Jammie Thomas Takes Constitutional Argument To SCOTUS 146
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.'"
Good luck (Score:3, Insightful)
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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.
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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.
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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...
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Yes, that's the one. Obamacare is one of the biggest transfers of wealth to corporations in our history.
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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
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Really? Because I thought that the Legislative branch could still pass legislation contrary to whatever decision SCOTUS makes.
Yes. People should remember that statutory damages were *passed by the legislature*, not imposed by evil right wing corporatist judges twirling their mustaches. They're unlikely to substitute their preferences for the laws passed by the legislature, but that's a good thing if you believe in the rule of law.
Re:Good luck (Score:5, Informative)
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)
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.
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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.
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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.
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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
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You missed something, some are saying that the level of the fine is unconstitutional.
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I'd have to disagree with the legally sound bit, they can get away with going against the spirit of the constitution precisely because they are the highest judges and they know full well they won't be brought to book for going against the constitution.
The wording of the constitution is clear and easy to understand, but some of the decisions the supreme court make are often backed by twisted ideas and any decent person would see they are morally corrupt.
Grow up. (Score:3)
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
scourge (Score:1)
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For a modern economic usage, see the effects of http://en.wikipedia.org/wiki/Quantitative_easing [wikipedia.org] which promise to suck mightily, or be kind of a turn-on. Your Misery May Vary.
Good luck to her - no enforcement without... (Score:3)
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.
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Re:Good luck to her - no enforcement without... (Score:4, Insightful)
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.
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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.
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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.
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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?
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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
Good Argument (Score:1)
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
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Not a good argument at all. The purpose of copyright law, as stated in the Constitution, is NOT to 'prevent someone from making money off someone elses work', it is to promote creation of new works by giving the creators exclusive rights to their work.
Yes but wasn't it also supposed to be for a limited/reasonable amount of time? Couldn't copyright also be looked at as a kind of contract or agreement between content creators and society?
If so, it seems to me that this agreement has long since been broken and I don't think it was society that did so first.
They should have expected this... (Score:1)
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
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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]
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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].
by my estimation (Score:1)
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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
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If it was stealing, let's say a CD from a store, then the crime is measured by the value of the item stolen.
This is about copyright -- the right to publish. The defendant was charged with illegal publication -- distribution.
I hate to degrade the discussion by inserting "you're using the wrong words" but in this case it's particularly important. Downloading something you don't have any right to is a problem but the value should only be measured by the value of the materials. But that's not the "problem" a
Re:by my estimation (Score:4, Interesting)
Note the RIAA has never published music, and is not a music publisher so should have no right to fine uploaders/distributors /publishers
They represent some of the Music Publishers in the USA, but not all of them, and not all music publishers across the world
But they will and have tried to prosecute people for uploading material where the copyright is not owned by the people they represent, even outside the USA
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This case is Capitol vs Thomas, not RIAA vs Thomas. Capitol is a music publisher, and this case was about their works.
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This case is Capitol vs Thomas, not RIAA vs Thomas. Capitol is a music publisher, and this case was about their works.
1. Capitol is but one of the plaintiffs.
2. The RIAA was in fact running the case, with the aid of the record company plaintiffs.
3. Capitol is a record company, not a music publisher.
4. The case was about the recordings of several different companies.
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Note the RIAA has never published music, and is not a music publisher so should have no right to fine uploaders/distributors /publishers
They represent some of the Music Publishers in the USA, but not all of them, and not all music publishers across the world
But they will and have tried to prosecute people for uploading material where the copyright is not owned by the people they represent, even outside the USA
No, they haven't. The RIAA has never been a party in these suits - it's Capitol Records v. Thomas, and Sony v. Tenebaum. They're all members of the RIAA, but your argument about lack of standing is false.
Question for NYCountryLawyer re illegal downloads (Score:3)
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?
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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.
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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
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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
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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.
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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
how? (Score:2)
"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.
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I still don't see the due process violation the law specifies what the award should be. She could have chosen not to infringe she didn't so she gets what the law says. I don't see how that isn't being treated fairly. The law needs to change but a judge following the law in sentencing isn't doing anything wrong.
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Regardless I think most would agree that copyright infringement is against the law and some level of punitative punishment is warranted. I don't get way people seem to be in the habit of comparing downloading a song to iTunes pricing. "It was only 100 songs which I could have bought for $99 on iTunes. Why are they fining my $5000?" Well because they only caught you with $99 of songs but realistically you almost certainly downloaded and uploaded far far more than that and even if you didn't there needs to be
Whoa... "Native American"? Hang on a second. (Score:3)
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.
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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.
Can someone explain.. (Score:2)
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
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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 (Score:2)
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.
She's an idiot (Score:3)
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.
Re:How likely are they to hear the case? (Score:5, Insightful)
The one thing I can see in favor of the case being heard is the argument that the current method for establishing statutory damages leads to a pattern of overly broad legislation on the part of RIAA/MPAA-inspired copyright entities, leading to an excessive drain on time and resources of the lower courts.
Re:How likely are they to hear the case? (Score:5, Informative)
additionally, the conflict between application of case law between the various Federal Circuits needs to be resolved; someone living in Illinois might get an entirely different set of Federal case law applied than someone in Arizona, and at this stage it's unreasonable to allow that to continue.
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Resolving differances in circuit court rulings is one of the purposes of SCOTUS. There are often disagreements between federal court districts when if comes to case law, and those ruling have to be merged some how.
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... leading to an excessive drain on time and resources of the lower courts.
You do realize that they recently agreed to kill the class action lawsuit, a legal tool designed specifically to address this problem, right? The courts don't give a damn about the "time and resources" of the courts. Criminals can rot in jail for months or years before trial, who cares? Oh wait, many of them are innocent? Well they can't be that innocent, or they wouldn't have been arrested to begin with. In the few cases where people (not corporations) have organized to overwhelm the courts, they simply c
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Oh wait, many of them are innocent? Well they can't be that innocent, or they wouldn't have been arrested to begin with.
Reminds me of the silly Star Wars Cops parody Troops: "All suspects are guilty--period! Otherwise, they wouldn't be suspects, would they?"
Guilty until proven innocent (Score:2)
Kind of appropriate considering the number of slashdotters who have preemptively convicted SCOTUS in this thread.
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Re:How likely are they to hear the case? (Score:5, Informative)
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Now why wouldn't the Supreme Court make provision to service a larger case load over time? Is there some magic logic behind this?
Divide up the duties and put the lazy assholes to work, pick out enough judges to do the damn job and quit pretending there isn't a need that outweighs any illogic that currently presides. This is the equivalent of filling a Cadillac gas tank with an eye dropper. If provision hasn't been made, identify who profits from a backlog and send in an angry mob with a rope! We're getting
Re:How likely are they to hear the case? (Score:5, Informative)
Scotus is only supposed to hear a small number of cases that will have major political and constitutional impacts
They are not a trial court. You get 10 minutes to speak your summary most of which you get interrupted by questions from the justices
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Scotus is only supposed to hear a small number of cases that will have major political and constitutional impacts
They are not a trial court. You get 10 minutes to speak your summary most of which you get interrupted by questions from the justices
No, that's just what they do. The Constitution wasn't specific about a max/min number of cases, how the cases should be heard, etc.
There are lots of ways in which they could rule, if they wanted to. Tradition, and threats from the president/congress are basically
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Tradition, and threats from the president/congress are basically all that keep them acting the way they do now.
Well that's the thing. They're appointed for life so there's very little congress or the president could do to impact them. Theoretically they could be impeached, though that's only actually been done once (in 1805, and he was acquitted by the senate). To actually remove the justice in question from office forcibly would require 2/3's of the senate to agree on it. Unless the justice in question has gone completely off the reservation, good luck with that. No, of all political offices in the land, that o
Sorta (Score:2)
Except, of course, Scalia's Shadow. In all his time on the court, Thomas has never EVER asked a fucking question; he just votes however Scalia tells him too.
The US has had some truly shitty Justices; Thomas is chief among them. Thomas: everything Thurgood Marshal was not.
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Scotus is only supposed to hear a small number of cases that will have major political and constitutional impacts
Actually, that's not what the majority of the cases they hear deal with. One of the main reasons the SCOTUS will hear a case is that there is a split decision on an issue of federal law among the circuit courts of appeal. I.e. if one circuit court has decided a federal law means one thing, and another circuit court has decided the same federal law means something else, then the US Supreme Court would likely hear an appeal on that issue.
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Now why wouldn't the Supreme Court make provision to service a larger case load over time? Is there some magic logic behind this?
It gives them cover to not grant certorati on cases that would set precedent for following the parts of the Constitution that are unpopular in Washington (notably checks on power and economic freedoms).
0% (Score:5, Insightful)
I didn't read the case, but if the summary is correct, they're making the wrong argument. SCOUTS will say that Congress established the law and that if the law is being followed then Due Process is served.
They should be making a case that the statutory damages constitute 'unusual punishment' and are far outside all other punitive damage amounts ever considered by copyright law in precedent (because Congress has been bought off).
Re:0% (Score:4, Interesting)
I didn't read the case, but if the summary is correct, they're making the wrong argument. SCOUTS will say that Congress established the law and that if the law is being followed then Due Process is served.
They should be making a case that the statutory damages constitute 'unusual punishment' and are far outside all other punitive damage amounts ever considered by copyright law in precedent (because Congress has been bought off).
Except that the statutory damages are compensatory in nature, not punitive. They're also reasonably related to the cost of a distribution license for a work. Accordingly, Congress was within its Article 1, Sec. 8 powers to set those levels, and they're constitutional.
The better argument is that the RIAA and MPAA are twisting the definition of "willful" infringement to conflate two of the statutory levels of damages: statutory damages are "up to $200" for innocent infringement, where you honestly believe that the work is not under copyright (e.g. if you didn't know that P.D.Q. Bach was Peter Schikele and thought he really was a son of J.S. Bach and has been dead for hundreds of years); "from $750 to $30,000" for 'normal' infringement; and "up to $150,000" for 'willful' infringement. The RIAA has argued that 'willful' means 'anything that's not innocent', and they end up removing that middle range of damages. That's contrary to Congress' intention.
Thing is, it hasn't come up yet as an argument, because Thomas and Tenenbaum and others keep arguing that all statutory damages are punitive, or that they have fair use rights, or that there's an implied exception for non-commercial infringement, and none of those arguments have been successful. They haven't raised the $750-30k range argument because, in their eyes, they shouldn't have to pay anything, so even a few thousand is a "loss". As a result, the judges hearing these cases only have the RIAA's argument for willfulness, and with nothing to the contrary in front of them, they side with it.
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Except that the statutory damages are compensatory in nature, not punitive.
Loss of four or five years' gross income feels like a pretty cruel punishment to me.
Lets face it, Jammie has nothing to lose. Either the Supreme Court takes her case or she buys a gun and gets good value for her enforced poverty.
There comes a point at which any person has to say "enough", and multi-year poverty for sharing a dozen songs would trigger it for me.
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Except that the statutory damages are compensatory in nature, not punitive.
Loss of four or five years' gross income feels like a pretty cruel punishment to me.
If I run over you with my car, causing you to rack up several hundred thousand in medical bills, should I be able to get out of paying it by saying that it's pretty cruel punishment for me to lose several years of income? No - that's the difference between compensatory damages, or damages that compensate you for your loss, and punitive damages, or damages that are tacked on as additional punishment.
Statutory damages in copyright are compensatory in nature, and are to compensate the copyright owner for thei
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If I run over you with my car, causing you to rack up several hundred thousand in medical bills, should I be able to get out of paying it by saying that it's pretty cruel punishment for me to lose several years of income?
Yes, that's why car insurance is compulsory in this country. It's also why we have a national health service. It's also why there's an "uninsured drivers fund" to cover the losses caused to someone by an (illegally) uninsured driver.
Statutory damages in copyright are compensatory in nature, and are to compensate the copyright owner for their lost distribution licensing revenue. They're not punitive, even though they may be painful.
As I said, loss of 4-5 years' gross income feels pretty fucking punitive. That may not be intended, but it's the bitter reality.
Anyway...
to compensate the copyright owner for their lost distribution licensing revenue
Their lost revenue was somewhere between $0 and $1000, depending how many people received the distributed material. Proven losses are at the l
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If I run over you with my car, causing you to rack up several hundred thousand in medical bills, should I be able to get out of paying it by saying that it's pretty cruel punishment for me to lose several years of income?
Yes, that's why car insurance is compulsory in this country. It's also why we have a national health service. It's also why there's an "uninsured drivers fund" to cover the losses caused to someone by an (illegally) uninsured driver.
So, if Thomas had lawsuit insurance, she could get out of paying this. The whole point is compensating you for your medical bills, or Capitol Records for their lost royalties from her distribution. That it's painful for me to buy insurance or painful for Thomas to pay royalties is irrelevant, since we're the wrongdoers.
Statutory damages in copyright are compensatory in nature, and are to compensate the copyright owner for their lost distribution licensing revenue. They're not punitive, even though they may be painful.
As I said, loss of 4-5 years' gross income feels pretty fucking punitive. That may not be intended, but it's the bitter reality.
"Punitive" has a specific legal meaning and it only applies to damages that are awarded as punishment for wrongdoing. They're related to how evil the defendant's act was, and not how badly th
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Michael Jackson made a business transaction that gave him an expected revenue stream associated with his outlay.
Jammie Thomas shared some files.
If you can't see the difference, and don't realise how stupid it is to compare one to the other, then I can understand why you aren't sympathetic to her. However, you should be.
How is the award against her remotely proportionate? Where exactly did Capitol Records lose $220k as a result of her minor transgression? At which point did she realise hundreds of thousands of dollars in revenue as a result of distributing those files?
I haven't even started to challenge you on the stupidity of the current IP laws, we're still merely discussing the punitive nature of this award. Because I don't care what the legal definition is, this is excessively punitive.
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Her motivations do not matter. If someone torched your house, are you going to only demand to be made whole if they did it for profit? If you said yes, you are lying. If she had legally gotten a license to distribute without paying royalties it would have cost her many thousands of dollars. She could have sold copies, she could have given them away for free. Either way, she paid for the license. If she had a crappy business plan where she could not recoup the expense that would be her fault, not Capit
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Her motivations very much do matter. The scale of her activities very much do matter. The fact that she didn't engage in commercial activities, that she didn't attempt to profit from her activities, that she was sharing a few files on the internet.. that means that trying to charge her a commercial distribution fee is fucking asinine.
If someone torches my house, I'll claim on the insurance, they'll get prosecuted, the Government may well give me some cash to cover any insurance shortfall.
Someone burns a hol
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Yes, that's why car insurance is compulsory in this country.
You're mistaken. It may be mandatory in your State, but here in NH it's not. Most people are insured anyway, and the rates are super-low because it's not State-mandated.
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Not at all. Michael Jackson paid about $273k for distribution rights for each of 4000 Beatles songs. $222k is certainly in that ballpark. If Thomas wanted to set up an online record store like iTunes,blah,blah,blah
The whole point is that she never intended to do this and is highly unlikely to have achieved it via a single torrent client. Now lie to me and tell me you or a member of your family have never done exactly the same thing.
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It might be a net good for society, but it would take more then money to break me.
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Some of us are mentally less stable than others. I'm probably going to kill myself; it's not certain when. It's not that I want to die, I just haven't got any real reasons to keep going.
With that in context, taking away everything I've worked towards would very much give me a "nothing to lose" attitude.
While I don't condone violence and would urge everybody to try and avoid it, there are people out there with even less to lose than me.
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Except that the statutory damages are compensatory in nature, not punitive. They're also reasonably related to the cost of a distribution license for a work.
The cost of a distribution license? Which is arbitrarily set by RIAA member companies to be whatever the fuck they want? Which is very likely set, in fact, not at the "all the traffic will bear" level, but at the "make sure there is no traffic at all" level? THAT is what you want to use as a basis for compensatory damages? That's beyond absurd. I'm not even going to bother with a car analogy. That's a ridiculous statement.
Not only is it ridiculous, it's a goddamn lie. The terms of Apple's deal with t
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Except that the statutory damages are compensatory in nature, not punitive. They're also reasonably related to the cost of a distribution license for a work.
The cost of a distribution license? Which is arbitrarily set by RIAA member companies to be whatever the fuck they want?
Nope, in this case, statutory damages are set by Congress. And they happen to be in line with what the RIAA member companies have set. Maybe there's a corruption issue there, but it's not a constitutional issue.
Not only is it ridiculous, it's a goddamn lie. The terms of Apple's deal with the record companies are public knowledge, after lawsuits revealed the details. For every $0.99 song, Apple gets $0.29. The remaining $0.70 goes to the record company. Of that $0.70, the record company pays 3% to the producer and 12% to the artist, so the record company keeps $0.595 cents per paid iTunes download. And THAT is the cost of the distribution license. That right there.
... if you're a reputable seller with an established track record. If you're not - if you're setting up your new online music store to compete with iTunes, then the record companies are going to have all sorts of mandatory minimums to avoid you giving away content for free and saying "your 59.5% roya
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Thomas has the ability to mitigate those damages by showing that she didn't actually distribute the song to many people. Statutory damage awards are rebuttable presumptions, where the burden falls upon the defense. She didn't show that, however - and in fact, she destroyed her hard drive and lied about it under oath.
According to NewYorkCountryLawyer, she didn't have to show she didn't distribute. The "making available argument" has been shot down as bunk by the judge, and no evidence of distribution was ever shown, so the damages they are trying to award have nothing to do with distribution.
I'm inclined to believe him over you.
And handwaving about mandatory minimums invented by a record company as if that has any bearing on reality is disingenuous at best. The reality is, a disreputable seller with NO track record wh
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Thomas has the ability to mitigate those damages by showing that she didn't actually distribute the song to many people. Statutory damage awards are rebuttable presumptions, where the burden falls upon the defense. She didn't show that, however - and in fact, she destroyed her hard drive and lied about it under oath.
According to NewYorkCountryLawyer, she didn't have to show she didn't distribute. The "making available argument" has been shot down as bunk by the judge, and no evidence of distribution was ever shown, so the damages they are trying to award have nothing to do with distribution.
I'm inclined to believe him over you.
Feel free. Mind you, you should be sure what you're arguing about. For example, I'm not making any arguments about "making available". Thomas distributed to at least one person - the MediaSentry investigator - and that instance of distribution was shown. In fact, it's what Thomas' liability for infringement is based on.
Here's a tip - rather than "believing NYCL" or even "believing me", go read the judgement for yourself. NYCL helpfully has them posted on his site.
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Hold the phone. Roll back and reset to zero. For two reasons. First, I figured the cost of a distribution license wrong. Apple is the distributor in this case, so it's THEIR cut that is the cost of distribution. So we see that, per song, the cost of a distribution license is -$0.29. I.e. you should get paid 29 cents for every song you distribute, 'cause that's what Apple gets.
But that doesn't even matter. See NewYorkCountryLawyer's post downthread. Jammie Thomas has not been found liable for infring
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I seem to remember something about the supreme court only hearing about 10% (??) of the cases brought to them. Is there anything about this case that makes it particularly (un)likely to be heard?
The Court picks which cases it will hear. This is like you choosing among things on the list your wife gives you to do. You are going to put off the hard ones and combine the similar ones. You will concentrate on the interesting ones or the ones you think might make you look like a hero if you do them.
As much as this topic excites us, the Court may have a larger boner over some obscure water rights lawsuit from Montana.
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I don't understand how people expect to get off so lightly for these wrongs. A billion dollars? Really? I think that it should at least be a multiple of the worldwide GDP. Consider the potential losses to the copyright holder: by illegally making available copyrighted material, everyone on earth could download it -- millions of times each!
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Why do we care that she's of tribal descent? Are we now saying tribal American's are exempt from copyright laws? I flatly refuse to redefine native they way the PC crowd does, if you were born in the US you are native. I happen to be of Cherokee linage as well, but that doesn't matter, I'm native because I was born here.
In this case, I personally believe that she was discriminated against by the jury, because she was a Native American. She was tried many many miles from where she lived and worked, and did not have a jury of her peers.
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