Reading the judge's decision, he blames most of the court costs on the fact that the Lindors may have had a houseguest in 2004, and that she sold her computers sometime between 2004 and 2008, which was a loss of evidence for the RIAA. If they had disclosed their houseguest then a lot of this could have been averted, according to the judge. Talk about overcompensation for a small discrepancy, you effectively ruin a family because they didn't disclose a houseguest they had for an unknown amount of time. I am not a lawyer, but that seems like a pretty large case of overkill.
The judge's decision seems to be based entirely upon his having accepted as gospel the first version of Ms. Yanick Raymond-Wright's testimony, and totally ignored the second version contained in her errata sheet. At her deposition she testified that she spent a considerable amount of time at Ms. Lindor's house during the Summer of 2004. Thereafter, Ms. Raymond-Wright consulted her records and realized that she was in school in the Summer of 2004, so that it was another Summer, not the Summer of 2004. The trier of fact, at the trial, would have been permitted to determine which of the two versions to accept. Judge Trager was not the trier of fact, since this was a jury case. So the judge -- without even observing the demeanor of witnesses -- made a decision which it was beyond his authority to make.
if its not considered terribly bad form, i wonder if Mr. Beckerman wouldnt mind telling us the ballpark figure this case cost Mrs Lindor. Or failing that, just the total number of billable hours and a general idea of other costs, monitary or opportunity, that she incurred.
If only for a sense of proportion.
Suffice it to say, it was a terrible hardship on Ms. Lindor and her entire family.
It doesn't necessarily matter what they earned. Remember, the subject here is damages to the copyright holders. So the real issue would be their net (not gross) on the royalties paid. That is a far smaller amount than the retail price.
I betcha that if Thomas-Rasset would agree to a private, sealed settlement for a dollar, the RIAA would jump on it. They simply do not want this decision to stand.
If the case is settled, then this decision will stand. This decision stands for the proposition that even in a case where the plaintiff wilfully infringed, and even lied under oath at the trial, the maximum possible recovery is $2250 per infringed work.
So - in a trial limited to "the issue of the appropriate amount of statutory damages", what really is discussed during the trial?
Well, there was no proof of a distribution, so I would imagine the key issues would be, for each of the 24 songs:
-what was the wholesale price of an authorized download? -what would the expenses have been? and -what percentage of unauthorized downloads represent lost sales.
I.e. if the mp3 download of a particular song would have sold for an average wholesale price of 71 cents, the royalties would have been 31 cents and the fixed expenses 5 cents, and for every 5 unauthorized downloads there would have been 1 lost sale, I would compute the actual damages as follows: 71 cents minus 36 cents = lost profit of 35 cents 20% x 35 cents = 7 cents actual damages.
Under Supreme Court deadlines, any award of statutory damages exceeding 28 cents for that recording would be suspect, and any award exceeding 63 cents would be presumptively invalid.
I'd also like to add that I am extremely thankful that NewYorkCountRyLawyer is providing us all with insight into these cases. I would only hope that as a domain expert Congress and the Senate would look at him for advise in balancing the rights of consumers, rather than solely looking to RIAA stooges.
Well I didn't throw them any parties or inauguration balls, so I probably won't get that call.
There's a big difference between "He told me to do this" and "He gave me information and I decided to do this."
Considering how tight-lipped the legal profession is (presumably due to fears over the blurry distinction between legal advice and legal knowledge) I'm very appreciative of Mr. Beckerman's efforts. Most lawyers wouldn't even bother.
Correct. As mentioned in my bio, what I do here is not legal advice. Legal advice is where someone tells me their situation, I ask some questions, and give them some advice. Here I just discuss legal topics and litigation events... i.e. report on what is going on. I wouldn't know how to give someone advice without first establishing a one-on-one relationship.
The attacks on Ray Beckerman are more than a little unfair, given his solid record over the years here on Slashdot. He's given a lot of free legal advice here over the years, and personally, I appreciate him. For the record, Blogspot.com is owned by Google, and I wouldn't be surprised to find that the ads are crammed in there by Google to help pay for the service. The insinuation here (and in other replies immediately following) that he simply posts here to drive people to an "ad-laden" site is more than unfair.
I, for one, appreciate his updates on these very important cases. If you disagree with Ray's take on requests for extension, that's certainly your right (and I disagree with you, by the way; I think it's very significant in this case, given the circumstances).
Thank you. I appreciate that. The reality is that I make almost no money from advertising. I just spend so much time blogging and microblogging that I figure if I could make a few bucks to offset some of that time it would be helpful. Hasn't really worked out, however.
I was doing moderation - but I must reply here.
COPYRIGHT law was never meant to apply to little people sharing and making personal copies. From it's earliest conception, copyright law was meant to apply to BUSINESS COMPETITION. In effect, if there was a dollar to be made from an idea, a song, a writing, then the AUTHOR should make that dollar.
When no financial gain is at stake, it's a whole different world. If I made a thousand copies of each of my songs/movies/softwares, and GAVE THEM AWAY, I would not be in violation of the SPIRIT OF COPYRIGHT LAW. But, if I profited just one penny on each copy, then I would be in violation.
Copyright law was, and should be, aimed at for-profit businesses, large or small. Producing copies of the Household Mover's Guide, and selling them for $20 at a truckstop late at night is a clear violation of copyright law. The motive is profit.
Setting up a site where Joe Sixpack can download music for ten cents or ten dollars per month is also profit driven.
Sharing a few songs via P2P is NOT PROFIT DRIVEN, and shouldn't even be in court as a copyright violation.
My two cents.
Very insightful. In the old days of copyright law (pre-RIAA madness) you never saw cases against the CONSUMER of the copyrighted material.
E.g., if there was a flea market vendor selling unauthorized copies of something, the companies might go after the vendor but would probably go after the flea market, but would NEVER have even thought of suing the people who bought the copies.
It took some degenerate record company sociopaths, who'd totally missed out on the meaning of the internet and digitalization, and who were afraid of losing their jobs, to come up with this desperate idea of suing ordinary working people.
In Australia, there are no statutory damages at all for non-commercial infringement, stricter rules about actually suing the right person, and a loser-pays system, and not one person has been sued by the recording industry in the last 15 years for file sharing. Since damages are limited to actual damages, you are actually better off to pirate, get sued (in the small claims court), and pay up than you are buying the files legitimately (assuming you download enough to cover the lawyers fees). Despite this, in the three nearest significant shopping centres to me, there is at least two record shops, and several of the smaller ones have one, not counting target etc. who all sell music and DVDs. From this, I assume the industry is still profitable.
You seem to be suggesting that the RIAA's 7-year litigation campaign against consumers was not a brilliant business strategy. What heresy. (:))
RIAA is trying to set precedent for high awards.
Their problem is that they may not reach that goal in either of these cases.
That is correct. And probably Judge Gertner in Tenenbaum will award significantly less than even the reduced award in Thomas. Judge Gertner appears to be very knowledgeable about constitutional law, and the US Supreme Court has set a rough guideline that punitive awards should rarely exceed 4 times actual damages (i.e. $1.40 per infringed recording) and almost never exceed 9 times actual damages (i.e. $3.05 per infringed recording).
The last line seems to me (as a non-lawyer, mind you) more fascinating than the headline. Offering a settlement looks like betting on a stock price: The RIAA was willing to sell its $54,000 judgement for less than HALF that amount. They must expect to ultimately get less than that.
And Ms. Thomas-Rasset (or rather her lawyer, since nobody would make a decision like that against their lawyer's advice) seems to share that view, since she refused the settlement. They must be confident that they'll pay less than $25,000, or even nothing.
Very good. I like people who can read between the lines, and pick up the nuances.
NewYorkCountryLawyer, why do you insist on ignoring the DISTRIBUTING side of things?
I don't ignore it. I just recognize that in this case there was no proof of -her disseminating copies -to the public -by sale or other transfer of ownership, or by rental, lease or lending....
all of which are required for distribution under the Copyright Act.
The point is that the $750 per infringement is already an absurd amount. Considering that Exxon got off with only a 1:1 punitive to compensitory damage ratio after the Exxon-Valdez oil spill (which devastated Prince William Sound), it boggles the mind that violating copyright is somehow worthy of a minimum of 1000 times the actual price of the song. Yes, we all know that copyright infringement is based off statutory damages, but so what? How do we go from one type of damage being strictly limited on a Constitutional basis to a ratio in the single digits, yet anywhere from 1000:1 to 200000:1 as a law is not prima facie thrown out?
We don't.
Judge Davis should have limited the recovery to less than $50, since the actual damages per infringed work were only around 35 cents.
There was no evidence of her acting as a distributor. That would have required proof that she -disseminated copies -to the public -by sale or other transfer of ownership, or by a rental, lease or lending. There was no proof of any of those.
The maximum actual damages is ~35 cents per infringed work, since the wholesale price is ~70 cents and the expenses are around ~35 cents. Under constitutional principles, the statutory damages awarded should not have exceeded $1.40 per infringed work, or a total of $33.60. Even the reduced award is 6428 times the actual damages, a grossly excessive amount.
Yes the amount is still absurd, but at least the principle that the statutory damages must bear a reasonable relationship to the actual damages has been invoked and vindicated. My blog post is here: Jammie Thomas verdict reduced from $1.92M to $54,000 and my Slasdhot submission is here.
You'll see that all of my posts include extensive explanation and reasoning.
Well you have a high opinion of yourself. Unfortunately, both the "extensive explanation" and "reasoning" escaped my attention. In fact your "reasoning" and "explanation" were not solid, kind of like the "explanation" and "reasoning" the RIAA uses.
Slashdot Mirror
What the fuck is "unduly contentious"?
The judge doesn't say, does he? That's because he doesn't know of any instance in which I was "unduly contentious". Because there wasn't any.
Reading the judge's decision, he blames most of the court costs on the fact that the Lindors may have had a houseguest in 2004, and that she sold her computers sometime between 2004 and 2008, which was a loss of evidence for the RIAA. If they had disclosed their houseguest then a lot of this could have been averted, according to the judge. Talk about overcompensation for a small discrepancy, you effectively ruin a family because they didn't disclose a houseguest they had for an unknown amount of time. I am not a lawyer, but that seems like a pretty large case of overkill.
The judge's decision seems to be based entirely upon his having accepted as gospel the first version of Ms. Yanick Raymond-Wright's testimony, and totally ignored the second version contained in her errata sheet. At her deposition she testified that she spent a considerable amount of time at Ms. Lindor's house during the Summer of 2004. Thereafter, Ms. Raymond-Wright consulted her records and realized that she was in school in the Summer of 2004, so that it was another Summer, not the Summer of 2004. The trier of fact, at the trial, would have been permitted to determine which of the two versions to accept. Judge Trager was not the trier of fact, since this was a jury case. So the judge -- without even observing the demeanor of witnesses -- made a decision which it was beyond his authority to make.
if its not considered terribly bad form, i wonder if Mr. Beckerman wouldnt mind telling us the ballpark figure this case cost Mrs Lindor. Or failing that, just the total number of billable hours and a general idea of other costs, monitary or opportunity, that she incurred. If only for a sense of proportion.
Suffice it to say, it was a terrible hardship on Ms. Lindor and her entire family.
Shouldn't the RIAA have to pay for bringing what seems to be an essentially frivolous lawsuit?
Yes.
It doesn't necessarily matter what they earned. Remember, the subject here is damages to the copyright holders. So the real issue would be their net (not gross) on the royalties paid. That is a far smaller amount than the retail price.
Jane. As usual, you are correct.
I betcha that if Thomas-Rasset would agree to a private, sealed settlement for a dollar, the RIAA would jump on it. They simply do not want this decision to stand.
If the case is settled, then this decision will stand. This decision stands for the proposition that even in a case where the plaintiff wilfully infringed, and even lied under oath at the trial, the maximum possible recovery is $2250 per infringed work.
So - in a trial limited to "the issue of the appropriate amount of statutory damages", what really is discussed during the trial?
Well, there was no proof of a distribution, so I would imagine the key issues would be, for each of the 24 songs:
-what was the wholesale price of an authorized download?
-what would the expenses have been? and
-what percentage of unauthorized downloads represent lost sales.
I.e. if the mp3 download of a particular song would have sold for an average wholesale price of 71 cents, the royalties would have been 31 cents and the fixed expenses 5 cents, and for every 5 unauthorized downloads there would have been 1 lost sale, I would compute the actual damages as follows:
71 cents minus 36 cents = lost profit of 35 cents
20% x 35 cents = 7 cents actual damages.
Under Supreme Court deadlines, any award of statutory damages exceeding 28 cents for that recording would be suspect, and any award exceeding 63 cents would be presumptively invalid.
I don't know why the story says it's an "appeal". It's not an appeal. It's just a new trial of the appropriate statutory damages.
I'd also like to add that I am extremely thankful that NewYorkCountRyLawyer is providing us all with insight into these cases. I would only hope that as a domain expert Congress and the Senate would look at him for advise in balancing the rights of consumers, rather than solely looking to RIAA stooges.
Well I didn't throw them any parties or inauguration balls, so I probably won't get that call.
There's a big difference between "He told me to do this" and "He gave me information and I decided to do this." Considering how tight-lipped the legal profession is (presumably due to fears over the blurry distinction between legal advice and legal knowledge) I'm very appreciative of Mr. Beckerman's efforts. Most lawyers wouldn't even bother.
Correct. As mentioned in my bio, what I do here is not legal advice. Legal advice is where someone tells me their situation, I ask some questions, and give them some advice. Here I just discuss legal topics and litigation events... i.e. report on what is going on. I wouldn't know how to give someone advice without first establishing a one-on-one relationship.
The attacks on Ray Beckerman are more than a little unfair, given his solid record over the years here on Slashdot. He's given a lot of free legal advice here over the years, and personally, I appreciate him. For the record, Blogspot.com is owned by Google, and I wouldn't be surprised to find that the ads are crammed in there by Google to help pay for the service. The insinuation here (and in other replies immediately following) that he simply posts here to drive people to an "ad-laden" site is more than unfair. I, for one, appreciate his updates on these very important cases. If you disagree with Ray's take on requests for extension, that's certainly your right (and I disagree with you, by the way; I think it's very significant in this case, given the circumstances).
Thank you. I appreciate that. The reality is that I make almost no money from advertising. I just spend so much time blogging and microblogging that I figure if I could make a few bucks to offset some of that time it would be helpful. Hasn't really worked out, however.
Where does this so-called 'constituitionally recognized limit' come from (citation)?
You might want to read my brief on the subject or this article.
I was doing moderation - but I must reply here. COPYRIGHT law was never meant to apply to little people sharing and making personal copies. From it's earliest conception, copyright law was meant to apply to BUSINESS COMPETITION. In effect, if there was a dollar to be made from an idea, a song, a writing, then the AUTHOR should make that dollar. When no financial gain is at stake, it's a whole different world. If I made a thousand copies of each of my songs/movies/softwares, and GAVE THEM AWAY, I would not be in violation of the SPIRIT OF COPYRIGHT LAW. But, if I profited just one penny on each copy, then I would be in violation. Copyright law was, and should be, aimed at for-profit businesses, large or small. Producing copies of the Household Mover's Guide, and selling them for $20 at a truckstop late at night is a clear violation of copyright law. The motive is profit. Setting up a site where Joe Sixpack can download music for ten cents or ten dollars per month is also profit driven. Sharing a few songs via P2P is NOT PROFIT DRIVEN, and shouldn't even be in court as a copyright violation. My two cents.
Very insightful. In the old days of copyright law (pre-RIAA madness) you never saw cases against the CONSUMER of the copyrighted material.
E.g., if there was a flea market vendor selling unauthorized copies of something, the companies might go after the vendor but would probably go after the flea market, but would NEVER have even thought of suing the people who bought the copies.
It took some degenerate record company sociopaths, who'd totally missed out on the meaning of the internet and digitalization, and who were afraid of losing their jobs, to come up with this desperate idea of suing ordinary working people.
I suspect Thomas will rue the day she turned down the $25k settlement.
Who talks like that?
LOL
In Australia, there are no statutory damages at all for non-commercial infringement, stricter rules about actually suing the right person, and a loser-pays system, and not one person has been sued by the recording industry in the last 15 years for file sharing. Since damages are limited to actual damages, you are actually better off to pirate, get sued (in the small claims court), and pay up than you are buying the files legitimately (assuming you download enough to cover the lawyers fees). Despite this, in the three nearest significant shopping centres to me, there is at least two record shops, and several of the smaller ones have one, not counting target etc. who all sell music and DVDs. From this, I assume the industry is still profitable.
You seem to be suggesting that the RIAA's 7-year litigation campaign against consumers was not a brilliant business strategy. What heresy. (:))
RIAA is trying to set precedent for high awards. Their problem is that they may not reach that goal in either of these cases.
That is correct. And probably Judge Gertner in Tenenbaum will award significantly less than even the reduced award in Thomas. Judge Gertner appears to be very knowledgeable about constitutional law, and the US Supreme Court has set a rough guideline that punitive awards should rarely exceed 4 times actual damages (i.e. $1.40 per infringed recording) and almost never exceed 9 times actual damages (i.e. $3.05 per infringed recording).
The last line seems to me (as a non-lawyer, mind you) more fascinating than the headline. Offering a settlement looks like betting on a stock price: The RIAA was willing to sell its $54,000 judgement for less than HALF that amount. They must expect to ultimately get less than that.
And Ms. Thomas-Rasset (or rather her lawyer, since nobody would make a decision like that against their lawyer's advice) seems to share that view, since she refused the settlement. They must be confident that they'll pay less than $25,000, or even nothing.
Very good. I like people who can read between the lines, and pick up the nuances.
I think you're completely wrong on the "sale or other transfer of ownership"
Well you're free to ignore the statute; I'm not. Neither is a judge.
NewYorkCountryLawyer, why do you insist on ignoring the DISTRIBUTING side of things?
I don't ignore it. I just recognize that in this case there was no proof of
-her disseminating copies
-to the public
-by sale or other transfer of ownership, or by rental, lease or lending....
all of which are required for distribution under the Copyright Act.
The point is that the $750 per infringement is already an absurd amount. Considering that Exxon got off with only a 1:1 punitive to compensitory damage ratio after the Exxon-Valdez oil spill (which devastated Prince William Sound), it boggles the mind that violating copyright is somehow worthy of a minimum of 1000 times the actual price of the song. Yes, we all know that copyright infringement is based off statutory damages, but so what? How do we go from one type of damage being strictly limited on a Constitutional basis to a ratio in the single digits, yet anywhere from 1000:1 to 200000:1 as a law is not prima facie thrown out?
We don't.
Judge Davis should have limited the recovery to less than $50, since the actual damages per infringed work were only around 35 cents.
Look on the bright side: $54k isn't going to pay RIAA's fees, either.
The RIAA has probably spent a million dollars on this case.
What about the distribution part?
There was no evidence of her acting as a distributor. That would have required proof that she
-disseminated copies
-to the public
-by sale or other transfer of ownership, or by a rental, lease or lending. There was no proof of any of those.
The maximum actual damages is ~35 cents per infringed work, since the wholesale price is ~70 cents and the expenses are around ~35 cents. Under constitutional principles, the statutory damages awarded should not have exceeded $1.40 per infringed work, or a total of $33.60. Even the reduced award is 6428 times the actual damages, a grossly excessive amount.
Yes the amount is still absurd, but at least the principle that the statutory damages must bear a reasonable relationship to the actual damages has been invoked and vindicated. My blog post is here: Jammie Thomas verdict reduced from $1.92M to $54,000 and my Slasdhot submission is here.
You'll see that all of my posts include extensive explanation and reasoning.
Well you have a high opinion of yourself. Unfortunately, both the "extensive explanation" and "reasoning" escaped my attention. In fact your "reasoning" and "explanation" were not solid, kind of like the "explanation" and "reasoning" the RIAA uses.