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Comments: 204 +- Your Rights Online: Jammie Thomas To Appeal $1.9 Million RIAA Verdict on Saturday July 04, @09:44AM
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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.'"
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News: In Round 2, Jammie Thomas Jury Awards RIAA $1,920,000 793 comments
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Exxon Valdez, Anybody (Score:5, Interesting)
How does Jammie Thomas stack up against the EXXON Valdez case? EXXON got its punitive damages reduced. Why won't the same arguments work for Ms. Thomas? Any lawyers with opinions out there?
Re:Exxon Valdez, Anybody (Score:5, Insightful)
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Re: (Score:3, Interesting)
Can we say bad analogy? I see no parallel between those two cases except that Exxon and Thomas are both being defendants.
I don't know for sure what the GP was saying. However, rather than balk at this, I will apply just a tiny bit of common sense and see where that takes me.
Assuming that punitive damages were awarded agains Exxon and that Exxon argued that those damages were excessive and therefore unconstitutional, perhaps Thomas could make a similar argument. I am "assuming" that because there is no other way that the GP's statement could make any sense, therefore it must obviously be what he meant.
Having establishe
Re: (Score:3, Funny)
Assuming that punitive damages were awarded agains Exxon and that Exxon argued that those damages were excessive and therefore unconstitutional, perhaps Thomas could make a similar argument.
Actually, the case involved both punitive and compensatory damages. The Supreme Court decided that a 1:1 ratio was the fair upper limit for punitive damages, and reduced it.
As for the OP, my take is that he's simply way off in left field suggesting that a what happened in a given maritime case has any relevance to this
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...
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Re: (Score:3, Interesting)
Wait, that doesn't make sense: the profit should be used up covering the fines for the compensatory damages (by definition!); punitive damages, even if proportional to the compensato
Re: (Score:3, Interesting)
And that's enough or a parallel. I'm not fully up, but I think the Supreme Court said that punitive damages should be capped at no more than three times actual damages. That's simple, clear, and since there was no actual damage that can be demonstrated, should have punitive damage at 3x zero, for $0. After all, they never addressed her having them illegally, but uploading them, and there is no proof that an
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.
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Re:Exxon Valdez, Anybody (Score:5, Interesting)
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Re:Exxon Valdez, Anybody (Score:5, Interesting)
It would be a far more interesting test case if she came out and admitted she did it. Then they lawyers would have to make the case that (non-profit) file sharing is actually legal, and/or that the damages are unconstitutional. The last trial was just about the technicalities of whether the prosecution could prove she did it, and they did quite a good job of that.
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I hope she gets a second opinion (Score:5, Funny)
Given the track record of her lawyers, she could end up with a life sentence.
It was impossible to cause that much damage (Score:5, Interesting)
We already know the plantiffs were unsuccessful in several of their download attempts (this was brought up at trial). So it seems many attempts to upload files failed which means it would have taken even longer to cause $1.92 million in damages.
Oh yeah, also note today is Independence Day in the U.S. Four of the companies that sued her are headquartered outside the U.S. The one U.S. company has a CEO from Canada.
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Re: (Score:3, Interesting)
If one does the math it is easy to see it was impossible for her to have caused $1.92 million damage. The offense occurred in 2004. Back then a typical cable modem had an upload speed of 256kbps shared with the neighbors. A typical song costs $0.99 on iTunes
Your first mistake is using the iTunes price. Last time I checked, if you get a song from iTunes, it does not include a license to make the song available for an arbitrary, untracked, number of uploads to other people. If you were to write to the rights holders for the songs involved and ask what it would cost to get a license for unrestricted, untracked, copying and redistribution, I am pretty sure they would ask for more than $1 per song.
This is why it is often expensive for movie producers to use popular
Re: (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: (Score:3, Interesting)
Last time I checked, if you get a song from iTunes, it does not include a license to make the song available for an arbitrary, untracked, number of uploads to other people. If you were to write to the rights holders for the songs involved and ask what it would cost to get a license for unrestricted, untracked, copying and redistribution, I am pretty sure they would ask for more than $1 per song.
Correct. However, SoundExchange offers, to anyone who wants them, at $.0019/song/listener (2010 rates, have increased every year). If you can classify your peer-to-peer program as an Internet Radio Server then you can stream over 500 copies of a song for $99.
If the downloader chooses to store a copy of the stream in a file, rather than just listening to it once, then they are the ones committing copyright infringement.
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!
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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.
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Re:It was impossible to cause that much damage (Score:4, Funny)
But you do not understand.
If she killed someone, say the CEO of RIAA or some artist, she would probably get 25 years in prison.
However, she caused a moneybin (moneybin - a lesser species than humand, identified by having lots of money and trying to rob everyone so that they have even more money) to virtually lose some MONEY. As everybody knows, HUMAN LIFE IS NOT WORTH ANYTHING, so that is why she will serve at least 38 years for MAYBE causing some loss of MONEY.
Though I would like to see what the CEO of RIAA would look like when compensated for his loss in volts. $1.92M = 1.92 megavolts connected to him. Probably would look nice and send a message to other moneybins.
my advice to anyone cought by the RIAA. Kill the CEO, you will get a lesser sentence, after all, human life is not worth anything.
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Re:It was impossible to cause that much damage (Score:4, Interesting)
Tactically, I think she and her lawyers are making one mistake after another and she will eventually have to pay a lot more than she could have if she settled right away. Here is the part I don't understand: on one hand she is not "interested in discussing any deal that required her to admit guilt or pay any money" but on the other hand the main argument of the appeal is "that the damages are disproportionate to any actual harm." 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.
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Re:It was impossible to cause that much damage (Score:4, Interesting)
I believe she was the one who paid for the Kazza program and originally claimed that the content came with the membership.
In that case, she could admit damages but not admit her own wrong doing because she acted in what appears to be a legal and lawful way.
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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.
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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?
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Pay up thief (Score:5, Funny)
Worrisome Potential Precedent (Score:5, Interesting)
I'm worried that the Supreme Court, should it eventually take this case, might find a way to justify these hugely exorbitant awards on technically narrow and nit-picky grounds that nonetheless are broad enough in reality to make fighting the RIAA essentially a hopeless cause financially for most people. The Kelo decision [reason.com] shows the kind of sloppy reasoning that can lead to appalling results. It surely doesn't help that Jammie appears to be guilty of deliberate file-sharing and tampering with evidence after the fact. One could wish heartily for a much more sympathetic defendant.
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.
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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.
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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.
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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'.
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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.
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Re: (Score:3, Insightful)
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: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!
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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.
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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."
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Am I Alone? (Score:5, Insightful)
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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.
What I think her penalty should be (Score:5, Interesting)
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.
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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.
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Re: (Score:3, Informative)
The deterrent is the chance of being caught. In Somalia, or any other country without an effective police force, the chance of being caught is zero, so there is no deterrent. The actual magnitude of the punishment has surprisingly little deterring effect, and in some cases can make crimes worse: back when capital punishment was applied to just about every crime, there was a big incentive to kill all witnesses to reduce the chance of getting caught, leading to many more murders than would otherwise have been
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It's worth noting that the deterrent in question [...] is applied pretty inconsistently. Only a tiny percentage [...] are targeted[...]. Someone has probably researched how such things correlate to the effectiveness of the deterrent, but I haven't looked into it. Purely talking out of my ass, I suspect it weakens the social effect considerably.
Slightly edited, this fits speeding laws, enforcement, ticketing, and the revenue stream of such. Imagine if speeding laws were enforced uniformly and swiftly (a la the GPS system suggested recently); no more ticket money. The RIAA wants this kind of money, so they'll be sure not to over-fish these waters.
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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.
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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.
Its not clear how you can string those two thoughts together in the same sentence and not see the conflict.
Fighting for the common good with no payday in sight is a pretty good definition of "altruistic" if you ask me.
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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 hea
Re:Of Course (Score:5, Informative)
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.
Punitive damages can only be awarded in effort to deter the defendant from committing the same infringement again. It is expressly forbidden to make an example of a defendant by awarding a grossly high settlement for the purpose of making others think twice before doing the same thing. It is also expressly forbidden to award higher damages for acts that were not included in the trial. For example, in this case, there were 24 files in question. It's possible the jury said "I'm sure there were a lot more" and award damages with that in mind. They can't do that.
If either of those things occurred, the verdict is immediately nullified. I'm sure they will be raised on appeal, but they will be hard to prove. If you read the jury instructions on this case, it clearly explicates that they are to award damages ONLY for the files in question. There was even a neat little worksheet to help them with it.
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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 her
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