With all due respect, I think that in your outrage, you failed to read my entire comment:
So - you argue that I may own a weapon, but I may not use it? Huh? WTF?
On the contrary. Please refer to my comment, where I said:
the 2nd Amendment is about the right of the people to keep arms as a deterrent to a tyrannical government. It says nothing about using them, or using them against criminals. The latter right is more properly found in the 5th Amendment.
My point is that the 2nd Amendment does not give you a right to use a gun, but rather that the 5th may, or potentially the 10th.
Your other circular logic thing, about the government? You say that people should own weapons, to keep government in check. But, to use those weapons would be treason?
Well, duh. If you go shoot a Senator, you're going to jail, even if you claim you were doing it to prevent tyranny.
Hmmm - I may own a weapon, in the hope that ownership will keep my politicians honest. But, if the dishonest bastards come knocking on my door, about all I can do with the weapon, is to offer it to them as a down payment on the extortion they are looking for.
Or, O Naive One, you can start a revolution. Do you really think that the Colonists were acting legally under British law when they shot British troops, declared independence, threw out the Governor, etc.? If they were caught, the King would have hanged each and every one of them, and he would have done so legally under British law. That's kind of the point - they're saying that they reject British law.
So for you to be all, "wtf, ur an idiot for saying it's illegal to overthrow the government" makes you look incredibly stupid
Oh, he does. Specifically, there's a California law that says that donation collection agencies that are collecting on behalf of the charity have to be registered, and if they don't, the charity can shut down the collection agency (this is to prevent "uh, yeah, I'm collecting on behalf of... the veterans. Uh, all of them. The American Veterans Association or something. Just give me your cash"). IndieGogo didn't register with the ACS, and so the ACS has a legal right to shut them down... He's suing the ACS to force them to exercise that legal right. But other than that, they're not involved. They won't pay any damages, they probably won't even bother showing up to court, particularly because before it ever gets to them having to shut down IndieGogo, first Carreron has to show that IndieGogo was acting fraudulently with the alleged donation collection really just being a cover for inciting the public to attack him. And that's unlikely to happen.
any sane lawyer would say that this would just be a bad idea.
You can't encourage people to violate my trademark
Has anyone done this? Now that I think of it, actually he could, couldn't he? I don't think it would be illegal to encourage other people to take that action.
Actually, that's the only one that would be legitimate*... Intentionally inducing infringement creates liability.
*But there's no evidence that Inman did induce anyone**.
**Plus, he's claiming his name is the trademark, but people using his name are (a) not using it in commerce, and (b) even if they are, it's nominative fair use.
Submitter here. I forgot to mention in the summary he's also the lawyer for FunnyJunk.
You got this part wrong, though: "Charles Carreon curiously fails to mention that he first incited all of his users to harass The Oatmeal anyway they can which they dutifully did."
He's FunnyJunk's lawyer, not FunnyJunk's owner. Carreon has no users.
Thomas was using Kazaa which, at the time, had sharing turned on by default. She may not have even known she was sharing.
Having shown that she was sharing, the burden of proof falls on her to then prove that she had no knowledge of it.
Also her hard drive crashed and was replaced before she was ever notified by the RIAA that she was accused of anything,
On the contrary, it was two weeks after she was notified. And while she told her own attorney and expert that the drive had been replaced in 2004, it had a manufacturing sticker from 2005. And she also admitted on the stand that she lied under oath and provided a replacement hard drive to the RIAA. So, no.
so there's no actual proof that she even had copies of any of the music in question.
On the contrary, Media Sentry downloaded copies from her. Therefore she had the copies to upload, no? The burden of proof falls on her to show how she could have uploaded a copy to Media Sentry that she never had.
There's also no proof that anyone other than the RIAA ever downloaded a copy and they may not have actually downloaded one either, but just saw it listed on Kazaa.
Nope, Media Sentry downloaded an actual copy, not just the directory TOC.
The RIAA has never proven anything.
All of your factual assertions are provably incorrect. The RIAA proved infringement to be more likely than not, and the jury agreed. Thomas never proved that she didn't infringe, and in fact, this appeal is solely about damages, not liability.
The 8th Circuit is bound by New York Times v. Tasini, which held that placing a work in a database for public download was distribution
Oh so this is a slam dunk then. You must be very pleased.
Not at all, despite what you may think. I'm quite disappointed that neither either party nor the judge have looked at the willfulness issue, but are instead focusing on arguments that are already settled and, with our current pro-corporate SCOTUS, could not be overturned.
It does fly in the face of legal principles unless those subsequent sharers are off the hook since the damages have already been taken care of. You don't get to collect damages over and over again.
They are - though they are not "innocent" as some have suggested. Rather, they're indemnified due to the fact that Thomas has (or will have?) paid the damages in full. Prior to that, they are both joint and severally liable.
MediaSentry doesn't count and self serving assumptions aren't good enough.
Why doesn't MediaSentry count?
The RIAA is supposed to be proving something.
Yes, damages. Not whether she infringed. Thomas already admitted to infringement.
On the other hand, there should be some record of what her download ratio actually was. There should be no reason to guess it. Without that information, all she ever did was to "make something available".
Yes, but unfortunately for Thomas, she destroyed the hard drive that would show that actual ratio and potentially rebut MediaSentry's records and testimony. She also lied about its existence, so she's not really going to do well without any proof.
Nope. That is an artificial distinction crafted to fit the terminology of copyright law. The copyright holder can legally control distribution, so to be a copyright violation the accused must be distributing - i.e. uploading. The RIAA plays it up for all its worth because that's the only legal leg they have to stand on.
You seem to forget that "copying" is also a copyright.
If a million people share a song, by definition there are 1 million downloads, and 1 million uploads. On average each filesharer is responsible for one upload.
Actually, the last person to download, by definition, would not be uploading, and so therefore each other file sharer must - on average - be responsible for more than one upload.
Plus, this ignores the existence of leechers. And we know leechers exist, because there was specific testimony from a leecher in this case - MediaSentry. Once you acknowledge that, then the average number of uploads from each seeder is higher by definition.
Put another way, say Thomas shared the song with 100,000 other people. The RIAA's current legal theory is that she is responsible for those 100,000 uploads. So they sue her, win, and somehow extract damages from her. By their argument, the other 100,000 filesharers are innocent of any wrongdoing.
Not so. You've missed joint and several liability. It's possible for someone to sue both the uploader and the downloader and claim that they are entitled to X in damages, with the uploader and downloader figuring out who pays what between them. Now, if the uploader pays everything, they can't collect more from the downloader... but that just means they've collected all their damages, not that the downloader is innocent - rather, they are indemnified.
They caught the one person responsible for uploading the song to those 100,000 other people who downloaded the song. Since the guilty party in those 100,000 uploads has been convicted and punished, there is no further crime. Those 100,000 other file sharers are free and clear.
Additionally, this also ignores copying as infringement.
So which will it be? Each file sharer is responsible for one upload? Or one filesharer is responsible for all uploads and everyone else is innocent? You can't have it both ways, where among 100,001 filesharers, each and every sharer is responsible for the crimes of the other 100,000. This incidentally is why their damage figures are so unrealistic. If a $1 song is shared n times, damage should be $1*n. But the way they're calculating it, it works out to $1*n*(n-1), which quickly exceeds the GDP of the world. n is the number of filesharers, and (n-1) is the number of people they uploaded to.
Fortunately, they don't use those damage figures in court. They use the figures Congress came up with, so any complaints about RIAA's questionable math are irrelevant unless we're talking about propaganda.
And the courts ruled that making available is not distribution.
Correction: the lower court ruled that making available is not distribution.
Correction. THIS court, in a previous case not involving RIAA mp3 files, ruled that making available is not distribution. Which is why Judge Davis ruled that making available is not distribution.
I assume you're talking about National Car Rental System v. Computer Associates? MP3s aside, I'm not sure that would apply anyway. As the court noted:
CA does not specifically allege that National gave a copy of the program to Lend Lease or Tilden. CA alleges that "National has used and permitted the use of the Licensed Programs for the processing of data for the benefit of third parties." CA did not allege use by Lend Lease and Tilden, but instead alleged use for their benefit.
This wasn't about "making available for distribution" at all, but whether using a program for a third party to process their data counts as distribution (in fact, the term "making available" doesn't appear at all in that decision).
The classic analogy is the video rental store. Thomas' argument is that if the store makes a bootleg copy and places it on the shelf, they have not yet distributed it but merely "made it available," and thus cannot be held to infringe.
To apply that analogy to National v. CA, it would be a video store that lets you pay an employee to watch a movie and then give you a review - in other words "distributing the functionality" but not the copy. But that's not what Thomas did, but rather the former - excepting her actual distribution to MediaSentry, she made the work available for copy, and not the mere functionality of the work.
And finally, National aside, the 8th Circuit is bound by New York Times v. Tasini, which held that placing a work in a database for public download was distribution.
If hundreds of thousands of dollars in fines for what would no more than grand theft in most states is not "cruel and unusual" WRT fines
These aren't fines. These are compensatory damages. And for better or for worse, that's how the courts have been responding to the argument that the statutory damages range is cruel and unusual punishment. The precedents that Thomas is citing all have to do with punishment and punitive damages, but they simply don't apply to this statute... except with regards to willful infringement increasing the range, but Thomas isn't arguing against the willfulness part of the range. In fact, her reply brief explicitly argues that there's a single range for damages. I think that's a huge mistake.
How bout they make Thomas pay 5 times that 33 % of her gross sales !!.. That'll learn her !
Since she doesn't have an established track record in the industry, they'd probably set a minimum, as I suggested. So yes, make Thomas pay $15k for each of the songs she wanted to distribute as an advance on that 33% of her gross sales.
So no one in a swarm ever uploads more than a single copy? Kazaa would disable uploading once it uploaded a full copy of a work? I don't remember it working that way.
No, that is why I said on average. But there's no proof Thomas-Rasset was above average, in fact they have no proof she actually uploaded anything at all only that that the files were made available.
Not so - MediaSentry downloaded from Thomas, and recorded it. There's plenty of proof that she uploaded.
Hence the "making available = distribution" issue, which was dropped.
Again, not so. Capitol is still arguing that issue (it makes the higher damages much more reasonable) and it's one of the primary issues on appeal. In her reply brief, Thomas waived that issue, saying it's moot... but it certainly hasn't been dropped.
I was just pointing out that even so the average peer in the swarm does not net contribute any upload bandwidth because it consumed just as much downloading as it provides uploading.
Only if no leechers exist. If even a single leecher exists, then the average non-leecher peer in the swarm must contribute more upload bandwidth than it consumed downloading, by definition. And we know a leecher exists - MediaSentry.
But it's rather naive, and flawed, of the GP to think that anybody publicly offering files on a P2P network, and getting downloads from them, only uploaded once by definition.
Agreed, though I believe his argument was that if there are 20,000 complete downloads of a particular track, there must have been 20,000 complete uploads (split across any number, as you note), so therefore it's an average of 1:1. It has the flaw you note, and an additional one: it assumes no leechers. If 10,000 people leeched, then the ratio suddenly becomes at least2:1 for the seeders, averaged out. Even a single leecher puts the average above 1:1.
No, but a 1:1 ratio is by definition average. Absent further, reliable data, that is what the safest assumption is.
Ah, but we have reliable data. MediaSentry downloaded files from Thomas. Thus, there's no need to rely on an "average" assumption.
Plus, your average assumption is averaged across both seeders and leechers. Therefore, by definition, it's not an average of typical distributors. Accordingly, it's not even reliable data for the proposition you're advancing - that a typical distributor only distributes once. In fact, since leechers exist, it means that the average upload/download ratio for distributors must be greater than 1:1.
"that'll be 33% of gross sales, with a minimum of $15k for any work per year since you don't have an established track record,
That number would be nonsense. Apple has about 20 million songs. 20 million times $15k = 300 billion dollars. And they sold a total of about 19 billion songs (estimated from Wikipedia date for 10 billion and 15 billion sold). So that would be about $16 per song sold.
... I'm not sure you understood the words I typed. Let me help. When I said "minimum of $15k for any work per year since you don't have an established track record," I meant that something like a minimum amount due would be required for people who don't have an established track record. Apple, as you note, has an established track record. Therefore, that clause wouldn't apply.
Does this make more sense now? Apple sells $19 billion songs, so they'd pay $8.3 billion in royalties.
But there _are_ comparable contracts. UK newspapers have been giving away CDs full of music for free for quite a while. It would be interesting what lets say The Sun paid for the rights to give away a CD with 20 number one hits for free with every copy of their newspaper. I bet they didn't pay 20 times $150,000.
In the case of the Sun, the record companies are also getting access to the Sun's wide subscriber network and (albeit questionable) reputation - again, they're an "established" player. While interesting, such a license agreement wouldn't be applicable to the brand new "Bob's Online Record Store", which lacks any market branding, subscribers, advertising power, etc.
That's the distinction... If Thomas was only a leecher and never uploaded copies, then she could make a reasonable argument about $1. But once she distributed, then she's into the "reasonable royalties and license fees" range.
Not really, in a P2P swarm there's obviously one upload for every download. So by downloading she consumed an upload from another peer and by uploading back herself to a 1.0 ratio - which will be the average - the swarm is only returned to the neutral position.
So no one in a swarm ever uploads more than a single copy? Kazaa would disable uploading once it uploaded a full copy of a work? I don't remember it working that way.
Though most don't provide anything like as many copies as a store.
Sure, but do you think Capitol Records would charge only a few bucks to a tiny music store that's only going to sell a dozen copies? No... In fact, just the accounting is such a hassle, that that's why they'd put on the minimum annual payment amounts.
the problem is that the logic they follow isn't that you're responsible for the dozen or so copies people download from you but also for every download that every person makes from each of those dozen people and for each of the people who download from from each of those and for each of the people who download from each of those.
As it were, if you throw a rock and break a window you aren't liable for the actions of the 10000 other people who walk past, see 1 or more broken windows and throw a rock themselves.
Except that that's the logic in the statute. It doesn't require the infringer to be the sole distributor, or require the infringer to pay damages based on how many people they distributed to. Maybe there's a better way of doing the statute, but if it's a flaw in logic or practice, that's for Congress to decide, not the courts. The courts can only weigh in if it's unconstitutional.
And the courts ruled that making available is not distribution.
Correction: the lower court ruled that making available is not distribution. That issue is on appeal, and Thomas has decided not to argue it, instead saying that the Appeals court should refuse to consider it, and decide that it's moot in view of her waiver.
The problem is, it's still an issue as it relates to the Constitutionality of damages. So now, the judges have one side arguing that it should be distribution, and the other side providing no argument whatsoever. That's not a great strategy.
Was this the one where the defendant through their family under the bus or the one where the defendant's lawyer was a moron and pissed off the judge?
RIAA did a great job at picking people to actually take to court.
Family one. Though, interestingly enough, Thomas' lawyer, Kiwi Camera, was a student of Tenenbaum's lawyer, Charles Neeson. The two have a long and storied history - Camera famously posted his law school outlines online, said outlines containing tons of racial epithets. When the Harvard Law student body was outraged, then-Professor Neeson held a "mock trial" defending Camera on 1st Amendment grounds... which led to Neeson resigning from teaching the class.
A lot of the numbers, arguments, evidence etc. don't make a jot of sense to us. It's all pie-in-the-sky hyperbole and backwards Hollywood accounting, where a song which makes $0.99 per sale from a retailer is worth $150,000 if downloaded and shared.
You're the lawyer; You tell us!
Imagine you wanted to start an online music store, a la iTunes. You would contact Capitol Records* and ask for a license to sell and distribute thousands of copies of their music. Do you think they'd say "sure, no problem. That'll be $1"? Or would they say "that'll be 33% of gross sales, with a minimum of $15k for any work per year since you don't have an established track record, and a minimum of $50k for any song in the top-40, plus we want an escrow payment in advance, plus, etc. etc. etc."? Do you think Apple paid $1 per song to the record companies and never again paid a dime, regardless of how many copies they distributed?
That's the distinction... If Thomas was only a leecher and never uploaded copies, then she could make a reasonable argument about $1. But once she distributed, then she's into the "reasonable royalties and license fees" range.
And finally, the $150k for willful infringement shouldn't apply, because "willfulness" in this context means something different than "intentional". But Capitol Records sure as hell isn't going to raise that, and Thomas failed to also (reasonably, because arguing that $750-$30k is a better range still leaves her on the hook for more than she can afford). But we should be talking about reasonable royalties for distribution in a range of $750-$30k per song.
*Of course you wouldn't... You'd only distribute self-published tracks from indie hipster bands.;)
For better or for worse, Thomas waived the "making available = distribution" argument, and argued only the Constitutionality of statutory damages in a case with an argument for no actual damages... But by basically stipulating to distribution, she no longer can make the argument that this is just about a single download, the "noncommercial individual file sharing at issue in this case."
Additionally, the argument seems to not be focused on the statutory range at all - which is a mistake when they're arguing about the Constitutionality of the statute. Rather, on page 5, Thomas notes that the damages could be as low as one song times the minimum, or dozens of songs times the maximum, and then compares this to a range of "$50 to $10,000,000"... But that's not the range in the statute. Instead, at best, it's an argument that dozens of instances of infringement of independent works should be treated only as infringement of a single work, and I can't see the court deciding that Congress lacked a legitimate reason for not writing the statute that way.
Also, from her brief: "If the recording companies are correct, then they are claiming that Congress considered and approved damages ranging from one song times the minimum ($250) to thousands of songs times the maximum (hundreds of millions of dollars or more)." That's just sloppy. Either he means $750 or he means $200, but which is not clear.
Increased cost? Yes... Inconvenience? How, other than a larger cost?
Your gun is stolen and used in a crime. Your car is stolen and used in a crime. The cops come looking for you.
When selling your gun to someone else, add on the cost and time of changing the micro-code registration. When selling your car to someone else, add on the cost and time of changing the title registration.
When the paperwork for a legal sale gets lost, and the buyer uses the gun in a crime, police come looking for you. When the paperwork for a legal sale gets lost, and the buyer uses the car in a crime, police come looking for you
When the paperwork is lost, and the new owner has his gun stolen and used in a crime, the cops come looking for you, then you finger the buyer, so double the fun and double the inconvenience for twice as many people. When the paperwork is lost, and the new owner has his car stolen and used in a crime, the cops come looking for you, then you finger the buyer, so double the fun and double the inconvenience for twice as many people.
When your "helpful" "friend" helps you police your brass at the shooting range and then drops a few casings at his next shooting, he's effectively framed you. When your "helpful" "friend" helps you wash your car and then mentions seeing your license plate no. and description at the scene of a crime, he's effectively framed you.
When the market for old guns explodes and it becomes harder and more expensive to buy one, it both costs money and time. When the market for old cars explodes and it becomes harder and more expensive to buy one, it both costs money and time.
If you are trying to repair your gun, having to buy a new registered firing pin instead of someone's cheaper and readily available used one. If you are trying to repair your car, having to buy a new catalytic converter instead of someone's grandfathered, cheaper and readily available used one.
In the case of drive-by shootings in the gang areas of town, by the time the gunshots call is made to 911, the gang detectives already know who the culprits are and are ready to round them up because... well, these cops know their "clientele" pretty well from past repeat offenses.
Translation: "We don't know - or care - if the suspects actually fired the gun. We know they're guilty because they're black, poor, live in a bad part of town, and we've previously arrested them for being black, poor, and living in a bad part of town, but have had witnesses not pick them out of a line up. They're our 'usual suspects' and they will be until we manage to convince a witness to identify them."
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I think you talk in circles.
With all due respect, I think that in your outrage, you failed to read my entire comment:
So - you argue that I may own a weapon, but I may not use it? Huh? WTF?
On the contrary. Please refer to my comment, where I said:
the 2nd Amendment is about the right of the people to keep arms as a deterrent to a tyrannical government. It says nothing about using them, or using them against criminals. The latter right is more properly found in the 5th Amendment.
My point is that the 2nd Amendment does not give you a right to use a gun, but rather that the 5th may, or potentially the 10th.
Your other circular logic thing, about the government? You say that people should own weapons, to keep government in check. But, to use those weapons would be treason?
Well, duh. If you go shoot a Senator, you're going to jail, even if you claim you were doing it to prevent tyranny.
Hmmm - I may own a weapon, in the hope that ownership will keep my politicians honest. But, if the dishonest bastards come knocking on my door, about all I can do with the weapon, is to offer it to them as a down payment on the extortion they are looking for.
Or, O Naive One, you can start a revolution. Do you really think that the Colonists were acting legally under British law when they shot British troops, declared independence, threw out the Governor, etc.? If they were caught, the King would have hanged each and every one of them, and he would have done so legally under British law. That's kind of the point - they're saying that they reject British law.
So for you to be all, "wtf, ur an idiot for saying it's illegal to overthrow the government" makes you look incredibly stupid
The scrolling drives me nuts. I HATE physics emulated scrolling. A simple friction slowdown is far more controllable and intuitive TO ME.
Friction not being part of physics?
I can't even begin to think of a legal argument for why they should sue the ACS in this context, and even if they had a marginally plausible argument that didn't immediately invite Rule 11 sanctions ahref=http://en.wikipedia.org/wiki/Rule_11%23Chapter_III_-_Pleadings_and_Motionsrel=url2html-23882http://en.wikipedia.org/wiki/Rule_11#Chapter_III_-_Pleadings_and_Motions>...
Oh, he does. Specifically, there's a California law that says that donation collection agencies that are collecting on behalf of the charity have to be registered, and if they don't, the charity can shut down the collection agency (this is to prevent "uh, yeah, I'm collecting on behalf of... the veterans. Uh, all of them. The American Veterans Association or something. Just give me your cash"). IndieGogo didn't register with the ACS, and so the ACS has a legal right to shut them down... He's suing the ACS to force them to exercise that legal right. But other than that, they're not involved. They won't pay any damages, they probably won't even bother showing up to court, particularly because before it ever gets to them having to shut down IndieGogo, first Carreron has to show that IndieGogo was acting fraudulently with the alleged donation collection really just being a cover for inciting the public to attack him. And that's unlikely to happen.
any sane lawyer would say that this would just be a bad idea.
... well, yeah.
Has anyone done this? Now that I think of it, actually he could, couldn't he? I don't think it would be illegal to encourage other people to take that action.
Actually, that's the only one that would be legitimate*... Intentionally inducing infringement creates liability.
*But there's no evidence that Inman did induce anyone**.
**Plus, he's claiming his name is the trademark, but people using his name are (a) not using it in commerce, and (b) even if they are, it's nominative fair use.
Submitter here. I forgot to mention in the summary he's also the lawyer for FunnyJunk.
You got this part wrong, though: "Charles Carreon curiously fails to mention that he first incited all of his users to harass The Oatmeal anyway they can which they dutifully did."
He's FunnyJunk's lawyer, not FunnyJunk's owner. Carreon has no users.
Thomas was using Kazaa which, at the time, had sharing turned on by default. She may not have even known she was sharing.
Having shown that she was sharing, the burden of proof falls on her to then prove that she had no knowledge of it.
Also her hard drive crashed and was replaced before she was ever notified by the RIAA that she was accused of anything,
On the contrary, it was two weeks after she was notified. And while she told her own attorney and expert that the drive had been replaced in 2004, it had a manufacturing sticker from 2005. And she also admitted on the stand that she lied under oath and provided a replacement hard drive to the RIAA. So, no.
so there's no actual proof that she even had copies of any of the music in question.
On the contrary, Media Sentry downloaded copies from her. Therefore she had the copies to upload, no? The burden of proof falls on her to show how she could have uploaded a copy to Media Sentry that she never had.
There's also no proof that anyone other than the RIAA ever downloaded a copy and they may not have actually downloaded one either, but just saw it listed on Kazaa.
Nope, Media Sentry downloaded an actual copy, not just the directory TOC.
The RIAA has never proven anything.
All of your factual assertions are provably incorrect. The RIAA proved infringement to be more likely than not, and the jury agreed. Thomas never proved that she didn't infringe, and in fact, this appeal is solely about damages, not liability.
The 8th Circuit is bound by New York Times v. Tasini, which held that placing a work in a database for public download was distribution
Oh so this is a slam dunk then. You must be very pleased.
Not at all, despite what you may think. I'm quite disappointed that neither either party nor the judge have looked at the willfulness issue, but are instead focusing on arguments that are already settled and, with our current pro-corporate SCOTUS, could not be overturned.
It does fly in the face of legal principles unless those subsequent sharers are off the hook since the damages have already been taken care of. You don't get to collect damages over and over again.
They are - though they are not "innocent" as some have suggested. Rather, they're indemnified due to the fact that Thomas has (or will have?) paid the damages in full. Prior to that, they are both joint and severally liable.
That's not reliable data.
...
MediaSentry doesn't count and self serving assumptions aren't good enough.
Why doesn't MediaSentry count?
The RIAA is supposed to be proving something.
Yes, damages. Not whether she infringed. Thomas already admitted to infringement.
On the other hand, there should be some record of what her download ratio actually was. There should be no reason to guess it. Without that information, all she ever did was to "make something available".
Yes, but unfortunately for Thomas, she destroyed the hard drive that would show that actual ratio and potentially rebut MediaSentry's records and testimony. She also lied about its existence, so she's not really going to do well without any proof.
Nope. That is an artificial distinction crafted to fit the terminology of copyright law. The copyright holder can legally control distribution, so to be a copyright violation the accused must be distributing - i.e. uploading. The RIAA plays it up for all its worth because that's the only legal leg they have to stand on.
You seem to forget that "copying" is also a copyright.
If a million people share a song, by definition there are 1 million downloads, and 1 million uploads. On average each filesharer is responsible for one upload.
Actually, the last person to download, by definition, would not be uploading, and so therefore each other file sharer must - on average - be responsible for more than one upload.
Plus, this ignores the existence of leechers. And we know leechers exist, because there was specific testimony from a leecher in this case - MediaSentry. Once you acknowledge that, then the average number of uploads from each seeder is higher by definition.
Put another way, say Thomas shared the song with 100,000 other people. The RIAA's current legal theory is that she is responsible for those 100,000 uploads. So they sue her, win, and somehow extract damages from her. By their argument, the other 100,000 filesharers are innocent of any wrongdoing.
Not so. You've missed joint and several liability. It's possible for someone to sue both the uploader and the downloader and claim that they are entitled to X in damages, with the uploader and downloader figuring out who pays what between them. Now, if the uploader pays everything, they can't collect more from the downloader... but that just means they've collected all their damages, not that the downloader is innocent - rather, they are indemnified.
They caught the one person responsible for uploading the song to those 100,000 other people who downloaded the song. Since the guilty party in those 100,000 uploads has been convicted and punished, there is no further crime. Those 100,000 other file sharers are free and clear.
Additionally, this also ignores copying as infringement.
So which will it be? Each file sharer is responsible for one upload? Or one filesharer is responsible for all uploads and everyone else is innocent? You can't have it both ways, where among 100,001 filesharers, each and every sharer is responsible for the crimes of the other 100,000. This incidentally is why their damage figures are so unrealistic. If a $1 song is shared n times, damage should be $1*n. But the way they're calculating it, it works out to $1*n*(n-1), which quickly exceeds the GDP of the world. n is the number of filesharers, and (n-1) is the number of people they uploaded to.
Fortunately, they don't use those damage figures in court. They use the figures Congress came up with, so any complaints about RIAA's questionable math are irrelevant unless we're talking about propaganda.
And the courts ruled that making available is not distribution.
Correction: the lower court ruled that making available is not distribution.
Correction. THIS court, in a previous case not involving RIAA mp3 files, ruled that making available is not distribution. Which is why Judge Davis ruled that making available is not distribution.
I assume you're talking about National Car Rental System v. Computer Associates? MP3s aside, I'm not sure that would apply anyway. As the court noted:
CA does not specifically allege that National gave a copy of the program to Lend Lease or Tilden. CA alleges that "National has used and permitted the use of the Licensed Programs for the processing of data for the benefit of third parties." CA did not allege use by Lend Lease and Tilden, but instead alleged use for their benefit.
This wasn't about "making available for distribution" at all, but whether using a program for a third party to process their data counts as distribution (in fact, the term "making available" doesn't appear at all in that decision).
The classic analogy is the video rental store. Thomas' argument is that if the store makes a bootleg copy and places it on the shelf, they have not yet distributed it but merely "made it available," and thus cannot be held to infringe.
To apply that analogy to National v. CA, it would be a video store that lets you pay an employee to watch a movie and then give you a review - in other words "distributing the functionality" but not the copy. But that's not what Thomas did, but rather the former - excepting her actual distribution to MediaSentry, she made the work available for copy, and not the mere functionality of the work.
And finally, National aside, the 8th Circuit is bound by New York Times v. Tasini, which held that placing a work in a database for public download was distribution.
If hundreds of thousands of dollars in fines for what would no more than grand theft in most states is not "cruel and unusual" WRT fines
These aren't fines. These are compensatory damages. And for better or for worse, that's how the courts have been responding to the argument that the statutory damages range is cruel and unusual punishment. The precedents that Thomas is citing all have to do with punishment and punitive damages, but they simply don't apply to this statute... except with regards to willful infringement increasing the range, but Thomas isn't arguing against the willfulness part of the range. In fact, her reply brief explicitly argues that there's a single range for damages. I think that's a huge mistake.
How bout they make Thomas pay 5 times that 33 % of her gross sales !!.. That'll learn her !
Since she doesn't have an established track record in the industry, they'd probably set a minimum, as I suggested. So yes, make Thomas pay $15k for each of the songs she wanted to distribute as an advance on that 33% of her gross sales.
So no one in a swarm ever uploads more than a single copy? Kazaa would disable uploading once it uploaded a full copy of a work? I don't remember it working that way.
No, that is why I said on average. But there's no proof Thomas-Rasset was above average, in fact they have no proof she actually uploaded anything at all only that that the files were made available.
Not so - MediaSentry downloaded from Thomas, and recorded it. There's plenty of proof that she uploaded.
Hence the "making available = distribution" issue, which was dropped.
Again, not so. Capitol is still arguing that issue (it makes the higher damages much more reasonable) and it's one of the primary issues on appeal. In her reply brief, Thomas waived that issue, saying it's moot... but it certainly hasn't been dropped.
I was just pointing out that even so the average peer in the swarm does not net contribute any upload bandwidth because it consumed just as much downloading as it provides uploading.
Only if no leechers exist. If even a single leecher exists, then the average non-leecher peer in the swarm must contribute more upload bandwidth than it consumed downloading, by definition. And we know a leecher exists - MediaSentry.
But it's rather naive, and flawed, of the GP to think that anybody publicly offering files on a P2P network, and getting downloads from them, only uploaded once by definition.
Agreed, though I believe his argument was that if there are 20,000 complete downloads of a particular track, there must have been 20,000 complete uploads (split across any number, as you note), so therefore it's an average of 1:1. It has the flaw you note, and an additional one: it assumes no leechers. If 10,000 people leeched, then the ratio suddenly becomes at least2:1 for the seeders, averaged out. Even a single leecher puts the average above 1:1.
No, but a 1:1 ratio is by definition average. Absent further, reliable data, that is what the safest assumption is.
Ah, but we have reliable data. MediaSentry downloaded files from Thomas. Thus, there's no need to rely on an "average" assumption.
Plus, your average assumption is averaged across both seeders and leechers. Therefore, by definition, it's not an average of typical distributors. Accordingly, it's not even reliable data for the proposition you're advancing - that a typical distributor only distributes once. In fact, since leechers exist, it means that the average upload/download ratio for distributors must be greater than 1:1.
"that'll be 33% of gross sales, with a minimum of $15k for any work per year since you don't have an established track record,
That number would be nonsense. Apple has about 20 million songs. 20 million times $15k = 300 billion dollars. And they sold a total of about 19 billion songs (estimated from Wikipedia date for 10 billion and 15 billion sold). So that would be about $16 per song sold.
... I'm not sure you understood the words I typed. Let me help. When I said "minimum of $15k for any work per year since you don't have an established track record," I meant that something like a minimum amount due would be required for people who don't have an established track record. Apple, as you note, has an established track record. Therefore, that clause wouldn't apply.
Does this make more sense now? Apple sells $19 billion songs, so they'd pay $8.3 billion in royalties.
But there _are_ comparable contracts. UK newspapers have been giving away CDs full of music for free for quite a while. It would be interesting what lets say The Sun paid for the rights to give away a CD with 20 number one hits for free with every copy of their newspaper. I bet they didn't pay 20 times $150,000.
In the case of the Sun, the record companies are also getting access to the Sun's wide subscriber network and (albeit questionable) reputation - again, they're an "established" player. While interesting, such a license agreement wouldn't be applicable to the brand new "Bob's Online Record Store", which lacks any market branding, subscribers, advertising power, etc.
That's the distinction... If Thomas was only a leecher and never uploaded copies, then she could make a reasonable argument about $1. But once she distributed, then she's into the "reasonable royalties and license fees" range.
Not really, in a P2P swarm there's obviously one upload for every download. So by downloading she consumed an upload from another peer and by uploading back herself to a 1.0 ratio - which will be the average - the swarm is only returned to the neutral position.
So no one in a swarm ever uploads more than a single copy? Kazaa would disable uploading once it uploaded a full copy of a work? I don't remember it working that way.
Though most don't provide anything like as many copies as a store.
Sure, but do you think Capitol Records would charge only a few bucks to a tiny music store that's only going to sell a dozen copies? No... In fact, just the accounting is such a hassle, that that's why they'd put on the minimum annual payment amounts.
the problem is that the logic they follow isn't that you're responsible for the dozen or so copies people download from you but also for every download that every person makes from each of those dozen people and for each of the people who download from from each of those and for each of the people who download from each of those.
As it were, if you throw a rock and break a window you aren't liable for the actions of the 10000 other people who walk past, see 1 or more broken windows and throw a rock themselves.
Except that that's the logic in the statute. It doesn't require the infringer to be the sole distributor, or require the infringer to pay damages based on how many people they distributed to. Maybe there's a better way of doing the statute, but if it's a flaw in logic or practice, that's for Congress to decide, not the courts. The courts can only weigh in if it's unconstitutional.
And the courts ruled that making available is not distribution.
Correction: the lower court ruled that making available is not distribution. That issue is on appeal, and Thomas has decided not to argue it, instead saying that the Appeals court should refuse to consider it, and decide that it's moot in view of her waiver.
The problem is, it's still an issue as it relates to the Constitutionality of damages. So now, the judges have one side arguing that it should be distribution, and the other side providing no argument whatsoever. That's not a great strategy.
Was this the one where the defendant through their family under the bus or the one where the defendant's lawyer was a moron and pissed off the judge?
RIAA did a great job at picking people to actually take to court.
Family one. Though, interestingly enough, Thomas' lawyer, Kiwi Camera, was a student of Tenenbaum's lawyer, Charles Neeson. The two have a long and storied history - Camera famously posted his law school outlines online, said outlines containing tons of racial epithets. When the Harvard Law student body was outraged, then-Professor Neeson held a "mock trial" defending Camera on 1st Amendment grounds... which led to Neeson resigning from teaching the class.
A lot of the numbers, arguments, evidence etc. don't make a jot of sense to us. It's all pie-in-the-sky hyperbole and backwards Hollywood accounting, where a song which makes $0.99 per sale from a retailer is worth $150,000 if downloaded and shared.
You're the lawyer; You tell us!
Imagine you wanted to start an online music store, a la iTunes. You would contact Capitol Records* and ask for a license to sell and distribute thousands of copies of their music. Do you think they'd say "sure, no problem. That'll be $1"? Or would they say "that'll be 33% of gross sales, with a minimum of $15k for any work per year since you don't have an established track record, and a minimum of $50k for any song in the top-40, plus we want an escrow payment in advance, plus, etc. etc. etc."? Do you think Apple paid $1 per song to the record companies and never again paid a dime, regardless of how many copies they distributed?
That's the distinction... If Thomas was only a leecher and never uploaded copies, then she could make a reasonable argument about $1. But once she distributed, then she's into the "reasonable royalties and license fees" range.
And finally, the $150k for willful infringement shouldn't apply, because "willfulness" in this context means something different than "intentional". But Capitol Records sure as hell isn't going to raise that, and Thomas failed to also (reasonably, because arguing that $750-$30k is a better range still leaves her on the hook for more than she can afford). But we should be talking about reasonable royalties for distribution in a range of $750-$30k per song.
*Of course you wouldn't... You'd only distribute self-published tracks from indie hipster bands. ;)
Additionally, the argument seems to not be focused on the statutory range at all - which is a mistake when they're arguing about the Constitutionality of the statute. Rather, on page 5, Thomas notes that the damages could be as low as one song times the minimum, or dozens of songs times the maximum, and then compares this to a range of "$50 to $10,000,000"... But that's not the range in the statute. Instead, at best, it's an argument that dozens of instances of infringement of independent works should be treated only as infringement of a single work, and I can't see the court deciding that Congress lacked a legitimate reason for not writing the statute that way.
Also, from her brief: "If the recording companies are correct, then they are claiming that Congress considered and approved damages ranging from one song times the minimum ($250) to thousands of songs times the maximum (hundreds of millions of dollars or more)." That's just sloppy. Either he means $750 or he means $200, but which is not clear.
Increased cost? Yes... Inconvenience? How, other than a larger cost?
In the case of drive-by shootings in the gang areas of town, by the time the gunshots call is made to 911, the gang detectives already know who the culprits are and are ready to round them up because... well, these cops know their "clientele" pretty well from past repeat offenses.
Translation: "We don't know - or care - if the suspects actually fired the gun. We know they're guilty because they're black, poor, live in a bad part of town, and we've previously arrested them for being black, poor, and living in a bad part of town, but have had witnesses not pick them out of a line up. They're our 'usual suspects' and they will be until we manage to convince a witness to identify them."