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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 C_Kode ( 102755 ) on Friday June 19, 2009 @02:52PM (#28393489) Journal

    I think they should subpoena the jury and ask them exactly how they came up with $2M in damages. As I noted before. This sounds extremely fishy that they would award that type of money to the RIAA. I suspect there was jury tampering involved.

  • by Anonymous Coward on Friday June 19, 2009 @02:57PM (#28393571)
    If worse comes to worse, she can declare chapter 13 personal bankruptcy, make a "best effort" attempt to repay the verdict over the next three years (the bankruptcy court will set a reasonable monthly payment based on her income and expenses), and she's relieved of the debt. She can keep her home, her car, her personal possessions. It will be a pain in the ass, but she doesn't have to wind up on the street or have jackbooted thugs come into her house and confiscate everything she owns.
  • Duh... (Score:5, Interesting)

    by mdf356 ( 774923 ) <mdf356 AT gmail DOT com> on Friday June 19, 2009 @02:57PM (#28393577) Homepage

    When it's large damages against a company [] the Supremes know it's not good. But statutory damages to an individual that lines the pockets of business, that's great! (For 5 of 9 anyways). Summary: businesses good, people bad.

  • by Freetardo Jones ( 1574733 ) on Friday June 19, 2009 @02:59PM (#28393617)

    What is fishy about it? She has been clearly guilty of this crime since the beginning and she's only been assigned about half of the maximum statutory limit. I don't see why this leads to any notion that there was jury tampering. All it leads me to believe is that these statutory limits need to be seriously looked at and made to fit more correctly the crime.

  • by newcastlejon ( 1483695 ) on Friday June 19, 2009 @03:06PM (#28393709)
    The question is not whether or not she downloaded the songs, it should be whether or not she did it with the intent of providing the same to others. I could support damages equal to the market value (plus reasonable punitive damages) of what she obtained iff (sic) she didn't upload anything but to suggest that this woman is even in the same league as someone who sells thousands of copied CDs is just silly. A common belief here is that the jury came down hard on her because she lied in court, but isn't perjury a criminal matter and shouldn't it have no bearing on the damages levied against her for a few dozen MP3s?
  • by Anonymous Coward on Friday June 19, 2009 @03:07PM (#28393729)

    I wonder myself whether the defense DELIBERATELY anticipated a huge defeat in not refuting evidence or calling expert witnesses,
    all in an attempt to "shoot the moon" and get unreasonably high damages awarded which would, as it happened, stir controversy and
    undermine the RIAA in future venues up the court chain. Thomas was certainly painted as a victim in media coverage, (rightly so, yes)
    and the idea that ANY song is worth 80,000$ for being stolen in ANY form is pretty ludicrous and now widely acknowledged as such.

  • by The Moof ( 859402 ) on Friday June 19, 2009 @03:09PM (#28393765)
    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.
  • by TheRaven64 ( 641858 ) on Friday June 19, 2009 @03:22PM (#28393981) Journal

    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?

  • Re:It is not over (Score:5, Interesting)

    by NewYorkCountryLawyer ( 912032 ) * <ray.beckermanlegal@com> on Friday June 19, 2009 @03:24PM (#28394015) Homepage Journal

    The RIAA has been making very telling statements after the verdict.

    Yes, it's amusing. They're being quite defensive about it. They've been caught with with their greedy pants down.

  • by poetmatt ( 793785 ) on Friday June 19, 2009 @03:25PM (#28394047) Journal

    Uh, there's a problem with appeals and excessive amounts. In same cases (although not in civil courts I think, IANAL/correct me at will), you have to post a portion of the money to appeal directly. However in this case due to constitutionality might not be the case.

    I'm wondering how good the replacement lawyer was and if that has a factor as well.

    Basically the whole case is wide open to appeals though, all around.

  • by GrifterCC ( 673360 ) on Friday June 19, 2009 @03:29PM (#28394107)
    I am a lawyer.

    The EFF is going to run out of rope really fast. BMW v. Gore said it was about factors, but it was really about notice. Could BMW really expect such a dramatically large punitive-damages award? Maybe not, for the conduct alleged. Here, legally speaking, Jammie had notice: there was a statute putting her on notice of the fact that a jury could award these damages if it wanted.

    Anyway, with the Court's current composition, arguing that BMW v. Gore should be expanded to statutory damages is a non-starter. That opinion barely made it through as it was. Just look at the dissents--Ginsberg, joined by Rehnquist? The Court's only gotten more government-friendly since then.

    I don't know much adjudicatory criminal procedure; maybe the 8th Amendment is the way to go.
  • by Anonymous Coward on Friday June 19, 2009 @03:29PM (#28394117)

    No system is perfect. Reforming could not make your system perfect. It doesn't mean that it would be as good as it can be, the best one around or even good. It is none of those.

    Europeans have considered USA justice system a joke for decades. Where I live, it is very common subject for jokes. As in... You can sue for unbelievably stupid reasons. You can actually win those law suits. And you can win massive amounts.

    In no other country than USA would MacDonalds be sued because the coffee is too hot and burns your lap when you spill it while drinking coffee and driving. And in no other country would Mac Donalds then decide "There is risk that this can happen again, so we need to specifically put a 'coffee is hot' warning label.". Same goes for suing fast food chains because you are too fat, suing microwave oven company because your cat died when you put it in a microwave oven...

    No system is perfect but the one you guys have just sucks. A lot.

  • by jedidiah ( 1196 ) on Friday June 19, 2009 @03:30PM (#28394143) Homepage

    This verdict is a simple reflection of the fact that the jury has no
    sense of perspective on this matter. They probably just pulled a number
    out of their collective posteriors. You probably had some crying for
    blood advocating the full amount and others advocating the minimum
    amount. The foreman probably split down the middle and probably didn't
    even bother to AVERAGE the proposed amounts.

    Can you relate to 2 million dollars? Do you think the average jurist can?

    Do you think the average American can?

    So, Minnesotans think that running a P2P app with some music on it rates 50% the maximum penalty.

    It makes you wonder what they think merits the minimum or the maximum.

    Mebbe the 200x range of damages spelled out in the law just demonstrates how bogus it is.

  • Apply the law? (Score:3, Interesting)

    by TheLink ( 130905 ) on Friday June 19, 2009 @03:47PM (#28394415) Journal
    Judges can interpret and apply the laws in many ways. There are so many laws - they can pick the laws they want to apply.

    Same goes for the prosecution in criminal cases.

    AFAIK nobody has ever been sentenced to life imprisonment for adultery in Michigan. Even though that is how the law is written. Go check it out :).

    If 1.9 million for copying a song is not cruel and unusual punishment, then maybe life imprisonment for adultery is fine too.

    Some may say adultery is not a serious offense, but a lot of spouses may argue otherwise.
  • by squallbsr ( 826163 ) on Friday June 19, 2009 @03:48PM (#28394427) Homepage
    Its actually less than $0.99 per song due to the profit margins that Apple/Amazon/etc has on the music.

    Lets say:

    24 songs
    74 cents per song
    100 leechers on P2P, per song

    24 x $0.74 x 100 = $1776.

    This is even more reasonable...
  • by Synchis ( 191050 ) on Friday June 19, 2009 @03:49PM (#28394455) Homepage Journal

    Indeed, but its that way for a reason.

    The original intent of statutory damages was 2 fold:

    1. To ensure that the infringer does not do it again, and to send a message to other potential infringers, that this behaviour will not be tolerated.

    2. To punish commercial infringers for any infringements they may have done that could not be accounted for through actual losses.

    It's obvious from the plain evidence in this case that she is not a commercial infringer, and never intended to re-sell the 24 songs, which leaves the other option: To send a message.

    I'm pretty sure everyone can agree that $80,000 is insane damages for a single song. So then, in a range of $750 to $150,000, what *IS* fair?

    The evidence seems to say that she is guilty, and thus should be held accountable. Actual damages would not send the message that the industry wants to send, but at the same time, ridiculously high damages seems to have the same effect.

    Is $750 acceptible? For a total damage award of $18,000? The question is not "Could she reasonably pay the damages?", because the law doesn't care if you can pay it. The question is "How much would make a reasonable deterrent for future infringers?".

    Unfortunately, these days, I believe the problem is already out of control, and no amount of damages, reasonable or not, would serve to deter future infringement. Indeed, the same person, after resolving all these issues, being left penniless and bankrupt, is likely to learn from these mistakes and use an encrypted client in the future, and simply download all their music in the future.

    Punishing an avid music collector (it's reported that she actually *owns* 200+ cd's) over 24 downloaded songs seems to me to betray all of your future customers.

    I don't honestly think theres any way the recording industry can drive this mess for a positive outcome for them. They'll never get the money from *any* damage award, and they're reputation is irreversibly and forever scarred by this lawsuit campaign.

  • by Paracelcus ( 151056 ) on Friday June 19, 2009 @03:56PM (#28394615) Journal

    In the face of economic terrorism and a complete lack of juristic integrity I suggest a repayment schedule of $1.00 per month until the death of the defendant.

    If I were compelled to pay (and had anything to take) I would destroy all cash, property, etc to deny the mafiosi their big score.

    Better to destroy everything of value than yield to terroristic demands.

  • by korekrash ( 853240 ) on Friday June 19, 2009 @04:13PM (#28394907)
    OK, your point on theft is taken; it is legally different. But that still doesn't make it right to illegaly download something you don't have the right to use. It just irks me that so many people feel it is ok to rip off artists. Regardless of it being theft or not you are ripping off the people that made the music, software, etc. if you download it without paying for it. I am not saying this judgement was right, only that downloading the music and making it available to others is not right either. As for being a troll...just because I have a different view than most of the techno-hippies on /. does not make me a troll....
  • by JSBiff ( 87824 ) on Friday June 19, 2009 @04:13PM (#28394909) Journal

    What I'm going to say here, I do not say specifically in context to the Jammie Thomas case - I do think this seems rather unreasonable for what she did. But, there is a larger question - is it ever reasonable to have punative damages that are much larger than the actual damage? I think that yes, in some cases there are.

    Consider hypothetically any sort of business that profits from any sort of illegal activity - whether that's theft, or building unsafe cars knowing that only 3 out of a 100000 of your customers will actually be injured by the car. If you, as this company, only have to pay actual damages (or only small punitive damages) to those three out of 100000 customers, you might decide it's more profitable to break the laws regarding safety (because you have 99,997 customers who you won't have to pay damages to) and pay the damages, than to build the car the right way and save those three customers from death or injury.

    Or, for theft. Let's say instead of sending thieves to jail (I'm not including copyright violators as thieves here, but people who really bust into people's businesses, houses or cars and take stuff, or pickpockets) we just made the thieves give back what they took, and maybe made them pay an additional $100. If you did that, you'd have a heck of a lot of thieves, because the chances are you'd only get caught thieving maybe 1 in 10. So, 90% of the time you get to keep what you stole (that is, you profit from it), and maybe 10 percent of the time you have to give it back and pay $100. If that were the case, theft would be highly profitable. So, you put very high punitive damages (in this case, years in jail) on the bad behavior, to make it so that even getting caught once makes it not worth it ever to steal (or at least, that's the theory).

    The RIAA faces a somewhat analogous situation. In reality, they can only catch and sue a vanishingly small number of copyright violators - they can't catch and sue everyone who does it (I have no idea what the real numbers are, but I wouldn't be surprised if it was at least 1-in-a-million). So, they want to make it hella scary to face their lawsuits, so it's not worth it to risk even getting caught once. The question we have to decide as a society is, do we think copyright infringement is serious enough of a problem, like theft, or selling unsafe products, that it is just to severely punish that.

    I'm not sure that 2 Million dollars is reasonable, but I can't help but thinking that it's gotta be much larger than the actual cost of the tracks that were illegally copied. Maybe something like $200 per song - so that would be damages of like $4,800 in this case. That seems steep enough, seems like, to be a somewhat effective deterrent, while being low enough that someone could reasonably be expected to be able to pay it without totally bankrupting them - you could setup monthly payments - $100/mo for 48 months or something like that. That would be enough damages to make me think twice about sharing out songs. Sure, it's still not super likely I'd be found and sued, but if I was, I'd know that I'd be facing manageable but very unpleasant consequences.

  • by blind biker ( 1066130 ) on Friday June 19, 2009 @04:29PM (#28395195) Journal

    It doesn't matter that the artists get very little from the music industry - in the end, it was their choice and the artists mentioned in the OP are filthy rich, so I have a hard time feeling sorry for them. But the main point is that these artists (or "artists")
    a) Create profits for the labels.
    b) Give legitimacy to the labels.

    As long as they stay quiet and collect their money, they are responsible. So, yeah, name and shame is definitely a good tactic to follow.

    For your information, not ALL musicians decided to suck on the RIAA's teet. There is plenty of excellent artists that decided to be independent.

  • The echo chamber (Score:3, Interesting)

    by westlake ( 615356 ) on Friday June 19, 2009 @05:21PM (#28395969)

    Thomas was certainly painted as a victim in media coverage

    That is how is she was painted here.

    But that isn't how the jury saw her - not the first time around and not the second.

    There is a world beyond the blog.

    It has its own rules and its own values - and in that world the geek doesn't fare so well.

    I wonder myself whether the defense DELIBERATELY anticipated a huge defeat in not refuting evidence or calling expert witnesses

    That would be just plain stupid.

    The trial court or the appellate court is free to scale back the verdict without ever reaching the "due process" question.

    It is also free to say that the finder of fact has twice reached the same conclusion - and is unlikely to reach any other conclusion no matter how many times the case is retried.

    So much for the drama. Your case is now dead.

  • by davidwr ( 791652 ) on Friday June 19, 2009 @06:09PM (#28396561) Homepage Journal

    There are caps when a government is the defendant. This came out with the Bonfire tragedy at Texas A&M University some years back.

    The Dallas Zoo is, surprisingly, owned by the City of Dallas.

    There are states with caps on civil damages. I don't know if Texas is one of them. Anyone? Bueller?

  • by 91degrees ( 207121 ) on Friday June 19, 2009 @06:38PM (#28396937) Journal
    When she got on the bus she was in the "colored" section of the bus. It was when that section was moved (there was a sliding sign separating the two areas) that she refused to move.

    I guess it's possible that she decided to sit at the front of the blacks only section to incite this but it sounds like she was seen as a good poster child after the arrest.

God made the integers; all else is the work of Man. -- Kronecker