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Music Piracy The Almighty Buck The Courts

Listen to the RIAA's Appeal In Jammie Thomas Case 225

Posted by timothy
from the call-your-bookie-with-your-winner dept.
NewYorkCountryLawyer writes "The RIAA doesn't really like free mp3 files floating around but here's one you can access legally — the audio file of the June 12, 2012 oral argument of the RIAA's appeal in Capitol Records v. Jammie Thomas-Rasset. At issue in this case are (a) the RIAA's 'making available' theory and (b) the constitutionality of large statutory damages awards for download of an mp3 song file. The lower court rejected the making available theory, and reduced the jury's verdict to what the judge considered the maximum possible award of $2250 per file. I'm predicting the Court will affirm. After listening to the oral argument, what do you think?"
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Listen to the RIAA's Appeal In Jammie Thomas Case

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  • by L4t3r4lu5 (1216702) on Thursday June 14, 2012 @10:19AM (#40322269)
    A lot of the numbers, arguments, evidence etc. don't make a jot of sense to us. It's all pie-in-the-sky hyperbole and backwards Hollywood accounting, where a song which makes $0.99 per sale from a retailer is worth $150,000 if downloaded and shared.

    You're the lawyer; You tell us!
    • by Anonymous Coward on Thursday June 14, 2012 @10:36AM (#40322465)

      Its one more nail in the coffin of an outdated model that serves as an example of a few industries that have failed miserably to embrace new technology and god forbid adapt to changing circumstances, and instead are abusing the courts to keep an outdated methodology in place, massively stifling innovation in the process.

      • Re: (Score:3, Interesting)

        by Anonymous Coward

        What massive innovation has the RIAA stifled?

        I can buy almost any song ever made using my telephone and within a minute or so it will be available for listening, having been downloaded as a I sat in a cafe drinking coffee. It will come with album artwork and maybe even lyrics. My phone can hold many thousands of these songs, play them back in any order either by playlists I've arranged or based on metadata embedded in the song.

        Also available are services that, in return for blitting ads to my screen, will c

        • by Anonymous Coward on Thursday June 14, 2012 @11:26AM (#40323035)

          you think the RIAA made music-at-our-finger-tips possible?

          you are a schmuck.

          you know what made it possible? consumers.

          consumers that said "fuck your model"

          the music industry only begrudgingly made changes.

          it's taken decades.

          we don't need the RIAA or the industry, they need us.

        • Re: (Score:3, Insightful)

          I can buy almost any song ever made using my telephone and within a minute or so it will be available for listening, having been downloaded as a I sat in a cafe drinking coffee.

          Do you know why you can do that? I'll give you a hint, it ain't cos of the RIAA.

        • by jedidiah (1196) on Thursday June 14, 2012 @01:20PM (#40324527) Homepage

          > What massive innovation has the RIAA stifled?

          The very one you gush over. RIAA fought it tooth and nail. Even when they relented a tiny bit, they still installed Apple as a new monopoly.

        • by psydeshow (154300)

          What massive innovation has the RIAA stifled?

          Think about how easy it is to share photos and albums with your friends and family.

          Now why isn't it just as easy to share music? Try to share a music track or a playlist from your phone.

          Generally speaking, text, images, and video (copyrighted or not) are easily shareable via social software. But audio, not so much.

    • by QuasiSteve (2042606) on Thursday June 14, 2012 @10:42AM (#40322547)

      And on the other hand is hyperbole and backwards Pirate accounting, where a song which was once played on the radio back in the 40's could conceivably have been recorded - legally, for free - by their grandfather onto a wire recorder and passed down through the generations having been transferred to more modern media and replaced with higher quality recordings (after all, one should be entitled to the same piece of music even if it's not the exact same recording) along the way ending with them.

      At which point they made it available to 1,000 'friends' whose grandfathers could also just as easily have recorded it back in the 40's and thus, logically, have every right to that same piece of music.

      It also does not only extend as far back as the 40's - any newly released song is played on radio, released on youtube, etc. so the arguments work just as well for those.

      Which, coincidentally, makes the monetary worth of that music $0, thus there being no monetary damages and no basis for a court case at all.

      Moreover, by exposing people to this music they share, those people may be more inclined to listen to more of that music and actually buy them at iTunes, buy the physical albums, go to concerts and purchase t-shirts and other swag.

      Really, by some Pirates' logic, the RIAA should be paying them.

      I don't really see either extreme being particularly realistic. Unfortunately, the two 'sides' are not likely to come to an agreement any time soon.

      • How about this one (Score:4, Insightful)

        by Anonymous Coward on Thursday June 14, 2012 @10:51AM (#40322641)

        Artificial scarcity is morally wrong and economically harmful.

        Business models that involve data should not be dependent on artificial scarcity.

        We can revisit the old artificial-scarcity model when and if the predicted-but-never-demonstrated cultural impoverishment (a hypothesized result of a lack of new content which is a hypothesized result of a lack of financial incentive to create which is a hypothesized result of the inability to wring every last penny out of everyone that receives a copy of the data) actually happens (which it won't).

        • Re: (Score:3, Funny)

          by Chrisq (894406)

          Artificial scarcity is morally wrong and economically harmful.

          That's what I said to a girl who turned out not to be on the game

        • by icebike (68054) * on Thursday June 14, 2012 @01:17PM (#40324453)

          Artificial scarcity is morally wrong and economically harmful.

          Business models that involve data should not be dependent on artificial scarcity.

          We can revisit the old artificial-scarcity model when and if the predicted-but-never-demonstrated cultural impoverishment (a hypothesized result of a lack of new content which is a hypothesized result of a lack of financial incentive to create which is a hypothesized result of the inability to wring every last penny out of everyone that receives a copy of the data) actually happens (which it won't).

          You have to ask yourself if the scarcity is in fact artificial.

          There is only one Lady Gaga, and she can't be everywhere at once, and she is therefore by definition scarce.

          Recording and mass marketing has made her un-scarce. She chose this route. She did so in order to maximize her
          profit, with the expectation that she might make some money. Not an unreasonable expectation.

          When there were records (vinyl), artists and labels could press a short run, label them a collector's edition if they wanted, and
          controlled the number in production. Same for books. That too was a artificial scarcity of sorts.
          So was the 1937 Bugatti Type 57S Atalante Coupe, 17 made. They could have made any number.

          Others could have copied the car, or the books or the records. But we, as a society, gave that right
          to the car company, the author, or the artist. Never mind WHY we did that. Those arguments are not
          germane, we did it, enshrined it in law, and it is what it is.

          Digital music / ebooks / videos removed all capability for the artist to control the number of copies, and allows
          anyone, at will, to create any number of copies.

          You can't, with any intellectual honesty, simply hand wave that away and claim a business model is morally
          wrong simply because it is suddenly possible to circumvent it in your parents' basement with an $800 computer.

          Ford could have copied Bugatti. But the barriers to entry were high enough (an automotive assembly plant) to prevent that.
          Someone could have pressed a copy of the Beach Boys albums, or any best selling book. Again you had to have the
          expensive tools and you would risk getting caught with a warehouse full of counterfeit goods.

          The computer removes all of that, and gives any 12 year old the ability to make perfect copies at zero cost.

          Does that fact somehow trump the law, wash away the artist's rights, and make copying anything legal?
          Will 3D printing do the same for physical objects?

          The concept of artificial scarcity is, itself, artificial: man made.

          • The problem is Lady Gaga, or any cultural work is not important enough to stifle technological progress. The model is no longer viable, so YES you can hand wave all that profit away. Make money from PERFORMING, not trying to make a profit from every mind your work touches. I HATE the idea that people feel IP allows them ultimate control over work they release into the public consciousness.
            • by icebike (68054) *

              That you hate the idea, means nothing. Its still the law that society has adopted.
              If you don't like that, then work to change the law, so that any work, once created, belongs to all.

              Oh, and go ahead and forward half your bank account to me. Thanks. And keep up the hard work.

      • by gman003 (1693318) on Thursday June 14, 2012 @11:49AM (#40323369)

        If I were a judge, this is what I would do.

        Go out, find what the commonly available price of purchase is for all the infringed songs. Don't bother trying to find "the best deal" or doing some big, exhaustive research on average prices. Just go out to Wal-Mart or go on iTunes, look up all the songs, see what it would cost.

        Move the decimal point over one place. If they stole one album ($14.99), their liability is $149.90. If they stole $100 worth of music, they owe $1000. If they're a repeat offender, move it over an additional place (ie. if this you've been in court for it before, that one album is now $1,499).

        If the defendant actively distributed it (not just "seeded their torrent", but actually posted it on new sites or made their own torrent or whatever), they're liable for both side's legal fees. Otherwise, each pays their own.

        Same applies to any other Intellectual Property. Steal a $60 video game? Pay them $600. Steal a $20 movie? Pay $200.

        The multiplier keeps damages reasonably bound to the actual value of the "goods", but also makes it far cheaper to buy instead of pirate. And the legal fees will make the MAFIAA go after the actual "distributors", not people who just download a few episodes of whatever TV show is popular right now. Economically, the only ones worth it are the distributors (because as long as you win, you have no costs), and the massive steal-every-song-made-in-the-past-century pirates who still rack up millions in damages, not the "I'm gonna give this song a listen before I buy it" crowd or the "piracy is *still* easier than buying" crowd.

        • by MitchDev (2526834) on Thursday June 14, 2012 @12:15PM (#40323601)
          It's "cheaper" and less legally risky to go to the store and shoplift the CD or game than it is to Download it...
        • by AmiMoJo (196126) <mojo @ w orld3.net> on Thursday June 14, 2012 @12:58PM (#40324115) Homepage

          The amount isn't based on what they "stole", it is based on what they supplied to others. The RIAA argues that if you upload a song on a P2P network it can potentially go to thousands of people. They want to be paid for all of those potential "thefts", hence the massive multiplier.

          It seems odd they can be awarded for losses they can't prove.

        • by icebike (68054) *

          The multiplier keeps damages reasonably bound to the actual value of the "goods", but also makes it far cheaper to buy instead of pirate.

          Not really. Its still cheaper to pirate. Price ZERO is still cheaper than price 99cents.

          The receiver (the downloader) pays nothing now, and nothing under your plan. They received a "gift". Its virtually
          impossible to catch them as long as they avoid bit torrent re-seeding.

          The supplier (the uploader or pirate server) pays nothing now, and maybe a few hundred dollars under your plan.

          Even if you catch the uploader in the act, they are not going to tell you how many people they uploaded to. They will say
          I o

      • What is unrealistic about a string of bytes having a value of $0?

        Do you have trouble with computer? ;-)
        • Personally I don't have trouble with computers - though I do have trouble understanding how that even factors into this discussion.

          The unrealistic aspect of "a string of bytes having a value of $0" lies in what that string of bytes constitutes.

          Presume for a moment that the string of bytes is, in fact, the original studio recording before it goes to any CD pressing outfit. (ignoring the CD mastering people, etc. for a moment here).

          The value of that string of bytes is then rather high. You can say that "well

    • A lot of the numbers, arguments, evidence etc. don't make a jot of sense to us. It's all pie-in-the-sky hyperbole and backwards Hollywood accounting, where a song which makes $0.99 per sale from a retailer is worth $150,000 if downloaded and shared.

      You're the lawyer; You tell us!

      Imagine you wanted to start an online music store, a la iTunes. You would contact Capitol Records* and ask for a license to sell and distribute thousands of copies of their music. Do you think they'd say "sure, no problem. That'll be $1"? Or would they say "that'll be 33% of gross sales, with a minimum of $15k for any work per year since you don't have an established track record, and a minimum of $50k for any song in the top-40, plus we want an escrow payment in advance, plus, etc. etc. etc."? Do you think Apple paid $1 per song to the record companies and never again paid a dime, regardless of how many copies they distributed?

      That's the distinction... If Thomas was only a leecher and never uploaded copies, then she could make a reasonable argument about $1. But once she distributed, then she's into the "reasonable royalties and license fees" range.

      And finally, the $150k for willful infringement shouldn't apply, because "willfulness" in this context means something different than "intentional". But Capitol Records sure as hell isn't going to raise that, and Thomas failed to also (reasonably, because arguing that $750-$30k is a better range still leaves her on the hook for more than she can afford). But we should be talking about reasonable royalties for distribution in a range of $750-$30k per song.

      *Of course you wouldn't... You'd only distribute self-published tracks from indie hipster bands. ;)

      • Though most don't provide anything like as many copies as a store.

        the problem is that the logic they follow isn't that you're responsible for the dozen or so copies people download from you but also for every download that every person makes from each of those dozen people and for each of the people who download from from each of those and for each of the people who download from each of those.

        As it were, if you throw a rock and break a window you aren't liable for the actions of the 10000 other people who

        • Though most don't provide anything like as many copies as a store.

          Sure, but do you think Capitol Records would charge only a few bucks to a tiny music store that's only going to sell a dozen copies? No... In fact, just the accounting is such a hassle, that that's why they'd put on the minimum annual payment amounts.

          the problem is that the logic they follow isn't that you're responsible for the dozen or so copies people download from you but also for every download that every person makes from each of those dozen people and for each of the people who download from from each of those and for each of the people who download from each of those.

          As it were, if you throw a rock and break a window you aren't liable for the actions of the 10000 other people who walk past, see 1 or more broken windows and throw a rock themselves.

          Except that that's the logic in the statute. It doesn't require the infringer to be the sole distributor, or require the infringer to pay damages based on how many people they distributed to. Maybe there's a better way of doing the statute, but if it's a flaw i

      • by Kjella (173770)

        That's the distinction... If Thomas was only a leecher and never uploaded copies, then she could make a reasonable argument about $1. But once she distributed, then she's into the "reasonable royalties and license fees" range.

        Not really, in a P2P swarm there's obviously one upload for every download. So by downloading she consumed an upload from another peer and by uploading back herself to a 1.0 ratio - which will be the average - the swarm is only returned to the neutral position. The upload she provided is cancelled out by the one she consumed and in net there is only one extra copy which she could have been bought for $1. If there's 100 people in a swarm there's 100 copies and each person caused 1/100th of that which is 1 co

        • That's the distinction... If Thomas was only a leecher and never uploaded copies, then she could make a reasonable argument about $1. But once she distributed, then she's into the "reasonable royalties and license fees" range.

          Not really, in a P2P swarm there's obviously one upload for every download. So by downloading she consumed an upload from another peer and by uploading back herself to a 1.0 ratio - which will be the average - the swarm is only returned to the neutral position.

          So no one in a swarm ever uploads more than a single copy? Kazaa would disable uploading once it uploaded a full copy of a work? I don't remember it working that way.

          • I guess their argument was something along these lines...

            If you are the only person with a particular track, and one person downloads from you, you have uploaded 1 copy.

            Now there's two people with that track.

            A third person downloads, but of course ends up downloading from both of you. Making the assumption (since there's so many assumptions in this argument already) that there's an equal distribution, then you just uploaded 1.5 copy and the 2nd person uploaded 0.5 copy. The net result is that there is sti

            • But it's rather naive, and flawed, of the GP to think that anybody publicly offering files on a P2P network, and getting downloads from them, only uploaded once by definition.

              Agreed, though I believe his argument was that if there are 20,000 complete downloads of a particular track, there must have been 20,000 complete uploads (split across any number, as you note), so therefore it's an average of 1:1. It has the flaw you note, and an additional one: it assumes no leechers. If 10,000 people leeched, then the ratio suddenly becomes at least2:1 for the seeders, averaged out. Even a single leecher puts the average above 1:1.

          • by Kjella (173770)

            So no one in a swarm ever uploads more than a single copy? Kazaa would disable uploading once it uploaded a full copy of a work? I don't remember it working that way.

            No, that is why I said on average. But there's no proof Thomas-Rasset was above average, in fact they have no proof she actually uploaded anything at all only that that the files were made available. Hence the "making available = distribution" issue, which was dropped. I was just pointing out that even so the average peer in the swarm does not net contribute any upload bandwidth because it consumed just as much downloading as it provides uploading.

            • So no one in a swarm ever uploads more than a single copy? Kazaa would disable uploading once it uploaded a full copy of a work? I don't remember it working that way.

              No, that is why I said on average. But there's no proof Thomas-Rasset was above average, in fact they have no proof she actually uploaded anything at all only that that the files were made available.

              Not so - MediaSentry downloaded from Thomas, and recorded it. There's plenty of proof that she uploaded.

              Hence the "making available = distribution" issue, which was dropped.

              Again, not so. Capitol is still arguing that issue (it makes the higher damages much more reasonable) and it's one of the primary issues on appeal. In her reply brief, Thomas waived that issue, saying it's moot... but it certainly hasn't been dropped.

              I was just pointing out that even so the average peer in the swarm does not net contribute any upload bandwidth because it consumed just as much downloading as it provides uploading.

              Only if no leechers exist. If even a single leecher exists, then the average non-leecher peer in the swarm must contribute more upload bandwidth than it cons

          • No, but a 1:1 ratio is by definition average. Absent further, reliable data, that is what the safest assumption is.
            • No, but a 1:1 ratio is by definition average. Absent further, reliable data, that is what the safest assumption is.

              Ah, but we have reliable data. MediaSentry downloaded files from Thomas. Thus, there's no need to rely on an "average" assumption.

              Plus, your average assumption is averaged across both seeders and leechers. Therefore, by definition, it's not an average of typical distributors. Accordingly, it's not even reliable data for the proposition you're advancing - that a typical distributor only distributes once. In fact, since leechers exist, it means that the average upload/download ratio for distributors must be

              • by jedidiah (1196)

                That's not reliable data.

                On the other hand, there should be some record of what her download ratio actually was. There should be no reason to guess it. Without that information, all she ever did was to "make something available".

                MediaSentry doesn't count and self serving assumptions aren't good enough.

                The RIAA is supposed to be proving something.

      • "that'll be 33% of gross sales, with a minimum of $15k for any work per year since you don't have an established track record,

        That number would be nonsense. Apple has about 20 million songs. 20 million times $15k = 300 billion dollars. And they sold a total of about 19 billion songs (estimated from Wikipedia date for 10 billion and 15 billion sold). So that would be about $16 per song sold.

        But there _are_ comparable contracts. UK newspapers have been giving away CDs full of music for free for quite a while. It would be interesting what lets say The Sun paid for the rights to give away a CD with 20 number one hits for free with

        • "that'll be 33% of gross sales, with a minimum of $15k for any work per year since you don't have an established track record,

          That number would be nonsense. Apple has about 20 million songs. 20 million times $15k = 300 billion dollars. And they sold a total of about 19 billion songs (estimated from Wikipedia date for 10 billion and 15 billion sold). So that would be about $16 per song sold.

          ... I'm not sure you understood the words I typed. Let me help. When I said "minimum of $15k for any work per year since you don't have an established track record," I meant that something like a minimum amount due would be required for people who don't have an established track record. Apple, as you note, has an established track record. Therefore, that clause wouldn't apply.

          Does this make more sense now? Apple sells $19 billion songs, so they'd pay $8.3 billion in royalties.

          But there _are_ comparable contracts. UK newspapers have been giving away CDs full of music for free for quite a while. It would be interesting what lets say The Sun paid for the rights to give away a CD with 20 number one hits for free with every copy of their newspaper. I bet they didn't pay 20 times $150,000.

          In the case of the Sun, the re

      • by Kjella (173770)

        Imagine you wanted to start an online music store, a la iTunes. You would contact Capitol Records* and ask for a license to sell and distribute thousands of copies of their music. Do you think they'd say "sure, no problem. That'll be $1"? Or would they say "that'll be 33% of gross sales, with a minimum of $15k for any work per year since you don't have an established track record, and a minimum of $50k for any song in the top-40, plus we want an escrow payment in advance, plus, etc. etc. etc."?

        Yes, but if a burger store made a joke a sold one single dollar meal calling it a McDonald's meal, McDonald's couldn't argue that because the only way to legally serve a McD burger is to pay a $15k franchise fee, their actual damages from lost sales is $15001 (they could possibly argue loss of reputation though). Any sane judge would reason that this customer would then likely have gone to a real McD and paid $1, which is the only actual loss.

      • by dbcad7 (771464)
        How bout they make Thomas pay 5 times that 33 % of her gross sales !!.. That'll learn her !
        • How bout they make Thomas pay 5 times that 33 % of her gross sales !!.. That'll learn her !

          Since she doesn't have an established track record in the industry, they'd probably set a minimum, as I suggested. So yes, make Thomas pay $15k for each of the songs she wanted to distribute as an advance on that 33% of her gross sales.

      • by Solandri (704621)

        That's the distinction... If Thomas was only a leecher and never uploaded copies, then she could make a reasonable argument about $1. But once she distributed, then she's into the "reasonable royalties and license fees" range.

        Nope. That is an artificial distinction crafted to fit the terminology of copyright law. The copyright holder can legally control distribution, so to be a copyright violation the accused must be distributing - i.e. uploading. The RIAA plays it up for all its worth because that's th

    • You're the lawyer; You tell us!

      I've never before experienced such humility on Slashdot. You must be new here.

    • by bzipitidoo (647217) <bzipitidoo@yahoo.com> on Thursday June 14, 2012 @11:35AM (#40323159) Journal

      One number that no one seems to have argued about much is the number of downloads that could have come from one user's computer. This is the basis for the entire idea of multiplying the damages to levels we all know are ludicrous. The RIAA insists hundreds of people could have downloaded from Jammie Thomas. Although that's possible, it's highly improbable. The most likely number of downloads is 1 per file. That's one, not hundreds or thousands. The court ought to use that number to compute damages.

      Why only 1? For the same reasons that Ponzi schemes do not work. The network quickly becomes saturated. Suppose people can give out copies at more or less the same rate, to anyone else. And once a copy is received, the recipient can quickly turn around and share it. (BitTorrent is even better than that, starting the sharing of parts of a copy before a recipient has received the entire file.) Each generation, the number of people who could have a copy doubles. By the time a person is giving out a copy for the 20th time, 1 million people could have a copy. By the 33rd time, everyone in the world could have it. Even if everyone in the world wants a copy, only one person, the originator, could have given out as many as 33 copies, and only the first recipient could have given out as many as 32. Just 8000 people could have given out 20 copies, and just 1 of every 2000 people could have given out 10 copies. Half the people will have given out zero copies, because by the time they got it, there was no one left who still didn't have a copy of their own. The average number of copies of 1 file that a person gives out is 1.

    • by Bengie (1121981) on Thursday June 14, 2012 @12:02PM (#40323477)
      I came across this analogy.. paraphrased.

      Claiming losses on sales that never happened in the first place is like this.

      Say littering gets you a $100 fine. Say if you spent all day littering in front of a police station, you could rack up $5000 in fines. This means if you don't litter, it's like saving $5000/day, which means people who don't litter at all are "saving" more than $1.8mil/year. They're all rich!
  • when a dinosaur dies (Score:5, Informative)

    by circletimessquare (444983) <circletimessquare AT gmail DOT com> on Thursday June 14, 2012 @10:31AM (#40322417) Homepage Journal

    it's tail thrashes around a lot, and does a lot of damage

    it's still going to be extinct very soon nevertheless

    you can't foist a business model from a dead era on us

    well you can try, and drain all of your coffers in the process, thereby speeding up your demise

    but economic reality has a way of being economic reality despite your protestations

    they call things like the Internet "disruptive technology" for a reason

    consider yourself permanently disrupted, media conglomerates

    • Re: (Score:2, Funny)

      by Anonymous Coward
      Burma Shave
    • by Okian Warrior (537106) on Thursday June 14, 2012 @11:41AM (#40323255) Homepage Journal

      When a dinosaur dies, it's tail thrashes around a lot, and does a lot of damage

      That statement got me really curious.

      Apropos of nothing, just how is it that you come to know what happens when a dinosaur dies?

      • oh shit... i let that slip

      • When a dinosaur dies, it's tail thrashes around a lot, and does a lot of damage

        That statement got me really curious. ...just how is it that you come to know what happens when a dinosaur dies?

        +5 Funny. Too bad I'm not a moderator.

    • by bbbaldie (935205)
      The funny thing is that for years the RIAA was that cool organization that presented artists with those gold and platinum records. I bought quite a few records back in those days, but felt a twinge of guilt when I would record them onto cassettes to spare wear and tear on the record. The guilt increased a bit if I recorded friends' albums, although I tended to eventually spring for my own copy of the good ones, just so i could get a more pristine cassette recording.

      That was before they destroyed Napster, a

    • Reminds me of the message in a NOFX song, Dinosaurs will Die (or maybe you were referring to it)? Some of the lyrics :

      Prehistoric music industry Three feet in la brea tar Extinction never felt so good

      If you think anyone would feel badly You are sadly, mistaken The time has come for evolution Fuck collusion, kill the five

      Whatever happened to the handshake? Whatever happened to deals no-one would break? What happened to integrity? It's still there it always was For playing music just because A mil
    • they call things like the Internet "disruptive technology" for a reason

      In ten years the Internet as we knew and took for granted will be dead as a doornail.* It will not stand a chance against the most destructive 'technology' of all: multinational corporate greed machines and their political whores, so willing to please.

      * And all the talk of mythical 'dark nets' being our saviour is beyond polliannish. Even if possible, it will be along the lines of a distributed but tiny Sneakernet.

      • that's awesome, that you are so addled by fear that you accept these bogeymen as reality

        you'll excuse the rest of us who don't just lie down and get raped when someone tries to rape us

        if that is how you handle reality, good for you. the rest of us aren't so meek and cowed as you to simple menace

        your words speak of a slave's mentality

        fight for what is right, or shut up and fuck off

  • For better or for worse, Thomas waived the "making available = distribution" argument, and argued only the Constitutionality of statutory damages in a case with an argument for no actual damages... But by basically stipulating to distribution, she no longer can make the argument that this is just about a single download, the "noncommercial individual file sharing at issue in this case."

    Additionally, the argument seems to not be focused on the statutory range at all - which is a mistake when they're arguing about the Constitutionality of the statute. Rather, on page 5, Thomas notes that the damages could be as low as one song times the minimum, or dozens of songs times the maximum, and then compares this to a range of "$50 to $10,000,000"... But that's not the range in the statute. Instead, at best, it's an argument that dozens of instances of infringement of independent works should be treated only as infringement of a single work, and I can't see the court deciding that Congress lacked a legitimate reason for not writing the statute that way.

    Also, from her brief: "If the recording companies are correct, then they are claiming that Congress considered and approved damages ranging from one song times the minimum ($250) to thousands of songs times the maximum (hundreds of millions of dollars or more)." That's just sloppy. Either he means $750 or he means $200, but which is not clear.

    • Thomas' attorney K.A.D. Camara is something of a legal gadfly. The guy is 28 years old, doesn't have lots of experience as a practicing attorney, and took the case on pro bono for the publicity. Camara experienced some bad publicity at Harvard Law School when he uploaded legal outlines that contained a racial slur to a student-run sharing website, so he probably wanted some better publicity. He waived the making available theory, I think, in an attempt to get a shot at the Supreme Court hearing about the co

  • If that stands... (Score:5, Interesting)

    by MikeRT (947531) on Thursday June 14, 2012 @10:57AM (#40322691) Homepage

    It'll just make a bigger mockery of our court precedents. If hundreds of thousands of dollars in fines for what would no more than grand theft in most states is not "cruel and unusual" WRT fines, then how can the Supreme Court possibly justify things like saying that it is cruel and unusual to use the death penalty on someone who is a serial child molester (they struck down Louisiana's law which provided for execution of repeat offenders say it was "uncivilized").

    Oh wait, this is the same federal judiciary that only recently discovered that the 2nd amendment was part of the Bill of Rights and was being excluded from incorporation under the 14th. In another 150 years, they might discover that the DMCA's statutory damages are unconscionable and hypocritical as well.

    • If hundreds of thousands of dollars in fines for what would no more than grand theft in most states is not "cruel and unusual" WRT fines

      These aren't fines. These are compensatory damages. And for better or for worse, that's how the courts have been responding to the argument that the statutory damages range is cruel and unusual punishment. The precedents that Thomas is citing all have to do with punishment and punitive damages, but they simply don't apply to this statute... except with regards to willful infringement increasing the range, but Thomas isn't arguing against the willfulness part of the range. In fact, her reply brief explicitly

  • The problem, I think, with this is that they are trying to directly equate the concept of making something available to doing something wrong.

    Instead, I think, they need to take a different route, and look at the facts.... and the law how it *REALLY* applies, not how they think it ought to.

    Making something available would, by any sense of reasoning, negate any possible notion of private use.

    If nonprivate use is not applicable under the circumstances (for example, the copy being used privately was una

    • Didn't notice it until well after I hit submit... but in the parenthetical remark above, I meant "(for example, the copy being used non-privately was unauthorized)..." Since what I intended to say and what I actually wrote are practically opposites, I felt clarification was in order.
  • they can get what ever they want. You never hear about abuses like hollywood accounting needing to be fixed and if anything the actual music and movie makers and US Taxpayers are being hugely cheated from it.
  • After listening to the oral argument, what do you think?

    Same as when someone posts a link to a video. I don't think anything yet, because non-text media requires a shitload more time and patience. . 60 seconds of audio (optionally with video, don't matter) = 6 seconds of text.

    This is supposed to be an argument, not art. Please don't tell me the whole point is that the guy has a funny voice or something like that.

  • What I think? $2250 per file is still WAY too much, as is the whole idea of sky high statutory damages as applied to a petty case of non-commercial file sharing. Seen from outside the US, this whole case looks extremely weird and outright crazy, not to say totally out of touch with reality. Sorry, I don't mean to offend anyone here.
    • What I think? $2250 per file is still WAY too much

      I agree. The actual out of pocket damages are around 5 cents per unauthorized download. $10 for a 99-cent download would be enough.

  • This is, I guess, the lighter side of the Law.

    My favorite moment in the argument was when the judge asked the RIAA's lawyer (Paul Clement) whether he agreed that the statute requires, for distribution, that there be a sale or other transfer of ownership, or a license, rental, or lending. And Clement asked the judge not to rely on the words of the statute, but to read the statute 'holistically'.

    I never knew the RIAA was so holistic. Maybe next they'll be wearing beads and tie-dyed t-shirts.

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