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The Courts Piracy United States

Jammie Thomas Takes Constitutional Argument To SCOTUS 146

Posted by samzenpus
from the listen-to-the-law dept.
NewYorkCountryLawyer writes "Jammie Thomas-Rasset, the Native American Minnesotan found by a jury to have downloaded 24 mp3 files of RIAA singles, has filed a petition for certioriari to the United States Supreme Court, arguing that the award of $220,000 in statutory damages is excessive, in violation of the Due Process Clause. Her petition (PDF) argued that the RIAA's litigation campaign was 'extortion, not law,' and pointed out that '[a]rbitrary statutory damages made the RIAA's litigation campaign possible; in turn,that campaign has inspired copycats like the so-called Copyright Enforcement Group; the U.S. Copyright Group, which has already sued more than 20,000 individual movie downloaders; and Righthaven, which sued bloggers. This Court should grant certiorari to review this use of the federal courts as a scourge.'"
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Jammie Thomas Takes Constitutional Argument To SCOTUS

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  • Good luck (Score:3, Insightful)

    by Chrisq (894406) on Thursday December 13, 2012 @06:23AM (#42271005)
    They have been bought off by the RIAA
    • by towermac (752159)

      That money just buys the status quo. Put their backs against the wall, and things may change.

      But they won't have to give the money back, or anything crazy like that.

      • Re: (Score:2, Insightful)

        by PopeRatzo (965947)

        That money just buys the status quo. Put their backs against the wall, and things may change.

        The current US Supreme Court with it's majority of pro-corporatist right-wing ideologues can not have it's back up against the wall because they are the wall.

        • The current US Supreme Court with it's majority of pro-corporatist right-wing ideologues can not have it's back up against the wall because they are the wall.

          This is the same "pro-corporatist right-wing" Supreme Court that allowed Obamacare to stand, right?

          Sometimes the stupid left-right political paradigm just doesn't work when it comes to explaining things. The sooner you figure that out...

          • by PopeRatzo (965947)

            This is the same "pro-corporatist right-wing" Supreme Court that allowed Obamacare to stand, right?

            Yes, that's the one. Obamacare is one of the biggest transfers of wealth to corporations in our history.

            • While I agree with you about the heath system, one decision is merely an anecdote. Over my 50yr lifetime as a non-american, it appears SCOTUS have often come down on the side of the little guy, or the unpopular (but correct) guy. The fact that at different times they piss off different political/economic groups is also an indication of a real court. Kinda sad how so many people write them off as corrupt before they've even decided whether to hear the case or not.
              • by PopeRatzo (965947)

                Over my 50yr lifetime as a non-american, it appears SCOTUS have often come down on the side of the little guy

                As a non-Frenchman, I think Sarkozy was just the bee's knees.

                Take a smaller sample, say, since 2004, and see how often SCOTUS has "come down on the side of anyone but the richest and most powerful".

                The Roberts court has been singularly maximalist, activist and highly political. Overturning precedent time and time again. Just the other day, the "conscience of the court" Antonin Scalia, compared homos

    • Re:Good luck (Score:5, Informative)

      by dywolf (2673597) on Thursday December 13, 2012 @09:02AM (#42272047)

      How does one buy the court?

      I know we mock them by calling them the Supreme Corporate Court of the US...
      but really they have one job. and its not to do what we think is the "right thing".
      it's to interpret the laws as written and determine points of conflict, priorty, constituinionality, etc etc.

      And unfortunately, while we may not -like- a lot of the decisions coming out of there lately, they are by and large legally sound (granted: they are lawyers, so they're good at rationalizing most anything).

      Since they are supposed to be limited to interpreting the laws as written, the best way to get around a court decision you dont like is to change the law, which leads us back to the Congrees. So its not that the Court has ben bought off (in fact, its completely illegal to do so). Its the bought off Congress supplying the laws that frame the Courts decision process.

      • Re:Good luck (Score:4, Insightful)

        by SuricouRaven (1897204) on Thursday December 13, 2012 @09:15AM (#42272245)

        While the Supreme judges are untouchable once they get in, it isn't possible to get in without playing the political power games. They need to be appointed by a president and approved by congress, which in turn means they need political support. The easiest route is to follow one of the major party lines on most or all issues, which wins the support of that party. A judge with a history of upsetting the political leaders by, for example, following a permissive intepretation of copyright law is never going to be appointed, and wouldn't be approved even then.

        • by DarkOx (621550)

          That may be true, but for almost as long as that's been true Justices have made decisions that pretty far removed from the Pols who appointed them.

          The GOP sure was surprised by Robert's ruling on the AFCA for a recent example. The Court's Justices by and large seem pretty independent once on the Court even if they have to play the game at first to get through the door.

          • Justices have made decisions that pretty far removed from the Pols who appointed them.

            Yes, justices often drift away from expectations, and this drift is almost always in the direction of supporting the dispossessed "little guy" against institutional power. If you look at famous flippers (they flipped but never flopped back), like Earl Warren, John Paul Stevens, David Souter, I don't think you can find any that became more pro-corporate.

      • by Shoten (260439)

        This raises a good point. The SCOTUS' purpose is to assess constitutionality, not morality. The laws, as they are today, are relatively straightforward. Thomas broke the law. You can complain about how the record industry is corrupt and screws artists, and you'd be right. You can complain how the RIAA has used the law to extortionate ends, and you'd be right. You can say that the current model of music creation and management is broken, and you'd be right. You can even say the law is heavy-handed, an

        • by MrL0G1C (867445)

          You missed something, some are saying that the level of the fine is unconstitutional.

        • She is claiming an abuse of process that amounts to legalized extortion, the question is will the judges see it that way. It's highly likely the courts would agree with Jamie in Australia, which is why we don't have this problem.
    • They have been bought off by the RIAA

      The geek blames his every failure in law and politics on bribery.

      His only satisfaction the instant mod up to "+5, Insightful" on Slashdot.

      The impeachment of Samuel Chase [wikipedia.org] in 1804 is the only impeachment of a Supreme Court justice to have ended in trial in the Senate. The issues were framed by the conflict between Jefferson and a Federalist judiciary --- and in the end, by very wide margins, even a Jeffersonian controlled Senate refused to convict,

      In the entire history of the United States, there have b

  • Is scourge a legal term? How is it used?
  • by QuasiSteve (2042606) on Thursday December 13, 2012 @06:44AM (#42271103)

    Good luck to her - no courts-assisted enforcement without reasonable punishment, and hundreds of thousands of dollars is certainly not reasonable.

    The summary does err a bit, though. Jammie wasn't targeted for downloading, but for sharing (i.e. uploading / distributing).

    But while I do believe that distribution should be enforced (as opposed to downloading), the height of these awards is ridiculous and acts as no deterring factor; there's little chance you get caught and if you do get caught and try to put up a fight, you're so screwed that you might as well do it anyway. The '6 strikes' scheme would be vastly more efficient - albeit scary in what it will be warped into once put in place.

    • by rioki (1328185)
      You are torrenting a file; are you downloading, uploading or both? Does it matter? Should the damages be different?
      • by Xenx (2211586)
        The difference is downloading isn't providing copyrighted materials to others. Where as uploading is. Legality of downloading could be argued, but would only be one count per download. The illegality of uploading copyrighted material is known, and get one count per upload. So, yes. The damages should be different. Now, that doesn't mean I agree with the way the system is currently set up.
        • The difference is downloading isn't providing copyrighted materials to others. Where as uploading is. Legality of downloading could be argued, but would only be one count per download. The illegality of uploading copyrighted material is known, and get one count per upload. So, yes. The damages should be different. Now, that doesn't mean I agree with the way the system is currently set up.

          Not quite - the count is "per work infringed", not "per infringing copy", so you don't multiply the counts by the number of uploads or downloads. However, you're right that there's a huge difference between uploading and downloading: if you only download once, you actually have a reasonable damage-mitigation argument that you only owe the copyright owner $1 for the song. If you upload, however, you owe them the cost of a distribution license... which could be tens or hundreds of thousands (for example, Michael Jackson bought the distribution rights to a bunch of Beatles' songs for around $100k each). When Apple is paying that much in royalties to be able to distribute the latest Katy Perry song on iTunes, for example, it's tough for a defendant to argue that they should be able to also distribute it but only owe $1.

          • by DeadCatX2 (950953)

            Except Apple and Michael Jackson were selling products for profit (i.e. commercial). Ms Thomas, however, at no point sold those songs (i.e. non-commercial).

            The problem is that the statutory damages were designed for commercial infringement, and are now being employed against non-commercial infringers.

    • What would make more sense is to declare the whole nonsense "unenforceable" This is the equivalent of $100k fines for spitting on the sidewalk. Oh wait, spitting on the sidewalk could actually cause someone else a hardship if they stepped in it.

    • Prove that Jammie ever uploaded a complete file to someone who did not posses a license to the copyright for those songs.

      If I download songs for a CD that I own, am I infringing? Was the person uploading the songs to me infringing, provided I own the CD that the very songs I am downloading exist in some form on?

      • Prove that Jammie ever uploaded a complete file to someone who did not posses a license to the copyright for those songs.

        If I download songs for a CD that I own, am I infringing? Was the person uploading the songs to me infringing, provided I own the CD that the very songs I am downloading exist in some form on?

        Yes, if the person who uploaded the song to you didn't have a distribution license. In any transfer, there are potentially two infringers - the uploader, who distributed, and the downloader, who made a copy. In your hypothetical, you have a reasonable argument that you have an implied license to make a copy (basically, you have a right to format shift from your copy, so this is format shifting-by-proxy). But, the person who distributed the work to you didn't have a license. Thomas never approached Capitol R

  • I was a bit flippant before I read the case. So she filed for certiorari, big deal. But I like the argument, and frankly, I agree. The statutory damages that have come to the supreme court have been against institutional respondants, not individuals. The purpose of having such large amounts was to focus deterrence towards those types of offenders, not individuals. That the amounts in this case are thousands of time larger than the actual damages, and are not just.

    Additionally, the circuits are split on

  • The fine imposed after all this, including court fees is so out of scope she really didn't have any choice but to take all the way to SCOTUS. Regardless of which side you land on the argument of her guilt you have to admit the damages in this case are usurious and ridiculous. It's time 'our' government stood up and actually represented the people, not the faceless corporate entities. I say faceless in this case specifically since RIAA was formed specifically to prosecute cases like this w/out bleeding ba

    • by mcgrew (92797) *

      say faceless in this case specifically since RIAA was formed specifically to prosecute cases like this

      That's completely wrong. The RIAA was formed to come up with a frequency rollover standard. [wikipedia.org]

    • The corporations have the same legal rights as a person (huge mistake IMO) and then do EVERYTHING possible to obfuscate their actions. Meanwhile people fighting back against their tyranny form groups with a public face (like ANONYMOUS) to shield their identities and are branded criminals for it. Makes you wonder who the real bad guys are.....

      "[A]ll of the random ass-headed cruelty of the world will suddenly make perfect sense once we go inside" The Monkeysphere [cracked.com].

  • She owes about $24.
    • She owes about $24.

      That's ridiculous. If the punishment for an illegal act is simply what it would have cost to do the act in the first place, then there is no reason to ever do the act legally. Doing it illegally always has a better expected outcome than doing it legally.

      Furthermore, you didn't even calculate the costs correctly under your flawed model. $24 would be the cost to legally download 24 songs for personal listening. The cost for a license to legally download 24 songs and redistribute them to an arbitrary number of

  • by caseih (160668) on Thursday December 13, 2012 @08:48AM (#42271903)

    Was she really convicted of "illegal downloading?" It has been my understanding of copyright law that downloading isn't illegal, only the uploading (making available). Hence the bittorrent crack downs. I can buy a bootleg CD abroad or in the US and it's not illegal to possess it. Is this incorrect? During the hay days of allofmp3.com, many Americans bought and downloaded music, but the RIAA could only shut it down by attacking the payment processors; I never heard of them going after allofmp3.com customers for illegal downloading (which they claimed all along that allofmp3.com was about).

    Any comments?

    • It's a matter of spin. NYCL emphasizes "illegal downloading" because then he can pretend that the total damage done to the copyright holders was 99c multiplied by the number of song titles Thomas downloaded.

      The copyright holders (and I'm in agreement with them, FWIW) would point out that the problem was "making available to millions of anonymous strangers", which causes greater damage, both directly (number of times each title was uploaded from Thomas's PC multipled by 99c) and indirectly (more people, t

      • by 91degrees (207121)

        because then he can pretend that the total damage done to the copyright holders was 99c multiplied by the number of song titles Thomas downloaded.

        I don't think that's totally unreasonable. The average upload/download ratio for a given user will be 1:1 (there are exactly as many uploads as downloads since every uploaded file is downloaded). Leeches increase this a bit for those who do upload but not by a factor of thousands.

        Then there's the matter of intent. Was Thomas' primary intent to distribute? No.

      • by Painted (1343347)
        If this were the case, they would have simply looked at what her ratio was set at (most people have it at about 2, if I recall correctly). Therefore Jamie should be on the hook for 48 tracks, worth approximately $50. Instead, the RIAA folks want to punish her for every* illicit download of those tracks, making her an example. I would argue that this is still unconstitutionally excessive.
      • by Solandri (704621)

        It's a matter of spin. NYCL emphasizes "illegal downloading" because then he can pretend that the total damage done to the copyright holders was 99c multiplied by the number of song titles Thomas downloaded.

        The copyright holders (and I'm in agreement with them, FWIW) would point out that the problem was "making available to millions of anonymous strangers", which causes greater damage, both directly (number of times each title was uploaded from Thomas's PC multipled by 99c) and indirectly (more people, t

    • As far as I understand it, downloading (without permission of the copyright holder) is illegal, but hard to prosecute. If you rip a CD and put those songs online, it's easy to prove. Just browse to your listing and perhaps download one or two to verify. However, if you download a copyrighted song, the RIAA would need to access server or ISP logs to prove this. Getting to those logs would require court orders which is more difficult. In addition, the RIAA wouldn't know offhand what IP address downloaded

      • by b4dc0d3r (1268512)

        Downloading is illegal in the sense that a decision set a precedent which would have to be fought to be overturned. I don't remember the venue, but it covered a large part of the country.

        It is impossible to find the link, because all of the news stories say "illegal downloading" when they mean "copyright violating uploading".

        I'm not sure how that is backed - they are not making a copy. But I imagine it makes as much sense as "receiving stolen property". Ignorance means you can prosecuted, or bullied into

    • Was she really convicted of "illegal downloading?"

      1. She wasn't "convicted" of anything; this wasn't a criminal case. She was found liable for copyright infringement by making copies through downloading, thus violating the record companies' exclusive reproduction rights.
      2. She was also sued for "distributing" and "making available for distributing", but the judge threw out the "making available for distributing" claim, and there was no evidence offered of the "distributing" claim.

      So yes, the only thing she was found liable for was downloading.

      • Wow. I wish I hadn't posted, 'cause I have mod points. This post needs to go to +5.

        Folks, this is how toxic the "making available" argument was. There are people busily arguing all over this thread that the penalty is right and proper because Jammie Thomas was found liable for illegal distribution when she wasn't. The alleged cost of a distribution license is irrelevant. Even the actual cost of a distribution license is irrelevant. The $220,000 penalty ISN'T for distributing. It's just for downloadin

  • "nor shall any State deprive any person of life, liberty, or property, without due process of law": but there was a trial and Jammie was found guilty so how was due process violated? I can see an argument that the damages awarded were assessive but that is what appeals are for not a argument that due process wasn't followed.

    • It wasn't violated, it was abused by vested interests.
  • by Rogerborg (306625) on Thursday December 13, 2012 @09:40AM (#42272607) Homepage

    What on earth does her (professed) ethnicity or culture have to do with the issues at hand?

    Is this some sort of extreme affirmative action argument where she doesn't have to follow - or possibly isn't able to comprehend - the White Man's law?

    No. Stop this. Stop it right now.

    • It's there for the same reason "Minnesotan" is there - background. In fact, I'd say it's there only to modify the state she calls home. From a legal perspective, what state you are in has importance for various courts and precedence, so legally minded people would be interested. Saying she is from Minnesota might not be technically accurate since, as a Native American, her relationship to the state could very well be slightly different than one might expect.

  • I'm not a lawyer, and don't care much for a particularly detailed treatise, but could someone explain why one can't just say "Prove I've never purchased XX movie/song, and am not simply downloading it for a digital archival purpose which I am allowed under Fair Use."?

    As I understand Fair Use, one is allowed to have an archival copy of any movie/song (breaking DMCA notwithstanding), so couldn't downloading be considered a more time-efficient method of obtaining your archival copy? And doesn't presumption o

    • by bws111 (1216812)

      Yes, you are missing something huge. What she is accused of is DISTRIBUTING works without authorization, and Capitol proved it by demonstrating that she distriibuted it to their investigators. There is no fair use case that would allow that, and it does not matter if she legally purchased a copy or not, because she clearly did not purchase a distribution license.

      This is also why all the cries of 'excessive damages' and 'she should only be liable for $1' are so far off base. If she was only accused of dow

  • She was sued for downloading, distributing, and making available for distribution.

    1. No evidence of distribution was ever offered.

    2. The court held that "making available for distribution" is not actionable.

    3. So the only thing for which she was found liable was downloading.
  • by harlows_monkeys (106428) on Thursday December 13, 2012 @03:00PM (#42278441) Homepage

    They offered to settle for what worked out to around $2 or so per song shared (note: she was sharing around a couple thousand songs--the trial only concerned 24 for technical and practical reasons). That's a lot less than someone would normally pay for a license to redistribute songs to an arbitrary number of untracked people for a flat rate. Note also that even though they only sued over a small fraction of the songs she was sharing, the minimum possible statutory damages would be quite a bit larger than the settlement offer. She knew she was guilty, and should have known they could prove it, so should have jumped at such a reasonable offer.

    Then, after she stupidly decided to fight, and lost, and got caught tampering with evidence and perjuring herself (things that do not endear one to a jury--the same jury that will be deciding the damages), and got hit with damages much larger than the settlement offer, the RIAA again offered to settle, again for a reasonable amount. Again she refused, got another trial, lost again, and that jury went for an even bigger amount of damages.

    I believe there was a third settlement offer after that.

    I question the ethics of her lawyer. I think he's putting satisfying his legal fantasy of winning a stunning case at the Supreme Court ahead of his client's best interests.

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