get caught and worked it off, and I did eventually receive a check for about $100.00. The RIAA needs to piss off with these ridiculous claims.
The less confident you are, the more serious you have to act.
I get tired of saying this, but the penalty for distributing a CD should have nothing to do with the cost of buying a CD or MP3. This would be appropriate if she was accused of downloading one copy, but she is accused of uploading. The issue is she assuming the right to distribute a CD or MP3, so the penalty should be based upon what the RIAA would charge to gain the rights to distribute the songs.
Whilst it's fair to say that the cost of damages may be more than a single downloading, it's not true that it should be based on what the RIAA would charge.
Consider, even if we compare to actual theft, the damages for stealing my car are not "the amount I would charge for hiring my car", it's "the value of my car". I.e., the amount should still be a fair measure of the value, and not dictated by the RIAA.
To demonstrate the flaw more obviously, what about cases where the copyright owner does not licence his work at all? Perhaps someone accidently copies Linux without providing the source, or a company includes your personal photos in an advertising campaign. According to your logic, the copyright holder could say "Well actually, the cost to licence this work is a million billion dollars"...
So the value should be based on damages, and hence should be an estimate of how many people have downloaded it. In this case - even if it were true that every download is a lost sale, are we seriously suggesting that she had 1.92 million people download from her? That amount of money is surely comparable to the amounts that an album might make in total! (Anyone have some figures?)
Obviously, the price they quote for the trial would have to backed up by facts (what have they actually charged for these or similar songs for instance) so they aren't able to just make up ridiculous amounts.
But what if someone does have "ridiculous" amounts? Perhaps they're just disproportionate, they have no business skills, they don't care, or as in my examples, they don't wish anyone to licence it under those terms anyway, so they can put the figure as high as they like?
Indeed, even for the RIAA, this would apply. Clearly, they have no intention of letting you put up files for free, no matter how much you pay! This would only be possible if they charge per number of downloads (in which case, it would be equivalent to what I suggest above). There would be no evidence for a figure, because they don't allow people such a licence anyway - of if they did, it would be ludicrously high simply because they don't want anyone to do it otherwise.
You are also forgetting that if such a law was implemented, people would be quick to provide evidence of "costs", just in case. The RIAA would have a blanket "it costs a million billion dollars to licence this with no limitations whatsoever" to catch filesharers - whatever costs for other licencing they do would always have extra limitations, so wouldn't apply.
but it would be a fair way to estimate what the actual damage was.
As my examples show, there is no reason to think that these are in any way comparable to the actual damage.
Having said that, I would agree that it would be an upper bound - if those figures are less than $1.92 million, then it's ludicrous to fine her that much. But you either won't find evidence for such a cost, or if you do, it'll be stupidly high anyway.
Maybe she should pay the price of one record per shared mp3? That'd be something like $240.
It's the unlicensed - unlimited - wholesale distribution and redistribution of copyrighted files that sinks the geek in court.
Launch a program like Limewire.
See the number of users on the net?
The animated bar graphs that track movement in and out of your "Shared Files" folder?
The tray icon that reminds you how many files are in transit when the program is minimized?
The option to allocate more or less upstream and downstream bandwidth to file sharing?
The option to open up the hood and take a look inside the shared files folders of any active user - and scarf up all you can eat?
The option to chat with other users?
The jury of your peers sure as hell does.
Does your P2P program or service enforce - or reward - a positive upload and download ratio?
How desirable is it to "make available" as many of the most popular files as you can?
The only one who goes to trial claiming not to know how P2P works is the geek - and it wounds him to be called a liar.
However, I just don't figure how the imaginary damages could rack up $18k, let alone $192M.
Whoever awarded those damages had no sense of proportion, or was bribed.
Statutory damages aren't imaginary.
Statutory damages come into play only when the jury as the trier of fact decides - unanimously - that the plaintiff is entitled to a recovery.
Statutory damages come into play only when the actual damages are are difficult to calculate or the state has set an arbitrary limit on recovery.
The jury awards statutory damages based on the judge's instructions on how to use the statutory formula.
That decision also has to be unanimous.
The jury never gets to hear your Robin Hood defense.
Your po'boy defense.
The bribery of a judge or jury in the American federal system is so rare as to be unworthy of discussion.
Regardless - if someone destroyed my life over some songs, I'd probably do the same to them.
But your life hasn't been destroyed.
The geek as drama queen. Not a pretty sight.
You have been given every opportunity to settle out of court. You can still do so now.
You have a right to appeal the decision.
The risk is that the appellate courts will simply scale back the damages without ever reaching the constitutional issues.
The pro bono attorney out to make new law exits your case because it has dead-ended.
You are now free to negotiate a reasonable schedule of payments.
The debt will constrain you somewhat - but that makes you no different from anyone else whose debts cannot be wholly extinguished in bankruptcy.
What's few hundred k more for battery and assault, if you already owe $190M more than you can reasonably ever earn. For that matter, no monetary fine would ever feel like anything - and jail time is expensive to the society. So.. maybe it's just not worth it?
Talk like this is pathological.
The assault takes you in to the criminal justice system. The state will prosecute for simple assault. The feds will act to protect the decisions of its courts, the safety of every participant in a trial, the right of the plaintiff to make his case for recovery without fear of physical retaliation.
Its amazing that she stole from musicians, and yet so many defend her here,
Its stealing, SIMPLE, there is no justification
No. They want to plaster the news with the title "uploader ordered to pay $outrageous_amount"...that's all.
So, if the ruling stands, will she have to hand her house over, all of her possessions, and stop eating?
No...
It's all about show...they might get a few thousand dollars, but the big prize is being able to say they successfully sued someone.
T-SQL uses a double dash "--" for comments.
-- This is a comment.
Drives me nuts. You can also mix the C-style /* */ comments.
Comment of the year
ratio between punitive and compensatory damages,
Wrong tree. The issue here is statutory damages, not punitive. Punitive damages are there to help avoid compensatory damages being chalked up as the cost of doing business -- i.e., to make sure the penalty exceeds the benefit from continued bad behavior.
This case involves statutory damages -- very different. While the intent may be the same as punitive damages, you don't have to prove any more than simple violation and a price is set without regard to actual deterrent value in the given case.
Same as statutory rape. No coercion required. Just the fact of intercourse and the age of the putative (no pun intended on any Spanish words) victim.
Based on this, there is no rational justification for the concurrent existence of statutory rape laws and allowance of marriage where the legal age for marriage is below the age of consent. Even with the consent of both sets of parents.