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Jammie Appeals, Citing "Excessive" Damages 403

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

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  • Sig digs (Score:4, Insightful)

    by UbuntuDupe (970646) * on Tuesday October 16, 2007 @02:28AM (#20992269) Journal
    151.20 actually has more significant digits than 222,000. (Perhaps "orders of magnitude" was the term peerless wanted?)

    But who cares, when you're coming up with a cutesy way of saying something, right? (Make sure to use the terms "north of" and "south of" when comparing numerical values.)
    • Re: (Score:2, Informative)

      by Woek (161635)
      Mod parent up! This is in the same league as the word 'virii', which is actually twice as irritating as the concept it wants to describe.
    • "222000." has six sig figs, whereas "151.20" only has five. "222000" has three. The period in the first number matters--and, in this case, putting that number at the end of your sentence actually changed the meaning of the number and, from there, your entire statement.
    • Re: (Score:2, Funny)

      by Anonymous Coward

      151.20 actually has more significant digits than 222,000. (Perhaps "orders of magnitude" was the term peerless wanted?)
      While you're technically correct... if you're facing a fine of either $220,000 or $151.20, I think you'll find the difference in the amount to be quite significant.

      (Posting anonymously because this joke doesn't quite have the snap I wanted. Hopefully someone else can fix it up... I'm too tired.)
       
  • by ravenspear (756059) on Tuesday October 16, 2007 @02:28AM (#20992273)
    This may be the first intelligent thing this women has done in this case. I mean she was obviously guilty, lied in an attempt to cover it up, and miserably failed to prove anything to the contrary at trial.

    This position on the other hand is very well reasoned. $200k+ is completely outrageous damages even assuming a large number of people downloaded the material she made available. Hopefully there will be a judgement against this damage award that will call attention to how excessively high the statutory damages are, and might even overturn that part of the law.
    • by rucs_hack (784150) on Tuesday October 16, 2007 @02:55AM (#20992391)
      her suit was almost frivolous, in that she was in no way innocent, she did what she was accused of, and she knew it. Had she got away with it, it would have been a bad thing for the courts.

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

      In a reasonable world, file sharing would attract a parking ticket type fine, and too many would mean your ISP would cut you off for a month or so, or for good if your stupid and don't pay your fines.
      • by arkhan_jg (618674) on Tuesday October 16, 2007 @03:06AM (#20992459)
        I don't agree that it wasn't a case worth fighting. They had no evidence that she committed any copyright infringement. Only that her computer, probably at her direction 'made files available' for copyright infringement. The judge changed his mind on the basis of an argument misrepresenting another court case, to allow making available to also be classified as copyright infringement in the jury instructions. Without that jury instruction, it's entirely possible she would have been found not liable, as the music company didn't even look for infringement, just for the possibility of it.

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

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

        To draw a a parallel with the drug laws in my country, small possession for personal use of illegal drugs is treated a lot less harshly than running a drug distribution business. A punishment, increasing for repeat offenders; but not a life-destroying punishment for a first, small personal offence.
        • Without that jury instruction, it's entirely possible she would have been found not liable, as the music company didn't even look for infringement, just for the possibility of it.

          Are you sure [slashdot.org] about that? I don't think it would have made any difference judging by what that juror said.
        • by Kjella (173770) on Tuesday October 16, 2007 @04:09AM (#20992737) Homepage

          Only that her computer, probably at her direction 'made files available' for copyright infringement.
          And if she 'made files available' implies that she authorized distribution, it's a copyright violation.

          106. Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
          Merely sharing something may not count as distribution. But unlike say a Windows share, the file was uploaded to an index specifically created for exchanging files. That may (ignorance defenses aside) be considered authorization.

          All I'm saying is, it's not entirely clear in US law that an actual copy must have been made (the "do" part), it may be enough it was put up for distribution (the "authorize" part). You certainly see arguments along those lines.
        • by ShieldW0lf (601553) on Tuesday October 16, 2007 @04:09AM (#20992741) Journal
          What needs to happen is for someone to stand up and say "Yes, this woman downloaded music. But it's your corrupt laws that are at fault, serving the interests of criminal racketeers and destroying lives, and we're going to put a stop to it."

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

          You don't negotiate with racketeers and terrorists.
        • Re: (Score:3, Insightful)

          by xenocide2 (231786)

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

          I'm not familiar with the specifics of the case in the article, but I'd like to propose a question about distribution: if you use bittorrent as intended, is this puff and pass, or selling drugs to minors? Which way does such an analogy fall? And if you inhibit the upload is that like smoking but not inhaling?

      • by westlake (615356) on Tuesday October 16, 2007 @08:10AM (#20994165)
        n a reasonable world, file sharing would attract a parking ticket type fine

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

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

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

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

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

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

    • by speaker of the truth (1112181) on Tuesday October 16, 2007 @02:56AM (#20992399)
      Agreed. At the absolute most the RIAA should have to prove how many people actually downloaded from her and then multiply that with the retail cost of the music. That's an absolute most (a better way would be to prove the people who downloaded from her would otherwise buy the actual song if they couldn't illegally download it. Given the amount of digital piracy that goes on its quite impossible for most to buy all of what they illegally pirate).
      • by Atario (673917) on Tuesday October 16, 2007 @03:03AM (#20992449) Homepage

        Agreed. At the absolute most the RIAA should have to prove how many people actually downloaded from her and then multiply that with the retail cost of the music. That's an absolute most (a better way would be to prove the people who downloaded from her would otherwise buy the actual song if they couldn't illegally download it. Given the amount of digital piracy that goes on its quite impossible for most to buy all of what they illegally pirate).
        You forgot to multiply by the fraction of each file each person got from her.
        • Re: (Score:3, Interesting)

          by tjjfv (994025)

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

          This raises an interesting question: Does a random block of an mp3 file of a copyrighted work contain enough information to be considered a significant portion of the work? If it does, does that mean by copyrighting a song, any transfer of any block of any encoding of my work (i.e. any string of data) is infringing? If it doesn't, there is another interesting question: How many random blocks of the mp3 file do not contain eno

          • Re: (Score:3, Insightful)

            by cpt kangarooski (3773)
            It doesn't work like that. A court would look at the big picture, rather than get stuck on any single fraction of it.

            Remember that this is a human law, applied to human behavior, with humans interpreting and applying it. The courts are not machines and are not vulnerable to the same sorts of attacks as a purely mechanical system; yet you're acting as if they are. You're also acting as if you're smarter then them, when in fact there are lots of very smart people working in all capacities in the system.

            A rule
          • Re: (Score:3, Insightful)

            by Eivind (15695)
            Luckily law doesn't work like that. It doesn't concern itself with irrelevant details.

            If the start-point is that you have a file. And the end-point is that you have the file AND I have the file, then a file was copied. The spesific technical and mathemathical details between don't make a lick of difference. Nor should they.
      • I'm curious if her computer still had the information on how much data was uploaded for those songs.

        I wonder about these figures for each song
        (Total upload of a song/song size)*$.70)
        Total number of uploads to unique individuals *$.70

        I think these could be very useful figures.
      • by earthforce_1 (454968) <earthforce_1 AT yahoo DOT com> on Tuesday October 16, 2007 @06:22AM (#20993295) Journal
        Even then, a lot of people download stuff they would never buy - Like a 15 year old who uses a cracked copy of MS-Office or Photoshop, instead of using Open Office or GIMP. People download stuff they would never actually go out and pay for.
        • by IndustrialComplex (975015) on Tuesday October 16, 2007 @07:43AM (#20993815)
          Photoshop is a good example.

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

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

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

          In cases like that, can they even argue that there is a monetary loss? I suppose that is why set penalties are in place.
    • by UbuntuDupe (970646) * on Tuesday October 16, 2007 @03:14AM (#20992499) Journal
      Well, given a few assumptions, I don't think it's unreasonable.

      1) Actual damages are ~$20.

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

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

      4) Copyright law should be enforced.

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

      (And yes, for most people here, 4 is questionable, but for most Americans, and for the jury in this case, it's not.)
      • Re: (Score:3, Insightful)

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

        I personally am not convinced about the staggering amount of damages here. However, I do wonder how many of the people who argue that she should only have to pay for actual damages based on demonstration by the RIAA of specific downloads are the same people who object to having the authorities tracing their Internet use, want to preserve on-line anonymity at all costs, etc. If you're going to argue for a system where it's almost impossible

        • yet where it's pretty obvious that a substantial amount of damage is being done
          But there is no evidence a substantial amount of damage is being done. No admissible or inadmissible evidence. In fact given how much some people infringe on the copyright of others, its impossible for all of it to be representative of how much damage that one person has done the copyright holders by infringing on their copyright.
          • But there is no evidence a substantial amount of damage is being done. No admissible or inadmissible evidence.

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

            Your legal weaselry is as offensive as theirs, and as far from an honest attempt to see justice done.

            • by Eivind Eklund (5161) on Tuesday October 16, 2007 @05:37AM (#20993075) Journal

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

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

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

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

              Eivind.

        • by richie2000 (159732) <rickard.olsson@gmail.com> on Tuesday October 16, 2007 @03:38AM (#20992601) Homepage Journal

          it's pretty obvious that a substantial amount of damage is being done
          This is not true. It may seem obvious, but then again, it may seem obvious that the earth is flat.

          What we have found, after analysing the course of events and interviewing the file sharers, is that downloading and file sharing of music more has a positive than a negative effect on music sales. The music interest is promoted. New music and new artists are discovered.
          http://xml.nada.kth.se/media/Research/MusicLessons/Reports/ [nada.kth.se]
          • Re: (Score:3, Interesting)

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

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

            I don't know about you, but that seems pretty consistent with my personal experience. Perhaps those 3% who buy much more really do buy more than 3x as much as each of the 10% who buy much less have stopped buying, and similarly for the "a little" categories, but I couldn't find anything i

            • by richie2000 (159732) <rickard.olsson@gmail.com> on Tuesday October 16, 2007 @04:59AM (#20992931) Homepage Journal

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

              But then again, if you just want to sit around and make-up stuff to believe instead of actually reading up on some of all the research that's being done, be my guest. Hey, why don't you start a church?
              • by Anonymous Brave Guy (457657) on Tuesday October 16, 2007 @05:34AM (#20993063)

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

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

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

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

      • by Eivind (15695) <eivindorama@gmail.com> on Tuesday October 16, 2007 @04:48AM (#20992881) Homepage
        Your step 2 is unreasonable. Causing a miniscule amount of harm is still a miniscule amount of harm, even if, say, the police choose seldom to investigate. (perhaps /BECAUSE/ the harm done is miniscule)

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

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

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

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

        This puts a -HUGE- amount of power in the hands of those private companies. I'd guess in a average group of college-students, that company is, currently, free to bankrupt for life anyone they chose to. Well, not -EVERYONE- but close enough. (certainly 90%)
    • Re: (Score:3, Insightful)

      by rtb61 (674572)
      So you are saying she failed to prove she was innocent, stop and think about that for a second. The fine should stand, what needs to be adjusted is the burden off proof required for that level of fine. Obviously an isp's record for a basic internet account, or a private for profit companies record of activity of that IP address, is wildly insufficient for that level of penalty.

      What real evidence, that would actually be accepted in a criminal court, was actually submitted, the reality none was. What little

  • big numbers (Score:4, Insightful)

    by mastershake_phd (1050150) on Tuesday October 16, 2007 @02:28AM (#20992279) Homepage
    Thomas would like to see the record companies forced to prove their actual damages due to downloading, a figure that Sony-BMG litigation head Jennifer Pariser testified that her company "had not stopped to calculate."

    If they include legal fees, and what they spend tracking down file sharers, it just might be more than she has to pay.
    • Re: (Score:2, Informative)

      by fractoid (1076465)
      You can't include legal fees as part of damages, can you? I thought they were always listed separately ("ordered to pay damages of $X, plus legal fees" is the way it's often put). It certainly doesn't seem reasonable for the plaintiffs to get punitive damages equal to the legal fees that they volunteered to pay.

      From the sounds of it, Sony-BMG have no idea how much actual monetary damage she did them, and pulled a ridiculously large figure out of their ass.
      • Correction (Score:3, Informative)

        by ravenspear (756059)

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

        The JURY pulled the figure out of their collective asses.

        The plaintiffs do not set the damages that are awarded to themselves. The judge/jury does that.
    • If they include legal fees, and what they spend tracking down file sharers, it just might be more than she has to pay.

      In other countries this is true, but not in America. In America you have to pay your own attorney's fees regardless of if you win or lose. This is good in some instances (and absolutely terrible in others) as it would stop people from suing someone for an infinitesimal amount, like the actual provable damages incurred by Thomas making the music illegally available.

      • by Sheetrock (152993)

        This is generally the case, but it is not an absolute rule. It's quite possible [copyright.gov] in a copyright infringement case for one side or the other to be required to pay the expenses for both sides.

    • by drawfour (791912)

      If they include legal fees, and what they spend tracking down file sharers, it just might be more than she has to pay.
      Even if somehow they're able to get back the expenses they spent tracking down the defendant, there is no way any judge will award them additional monies for tracking down OTHER people.
    • by leuk_he (194174)
      I am not sure what it is called, but spending several year salaries to track down someone who stole the worth of 2 CD's is not reasonable. If it is then security companies would be rich now.

      Just catch a thief and claim the salary of the guard, his boss, his legal counsil, and the food of his dog.
    • by sco08y (615665)
      If they include legal fees, and what they spend tracking down file sharers...

      None of which is considered damages.
    • by suv4x4 (956391)
      If they include legal fees, and what they spend tracking down file sharers, it just might be more than she has to pay.

      That's not a damage she did, it's a damage they did upon themselves.

      I've not heard before that a thief has to pay for the salaries of the cops that caught him, or the judge that convicted him, this being part of the implicit damage he did by stealing your truck (for example).

  • curious (Score:3, Funny)

    by User 956 (568564) on Tuesday October 16, 2007 @02:34AM (#20992309) Homepage
    She is seeking a retrial to determine the RIAA's actual damage

    Afterwards, they'll attempt an inquiry to determine the RIAA's major malfunction.
  • by Max Romantschuk (132276) <max@romantschuk.fi> on Tuesday October 16, 2007 @02:41AM (#20992335) Homepage
    Can someone please explain to a European, what this compulsive need to refer to the constitution in seemingly all matters relating to the law is all about?

    I'll be the first one to agree that these damages are "ridiculously excessive" or "fabricated", but what does this have to do with the constitution? Is it just a cultural thing?
    • by ahuard (992454) on Tuesday October 16, 2007 @02:49AM (#20992355)
      The US constitution grants the vast majority of American's rights and freedoms, so when these are attacked the constitution is always cited. There are sections in there that grant all rights not mentioned (or thought of at the time of writing) to the people and the states -- not the federal government. So even if a violation is not specifically mentioned in the constitution, the constitution can still be used as a defense (ambiguous to be sure, but it works as a potential argument when the government tries to assert an authority it shouldn't have).
      • by uhlume (597871) on Tuesday October 16, 2007 @03:23AM (#20992529) Homepage
        The Constitution doesn't "grant" us our rights and freedoms, it legally protects them. This is not a minor philosophical point.
      • Not Quite (Score:3, Informative)

        by Spasmodeus (940657)
        The U.S. Constitution doesn't grant rights, the rights are "unalienable". The "Bill of Rights" portion of the Constitution prohibits the government from violating those rights.

        Note how everything is expressed in negatives, i.e. "shall not be infringed".
      • The US constitution grants the vast majority of American's rights and freedoms, so when these are attacked the constitution is always cited.
        I understand why you said this, but it is completely inaccurate. The Constitution grants certain powers to the Federal government, and specifically outlines some things which is it not allowed to do. The rights of the people are, in the minds of the people who founded the American nation, an inherent part of being human. That cannot be given by some document or some government, they simply are. Freedom of speech is a human right, and that right cannot be taken away. The ability to speak can be removed, but not the right.

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

        This is the very reason some of the founders resisted adding the Bill of Rights to the constitution; they feared that it would become an enumerated list of all of our rights. Indeed, it has; as far as I know, not a single case in all of American legal history has turned on the 9th amendment.
      • by poot_rootbeer (188613) on Tuesday October 16, 2007 @10:43AM (#20996589)
        The US constitution grants the vast majority of American's rights and freedoms

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

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

        The law, as written, allows copyright holders to collect statutory fines from infringers far greater than actual damages. But if the appeals court finds that such statutory fines can meet the Constitutional standard of "excessive", then the law providing for such fines will be found in violation of the Constitution, and overturned.
    • Re: (Score:3, Interesting)

      by sonamchauhan (587356)
      they have something in their constitution against "cruel and excessive punishment"
    • Nothing really, AFAIK. IANAL of course. The American constitution says little to nothing about civil law as it is now practiced. We copied the British system, but we have gone in our own direction, of course, for two hundred and something years. Still, I've read the whole constitution and all the amendments, and I don't recall anything restricting the responsibility of individuals to repay damages determined in court.
    • 8th Amendment (Score:5, Insightful)

      by ravenspear (756059) on Tuesday October 16, 2007 @03:03AM (#20992447)
      She could be referring to the 8th Amendment, which states:

      Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
      • Re:8th Amendment (Score:4, Insightful)

        by speaker of the truth (1112181) on Tuesday October 16, 2007 @03:08AM (#20992469)
        This isn't a fine. This is an award for her infringing on somebody's copyright. Unfortunately that part of the constitution wouldn't apply (IANAL).
        • Re:8th Amendment (Score:4, Insightful)

          by ravenspear (756059) on Tuesday October 16, 2007 @03:13AM (#20992493)
          Well it still could be a cruel and unusual punishment, cruel because it could bankrupt her and/or ruin her life, and unusual because it is rather large for the crime that was committed, especially considering that we don't know whether any infringement actually took place, she was convicted just on the "making available" part.
          • That part yes. Sorry I was only responding to the bolded bit. Although again she wasn't convicted. She was found to have made available someone's copyright without permission from the copyright holder. The difference is if she were convicted the RIAA wouldn't be making a dime (unless they sued separately) and she would be facing a fine and/or jail time. Which is simply ridiculous, but a separate issue.
            • Yes, I realize the difference between criminal and civil. Sometimes convicted/found guilty/found liable et al just run together. At the rate the current media lobby is progressing though, I suspect it might not be long before we will start seeing laws providing jail time for filesharing. Like I said in my comment above though, maybe this case will provide a court test of the current statutory damages which also absurd and get those thrown out. That would be a step in the right direction.
      • Re:8th Amendment (Score:5, Informative)

        by stinerman (812158) <nathan DOT stine AT gmail DOT com> on Tuesday October 16, 2007 @03:29AM (#20992557) Homepage
        Nope.

        She's citing the 14th. The penalty runs afoul of due process. See BMW v. Gore [wikipedia.org].
        • That is a good link. It certainly seems that these damages are indeed "grossly excessive" as defined in that decision.
      • She could be referring to the 8th Amendment, which states:

        Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
        Thanks, answered my question! :)
    • I don't get it either. Last time I asked this question I got marked as flamebait. People say "constitutional right" like that's it. Nothing more needs to be said. It's impossible to have a debate with these people, heh...
    • by rm999 (775449) on Tuesday October 16, 2007 @03:15AM (#20992501)
      America takes a lot of pride in its constitution and the attached bill of rights (the first ten amendments), including the 8th amendment which forbids "excessive fines." The US constitution is truly a revolutionary document (something that is easy to forget 230 years later), and I honestly think it has directly led to the stability of the nation. Although there are periodic periods of abuse of the constitution (like the last seven years), the nation has consistently prevailed and proven itself to be relatively stable. The USA was founded on protecting its citizens from the government, something Americans should rightfully never forget, especially in cases like this.

      In parts of Europe, Wolfenstein 3D was banned because, even though it was critical of Nazis, it dared to portray them at all. In the USA, we take pride that this sort of censorship was explicitly forbidden when our nation was founded. I'm not trying to troll, but Europe chose not to do this.
    • It is just the basic set of laws that stand at the top of the law pyramid, these laws are what must be obeyed and nobody can infringe upon them, not by making new laws, not by new policy. Typically these foundation laws are far harder to change then regular law.

      And if in holland a new policy or law goes against the "grondwet" (groundlaw) we refer to it exactly like an american refers to the constitution. For instance discriminatin, Artikel 1, "Allen die zich in Nederland bevinden, worden in gelijke gevalle

  • by Anonymous Coward
    IANAL but I don't think the motion for retrial is not the same as an appeal with the appeals courts. This is a motion with the presiding judge of the trial for him to set aside the results of the trial and order a retrial based on the jury award being more then ten times the actual losses to the RIAA. The RIAA of course will file a counter motion and the judge will decide, possibly after hearing arguements again from both sides. If the motion fails then her lawyer will appeal the case. If the motion succeed
  • by freshmayka (1043432) on Tuesday October 16, 2007 @03:01AM (#20992437)
    1. Fight the RIAA, go for the jury trial
    2. Hold your ace close and play the first round to lose
    3. ???
    4. Less PROFIT for the RIAA!



    And now we know that #3 is:

    Appeal $220k reward on Constitutional grounds! BRILLIANT!

    Seriously! There is at least one juror who has already opened his mouth to the press and said something to the effect of "the punishment is so high because we want to send a message that this is a bad thing to do... mmmmKay..." Which... ::cough cough:: is against our Constitution in America.
  • by speaker of the truth (1112181) on Tuesday October 16, 2007 @03:01AM (#20992439)

    The [RIAA] spokesman told Ars., "We will continue to defend our rights."
    Copyright is not a right (despite its name). It is a legal privilege given to certain people for a finite amount of time. Unfortunately big business and Congress have forgotten this.
    • by dabadab (126782)
      "[i]Copyright is not a right (despite its name). It is a legal privilege[/i]"

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

      What was the point of your post, again?
      • Re: (Score:3, Informative)

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

        What was the point of your post, again?
        To point out that Capitol is not defending its rights here.
        • by Tim C (15259)
          You could argue that my right to life ends the moment I am convicted of a crime that carries the death penalty. You could argue that my rights to freedom, to freedom of association, to freedom of speech, etc end the moment I'm convicted of a crime that warrants imprisonment (and start again when I'm released).

          Even inalienable rights are not irrevocable, and can indeed be revoked and suspended as the law sees fit.

          The law confers certain rights to copyright holders, limited in time and in scope but rights nev
        • by dabadab (126782)

          No, rights are irrevocable.

          Where does that definition come from? And anyway, history gives us ample proof that no right is irrevocable. None.

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

          But, they do. You might disagree with how they defend them or with the implementation of these rights (or even with the concept of copyright itself) but there's no denying that in the current legal framework they do have a right that they are defending.

        • by julesh (229690)
          No, rights are irrevocable.

          That's a very strange definition of "right".

          Here are some dictionary definitions:

          "a power, privilege, immunity, or capacity the enjoyment of which is secured to a person by law", or "a legally enforceable claim against another that the other will do or will not do a given act", or "the interest that one has in property : a claim or title to property", or "the interest in property possessed (as under copyright law) in an intangible thing and esp. an item of intellectual property"
    • Copyright is not a right (despite its name). It is a legal privilege given to certain people for a finite amount of time.

      There are different kinds of "right". There are legal rights: those things you may do, with the law protecting your freedom to do so. Copyright clearly is such a right. Then there are moral rights (sometimes called human rights, though this clouds the issue): those things that are widely recognised as being important freedoms that should be protected. Hopefully your legal rights include all of your moral rights, though of course this doesn't always work in practice and more than the occasional revolution

  • by Zaatxe (939368) on Tuesday October 16, 2007 @05:37AM (#20993073)
    Let's see... 24 songs with an average of 5 megabytes each song...
    That's 24*5*1024*0.002 cents, which is 245.76 cents or US$2.46. What about that?
    • Re: (Score:3, Funny)

      by Chapter80 (926879)
      Yes $2.46 per bit, but given that roughly half the bits were zero, and half were ones, she was charged $111K per digit.
  • by NewYorkCountryLawyer (912032) * <ray.beckermanlegal@com> on Tuesday October 16, 2007 @05:38AM (#20993081) Homepage Journal
    it's a motion to set aside the verdict, which is quite different than an appeal.

    An appeal is to a higher court.

    This is a motion directed toward the trial court.
  • by Jason Levine (196982) on Tuesday October 16, 2007 @07:34AM (#20993751)
    For the longest time, I've thought that there should be two punishment scales for copyright infringement. Let's call the first "professional infringement." This would involve infringement with a profit motive. An example of this would be the people who sell copies of DVDs on street corners. These people would face the fines currently imposed for copyright infringement.

    The second type would be "household infringement." This would involve infringement via a P2P network or other type that didn't involve attempts to make a profit. This type of infringement would take the number of files infringed, multiply them by the market cost per file, and then multiply that number by 100 (to get a "punishment" number that is worse than simply buying the songs outright).

    In the case of Jammie Thomas, she was found guilty of infringing 24 songs. Since she wasn't attempting to make a profit, she would fall under household infringement and would be charged 24 * 0.99 (the cost of the songs on iTunes) * 100, or $2,376. This is more than the $150+ that she's looking for, yet a lot less than the $222,000 that she was originally fined for. A $2,000+ verdict isn't going to financially ruin most people, but it will also be enough of a significant amount for most people that it would serve as a deterrent against future incidents.

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