8th Circuit Upholds $220,000 Verdict In Jammie Thomas Case 285
NewYorkCountryLawyer writes "The U.S. Court of Appeals for the 8th Circuit has upheld the initial jury verdict in the case against Jammie Thomas, Capitol Records v. Jammie Thomas-Rasset. This case was the first jury trial for a file-sharing suit brought by the major record labels, and focused on copyright infringement for 24 songs. The Court of Appeals has ruled that the award of $220,000, or $9250 per song, was not an unconstitutional violation of Due Process. The Court, in its 18-page decision (PDF), declined to reach the 'making available' issue, for procedural reasons."
Good Lord (Score:5, Insightful)
Re:Good Lord (Score:5, Insightful)
This isn't a case of lack of knowledge of the technology. It's a case of the law being absurd, and the judges hands being tied. It's absurd that sharing a couple dozen songs can carry a greater liability than murdering someone (I'm talking civil law here).
The punishment certainly does not fit the crime, but that law allows these kinds of damages.
If you don't like it, lobby your lawmakers.
Re:Good Lord (Score:5, Interesting)
Is the judge allowed to tell the jury about jury nullification? If he is, then his/her hands are never tied.
Re:Good Lord (Score:5, Informative)
No they are not allowed to tell the jury about jury nullification. technically no one is allowed to tell the jury about jury nullification, and doing do would be precedent for a mistrial.
Re:Good Lord (Score:5, Interesting)
Is the judge allowed to tell the jury about jury nullification? If he is, then his/her hands are never tied.
I doubt that would have had any effect in this case. Three different juries: The first found that Thomas-Rasset willfully infringed and awarded $222K; the second was given instructions that were slightly more favorable to her, and found she infringed and awarded $1.9M; the third was only asked to reconsider the very high award of the second and awarded $1.5M.
In all three cases, if the juries had had any inclination to favor Thomas-Rasset they could at the very least have awarded the statutory minimum of $750 per song, or $18,000, but they awarded 12, 105 and 83 times that minimum. What makes you think they'd have voted to nullify?
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I recall reading that people, when given a range of options, tend to pick a middle one. So, they didn't take the minimum, and likely didn't take the maximum. They might even have simply averaged the two fenceposts.
That's as may be, but nullification clearly wouldn't be a "middle road", it would be a conscious decision to refute the charges, and if the jurors had been thinking that direction they clearly would have at least have chosen the minimum statutory damages available.
Jury Nullification Is A Game For Fools (Score:2, Insightful)
Is the judge allowed to tell the jury about jury nullification? If he is, then his/her hands are never tied.
Historically, jury nullification freed the Klansman and hanged the black man.
It freed the good old boys and not the outsiders. Three guesses as to whether the geek will be found on the side of the angels. Three juries cheerfully took turns hammering Jamie Thomas and her pro bono attorneys into the marble flooring.
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Why, in every article about law, does some idiot have to say something to the effect of 'you get away with less for murdering someone'? It is flatly untrue.
Case in point - the judgment in this case was less than $10K/song (it is not the court nor law's fault that she did it 24 times). OJ Simpson was ordered to pay $33M for the wrongful death of Ron Goldman. So it seems like the 'liability' for murder is approx 33000 times greater than the liability for copyright infringement.
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Why, in every article about law, does some idiot have to say something to the effect of 'you get away with less for murdering someone'? It is flatly untrue.
Except for the fact that your example proves the point you intended to contradict.
OJ Simpson got away with murdering Ron Goldman and Nicole Simpson in that he was not sentenced to prison, or what would have been more correct, to death.
The fact that OJ Simpson was ordered to pay a fine for wrongful death means that he did, indeed, get away with murder.
Re:Good Lord (Score:4, Informative)
If you want to gloss over the minor fact that he was not convicted of murder, then you have a point. His not being convicted had absolutely nothing to do with murder carrying less punishment than copyright infringement.
The wrongful death suit was a civil case, like this one. And the GP carefully pointed out that his was talking about civil law. And in these cases, in civil court, murder carried a 33000 times greater liability than copyright infringement.
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Sure. The OJ Simpson trials were of a completely ordinary sort, completely representative of ordinary American trials.
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If you are going to make a comparison between copyright and murder civil trials (which the GP, not I, did) then you are going to get comparisons between those cases. There are no ordinary civil murder trials.
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If you are going to make a comparison between copyright and murder civil trials (which the GP, not I, did) then you are going to get comparisons between those cases. There are no ordinary civil murder trials.
It's a dumb comparison. The amount of the judgement against OJ in the wrongful death suit was due to his fame and status, and that 33 Million amount that was stated is far above the usual amount. Additionally, the cases were high profile circuses. I am not going to argue whether or not there exists "ordinary civil murder trials", but the OJ trial is certainly among those that stray far outside the norms.
On the other hand, Thompson is not rich, famous, a celbrity, and (unfortunately) someone of little int
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The OJ trial was not typical of wrongful death trials. More often, someone gets a 50k award or less.
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And those are almost never murder cases. They are accidents, negligence, etc. Where are the $50K murder cases?
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Sure, go ahead... if you have deeper pockets than the MAFIAA. If you don't, lobbying against the excesses of Copyright Law could put you on a terrorist list or something like that. At least that's my impression of the US political system: they consider the so called "intellectual property" as the new Oil of the 21st century. Their oil, to monetize to the max and beyond. And as in every Oil war so far, people get killed, in real life or symbolically/figuratively.
How much can you spend? (Score:2)
If you don't like it, lobby your lawmakers.
And who will "your" lawmakers listen to, you or these guys?
Lobbyists [opensecrets.org]
Interest groups [opensecrets.org]
PACs [opensecrets.org]
Re:Good Lord (Score:5, Insightful)
>If you don't like it, lobby your lawmakers.
hahahahahahahahaha.......hahahahahahahahahaha.........hahahahahahahahahahahahahahahahahaha....
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Re:yikes! (Score:5, Informative)
He might have been modded troll because he's too gopddamned lazy (or perhaps ignorant) to use his shift key. I can see the logic of modding someone who writes unreadable prose "troll", although "overrated" would be better.
Note to aliterates, illiterates, those who can't do homophones or know how to use an apostrophe: All your comments are overrated and I will mod them as such, and so will many other literates who chafe at reading uneducated tripe.
This used to be a place where educated, intelligent people come. Looking like a hipster or a jock IS a troll on a nerd site; we're nerds, not jocks and hipsters. For instance, if your honest opinion is that science is useless, you're automatically a troll here, just as an honest opinion that there is no God on a Christian site is a troll, Medicare should die on an AARP site is a troll, and an opinion that sports are stupid on a jock site is a troll.
So he and everybody else can take their hip "txtspk" and go somewhere else; they're not welcome. They are trolls. They need to go away and stop bothering those of us who read books once in a while.
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What do you think moderation is, other than sitting there and judging people according to your personal standards?
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His signature is in and of itself a troll. If you post it, just because you put it under two little dashes doesn't make it immune to moderation.
Re:yikes! (Score:4, Insightful)
to those who are itchy to mark me troll - why? i expressed an honestly held conviction in a calm and rational matter, and supported my modest claims. c'mon, i'm just trying to be part of the slashdot community. why give me a hard time?
probably unpopular to take that tone - someone thinks you are an Apple or RIAA apologist. For my money, I too, buy the junk I listen to or watch. I may always be on the right side of things, but that never stops someone suing me if they feel they oughta and their lawyers are all sitting around the office with nowt to do.
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I downloaded gigabytes of music and was losing interest in music. One day I started buying music again, and found I was enjoying it a lot again.
There's a Ph.D. idea there for someone. Some sort of perceived value factor? Or just that the geeks who posted all that free music can't encode it properly to save their ever cursed lives? Honestly, a lot of people must have had the cheapest crap MP3 players. 128 Kbps encodes. File titles were like novels. "Title_Artist_Album_Genre_Year_Label_LinerNotes_UUENCODE-OF-
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But ya, I've warned people off using any sort of sharing/P2P/whatever because it's just not worth it anymore.
Until there is some major change in policy (and right now it's full steam ahead for fascism) I'm staying away until the
RIAA/MFAA(whatever) runs out of witches to burn.
Re:yikes! (Score:5, Funny)
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to those who are itchy to mark me troll - why?
I'm going to assume that is a serious question and give you the straight answer:
The reason they are marking you "troll" is because it is the closest thing to "shill" in the mod system. Your comment is indistinguishable from that of a copyright industry shill and you have a high user ID. There's more to it than that in the way your post is presented -- it looks suspicious -- but I'm not going to tell you any more. If you are a shill, I don't want you to know wher
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to those who are itchy to mark me troll - why?
I'm going to assume that is a serious question and give you the straight answer:
The reason they are marking you "troll" is because it is the closest thing to "shill" in the mod system. Your comment is indistinguishable from that of a copyright industry shill and you have a high user ID. There's more to it than that in the way your post is presented -- it looks suspicious -- but I'm not going to tell you any more. If you are a shill, I don't want you to know where your veil is thin.
I thought it was a little suspect myself. Still, I would not personally have modded him down.
If the presence of shills causes us to be so suspicious of each other, to never extend benefit of doubt, to be less tolerant of unpopular speech, and above all to use down-mods as a substitute for well-written rebuttals... then the shills have done much more damage to this community than they could have hoped to accomplish. And we ourselves helped them to do it.
A genuine shill being treated a bit more kindly
Re:yikes! (Score:4, Insightful)
If the presence of shills causes us to be so suspicious of each other
Being suspicious of the existence of shills is the correct response to the existence of shills.
to never extend benefit of doubt
Nobody suggested that was the case. I, and I suspect most people here, assume every post is genuine unless it triggers our suspicion. Like this one did.
to be less tolerant of unpopular speech,
That's a tricky phrase. If the speech is unpopular because of groupthink, we should not be less tolerant of it. If it is unpopular because it is ill-formed, we should be less tolerant of it. Noise lacking signal should be attenuated in order for substantive dialog to rise to the fore. That is the express purpose of the moderation system.
above all to use down-mods as a substitute for well-written rebuttals
Well-written rebuttals are the right response to reasoned discourse by free people. Shill posts are not reasoned discourse by free people, they are for-profit attempts to manipulate public perception and behavior and to affect public policy. Detection of shills is tricky, but attenuating shills is objectively pro-social.
The best way to combat actual shills is to know in your mind and understand in your heart why they are wrong, because hearts and minds are what they want to capture.
That is the best way to defend yourself against them, but it is a completely ineffective way to combat them. Things that happen entirely inside your head have no effect on the outside world. If the objective is to achieve inner peace, then your advice is spot-on. If the objective is to prevent shills from distorting our society, then we must combat them.
That knowing and understanding is the product of informing yourself and does not depend on anything someone else does.
It is not enough to simply defend yourself. Their intent is to have an effect on public perception, behavior, and policy. While being informed is a sound foundation for engaging them in the court of public opinion successfully, informedness is not -- in itself -- sufficient to protect our society from them. Protecting our society depends rather heavily on things other people do. Preventing shills from having their intended effect on those people is a pro-social pursuit.
Consider also that if he actually is that much of a corporate whore, his inability to respect himself in any real way is far worse than thousands of down-mods.
That is only true in the sense of how it affects a shill inside his head. The purpose of shilling is not to affect the shill's mind, it is to manipulate society. Likewise, the purpose of combating shilling is not to make the shill feel bad, it is to protect our economy. If there were a way to defend society against the shill while simultaneously giving him a big warm hug and a pat on the back, I'd do it.
Re:yikes! (Score:5, Insightful)
So, according to you, because I don't toe the slashdot monoculture line, I must be a troll and a shill.
No. According to me, because of the way you presented your opinion, you are indistinguishable from a shill.
I believe in the benefits of a lively and spirited debate from people who are steeped in the issues.
You were not presenting a spirited debate about the merit of a policy, you were attempting to pursuade people to engage in a particular behavior in response to a threat posed by bad policy. In effect you were telling people to be more obedient or face the wrath of the legal system. That is not spirited debate, it is authoritarianism.
I'm sorry for you that you feel differently.
Awww, that's pretend nice of you to say. I guess I won't slit my wrists now that I know you care.
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why not take the linux or some other open source code and sell it without giving back to the community?
its just bits and i'm not stealing anything
Re:yikes! (Score:4, Informative)
why not take the linux or some other open source code and sell it without giving back to the community?
That is perfectly legal and encouraged. Go ahead!
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c'mon, i'm just trying to be part of the slashdot community. why give me a hard time?
You might try using your shift key so you look less like a hipster trying to be a nerd nerd if you want to fit in (I notice you don't mind the shift key to make a question mark... LAME!). This is a nerd site, not a hipster site. Get with the program, dude. Read a book once in a while.
And don't give me that e.e. cummings shit, he wrote poetry. His prose used caps and punctuation.
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Bandage solutions? Yes, $220k is a ridiculous fine, but I don't see how that negates the value of iTMS, Amazon's music store, Google Play, etc. If you don't think a DRM-free song in a reasonable bit-rate (256kbps; not as good as lossless, but better than 128) for $1.29 is reasonable, then don't buy it. Or pirate it. Why should you get someone else's work for free when their licensing agreements explicitly state that they think you should pay for them? Yes, we all hate the **AA, but remember that nobody
Re:yikes! (Score:5, Insightful)
No, but the government *did* hold the rest of the country at gunpoint and continues to steal (as in "taking from us and making unavailable for our use") what rightfully should have gone into the public domain with the stroke of a pen. That's *my* problem with the way things are.
Re:proving you got the songs legitimately (Score:3)
"Except, they can find those MP3s on your computer at a border patrol stop (and yes, they really are searching computers for pirated content at border crossings now) and arrest you for pirated content on your computer. You have no way of proving you got the songs legitimately. iTunes is not the solution to the problem."
Yes there is for some cases. If they're really doing that, then one of my many little projects is starting to have value. I call it various things, such as "WhiteListing" and preparing for "D
License management tools: good, bad, or ugly? (Score:3)
"It's REALLY hard to do! It's basically exhausting."
So true. Something I posted in 2001:
"License management tools: good, bad, or ugly?"
https://groups.google.com/forum/?fromgroups#!topic/gnu.misc.discuss/30tDY9VE92Y [google.com]
"My question is: should software tools, protocols, and standards play a role in easing this required "due diligence" license management work (at least as far as copyright alone is concerned)?"
Also, where I hypothesized millions of US citizens arrested over copyright, same as now for marijuana: htt [pdfernhout.net]
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It will not change anything (Score:5, Insightful)
We will continue to share and the labels will learn their place.
Re:It will not change anything (Score:5, Insightful)
Too bad for the sacrificial lamb, but as has been said before, if we want the laws changed, we need to work to change them. If we want the media companies to change we need to buy enough stock in the media corporations to exert some influence with regards to marketing, and IP.
Most downloaders however won't bother to expend any time or energy to change the law, or vote on stocks. They'll simply move on to the next media sharing methodology and happily continue on, (as they always have) while the "Mainstream" eventually catches up.
So the story continues ... Until the media moguls finally figure out that they are stepping over dollars to pick up dimes, there will be one after another file sharing methods, and one after another sacrificial lambs.
when is the revolution ? (Score:2)
Somewhat seriously. The aristocrats of the Capitalistic system are totally messing with us.
Statutory damages are devoid of all meaning (Score:5, Insightful)
1st civil jury trial Statutory damages of $222,000 ($9,250/song).
2nd civil jury trial Statutory damages of $1,920,000 ($80,000/song).
Remittitur Statutory damages reduced to $54,000 ($2,250/song).
3rd civil jury trial Statutory damages of $1,500,000 ($62,500/song).
Damages reduced Statutory damages reduced to $54,000 ($2,250/song).
Seriously, statutory damages are a joke. The number is completely arbitrary and jumping around, seemingly randomly, from $54k to almost $2m. Isn't this a pretty good sign that things are FUBAR, and "statutory damages" is devoid of all meaning? The $150,000 statutory damages maximum (per infringement) was written into law with a very different context in mind than it's being applied to (industrial scale for-profit copyright infringement). These statutory damages seriously are completely defunct, yet copyright holders are exploiting them to no end. *We* as a society have provided *them* copyright to promote the *useful* arts and sciences. I think it's becoming very clear the art they are producing is no longer useful, but a determent to society. Perhaps *we* as a society should take those rights away, or at the very least severely curb them to avoid this utter nonsense.
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Re:Statutory damages are devoid of all meaning (Score:5, Informative)
Again, sorry to reply to myself but this nonsense really gets me riled up, especially if you have a look at what the adult film industry is doing with copyright these days. If you're not aware, there's a massive nation-wide campaign going on where over 300,000 people have been sued so far in a grand perversion of technology and the justice system in efforts to extort multi-thousand dollar settlements. And this movement has its roots squarely in RIAA litigation tactics. See: http://fightcopyrighttrolls.com/ [fightcopyrighttrolls.com]
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This isn't about actual damages which would be higher than $24. (30 songs times 1000 people downloaded them, and 100 people who would have bought the song if it were not free == $3000 lost sales.) This is about setting an example to scare teenagers from downloading. And it's working.
Re:Statutory damages are devoid of all meaning (Score:5, Insightful)
Part of this, which often escapes /. users is that the law isn't justified by just actual losses, but also also includes punitive recourse as well.
I'm of the opinion that Punitive damages should be awarded, but those should go to the state, not to the victim. I'm all for actual damages, and perhaps 10% (or Treble damages or some other number) of the Punitive damages going to the victim, but most of the punitive damages should be going to the state, into a victims compensation or something like that. This would prevent the idea of "get rich quick, just sue" mentality that is clogging up the courts now. Courts have become Greed Machines.
Re:Statutory damages are devoid of all meaning (Score:5, Informative)
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The other part that is generally missed, and has been a few times already in here, is that this has nothing to do with downloading music. In fact, it may even be legal to download music.
The issue is that the files are uploaded. This means that the person's computer is making and distributing copies of the songs, which is an obvious violation of copyright.
So, while the value of what was downloaded is probably about $30, the value of a license legally allowing you to copy and distribute copyrighted material i
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Plaintiffs are informed and believe that Defendant... use[d] an online media distribution system to download the Copyrighted Recordings, to distribute the Copyrighted Recordings to the public, and/or to make the Copyrighted Recordings available for distribution to others.
The claim they bring is copyright infringement.... violating the exclusive rights of the copyright holder to perform (downloading) and distribute (uploading). Now, they cannot really prove you downloaded it, unless they're in the middle of that transaction, which brings up all sorts of unclean hands defenses (which is a sticking point in bittorrent cases). They can prove you uploaded it, if they downloaded it from you. But they also c
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This isn't about actual damages which would be higher than $24. (30 songs times 1000 people downloaded them, and 100 people who would have bought the song if it were not free == $3000 lost sales.)
Of course it's not about actual damages; that's why we're talking about statutory damages in the first place. The point is that the Plaintiff isn't seeking actual damages because 1) they are incalculable (incalculable not as in astronomically high, as in there is no possible way to actually calculate them) and 2) any approximation of actual damages is so incredibly low as to be an insult to everyone's time and reputation involved in the trial. Even your generous $3000 calculation spits in the face of the co
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I'm going to have to slightly disagree about who makes the copy. Clearly both the uploader and downloader take part in the copy action. The uploader isn't giving free access to his computer to the downloaders; the downloaders are requesting specific subsections of the work to be downloaded. He is then reading off those bytes to the downloader who then writes those bytes down on his hard drive.
It'd be the equivalent of me reading Harry Potter to you and you writing it out while I read it to you. We were
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It'd be the equivalent of me reading Harry Potter to you and you writing it out while I read it to you.
You're half way there. To complete the analogy, the person reading harry potter would have to know the other was writing it down and would have to know doing so is an act of copyright infringement. This is called contributory liability and is a form of secondary liability. The other kind is vicarious liability, which brings liability to an employer of and employee who infringes in the course of his job. This contributory liability is very difficult to prove, which is why it's not often brought as a claim ag
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It would be similar to you hanging up a pamphlet on a bulletin board near a copy machine.
If you actually upload to another peer, you are distributing and in violation of 17106(3). The downloader is reproducing and in violation of 17106(1). The whole "making available" issue is because they can not prove any distribution actually occurred, except possibly one the copyright goons caused themselves but that doesn't count. Consider the following analogy, assume you are preparing a murder. You've procured the gun, you've tricked the victim here, everything is lined up for your trigger man to pull th
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Have you ever torrented? Did you ever seed until the ratio reached 1000?
However, even going with your figures, there is only so much overkill before things become unreasonable. Treble damages is quite popular in other areas of law, which would come to $9000). Of course, the RIAA member wouldn't have made ALL of that $3K, the download provider would have taken as much as 40%, so it's closer to $2000 times 3or 6K.
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So let's say one person buys a single with a single song on it for $1.
He then seeds it.
1/10th of that song is downloaded by each of ten individuals. However, he has since "made available" ten times and it was downloaded ten times, so the actual damages are then $10.
But wait. Each of those ten downloaders cross-polinated to nine other downloaders. So they all "made available" nine times and were downloaded from nine times, so the actual damages for each of them are $9.
So they all pay up.
The RIAA gets:
$1 f
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I agree completely, of course.
I think the solution is to expand fair use to include all non-commercial copying, which is what I blog about
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Absolutely! But how is that supposed to happen, considering that we as a society are already brain washed by the very news and entertainment media conglomerates that have everything to lose with saner copyright laws? Those conglomerates will NEVER permit society to change its stance on copyright, and every politician or grass roots movement that tries to emerge here will be cut off
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Minor nit: copyright is meant to promote the progress of science; it's patents that are meant to promote the progress of the useful arts. But yes, both are utilitarian systems, and should be reformed to best serve the public interest, rather than the interests of authors and publishers.
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Heh, just a few days ago someone was arguing with me that the meanings of words used in the Constitution haven't changed, but I think you are interpreting them backwards.
The "useful arts" are supposed to be practical applications, i.e. manufacture and craftsmanship, or (using a modern term) engineering. Patents are supposed to protect those things.
Copyright protects science because science's result (pure science) is a research paper. Once you get into an "invention" (the term you use) you are already talk
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Piracy = theft? (Score:5, Insightful)
Industry shills are constantly trying to convince the public that piracy = theft, but punishments like this make it seem more like piracy = murder. In my home state, anyway, "a person convicted of the offense of retail theft of merchandise having a retail value not in excess of $100.00 shall be punished by a fine of not more than $300.00 or imprisonment for not more than six months, or both." Torrent the same CD, however, and you're out $150,000 ($10,000/song, assuming 15 songs on a CD).
Note to potential downloaders: just steal the goods you want. You'll get off a lot lighter that way.
P2P = fence (Score:3)
Torrent the same CD, however, and you're out $150,000 ($10,000/song, assuming 15 songs on a CD).
I agree that the theft analogy has flaws, but let's run with it for the moment: Someone who trades infringing copies over BitTorrent or other reciprocal peer-to-peer file sharing protocols is like a fence [wikipedia.org], someone who sells stolen property. If the P2P software uploaded 9,250 copies of each song to other users, then Thomas isn't paying more than retail.
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If the P2P software uploaded 9,250 copies of each song to other users, then Thomas isn't paying more than retail.
Yes, if he did upload that much. Except there is no proof that he uploaded that much and not only that, it's also highly implausible. 9250 copies per song, 15 songs, a song say 3MB in size and we are talking about 400GB upload volume. That so much that it should be not only unlikely, but proofable impossible for the average user.
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In which case he should've been charged with that, and the plaintiff should've been required to provide some proof for that claim.
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If the P2P software uploaded 9,250 copies of each song to other users, then Thomas isn't paying more than retail.
You wouldn't reach a ratio of 1:9250 even seeding from a 10 Gbit/s connection on TPB torrent, seriously. And even if you did, if you wanted to buy 9250 copies of the same CD I'm sure it would be a lot cheaper than what these crooks wants to get.
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Well, simply close the port if you don't want to upload torrent data. Get pretty much any consumer grade router, turn off "Universal Plug and Play" (or disable "automatic port mapping" or whatever they are calling it in your torrent client) and don't set up port forwarding.
Alternatively, a software firewall could even be configured not to allow the incoming connections.
Most torrent clients allow you to specify a single port to use. Make sure it's not one that is being forwarded to the outside world.
You'll s
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Actually, piracy IS theft, but copyright infringement isn't piracy. Piracy is what happens on the High Seas, e.g. near the coast of Somalia. The concept of copying files (instead of stealing them) should constitute piracy is flawed from the get go.
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Note to potential downloaders: just steal the goods you want. You'll get off a lot lighter that way.
You know, I'm embarrassed to say I never thought about it this way. I've always been against the record companies, et. al. on this topic, but it's never really occurred to me how completely right you are. In fact, there's almost zero chance, for a first offense, that you'll have to pay anything or even have any kind of punishment. I'd image you'd get some sort of suspended sentence that will be expunged if you keep your nose clean for a year.....
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It's surprising after all this time that people still don't understand what this case is about.
It's about Jammie uploading the songs and violating copyright. It's not about her downloading the songs.
So your note to potential downloaders should be amended to something like: If you're going to download, disable uploading.
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I understand the various issues quite well. I was looking at it more from the standpoint of your average P2P user, I guess. But even focusing solely on the issue of uploading, there are a slew of reasons why this punishment is grossly excessive.
As for civil versus criminal: keep in mind that it's the industry that is benefiting from unchecked punishments in civil cases that is constantly trying to convince everyone that piracy is theft (a criminal case). To that I say, fine, but the punishments should b
Due process? (Score:5, Insightful)
Due process is guaranteed by the 5th and 14th amendments. The problem with this case is excessive fines, prohibited by the 8th amendment. Why wasn't this an issue in this appeal?
Re:Due process? (Score:4, Informative)
Did you read the ruling? they did address that:
Thomas-Rasset urges us to consider instead the “guideposts” announced by the Supreme Court for the review of punitive damages awards under the Due Process Clause. When a party challenges an award of punitive damages, a reviewing court is directed to consider three factors in determining whether the award is excessive and unconstitutional: “(1) the degree of reprehensibility of the defendant’s misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.” State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 418 (2003); see also BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 574-75 (1996).
The Supreme Court never has held that the punitive damages guideposts are applicable in the context of statutory damages. See Zomba Enters., Inc. v. Panorama Records, Inc., 491 F.3d 574, 586-88 (6th Cir. 2007). Due process prohibits excessive punitive damages because “‘[e]lementary notions of fairness enshrined in our constitutional jurisprudence dictate that a person receive fair notice not only of the conduct that will subject him to punishment, but also of the severity of the penalty that a State may impose.’” Campbell, 538 U.S. at 417 (quoting Gore, 517 U.S. at 574). This concern about fair notice does not apply to statutory damages, because those damages are identified and constrained by the authorizing statute. The guideposts themselves, moreover, would be nonsensical if applied to statutory damages. It makes no sense to consider the disparity between “actual harm” and an award of statutory damages when statutory damages are designed precisely for instances where actual harm is difficult or impossible to calculate. See Cass Cnty. Music Co. v. C.H.L.R., Inc., 88 F.3d 635, 643 (8th Cir. 1996). Nor could a reviewing court consider the difference between an award of statutory damages and the “civil penalties authorized,” because statutory damages are the civil penalties authorized.
Applying the Williams standard, we conclude that an award of $9,250 per each of twenty-four works is not “so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable.” 251 U.S. at 67. Congress, exercising its “wide latitude of discretion,” id. at 66, set a statutory damages range for willful copyright infringement of $750 to $150,000 per infringed work. 17 U.S.C. 504(c). The award here is toward the lower end of this broad range. As in Williams, “the interests of the public, the numberless opportunities for committing the offense, and the need for securing uniform adherence to [federal law]” support the constitutionality of the award. Id. at 67.
Re:Due process? (Score:5, Insightful)
Applying the Williams standard, we conclude that an award of $9,250 per each of twenty-four works is not âoeso severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable.â
The award of $9,250 is not really the issue. In fact, that would be an arguably reasonable punishment for the alleged infringement.
The issue is counting each file as a separate infringement and multiplying $9,250 by 24.
Using kazaa or whatever it was to infringe and being convicted should be a singular crime, not 24 separate crimes.
When I ripped my 800+ disc CD collection I ended up with upwards of 9000 tracks. When I installed a filesharing app that by default pointed at my music folder I am apparently on the hook for 9000 separate crimes @ $9250 each?
Lets see: this court apparently thinks it would be "reasonable" to fine me 83 million dollars for that.
Re: (Score:2)
Nope, the court doesn't think that, at least not according to what they wrote:
Re:Due process? (Score:4, Interesting)
Where in the 8th amendment does it distinguish between "punitive damages" and "statutory damages"? It appears to me that statutory damages have been invented by the courts as a way to work around the 8th amendment. They are operating under the fiction that if they call it something else, the restrictions against excessive fines does not apply.
Any honest person can see that this is a dishonest argument on the part of the judge. This sort of jurisprudence should simply not be tolerated.
Re:Due process? (Score:4, Interesting)
Civil law is supposed to be about making the plaintiff whole again. Statutory damages are yet another dirty trick to implement punishment through civil law in order to avoid the protections in the constitution. The only difference between statutory damages and a fine is who gets paid, which is quite frankly irrelevant. It's a payment, as a consequence of breaking a law that was passed by the government, tried by the government, and enforced by the government. It's a fine, plain and simple and anyone who claims otherwise is a liar.
Re: (Score:2)
Hmmm.. Interesting sidebar. If "actual harm" is impossible to calculate, is it actually harm?
Re: (Score:2)
> Why wasn't this an issue in this appeal?
Justice is only as good as the lawyer you can pay for.
Re:Due process? (Score:4, Informative)
Because in the case and decision they refer to an earlier case which provides precedence for this decision, St. Louis, I.M. & S. Ry. Co. v. Williams. In Williams, the excessive fines can't be disproportionate to the actual amount of PRIVATE loss, but because the $222,000 is instead a punitive damage award, it can be disproportionate. It's designed to address the PUBLIC wrong and to act as a deterrent, not the private loss itself.
At the end of the day, Thomas-Rasset had a million outs in this. She was contacted by MediaSentry but she blew them off. She was contacted by the RIAA, at which time SHE THREW AWAY HER HARD DRIVE TO COVER HER TRACKS (HA!) and went to meet with the RIAA, who undoubtedly offered her the same $5000 (+/-) out they always offered, and she blew them off too and even lied about her use of Kazaa and her online handle...so they sued the shit out of her for WILLFUL copyright infringement.
This wasn't a "oops, I didn't know I was stealing...sorry!" case...this was a "you can't prove s**t, BRING IT" case...and so they brought it. Case closed.
Re:Due process? (Score:4, Informative)
Except this wasn't a punitive damages award. It was statutory damages.
Re: (Score:2)
Because a civil judgment is not a fine.
Re: (Score:2)
It is not a fine.
Re: (Score:2)
"If we call it something else, the constitution doesn't apply". Is that really the only argument you have?
Analogy (Score:4, Interesting)
I've always thought of suing file sharers akin to attacking a swarm of bees with a hand pistol. It won't do a thing to stop the bees, but your bullet *might* hit one of those bees and absolutely obliterare them. Looks like Jammie was the unlucky bee.
New Profit Model (Score:2)
You are welcome (Score:2)
Re: (Score:2)
My take (Score:5, Interesting)
1) She had bottom of the barrel lawyers in all of her trials. If I remember correctly at one of the later trials she was actually represented by law school students who prior to the trial basically bragged that this case was going to be "easy" to win. Practicing law for real may just be a little tougher than it seems in class, boys.
2) She has been perceived extremely negatively by juries, which has definitely led to the size of the judgements against her.
3) She's been her own worst enemy when testifying, but that relates to #1 in large part. She lacks a credible excuse for her behavior and seemed to jurors to be a liar and trying to cover up what she did. That has worked heavily against her in reaching a verdict.
4) She has consistently displayed an outsized ego and an erroneous belief that she can beat the charges by going to court when in fact she has probably had the weakest case of anyone to ever challenge the RIAA. I would call her delusional.
In summary, she's got a terrible case and she's tried to win it on the cheap and the outcomes are predictable.
Re:My take (Score:4, Insightful)
wildly different $ shows inherent unfairness (Score:2)
In the years this crazy case has dragged on, we've seen awards of $222,000, $54,000, $1,920,000, $1,500,000, and a settlement offer. We don't know what the offer was, but may have been a few hundred or a few thousand. The $54000 would have been lower if the law had allowed it. Obviously, they're having a very difficult time deciding just what the damages should be. When it is so difficult to set an appropriate damage amount, it seems to me that calls for an examination of the basic premise of the suit a
Always *always* follow the money (Score:3)
As someone already commented on here earlier, "We'll keep sharing, and the labels will learn their place." This is quite simply a statement of reality, because the record labels are in the business of making money. It just so happens they do so by locking musicians into contractual deals where they promise to "promote" their music in return for a cut of the profits made selling people rights to obtain copies of the artists' recordings to listen to per the licensing/usage terms granted.
They can scream about it being illegal and punishable by law all the want, but it will never change the technological realities of things. These days, musicians no longer need the record labels as much as the record labels need them. The same technology that allows end-users to easily duplicate and redistribute the content on their own lets musicians record and redistribute (and market!) their content too, without help of a big company.
Following the money leads to a steady stream of revenue bleeding away from the record labels. Their best move to prove their worth these days lies in throwing down lawsuit after lawsuit to convince artists they're still "adding value" by forcing people to "pay up" when they're caught duplicating their artists' works without getting permission first.
But as we should all know by now? Those who don't innovate litigate. It's a sure sign of an industry in decline.
The US is so fucked up it's hilarious. (Score:3)