RIAA Loses $222K Verdict

jriding writes "The $222,000 verdict against Jammy Thomas for copyright infringement by P2P is no more. US District Court Judge Michael Davis dismissed the verdict, saying it was based on the faulty 'making available' theory of distribution."

Good for her

[fewnorms (630720)]

About time the RIAA loses a big case like this, and have the public know about it. Bunch of crooks...

Re:Good for her

[Evets (629327)]

It'll be interesting to see if the verdict reversal gets the same amount of mainstream media coverage. It's one thing to see this in the tech media. It's another thing when it's in Time, Newsweek, and all the major newspapers.

Re:Good for her

[dimeglio (456244)]

I suppose it will appear in those media which are not members of the RIAA or owned by members of the RIAA. Maybe some Canadian press will cover the reversal.

Timing

[wfstanle (1188751)]

I too would like a lot of media attention but let's be realistic. With all that is happening now, they will bury news of it to where you will be forced to hunt for it. It's important news, but it will not get much public attention. In this respect, the RIAA is lucky because the timing is good for them. They may have lost a battle but the war will still continue.

Re:Good for her

[orclevegam (940336)]

Sure pirates are crooks. Most of them probably cost the distribution companies (not the creators) a couple hundred dollars a year. The worst of them might cost them a thousand or two. The RIAA on the other hand are crooks of a different sort, and they cost people and the government (and by extension everyone) hundreds of thousands of dollars a year. So, I ask you, who's the bigger criminal here, the pirates that all told cost the media companies maybe a hundred thousand dollars, or the media companies that cost everyone hundreds of thousands of dollars, and ruin the lives of people seemingly at random whether they're guilty of piracy or not?

Our copyright and patent system is broken. It's been abused, and stretched to the point of breaking by greedy big media trying to prop up flagging business models rather than innovate and change with progress. We need to reform our copyright and patent systems, destroy the media conglomerates, and then worry about trying to curb piracy. I have a feeling however that they'll find once copyright has been reduced back to what it was originally intended, and media companies are once again innovating instead of trying to enforce, that piracy won't be much of a problem at all.

Re:Good for her

[PapaSmurphy (249954)]

You've got to be kidding. Your math is pretty bad here.

First, you say most pirates cost the distribution companies a couple hundred dollars a year (let's pick $200). I'll even ignore the "worst" offenders.

Then you say that all the pirates put together cost the media companies maybe a hundred thousand dollars. Here's the problem. My math says:

~350 million Americans. About 200 million adults. Let's say half are online, so 100 million online users. Let's significantly underestimate the percentage of pirates at 1%. So that's 1 million pirates. At $200 a year, that's $200,000,000 a year.

So, who is the bigger criminal you ask? The pirates that all told cost the media companies at least 200 million dollars, or the media companies that cost everyone hundreds of thousands of dollars?

See, use math and these arguments are much less "obvious" than you make out.

P.S. I am NOT a fan of the RIAA, and would like to see them lose these court cases, but making them out to be bigger crooks than those who steal from the companies they represent is not reasonable. I will agree that the RIAA is organized crime, however, and therefore should be subject to racketeering laws.

Re:Good for her

[by Anonymous Coward]

You cannot attribute any financial loss at all to the pirates. It's simply a theoretical loss.

If all pirates would never buy a single thing they pirated, and I realize this is an assumption, their net cost to the content distributors would be $0.

For more information, see this helpful drawing:

http://i28.tinypic.com/2m7xd85.jpg

Re:Good for her

[shock1970 (1216162)]

Many people pirate, that's true. And it does cause the recording companies to loose out on potential revenue.

What's fucked up though is that a pirate who illegally downloads 10 songs has created a potential revenue loss of about $15 bucks to the record companies. But the record companies want to sue that individual for $15,000. The punishment does not fit the crime.

Re:Good for her

[shark72 (702619)]

"What's fucked up though is that a pirate who illegally downloads 10 songs has created a potential revenue loss of about $15 bucks to the record companies. But the record companies want to sue that individual for $15,000. The punishment does not fit the crime."

The record companies are generally suing folks (including Ms. Thomas) for distributing -- or, at the least, making them available for distribution.

You're 100% correct that Jammie downloaded relatively few songs -- but that's not the issue. When she downloaded them, they were placed into her share directory (possibly without her knowledge) where they were available to others.

We don't do favors by repeating the notion that people are being sued for "downloading." The record companies are generally dishonest; let's not fight that with more dishonesty. If I run over your cat with my car, I might take some heat for killing the cat; it would be incorrect to state that I got in trouble just for driving a car.

Re:Good for her

[spearway (169040)]

I am really tired of this kind of math. The premise is bogus, copyright infringement does not cost anyone anything. It is a loss of potential gain. In order to estimate the damage from piracy to the economy you need to estimate the amount of lost sales. This is difficult to estimate and most likely one or two order of magnitude smaller than the headline figure announced by the industry. It is not even proven that this "lost sale" exist as it has been proven that the most prolific downloader also buy more "legal" music than others. It may very well be that there is no lost sales but an increase.

Declining revenue in the recording industry is an entirely different matter and no one has proven the cause and effect.

Re:Good for her

[Gr8Apes (679165)]

Your math is terrible. First, you assume that there are 1 million pirates, and that every "pirate" (Arrrr) would be a paying customer if they weren't "pirating" (what about those that borrow CDs and DVDs? Oh noes, the horror!!!)

With math matching yours for accuracy, I deduce a real loss of around $1 due to this "piracy".

Now, the real pirates, on the other hand, are those manufacturing illegal copies of the items in question and selling them to others, resulting in real lost sales, as someone paid X for the illegal product. Even here the assumption that they lost whatever their stated price is ludicrous, as they only lost whatever the illegal content's sale price, as there is no correlation whatsoever that the buyer would have paid more (with the assumption that the sold item sold for less than the asking price - not always the case - see sales of imported anime or HD DVDs....)

Re:Good for her

[orclevegam (940336)]

Ok, fine, we'll see if we can tighten up the math a bit. To start with, according to a article on /. from a while back, the RIAA since 2003 has filed 28000 lawsuits [slashdot.org]. According to this PDF [adrforum.com] I found based on public available tax data, court records, and a bit of extrapolation it costs an average of 3112.26 per case to bring a civil case to trial in NJ (assuming similar cost in other states). This figure does not take into account the costs to both parties in terms of legal fees, and costs involved in maintaining the buildings, hiring more people to handle extra case load, or social cost involved in displacing other court cases. The same PDF also lists the average cost for settling via arbitration to be 1296.81 per case.

Lets assume that 75% of the cases are settled out of court (I've no idea how many have actually gone to trial of the 28000). This gives us 21000 settlements, and 7000 trials. Lets also assume that it costs on average 20000 to hire a defense lawyer (and that's probably at the low end). Based on these numbers we come to the following totals:

Cost to the public to settle cases: 27,233,010 (not including infrastructure costs)
Cost to the public to prosecute cases: 21,785,820 (once again not including infrastructure costs)
Total taxes wasted: 49,018,830
Cost to defend against RIAA lawsuits: 140,000,000
Cost to settle against RIAA lawsuits (based on $3000 settlement): 63,000,000
Total cost to public and accused: 252,018,830

In addition each of these cases must of necessity displace other cases that could be utilizing the courts time. I don't know about you, but I consider it a bigger crime for a company to waste 49 million dollars of the publics tax money, than that same company to lose 200 million to people subverting it's dying business model, not to mention costing people 203 million to defend themselves (or settle), a great many of which will be innocent people.

Today is nice

[BountyX (1227176)]

What a nice day today...RIAA loses, DOJ opposes DOJ Copyright Oversight. What's next? Bush finally gets impeached?

Re:Today is nice

[by Anonymous Coward]

Ugh... 2 words: President Cheney.

Re:Today is nice

[Ron_Fitzgerald (1101005)]

Reminds me of the Chris Rock bit about a black person for President securing his life by having a Mexican Vice President...

Re:Today is nice

[Chris Burke (6130)]

Reminds me of the Chris Rock bit about a black person for President securing his life by having a Mexican Vice President...

Yet another reason Bill Richardson would have been a better choice than Biden... But hey it's not the first time Chris Rock and I have seen eye to eye. :)

Re:Today is nice

[tmosley (996283)]

Impeaching him now would cause a close examination of all of his unconstitutional policies, and get a lot of them thrown out, or at least dragged out into the light so future presidents won't be able to use them.

Also, there's this little thing called 'accountability' that a certain current United States President likes to harp on a lot of the time (when it supports what he wants).

Honestly, I think that a pretty large proportion of our presidents should have left office at the end of a hangman's noose, and none that I can think of deserve that end more so than Bush Jr.

RIAA Looses $222K Verdict

[devnullkac (223246)]

Read literally, I suppose this means a $222K verdict is roaming the countryside, looking for someone to ... adopt it?

Re:RIAA Looses $222K Verdict

[Dmala (752610)]

I couldn't of said it better myself. I know there doing the best they can over their, but for all intensive purposes the editing is very poor. As for the verdict itself, I could care less.

Re:RIAA Looses $222K Verdict

[NotBornYesterday (1093817)]

the editing is very pour.

FTFY

Now reverse the charges

[Maxo-Texas (864189)]

and get them for attorney's fees and mental anguish.

Technically . . .

[UnknowingFool (672806)]

The RIAA didn't lose. The judge declared a mistrial. If both sides cannot come to a settlement, there will be a new trial. The judge determined he made an error in the jury instructions. Specifically in #15, he told them that making a song available could be considered as copyright infringement. On another note, he did call the $222K reward excessive. So even if Jammie Thomas loses the next trial, it will be unlikely she will have to face such a large damage award.

Re:Technically . . .

[Krinsath (1048838)]

Actually, he calls on Congress to review the penalties of the Copyright Act. The Act was intended to penalize "competitor's" who engaged in the infringement where income was earned on the enterprise, not so much a consumer who is actually getting nothing in the process. Hence why the damages seem so excessive, the law wasn't really designed to cope with these circumstances. The infringing party makes no money on the enterprise and are usually private individuals...applying a "business" penalty to an individual is why they seem so grossly out of proportion.

That said, the fact that the law wasn't designed with the situation in mind does not mean they can ignore it since there's no other law on the topic. So if she's found guilty again she will likely face the same "penalty" scheme that she had previously. Hence why he asks Congress to amend the law and is simply characterizing the judgment, not throwing it out. There's nothing truly unconstitutional about the law, it's just not being used against the targets that the writers had in mind when the law was written.

Re:Technically . . .

[Abcd1234 (188840)]

That said, the fact that the law wasn't designed with the situation in mind does not mean they can ignore it since there's no other law on the topic.

If it's a jury trial, they certainly can ignore the law if they choose [wikipedia.org].

Re:Technically . . .

[AlexCorn (763954)]

I was recently considered for jury duty in a cocaine selling/possession case. One of the screening questions the potential jurors were asked was "Do you have any problems with the Indiana drug laws?" I said yes, that they should be repealed. The judge asked if I was capable of making a distinction between what the law said and what I believed. I said yes, of course, and brought up jury nullification. He said that we don't do that anymore, and I was dismissed from jury duty.

Re:Technically . . .

[Dragoon412 (648209)]

There's nothing truly unconstitutional about the law

Actually, that's not entirely true.

The leading case on the constitutionality of damages is BMW v. Gore. You can read it here [cornell.edu] if you're interested.

Out of that case came three guideposts that the Supreme Court uses to assess whether or not damages are constitutional.

1. The degree of reprehensibility of the defendant's conduct
2. The portion of the damages that are compensatory
3. Statutory punitive damages/penalties that could be imposed

So, that the statute allows such damages only satisfies one of the three guideposts. However, punitive damages in this case vastly outstripped the compensatory damages. I remember reading it in an article when the verdict was announced, but the punitive:compensatory damages were, what, on the order of 9000:1? The court has said, in Phillip Morris USA v. Williams, that damages that were only 100:1 punitive:compensatory were "grossly excessive."

The only issue to be resolved, at this point, is how reprehensible the court finds the defendant's conduct.

It seems to me that, if this question of damages managed to get before the US Supreme Court, it'd be thrown out as unconstitutional in a hurry.

But I'm just a law student offering my armchair lawyer analysis. Take the above with a grain of salt.

Re:Technically . . .

[blueg3 (192743)]

Possibly, but the primary goal of the DMCA was to target companies or individuals who produce tools to assist consumers in copyright violations, not the copyright-violators themselves.

Re:Technically . . .

[JoeMerchant (803320)]

In the old days, warez exchangers would require a newbie to send something to them first before sharing anything - something about entrapment if the investigator would do something illegal to gain the marks' trust. The last paragraph of the article mentions that distribution to MediaSentry would constitute infringement - I wonder if P2P networks will be adopting the old "send me one first" mechanism in light of this?

Re:Duh!

[BronsCon (927697)]

Those pesky pirates stole our verdict using P2P!

Call me cynical

[LuxMaker (996734)]

but this is just what the *IAA needs to push through tougher legislation.

And Judge Davis went further, "implor[ing] Congress to amend the Copyright Act to address liability and damages in peer-to-peer network cases..."

How many people want to guess that "Copyright reform" turns draconian?

Mediasentry issues

[Volante3192 (953645)]

One point brought up in the articles is that it's possible the MediaSentry downloads are unauthorized copies, which seems to be necessary since if the RIAA authorizes the copy, then technically they're not infringing copyright and hence have to basis for a lawsuit.

However, if the copies by MediaSentry are not authorized, then by not prosecuting MediaSentry for illicit downloads, aren't they undermining their own case by not going after every case of infringement?

Just idle thoughts...

Charge her $24

[ilovesymbian (1341639)]

If she's charged at the market rate of $0.99 per song, she'll owe the music companies $24.00 plus tax.

Let her pay it and be done over with.

Not So Fast

[Nom du Keyboard (633989)]

Not so fast here with the bubbly. This judge still says that copyright infringement can be shown by "circumstantial evidence", rather than the strict proof of the details of actual infringement required by the law and court decisions. And that (in another related case) downloads by MediaSentry count as infringement even thought MediaSentry is a paid agent of the copyright holder and the law has long held that a copyright owner cannot infringe their own copyrights. While all this is good news, it is yet to be great news.

Hating the RIAA does not work

[Dan667 (564390)]

Really if you want to stop the RIAA you need to start posting hate on the companies that support it. Once you start to hurt their brands and people stop buying their products, because of the negative press, and the RIAA will cease to exist. Everyone hates the RIAA, but no one hates those who fund it yet. So hate on these companies SONY WARNER EMI UNIVERSAL ...

WRONG.

[SuperBanana (662181)]

http://blog.wired.com/27bstroke6/2008/09/not-for-publica.html

Still, Judge Davis' decision does not derail the RIAA's case against Thomas on retrial or any other pending or future case. Davis ruled that the downloads from Thomas' open share folder that RIAA investigators made, 24 in all, "can form the basis of an infringment claim."

Or how about http://www.theregister.co.uk/2008/09/25/jammie_thomas_again/ [theregister.co.uk]

The judge in Jammie Thomas' challenge to her landmark $220,000 fine for sharing music over KaZaa has declared a mistrial, forcing yet another court case.

I don't expect Joe Blo's blog to get this right, but I do expect ZDNet and Slashdot to.

From TFA

[by Anonymous Coward]

AFAIK (IANAL) a mistrial means that the same evidence and INTENT is used in the prosecution of the defendant. such as:

"Thomas will face a new trial, in which the RIAA will have to prove actual distribution." (Direct from TFA)

But it is interesting to note that:

"The decision means the RIAA now has zero wins at trial, Wired notes." (from TFA)

So far, it seems that the RIAA is nothing more than a paper tiger, and there is much ado about the nothing that is the reporting of all this hoopla.

I do seem to remember (can't cite the examples at the moment) some headlines concerning individuals being brought to trial that had unbeliveable judgements levied at them for "copyright infringement", but no ACTUAL culpability against the plaintiff.

Re:So What's Next?

[mazarin5 (309432)]

Thomas will face a new trial, in which the RIAA will have to prove actual distribution.

It's in the first fucking paragraph of the article!

Re:So What's Next?

[by Anonymous Coward]

Thomas will face a new trial, in which the RIAA will have to prove actual distribution.

It's in the first fucking paragraph of the article!

There's an article?

Re:So What's Next?

[internerdj (1319281)]

What's an article? We are all slashdot readers here.

Re:So What's Next?

[street struttin' (1249972)]

What's an article?

Re:So What's Next?

[i_liek_turtles (1110703)]

"a", "an", and "the"

Those are the only articles I know of.

Re:So What's Next?

[CodeBuster (516420)]

Right, still it seems "unsporting", as the British might say, about trying her again. I hope that the RIAA doesn't, but that is probably to much to expect from such an ethically bankrupt organization.

Re:So What's Next?

[Rolgar (556636)]

But you can't blame the RIAA for the judge's mistake. Since they can't bring back the original jury, legally, this is like the original case never happened. I hope RIAA will be on the hook for the defendant's lawyer fees for both trials if they lose this case.

Re:So What's Next?

[Cathoderoytube (1088737)]

They can, but only before the next full moon. If they fail to file before that time their lawyers will have to return to hell until the next equinox..

Re:So What's Next?

[camperslo (704715)]

"Thomas will face a new trial, in which the RIAA will have to prove actual distribution"

Even if they do prove distribution, the claims of damages per track should be fought. It's as if the people involved don't understand how file availability works with torrent p2p sharing.

If someone downloads 5 tracks and seeds each to 1:1 ratio, what they've sent out on the net has only replaced copies (in pieces and blocks) that they got instead of someone else. In that case the net increase in copies going to others is ZERO making the damages only the lost-sale revenue for the downloader. At 1:1 seeding ratio, no additional copies go to others as compared with what existing seeding on the net would have provided had the downloader not transfered the files in and out. The lost revenue is certainly no higher than the cost of the same tracks on iTMS or another commercial source. It could be argued that the track value is even lower since a portion of the iTMS price covers bandwidth cost so that amount in not lost profits.
It is only when seeding above 1:1 ratio that a downloader/uploader has actually done something to result in an increased number of copies going to others online over what would have occurred had they not participated. For the entire group of peers, each contributes to distribution by their seeding ratio minus one to allow for availability being reduced by what went to them instead of others.
It is not reasonable to hold a particular peer responsible for the seeding action of others.

This discussion also illustrates why torrents die off if people fail to seed adequately.

Cases of higher damages should be reserved for cases where material not otherwise available is leaked onto the net in violation of a license or NDA that applies, or material an uploader bought under license violates the license and then distributes a measurable number of copies on the net.

Re:woo!

[mazarin5 (309432)]

Not so much; they will try her again, but they have to prove actual distribution. Note that the judge also lowered the bar for actual distribution, in a sense. Our pet theory of MediaSentry acting as an agent of the RIAA, and therefore doesn't constitute distribution, was also explicitly discarded:

âoedistribution to an investigator, such as MediaSentry, can constitute unauthorized distribution.â

Re:Let the flood gates be opened

[TheLinuxSRC (683475)]

Bzzzzzzzt. Wrong. Thanks for playing.

From the article:

One important tidbit, little noticed yet, pointed out by Excess Copyright: [blogspot.com] "distribution to an investigator, such as MediaSentry, can constitute unauthorized distribution."

Re:Let the flood gates be opened

[Worthless_Comments (987427)]

Entrapment is only when the police cause a crime to happen where there wouldn't be one. If a cop comes up to a drug dealer and bought drugs from them, that is not entrapment. If a cop comes up to someone who isn't a drug dealer and pesters them to get drugs for them and they do, that is entrapment.

Re:Let the flood gates be opened

[sabre3999 (1143017)]

Yup, first and only... though she'll still end up guilty I bet. The only thing this does is require the RIAA to prove distribution for the monetary value of the punishment, not absolve her and require them to prove anything to get a guilty verdict (at least that's what I gather from RTFA.)

Re:Let the flood gates be opened

[Evets (629327)]

A whole new trial is what I get from RTFA.

From the judgement:

The Court hereby VACATES the verdict rendered in this case by the
jury and grants Defendant a new trial to commence on a date to be
set by the Court after consultation with the parties.
2. The Judgment entered on October 5, 2007 [Docket No. 106] is
VACATED.