RIAA Confusion In Tenenbaum & Thomas Cases?

NewYorkCountryLawyer writes "There seems to be a bit of confusion in RIAA-land these days, caused by the only 2 cases that ever went to trial, Capitol Records v. Thomas-Rasset in Minnesota, and SONY BMG Music Entertainment v. Tenenbaum, in Boston. In both cases, the RIAA has recently asked for extensions of time. In Thomas-Rasset, they've asked for more time to make up their mind as to whether to accept the reduced verdict of $54,000 the judge has offered them, and in Tenenbaum they've twice asked for more time to prepare their papers opposing Tenenbaum's motion for remittitur. What is more, it has been reported that after the reduction of the verdict, the RIAA offered to settle with Ms. Thomas-Rasset for $25,000, but she turned them down."

Comments

Re:Real Life Action RIAA Lawyer Doll Says ...

[jhoegl]

Well, Ill bet with those "winnings" they wont even cover lawyers fees.
This may be what they are pondering over.
Surprise, big corporate suing little Nanny "Apple Pie" Buttons is not profitable.
Who would have guessed that one!?!?

Total non-story

[Grond]

Requests for extension of time are very common, and there's nothing unusual about the reasons given by the RIAA lawyers in the motions or for the length of extension requested. This seems like little more than an attempt to drive more pageviews to Mr. Beckerman's ad-laden site.

Re:Total non-story

[ari_j]

I'm going to step in and correct one thing. I wouldn't say that he's given "legal advice" here at all. That's a special creature that includes all sorts of ethical duties. What he has done, though, is provide a great deal of legal information, clarification, and insight. I would hate for a good deed to turn into a regret by people confusing legal information for advice. At the very least, he can be appreciated for being a contributing member of the community where most people in his position would not bother.

Re:Total non-story

[Grond]

He's given a lot of free legal advice here over the years

I don't think he would appreciate that claim, actually. If he's been giving legal advice to essentially anonymous internet posters in a public forum he has almost certainly breached the ethical rules for lawyers. It would probably also expose him to malpractice liability if anyone relied on the advice.

For the record, Blogspot.com is owned by Google, and I wouldn't be surprised to find that the ads are crammed in there by Google to help pay for the service.

As another poster pointed out, those ads are put there at the blog owner's discretion, not Google's.

The insinuation here (and in other replies immediately following) that he simply posts here to drive people to an "ad-laden" site is more than unfair.

I don't think that's the only reason he ever posts. I think it's the only reason to post this particular non-story. His other posts are some mixture of relevant news, one-sided commentary, indirect marketing for his law firm, and, yes, driving pageviews.

I, for one, appreciate his updates on these very important cases

Then you can get them directly from his site via the web or an RSS reader. The occasional posting of major developments on Slashdot is one thing, but the steady stream of legal minutiae is another.

If you disagree with Ray's take on requests for extension, that's certainly your right (and I disagree with you, by the way; I think it's very significant in this case, given the circumstances).

They aren't significant at all. There's nothing unusual about the timing, the amount of time requested, or the reasons given for the extension. Parties file for extensions all the time. Neither you nor Mr. Beckerman have offered an explanation for why they are 'very significant.'

Settlement

[anagama]

I suspect Thomas will rue the day she turned down the $25k settlement. While whatever millions the jury awarded was obviously excessive, her lawyer's assertion that $1/song is appropriate is also excessive, but in the opposite direction. If the law's bite was no more than the cost of purchase for what you get caught illegally "sharing", there would be no incentive for people to be honest and pay for their music.

Anyway, $25k is not an enormous life ruining debt. Yes, it is not trivial, but it is surmountable.

Re:Settlement

[Aphoxema]

She did the right thing, though. If she had given up in court at 50k, the next person might have to start over in the millions.

Re:Settlement

[Eskarel]

This isn't about what her lawyer asserted, it's about what the judge ruled.

She's actually very clever to not take the settlement. Aside from the fact that there may well be someone behind her bankrolling that 25 grand difference anyway, she's more likely than not to end up paying nothing other than court costs.

The RIAA really doesn't want that 54k verdict to become official. It would set a legal precedent, one which would more likely than not be referred to, even in other jurisdictions. It's probably relatively close to a fair number(I can't recall the details of the case at the moment), but that's really not the point. I wouldn't be at all surprised if the RIAA ends up dropping the Thomas case. It'll cost them to do so, but it will severly limit their ability to extort and intimidate future defendents.

Re:Settlement

[CorporateSuit]

Anyway, $25k is not an enormous life ruining debt. Yes, it is not trivial, but it is surmountable.

Considering the damages caused by the crime, $500 would be the high-ball figure for a sane punishment. Considering the act of downloading and uploading files is at least as common as speeding and done by millions of otherwise law-abiding Americans, that should be taken into account -- it's a bad law.

Re:Settlement

[anagama]

One album by an already famous band is not exactly earth-shattering evidence. I'm sure everyone who is honest is with themselves, and who has also downloaded media via illegitimate means, will find that he/she downloaded music he/she liked and might otherwise have paid for, but did not.

Re:Settlement

[melikamp]

I support her cause because they cannot prove any damages at all. Them downloading a song does not actually cause them any damage.

I also support her cause because, even if they could prove that her sharing resulted in X copies of the song being distributed illegally in a way which caused a loss of sale, then the actual damages to them would be something between X/10 and X dollars. Suppose X=25. Asking for $250 and the attorney fees would be just. Asking for $2500 would be an overkill, but they think they should get at least $25000 = 1000 times the damages, and that without ever proving the loss of a single sale.

Re:Settlement

[Anonymous Coward]

aha, so because speeding is criminal, and occasionally deadly, it should have lower costs than a civil offense with no chance of causing physical harm to anyone?

Re:Settlement

[Urza9814]

$54k is CERTAINLY excessive. As is $25k. This is not a criminal case. The payment is not a fine to discourage crime, it's a payment to cover the damages. She shared 24 songs. At $54k, that's more than $2k per song. And when you can buy those songs for $1 each, that's saying that she was personally and directly responsible for 2,000 people not buying each one of those songs. How is that in any way even possible? A single person sharing a single song will NEVER be directly responsible for _thousands_ of lost sales. It just doesn't work that way. And the RIAA has certainly not proven such a loss. And again, this is a civil case. The fine is not a punishment or deterrent, it is pure and simple restitution.

For a reference:
http://www.rbs2.com/cc.htm#anchor111111
"In general, a losing defendant in civil litigation only reimburses the plaintiff for losses caused by the defendant's behavior."

Re:Settlement

[Anonymous Coward]

The fine SHOULD be no more than the cost of downloading the songs! Anything more is excessive and outrageous!! The biggest thing deterring people from paying for music today is the lack of high quality music and th fact that the music is only available in low quality and/or DRMed formats!!! Even $1.00 per track is too much to pay for music in the presently available low quality DRMed formats. Give people good quality music in high quality non-DRMed formats at a reasonable price ($0.25 to $0.50 per track) and you will see many more people willing to pay for music downloads!!

Re:Settlement

[Rockoon]

Anyway, $25k is not an enormous life ruining debt. Yes, it is not trivial, but it is surmountable.

What it is, is unconstitutional.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Re:Settlement

[Anonymous Coward]

"I do not understand why Slashdot continues to support this woman."

Because being a dumbass or even an embarrassment doesn't make the law any less unjust.

During the proceedings, Flynt reportedly shouted "Fuck this court!" and called the justices "nothing but eight assholes and a token cunt" (referring to Justice Sandra Day O'Connor) ... he wore an American flag as a diaper and was jailed for six months for desecration of the flag."

Re:Settlement

[grimJester]

Statutory damages are pre-established damages for cases where calculating a correct sum is deemed difficult

This still doesn't mean they should be significantly higher than the actual damages. They're currently several orders of magnitude higher than any reasonable approximation of actual damages. Difficult to calculate != set the figure high to punish people more.

Re:Settlement

[phantomfive]

It's hard to not be on the side of someone who has to pay thousands or hundreds of thousands of dollars for merely downloading 24 songs, when in fact I (allegedly) may have downloaded many more songs than that. So have most other people here on slashdot, I would imagine. The only difference between her situation and my situation is that she got unlucky, and I didn't. So even though I like to support artists (now that I've graduated from school and actually have money) and I favor reasonable copyright, I don't think it's fair for her to be in that situation.

Re:Settlement

[Anonymous Coward]

Right. In the same way that shoplifting doesn't actually cause the store damage. After all, it's only really worth anything to them if somebody buys it. You can't prove that somebody was going to buy that particular item.

Or eating fruit in a supermarket. I mean, they're surely not going to sell ALL of the produce, they're just going to throw some of it out at the end of the week, so it must be perfectly fine to eat it, knowing that they haven't really lost anything.

Not settling

[oldhack]

Not settling will set the precedent for future RIAA damage?

54k seems excessive, but probably way less than what the RIAA lawyers would like to charge for their time.

Re:Not settling

[selven]

54k seems excessive, but probably way less than what the RIAA lawyers would like to charge for their time.

The campaign has always been about fear, never about direct profit - the economic status of the defendants prevents the RIAA from possibly getting more than 100k anyway.

Let's play this out to the end, shall we?

[Nefarious Wheel]

I would like to see a definitive, ultimate outcome along the lines of the trend I'm seeing here -- reduction of Jammie's fine from the absurdly egregious down to a level she can afford without crippling her family financially for the rest of her life, over a few unlicensed uploads.

Yes she broke the law, there should be a penalty for the infraction, but all the settlements so far have been unjustly high. And yes, I'd like to see it played out to the point where a precedent will be set and honoured.

The RIAA are the worst of the world's ambulance chasers. They shouldn't be allowed to win these huge entitlements, simply because they can afford to make more noise.

Justice should be the outcome of rule by law, decent and upstanding law, not simply "rule by the loud".

Re:Let's play this out to the end, shall we?

[mystikkman]

There is no question in my mind that she's liable for damages, but those damages should be reasonable, at most a few thousand if you throw in the full punitive damages for someone that saw no economic benefit from the copying. It's simply insane for someone that did this for no profit to be hit with millions of dollars in penalties..

She was initially offered a few thousand dollars settlement and refused it so that she could go to court and lie under oath about replacing her hard disk in 2004 instead of 2005 among lots of other lies to weasel her way out. Her defense tried every trick in the book which drove up attorney costs for all concerned. After all this she claims that she's only liable for $24. And she's not dumb, she has a BS in Business Administration. I find it hard to feel pity for her.

Estimated actual damages

[gweeks]

Estimated actual damages

24 songs with a $.99 retail value. Assume the $.99 is the damage per song that a sale was lost on. (That's not the case actually as the wholesale price is the damage amount.) Assume every song downloaded is an actual lost sale. (Again not true, but simple for this calculation.) Assume a seed ration of 5, so for every song 5 copies were made. (Again not true, 5 is an insanely high ratio on P2P networks as 1:1 is common.) 24*.99.*5 = $118.80 actual losses incurred. 10 times that is the constitutionally recognized limit.

$1188.0

That's why RIAA doesn't want the constitutionality of the damages award adjudicated.

Re:Estimated actual damages

[Anonymous Coward]

Thats a fair assessment of what damages actually occured by her actions. I'm sick of litigation to "teach other people lessons." She caused "damages" to your "intellectual property" (i love that term), and by that judgement she is paying for those damages plus a little more.

Why does everything need to be a moral panic?

Re:Estimated actual damages

[Splab]

Actually I think $1188 fine would be better for RIAA, headlines with "millions in fine for copyright infrigement" while looking impressive is such a big number most people can't cope with it.

$1188 fine is something people can releate to, that's the new television they where saving up for, the repair bill for their car or something similiar.

Personally, if I got a fine for a bazillion dollars I wouldn't care, there is no way it would ever be repaid and they can't kill you, they might make life miserable, but there are ways around that - getting a fine for $1188 would suck hard, you can't justifiable go bankrupt, it doesn't pay to try to bail on it. Basically you would just have to suck it up and pay the damned thing.

Re:Estimated actual damages

[Wildclaw]

At least it's good that you count the damages due to distributing, rather than just the initial downloading (as NewYorkLawyer insists on doing!)

No. What NewYorkLawyer is counting is exactly the same. Just using a 1:1 ratio.

Downloading costs RIAA nothing from you, because it is the one you are downloading from who is costing them money. You can't double dip. Choose which costs money, the downloading or uploading, or if you want, a ratio of the two.

Your 1:1 ratio is talking about number of bytes transferred. Your calculation then presupposes that the penalty for copying half a work be half as much as the penalty for copying a full work. I don't believe that's right. So I'd take the average number of peers that you upload to, which from what I've seen is usually closer to 50. So, $11,000.

In a P2P network, only the amount of data you share matters, not how many people you share with, as data flows freely between peers. In some non-P2P circumstances it may differ (copy 10 important pages of a book, a 1000 times over). But with P2P, the data is uniformly distributed across the system.

The courts are increasingly unfriendly to RIAA

[mykos]

Sooner or later everyone in the world will have heard music that they weren't entitled to hear, or seem movies that they weren't entitled to see, or read books that they weren't entitled to read.

At that point, it's going to be hard to convince a jury people that a multimillion dollar corporation should be able to bankrupt a single mother with children because they liked music.

Re:OK, I'm dense

[SpaceLifeForm]

RIAA is trying to set precedent for high awards.

Their problem is that they may not reach that goal in either of these cases.

They don't know which one they may lose face on first.

Re:Settle and ask online for donations

[RobertM1968]

No, she should force the RIAA to accept the lesser judgment so that this case stands and is not settled, making it at least a little more difficult for them to try for such ridiculously large awards as in the earlier verdict.

Devil in the details

[Arancaytar]

The last line seems to me (as a non-lawyer, mind you) more fascinating than the headline. Offering a settlement looks like betting on a stock price: The RIAA was willing to sell its $54,000 judgement for less than HALF that amount. They must expect to ultimately get less than that.

And Ms. Thomas-Rasset (or rather her lawyer, since nobody would make a decision like that against their lawyer's advice) seems to share that view, since she refused the settlement. They must be confident that they'll pay less than $25,000, or even nothing.

And visa versa

[Anonymous Coward]

Going to law school has made me hate slashdot so much more.

Don't worry we feel the same way about lawyers.