8th Circuit Upholds $220,000 Verdict In Jammie Thomas Case

NewYorkCountryLawyer writes "The U.S. Court of Appeals for the 8th Circuit has upheld the initial jury verdict in the case against Jammie Thomas, Capitol Records v. Jammie Thomas-Rasset. This case was the first jury trial for a file-sharing suit brought by the major record labels, and focused on copyright infringement for 24 songs. The Court of Appeals has ruled that the award of $220,000, or $9250 per song, was not an unconstitutional violation of Due Process. The Court, in its 18-page decision (PDF), declined to reach the 'making available' issue, for procedural reasons."

Comments

Good Lord

[Dr. Sheldon Cooper]

Having people who know nothing about technology make case law about technology is like having a Capuchin monkey fix the brakes on your car: cute and funny at first, but ultimately a bad idea that is also highly dangerous.

Re:Good Lord

[man_of_mr_e]

This isn't a case of lack of knowledge of the technology. It's a case of the law being absurd, and the judges hands being tied. It's absurd that sharing a couple dozen songs can carry a greater liability than murdering someone (I'm talking civil law here).

The punishment certainly does not fit the crime, but that law allows these kinds of damages.

If you don't like it, lobby your lawmakers.

Re:Good Lord

[TFAFalcon]

Is the judge allowed to tell the jury about jury nullification? If he is, then his/her hands are never tied.

Re:Good Lord

[Joe Snipe]

No they are not allowed to tell the jury about jury nullification. technically no one is allowed to tell the jury about jury nullification, and doing do would be precedent for a mistrial.

Re:Good Lord

[swillden]

Is the judge allowed to tell the jury about jury nullification? If he is, then his/her hands are never tied.

I doubt that would have had any effect in this case. Three different juries: The first found that Thomas-Rasset willfully infringed and awarded $222K; the second was given instructions that were slightly more favorable to her, and found she infringed and awarded $1.9M; the third was only asked to reconsider the very high award of the second and awarded $1.5M.

In all three cases, if the juries had had any inclination to favor Thomas-Rasset they could at the very least have awarded the statutory minimum of $750 per song, or $18,000, but they awarded 12, 105 and 83 times that minimum. What makes you think they'd have voted to nullify?

Re:Good Lord

[bws111]

If you want to gloss over the minor fact that he was not convicted of murder, then you have a point. His not being convicted had absolutely nothing to do with murder carrying less punishment than copyright infringement.

The wrongful death suit was a civil case, like this one. And the GP carefully pointed out that his was talking about civil law. And in these cases, in civil court, murder carried a 33000 times greater liability than copyright infringement.

Re:Good Lord

[hesaigo999ca]

>If you don't like it, lobby your lawmakers.
hahahahahahahahaha.......hahahahahahahahahaha.........hahahahahahahahahahahahahahahahahaha....

It will not change anything

[Anonymous Coward]

We will continue to share and the labels will learn their place.

Re:It will not change anything

[PoliTech]

Napster, limewire, bittorrent, ... the next method will once again catch the lawyers and copyright police by surprise and completely off their guard. Then when the new method (whatever it may be) becomes mainstream enough that the lawyers and copyright trolls finally figure it out, the media moguls will pursue trial and conviction of another sacrificial lamb to attempt to staunch the bleeding, and once again it will be much too little and much too late.

Too bad for the sacrificial lamb, but as has been said before, if we want the laws changed, we need to work to change them. If we want the media companies to change we need to buy enough stock in the media corporations to exert some influence with regards to marketing, and IP.

Most downloaders however won't bother to expend any time or energy to change the law, or vote on stocks. They'll simply move on to the next media sharing methodology and happily continue on, (as they always have) while the "Mainstream" eventually catches up.

So the story continues ... Until the media moguls finally figure out that they are stepping over dollars to pick up dimes, there will be one after another file sharing methods, and one after another sacrificial lambs.

Statutory damages are devoid of all meaning

[Missing.Matter]

From the Wikipedia article:

1st civil jury trial Statutory damages of $222,000 ($9,250/song).
2nd civil jury trial Statutory damages of $1,920,000 ($80,000/song).
Remittitur Statutory damages reduced to $54,000 ($2,250/song).
3rd civil jury trial Statutory damages of $1,500,000 ($62,500/song).
Damages reduced Statutory damages reduced to $54,000 ($2,250/song).

Seriously, statutory damages are a joke. The number is completely arbitrary and jumping around, seemingly randomly, from $54k to almost $2m. Isn't this a pretty good sign that things are FUBAR, and "statutory damages" is devoid of all meaning? The $150,000 statutory damages maximum (per infringement) was written into law with a very different context in mind than it's being applied to (industrial scale for-profit copyright infringement). These statutory damages seriously are completely defunct, yet copyright holders are exploiting them to no end. *We* as a society have provided *them* copyright to promote the *useful* arts and sciences. I think it's becoming very clear the art they are producing is no longer useful, but a determent to society. Perhaps *we* as a society should take those rights away, or at the very least severely curb them to avoid this utter nonsense.

Re:Statutory damages are devoid of all meaning

[Missing.Matter]

Sorry, forgot the best part... the fact that with the award at $222,000 they're exactly where they were 3 trials and 5 years ago: at an amount which will most likely *never* be paid in full. How many countless wasted hours or lawyers, judges, juries, court time and space have been spent on this, what amounts to realistically probably no more than $24 actual real damages to the record labels (song downloads).

Again, sorry to reply to myself but this nonsense really gets me riled up, especially if you have a look at what the adult film industry is doing with copyright these days. If you're not aware, there's a massive nation-wide campaign going on where over 300,000 people have been sued so far in a grand perversion of technology and the justice system in efforts to extort multi-thousand dollar settlements. And this movement has its roots squarely in RIAA litigation tactics. See: http://fightcopyrighttrolls.com/

Re:Statutory damages are devoid of all meaning

[Archangel Michael]

Part of this, which often escapes /. users is that the law isn't justified by just actual losses, but also also includes punitive recourse as well.

I'm of the opinion that Punitive damages should be awarded, but those should go to the state, not to the victim. I'm all for actual damages, and perhaps 10% (or Treble damages or some other number) of the Punitive damages going to the victim, but most of the punitive damages should be going to the state, into a victims compensation or something like that. This would prevent the idea of "get rich quick, just sue" mentality that is clogging up the courts now. Courts have become Greed Machines.

Re:Statutory damages are devoid of all meaning

[Missing.Matter]

Punitive damages are fine and good, but these are not punitive damages; they are statutory. Punitive damages are designed to deter a law breaker whereas the statutory damages written into copyright law are designed to compensate the copyright holder as a proxy for actual damages in the case where they are unable to accurately prove actual damages. So, at face value this has fuckall to do with punitive damages. However the copyright holders are trying to use statutory damages (which 100% go to them) for a punitive purpose because the amounts, being so obscenely high, allow them to.

Piracy = theft?

[OldSport]

Industry shills are constantly trying to convince the public that piracy = theft, but punishments like this make it seem more like piracy = murder. In my home state, anyway, "a person convicted of the offense of retail theft of merchandise having a retail value not in excess of $100.00 shall be punished by a fine of not more than $300.00 or imprisonment for not more than six months, or both." Torrent the same CD, however, and you're out $150,000 ($10,000/song, assuming 15 songs on a CD).

Note to potential downloaders: just steal the goods you want. You'll get off a lot lighter that way.

Due process?

[Hatta]

Due process is guaranteed by the 5th and 14th amendments. The problem with this case is excessive fines, prohibited by the 8th amendment. Why wasn't this an issue in this appeal?

Re:Due process?

[Anonymous Coward]

Did you read the ruling? they did address that:

Thomas-Rasset urges us to consider instead the “guideposts” announced by the Supreme Court for the review of punitive damages awards under the Due Process Clause. When a party challenges an award of punitive damages, a reviewing court is directed to consider three factors in determining whether the award is excessive and unconstitutional: “(1) the degree of reprehensibility of the defendant’s misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.” State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 418 (2003); see also BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 574-75 (1996).

The Supreme Court never has held that the punitive damages guideposts are applicable in the context of statutory damages. See Zomba Enters., Inc. v. Panorama Records, Inc., 491 F.3d 574, 586-88 (6th Cir. 2007). Due process prohibits excessive punitive damages because “‘[e]lementary notions of fairness enshrined in our constitutional jurisprudence dictate that a person receive fair notice not only of the conduct that will subject him to punishment, but also of the severity of the penalty that a State may impose.’” Campbell, 538 U.S. at 417 (quoting Gore, 517 U.S. at 574). This concern about fair notice does not apply to statutory damages, because those damages are identified and constrained by the authorizing statute. The guideposts themselves, moreover, would be nonsensical if applied to statutory damages. It makes no sense to consider the disparity between “actual harm” and an award of statutory damages when statutory damages are designed precisely for instances where actual harm is difficult or impossible to calculate. See Cass Cnty. Music Co. v. C.H.L.R., Inc., 88 F.3d 635, 643 (8th Cir. 1996). Nor could a reviewing court consider the difference between an award of statutory damages and the “civil penalties authorized,” because statutory damages are the civil penalties authorized.

Applying the Williams standard, we conclude that an award of $9,250 per each of twenty-four works is not “so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable.” 251 U.S. at 67. Congress, exercising its “wide latitude of discretion,” id. at 66, set a statutory damages range for willful copyright infringement of $750 to $150,000 per infringed work. 17 U.S.C. 504(c). The award here is toward the lower end of this broad range. As in Williams, “the interests of the public, the numberless opportunities for committing the offense, and the need for securing uniform adherence to [federal law]” support the constitutionality of the award. Id. at 67.

Re:Due process?

[Anonymous Coward]

Because in the case and decision they refer to an earlier case which provides precedence for this decision, St. Louis, I.M. & S. Ry. Co. v. Williams. In Williams, the excessive fines can't be disproportionate to the actual amount of PRIVATE loss, but because the $222,000 is instead a punitive damage award, it can be disproportionate. It's designed to address the PUBLIC wrong and to act as a deterrent, not the private loss itself.

At the end of the day, Thomas-Rasset had a million outs in this. She was contacted by MediaSentry but she blew them off. She was contacted by the RIAA, at which time SHE THREW AWAY HER HARD DRIVE TO COVER HER TRACKS (HA!) and went to meet with the RIAA, who undoubtedly offered her the same $5000 (+/-) out they always offered, and she blew them off too and even lied about her use of Kazaa and her online handle...so they sued the shit out of her for WILLFUL copyright infringement.

This wasn't a "oops, I didn't know I was stealing...sorry!" case...this was a "you can't prove s**t, BRING IT" case...and so they brought it. Case closed.

Re:Due process?

[Desler]

Except this wasn't a punitive damages award. It was statutory damages.

Re:Due process?

[vux984]

Applying the Williams standard, we conclude that an award of $9,250 per each of twenty-four works is not âoeso severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable.â

The award of $9,250 is not really the issue. In fact, that would be an arguably reasonable punishment for the alleged infringement.

The issue is counting each file as a separate infringement and multiplying $9,250 by 24.

Using kazaa or whatever it was to infringe and being convicted should be a singular crime, not 24 separate crimes.

When I ripped my 800+ disc CD collection I ended up with upwards of 9000 tracks. When I installed a filesharing app that by default pointed at my music folder I am apparently on the hook for 9000 separate crimes @ $9250 each?

Lets see: this court apparently thinks it would be "reasonable" to fine me 83 million dollars for that.

Re:Due process?

[Hatta]

Where in the 8th amendment does it distinguish between "punitive damages" and "statutory damages"? It appears to me that statutory damages have been invented by the courts as a way to work around the 8th amendment. They are operating under the fiction that if they call it something else, the restrictions against excessive fines does not apply.

Any honest person can see that this is a dishonest argument on the part of the judge. This sort of jurisprudence should simply not be tolerated.

Re:Due process?

[Hatta]

Civil law is supposed to be about making the plaintiff whole again. Statutory damages are yet another dirty trick to implement punishment through civil law in order to avoid the protections in the constitution. The only difference between statutory damages and a fine is who gets paid, which is quite frankly irrelevant. It's a payment, as a consequence of breaking a law that was passed by the government, tried by the government, and enforced by the government. It's a fine, plain and simple and anyone who claims otherwise is a liar.

Analogy

[Anonymous Coward]

I've always thought of suing file sharers akin to attacking a swarm of bees with a hand pistol. It won't do a thing to stop the bees, but your bullet *might* hit one of those bees and absolutely obliterare them. Looks like Jammie was the unlucky bee.

Re:yikes!

[ackthpt]

to those who are itchy to mark me troll - why? i expressed an honestly held conviction in a calm and rational matter, and supported my modest claims. c'mon, i'm just trying to be part of the slashdot community. why give me a hard time?

probably unpopular to take that tone - someone thinks you are an Apple or RIAA apologist. For my money, I too, buy the junk I listen to or watch. I may always be on the right side of things, but that never stops someone suing me if they feel they oughta and their lawyers are all sitting around the office with nowt to do.

Re:yikes!

[FilmedInNoir]

It's not the comments that are the troll, it's you and your green skin. ;)
But ya, I've warned people off using any sort of sharing/P2P/whatever because it's just not worth it anymore.
Until there is some major change in policy (and right now it's full steam ahead for fascism) I'm staying away until the
RIAA/MFAA(whatever) runs out of witches to burn.

Re:yikes!

[dyingtolive]

The terrorists have won.

My take

[Zontar_Thing_From_Ve]

I've read in the past about her case and this is what I remember being her main problems.
1) She had bottom of the barrel lawyers in all of her trials. If I remember correctly at one of the later trials she was actually represented by law school students who prior to the trial basically bragged that this case was going to be "easy" to win. Practicing law for real may just be a little tougher than it seems in class, boys.
2) She has been perceived extremely negatively by juries, which has definitely led to the size of the judgements against her.
3) She's been her own worst enemy when testifying, but that relates to #1 in large part. She lacks a credible excuse for her behavior and seemed to jurors to be a liar and trying to cover up what she did. That has worked heavily against her in reaching a verdict.
4) She has consistently displayed an outsized ego and an erroneous belief that she can beat the charges by going to court when in fact she has probably had the weakest case of anyone to ever challenge the RIAA. I would call her delusional.

In summary, she's got a terrible case and she's tried to win it on the cheap and the outcomes are predictable.

Re:My take

[cpghost]

So what you're implying is that she has only herself to blame that the "legal" system is biased against the poor and common people, and in favor of the rich and corporations? Should she have taken the abuse of the MAFIAA bully without putting up a fight, or at least trying to defend herself -- no matter how inept and poor her strategy? If that's the case, why bother with laws anymore? Let the powerful reign unhindered and the common people bow and accept their fate and absorb the abuse that comes their way?

Re:yikes!

[amorsen]

why not take the linux or some other open source code and sell it without giving back to the community?

That is perfectly legal and encouraged. Go ahead!

Re:yikes!

[mcgrew]

He might have been modded troll because he's too gopddamned lazy (or perhaps ignorant) to use his shift key. I can see the logic of modding someone who writes unreadable prose "troll", although "overrated" would be better.

Note to aliterates, illiterates, those who can't do homophones or know how to use an apostrophe: All your comments are overrated and I will mod them as such, and so will many other literates who chafe at reading uneducated tripe.

This used to be a place where educated, intelligent people come. Looking like a hipster or a jock IS a troll on a nerd site; we're nerds, not jocks and hipsters. For instance, if your honest opinion is that science is useless, you're automatically a troll here, just as an honest opinion that there is no God on a Christian site is a troll, Medicare should die on an AARP site is a troll, and an opinion that sports are stupid on a jock site is a troll.

So he and everybody else can take their hip "txtspk" and go somewhere else; they're not welcome. They are trolls. They need to go away and stop bothering those of us who read books once in a while.

Re:yikes!

[Bob9113]

So, according to you, because I don't toe the slashdot monoculture line, I must be a troll and a shill.

No. According to me, because of the way you presented your opinion, you are indistinguishable from a shill.

I believe in the benefits of a lively and spirited debate from people who are steeped in the issues.

You were not presenting a spirited debate about the merit of a policy, you were attempting to pursuade people to engage in a particular behavior in response to a threat posed by bad policy. In effect you were telling people to be more obedient or face the wrath of the legal system. That is not spirited debate, it is authoritarianism.

I'm sorry for you that you feel differently.

Awww, that's pretend nice of you to say. I guess I won't slit my wrists now that I know you care.

Re:yikes!

[Bob9113]

If the presence of shills causes us to be so suspicious of each other

Being suspicious of the existence of shills is the correct response to the existence of shills.

to never extend benefit of doubt

Nobody suggested that was the case. I, and I suspect most people here, assume every post is genuine unless it triggers our suspicion. Like this one did.

to be less tolerant of unpopular speech,

That's a tricky phrase. If the speech is unpopular because of groupthink, we should not be less tolerant of it. If it is unpopular because it is ill-formed, we should be less tolerant of it. Noise lacking signal should be attenuated in order for substantive dialog to rise to the fore. That is the express purpose of the moderation system.

above all to use down-mods as a substitute for well-written rebuttals

Well-written rebuttals are the right response to reasoned discourse by free people. Shill posts are not reasoned discourse by free people, they are for-profit attempts to manipulate public perception and behavior and to affect public policy. Detection of shills is tricky, but attenuating shills is objectively pro-social.

The best way to combat actual shills is to know in your mind and understand in your heart why they are wrong, because hearts and minds are what they want to capture.

That is the best way to defend yourself against them, but it is a completely ineffective way to combat them. Things that happen entirely inside your head have no effect on the outside world. If the objective is to achieve inner peace, then your advice is spot-on. If the objective is to prevent shills from distorting our society, then we must combat them.

That knowing and understanding is the product of informing yourself and does not depend on anything someone else does.

It is not enough to simply defend yourself. Their intent is to have an effect on public perception, behavior, and policy. While being informed is a sound foundation for engaging them in the court of public opinion successfully, informedness is not -- in itself -- sufficient to protect our society from them. Protecting our society depends rather heavily on things other people do. Preventing shills from having their intended effect on those people is a pro-social pursuit.

Consider also that if he actually is that much of a corporate whore, his inability to respect himself in any real way is far worse than thousands of down-mods.

That is only true in the sense of how it affects a shill inside his head. The purpose of shilling is not to affect the shill's mind, it is to manipulate society. Likewise, the purpose of combating shilling is not to make the shill feel bad, it is to protect our economy. If there were a way to defend society against the shill while simultaneously giving him a big warm hug and a pat on the back, I'd do it.

Re:yikes!

[NormalVisual]

Yes, we all hate the **AA, but remember that nobody held up these artists at gunpoint and forced them to sign

No, but the government *did* hold the rest of the country at gunpoint and continues to steal (as in "taking from us and making unavailable for our use") what rightfully should have gone into the public domain with the stroke of a pen. That's *my* problem with the way things are.