Jammie Thomas Takes Constitutional Argument To SCOTUS

NewYorkCountryLawyer writes "Jammie Thomas-Rasset, the Native American Minnesotan found by a jury to have downloaded 24 mp3 files of RIAA singles, has filed a petition for certioriari to the United States Supreme Court, arguing that the award of $220,000 in statutory damages is excessive, in violation of the Due Process Clause. Her petition (PDF) argued that the RIAA's litigation campaign was 'extortion, not law,' and pointed out that '[a]rbitrary statutory damages made the RIAA's litigation campaign possible; in turn,that campaign has inspired copycats like the so-called Copyright Enforcement Group; the U.S. Copyright Group, which has already sued more than 20,000 individual movie downloaders; and Righthaven, which sued bloggers. This Court should grant certiorari to review this use of the federal courts as a scourge.'"

Comments

Good luck

[Chrisq]

They have been bought off by the RIAA

Re:Good luck

[towermac]

That money just buys the status quo. Put their backs against the wall, and things may change.

But they won't have to give the money back, or anything crazy like that.

Re:Good luck

[PopeRatzo]

That money just buys the status quo. Put their backs against the wall, and things may change.

The current US Supreme Court with it's majority of pro-corporatist right-wing ideologues can not have it's back up against the wall because they are the wall.

Re:Good luck

[Anonymous Coward]

Come to Canada with our court requirement to prove actual damages, not some made up value.

Re:Good luck

[dywolf]

How does one buy the court?

I know we mock them by calling them the Supreme Corporate Court of the US...
but really they have one job. and its not to do what we think is the "right thing".
it's to interpret the laws as written and determine points of conflict, priorty, constituinionality, etc etc.

And unfortunately, while we may not -like- a lot of the decisions coming out of there lately, they are by and large legally sound (granted: they are lawyers, so they're good at rationalizing most anything).

Since they are supposed to be limited to interpreting the laws as written, the best way to get around a court decision you dont like is to change the law, which leads us back to the Congrees. So its not that the Court has ben bought off (in fact, its completely illegal to do so). Its the bought off Congress supplying the laws that frame the Courts decision process.

Re:Good luck

[SuricouRaven]

While the Supreme judges are untouchable once they get in, it isn't possible to get in without playing the political power games. They need to be appointed by a president and approved by congress, which in turn means they need political support. The easiest route is to follow one of the major party lines on most or all issues, which wins the support of that party. A judge with a history of upsetting the political leaders by, for example, following a permissive intepretation of copyright law is never going to be appointed, and wouldn't be approved even then.

Re:Good luck

[Anonymous Coward]

i would love to live in canada but it's still a bit too cold for me up there. that's why i support global warming!

Re:Good luck

[DarkOx]

That may be true, but for almost as long as that's been true Justices have made decisions that pretty far removed from the Pols who appointed them.

The GOP sure was surprised by Robert's ruling on the AFCA for a recent example. The Court's Justices by and large seem pretty independent once on the Court even if they have to play the game at first to get through the door.

Re:Good luck

[Shoten]

This raises a good point. The SCOTUS' purpose is to assess constitutionality, not morality. The laws, as they are today, are relatively straightforward. Thomas broke the law. You can complain about how the record industry is corrupt and screws artists, and you'd be right. You can complain how the RIAA has used the law to extortionate ends, and you'd be right. You can say that the current model of music creation and management is broken, and you'd be right. You can even say the law is heavy-handed, and you'd be right. But none of these is the same as the law being unconstitutional.

Re:Good luck

[ShanghaiBill]

Justices have made decisions that pretty far removed from the Pols who appointed them.

Yes, justices often drift away from expectations, and this drift is almost always in the direction of supporting the dispossessed "little guy" against institutional power. If you look at famous flippers (they flipped but never flopped back), like Earl Warren, John Paul Stevens, David Souter, I don't think you can find any that became more pro-corporate.

Re:Good luck

[Anonymous Coward]

they are the wall

Really? Because I thought that the Legislative branch could still pass legislation contrary to whatever decision SCOTUS makes. Sure, depending on what it is that SCOTUS ruled on, to properly overturn it may require an amendment, but SCOTUS is not the be all, end all, "What We Say Goes And There's No Changing It Ever" decision maker that it kind of sounds like you are saying they are.

Re:Good luck

[buybuydandavis]

Really? Because I thought that the Legislative branch could still pass legislation contrary to whatever decision SCOTUS makes.

Yes. People should remember that statutory damages were *passed by the legislature*, not imposed by evil right wing corporatist judges twirling their mustaches. They're unlikely to substitute their preferences for the laws passed by the legislature, but that's a good thing if you believe in the rule of law.

Re:Good luck

[jahudabudy]

they are by and large legally sound (granted: they are lawyers, so they're good at rationalizing most anything).

And that's the problem. You can occasionally see the cracks in their rationale, like here. I'm not certain this is the Supreme Court, but it serves as a good example of a Federal court deciding what it wants to happen, then rationalizing how the desired outcome is legal. These instances serve to cast doubt on the courts even when their legal logic IS sound. Especially in cases where the issue is complex, necessitating a complex decision. We know they are sometimes willing to pretend the most absurd legal theories are legitimate as long as they advance a desired agenda; this opens ALL decisions (except the trivial) open to accusations of "legislating from the bench". Destroying the credibility of the courts as an impartial arbiter is another giant step towards the sort of social unrest that topples empires. People as a whole tend to demand what they see as justice; if people are firmly convinced they will not receive justice within the system, you will see more and more people seeking "justice" outside the system.

Re:Good luck

[Anonymous Coward]

Unfortunately some members of SCOTUS do not think that interpreting written law is what they should do. Instead they think that their job is to misinterpret the written law so it favors their own bias. The strict textualists, those who believe the law means what it meant, at what everyone understood it to mean, at the time it was written, are constantly criticized. That is unfortunate because it means that nobody can ever be sure what the law means.

Re:Good luck

[sackofdonuts]

"And unfortunately, while we may not -like- a lot of the decisions coming out of there lately, they are by and large legally sound (granted: they are lawyers, so they're good at rationalizing most anything)." With a lot of the recent decisions it seems the law really has little to do with it. If it was just based on law there wouldn't be so many 5 to 4 decisions. Most decisions would be 9 to 0. Which means the laws are not written well which then means they are not good laws to begin with and the court should either refuse to hear most cases or excuse themselves from the decision because there isn't enought "meat" in the current law to make a valid decision.

Re:Good luck

[groslyunderpaid]

Because I thought that the Legislative branch could still pass legislation contrary to whatever decision SCOTUS makes. Sure, depending on what it is that SCOTUS ruled on, to properly overturn it may require an amendment, but SCOTUS is not the be all, end all, "What We Say Goes And There's No Changing It Ever" decision maker that it kind of sounds like you are saying they are.

Well, in all probability, you are correct. However, by definition, the judicial branch judges what is and is not lawful. If they say it ain't lawful, it ain't lawful. You could pass an amendment to make it lawful, but if they really wanted to, they could "interpret" it differently than you meant it, and declare it unlawful still. The supreme court has the supreme power to determine what is and is not lawful, and even if blatantly wrong, there is nothing that can done short of attempted impeachment for not being in "good behavior". Let me know how that works out for you.

Re:Good luck

[Penguinisto]

The current US Supreme Court with it's majority of pro-corporatist right-wing ideologues can not have it's back up against the wall because they are the wall.

This is the same "pro-corporatist right-wing" Supreme Court that allowed Obamacare to stand, right?

Sometimes the stupid left-right political paradigm just doesn't work when it comes to explaining things. The sooner you figure that out...

Re:Good luck

[MrL0G1C]

You missed something, some are saying that the level of the fine is unconstitutional.

Re:Good luck

[MrL0G1C]

I'd have to disagree with the legally sound bit, they can get away with going against the spirit of the constitution precisely because they are the highest judges and they know full well they won't be brought to book for going against the constitution.

The wording of the constitution is clear and easy to understand, but some of the decisions the supreme court make are often backed by twisted ideas and any decent person would see they are morally corrupt.

Re:Good luck

[PopeRatzo]

This is the same "pro-corporatist right-wing" Supreme Court that allowed Obamacare to stand, right?

Yes, that's the one. Obamacare is one of the biggest transfers of wealth to corporations in our history.

Re:Good luck

[Anonymous Coward]

Unfortunately some members of SCOTUS do not think that interpreting written law is what they should do. Instead they think that their job is to misinterpret the written law so it favors their own bias. The strict textualists, those who believe the law means what it meant, at what everyone understood it to mean, at the time it was written, are constantly criticized. That is unfortunate because it means that nobody can ever be sure what the law means.

Confusion about law is how you oppress a people (note schoolyard bullies and their constantly changing playground rules). It's just like how confusion about tax law causes economic instability.

Re:Good luck

[TapeCutter]

While I agree with you about the heath system, one decision is merely an anecdote. Over my 50yr lifetime as a non-american, it appears SCOTUS have often come down on the side of the little guy, or the unpopular (but correct) guy. The fact that at different times they piss off different political/economic groups is also an indication of a real court. Kinda sad how so many people write them off as corrupt before they've even decided whether to hear the case or not.

Re:Good luck

[TapeCutter]

She is claiming an abuse of process that amounts to legalized extortion, the question is will the judges see it that way. It's highly likely the courts would agree with Jamie in Australia, which is why we don't have this problem.

Re:Good luck

[PopeRatzo]

Over my 50yr lifetime as a non-american, it appears SCOTUS have often come down on the side of the little guy

As a non-Frenchman, I think Sarkozy was just the bee's knees.

Take a smaller sample, say, since 2004, and see how often SCOTUS has "come down on the side of anyone but the richest and most powerful".

The Roberts court has been singularly maximalist, activist and highly political. Overturning precedent time and time again. Just the other day, the "conscience of the court" Antonin Scalia, compared homosexuality to murder. Just wait until the decision comes down on the "religious liberty" case that just wrapped up oral arguments. It'll take your breath away unless Justice Kennedy has one of his lucid episodes.

How likely are they to hear the case?

[Anonymous Coward]

I seem to remember something about the supreme court only hearing about 10% (??) of the cases brought to them. Is there anything about this case that makes it particularly (un)likely to be heard?

Re:How likely are they to hear the case?

[Stolpskott]

The one thing I can see in favor of the case being heard is the argument that the current method for establishing statutory damages leads to a pattern of overly broad legislation on the part of RIAA/MPAA-inspired copyright entities, leading to an excessive drain on time and resources of the lower courts.

Re:How likely are they to hear the case?

[radiumsoup]

additionally, the conflict between application of case law between the various Federal Circuits needs to be resolved; someone living in Illinois might get an entirely different set of Federal case law applied than someone in Arizona, and at this stage it's unreasonable to allow that to continue.

Re:How likely are they to hear the case?

[Iamthecheese]

According to Wiki Answers one percent are heard. According to Wikipedia 5% of certiorari cases are heard. Note that granting certiorari would allow the **AA's to lobby the courts as "friends of the court" and that the **AA's can afford much better lawyers than you can.

Re:How likely are they to hear the case?

[Anonymous Coward]

Well, since the Repubmocrat conspiracy has hand picked it's SCOTUS for the last century or so, it's doubtful of a good outcome since the Repubmocrats profit from kickback carted in by lobbyists in exchange for favorable results.
Best if it weren't heard yet. At least until the RIAA is dead wrong in a media spotlight. Good luck with that.

Re:How likely are they to hear the case?

[paiute]

I seem to remember something about the supreme court only hearing about 10% (??) of the cases brought to them. Is there anything about this case that makes it particularly (un)likely to be heard?

The Court picks which cases it will hear. This is like you choosing among things on the list your wife gives you to do. You are going to put off the hard ones and combine the similar ones. You will concentrate on the interesting ones or the ones you think might make you look like a hero if you do them.

As much as this topic excites us, the Court may have a larger boner over some obscure water rights lawsuit from Montana.

Re:How likely are they to hear the case?

[flyneye]

Now why wouldn't the Supreme Court make provision to service a larger case load over time? Is there some magic logic behind this?
Divide up the duties and put the lazy assholes to work, pick out enough judges to do the damn job and quit pretending there isn't a need that outweighs any illogic that currently presides. This is the equivalent of filling a Cadillac gas tank with an eye dropper. If provision hasn't been made, identify who profits from a backlog and send in an angry mob with a rope! We're getting screwed.

Re:How likely are they to hear the case?

[alen]

Scotus is only supposed to hear a small number of cases that will have major political and constitutional impacts

They are not a trial court. You get 10 minutes to speak your summary most of which you get interrupted by questions from the justices

Re:How likely are they to hear the case?

[Anonymous Coward]

Resolving differances in circuit court rulings is one of the purposes of SCOTUS. There are often disagreements between federal court districts when if comes to case law, and those ruling have to be merged some how.

Re:How likely are they to hear the case?

[Anonymous Coward]

Because there has to be only one Supreme Court, otherwise it wouldn't be THE Supreme Court and there needs to be a final court to oversee things. They could spend less time on vacation, but that still wouldn't put a dent in the number of potentially worthy cases that aren't heard.

A smaller country wouldn't have as much trouble with it. SCOTUS is really just there for times when the various circuit courts and appellate courts aren't enough or disagree with each other in important ways.

Re:How likely are they to hear the case?

[Anonymous Coward]

The court also often times avoids rulings which are controversial in favor of an easier case. Or will take a case to deal with something that they see as a longstanding issue with the courts. The only reason that SCrOTUmS took the Obamacare lawsuit was so that the conservatives on the court could gut the interstate commerce clause of the constitution.

Re:How likely are they to hear the case?

[girlintraining]

... leading to an excessive drain on time and resources of the lower courts.

You do realize that they recently agreed to kill the class action lawsuit, a legal tool designed specifically to address this problem, right? The courts don't give a damn about the "time and resources" of the courts. Criminals can rot in jail for months or years before trial, who cares? Oh wait, many of them are innocent? Well they can't be that innocent, or they wouldn't have been arrested to begin with. In the few cases where people (not corporations) have organized to overwhelm the courts, they simply changed their procedures and rubber stamped them all into jail or with large fines. See also: Every major protest in the United States in the past 40 years. Hell, they prebuild jails complete with offices next to them for the public defenders, who they also fly them in from other states just to be on hand for those pesky outbreaks of First Amendmentitus.

Please. Efficiency is not a goal here. Destroying your very will to live is. You will accede to the wishes of your corporate overlords, or be buried in so many civil and criminal procedures that you'll wish you were dead.

Re:How likely are they to hear the case?

[bill_mcgonigle]

Now why wouldn't the Supreme Court make provision to service a larger case load over time? Is there some magic logic behind this?

It gives them cover to not grant certorati on cases that would set precedent for following the parts of the Constitution that are unpopular in Washington (notably checks on power and economic freedoms).

Re:How likely are they to hear the case?

[evil_aaronm]

And where does "justice" fit in?

Re:How likely are they to hear the case?

[dkleinsc]

Oh wait, many of them are innocent? Well they can't be that innocent, or they wouldn't have been arrested to begin with.

Reminds me of the silly Star Wars Cops parody Troops: "All suspects are guilty--period! Otherwise, they wouldn't be suspects, would they?"

Re:How likely are they to hear the case?

[Anonymous Coward]

And where does "justice" fit in?

It's been relegated to the close-out bin, right next to the skid of Zima, the "It's a Tupac Christmas, Bitches!" cassettes and the bullseye air fresheners that never caught on.

Re:How likely are they to hear the case?

[IndustrialComplex]

Scotus is only supposed to hear a small number of cases that will have major political and constitutional impacts

They are not a trial court. You get 10 minutes to speak your summary most of which you get interrupted by questions from the justices

No, that's just what they do. The Constitution wasn't specific about a max/min number of cases, how the cases should be heard, etc.

There are lots of ways in which they could rule, if they wanted to. Tradition, and threats from the president/congress are basically all that keep them acting the way they do now.

Re:How likely are they to hear the case?

[Anonymous Coward]

So... you're saying that SCOTUS ruling on whether a quarter million dollars for downloading a few dozen songs, which would affect any and all people who download music (of which it's been shown that you don't need to have downloaded music, or even own a computer, for RIAA to sue you), isn't important enough?

No, you're right, let's just let this sit as a precident to continue being used as a legally acceptable amount to sue for.

Re:How likely are they to hear the case?

[groslyunderpaid]

Now why wouldn't the Supreme Court make provision to service a larger case load over time? Is there some magic logic behind this?

The real answer behind this is that interpreting the constitution itself is not the only thing the justices do. Thats all they really did in 1800 but somewhere along the way (I can't quote where at the moment) they determined that their previous decisions on cases set precedent and carry just as much weight as the constitution itself (though they can reverse their previous decisions, it's just rare). They also determined that they should not be a court of first impression.

They generally only hear cases where there is a circuit split on very similar cases (i.e. 4th circuit of appeals found in John Jones's favor against RIAA but 7th circuit of appeals found in RIAA's favor against Randy Smith in very similar cases), or if there is no circuit split, in cases where a very narrow question of law can be asked that will not have wide ranging effects (i.e. they aren't going to listed to a case where someone is fined $500 and overturning it would overturn 40 million court cases), or cases where the the effects are VERY wide ranging (ACA) or ESPECIALLY egregious (think if JT was being fined 40 trillion dollars for copyright infringement).

Re:How likely are they to hear the case?

[ImprovOmega]

Tradition, and threats from the president/congress are basically all that keep them acting the way they do now.

Well that's the thing. They're appointed for life so there's very little congress or the president could do to impact them. Theoretically they could be impeached, though that's only actually been done once (in 1805, and he was acquitted by the senate). To actually remove the justice in question from office forcibly would require 2/3's of the senate to agree on it. Unless the justice in question has gone completely off the reservation, good luck with that. No, of all political offices in the land, that of Supreme Court Justice is among the most secure. It's by design so that they can render unpopular, but impartial, decisions without fear of retribution.

Re:How likely are they to hear the case?

[BitterOak]

Scotus is only supposed to hear a small number of cases that will have major political and constitutional impacts

Actually, that's not what the majority of the cases they hear deal with. One of the main reasons the SCOTUS will hear a case is that there is a split decision on an issue of federal law among the circuit courts of appeal. I.e. if one circuit court has decided a federal law means one thing, and another circuit court has decided the same federal law means something else, then the US Supreme Court would likely hear an appeal on that issue.

Re:How likely are they to hear the case?

[TapeCutter]

You cannot codify "justice" or morality, those words are defined by the speaker's worldview. The rule of law is the next best thing we have, sometimes it delivers justice, other times it delivers revenge and convenient scape goats. It's an imperfect reflection of ourselves. During my lifetime (I'm 53) it has clearly progressed in favor of the little guy, there's been a bit of back peddling the last decade but I still think the big social picture looks good for the US. It will be interesting to see what happens in relation to Washington and Colorado legalizing the weed industry. On the other side of the US political divide you have a majority of states passing anti-union laws that would have caused riots in the 60's and 70's.

Oh, please.

[Anonymous Coward]

Just be happy it was $220,000 rather than a billion! That's what you get for copying files!

Re:Oh, please.

[Anonymous Coward]

I don't understand how people expect to get off so lightly for these wrongs. A billion dollars? Really? I think that it should at least be a multiple of the worldwide GDP. Consider the potential losses to the copyright holder: by illegally making available copyrighted material, everyone on earth could download it -- millions of times each!

Re:Oh, please.

[Anonymous Coward]

Everyone on earth? The internet doesn't stop here, the ISS is connected, who knows who else, might be a trilloin aliens leeching our music. Damages must be at least one sun-sized ball of gold per file.

Re:Oh, please.

[alphatel]

In order to properly enforce IP, we need to rebang the universe (or multiverse, even)

Re:Oh, please.

[Anonymous Coward]

The problem is that the copyright holder should be required to demonstrate the damages like everybody else does. If there were genuinely $220k worth of damages, it would be a very different situation, but at this point, there's no evidence that there were any losses associated with the files that were allegedly shared. What's more, no files were ever found on her computer as the computer's HDD had been replaced before she had been served with the lawsuit.

Re:Oh, please.

[91degrees]

For most people this really doesn't make a huge difference. This is an amount that will take a lifetime to pay.

Re:Oh, please.

[Anonymous Coward]

Everyone on earth? The internet doesn't stop here, the ISS is connected, who knows who else, might be a trilloin aliens leeching our music. Damages must be at least one sun-sized ball of gold per file.

Last I heard Voyager I hadn't left the solar system as scheduled so it could finish downloading from megaupload.com. If those NASA guys had simply sent it an iTunes gift card for its 30th anniversary none of this would have happened.

scourge

[Iamthecheese]

Is scourge a legal term? How is it used?

Re:scourge

[smittyoneeach]

See http://en.wikipedia.org/wiki/Scourge
For a modern economic usage, see the effects of http://en.wikipedia.org/wiki/Quantitative_easing which promise to suck mightily, or be kind of a turn-on. Your Misery May Vary.

Good luck to her - no enforcement without...

[QuasiSteve]

Good luck to her - no courts-assisted enforcement without reasonable punishment, and hundreds of thousands of dollars is certainly not reasonable.

The summary does err a bit, though. Jammie wasn't targeted for downloading, but for sharing (i.e. uploading / distributing).

But while I do believe that distribution should be enforced (as opposed to downloading), the height of these awards is ridiculous and acts as no deterring factor; there's little chance you get caught and if you do get caught and try to put up a fight, you're so screwed that you might as well do it anyway. The '6 strikes' scheme would be vastly more efficient - albeit scary in what it will be warped into once put in place.

Re:Good luck to her - no enforcement without...

[rioki]

You are torrenting a file; are you downloading, uploading or both? Does it matter? Should the damages be different?

Re:Good luck to her - no enforcement without...

[Charliemopps]

What would make more sense is to declare the whole nonsense "unenforceable" This is the equivalent of $100k fines for spitting on the sidewalk. Oh wait, spitting on the sidewalk could actually cause someone else a hardship if they stepped in it.

Re:Good luck to her - no enforcement without...

[Xenx]

The difference is downloading isn't providing copyrighted materials to others. Where as uploading is. Legality of downloading could be argued, but would only be one count per download. The illegality of uploading copyrighted material is known, and get one count per upload. So, yes. The damages should be different. Now, that doesn't mean I agree with the way the system is currently set up.

Re:Good luck to her - no enforcement without...

[lightknight]

Prove that Jammie ever uploaded a complete file to someone who did not posses a license to the copyright for those songs.

If I download songs for a CD that I own, am I infringing? Was the person uploading the songs to me infringing, provided I own the CD that the very songs I am downloading exist in some form on?

Re:Good luck to her - no enforcement without...

[Anonymous Coward]

You fall foul of the common misconceptions that cases like this are all about.

It doesn't matter that you have a "license" for the content you are downloading.

It matters that she doesn't have a "license" to distribute it to you. If she doesn't have one, then she is in violation of copyright law regardless of what "license" you hold. She distributed. She infringed. She tried various arguments to mitigate that infringement.

Re:Good luck to her - no enforcement without...

[Anonymous Coward]

No, the GP is right on, the investigators were licensed by the appropriate rights holder to download the materials for the purpose of seeing who was sharing them. Therefor there was ultimately a license to cover those particular downloads, now if they have evidence that other people were downloading the tracks, that would be a completely different matter, but making available is not a tort.

Re:Good luck to her - no enforcement without...

[Anonymous Coward]

Uhm, no, thats complete bollocks.

The license held by the recipient has no bearing on whether the distributor can distribute to them or not - thats a completely separate license. If you did not have a distribution license when you distributed it, any license held by the recipient isn't going to help you in court.

Re:Good luck to her - no enforcement without...

[Theaetetus]

The difference is downloading isn't providing copyrighted materials to others. Where as uploading is. Legality of downloading could be argued, but would only be one count per download. The illegality of uploading copyrighted material is known, and get one count per upload. So, yes. The damages should be different. Now, that doesn't mean I agree with the way the system is currently set up.

Not quite - the count is "per work infringed", not "per infringing copy", so you don't multiply the counts by the number of uploads or downloads. However, you're right that there's a huge difference between uploading and downloading: if you only download once, you actually have a reasonable damage-mitigation argument that you only owe the copyright owner $1 for the song. If you upload, however, you owe them the cost of a distribution license... which could be tens or hundreds of thousands (for example, Michael Jackson bought the distribution rights to a bunch of Beatles' songs for around $100k each). When Apple is paying that much in royalties to be able to distribute the latest Katy Perry song on iTunes, for example, it's tough for a defendant to argue that they should be able to also distribute it but only owe $1.

Re:Good luck to her - no enforcement without...

[Theaetetus]

Prove that Jammie ever uploaded a complete file to someone who did not posses a license to the copyright for those songs.

If I download songs for a CD that I own, am I infringing? Was the person uploading the songs to me infringing, provided I own the CD that the very songs I am downloading exist in some form on?

Yes, if the person who uploaded the song to you didn't have a distribution license. In any transfer, there are potentially two infringers - the uploader, who distributed, and the downloader, who made a copy. In your hypothetical, you have a reasonable argument that you have an implied license to make a copy (basically, you have a right to format shift from your copy, so this is format shifting-by-proxy). But, the person who distributed the work to you didn't have a license. Thomas never approached Capitol Records and said "I want to set up a competing store to Apple's iTunes store, and here's my money for a distribution license," but effectively did it anyway. Why should she be able to distribute a work without paying royalties?

Re:Good luck to her - no enforcement without...

[DeadCatX2]

Except Apple and Michael Jackson were selling products for profit (i.e. commercial). Ms Thomas, however, at no point sold those songs (i.e. non-commercial).

The problem is that the statutory damages were designed for commercial infringement, and are now being employed against non-commercial infringers.

Re:Good luck to her - no enforcement without...

[scared masked man]

Conceivably, a defendant could argue that the damage done is only the proportional loss from royalties paid by authorised distributors - that is, by uploading a song once, the damage done was the royalties that iTunes didn't pay, or the royalty portion of the price of a CD that would have been sold at Walmart (and that's counting downloads as lost sales).

Good Argument

[JohnAllison]

I was a bit flippant before I read the case. So she filed for certiorari, big deal. But I like the argument, and frankly, I agree. The statutory damages that have come to the supreme court have been against institutional respondants, not individuals. The purpose of having such large amounts was to focus deterrence towards those types of offenders, not individuals. That the amounts in this case are thousands of time larger than the actual damages, and are not just.

Additionally, the circuits are split on what to do, and there is some case law that appears to be ignored by the circuit court.

I wish them great with this case. I hope it gets picked up. I think there is a case that it should.

Re:Good Argument

[Anonymous Coward]

Not a good argument at all. The purpose of copyright law, as stated in the Constitution, is NOT to 'prevent someone from making money off someone elses work', it is to promote creation of new works by giving the creators exclusive rights to their work. The harm that comes from unauthorized use of a work is exactly the same no matter who made the unauthorized use or why they did it.

In the past it made sense to make a distinction between commercial and non-commercial infringement, because it was highly unlikely that non-commercial infringement could cause any real harm as special equipment and expense was required to make a significant number of copies. That is no longer true.

I don't think she stands a chance.

Re:Good Argument

[Dotren]

Not a good argument at all. The purpose of copyright law, as stated in the Constitution, is NOT to 'prevent someone from making money off someone elses work', it is to promote creation of new works by giving the creators exclusive rights to their work.

Yes but wasn't it also supposed to be for a limited/reasonable amount of time? Couldn't copyright also be looked at as a kind of contract or agreement between content creators and society?

If so, it seems to me that this agreement has long since been broken and I don't think it was society that did so first.

They should have expected this...

[Kaitiff]

The fine imposed after all this, including court fees is so out of scope she really didn't have any choice but to take all the way to SCOTUS. Regardless of which side you land on the argument of her guilt you have to admit the damages in this case are usurious and ridiculous. It's time 'our' government stood up and actually represented the people, not the faceless corporate entities. I say faceless in this case specifically since RIAA was formed specifically to prosecute cases like this w/out bleeding bad publicity directly onto the recording industry giants it represents. It's interesting isn't it? The corporations have the same legal rights as a person (huge mistake IMO) and then do EVERYTHING possible to obfuscate their actions. Meanwhile people fighting back against their tyranny form groups with a public face (like ANONYMOUS) to shield their identities and are branded criminals for it. Makes you wonder who the real bad guys are.....

Re:They should have expected this...

[mcgrew]

say faceless in this case specifically since RIAA was formed specifically to prosecute cases like this

That's completely wrong. The RIAA was formed to come up with a frequency rollover standard.

Re:They should have expected this...

[TapeCutter]

The corporations have the same legal rights as a person (huge mistake IMO) and then do EVERYTHING possible to obfuscate their actions. Meanwhile people fighting back against their tyranny form groups with a public face (like ANONYMOUS) to shield their identities and are branded criminals for it. Makes you wonder who the real bad guys are.....

"[A]ll of the random ass-headed cruelty of the world will suddenly make perfect sense once we go inside" The Monkeysphere.

0%

[bill_mcgonigle]

I didn't read the case, but if the summary is correct, they're making the wrong argument. SCOUTS will say that Congress established the law and that if the law is being followed then Due Process is served.

They should be making a case that the statutory damages constitute 'unusual punishment' and are far outside all other punitive damage amounts ever considered by copyright law in precedent (because Congress has been bought off).

Re:0%

[Anonymous Coward]

I think that if they want to equate copyright violation to theft, then the most they could prossible collect in damages would be the market value of the "goods" they "stole" on a per-download basis of the people that then downloaded from the thief's computer. So if you want $50k for a single song, you have to prove that that song was downloaded from the defendant by 50k people.

Re:0%

[Anonymous Coward]

If you read the case, you would see that precedent is a huge part of Thomas's case.

Re:0%

[Anonymous Coward]

The 'goods' they 'stole' in this case was not a copy of a song, it was a non-exclusive, perpetual license to distribute an unlimited number of copies royalty free. Now, I don't know what such licenses go for in music, but in the SCO v IBM case we learned that IBM bought exactly that license from AT&T (for Unix System V) for $10M.

Re:0%

[Theaetetus]

I didn't read the case, but if the summary is correct, they're making the wrong argument. SCOUTS will say that Congress established the law and that if the law is being followed then Due Process is served.

They should be making a case that the statutory damages constitute 'unusual punishment' and are far outside all other punitive damage amounts ever considered by copyright law in precedent (because Congress has been bought off).

Except that the statutory damages are compensatory in nature, not punitive. They're also reasonably related to the cost of a distribution license for a work. Accordingly, Congress was within its Article 1, Sec. 8 powers to set those levels, and they're constitutional.

The better argument is that the RIAA and MPAA are twisting the definition of "willful" infringement to conflate two of the statutory levels of damages: statutory damages are "up to $200" for innocent infringement, where you honestly believe that the work is not under copyright (e.g. if you didn't know that P.D.Q. Bach was Peter Schikele and thought he really was a son of J.S. Bach and has been dead for hundreds of years); "from $750 to $30,000" for 'normal' infringement; and "up to $150,000" for 'willful' infringement. The RIAA has argued that 'willful' means 'anything that's not innocent', and they end up removing that middle range of damages. That's contrary to Congress' intention.

Thing is, it hasn't come up yet as an argument, because Thomas and Tenenbaum and others keep arguing that all statutory damages are punitive, or that they have fair use rights, or that there's an implied exception for non-commercial infringement, and none of those arguments have been successful. They haven't raised the $750-30k range argument because, in their eyes, they shouldn't have to pay anything, so even a few thousand is a "loss". As a result, the judges hearing these cases only have the RIAA's argument for willfulness, and with nothing to the contrary in front of them, they side with it.

Re:0%

[Cederic]

Except that the statutory damages are compensatory in nature, not punitive.

Loss of four or five years' gross income feels like a pretty cruel punishment to me.

Lets face it, Jammie has nothing to lose. Either the Supreme Court takes her case or she buys a gun and gets good value for her enforced poverty.

There comes a point at which any person has to say "enough", and multi-year poverty for sharing a dozen songs would trigger it for me.

Re:0%

[Theaetetus]

Except that the statutory damages are compensatory in nature, not punitive.

Loss of four or five years' gross income feels like a pretty cruel punishment to me.

If I run over you with my car, causing you to rack up several hundred thousand in medical bills, should I be able to get out of paying it by saying that it's pretty cruel punishment for me to lose several years of income? No - that's the difference between compensatory damages, or damages that compensate you for your loss, and punitive damages, or damages that are tacked on as additional punishment.

Statutory damages in copyright are compensatory in nature, and are to compensate the copyright owner for their lost distribution licensing revenue. They're not punitive, even though they may be painful.

Re:0%

[Cederic]

If I run over you with my car, causing you to rack up several hundred thousand in medical bills, should I be able to get out of paying it by saying that it's pretty cruel punishment for me to lose several years of income?

Yes, that's why car insurance is compulsory in this country. It's also why we have a national health service. It's also why there's an "uninsured drivers fund" to cover the losses caused to someone by an (illegally) uninsured driver.

Statutory damages in copyright are compensatory in nature, and are to compensate the copyright owner for their lost distribution licensing revenue. They're not punitive, even though they may be painful.

As I said, loss of 4-5 years' gross income feels pretty fucking punitive. That may not be intended, but it's the bitter reality.

Anyway...

to compensate the copyright owner for their lost distribution licensing revenue

Their lost revenue was somewhere between $0 and $1000, depending how many people received the distributed material. Proven losses are at the lower end of that scale. A proportionate award for damages would likely have have been paid; a $220,000 one probably never will.

Re:0%

[Theaetetus]

If I run over you with my car, causing you to rack up several hundred thousand in medical bills, should I be able to get out of paying it by saying that it's pretty cruel punishment for me to lose several years of income?

Yes, that's why car insurance is compulsory in this country. It's also why we have a national health service. It's also why there's an "uninsured drivers fund" to cover the losses caused to someone by an (illegally) uninsured driver.

So, if Thomas had lawsuit insurance, she could get out of paying this. The whole point is compensating you for your medical bills, or Capitol Records for their lost royalties from her distribution. That it's painful for me to buy insurance or painful for Thomas to pay royalties is irrelevant, since we're the wrongdoers.

Statutory damages in copyright are compensatory in nature, and are to compensate the copyright owner for their lost distribution licensing revenue. They're not punitive, even though they may be painful.

As I said, loss of 4-5 years' gross income feels pretty fucking punitive. That may not be intended, but it's the bitter reality.

"Punitive" has a specific legal meaning and it only applies to damages that are awarded as punishment for wrongdoing. They're related to how evil the defendant's act was, and not how badly the plaintiff was damaged. Compensatory damages could be huge and feel like punishment, but they're not - they're solely related to how badly the plaintiff was hurt by the defendant's actions.

Anyway...

to compensate the copyright owner for their lost distribution licensing revenue

Their lost revenue was somewhere between $0 and $1000, depending how many people received the distributed material. Proven losses are at the lower end of that scale. A proportionate award for damages would likely have have been paid; a $220,000 one probably never will.

Not at all. Michael Jackson paid about $273k for distribution rights for each of 4000 Beatles songs. $222k is certainly in that ballpark. If Thomas wanted to set up an online record store like iTunes, she wouldn't be paying Capitol a single dollar, or even $1000... She'd be purchasing a distribution license, which could well be tens of thousands or hundreds of thousands of dollars per song, depending on popularity. But, rather than negotiating for that license, she just went ahead and distributed the songs anyway... and we're supposed to be sympathetic to her now?

Re:0%

[Cederic]

Michael Jackson made a business transaction that gave him an expected revenue stream associated with his outlay.

Jammie Thomas shared some files.

If you can't see the difference, and don't realise how stupid it is to compare one to the other, then I can understand why you aren't sympathetic to her. However, you should be.

How is the award against her remotely proportionate? Where exactly did Capitol Records lose $220k as a result of her minor transgression? At which point did she realise hundreds of thousands of dollars in revenue as a result of distributing those files?

I haven't even started to challenge you on the stupidity of the current IP laws, we're still merely discussing the punitive nature of this award. Because I don't care what the legal definition is, this is excessively punitive.

Re:0%

[Anonymous Coward]

I didn't read the case, but if the summary is correct, they're making the wrong argument. SCOUTS will say that Congress established the law and that if the law is being followed then Due Process is served.

They should be making a case that the statutory damages constitute 'unusual punishment' and are far outside all other punitive damage amounts ever considered by copyright law in precedent (because Congress has been bought off).

Just a guess from how glaringly obvious it is: you neither went to law school, sat for the bar, nor, if I am not mistaken, ever read the US Constitution nor took any courses studying it. Again, it's just a guess, but it seems you just think it should be the way you think it is, for no reason whatsoever as you neither read the summary nor understand law.

Allow me to be generous to your unrealized ignorance, so for future reference, you can see how and why you are wrong:

In criminal cases, many of these due process protections overlap with procedural protections provided by the Eighth Amendment to the United States Constitution, which guarantees reliable procedures that protect innocent people from being executed, which would be an obvious example of cruel and unusual punishment.

of Due Process

Re:0%

[bws111]

Her motivations do not matter. If someone torched your house, are you going to only demand to be made whole if they did it for profit? If you said yes, you are lying. If she had legally gotten a license to distribute without paying royalties it would have cost her many thousands of dollars. She could have sold copies, she could have given them away for free. Either way, she paid for the license. If she had a crappy business plan where she could not recoup the expense that would be her fault, not Capitol's.

Instead of getting a license, she decided to distribute on her own. The fact that she failed to make money on it, or that she owns a hell of a lot of money for it, is nobody's fault but her own. Not the laws, not the courts, not Capitols, hers.

Re:0%

[pnutjam]

You would trade multiple years of poverty for a decade of imprisonment (followed by poverty), or loss of all your years.

It might be a net good for society, but it would take more then money to break me.

Re:0%

[Anonymous Coward]

The fuck are you talking about? Where is the intent on her part in any of this? You're saying that the average idiot using a computer is going to be aware that literally three mouse clicks equate to stealing a 200K license to distribute music? That's like if a museum charged one million dollars for a ticket to enter, but left its doors completely unlocked, and then wanted to sue some random person for a million dollars for sneaking in. Is the random person wrong? Yes. Is the value of their liability for their crime one million dollars? No. Virtually no real financial harm was done to anyone (necessitating a compensatory award of at most a few thousand dollars, and even that's bullshit.) This whole case is bullshit, and anyone who defends the RIAA in this or any case, seriously, the world would be an overall better place if all of you had just never been born.

Re:0%

[Cederic]

Her motivations very much do matter. The scale of her activities very much do matter. The fact that she didn't engage in commercial activities, that she didn't attempt to profit from her activities, that she was sharing a few files on the internet.. that means that trying to charge her a commercial distribution fee is fucking asinine.

If someone torches my house, I'll claim on the insurance, they'll get prosecuted, the Government may well give me some cash to cover any insurance shortfall.

Someone burns a hole in my trousers, I may ask them to pay for a new pair or I may just shrug and deal with it.

I'm not going to charge someone for a fucking trouser factory.

Why do you think Jammie Thomas should buy a trouser factory for someone, after setting fire to their trousers. While they weren't even wearing them? Without actually preventing them from getting dressed and staying warm?

Sorry, but if you make stupid analogies, you have to accept them being reduced to the absurd - you were almost there to start with.

Re:0%

[Cederic]

Some of us are mentally less stable than others. I'm probably going to kill myself; it's not certain when. It's not that I want to die, I just haven't got any real reasons to keep going.

With that in context, taking away everything I've worked towards would very much give me a "nothing to lose" attitude.

While I don't condone violence and would urge everybody to try and avoid it, there are people out there with even less to lose than me.

Re:0%

[Anonymous Coward]

Bullshit.

Prove that the record label lost even one sale. Which is precisely the point. If somebody torches a house, there's real damages involved. You might not know exactly what the house and possessions are worth, but you can have a pretty good idea. What the record label lost was at most the potential for some number of copies to be sold. And it's doubtful they would have converted into copies sold.

And that's the point, if the label can prove that there were $220k in damages that they have a right to the money, but people aren't supposed to be profiting from law suits, the money is supposed to put them back where they would have been had the tort not been committed.

Re:0%

[Areyoukiddingme]

Except that the statutory damages are compensatory in nature, not punitive. They're also reasonably related to the cost of a distribution license for a work.

The cost of a distribution license? Which is arbitrarily set by RIAA member companies to be whatever the fuck they want? Which is very likely set, in fact, not at the "all the traffic will bear" level, but at the "make sure there is no traffic at all" level? THAT is what you want to use as a basis for compensatory damages? That's beyond absurd. I'm not even going to bother with a car analogy. That's a ridiculous statement.

Not only is it ridiculous, it's a goddamn lie. The terms of Apple's deal with the record companies are public knowledge, after lawsuits revealed the details. For every $0.99 song, Apple gets $0.29. The remaining $0.70 goes to the record company. Of that $0.70, the record company pays 3% to the producer and 12% to the artist, so the record company keeps $0.595 cents per paid iTunes download. And THAT is the cost of the distribution license. That right there. So to claim that it has any relationship to tens or hundreds of thousands of dollars per song isn't just ridiculous—it flies in the face of the facts, which have already been made a matter of record in court.

So even if you want to tie compensatory damages to the cost of a distribution license, we know for a fact what the real cost of a distribution license is, and it is not even within shouting distance of the amount Jammie Thomas has been ordered to pay. Any other numbers a record company might like to quote have no bearing on reality. A quoted distribution license fee that no one ever actually uses is irrelevant, because it's pure fiction. The only relevant one is the one under which nearly all songs are sold. (And the Amazon equivalent, which is undoubtedly similar.)

Re:0%

[bill_mcgonigle]

Yes, that's why car insurance is compulsory in this country.

You're mistaken. It may be mandatory in your State, but here in NH it's not. Most people are insured anyway, and the rates are super-low because it's not State-mandated.

Re:0%

[Areyoukiddingme]

Hold the phone. Roll back and reset to zero. For two reasons. First, I figured the cost of a distribution license wrong. Apple is the distributor in this case, so it's THEIR cut that is the cost of distribution. So we see that, per song, the cost of a distribution license is -$0.29. I.e. you should get paid 29 cents for every song you distribute, 'cause that's what Apple gets.

But that doesn't even matter. See NewYorkCountryLawyer's post downthread. Jammie Thomas has not been found liable for infringing distribution. The "making available" bullshit argument was thrown out by the judge and no evidence of actual distribution was ever presented, so the judgement has nothing at all to do with distribution. The $220,000 is SOLELY for downloading.

So. Start over. What was that about constitutionality, again?

Re:0%

[TapeCutter]

Not at all. Michael Jackson paid about $273k for distribution rights for each of 4000 Beatles songs. $222k is certainly in that ballpark. If Thomas wanted to set up an online record store like iTunes,blah,blah,blah

The whole point is that she never intended to do this and is highly unlikely to have achieved it via a single torrent client. Now lie to me and tell me you or a member of your family have never done exactly the same thing.

Re:0%

[TapeCutter]

Unless you're already dead there's always something to lose, even then you can still lose things like reputation and dignity.

Re:0%

[Cederic]

If I'm dead, my reputation and dignity are kind of irrelevant. Sure, they may matter to people that aren't dead, but I wont even notice, let alone care.

Re:0%

[pnutjam]

How short-sighted and selfish of you, keep thinking about the people who care about you . cheers!

Re:0%

[Theaetetus]

Except that the statutory damages are compensatory in nature, not punitive. They're also reasonably related to the cost of a distribution license for a work.

The cost of a distribution license? Which is arbitrarily set by RIAA member companies to be whatever the fuck they want?

Nope, in this case, statutory damages are set by Congress. And they happen to be in line with what the RIAA member companies have set. Maybe there's a corruption issue there, but it's not a constitutional issue.

Not only is it ridiculous, it's a goddamn lie. The terms of Apple's deal with the record companies are public knowledge, after lawsuits revealed the details. For every $0.99 song, Apple gets $0.29. The remaining $0.70 goes to the record company. Of that $0.70, the record company pays 3% to the producer and 12% to the artist, so the record company keeps $0.595 cents per paid iTunes download. And THAT is the cost of the distribution license. That right there.

... if you're a reputable seller with an established track record. If you're not - if you're setting up your new online music store to compete with iTunes, then the record companies are going to have all sorts of mandatory minimums to avoid you giving away content for free and saying "your 59.5% royalty on my $0 in sales is $0, so here's your check for $0". Instead, there will be sliding scales with royalty rates decreasing as you sell more copies, and mandatory monthly minimum payments regardless of number of copies sold.

So, yeah, the statutory damages range is around the cost of a distribution license.

Now, here's the thing - you point out, correctly, that statutory damages are pure fiction (although they're based on that reasonable range for a distribution license). Thomas has the ability to mitigate those damages by showing that she didn't actually distribute the song to many people. Statutory damage awards are rebuttable presumptions, where the burden falls upon the defense. She didn't show that, however - and in fact, she destroyed her hard drive and lied about it under oath.

Re:0%

[Areyoukiddingme]

Thomas has the ability to mitigate those damages by showing that she didn't actually distribute the song to many people. Statutory damage awards are rebuttable presumptions, where the burden falls upon the defense. She didn't show that, however - and in fact, she destroyed her hard drive and lied about it under oath.

According to NewYorkCountryLawyer, she didn't have to show she didn't distribute. The "making available argument" has been shot down as bunk by the judge, and no evidence of distribution was ever shown, so the damages they are trying to award have nothing to do with distribution.

I'm inclined to believe him over you.

And handwaving about mandatory minimums invented by a record company as if that has any bearing on reality is disingenuous at best. The reality is, a disreputable seller with NO track record whatsoever was able to convince the record industry that they should be paid for the privilege of distributing individual songs. Paid to the tune of $0.29 per song. Distribution license costs are NEGATIVE. Apple GETS PAID to distribute songs. And paid very very well.

The statutory damages are bullshit. Complete and utter bullshit. They should be smiling and thanking Jammie Thomas for distributing tracks without charging them the way Apple does. And I say that without being the least bit facetious. Free distribution directly equates to advertising. We know this for a fact because commercial radio has been operating for generations now.

In other words, the entire system ignores reality, from beginning to end, and it's an affront to any thinking person and should be utterly dismantled.

Re:0%

[Theaetetus]

Thomas has the ability to mitigate those damages by showing that she didn't actually distribute the song to many people. Statutory damage awards are rebuttable presumptions, where the burden falls upon the defense. She didn't show that, however - and in fact, she destroyed her hard drive and lied about it under oath.

According to NewYorkCountryLawyer, she didn't have to show she didn't distribute. The "making available argument" has been shot down as bunk by the judge, and no evidence of distribution was ever shown, so the damages they are trying to award have nothing to do with distribution.

I'm inclined to believe him over you.

Feel free. Mind you, you should be sure what you're arguing about. For example, I'm not making any arguments about "making available". Thomas distributed to at least one person - the MediaSentry investigator - and that instance of distribution was shown. In fact, it's what Thomas' liability for infringement is based on.

Here's a tip - rather than "believing NYCL" or even "believing me", go read the judgement for yourself. NYCL helpfully has them posted on his site.

by my estimation

[trickstyhobbit]

She owes about $24.

Re:by my estimation

[Anonymous Coward]

that is something i don't understand. you "steal" music and then someone steals it from you. you pay for your theft and then you have to pay for the theft by the other person according to RIAA. but then the other person is sued by RIAA for their theft. hey wait...

Re:by my estimation

[erroneus]

If it was stealing, let's say a CD from a store, then the crime is measured by the value of the item stolen.

This is about copyright -- the right to publish. The defendant was charged with illegal publication -- distribution.

I hate to degrade the discussion by inserting "you're using the wrong words" but in this case it's particularly important. Downloading something you don't have any right to is a problem but the value should only be measured by the value of the materials. But that's not the "problem" as the RIAA sees it. It is the illegal distribution that the RIAA is concerned about. Now we are not talking about stealing as much as illegal reproduction and distribution and THAT is why the punishment is so heavy.

So please. If you want to tout the crime, at least identify the correct crime. It would actually help your argument.

Re:by my estimation

[JasterBobaMereel]

Note the RIAA has never published music, and is not a music publisher so should have no right to fine uploaders/distributors /publishers

They represent some of the Music Publishers in the USA, but not all of them, and not all music publishers across the world

But they will and have tried to prosecute people for uploading material where the copyright is not owned by the people they represent, even outside the USA

Re:by my estimation

[bws111]

This case is Capitol vs Thomas, not RIAA vs Thomas. Capitol is a music publisher, and this case was about their works.

Re:by my estimation

[Theaetetus]

Note the RIAA has never published music, and is not a music publisher so should have no right to fine uploaders/distributors /publishers

They represent some of the Music Publishers in the USA, but not all of them, and not all music publishers across the world

But they will and have tried to prosecute people for uploading material where the copyright is not owned by the people they represent, even outside the USA

No, they haven't. The RIAA has never been a party in these suits - it's Capitol Records v. Thomas, and Sony v. Tenebaum. They're all members of the RIAA, but your argument about lack of standing is false.

Re:by my estimation

[NewYorkCountryLawyer]

This case is Capitol vs Thomas, not RIAA vs Thomas. Capitol is a music publisher, and this case was about their works.

1. Capitol is but one of the plaintiffs.
2. The RIAA was in fact running the case, with the aid of the record company plaintiffs.
3. Capitol is a record company, not a music publisher.
4. The case was about the recordings of several different companies.

Re:by my estimation

[harlows_monkeys]

She owes about $24.

That's ridiculous. If the punishment for an illegal act is simply what it would have cost to do the act in the first place, then there is no reason to ever do the act legally. Doing it illegally always has a better expected outcome than doing it legally.

Furthermore, you didn't even calculate the costs correctly under your flawed model. $24 would be the cost to legally download 24 songs for personal listening. The cost for a license to legally download 24 songs and redistribute them to an arbitrary number of strangers for no addition fees and with no tracking or reporting requirements would be a lot more than $1/song.

Question for NYCountryLawyer re illegal downloads

[caseih]

Was she really convicted of "illegal downloading?" It has been my understanding of copyright law that downloading isn't illegal, only the uploading (making available). Hence the bittorrent crack downs. I can buy a bootleg CD abroad or in the US and it's not illegal to possess it. Is this incorrect? During the hay days of allofmp3.com, many Americans bought and downloaded music, but the RIAA could only shut it down by attacking the payment processors; I never heard of them going after allofmp3.com customers for illegal downloading (which they claimed all along that allofmp3.com was about).

Any comments?

Re:Question for NYCountryLawyer re illegal downloa

[squiggleslash]

It's a matter of spin. NYCL emphasizes "illegal downloading" because then he can pretend that the total damage done to the copyright holders was 99c multiplied by the number of song titles Thomas downloaded.

The copyright holders (and I'm in agreement with them, FWIW) would point out that the problem was "making available to millions of anonymous strangers", which causes greater damage, both directly (number of times each title was uploaded from Thomas's PC multipled by 99c) and indirectly (more people, thanks to Thomas's action, avoiding legit vendors because they know that there's a wide variety of music available "for free" on whatever P2P systems Thomas was using, wider thanks to Thomas's actions.)

If Thomas was a leech, obviously a leech, and merely downloaded the tracks, without also resharing them, I don't think anything would have gone to court.

Given SCOTUS is unlikely to be made up of people who want to "stick it to the man", or who believe copyright is morally wrong, or any of the other stuff that gets argued here, I suspect they'll be more inclined to sympathise with the copyright holder's view than NYCL's. So Thomas is going to waste more time and money, and probably set a legal precedent at the same time that will do nothing to loosen the screws.

how?

[ILongForDarkness]

"nor shall any State deprive any person of life, liberty, or property, without due process of law": but there was a trial and Jammie was found guilty so how was due process violated? I can see an argument that the damages awarded were assessive but that is what appeals are for not a argument that due process wasn't followed.

Re:how?

[Anonymous Coward]

They basically skipped the damages phase of the trial and entered a statutory amount for the infringement. It was subsequently adjusted back and forth, but because she didn't have the right to challenge the sum of the award, her rights were violated. What's more, the sum of the amount is way beyond what one would reasonably expect to pay for the original. The studio probably lost at most $48 if her seeding ratio is set the way that a lot of people set it to 2x, and if it was set to 1x, then that's about $24.

And this is a very important thing to have tested in court because the legislature doesn't get to just arbitrarily set civil penalties without relation to the acts committed. I wouldn't be surprised if the courts overturned the award, just because it would give the courts more power to decide what the damages should be, rather than one size fits all from the legislature.

Re:how?

[TapeCutter]

It wasn't violated, it was abused by vested interests.

Re:how?

[ILongForDarkness]

I still don't see the due process violation the law specifies what the award should be. She could have chosen not to infringe she didn't so she gets what the law says. I don't see how that isn't being treated fairly. The law needs to change but a judge following the law in sentencing isn't doing anything wrong.

Re:how?

[jonadab]

Yeah, the phrase "due process clause" was obviously a brain fart on someone's part. They probably meant the "excessive fines" clause, except that amendment, to the best of my understanding, is specific to criminal law.

In theory any reasonable person should understand why the no-excessive-penalties concept _ought_ in principle to apply to civil law too, but to the best of my knowledge there's no direct wording in the constitution for that, so to make this argument fly in court you'd have to rely on legislation or, more likely, case law. Not being a lawyer, I cannot provide references to any specific legislation or case law that would be relevant, though I imagine there probably is some somewhere. (Of course, the plaintiff will be digging up such things to support their side as well, and they can probably afford more thorough lawyers...)

Re:how?

[ILongForDarkness]

Regardless I think most would agree that copyright infringement is against the law and some level of punitative punishment is warranted. I don't get way people seem to be in the habit of comparing downloading a song to iTunes pricing. "It was only 100 songs which I could have bought for $99 on iTunes. Why are they fining my $5000?" Well because they only caught you with $99 of songs but realistically you almost certainly downloaded and uploaded far far more than that and even if you didn't there needs to be punishment not just "make it even". It isn't a contractor that did shoddy work and the homeowner needs be compensated for the amount needed to make it right, it is the actual nature of pirating that you are purposefully violating someones copyright that needs to be punished.

Anyways I'm not sure what the fair price for things like music violations is but I'd put it somewhere >> than the cost of purchasing the song and than the current maximum allowed by copyright law. Maybe $100 per song up to a certain percentage of a persons networth? If you can't pay the $100 per song amount because your networth is too low then you get banned from the internet for a while(extremely hard to enforce I admit)? Not sure how to make it effective you don't want poor people being able to get away with infringing just because they can't pay the fines but you also don't want to be filling jails with them because they just had to get that new 50 cent album (why doesn't his albums go for that price? more like 50 cent (+ $16).

Remind me

[Anonymous Coward]

Which defendant was this? The one who threw the family under the bus or the one with the dumb-ass lawyer who pissed off the judge.

Re:Question for NYCountryLawyer re illegal downloa

[91degrees]

because then he can pretend that the total damage done to the copyright holders was 99c multiplied by the number of song titles Thomas downloaded.

I don't think that's totally unreasonable. The average upload/download ratio for a given user will be 1:1 (there are exactly as many uploads as downloads since every uploaded file is downloaded). Leeches increase this a bit for those who do upload but not by a factor of thousands.

Then there's the matter of intent. Was Thomas' primary intent to distribute? No. It was to download. There's a difference between intentional harm, recklessness and negligence , although I have no idea if something similar applies in this case.

Whoa... "Native American"? Hang on a second.

[Rogerborg]

What on earth does her (professed) ethnicity or culture have to do with the issues at hand?

Is this some sort of extreme affirmative action argument where she doesn't have to follow - or possibly isn't able to comprehend - the White Man's law?

No. Stop this. Stop it right now.

Re:Whoa... "Native American"? Hang on a second.

[Amorymeltzer]

It's there for the same reason "Minnesotan" is there - background. In fact, I'd say it's there only to modify the state she calls home. From a legal perspective, what state you are in has importance for various courts and precedence, so legally minded people would be interested. Saying she is from Minnesota might not be technically accurate since, as a Native American, her relationship to the state could very well be slightly different than one might expect.

Re:Question for NYCountryLawyer re illegal downloa

[Painted]

If this were the case, they would have simply looked at what her ratio was set at (most people have it at about 2, if I recall correctly). Therefore Jamie should be on the hook for 48 tracks, worth approximately $50. Instead, the RIAA folks want to punish her for every* illicit download of those tracks, making her an example. I would argue that this is still unconstitutionally excessive.

Re:Question for NYCountryLawyer re illegal downloa

[Jason Levine]

As far as I understand it, downloading (without permission of the copyright holder) is illegal, but hard to prosecute. If you rip a CD and put those songs online, it's easy to prove. Just browse to your listing and perhaps download one or two to verify. However, if you download a copyrighted song, the RIAA would need to access server or ISP logs to prove this. Getting to those logs would require court orders which is more difficult. In addition, the RIAA wouldn't know offhand what IP address downloaded the copyrighted files without the log files. So it becomes a chicken-egg scenario. They need the logs to find the IP address, but they need the IP address (at minimum) to request the logs. No court is going to order an ISP to give up all of their logs so the RIAA can fish through them and find copyright violators.

This is where AllOfMP3.com fell. The RIAA could have decided to sue AllOfMP3's customers, but first they would have needed AllOfMP3's logs to figure out who downloaded songs and where they were located. Finding that out would take a lot of time and effort. It was easier to just shut down AllOfMP3. (IIRC, they went after the payment processors because AllOfMP3 was kind of legal in the country it resided in at the time. So they got the payment processors to block it while they re-wrote that country's copyright law.)

BitTorrent is a bit of a quirk as you tend to upload while you're downloading. So you might think you're just downloading Latest_Greatest_Song.mp3, but you're actually uploading bits of it as well. That upload can be seen and you could be sued over it.

Re:Whoa... "Native American"? Hang on a second.

[Anonymous Coward]

Location and jurisdiction are relevant. Ethnicity, race, gender are not.

Or the real-life version...

[Anonymous Coward]

A very similar quote is originally from former U.S. Attorney General Edwin Meese, who served under President Reagan.

"But the thing is, you don't have many suspects who are innocent of a crime. That's contradictory. If a person is innocent of a crime, then he is not a suspect."

Can someone explain..

[Scarred Intellect]

I'm not a lawyer, and don't care much for a particularly detailed treatise, but could someone explain why one can't just say "Prove I've never purchased XX movie/song, and am not simply downloading it for a digital archival purpose which I am allowed under Fair Use."?

As I understand Fair Use, one is allowed to have an archival copy of any movie/song (breaking DMCA notwithstanding), so couldn't downloading be considered a more time-efficient method of obtaining your archival copy? And doesn't presumption of innocence mean that they have to PROVE that you never bought the item in the first place, and thus are not allowed your digital archival copy?

I'm sure I'm missing something somewhere.

Re:Can someone explain..

[bws111]

Yes, you are missing something huge. What she is accused of is DISTRIBUTING works without authorization, and Capitol proved it by demonstrating that she distriibuted it to their investigators. There is no fair use case that would allow that, and it does not matter if she legally purchased a copy or not, because she clearly did not purchase a distribution license.

This is also why all the cries of 'excessive damages' and 'she should only be liable for $1' are so far off base. If she was only accused of downloading they may be correct, but she wasn't. The cost of a license to distribute without paying royalties on every copy (which is what she did) is many thousands of dollars, not $1. It is going to be very difficult for her to show that the compensatory awards were excessive when legitimate distributors pay that much for a license.

Re:Question for NYCountryLawyer re illegal downloa

[Anonymous Coward]

It has been my understanding of copyright law that downloading isn't illegal, only the uploading (making available).

Your understanding is wrong. Copyright means exactly what it sounds like: the right to make a copy. Uploading or downloading makes no difference in law; the only difference is that they usually choose not to prosecute downloaders because there are now so many of them that they think it would be more trouble than it is worth.

She was sued for downloading

[NewYorkCountryLawyer]

She was sued for downloading, distributing, and making available for distribution.

1. No evidence of distribution was ever offered.

2. The court held that "making available for distribution" is not actionable.

3. So the only thing for which she was found liable was downloading.

Re:She was sued for downloading

[Anonymous Coward]

You are so full of shit - in the original case (I can go check the others if you want...), Jury Instruction 14:

Judge Davis amended the instruction to say that the "act of making available for electronic distribution... violates the copyright owner's exclusive copyright."

http://arstechnica.com/tech-policy/2007/10/debate-over-making-available-jury-instruction-as-capitol-v-thomas-wraps-up/

And she was found guilty.

In the retrial, the Jury was not allowed to differentiate between "reproduction" or "distribution" in their verdict, but they were told to consider both when deliberating the verdict.

The third trial was purely about damages, the original verdict was not in question.

You need to stop making such false posts, hoping your claims are accepted purely on the basis that you claim to be a lawyer.

Grow up.

[westlake]

They have been bought off by the RIAA

The geek blames his every failure in law and politics on bribery.

His only satisfaction the instant mod up to "+5, Insightful" on Slashdot.

The impeachment of Samuel Chase in 1804 is the only impeachment of a Supreme Court justice to have ended in trial in the Senate. The issues were framed by the conflict between Jefferson and a Federalist judiciary --- and in the end, by very wide margins, even a Jeffersonian controlled Senate refused to convict,

In the entire history of the United States, there have been about sixty more or less serious attempts to impeach a federal judge or to shame him into resignation. Perhaps ten were built around credible or proven allegations of bribery. Impeachment investigations of United States federal judges

Re:Question for NYCountryLawyer re illegal downloa

[NewYorkCountryLawyer]

Was she really convicted of "illegal downloading?"

1. She wasn't "convicted" of anything; this wasn't a criminal case. She was found liable for copyright infringement by making copies through downloading, thus violating the record companies' exclusive reproduction rights.
2. She was also sued for "distributing" and "making available for distributing", but the judge threw out the "making available for distributing" claim, and there was no evidence offered of the "distributing" claim.

So yes, the only thing she was found liable for was downloading.

"the Native American Minnesotan"

[Anonymous Coward]

Why do we care that she's of tribal descent? Are we now saying tribal American's are exempt from copyright laws?

I flatly refuse to redefine native they way the PC crowd does, if you were born in the US you are native. I happen to be of Cherokee linage as well, but that doesn't matter, I'm native because I was born here.

Re:"the Native American Minnesotan"

[NewYorkCountryLawyer]

Why do we care that she's of tribal descent? Are we now saying tribal American's are exempt from copyright laws? I flatly refuse to redefine native they way the PC crowd does, if you were born in the US you are native. I happen to be of Cherokee linage as well, but that doesn't matter, I'm native because I was born here.

In this case, I personally believe that she was discriminated against by the jury, because she was a Native American. She was tried many many miles from where she lived and worked, and did not have a jury of her peers.

Re:"the Native American Minnesotan"

[sdoca]

I agree with you on the use of the word "native". As a Canadian, born in Canada, I consider myself a native Canadian. Your use of the phrase "tribal descent" is new to me though. Is it common in the US? In Canada, we usually use the term "first nations person/people". I also like the use of the term "aboriginal" over "native".

The plan is clear...

[Anonymous Coward]

The whole thing works like this:
  1) copyright trolls is the new negative lottery
  2) When you win in negative lottery, you get millions of negative money
  3) The authors only get to choose the winners; they can only choose people with unauthorized access to the work
  4) The whole system is consistent.

Sorta

[ThatsNotPudding]

They are not a trial court. You get 10 minutes to speak your summary most of which you get interrupted by questions from the justices

Except, of course, Scalia's Shadow. In all his time on the court, Thomas has never EVER asked a fucking question; he just votes however Scalia tells him too.

The US has had some truly shitty Justices; Thomas is chief among them. Thomas: everything Thurgood Marshal was not.

She's an idiot

[harlows_monkeys]

They offered to settle for what worked out to around $2 or so per song shared (note: she was sharing around a couple thousand songs--the trial only concerned 24 for technical and practical reasons). That's a lot less than someone would normally pay for a license to redistribute songs to an arbitrary number of untracked people for a flat rate. Note also that even though they only sued over a small fraction of the songs she was sharing, the minimum possible statutory damages would be quite a bit larger than the settlement offer. She knew she was guilty, and should have known they could prove it, so should have jumped at such a reasonable offer.

Then, after she stupidly decided to fight, and lost, and got caught tampering with evidence and perjuring herself (things that do not endear one to a jury--the same jury that will be deciding the damages), and got hit with damages much larger than the settlement offer, the RIAA again offered to settle, again for a reasonable amount. Again she refused, got another trial, lost again, and that jury went for an even bigger amount of damages.

I believe there was a third settlement offer after that.

I question the ethics of her lawyer. I think he's putting satisfying his legal fantasy of winning a stunning case at the Supreme Court ahead of his client's best interests.

Re:Question for NYCountryLawyer re illegal downloa

[Solandri]

It's a matter of spin. NYCL emphasizes "illegal downloading" because then he can pretend that the total damage done to the copyright holders was 99c multiplied by the number of song titles Thomas downloaded.

The copyright holders (and I'm in agreement with them, FWIW) would point out that the problem was "making available to millions of anonymous strangers", which causes greater damage, both directly (number of times each title was uploaded from Thomas's PC multipled by 99c) and indirectly (more people, thanks to Thomas's action, avoiding legit vendors because they know that there's a wide variety of music available "for free" on whatever P2P systems Thomas was using, wider thanks to Thomas's actions.)

That is the jist of the problem. On a filesharing network, by definition the number of uploads equals the number of downloads, and each person is only interested in one copy of the song. So the average number of copies of a song uploaded/downloaded by each filesharer is 1 (one). That's where the 99c x number of songs figure comes from.

The alternative view (the one you're presenting) is that Ms. Thomas is some criminal mastermind behind an empire dedicated to illegally copying songs. All downloads by 100,000 filesharers stem from her, and thus she needs to be punished for all those illegal copies. This is the intent of copyright law as intended - to go after the commercial bootleg violater pumping out hundreds of thousands of bootleg CDs. I don't think most people have a problem with this if this were the case.

But the problem is the RIAA is trying to have their cake and eat it too. In the second case, only the criminal mastermind pays the fine. The customers who bought those bootleg CDs aren't guilty of anything. But in filesharing, the RIAA wants to penalize Ms. Thomas as the criminal mastermind, AND they want to be able to prosecute all the other filesharers as if they were the cirminal mastermind. In essence, if 100,000 people were filesharing with Ms. Thomas, then 100,000 illegal copies were made. But under the RIAA's reasoning, you're penalizing as if (100,000 filesharers) * (100,000 copies) = 1 billion copies were made.

Pick one or the other. Either each filesharer is responsible for a single copy. Or one filesharer is responsible for all copies and the rest are innocent. Saying that all filesharers are responsible for all copies doesn't make legal, mathematical, nor common sense.

Scotus?

[Anonymous Coward]

You damn nerds with your jargon! What the hell does Scotus mean?

Re:Scotus?

[macdaddy357]

From Urban Dictionary: 2. SCOTUS SCOTUS (n) A highly sensitive patch of skin between the legs running from the genitalia to the anus. Yo bitch! Lick my scotus.

Re:Whoa... "Native American"? Hang on a second.

[Anonymous Coward]

What on earth does her (professed) ethnicity or culture have to do with the issues at hand?

Is this some sort of extreme affirmative action argument where she doesn't have to follow - or possibly isn't able to comprehend - the White Man's law?

No. Stop this. Stop it right now.

Whoa hold on, here. What does any of thus have to do with her being a woman?

Is this some sort of extreme affirmative action argument where she doesn't have to follow -- or possibly comprehend -- the Good Old Boy's Law?

Nationality is an identifier, not unlike gender or name. Get over it.

Re:Question for NYCountryLawyer re illegal downloa

[Areyoukiddingme]

Wow. I wish I hadn't posted, 'cause I have mod points. This post needs to go to +5.

Folks, this is how toxic the "making available" argument was. There are people busily arguing all over this thread that the penalty is right and proper because Jammie Thomas was found liable for illegal distribution when she wasn't. The alleged cost of a distribution license is irrelevant. Even the actual cost of a distribution license is irrelevant. The $220,000 penalty ISN'T for distributing. It's just for downloading.

Try that one on for constitutionality...

Guilty until proven innocent

[TapeCutter]

"In my court you are guilty until proven innocent, it would be unfair to try an innocent man." - Q from star trek.

Kind of appropriate considering the number of slashdotters who have preemptively convicted SCOTUS in this thread.

Re:Question for NYCountryLawyer re illegal downloa

[Anonymous Coward]

Downloading involves making a copy which is one of the exclusive rights of the copyright owner.

Re:Question for NYCountryLawyer re illegal downloa

[b4dc0d3r]

Downloading is illegal in the sense that a decision set a precedent which would have to be fought to be overturned. I don't remember the venue, but it covered a large part of the country.

It is impossible to find the link, because all of the news stories say "illegal downloading" when they mean "copyright violating uploading".

I'm not sure how that is backed - they are not making a copy. But I imagine it makes as much sense as "receiving stolen property". Ignorance means you can prosecuted, or bullied into revealing the supplier, and it is intended to dissuade demand. I don't think it would stand up to a legitimate fight, where the only accusation is downloading, which is why people go for the uploaders. And of course then the sound bites are about downloading, to muddy the waters.

The only pure uploaders would be people who post to Rapidshare, Megaupload, or similar sites (which may use other protocols than HTTP/FTP). They are easy to find if the files are searchably public, or posted on forums. Then the account holder can be singled out. Truly anonymous uploading is possible, but it is difficult to either pull off successfully, or in some cases find an audience.