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$1.9 Million Award In Thomas Case Raises Constitutional Questions 439

Techdirt points out that the EFF is examining the constitutionality of the recent $1.9 million verdict awarded in favor of the RIAA against Jammie Thomas. While on the surface it may seem that this excessive award should be easy to overturn since grossly excessive punitive damage awards are considered to violate the Due Process clause of the US Constitution, the Supreme Court seems to have been ignoring precedent and upholding copyright's importance at any cost. "Given the size of the statutory damages award, Ms. Thomas-Rasset's legal team will likely be seriously considering a constitutional challenge to the verdict. A large and disproportionate damage award like this raises at least two potential constitutional concerns. First, the Supreme Court has made it clear that 'grossly excessive' punitive damage awards (e.g., $2 million award against BMW for selling a repainted BMW as 'new') violate the Due Process clause of the US Constitution. In evaluating whether an award 'grossly excessive,' courts evaluate three criteria: 1) the degree of reprehensibility of the defendant's actions, 2) the disparity between the harm to the plaintiff and the punitive award, and 3) the similarity or difference between the punitive award and civil penalties authorized or imposed in comparable situations. Does a $1.92 million award for sharing 24 songs cross the line into 'grossly excessive?' And do these Due Process limitations apply differently to statutory damages than to punitive damages? These are questions that the court will have to decide if the issue is raised by Ms. Thomas-Rasset's attorneys."
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$1.9 Million Award In Thomas Case Raises Constitutional Questions

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  • by geminidomino ( 614729 ) * on Friday June 19, 2009 @02:50PM (#28393463) Journal

    Depressing as hell, but the system is bought, paid for, and bent beyond repair.

  • by dyingtolive ( 1393037 ) <brad.arnett@n o t f> on Friday June 19, 2009 @02:54PM (#28393525)
    Maybe that doesn't matter. Maybe one of these times it will become undeniably obvious (to people not on slashdot) that all of the above is true. I don't think the victory will be in this case. I hope the victory will be in the system no longer being able to pretend it is "for the people, by the people".
  • But this definitely should be examined. These asinine penalties for a non-commercial copyright infringement is just insane. Hell, even for commercial copyright infringement... $1.9 million for someone selling essentially two copied CD's? Does that sound right to anyone other than someone who works for the RIAA directly or indirectly?
  • It is not over (Score:5, Insightful)

    by Dan667 ( 564390 ) on Friday June 19, 2009 @02:57PM (#28393575)
    The RIAA has been making very telling statements after the verdict. They realize that with a judgment like this public reaction is more than just turning on them. The fact that it is also hurting their brands (Sony, EMI, Universal, Warner Bros) is also worrying them. Eventually they will cave or lose.
  • by JANYAtty. ( 678934 ) on Friday June 19, 2009 @03:00PM (#28393629)
    The exxon valdez jury awarded 5 billion dollars in punitive damages. That oil spill has left a ring around that bay that is clearly visible to this day. The courts reduced this by a factor of 10. Because it would be unfair to make one of the worlds richest and most profitable companies pay for their own f--kups that continue to afflict Alaska. Will this kid get a reduction? No. Becouse the court is a conservative court of 7 justices apointed by republican presidents. What does it mean that the court is conservative? The Court sides with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff.â Thatâ(TM)s conservative jurisprudence in a nutshell.
  • by Bob9113 ( 14996 ) on Friday June 19, 2009 @03:01PM (#28393639) Homepage

    The RIAA always talks about how they are just protecting the interests of the artists. It stands to reason that this is a reflexive property.

    If that is valid (and I certainly believe the first part of the supposition above is highly questionable), then here are the people you should hold accountable for this travesty of justice; the artists on her list:

    • Guns N Roses ("Welcome to the Jungle"; "November Rain")
    • Janet Jackson ("Let's What Awhile")
    • Goo Goo Dolls ("Iris")
    • Vanessa Williams ("Save the Best for Last")
    • Aerosmith ("Cryin")
    • Gloria Estefan ("Here We Are"; "Coming Out of the Heart"; "Rhythm is Gonna Get You")
    • Green Day ("Basket Case")
    • Journey ("Faithfully"; "Don't Stop Believing")
    • Destiny Child ("Bills, Bills, Bills")
    • Sara McLachlan ("Possession"; "Building a Mystery")
    • Richard Marx ("Now and Forever")
    • Linkin Park ("One Step Closer")
    • Sheryl Crow ("Run Baby Run")
    • Def Leppard ("Pour Some Sugar on Me")
    • No Doubt ("Bathwater"; "Hella Good"; "Different People")
    • Reba McEntire ("One Honest Heart")
    • Bryan Adams ("Somebody")

    I have a Green Day album and a couple Aerosmith albums. I figure to send it back with a suitably sardonic letter referencing the fact that I no longer want their music, and if they are in such financial hardship, they can re-sell it to help them put food on the table.

  • by Anonymous Coward on Friday June 19, 2009 @03:02PM (#28393653)

    Depressing as hell, but the system is bought, paid for, and bent beyond repair.

    Absolutely it is. When you have ex-RIAA lawyers getting assigned to high Department of Justice positions by this administration, what chance does Jammie Thomas think she has? They can appeal it all the way to the supreme court, and it's still going to get shot down; like you said, the whole system is bought and paid for.

    The saddest part about it is that it's not just the judicial system. Our Congressmen have literally been bought and paid for by big business lobbyists for years now. Depressing indeed.

  • Re:Duh... (Score:5, Insightful)

    by theodicey ( 662941 ) on Friday June 19, 2009 @03:03PM (#28393679)

    Yup. The Roberts court's infinite pity for poor beleaguered corporations such as Exxon and BMW will be replaced by complete concern for the victims of crimes committed by individuals.

    Objectively, one would think that corporations would need more and clearer punishment, not leniency. The only thing preventing corporations from behaving amorally is the risk of financial punishment -- CEOs have almost no personal liability. Individual citizens risk criminal punishment, and have to answer to society's moral standards.

  • by HannethCom ( 585323 ) on Friday June 19, 2009 @03:07PM (#28393727)
    The RIAA purpose is to protect the artists.

    For some strange reason it is run by the record companies which are the biggest offenders for ripping off the artists. I have not seen one case of the RIAA trying to protect the artists from the record companies. There is also ample proof of them ripping off the consumers, suing on behalf of someone who released their songs for free download, blatant lies and slander. Oddly enough most of the proof of the lies and slander you can find by reading the press releases then going to the studies that they provide on the RIAA site that does not support their press releases.

    So my question is with them being so blatantly illegal, why aren't these guys all in jail?
  • Thomas-Aide? (Score:5, Insightful)

    by arizwebfoot ( 1228544 ) * on Friday June 19, 2009 @03:09PM (#28393779)

    Perhaps all those artists could do a benefit concert for Ms. Thomas and raise enough money to pay off the RIAA.

  • by Anonymous Coward on Friday June 19, 2009 @03:14PM (#28393853)

    Who the hell gave a jury of dumb-asses the authority to set the amount of the fine? What a bunch of ignorant incompetent couch potatoes!

  • by eln ( 21727 ) on Friday June 19, 2009 @03:17PM (#28393913)
    Seems like a pretty huge gamble to not only saddle your client with a huge unpayable debt but also set precedence for future cases just on the hope that it would stir public opinion enough to overcome the powerful RIAA lobby and get favorable legislative action on the issue, meanwhile hoping you can somehow get the ruling reversed on appeal (maybe due to ineffective counsel?) If my lawyer tried a tactic like that, they would be fired well before the trial.
  • by castironpigeon ( 1056188 ) on Friday June 19, 2009 @03:18PM (#28393917)

    I hope the victory will be in the system no longer being able to pretend it is "for the people, by the people".

    And then what? Just because people don't read /. doesn't mean they're stupid. They know what's going on as well as we do. Maybe they know it because their pension plans are gone or their kids are dead in a dummy war the US is fighting to keep the economy afloat. This broken system is the best we've got. No reform and no revolution could change that. What would you revolt into that would be incorruptible? People are incapable of governing themselves. Someday we'll design better people or machines who will be able to conquer and govern the rest of us effectively. Until then, just try to lay low.

  • by Anonymous Coward on Friday June 19, 2009 @03:21PM (#28393967)

    This is why I never bought CDs in the first place. The RIAA is not concerned with the welfare of its "Clients" it is only concerned with the lining of its own pockets. They care little for who they destroy in the name of "Justice" when their justice is just bullying those who cannot defend themselves. Its like putting someone to death for parking in a handycap space.

    Seriously. This woman, and by extension her children, will never again live a normal life. The purpose of the justice system is to impress on those who break the law the seriousness of their infractions, NOT to doom them to "Prison without chains". She will never again have a financially stable life. She will never again be able to do anything but stare at the sheer weight that the twisted law has put on her shoulders. Her children will NEVER go to college if they are not given a free ride, which is more and more difficult to do in this world, and because of one small infraction(Yes, an INDIVIDUAL doing this is a small infraction even if it is part of a larger problem, the actions of the whole cannot be lumped on the shoulders of any single individual) she will be in all senses of the word, dead.

    But so long as the wheels are greased by the right people laws will never be written to curb this kind of gross abuse of the system. All in all she's liable for what? 5-10 dollars per song when everything is taken into account? Even with a list that long it barely makes it into the realm of theft and far from the minimum of grand theft.

    And all the while the artists, who this is supposedly done in the name of, are receiving how much of this money? How many dollars actually makes it back to them when a case is won? I'm doubting its very much after the lawyers exorbitant salary, the money used to grease the right wheels on capitol hill and the money that flat out goes to the RIAA as "Payment" for a "Service rendered". I don't think they care if they get to buy two sports cars that year instead of one. Or line a little more of their pool with gold.

    The Day the RIAA closes its doors... is going to be a good day.

  • by shentino ( 1139071 ) <> on Friday June 19, 2009 @03:21PM (#28393969)
    I'd say the defense should get shit for legal malpractice.
  • by erroneus ( 253617 ) on Friday June 19, 2009 @03:22PM (#28393983) Homepage

    What happened to infringement needing to have some sort of commercial or otherwise monetary gain? P2P sharing is (generally) not for monetary gain. Regardless of whether it's right or wrong to do so, the intent of large damages is to discourage commercial copyright infringement, not to pick on the little people.

  • What a sad joke (Score:4, Insightful)

    by DarthVain ( 724186 ) on Friday June 19, 2009 @03:23PM (#28394003)

    What a sad joke the judicial system is.

    Is that supposed to be "justice"? I think by anyone's definition that is just plain stupid.

    Not to mention pointless. The fine might as well be for a Gajillion dollars, 'cause she ain't got that either.

  • by shentino ( 1139071 ) <> on Friday June 19, 2009 @03:24PM (#28394023)
    Doing so by waiving viable defenses is borderline legal malpractice.
  • by Anonymous Coward on Friday June 19, 2009 @03:27PM (#28394089)

    Two Chickens in Every pot, Two cars in every garage.

    Hey man, we have mortgage payments, car payments, the kids schools to pay for, transportation, Internet services, TV services, that rental couch my wife just HAD to have, the big screen TV, our DVD collection. Don't forget the BBQ next sunday with all the neighbors! We have to prepare for that too. Don't forget about nana's prescriptions, and the new game console for little Timmy, oh and games.

    People only fight when they have nothing left to loose. Whos going to join the revolution if they have stuff they don't want to lose?

  • by click2005 ( 921437 ) on Friday June 19, 2009 @03:28PM (#28394091)

    From the sounds of it, the client was unable to pay their initial settlement offer of a few thousand.
    If thats the case then is there much different between being bankrupt and unable to pay say $50,000 or $5,000,000?

  • by TheRaven64 ( 641858 ) on Friday June 19, 2009 @03:29PM (#28394109) Journal
    When you realise that the minimum statutory penalty for copying a CD is higher than the maximum penalty for stealing the CD, you see quite how messed up copyright law has become.
  • by cavtroop ( 859432 ) on Friday June 19, 2009 @03:29PM (#28394123)

    we got fat and lazy. Literally and figuratively.

  • Cruel and Unusual (Score:5, Insightful)

    by headkase ( 533448 ) on Friday June 19, 2009 @03:30PM (#28394141)
    Don't you USians have that little clause that prohibits "cruel and unusual punishment"? 1.9M for an average person is their whole life earnings. She could have stole a CD from a store with 24 songs on it and got a slap on the wrist. What makes it so different that it is done on a computer? This cruel punishment should also apply to the people down there who take a pee in the bushes on their way home from the bar and are branded "sex-offenders" for the rest of their life. The US is hysterical and real people are being burnt as witches.
  • by sherpajohn ( 113531 ) on Friday June 19, 2009 @03:31PM (#28394147) Homepage

    Trillions in bailouts to banks that wasted the untold fortunes of the average person's retirement funds in vain attempts they knew should have failed to make the rich beyond need bankers even more fucking rich, and the courts have a audacity to award the perveyors of packaged pop poop almost $100k per song shared? You people are totally fucked in the head. If it gets like this in Canada I am leaving - but where can I go that's not that inasane? Jeebus jumpin jehosiphat!

  • by jedidiah ( 1196 ) on Friday June 19, 2009 @03:37PM (#28394253) Homepage

    Fine. Make it comparable to a shoplifting first offense.

    That said. The RIAA should not be able to use the threat of megabuck jury
    awards in order to extort easy settlements.

  • by CorporateSuit ( 1319461 ) on Friday June 19, 2009 @03:38PM (#28394269)

    I believe I read somewhere that they claimed it was a "per-upload" infraction. So it's something like she uploaded 24 songs something like 27,000 at $70 per violation.

    There were 24 songs available -- no proof of any of them ever being uploaded.

  • by kybred ( 795293 ) on Friday June 19, 2009 @03:41PM (#28394327)
    Counterpoint this $1.9 million judgement to this []:

    Jabari, a 300-pound gorilla, escaped from his enclosure and went on an angry rampage through the zoo. Police shot and killed him on the zoo grounds, but not before he seriously injured Reichert, Heard and 3-year-old Rivers Heard.

    The Dallas City Council, which oversees the zoo, is scheduled to approve a $500,000 financial settlement with Heard and Reichert during a special meeting Friday at City Hall. The money is meant to compensate the women and their children for their physical injuries and emotional trauma.

    State law caps civil damage awards against a city government at $500,000.

    So the RIAA gets nearly $2 Million, while these people with real physical and emotional injuries get 25% of that.

  • by bkaul ( 1235970 ) on Friday June 19, 2009 @03:43PM (#28394359)

    Speaking as a Brit, I have to ask...

    What the hell happened to that former colony ours that fought for freedom and began a war of independence over unfair taxation?

    FDR. Not that he was responsible for modern copyright law, etc. but the era of big socialistic government programs taking precedence over individual liberty started when he stacked the courts to push his New Deal through despite it being opposed to everything the Constitution stands for.

  • by DoofusOfDeath ( 636671 ) on Friday June 19, 2009 @03:50PM (#28394481)

    Speaking as a Brit, I have to ask...

    What the hell happened to that former colony ours that fought for freedom and began a war of independence over unfair taxation?

    It's easier to rally against the outside oppressor, than the enemy within.

  • by lena_10326 ( 1100441 ) on Friday June 19, 2009 @03:51PM (#28394511) Homepage
    You don't. You either: file for bankruptcy and wreck your credit history, or they pursue withholding out of your paycheck (say $200 a month), or you plead with the public for donations.
  • by Mister Whirly ( 964219 ) on Friday June 19, 2009 @03:55PM (#28394577) Homepage
    Sigh. Ok, here is your crash course on the music business. The bands themselves rarely (unless they are mega-stars resigning or renegotiating a contact) own the rights to the songs, and the labels can do whatever they want with them. I can guarantee you every good artist knows that suing your fans is not a great business strategy. And considering the artists will never see a dime of this money, I am sure they would all have a much different opinion of the outcome than music label executives would. Don't blame the artists for what the music labels do. The artists make the music, the music labels screw it up from that point on. If you truly want to support an artist, go to their live shows and buy merchandise, or their CD directly from the band. Most bands see less than 75 cents of profit from every $15 CD sold, and the labels have some creative bookkeeping designed to take back any profits actually made from music sales from the band. And certainly don't punish the artists for what a jury of her peers decided what Ms. Thomas has to pay. Blame the law and the music labels for letting it get to this in the first place.
  • by mcgrew ( 92797 ) on Friday June 19, 2009 @04:02PM (#28394719) Homepage Journal

    RIAA != music. Spend your music money on your local artists, they NEED it. Does Snoop Dawg really need a new yacht that badly? Chances are, the drummer in your local band has more talent in his little finger than Lars Ulrich has in his whole body.

  • by TheLostSamurai ( 1051736 ) on Friday June 19, 2009 @04:04PM (#28394753)
    Rosa Parks intentionally broke the law because she was tired and didn't want to walk to the back of the bus.

    I don't mean to play down the significance of what she did, I'm just saying that court was the farthest thing from her mind at the time.
  • by Sparton ( 1358159 ) on Friday June 19, 2009 @04:08PM (#28394819)

    When you realise that the minimum statutory penalty for copying a CD is higher than the maximum penalty for stealing the CD, you see quite how messed up copyright law has become.

    As a knee-jerk reaction, sure. And if you steal the CD, there is an obvious loss on one or more parties.

    But if you steal a CD, you aren't necessarily taking an action that may have others not purchase other copies of said CD. If you buy a CD and upload it, there are many others who may download it instead of purchasing it, resulting in potentially far more than a single lost sale.

    The key word is potential. Obviously, every download is not a lost sale, but if the cheep/easy solution of downloading wasn't available, more sales would likely occur.

  • by agbinfo ( 186523 ) on Friday June 19, 2009 @04:09PM (#28394827) Journal
    $1.00 a month seems reasonable to me. At that rate she might even finish paying before the copyrights expire.
  • by sgt scrub ( 869860 ) <saintium@ y a h o o .com> on Friday June 19, 2009 @04:23PM (#28395097)

    The case is not a criminal case. The award is not a punishment. The case does not a class action suit with hundreds of injured participants. The award is recovery. The highest price of the 24 items on sites offering them for download should be considered as the "loss". Court and legal costs should be added. The total should then be the amount of the reward.

    I find it interesting how folks in the government complain how class action lawsuits have unjust awards that are destroying corporations but seem fine with individuals getting raped by a corporation.

  • by sgt scrub ( 869860 ) <saintium@ y a h o o .com> on Friday June 19, 2009 @04:29PM (#28395199)

    people are being burnt as witches

    Funny you should say that. The last time people were being burned as witches, religious extremists were running the government. What a coincidence.

  • by Solandri ( 704621 ) on Friday June 19, 2009 @04:41PM (#28395411)

    Yeah, read the McDonald's case.

    They consistantly brewed their coffee at 180F. Industry standard is 140F or so. There were multiple complains their coffee was too hot, dating back years. They were warned repeatedly about this. There was a paper trail. There were prior cases of 3rd degree burns.

    No, that's propaganda spread by the lady's law firm to convince the jury (and it worked, not only on them but on a lot of people on the Internet).

    Bunn is the largest manufacturer of commercial coffee makers in the U.S. They supplied the coffee makers when I helped manage a restaurant. They probably supply the coffee makers for McDonalds. They are the industry standard. If you go to their web store [] and scroll down, you will clearly see:

    Ideal coffee holding temperature: 175F to 185F (80C to 85C)
    Most all the volatile aromatics in coffee have boiling points well below that of water and continue to evaporate from the surface until pressure in the serving container reaches equilibrium. A closed container can slow the process of evaporation.
    Ideal coffee serving temperature: 155F to 175F (70C to 80C)
    Many of the volatile aromatics in coffee have boiling points above 150F (65C). They simply are not perceived when coffee is served at lower temperatures.

  • Another Strategy (Score:3, Insightful)

    by Dr_Ish ( 639005 ) on Friday June 19, 2009 @05:28PM (#28396065) Homepage
    I don't have any dealings with RIAA type issues, as I am not a musician. However, I deal with publishers, who are fundamentally similar to record companies. I produce copyrighted work that I have to 'assign' the copyright to the publishers, in order to get my stuff into print (and this is only after going through the blind refereeing process). Moreover, I seldom get paid for my work. As a result, most professors like me hate publishers, but see them as a necessary evil.

    That being said, I also have plenty of friends who are successful musicians -- real record contracts and a smattering of Grammies. Funnily enough, their attitude to their record companies is about the same as mine to publishers -- they stink, but are a necessary evil.

    This parallel though suggest that their may be an alternative strategy available in the current context. Musicians and professors only deal with record companies/publishers, because there is no alternative. The question is why not? The answer is simple, these corporations are really diverse monopolies. "Ah ha!", someone will claim, "this is not so, as there are multiple record companies/publishers, thus there is 'choice', so it is not really a monopoly." However, when the record companies/publishers start to work together (e.g. in the RIAA), then they ARE working like a monopoly. Not only that, their business model is predicated on a form of extortion -- 'Give us the copyright, or your record does not get released/your paper does not get published'. Couldn't the RIAA and their like be put out of business on these kinds of grounds? Isn't this just the kind of thing that even the most foaming and rabid right winger would support? More to the point, why isn't somebody actually doing this?
  • by dirk ( 87083 ) <> on Friday June 19, 2009 @05:44PM (#28396267) Homepage

    I get tired of saying this, but the penalty for distributing a CD should have nothing to do with the cost of buying a CD or MP3. This would be appropriate if she was accused of downloading one copy, but she is accused of uploading. The issue is she assuming the right to distribute a CD or MP3, so the penalty should be based upon what the RIAA would charge to gain the rights to distribute the songs. I have no idea what songs were distributed, so I can't say whether the award is excessive (my gut feeling is yes, but if it was 24 of the most popular songs at the time, maybe not).

    The penalty should be based on what it would cost me to gain the rights to distribute those 24 songs to anyone I wanted from my web site. So if I called the RIAA (at the time it happened) and said "I'm interested in putting these 24 songs on my web site for anyone who visits to download, what would that cost me?", whatever the answer would be would be a fair basis for the judgment. Obviously, the price they quote for the trial would have to backed up by facts (what have they actually charged for these or similar songs for instance) so they aren't able to just make up ridiculous amounts. Will it be a lot? Yes, it most likely will if they were popular songs (I;m sure 24 covers of Achy Breaky Heart wouldn't cost that much though), but it would be a fair way to estimate what the actual damage was.

  • by davidwr ( 791652 ) on Friday June 19, 2009 @06:12PM (#28396595) Homepage Journal

    Rosa Parks was a case of theatre. It was carefully staged civil disobedience. When she got on the bus she was hoping she would be asked to move for the purpose of creating a case, if not in court, then in the court of public opinion.

    She wasn't the first to try. One or two others tried but either the bus driver wouldn't bite and let them keep their seat or the case never got the traction it needed to change the world.

  • by Anonymous Coward on Friday June 19, 2009 @06:14PM (#28396633)

    LOL someone's been listening to conservative talk radio and watching Fox News.

  • by mdwh2 ( 535323 ) on Friday June 19, 2009 @06:37PM (#28396903) Journal

    It's even worse than that - we're in a situation where you get a slap on the wrist for stealing a loaf of bread, but if you made a copy of the bread from the recipe, without affecting the original loaf, then you get your hand chopped off.

  • by TheRaven64 ( 641858 ) on Saturday June 20, 2009 @06:03AM (#28400485) Journal
    Let's have a more fair comparison then.

    Example one: You steal a CD from a shop, and sell it for $1.

    Example two: You burn a copy of a CD you own and sell it for $1.

    By the current law, the maximum fine for example one is close to the minimum statutory fine for example two. The maximum penalty for example two is orders of magnitude higher than for example one. The moral here is, if you're going to give someone a copy of a song, steal the CD from a shop, don't make the copy yourself.

"Mach was the greatest intellectual fraud in the last ten years." "What about X?" "I said `intellectual'." ;login, 9/1990