Jammie Appeals, Citing "Excessive" Damages

Peerless writes "Capitol v. Thomas defendant Jammie Thomas has officially appealed the RIAA's $222,000 copyright infringement award. She is seeking a retrial to determine the RIAA's actual damages, arguing that the jury's award was 'unconstitutionally excessive': 'Thomas would like to see the record companies forced to prove their actual damages due to downloading, a figure that Sony-BMG litigation head Jennifer Pariser testified that her company "had not stopped to calculate." In her motion, Thomas argues that the labels are contending that their actual damages are in the neighborhood of $20. Barring a new trial over the issue of damages, Thomas would like to see the reward knocked down three significant digits — from $222,000 to $151.20.'"

Sig digs

151.20 actually has more significant digits than 222,000. (Perhaps "orders of magnitude" was the term peerless wanted?)

But who cares, when you're coming up with a cutesy way of saying something, right? (Make sure to use the terms "north of" and "south of" when comparing numerical values.)

Re:Sig digs

I agree. The correct spelling is "viri".

It's not virii or viri.

Actually, the correct Latin is "vira" (it's one of those odd neuter words that look masculine at first glance) but as stated by another responder, the correct English is "viruses."

Re:It's not virii or viri.

Wow. A grammar nazi slap fight. Awesome.

Moderators, this post is as relevant to the article as all the ones to which I'm replying. Please mod down along with the rest of them.

Why mod an incorrect statement up?

Yes, the article summary used the term incorrectly, but no, 151.20 does not have more significant digits than 222,000 in this case. Both are exact numbers, are not rounded in any way, and so can be thought to have an inifinite number of significant digits [sc.edu].

Re:Sig digs

The origin of the $222000 probably has three significant figures, because that's probably how precisely the person who was setting the fine was working in their mind. However, once the fine is set, it is $222000.00, eight significant figures of cents, as she would discover if she tried only paying $221999.95. Those last zeros are significant.

The difference in the number of significant figures between the juries mental processes and the actual fine, even though the actual number is the same and has the same meaning, is an interesting one in the recent debate on another story over whether math is objective.

From what it sounds like...

This may be the first intelligent thing this women has done in this case. I mean she was obviously guilty, lied in an attempt to cover it up, and miserably failed to prove anything to the contrary at trial.

This position on the other hand is very well reasoned. $200k+ is completely outrageous damages even assuming a large number of people downloaded the material she made available. Hopefully there will be a judgement against this damage award that will call attention to how excessively high the statutory damages are, and might even overturn that part of the law.

Re:From what it sounds like...

her suit was almost frivolous, in that she was in no way innocent, she did what she was accused of, and she knew it. Had she got away with it, it would have been a bad thing for the courts.

The problem is the RIAA wanted her to pay their fine originally, a 'legal' fine imposed without recourse to legal help for the victim. That was also wrong. So she put herself in a position where she was at risk from an unsuitable scale of punishments, because the RIAA have avoided having file sharing properly tested in court, so the punishment scale is way too high.

In a reasonable world, file sharing would attract a parking ticket type fine, and too many would mean your ISP would cut you off for a month or so, or for good if your stupid and don't pay your fines.

Re:From what it sounds like...

I don't agree that it wasn't a case worth fighting. They had no evidence that she committed any copyright infringement. Only that her computer, probably at her direction 'made files available' for copyright infringement. The judge changed his mind on the basis of an argument misrepresenting another court case, to allow making available to also be classified as copyright infringement in the jury instructions. Without that jury instruction, it's entirely possible she would have been found not liable, as the music company didn't even look for infringement, just for the possibility of it.

In that light, I expect all photocopiers to now be removed from US libraries, as they are also making available books and a means to copy them.

However, I do agree that if someone were to be found liable for copyright infringement for non-profit and personal use, the fine should represent actual losses plus a bit, rather than a hundred times them as a deterrence. The scale should distinguish between commercial large scale infringement for profit, and small scale personal infringement.

To draw a a parallel with the drug laws in my country, small possession for personal use of illegal drugs is treated a lot less harshly than running a drug distribution business. A punishment, increasing for repeat offenders; but not a life-destroying punishment for a first, small personal offence.

Re:From what it sounds like...

Only that her computer, probably at her direction 'made files available' for copyright infringement.

And if she 'made files available' implies that she authorized distribution, it's a copyright violation.

106. Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

Merely sharing something may not count as distribution. But unlike say a Windows share, the file was uploaded to an index specifically created for exchanging files. That may (ignorance defenses aside) be considered authorization.

All I'm saying is, it's not entirely clear in US law that an actual copy must have been made (the "do" part), it may be enough it was put up for distribution (the "authorize" part). You certainly see arguments along those lines.

Re:From what it sounds like...

What needs to happen is for someone to stand up and say "Yes, this woman downloaded music. But it's your corrupt laws that are at fault, serving the interests of criminal racketeers and destroying lives, and we're going to put a stop to it."

Then millions of people need to follow them in stringing those responsible for this circus up by the neck.

You don't negotiate with racketeers and terrorists.

reasonable to you, maybe

n a reasonable world, file sharing would attract a parking ticket type fine

In the real world you have been caught uploading files to 10 million of your closest friends on the P2P nets. Music that sells at $1 a track through iTunes. The $20 video, the $50 video game.

Broadband penetration in the U.S. is about 40%. The service costs $20 to $50 a month. The file sharer on any scale will have a mid-line system or better - with hundreds or thousands of gigabytes of storage.

To the civil jury you don't look like a senior on a starvation budget. You look like a petty thief and a liar, a white collar criminal who sees his free media fix as a middle class entitlement.

The civil jury isn't a traffic court, it doesn't issue fines payable to the state. That is not its job.

The civil jury compensates the injured party. It awards punitive damages when the public interest demands it.

It can be very comfortable awarding damages based on a rigorous statutory formula that treats the uploader as an unlicensed wholesaler whose total distribution has no known or knowable limits.

Re:From what it sounds like...

Agreed. At the absolute most the RIAA should have to prove how many people actually downloaded from her and then multiply that with the retail cost of the music. That's an absolute most (a better way would be to prove the people who downloaded from her would otherwise buy the actual song if they couldn't illegally download it. Given the amount of digital piracy that goes on its quite impossible for most to buy all of what they illegally pirate).

Re:From what it sounds like...

Agreed. At the absolute most the RIAA should have to prove how many people actually downloaded from her and then multiply that with the retail cost of the music. That's an absolute most (a better way would be to prove the people who downloaded from her would otherwise buy the actual song if they couldn't illegally download it. Given the amount of digital piracy that goes on its quite impossible for most to buy all of what they illegally pirate).

You forgot to multiply by the fraction of each file each person got from her.

Re:From what it sounds like...

Even then, a lot of people download stuff they would never buy - Like a 15 year old who uses a cracked copy of MS-Office or Photoshop, instead of using Open Office or GIMP. People download stuff they would never actually go out and pay for.

Can't even claim a loss

Photoshop is a good example.

This product is so expensive that I am willing to bet that 90% of copies are unlicensed.

Now, if I were a professional photographer, or graphic artist, I wouldn't hesitate for a moment to purchase a copy of Photoshop. (In fact, when I had access to a reasonably priced version, I did purchase it)

Ignoring music for a moment. This is a significant problem in the software industry. They have set the price so high that I'm certain that they expect, and potentially even encourage limited piracy to increase their market saturation.

In cases like that, can they even argue that there is a monetary loss? I suppose that is why set penalties are in place.

Re:From what it sounds like...

Well, given a few assumptions, I don't think it's unreasonable.

1) Actual damages are ~$20.

2) Damages for torts should be divided by the probability of being caught.

3) Virtually no one gets prosecuted, let alone convicted, of filesharing.

4) Copyright law should be enforced.

2) is based on the reasoning that those who commit torts should bear the costs of their wrongdoing rather than innocent third parties. In order to make this happen, you have to shift the costs for crimes for which no one's caught, to those who are caught, which means dividing damages by the fraction of crimes they catch someone for. (Technically, the recovery rate, but same diff.)

(And yes, for most people here, 4 is questionable, but for most Americans, and for the jury in this case, it's not.)

Re:

How strange to see a reasoned, balanced post in such a discussion.

I personally am not convinced about the staggering amount of damages here. However, I do wonder how many of the people who argue that she should only have to pay for actual damages based o

Re:From what it sounds like...

it's pretty obvious that a substantial amount of damage is being done

This is not true. It may seem obvious, but then again, it may seem obvious that the earth is flat.

What we have found, after analysing the course of events and interviewing the file sharers, is that downloading and file sharing of music more has a positive than a negative effect on music sales. The music interest is promoted. New music and new artists are discovered.

http://xml.nada.kth.se/media/Research/MusicLessons/Reports/ [nada.kth.se]

Re:

Sorry, I don't have time to read an entire zillion-piece web site to find the context for the quote you mentioned. And it's dangerous to give quotes like that out of context. Here's another quote, from page 22 of part 7:

WII interviewed file-sharers how much music they buy now compared to earlier when they were not active as file-sharers. The answers were 3% buy much more, 7% a little more, 55% as before, 25% a little less and 10% much less.

I don't know about you, but that

Re:From what it sounds like...

if your only evidence for this is that you asked some file sharers and they told you so.

Well, first of all, this is not just a few interviews. This is a multi-year, EU-sponsored research project done at the most prestigious technically-oriented university in Sweden. You might conclude that they actually do know about response bias and how to correct for it, especially as they also factored in actual sales figures and their numbers all jive with other studies, with different methodologies. For the lazy, here's a pretty exhaustive summary (and critique) of some of the more known studies so far: http://www.rufuspollock.org/economics/p2p_summary.html [rufuspollock.org]

But then again, if you just want to sit around and make-up stuff to believe instead of actually reading up on some of all the research that's being done, be my guest. Hey, why don't you start a church?

Re:From what it sounds like...

I'm sorry, perhaps you missed the part where I quoted statistics from your own study that seem to oppose your argument? As I said, I didn't have time to read the entire thing in detail, but there were several other sections that were not nearly as one-sided in their view as you're making out, either.

But since you don't seem to read your own links, here's another one for you from the summary you cited this time:

An explosion in research (mainly dependent on access to proprietary data) as a result of public interest in these issues means that we are now in a position to provide answers with some degree of certainty. The basic result is that online illegal file-sharing probably has some negative impact on traditional sales but the effect is appears to be quite small. The size of this effect is debated, and ranges from 0 to 100% of the sales decline in recent years, but a figure of between 0 and 30% would be a reasonable consensus value (i.e. that file-sharing accounted for 0-30% of the decline in sales not a 0-30% decline in sales). At the same time there is still substantial disagreement in the literature with the most impressive paper to date (Oberholzer and Strumpf 2005) estimating no impact from file-sharing.

I've even emphasized the important parts for the hard-of-reading. Clue: this clearly states that on the basis of all the studies to date, file-sharing is not an overall positive influence on sales. The only question is how much of a negative impact it has, and figures quoted in the literature cited work out to millions of dollars per week in some cases. And this is from a literature survey with a slight bias in its presentation!

Re:From what it sounds like...

But there is no evidence a substantial amount of damage is being done. No admissible or inadmissible evidence.

Oh, please. That line is about as credible as the RIAA claiming $150,000 per infringing track.

I've tried to look carefully at the evidence. To me, it is not clear that there is damage. There may be, and less probably it may be substantial - but there isn't any evidence showing either clearly. The evidence seems to indicate that file sharing lead to decreased purchases among teenagers and children (with low disposable income) and increased purchases among the older and more affluent crowd. Anecdotally, I can say that when I was pirating music with Napster, I also purchased much more music, as I got into listening to new music all the time.

If you feel that there is clear evidence available showing that the situation is different from what I've understood, I'll be glad to accept and read a reference.

Eivind.

Re:From what it sounds like...

You are correct. There was absolutely zero evidence of any actual damages. Although I would concede that the actual damage for infringement of 24 song files would be in the neighborhood of $8, or 1/30,000 of the award.

But the RIAA didn't actually have to prove any infringement; the jury instruction freed them from that burden.

Re:From what it sounds like...

Your step 2 is unreasonable. Causing a miniscule amount of harm is still a miniscule amount of harm, even if, say, the police choose seldom to investigate. (perhaps /BECAUSE/ the harm done is miniscule)

If you steal a single apple from your neighbour, it's not reasonable to argue that the risk of being convicted after having stolen a single apple from a neighbour is 1:1000000, so despite the apple being worth $0.20, you should be fined $200000. It's an unconstitutional excess to put someone in debt for life for the crime of stealing a single apple.

A different problem is that when a huge part of the population is guilty of breaking a certain law, but the risk of being investigated are very low, and punishment very high, this has the effect of giving whomever decides who to investigate the power to essentially punish people at will.

Politicians should make law. Police should investigate. Courts should convict. (or not) That's the way it's supposed to work. With filesharing it works more similar to this:

Politicians make a law, that a huge part of the population breaks regularily.
Police essentially never investigates anyone for breaking it.
Private companies are free to, according to their own criteria, decide who to investigate.
Courts tend to convict (not surprising, since most people are guilty)

This puts a -HUGE- amount of power in the hands of those private companies. I'd guess in a average group of college-students, that company is, currently, free to bankrupt for life anyone they chose to. Well, not -EVERYONE- but close enough. (certainly 90%)

big numbers

Thomas would like to see the record companies forced to prove their actual damages due to downloading, a figure that Sony-BMG litigation head Jennifer Pariser testified that her company "had not stopped to calculate."

If they include legal fees, and what they spend tracking down file sharers, it just might be more than she has to pay.

Correction

From the sounds of it, Sony-BMG have no idea how much actual monetary damage she did them, and pulled a ridiculously large figure out of their ass.

The JURY pulled the figure out of their collective asses.

The plaintiffs do not set the damages that are awarded to themselves. The judge/jury does that.

curious

She is seeking a retrial to determine the RIAA's actual damage

Afterwards, they'll attempt an inquiry to determine the RIAA's major malfunction.

"unconstitutionally excessive"?

Can someone please explain to a European, what this compulsive need to refer to the constitution in seemingly all matters relating to the law is all about?

I'll be the first one to agree that these damages are "ridiculously excessive" or "fabricated", but what does this have to do with the constitution? Is it just a cultural thing?

Re:"unconstitutionally excessive"?

The US constitution grants the vast majority of American's rights and freedoms, so when these are attacked the constitution is always cited. There are sections in there that grant all rights not mentioned (or thought of at the time of writing) to the people and the states -- not the federal government. So even if a violation is not specifically mentioned in the constitution, the constitution can still be used as a defense (ambiguous to be sure, but it works as a potential argument when the government tries to assert an authority it shouldn't have).

Re:"unconstitutionally excessive"?

The Constitution doesn't "grant" us our rights and freedoms, it legally protects them. This is not a minor philosophical point.

Not Quite

The U.S. Constitution doesn't grant rights, the rights are "unalienable". The "Bill of Rights" portion of the Constitution prohibits the government from violating those rights.

Note how everything is expressed in negatives, i.e. "shall not be infringed".

Re:"unconstitutionally excessive"?

The US constitution grants the vast majority of American's rights and freedoms, so when these are attacked the constitution is always cited.

I understand why you said this, but it is completely inaccurate. The Constitution grants certain powers to the Federal government, and specifically outlines some things which is it not allowed to do. The rights of the people are, in the minds of the people who founded the American nation, an inherent part of being human. That cannot be given by some document or some government, they simply are. Freedom of speech is a human right, and that right cannot be taken away. The ability to speak can be removed, but not the right.

Your point of view, however, the idea that the only rights we have are those granted to us by the constitution, has become much more common, and it's a big part of why we're in the legal and political mess that we are. The question is no longer "what is the government allowed to do," but "what are the people allowed to do." Our freedom is limited, not the freedom of the government.

This is the very reason some of the founders resisted adding the Bill of Rights to the constitution; they feared that it would become an enumerated list of all of our rights. Indeed, it has; as far as I know, not a single case in all of American legal history has turned on the 9th amendment.

Re:"unconstitutionally excessive"?

The US constitution grants the vast majority of American's rights and freedoms

No, the Constitution affirms a number of rights and freedoms which all people innately have, and defines bounds on the extent to which government may restrict those rights and freedoms.

In this particular case, the most applicable passage from the Constitution would likely be Amendment XIII: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

The law, as written, allows copyright holders to collect statutory fines from infringers far greater than actual damages. But if the appeals court finds that such statutory fines can meet the Constitutional standard of "excessive", then the law providing for such fines will be found in violation of the Constitution, and overturned.

Re:

they have something in their constitution against "cruel and excessive punishment"

8th Amendment

She could be referring to the 8th Amendment, which states:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Re:8th Amendment

This isn't a fine. This is an award for her infringing on somebody's copyright. Unfortunately that part of the constitution wouldn't apply (IANAL).

Re:8th Amendment

Well it still could be a cruel and unusual punishment, cruel because it could bankrupt her and/or ruin her life, and unusual because it is rather large for the crime that was committed, especially considering that we don't know whether any infringement actually took place, she was convicted just on the "making available" part.

Re:8th Amendment

Nope.

She's citing the 14th. The penalty runs afoul of due process. See BMW v. Gore [wikipedia.org].

Re:"unconstitutionally excessive"?

America takes a lot of pride in its constitution and the attached bill of rights (the first ten amendments), including the 8th amendment which forbids "excessive fines." The US constitution is truly a revolutionary document (something that is easy to forget 230 years later), and I honestly think it has directly led to the stability of the nation. Although there are periodic periods of abuse of the constitution (like the last seven years), the nation has consistently prevailed and proven itself to be relatively stable. The USA was founded on protecting its citizens from the government, something Americans should rightfully never forget, especially in cases like this.

In parts of Europe, Wolfenstein 3D was banned because, even though it was critical of Nazis, it dared to portray them at all. In the USA, we take pride that this sort of censorship was explicitly forbidden when our nation was founded. I'm not trying to troll, but Europe chose not to do this.

They planned it all along

1. Fight the RIAA, go for the jury trial
2. Hold your ace close and play the first round to lose
3. ???
4. Less PROFIT for the RIAA!



And now we know that #3 is:

Appeal $220k reward on Constitutional grounds! BRILLIANT!

Seriously! There is at least one juror who has already opened his mouth to the press and said something to the effect of "the punishment is so high because we want to send a message that this is a bad thing to do... mmmmKay..." Which... ::cough cough:: is against our Constitution in America.

Re:They planned it all along

Is it against our constitution? I see press reports of big corporations getting smacked down with punative damages all of the time. They cry and whine just like this woman. But the little guy usually cheers because it's a big corporation getting smacked. But the penalty is often much larger than the damages.

Those large damage awards are for punitive damages. They are supposed to punish the offending party. The financial punishment has to be scaled by the ability of the offending party to pay. If you have gross revenues of 2 billion GBP, like EMI had last year, then a 100 million GBP judgment against you is less than 5% of your gross income. Conversely, Jamie just got slapped with a judgment worth several times her gross income. Which is fair?

Re:They planned it all along

Is it fair for the hundreds of thousands of people who work at Exxon to pay for the foolishness of that captain who ran aground up in Alaska?

Damn right. Those "hundreds of thousands" made a ton of money before that incident. You share in the success, and you share in the failures. Everyone together.

Is it fair for the thousands of hard working folks at GM or Ford to pay when some drunk drives a car into a tree?

Um, what?

Is it fair when the hundreds of hard working rock and roll stars (hah) lose their retirement because some decides to "share" the music with hundreds of thousands of their closest friends?

What does this have to do with punitive damages?

This is a problem for the typical slashdot poster. Corporations are made of people too and juries routinely come down hard on corporations. That's celebrated here because the jury is hanging some big, faceless machine. But there the corporation is made up of people and all of those fines at Exxon came out of the retirement fund of thousands of people.

And this is the problem with your typical "I get my news from Fox" conservative. Either a corporation is a legal entity under the law or it is not. Corporations get to lobby, give to political campaigns, and shield their employees from liability because of that standing. You can't treat them like they are a single entity when it is convenient (i.e. profitable), and scream they are "made up of people, too" when it suits your purpose. And your definition of "coming down hard" is a bit ill informed, I feel. I've never heard of a damage judgment that wasn't well within the corporation's ability to pay, and still turn a profit for the year.

Personally, I think the world would be a much better place if when a corporation broke the law somebody has to go to fucking jail, but in the meantime, you can't have it both ways. The only way we have to punish a corporation when they break the law is through financial penalty, and the punishment must scale by the corporation's ability to pay. Otherwise, they would be completely lawless.

Copyright is not a right

The [RIAA] spokesman told Ars., "We will continue to defend our rights."

Copyright is not a right (despite its name). It is a legal privilege given to certain people for a finite amount of time. Unfortunately big business and Congress have forgotten this.

Re:

And a legal privilege is... a right, right?

No, rights are irrevocable. Copyright however is revocable (as works eventually enter the public domain, once upon a time they did this within the creators own lifetime).

What was the point of your post, again?

To point out that Capitol is not defending its rights here.

It's not an appeal...

it's a motion to set aside the verdict, which is quite different than an appeal.

An appeal is to a higher court.

This is a motion directed toward the trial court.

Re:Know when you are beaten

She was guilty, clearly, obviously and transparently. she got caught. WTF is going through her head?

"I shouldn't have to pay $222,000 when I only uploaded it to 5 people"? Not such an unreasonable thing to think.

Imagine you are in the dark ages...

Imagine you are in the dark ages and you are summoned for not having paid tithe to the local church.

The church complains that not only they are entitled to it by divine right, but also that it's not fair you benefit from the innumerable and priceless services they provide to the community (such as hunting for heretics) without contributing what they ask for.

Knowing that the penalty may range from outrageous fines to beheading even (and especially) when confessing, what would you say when asked whether you did in fact pay your tithe?

Now replace "dark ages" with "ip dark ages".

Re:Know when you are beaten

She was guilty, clearly, obviously and transparently. she got caught. WTF is going through her head? if she had common sense she would have taken the very low settlement fine that was originally requested.

Even if someone is as guilty as sin then they deserve justice and a "punishment" that is proportionate to the "crime" ( whether or not "crime", "punishment" or "guilty" are appropriate words in a copyright case, charging a private individual a six-figure sum sounds like a "punishment" to me). "Waive your right to a fair trial and pay us $2000 now, or enjoy your right to a trial and risk us taking your house" is not justice, it is a license to extort.

If a civil court feels that a defendant has lied, it should bring a criminal charge of perjury and let a criminal court decide the punishment. It should not be the place of a civil court to punish someone, without trial, for a criminal offence ramping up the so-called "damages".

If a civil court feels that a defendant has wasted their time and the plaintiff's money by fighting bringing a meritless case, they should add to the reasonable and audit-able damages, some or all of the reasonable and audit-able costs of the case (...bearing in mind that the defendant already has their own costs and that a large, corporate plaintiff may have lawyers on staff, and that its not unreasonable for the main beneficiaries of artificial laws like copyright to bear some of the cost of enforcement ). They should not leave it to a jury to pull some figure out of a hat and call it "damages".