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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.'"
They have been bought off by the RIAA
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.
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!
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.
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.
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.
If video games influenced behavior the Pac Man generation would be eating pills and running away from their problems.
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.
If Slashdot were chemistry it would look like this:Cadaverine
In order to properly enforce IP, we need to rebang the universe (or multiverse, even)
When the foot seeks the place of the head, the line is crossed. Know your place. Keep your place. Be a shoe.
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.
*Repent!Quit Your Job!Slack Off!The World Ends Tomorrow and You May Die!
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
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.
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.
Get thee glass eyes, and, like a scurvy politician, seem to see things thou dost not.--King Lear
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.
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.....
If I sound stupid, it's not me talking....
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).
My God, it's Full of Source!
OUTSIDE_IP=$(dig +short my.ip @outsideip.net)
... 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.
#fuckbeta #iamslashdot #dicemustdie
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).
My God, it's Full of Source!
OUTSIDE_IP=$(dig +short my.ip @outsideip.net)
She owes about $24.
For most people this really doesn't make a huge difference. This is an amount that will take a lifetime to pay.
And where does "justice" fit in?
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?"
I am officially gone from
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?
"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.
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.
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.
If you were blocking sigs, you wouldn't have to read this.
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.
I live in constant fear of the Coming of the Red Spiders.
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.
http://marsandmore.com - Posters of space, spacecraft, and astronomy.
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.
My sci-fi novel, Ghost Thief, is now available from Amazon.com.
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.
Out of modpoints but really liked a post? 1BDkF6TtmmeZ3yqXbz9yhdYVqRYnwFoXDj
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.
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.
Ray Beckerman +5 Insightful
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
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.
Ray Beckerman +5 Insightful
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.
Ray Beckerman +5 Insightful
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".
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.
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).
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.
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.
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.
If I can be modded down for being a troll, can I be modded up for being an orc, or a balrog?
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.
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.
How ya like dat?
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...
"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.
And did you exchange a walk on part in the war for a lead role in a cage? - Pink Floyd.
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.
And did you exchange a walk on part in the war for a lead role in a cage? - Pink Floyd.
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.