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

[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: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?

[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

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%

[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]

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: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: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.