RIAA Insists On 3rd Trial In Thomas Case

NewYorkCountryLawyer writes "Not satisfied with the reduced $54,000 verdict which the Judge allowed it in Capitol Records v. Thomas-Rasset, representing approximately 6500 times the amount of their actual damages, the RIAA has decided to take its chances on a third trial, at which it could only win a verdict that is equal to, or less than, $54,000. Since a 3rd trial in and of itself makes no economic sense, and since the RIAA's lawyers inappropriately added 7 pages of legal argument to their 'notice', it can only be assumed that the reason they are opting for a 3rd trial is to hope that they can somehow bait the Judge into making an error that will help them on an appeal."

Comments

New Trial? Whatever Happened to Due Process?

[eldavojohn]

So their filing says:

After considering the Court’s Order, Plaintiffs regretfully must decline to accept the remittitur since the rationale underlying the remittitur is inconsistent with the Copyright Act and its legislative history, as well as established case law.

I am not a lawyer but how many times can you prolong at trial? I'm aware of the appeal process but is this even an appeal? It sounds more like they're saying "we refuse to accept the court's decision" which is not quite how I recall law in the United States to work.

Then their filing says this:

In light of the foregoing, Plaintiffs respectfully decline to accept the Court’s remittitur and shall work with Defendant’s counsel and the Court to set this matter for a new trial on the issue of damages.

Emphasis mine. So this isn't an appeal or a retrial but instead a new trial? How many times must Thomas-Rasset go to court for copyright violation on twenty four songs?!

Further more, if any lawyers are reading this, does this affect the precedence that this verdict would set? Will Capital v. Thomas be referenced with an asterisk indicating that the first eight trials found her on the hook for any amount between $24 and $2 million causing the judge to finally throw it out on the ninth "new trial"?

Whatever happened to due process and not being able to stand trial for the same crime twice? Is this new trial a civil suit where the first two trials were criminal suits?

I understand some issues are not clearly defined in law but this is turning into a circus.

Re:Vindictive much?

[Xest]

Actually, I think it's about keeping it in the media. If they can keep up the regular news about such extortionate awards in the media, they're probably hoping it'll continue to act as a deterrent to people.

Making an error on appeal? Think simple.

[aussersterne]

They're going for harassment and want to make an example of this person by tying up life, finances, and emotional health as long and deeply as possible. If they could get an execution somehow they would, but they'll settle for lawsuits for the rest of natural life to prevent things like, oh, personal property and/or basic health from taking hold ever again.

Rip 'is 'art 'apart!

Re:This will multiply to other industries

[BhaKi]

I pity the independent singer songwriter or now author who is blamed as part of the economic ecosystem of this mess. They may have a stigma attached to them they cannot shake and cannot grow beyond.

Why would/should independent artists be blamed? The blame lies totally with those who signed up as members of RIAA.

Re:New Trial? Whatever Happened to Due Process?

[MartinSchou]

How many times must Thomas-Rasset go to court for copyright violation on twenty four songs?!

Well, the RIAA are the ones insisting on a new trial, so I suspect the answer is until the RIAA gets the verdict they want .

Re:Beating a Dead Horse

[Anonymous Coward]

Best. First. Post. EVER.

I don't condone what the RIAA does

[hamburgler007]

But to say that $54,000 is approximately 6500x (ie $8.30) the actual damages is disingenuous at best.

Re:I don't condone what the RIAA does

[delinear]

Why so? If that $8.30 represents the number of songs he downloaded instead of paying for then that is, at maximum, a fair representation of their actual loss (of course, their actual loss could be said to be less if he can prove he wouldn't have paid for the song and only downloaded it because it was free).

I think what you mean is it's disingeuous to infer that is their total loss, since there is also the possibility that they lost the potential for sales to other people who downloaded from him (which again, assumes they would have paid actual money if the song wasn't free, and also that they wouldn't have downloaded it elsewhere if they couldn't get it from him). Those aren't actual losses though, just the loss of opportunity, which is much more difficult to account for.

Re:I don't condone what the RIAA does

[bws111]

Are you actually suggesting someone should use 'I was part of a conspiracy' as a defense?

Re:I don't condone what the RIAA does

[Theaetetus]

Nope - the RIAA's evidence included direct downloads from her.

Really? That’s news to me. “Her computer said she would share the file” doesn’t work, because that’s not proof of actual sharing, and actually downloading the file from her didn’t work either because they were acting as an authorized agent of the copyright holder and thus they had the legal right to download it.

Nope - second part is where you're wrong, and the court actually looked at it both in the Thomas case and in the currently pending Tenenbaum case. First, that the agent is authorized to make a copy doesn't create an authorization in the distributor. If I buy a copy of a CD and have the right to format shift it to MP3, that doesn't give you the right to shift your copy to MP3 and then distribute it to me. I have not engaged in copyright infringement, but you still have. Second, the courts noted that finding an implicit authorization would make it impossible to gather evidence of infringement, something that is not supported by the statute.

They had to prove she uploaded it to someone who wasn’t authorized to download it already. How exactly did they prove that?

Since the fact that someone is authorized to download something legally doesn't create a right in another person to upload it legally, they successfully proved that she infringed the distribution right by downloading the file from her.

Limewire (Gnutella, actually) is a peer-to-peer network just like Bittorrent.

Nope - although searching runs over a peer-to-peer network, file transfers are in the form of single server-single client, as opposed to bittorrent which uses block seeders and are in the form of multiple servers-client (really, multiple servers-multiple clients, but that's irrelevant).

It is unlikely that, even if she did upload, anyone downloaded a complete song from her alone. The Gnutella network routes its transfers from multiple sources just like Bittorrent does.

Again, not true. Gnutella routes searches, but file transfers are accomplished via an HTTP push request sent directly to a sending peer.

On another tack, it’s pretty well agreed that 1 illegal download isn’t 1 lost sale. By a similar notion, 1 illegal upload isn’t 1 lost distribution fee. In fact, the ratio for becoming a legal distributor should be even less than the ratio for legally purchasing the song: A few of the people who illegally download a song might have otherwise purchased it legally.

Agreed. But since "1 lost distribution fee" may be millions of dollars and we're only contemplating between $750 and $150,000 per work, this is irrelevant.

Furthermore, the terms of a distribution fee are contractual and are up to the parties. Where a distributor has a high likelihood of selling a large number of copies - such as Apple - the copyright owner may negotiate for royalties. Where the distributor has a much lower likelihood - such as a brand new retailer with no marketing or track record - the copyright owner might negotiate for a flat fee up front, and reduced royalties later. This is the free market, and we don't like the government to unilaterally interfere with contract values.

Virtually nobody who illegally distributes the song would have otherwise became a legal distributor. You can’t claim that the downloader caused $x in damages where $x is the cost of the song, and you can’t claim that the uploader caused $x in damanges where $x is the licensing fee to become a legal distributor either.

IANAL, so I have no idea how to fit this defense into the existing laws. Or whether the existing laws even permit it. However, it is not at all unprecedented for the existing laws to be inapplicable to a new situation that the lawmakers didn’t foresee, and need to be bent to

My patience would be thin.

[IndustrialComplex]

So this is what, the third trial?

At this point, since my life would be financially over, I'd consider some other options. Options that, while not monetarily or legally beneficial, ones that would be immensely emotionally cathartic.

Re:My patience would be thin.

[L4t3r4lu5]

She has children. She must think of them, too.

Note to /. regulars: In this context, the phrase "Think of the children!" is not sensationalist rhetoric.

Re:Beating a Dead Horse

[hey!]

You forgot: making the defendant crawl underneath the horse and forcing him to carry both it and you.

A legal system in which the powerful can obtain the practical result they desire simply by grinding down the weak has no legitimate moral authority. Its principles are a sham; they have no practical significance. You might as well auction verdicts to the highest bidder.

As someone who was a victim of a frivilous lawsuit

[judolphin]

Goliaths know that whoever has deeper pockets to pay legal expenses for a longer period of time, generally wins lawsuits. Frivolous lawsuits filed by large companies on individuals and small entities are more often than not seen as a war of attrition that they have no way of losing. As someone was once the victim of this, it makes me incredibly angry. I was frivolously sued by a large company. Even though I won the case (basically by showing up and showing the contract vis a vis their allegations), I had to spend a few thousand dollars defending myself (I'm lucky it wasn't tens or hundreds of thousands). They're trying to ruin this individual, and make an example out of him. It's one of the most evil aspects of corporations and is what's most wrong IMO about our legal system.

Re:New Trial? Whatever Happened to Due Process?

[Sockatume]

Wow, I wonder if everyone can "respectfully decline to accept" the court's agreed-upon settlement in a civil case. "No, we're going to keep coming back until Walmart pays me one trillion dollars to replace this faulty TV."

Wait, you check to see if a singer is in the RIAA?

[howardd21]

Who checks to see if an artist is in the RIAA BEFORE they buy a song or CD? It is guilt by association, much like all bankers are "fat cats ripping us off", all singers and authors are just money grubbing self important prima donas because I read where they sue unemployed mothers living in Harlem with insecure wireless access points. See how that works?

Re:Beating a Dead Horse

[Tempete]

I keep seeing this around and I still have no idea how people believe it. Since when is our legal system a moral authority? It never has been. It never (hopefully) will be. A legal system is around to enforce laws. Not morals. Being a dick isn't illegal, sleeping with your wife's sister isn't illegal, being selfish isn't illegal, etc. Likewise, jaywalking is not immoral, giving people medicines for off-label purposes is not immoral, etc. Law!=Morality

Re:Beating a Dead Horse

[ircmaxell]

I wonder if this would open up "harassment" as a defense... Considering that they cannot gain any result that's greater than what already was awarded, this third trial could only be seen as an attempt to get the defendant to settle (And thereby agree not to appeal)... If only civil law had the no double jeopardy clause...

Re:Beating a Dead Horse

[PopeRatzo]

Since when is our legal system a moral authority?

You misunderstand the meaning of "moral authority".

It does not mean that the law is based on morality, but rather that at some point we as citizens participate in the social contract because we believe that the law is moral or at least somewhat fair or fairly applied.

If citizens start to view the law as less than fair, or even immorally unfair, you start to see people openly and enthusiastically break the laws, say by downloading torrents of the latest album by Rise Against or Li'l Wayne or the RELOADED release of Bioshock2 or the DVDSCR of Avatar. They basically say, "This system is so fundamentally biased toward the big corporations whose behavior is so antisocial that we might as well try to carve out our own little piece of the corrupt pie while the getting's good". [please note that the preceding was offered for the purposes of providing an example only and is not an endorsement of lawbreaking or torrents or the excellent quality of scene releases]

So, it's not that "our legal system is a moral authority" but rather we are willing to give it moral authority over our behavior and transactions because we believe it is reasonably just.

Re:New Trial? Whatever Happened to Due Process?

[Marcx77]

A double-entendre involving the '$' sign. Nicely done!

Re:Beating a Dead Horse

[Ihmhi]

The law shouldn't be based on morality at all; it should be based on protecting the rights of citizens and providing for their common interest. (For instance, I don't know if there's any case history establishing that people have a right not to be irradiated by a nuclear meltdown, but nuclear regulations are a law most people would want on the books anyway.)

I don't want the law telling me that I can't buy a beer on a Sunday before noon. What if I work nights? Sunday before noon is like Saturday night to me.

I don't want the law telling me what I can and can't do with my own body or consensually with another person's body.

All I want the law to do is to protect my rights, protect your rights, and stop trying to be the morality police.

Re:Beating a Dead Horse

[hey!]

By "moral authority" I mean that an authority has a just and rational claim to my voluntary cooperation.

Suppose you and I go to court over the ownership of a widget that is in my possession, and lets say the court finds in your favor and orders me to hand over the widget. Naturally, in my view that order is wrong and the decision is unjust. However, no system of law is perfect and arrives at only just decisions. If we are to have any law at all, we have to live with the occasional unjust decision. So it is rational for me to comply voluntarily because as much as I hate losing the widget, I have a greater interest in living in a society governed by rules that are at least approximately fair and approximately impartially applied.

Let's say on the other hand that the law is crooked, and the case is fixed so you win because of your influence. Then the only rational reason for me to cooperate with this unjust and undesired decision is to avoid punishment. If I can undermine the system or thwart it in any way I am fully justified in doing so, provided I can avoid detection or punishment.

Rightly or wrongly, people feel that copyright laws are incomprehensible, unbalanced, and written to the specification of narrow special interests, not with the good of society in mind. Therefore they feel little compunction about breaking those laws if they can get away with it, because the laws are generated by a corrupt political system. When both the drafting and enforcement of certain laws favor certain special interests, then not only do those laws fail to gain voluntary cooperation, people become accustomed to committing petty "crimes".

This is the meaning of the Chinese proverb: many laws make many criminals. In autocratic societies, laws aren't made for the common good, therefore many laws only further alienate the people.

Re:New Trial? Whatever Happened to Due Process?

[Theaetetus]

For anyone interested in the constitutionality of the RIAA's statutory damages theory I suggest reading our revised amicus curiae brief filed in SONY v. Tenenbaum, and -- if you wish to go further -- reading the 3 law review articles cited in the brief.

Thanks for that link. If I may address a few points...

1) My previous post notes that "the arguments that statutory damages are out of proportion with actual damages ignore most of the damages, specifically the infringement of the right to distribute. It's like saying that sending someone to jail for 5 years for speeding is grossly excessive, and neglect to mention their DUI and hit and run."
You mention this in your brief on page 6:

They seek statutory damages of from $750 to $150,000 as to each MP3 file, without regard to whether what they have proved, as to that file, is mere “downloading” -- i.e. violation of the reproduction right -- or “distribution”, i.e. violation of the distribution right.
...In the case of a “distribution” -- i.e. defendant's having acted as a “distributor” and having actually disseminated actual copies to the public, by a sale or other transfer of ownership, or by a license, lease, or lending -- the actual damages would no doubt be greater than 35 cents, and the subject of further proof.

You explicitly note that actual damages would be higher, but suggest that they be the subject of further proof. Statutory damages under 17 USC 504 do not require proof of actual damages. Rather, the plaintiff merely has to show infringement and opt for statutory damages, and the defendant may show proof of actual damages to mitigate the statutory damages. Neither Tenenbaum nor Thomas ever showed proof of actual damages.

2) Continuing in the same paragraph:

Suffice it to say, however, that in 40,000 cases and counting, these plaintiffs have never been able to find or prove any such “distribution”.2
So while there exists a purely theoretical possibility that plaintiffs will be able to prove that Joel Tenenbaum was some sort of “distributor” of MP3 files, if all they ever prove is downloading, then they are seeking multiples of more than 2,100 to 425,000, which would clearly be unconstitutional under any standard.

This is not true. In the Thomas-Rasset case, the MediaSentry evidence showed distribution, and was not excluded (whether it should have been is a different question). In the Tenenbaum case, he admitted distribution under oath. Thus, in both cases, plaintiffs explicitly proved distribution:

"Mr. Tenenbaum, on the stand now, are you now admitting liability for downloading and distributing all 30 sound recordings that are at issue and listed on Exhibits 55 and 56 of the exhibits?" Answer: "Yes."

So, returning to your earlier point, the actual damages for infringement of the distribution right are "no doubt" greater than 35 cents.

Your remaining arguments address the disparity between the 35 cents damages and the $750-$150k per work statutory damages. However, as shown above, you admit that actual damages for infringement of distribution rights are greater. How much greater? Michael Jackson purchased the distribution rights to 200 Beatles songs for $47 million. $235,000 per work is significantly higher than the statute allows, but let's consider that an upper limit for a fair market value. Statutory damages in the range of half actual damages certainly don't seem out of line under Gore or State Farm.

What is distribution

[NewYorkCountryLawyer]

By the way, a distribution requires
1.dissemination of copies to the public
2. by sale or other transfer of ownership, or a rental, lease or lending.

17 USC 106(3). The RIAA has never proved, and probably could never prove, a distribution in any of these end user cases.

Re:New Trial? Whatever Happened to Due Process?

[Theaetetus]

Ray's point was that you are using YOUR definition of the word distribution. THE WORD IS NOT DEFINED. I have been trying to find a concrete legal definition for the word for ten years. (I write software for a living and have an intrinsic interest in what defines "distribution" of my copyrighted software.)

Agreed, it's not defined in the statute. However, federal case law has established a definition for distribution - the one I quoted above from Nimmer.

Nonetheless, yes, I agree - there are certainly arguments in that area, and "distribution" should be explicitly defined in the statute. However, the fact that it isn't doesn't suddenly make infringement impossible - instead, judges must apply precedent as well as secondary sources to determine a definition. I will point out that neither Tenenbaum nor Thomas argued the definition of "distribution".

Currently in at least one jurisdiction distribution includes a computer transferring a programs executable data into ram.

Fortunately, on this one at least, Congress has stepped in and expressly stated that that is not copyright infringement (after MAI Systems Corp., Congress amended 17 USC 117).

Moral of your story: justice for the rich

[jonaskoelker]

When I turn 18, I am inheriting over two million dollars and will be more than happy to pay as many lawyers as it takes. [...] Moral of the story

Moral of the story: justice for the rich.

Now, don't get me wrong. I think it's great you won your victory there. A three-digit settlement (in dollars) isn't a huge deal financially; I'd be angry to pay it but I'd be able to manage it (heck, I just bought a new phone for high three digits even though my current one works just fine), and I'd been able to afford it even when I was on state welfare for students (in socialist Denmark, the government pays you to study...). Symmetrically, I'd be happy to receive a three-digit settlement---zomfg free monies!!

And I'm not speaking out of envy for that large wad of dough. Sure, I'd love to have two million dollars, but I think I'd just be putting them in a savings account just like I am my doing to my money now.

It's just striking to me that you backed up your threat of litigation with "I have a large amount of money" rather than "I have a very strong case". That speaks volumes.

Re:Beating a Dead Horse

[clone53421]

True. Law and ethics are not necessarily mutually exclusive. “Law” is what you should not do. “Ethics” is what you should do.

In other words, “law” is a baseline of what everyone can agree that you should not do. As such, it is a rudimentary form of ethics. If you stop there (and some people do... e.g. CEO who finds a loophole in the law, and feels it’s ok for him to exploit this loophole without technically breaking the law), everything which is not illegal is then ethical by extension. Most people, however, extend their personal ethical beliefs, considering many things “unethical” which are not in fact illegal. Most people would also realise that these things which they consider unethical are either not important enough, or not well enough agreed upon, to warrant making them illegal.

Re:New Trial? Whatever Happened to Due Process?

[snowgirl]

I applaud your reasoning. And while it might not be popular here to say, I think you're absolutely right. In so far as the law works at this time, distributing new copies of a work of art fundamentally infringes the rights of the rights-holder.

The rights-holder is out a lot more than just the price of the single distribution. The market might well bear $5/song if it were enforceable, and there were not free alternatives available due to theft. Thus, the rights holders have had to lower their prices to about $1/song to compete with ALL the rights violators... not just these specific ones that they have brought action against.

The purpose of statutory damages is for someone to use it as deterrence to keep others from violating the same rights... I think that $2 million dollars does so.

Now, I don't think that songs should cost $5/song, and about $1/song is still a little too much in some cases (way better than some downloadable TV Shows on XBox Live though... since I'm more likely to watch those once and rarely return to watch it again.). But that's a marketing option, and I would be one of the people willing to go without my $5/song songs because they are now an unaffordable luxury.

But really... if an artist wants to make a song and charge $50/song to get your hands on it, that's really his right...