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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."
"Lawyering is hard!"
Push the button on his back down to make him raise his hand to object! Push the same button up and he slides an affidavit full of unmarked bills across the judge's desk! Just like in real life!
Judge'sDeskAndNewYorkCountryLawyerVillainSoldSeparately. RIAADollVoidOutsideOfDesignatedUseAreasAndMayCausePermanentInjuryOr BankruptcyUponMissedPaymentInstallments.
My work here is dung.
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.
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.
"Most people, I think, don't even know what a rootkit is, so why should they care about it?"
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.
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.
I am the richest astronaut ever to win the superbowl.
True, she makes the RIAA guys look like the good folks.. and that's hard.
Now, “Here’s what I’m telling them,” says Jammie.
“You guys can settle this on my terms or take it to trial and try to prove the damages.
“You’re going to be lucky to prove more than $24 ”
I do not understand why Slashdot continues to support this woman.
Some background from the Wiki and http://arstechnica.com/tech-policy/news/2009/06/jammie-thomas-takes-the-stand-admits-to-major-misstep.ars
The RIAA first warned Thomas with a cease-and-desist letter and settlement offer.[when?] Thomas refused to settle, and was then sued on April 19, 2006, by several major record labels for copyright infringement.
In the trial, the plaintiffs alleged that on February 21, 2005, Jammie Thomas shared a total of 1,702 tracks online. The plaintiffs, however, sought relief for only 24 of these.
Two weeks after MediaSentry noted the infringement of "tereastarr@KaZaA" (and notified the user via KaZaA instant message that he or she had been caught sharing files) back in February 2005, Thomas-Rasset hauled her Compaq Presario down to the local Best Buy. There was a problem with the hard drive, so Best Buy replaced it under warranty.
That might sound like no big deal until you realize that Thomas-Rasset later provided this new hard drive—and not the one in the machine during the alleged February infringement—to investigators and to her own expert witness. It becomes an even bigger deal when you realize that she swore under oath—twice—that she had replaced the hard drive in 2004 (a full year earlier) and that it had not been changed again since.
Next up was Eric Stanley, who had been hired by Thomas-Rasset before her first trial to examine the same hard drive that was turned over to recording industry investigators. Thomas-Rasset at first told Stanley that the drive had been replaced in 2004, well before the alleged infringement, so this evidence looked like it would be great for Thomas-Rasset... until recording industry lawyers deposed Stanley and Thomas-Rasset on the same day. At some point during that day, Stanley heard something that led him to examine the physical drive once more during a break. It was then he found the sticker with a manufacturing date—of early 2005.
Stanley realized he was looking at a drive that had likely not even been in the machine when the alleged infringement took place.
So she refused a settlement offer at the very beginning even before being represented by a lawyer, then repeatedly lied under oath to judge and jury(no wonder the damages were soooooo high, juries hate being blatantly lied to and want to teach such people a lesson) and now is still being...well... a dick. Imagine if the only punishment if you get caught stealing(stealing real goods, pedants please note) was to just pay up later, everyone would just steal then and pay up later if got caught. On top of that, the $1/song is for downloading the songs, not uploading which has a bigger punishment under law since the plaintiffs potentially lost revenue. I am sure this distinction will be lost on most of the posters here again who will repeatedly say the actual damages are just $24.
Anyway this was one of the worst cases that should have gone to court against the RIAA. They sued wrongly lots of times but this one case should've been settled long ago by Thomas, she knew she was in the wrong and tried to weasel her way out of it by lying.
More, if you want to read:
Why was Thomas-Rasset's password-protected computer running KaZaA in February 2005, and with the "tereastarr" name, if she had not set up the software? And since no one else ha
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.
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.
IAAL. I am assuming you meant to write "IANAL." A trial court ruling, while not binding on other courts (but certainly persuasive) may in some instances be binding on that same trial court, and as a practical matter, often is even when it need not be. Also, there may be an estoppel issue for the RIAA lurking here.
When in doubt, parenthesize. At the very least it will let some poor schmuck bounce on the % key in vi. (Larry Wall)
This is not criminal. It's civil. All of the things you cite (except one) go to damages, not liability. Going to law school has made me hate slashdot so much more.
When in doubt, parenthesize. At the very least it will let some poor schmuck bounce on the % key in vi. (Larry Wall)
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?
$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."
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.
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.
"His name was James Damore."
Speeding is not criminal. It is an administrative infraction. Misdemeanor and felony (i.e. criminal) traffic violations are few and far between--mostly reckless endangerment and DUIs.
You are only partially correct... as is Zordak. It depends on the state. Even then, other circumstances apply. In New York, it is generally but not always a Traffic Infraction. In New York, you may also be cited with another Traffic Infraction which is also a misdemeanor (at the same time) such as Reckless Driving (which may simply be because you were speeding in heavy rain and for no other reason; thus making your speeding the cause of you getting a misdemeanor charge even if it is listed for a separate infraction - or may be because you were driving like an idiot). Thus, in NY, even a "Traffic Infraction" (Reckless Driving) can also be a misdemeanor at the same time, and may result in the misdemeanor charge when you did nothing but speed (under the wrong conditions, over a certain speed, or whatever criteria the officer chooses).
One more example, in Virginia, speeding 20mph over the limit is automatically also a Reckless Driving charge... and again... whether "basic" speeding is an infraction or a misdemeanor varies per state. And some states move it from an infraction to a misdemeanor if the speeding is in excess of a certain number even if it does not come with a Reckless Driving charge attached (ie: speeding 1-15 over is an infraction, while speeding 16+ over is a misdemeanor).
Speeding, that is, exceeding a posted limit set by political forces and not traffic surveys, is an administrative offense with no chance of causing physical harm to anyone.
Not always true. Many states spend months or years doing traffic surveys to set speed limits. On my street alone, one such survey resulted in the speed limit being changed to 25mph (from 30mph) - and then later after another such survey, being changed back to 30mph and having stop signs added - which apparently seems to be the solution for the problem they were analyzing.
SOME speed limits are set by political forces perhaps, like the 55mph ones on highways near big cities in certain states, or the maximum speed limits set for roads of a certain type in a certain jurisdiction (like the town next to me, where any road not county or state owned cannot have a speed limit over 35mph, or NYC where the maximum speed in the city is capped at 50mph or less as posted).
If people are driving at unsafe speeds, then the risk of injury to others may increase, depending on traffic conditions.
May? Sure, technically you are correct... but those deaths have occurred and are very real. With the amount of speeding related deaths out there, may increase (the risk of) becomes already has caused - a very real statistic - and the deaths and/or injuries involved are also very real.
With file sharing, unless the RIAA manages to buy some new laws, it never results in death (at least not in this country). But who knows? Maybe in a few years, the RIAA will have lobbied successfully to make music sharing a felony punishable by death... ;-)
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