Jammie Thomas To Appeal $1.9 Million RIAA Verdict 204
CNet reports that the lawyers representing Jammie Thomas-Rasset have confirmed she will be fighting the $1.9 million verdict handed down in her case against the RIAA.
"The Recording Industry Association of America said on Monday that it had made a phone call to Sibley and law partner Kiwi Camara last week to ask whether Thomas-Rasset wanted to discuss a settlement. An RIAA representative said that its lawyers were told by Sibley that Thomas-Rasset wasn't interested in discussing any deal that required her to admit guilt or pay any money. ... 'She's not interested in settling,' attorney Joe Sibley said in a brief phone interview. 'She wants to take the issue up on appeal on the constitutionality of the damages. That's one of the main arguments — that the damages are disproportionate to any actual harm.'"
Of Course (Score:1, Insightful)
Of course they're disproportionate to any actual harm. That's the whole point. The damages are meant to be a deterrent against future abuses. The RIAA is sticking her head on a pike as a warning to others.
Re:Of Course (Score:5, Insightful)
And when did deterrents ever stop murders or kids making copies of songs for their friends?
The big fines were intended to make professional copyright violations where some factory turns out hundreds or thousands of copies of fake product unprofitable. Using the same law to beat up some random person is disproportionate.
Re:Of Course (Score:2, Insightful)
It seemed to me that a disproportionate damage award may have been the strategy all along, given the performance of her attorneys.
Re:Of Course (Score:5, Insightful)
Which her lawyers believe is unconstitutional, hence the appeal. Making an example of one particular offender isn't the way the law is supposed to work. You transgress, you are punished appropriately. The problem is that the law, written in a different age, and with different parameters in mind, should not be applied in this fashion. Unfortunately, in this case, the defendant does not have the financial means to set this straight. The lawyers, with deep pockets and a public name to make for themselves, do have the means. There is no doubt in my mind that they are not doing this altruistically, but they happen to be fighting what many believe to be a poorly written statute and in that sense are fighting for the common good at the same time. I've got no problem with their desire to gain reputation in the process.
Well DUH! (Score:5, Insightful)
Seriously, who could not have seen this coming.
This verdict had to have been the RIAA's worst nightmare. They had to know, as they left the courthouse that they had just snatched ultimate defeat from the jaws of temporal victory.
NOW it all comes into play again, out from under easily impressed small town judges and professionally packed juries.
The entire investigative tactic, the improper application of laws, (not to mention that little phrase containing the words "Cruel or Unusual Punishment") comes under high level review.
They can't have wanted this. They would have been happy with 100K verdict. This is their worst nightmare.
Re:Worrisome Potential Precedent (Score:5, Insightful)
I'm not so sure, actually. If the defendant were not clearly guilty, the ruling might simply be overturned. In this case, with it pretty darned likely that she did do what did, the real case here is what kinds of limits should be set for recovering legal damages. Is non-commercial distribution really worth an amount equal to destroying the rest of your life? I would think that the plaintiff would need to show _actual_ damages, or be limited to a nominal fine. That is true for most litigation I'm involved in (architecture/engineering disputes). Unless you get into personal injury and pain-and-suffering cases, you've got to show actual damages and actual repair costs attributed _directly_ to the act. Consequential and incidental damages are very hard to win. Content industries insist on trying to chase the low hanging fruit (file sharers) because the law stacks the deck in their favor. If they can't provide an actual value, they get to select a prescriptive (that's not the right word...I know) value which is orders of magnitude larger than the original item.
If they can't prove the actual losses, they should get 3x the value (or 5x or 10x, not 100000x). That means finding the people who downloaded the songs and (1) determining that they did not already own that song in another form (vinyl, magnetic, CD, or commercial download) and (2) that they would have purchased the item if it were only available through a commercial site. Simple cause-effect analysis.
Re:Of Course (Score:3, Insightful)
Their payday is in marketing dollars, and it's very real. For example - I do training exercises, and spend time with local officials - free of charge - to help them understand the technical points of building codes. I do this for local contractors and architects as well. As a result, my name is "known" locally in the industry, and when a really tough case comes up, just about everyone says "you'd better get Overzeetop to look at this one." I'm so busy - in the middle of this recession and in one of the heavily affected industries - that I'm working 60-70 hours a week (no, that doesn't include /. time).
Trust me - this is not to fill some magical well of karma. It's to make a name, and to make a name is to make money.
Am I Alone? (Score:5, Insightful)
Re:Well DUH! (Score:5, Insightful)
This verdict had to have been the RIAA's worst nightmare.
I don't know about worst nightmare but you know something is up when they want to talk about a deal after they won the case!
Re:Well DUH! (Score:4, Insightful)
Any sensible person has to look at this and think WTF? I still have to wonder how they could have ever come out of this with such a large judgement for 24 songs unless the defense was being purposely stupid not to put too fine a point on it. It just boggles the mind that a judgement this large could come down with any sort of reasonable argument from the defense.
Re:Exxon Valdez, Anybody (Score:5, Insightful)
Re:not necessarily disproportionate (Score:3, Insightful)
Actual harm should be related to actual revenue. It could be current revenue or it
could even be the maximum annual revenue that these works ever generated. One key
fact that seems to be glossed over here is that these are OLD works. Many of them
would have fallen into public domain on their own by now if the law had not been
recently changed to specifically favor Disney.
The RIAA likely does not see 80K in a year from the 20 year old Richard Marx song involved.
That clearly limits the likely possible damages here.
In general, a statutory damage award 50% of the maximum probably should never
be applied to a copyrighted work that is 20+ years old.
After considering the issue further (based on this verdict) it seems that it
might be unjust even to subject a professional bootlegger to this verdict.
Re:Well DUH! (Score:4, Insightful)
When a monied interests talks about "educating" anyone, you can be sure of one thing: they are using the definition of "educated" where "you are 'educated' if you agree with me."
Re:Am I Alone? (Score:3, Insightful)
IANAL, and I always marvel at the absolutely bizarre ways lawyers can twist laws to mean absolutely anything, assuming they've been payed well enough.
Re:Worrisome Potential Precedent (Score:4, Insightful)
If I had mod points this morning, I would mod parent up. Sicne I don't have any at the moment, I'll argue why someone else should mod parent "insightful" or maybe "informative".
If the defendant were not clearly guilty, the ruling might simply be overturned.
This is exactly why I'm pleased that she is appealing the ruling on constitutional grounds. The appellate courts can (and should) look for every other possible basis for deciding a case before they start looking at constitutional issues and setting precedents. Since the preponderance of evidence says that the law was broken, this is now the first good test to see whether the law itself is good. And, ideally, whether the techniques of institutional barratry used by the RIAA and their member corporations are legal.
Re:Worrisome Potential Precedent (Score:5, Insightful)
Agreed. If law said the sentence for drunk driving were 20 years, and you wanted to challenge the constitutionality of the long sentence, by definition the defendant would have to have driven drunk. That said, it would be possible to get a more sympathetic defendant in this case - maybe someone who unwittingly fileshared songs. e.g. They installed Kazaa, tried it briefly, and stopped using it not realizing it stayed active in the background sharing their legit MP3 collection (ripped from CDs they owned).
Yeah, I can understand being awarded multiple times the value of the song. If she were penalized just 1x the cost of buying the songs (as some here have proposed), then you'd have nothing to lose by downloading. If you're caught, you only pay as much as if you'd bought it. If you're not caught, you get it for free. So clearly the penalty has to be more than the cost of just buying the songs.
But the award in this case works out to $1.9 mil / 24 songs = $79k per song. If you look at the RIAA's 2001 marketing stats [azoz.com], they made about $500,000 per new CD release. If you figure a CD averages 8 songs, that's only $60,000 in annual worldwide revenue per song in the first year as a new release. i.e. The award has her paying more per song than the average revenue the RIAA gets per new song in its first year. You don't even need to check if the award is "cruel or unusual punishment." You can tell it's way too high because it makes it a better business model to sue filesharers than to actually sell the songs on the market. The initial $220k award was possibly unconstitutional. The current $1.9 million award is insanity and would destroy capitalism if it stands.
Re:It was impossible to cause that much damage (Score:2, Insightful)
Direct damages, your calculations are probably correct. But the 100 people she gave songs to, also gave them to 100 people, exponentially.
Personally, I'd have a huge garage sale, transfer all my money off shore, then relocate to a country (indirectly of course) that isn't extradition-friendly to the USA, but still has a nice lifestyle.
Then I'd photograph myself giving them the bird against a plain white wall and mail it from a general address a few countries away. Like Peru, if I were staying in Uruguay.
Just a thought.
Re:Damages (Score:3, Insightful)
Re:Worrisome Potential Precedent (Score:3, Insightful)
Some Legal Background (Score:3, Insightful)
One commenter made a comparison to the Exxon Valdez case and other punitive damages cases where the damages award was reduced to be more proportionate to the actual harm. Unlike those cases, there is a statutory damages regime here, and long standing Supreme Court precedent establishes that courts must be very deferential to awards within the statutory framework. In particular, statutory damages are reviewed under a standard even more deferential than the already deferential abuse of discretion standard: whether the award is "so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable." St. Louis, I.M. & S. Ry. Co. v. Williams, 251 U.S. 63, 66-67 (1919). Also see, Douglas v. Cunningham, 294 U.S. 207, 210 (1935) (Congress's purpose in enacting the statutory-damage provision of the 1909 Copyright Act and its delineation of specified limits for statutory damages "take[] the matter out of the ordinary rule with respect to abuse of discretion") (via [blogspot.com]). Appellate courts are also somewhat loathe to disturb jury verdicts. The standard in the Eighth Circuit, where the Thomas case was decided, is whether 'no rational jury' could have found as the jury did. Dace v. ACF Indus., 722 F.2d 374, 376 (8th Cir. 1983).
You might say, well, the ratio of damages to actual harm here is roughly a factor of 80,000, so surely that is sufficient even under that high standard. The RIAA is likely to argue that only the increased damages due to willful infringement are punitive and that the the underlying statutory damages are not inherently punitive. Should it prevail on that theory, then the resulting substantially lower ratio is likely to be seen as constitutionally permissible. Furthermore, the Supreme Court has upheld ratios as high as 113:1, for example, and the ratio alone is not sufficient to overturn the award. Phillip Morris USA v. Williams, 549 U.S. 346 (2007).
Another commenter made reference to the "cruel and unusual punishment" clause of the Eighth Amendment. The Eighth Amendment does not apply to civil cases (not even the "excessive fines" clause). See, Ingraham v. Wright, 430 U.S. 651 (1977).
But the real crux of the issue is that the Copyright Act simply does not make an exception for individual non-commercial infringers. Assuming the facts of the case are accurate--and appellate courts do not like to disturb jury fact finding--then by the plain language of the statute Ms. Thomas is liable for a minimum of several thousand dollars in statutory damages. In my opinion the most likely outcome is that the appellate courts will let the verdict stand but strongly suggest that the legislature revise the Act to exempt individual non-commercial infringers from the statutory damages regime.
Re:Exxon Valdez, Anybody (Score:4, Insightful)
How does Jammie Thomas stack up against the EXXON Valdez case?
If Exxon had been offered a chance to settle for $5000 at the start, they would have taken it.
if Exxon had been offered a chance to settle for $5000 after their first court loss, they would have taken it.
Hence, you can't really compare Exxon to Thomas, as Exxon is not stupid.
EXXON got its punitive damages reduced.
If Thomas gets lucky, and the statutory damages are reduced from $80k per song to the statutory minimum of $750 per song, it will still come out to more than the RIAA has repeatedly offered to let her settle for.
Re:It was impossible to cause that much damage (Score:2, Insightful)
Juries do not like it when clearly guilty defendants tell a shifting tale of several badly told obvious lies, and that tends to push damages up.
The jury might as well have just ordered the woman executed.
Re:Exxon Valdez, Anybody (Score:5, Insightful)
True, though that's why this is unjust. It's unjust because there is a staggering difference between commercial for-profit infringement and what Thomas has done. Measures intended to deter the former should never be used against the latter. It is my belief that it would be better for the RIAA and all of its member companies to go bankrupt than for our legal system to be perverted and used as a tool of revenge in this way.
Incidentally, since when did our justice system start caring about making sure that commercial lawbreaking is not profitable? They certainly don't seem to care about this for antitrust cases...
Re:It was impossible to cause that much damage (Score:3, Insightful)
Here is the thing, If Itunes is offering the song for $1.00, then it's safe to say that their distribution license is under $1.00 a copy. The Itunes comparison is still valid unless it's fair game to have licensing fees specifically higher then your getting in real life just in case you have to take an infringement case to court.
Re:not necessarily disproportionate (Score:3, Insightful)
And regarding your match analogy, IANAL either, but I think that yes, damages should be reduced if 100 others were involved. Why are you being held fully responsible for damages for which the responsibility demonstrably falls in the hands of others? Can your neighbor, after successfully suing you, go on to sue someone else for the same damages, thereby being allowed to receive 100 times the amount than if you alone had caused the damages? Yes, shared responsibility makes the logistics difficult, but avoiding difficulty is not an excuse for unjustly assigning the responsibility.
Furthermore, with multiplicative formulas such as yours, it can be very unreasonable to ballpark figures as you have. Small errors in these numbers result in large errors in the result. And when the difference is between a reasonable fine and ruining someone's life, surely you can agree that it is unacceptable to simply ballpark the figures.
Re:It was impossible to cause that much damage (Score:5, Insightful)
"But the 100 people she gave songs to, also gave them to 100 people, exponentially."
Your argument makes absolutely no sense. She should be punished for the copyright infringement of others? Why haven't they tracked down those people yet, if they have so much evidence against her?
Re:It was impossible to cause that much damage (Score:5, Insightful)
And this is what people just can't get a good perspective on. They are basically sentencing her to be a slave for the rest of her life and that is even more cruel than execution. Moreover when you have nothing it is extremely difficult to make large amounts of money. That 2 million would be very very difficult to pay off even if you are left after the sentence with all possessions you got (job, house etc). But probably they will take everything that woman owns and tell her to pay off the rest. But in both cases the woman is just a slave. She is not a prisoner like in some russian work camp, but all the freedom she has is to live and give everything she gets to some faceless corporation and that is slavery.
I just find it despicable that those monsters (yes, those people should be put to jail) are ready and willing to destroy your life and seriously impact the life of your relatives just for a few shared files which are fucking sold for $1!
Re:It was impossible to cause that much damage (Score:5, Insightful)
That's all beside the point. The damages awarded were statutory damages as set by the law.
Correct.
However, statutory damages are supposed to be a reasonable substitute for actual damages when actual damages are difficult to compute. So its fair to point out that the 'statutory damages' are not only out of line, but are out of line for any case in this 'class' (of noncommercial p2p infringement), and that they are so out of line that that the statute itself is defective, even unconstitutional.
On the first glance it seems that $80K per song is too high but then I don't know the technical argument for it.
There is no technical argument for it. The statute was written to address and punish people who created and sold counterfeit copies of books, movies, records, etc.
P2p internet sharing didn't exist. At the time to do any serious infringement, you needed replication equipment, and blank media, and so on... it would be time consuming and expensive. The people doing it would have to be deliberately engaged in this, and would almost invariably be charging money to cover their costs. It would almost have to a fairly large scale commercial enterprise to be of significant scale.
The idea that a barely computer literate person could commit "massive unauthorized distribution infringement" on the same scale, at no cost whatsoever, as essentially a "side effect" of obtaining a few songs for their own personal noncommercial use, via a simple computer program and a few mouse clicks was simply unimagined by the statute authors.
Doesn't it mean that she is admitting that harm occurred and only challenging the amount? It seems like her main argument is at odds with her unwillingness to accept any guilt or settle for any amount.
Admitting harm occurred is not the same as admitting personal culpability for the harm.
Suppose you came over to my house, twisted your ankle on the front step, and then sued me.
I'm going to deny that I'm responsible. My front step is well maintained, with a solid railing, and a non-slip mat. It is level, clear of toys and other hazards. I refuse to accept guilt or settle. I have done nothing wrong.
But that's not to say I'm going to deny you were harmed. Your ankle was twisted. I accept that.
So you sue me, and the jury sides with you. So be it, that's life. Then the court awards you 20,000,000 dollars.
And I'm in the same position as Jammie. I maintain I did nothing wrong, I agree you twisted your ankle, and am disputing the amount of the award.
Re:Worrisome Potential Precedent (Score:4, Insightful)
You are not reading the grandparent's comment. The average total income from selling a song is $60,000. That is, the total money made from selling every copy of a song that is sold, is $60,000. With this in mind, the average value of the copyright of a particular song is $60,000, because that is the total amount of money that can be made from owning the copyright. The cost of buying a non-exclusive distribution license for a song is going to be less than the cost of buying the copyright outright, and if the value of the copyright is $60,000 then the distribution rights will be less.
There are, of course, some outliers. A small number of songs will make a lot more money, while a large number will make a lot less. If you picked a band at random from the list of those signed by the RIAA and offered them $79K to make their song available for download for free then they would most likely accept; there are very, very few who would make more money by not accepting your offer.
The problem with the $79K award is that, if you work on the assumption that she is expected to be able to pay, then the damages an artist can get from a single count of copyright infringement is greater than the total income that they would otherwise get from selling music.
If she is not expected to be able to pay - if the statutory fine set at a level intended to bankrupt infringers - then there is a good case for the level of the fine being unconstitutional. If, on the other hand, she is expected to be able to pay, then level of the fine is such probably unconstitutional under Section 8 because creating an economic environment where it is more lucrative to sue for copyright infringement than distribute your creative works will not 'promote the Progress of Science and useful Arts'.
Re:Exxon Valdez, Anybody (Score:2, Insightful)
(First off, I disagree with $1.92 million in damages. It's absolutely ridiculous, IMNSHO. I want to explain my point a bit further, though)
Wait, that doesn't make sense: the profit should be used up covering the fines for the compensatory damages (by definition!)
well, yes, and that works if and only if copyright infringement is always found out and prosecuted successfully.
Imagine, for a moment, punitive damages were small or nonexistent. I start a DVD pirating company, selling copied DVDs for $5 apiece.
I sell 100,000 each of two particular titles. my $5 is basically pure profit, because of the almost nonexistent cost of copying. If I don't get caught, that's, say, $450,000 per title profit for me. If I do get caught, I have to pay compensatory damages of $1,000,000. ($10/DVD).
The profits from one or two titles (in this example) completely offset the fines from getting caught for one.
So, as long as I only get caught for a third of my titles, I make a rather nice profit. While this example uses made-up numbers, the basic idea stands: Due to the low cost, and high profit potential, of copying copyrighted works, straight-up compensatory damages don't act as an effective deterrent
As a side note about 'only getting caught for 1/3rd". In the Thomas case, do you think she really uploaded only 24 files, ever? She quite likely had uploaded more than that, it's only the 24 songs she's caught for
Say Thomas had uploaded 100 songs, to 100 people, and somehow made $0.10 on each upload. (she didn't) The RIAA can prove 25 songs to 25 people (They can't). Straight compensation would be 25*25*$1, or $125. Her profits would be 100*100*$0.10, or $1000. A contrived example, yes, but it illustrates the idea. The expected value of for-profit piracy is a positive amount, without damages beyond straight compensatory.
THAT SAID, the fundamental disconnect here is that Thomas's infringement WASN'T FOR PROFIT. In this situation, the law doesn't correctly account for reality
Re:It was impossible to cause that much damage (Score:5, Insightful)
The existence of an offer to settle doesn't change the fact that the original sentence is cruel and despicable.
Re:Exxon Valdez, Anybody (Score:2, Insightful)
Why would I want to imagine that? It has nothing whatsoever to do with my point!
Only in your idiotic and pointless strawman example. Back in reality, you get fined $1,000,000 in compensatory damages, eliminating all your profit, and then get fined another $1,000,000 in punitive damages, to act as a deterrent. That's what "compensatory" and "punitive" mean!
No shit, Sherlock; that's what the punitive damages are for! WTF is your point?
No, that's not how it works. There are only two possibilities: either you can prove* that she'd made the $1000 profit, in which case you set that as the amount of compensatory damages, or you can't prove that she'd made the $1000 profit, in which case you leave the compensatory damages at $125.
In fact, it's a fucking tautology: if you can't prove it happened, then you have to assume it didn't happen. So, if the $1000 profit can't be proven, then the $1000 profit didn't exist. And since it didn't exist, it's irrelevant to the calculation of the damages, compensatory or otherwise!
And then either way, you tack on the punitive damages (that are not "small or nonexistent," but rather in a proportional amount) in addition, to act punitively. But what you can't do is go around saying "I can't prove you made $1000 profit but I want to imagine you did, so I'm going to arbitrarily punish you based on the imagined offense instead of the real one!" And that sort of gross miscarriage of justice is what happens when the punitive damages stop being proportional to the compensatory damages, as is the case here.
(* "prove" relative to the applicable standard of evidence -- "beyond a reasonable doubt" for criminal, "preponderance of evidence" for civil, etc.)
Re:Worrisome Potential Precedent (Score:5, Insightful)
But, if that happened, then owning the rights to music would become more important to music labels than actually producing good music. The whole business of making music would become a perverse combination of hype and ownership on a multinational level. Then, their legal arm would grow stronger and stronger and it would begin a maffia-like extortion of insignificant music downloaders, ruining people's lives without regard for any kind of proportion.
Imagine such a world.
Re:It was impossible to cause that much damage (Score:2, Insightful)
Yes; I have a conscience.
Who Gets the Money? (Score:2, Insightful)