In Round 2, Jammie Thomas Jury Awards RIAA $1,920,000 793
NewYorkCountryLawyer writes "Well the price went up from $9250 per song file to $80,000 per song file, as the jury awarded the RIAA statutory damages of $1,920,000.00 for infringement of 24 MP3s, in Capitol Records v. Thomas-Rasset. In this trial, although the defendant had an expert witness of her own, she never called him to testify, and her attorneys never challenged the technical evidence offered by the RIAA's MediaSentry and Doug Jacobson. Also, neither the special verdict form nor the jury instructions spelled out what the elements of a 'distribution' are, or what needed to be established by the plaintiffs in order to recover statutory — as opposed to actual — damages. No doubt there will now have to be a third trial, and no doubt the unreasonableness of the verdict will lend support to those arguing that the RIAA's statutory damages theory is unconstitutional." Update: 06/19 01:39 GMT by T : Lots more detail at Ars Technica, too.
What are the lawyers thinking? (Score:4, Interesting)
I'm starting to believe this lady was paid off by the RIAA to set an example by letting it go through the justice system with a bad defense and keep pushing their luck for the amounts awarded and setting precedents. In the back room she just gets paid everything back in double.
Really, how difficult is it to punch through the RIAA's statements? The average helpdesk technician would punch holes in their statements if called as an 'expert witness'. I'm really starting to doubt the value of lawyers in these type of cases. The Chewbacca defense might even stand.
Throwing on purpose (Score:5, Interesting)
That, or massive incompetence of her defense.
Re:What are the lawyers thinking? (Score:5, Interesting)
I'm starting to believe this lady was paid off by the RIAA to set an example by letting it go through the justice system with a bad defense and keep pushing their luck for the amounts awarded and setting precedents. In the back room she just gets paid everything back in double. Really, how difficult is it to punch through the RIAA's statements? The average helpdesk technician would punch holes in their statements if called as an 'expert witness'. I'm really starting to doubt the value of lawyers in these type of cases. The Chewbacca defense might even stand.
While it's difficult to second guess the decisions a trial lawyer makes, it is hard for me to understand why defendant's lawyers gave the plaintiffs a free pass on the MediaSentry/Jacobson nonsense, and didn't even call their own expert. It is likewise difficult to understand why the jurors weren't instructed as to what the plaintiffs had to prove in order to establish a "distribution", or why it was assumed that they were entitled to recover statutory damages (as opposed to actual damages) at all, there having been no questions or instructions relating to the essential elements of that.
But I should point out that this outsized verdict (a) makes it inevitable that the verdict will be set aside, and (b) cripples the RIAA's attempts to justify their statutory damages theory as against constitutional attack. Had the jury awarded $50,000 or $60,000 the RIAA would have more of a chance to hold on to the verdict, and would have had a less embarrassing precedent to try to defend in other cases.
Can they do anything else (Score:2, Interesting)
Something has gone seriously wrong when... (Score:5, Interesting)
She made it easy for them (Score:5, Interesting)
While it seems absolutely insane that an individual can be sued for so much for something so inconsequential, I have to say that she really made it easy to side with the RIAA.
If it weren't for her destruction of evidence and blatant perjury, the courts might be likely to have some sympathy for her. Instead, she insulted the courts in a way that made Hans Reiser look well grounded. It was obvious to anyone following the trial that she was the one sharing the files, and while she didn't need to volunteer that information necessarily, the deliberate obfuscation (returned hard drives, etc.) put her on the wrong side of the line.
I think this is a terrible precedent that was set, but really, I'm not surprised. The RIAA, of course, will never see their money, but then Jammie Thomas will never own a material possession again, either, so I guess it's even.
Re:unreasonableness? (Score:1, Interesting)
Re:Let's think about this (Score:1, Interesting)
Re:Throwing on purpose (Score:4, Interesting)
Re:What are the lawyers thinking? (Score:5, Interesting)
The lawyers, no matter how good, were up against one major obstacle during both trials. And that obstacle is that the evidence overwhelmingly said she was guilty of what they were accusing her of.
I don't like the RIAA either. And I also think this award is even more silly than the last one. But that makes two juries now that have found this twit guilty. Its time for her to fess up, quit trying to play the victim, and settle for a few thousand dollars.
And if the intarwebs community wants to be taken seriously in their fight for reasonable copyright laws, they need to find a better case to rally around. One where the accused person really is innocent. Continuing to support Jammie Thomas-Whateveritis only makes us look like stupid pirates.
$2M? (Score:5, Interesting)
$2M for 24 songs? Sounds like jury tampering.
Thank God she didn't (Score:1, Interesting)
> Any lawyer could have looked at the facts of the case and come to the
> conclusion that she didn't have sufficient evidence to prove her innocence
Ah, so in other words, society should let large corporations extort money from the public because, actually, it is hard for an average citizen to prove his innocence given any kind of evidence of wrongdoing. This is why, in my opinion, in criminal cases the trial is supposed to start out biased in the defendant's favor ("innocent until proven guilty", "beyond a reasonable doubt").
I prefer that our justice system actually serve, well, justice!
I hope that the third time around, either she gets off with a really small penalty, or that the absolute maximum penalty is awarded against her. In the second case, for all practical purposes, the exact sum won't greatly matter in how this affair affects her life, and the staggering amount should either start a media blitz over how ridiculous the state of copyright law has become, or at least some kind of reaction in the legal system. Or perhaps people will stop being interested in RIAA's clients product, since having it on your computer could end up becoming evidence of wrongdoing, even if it's just being shared out by your friendly bot-net controller rather than you (or your neighbor via your wireless router, or whatever)....
24 songs is about 2 CDs? (Score:2, Interesting)
How is stealing that same content digitally somehow worse? If anything I can think of a few ways it's less harmful than shoplifting...
Pirates (Score:3, Interesting)
Re:Justifying piracy (Score:5, Interesting)
As a recording and performing musician who is both excited by the limitless distribution and disgusted with their treatment of artists I find you personally offensive. Furthermore I also find you to be nothing more than a rhetoric spewing fool of the lowest order. I hope you choke on those party lines you parrot off mindlessly.
GTFO, troll.
Wrong-o (Score:2, Interesting)
Actually you can notice that the actual lawyers here like NYCL never, ever say things like "... couldn't possibly win". That's probably because they're quite familiar with the fact that the legal system often coughs up ridiculous outcomes (in their eyes).
In my eyes, these outcomes just show that even judges often don't actually understand what the law says. And juries for sure don't. It will be interesting to see if this decision will be thrown out again.
Re:Justifying piracy (Score:5, Interesting)
This is the first troll post that I can sympathize with. We all know it; we are breaking the law when we download music/videos. It's just that, unlike mugging someone in the street, no one really loses out. Maybe the music execs will have to buy fewer wraps of coke. Is that such a bad thing? I don't think so.
In the end, the only winners are lawyers.
Re:24 songs is about 2 CDs? (Score:2, Interesting)
This is just a bit much considering that the music industry make about 50 cents per song (from iTunes), which would mean that they lost 80000/0.5 = 160 000 customers. Seeding a song of 3 mb to 160 000 people would take 185 days per song, or 12 years for the entire collection if she seeded at the usual rate of 30 KB/s.
Re:right verdict, wrong result (Score:3, Interesting)
http://slashdot.org/comments.pl?sid=1272143&cid=28363955 [slashdot.org]
Except that millions of people did not download from her. Most likely, two people downloaded off her and uploaded it themselves (she should not be responsible for these acts, which those people themselves are responsible for)
Now, let's do the math.
Assumptions:
- 1 download = 1 lost sale
- she uploaded 24 songs, each one worth 99 cents
- 2 people downloaded each song off her, and both uploaded it (as opposed to downloading copyrighted material and sharing open source stuff to avoid anti-leeching mechanisms)
- 10x damage multiplier, constitutional maximum
0.99*24*2*10 = $475.20
That's the cap.
Re:Well . . . (Score:3, Interesting)
This isn't a matter of law so much as it is a matter of jury behavior.
I wonder if Jamie had run over the plaintiffs with her car if that jury would be so generous.
Re:Well . . . (Score:5, Interesting)
Sorry if I phrased the question trollishly. I think a better way of putting it is this: If I were accused by the RIAA, do you think you'd be a good lawyer to represent me at trial. If so, what are your qualifications? I don't do much infringing anymore, so I'm unlikely to need your services, but I'd be interested in knowing.
Its my impression that you're very knowledgeable, but since I'm not a legal expert, my impressions mean nothing. Sorry if you've already gone over this.
Re:She made it easy for them (Score:5, Interesting)
No, she can't. As I understand it, the amount is too large for her to be eligible for Chapter 13 bankruptcy. Further, this type of civil damages generally cannot be waived through Chapter 7, but even if it could be, a Chapter 7 would mean liquidating her assets. She would literally walk away with nothing but the clothes on her back.
Short of somehow convincing a judge to allow her to dismiss this debt by filing Chapter 7, her only option, AFAIK, is to let the RIAA garnish her wages to the maximum extent allowable by law (25% of her income) for the rest of her life, then take all of her assets upon her death. In effect, she would be reduced to near indentured servitude by this verdict. We might as well have debtors' prisons. There's really little difference when faced with a civil judgment of this magnitude.
Re:What are the lawyers thinking? (Score:3, Interesting)
Considering their legal performance so far, I'm far from convinced they won't fumble in the supreme court too.
I'm not entirely convinced it was a fumble. Why would defense make such a point of asking whether the statutory maximum of $15,000 (I think it was) per song? It's as if he wanted the completely egregious award so he could push for an appeal.
Re:Can they do anything else (Score:2, Interesting)
Re:Thank God she didn't (Score:2, Interesting)
Re:Can they do anything else (Score:5, Interesting)
Oh trust me, I have the highest contempt for the courts right now.
This verdict will be the cause of derision internationally, and will provide endless fodder for those who are fond of laughing in their beer at the USA. Unfortunately, they will have a pretty irrefutable point.
Re:What are the lawyers thinking? (Score:5, Interesting)
Chapter 13 will likely take care of that, if she's eligible.
What those who thought the outcome would be different miss is the authority bias of juries and judges. Most people, and particularly most people who end up on juries, have a bias towards believing and favoring whoever appears to be an authority over an individual who appears to be opposing them. The RIAA looks like authority; thus, they are favored.
Re:Well . . . (Score:3, Interesting)
Judging by the summary (No, of course I didn't RTFA.) the only real incompetent in this case was the defense attorney. What is the point of getting an expert witness if you're not going to use their testimony? Why wasn't the technical evidence challenged? When does the legal malpractice suit get filed?
Re:unreasonableness? (Score:5, Interesting)
According to this article [wikipedia.org], 5 billion songs were shared in 2006. That means that the music industry, if it weren't for those pesky pirates, would be raking in $400 trillion dollars more than they are right now.
I find that unlikely.
Re:Well . . . (Score:4, Interesting)
I think it's fairly clear she was guilty.
But is the law under which she is considered guilty reasonable? That's really the question at the heart of RIAA vs The Consumer. Sometimes I look at all the hard work and money that goes into making and marketing a recording artist, and think it IS wrong to acquire songs without payment. The music has value, otherwise we wouldn't buy it.
But then the Internet has drastically changed how fast music can be sent around the world -- I envision in the not too distant future wireless connectivity everywhere and you just have a music subscription to everything (or maybe, like TV, certain channels, etc). Wherever you are, you can turn on your car, your iPod, your stereo, and select any of numerous playlists you've saved in your online profile, and just listen. Nothing is stored locally -- it doesn't have to be. But you pay for access.
Re:Eighth Amendment - One Line (Score:5, Interesting)
If what you said was true, then Ray would have been crowing about it, but he isn't.
Actually, if you look at the amicus briefs I filed in SONY v. Cloud and SONY v. Tenenbaum, you will see that the only argument I made was the 5th amendment argument, leaving the 8th amendment argument to others to make.
But one of the first reactions I had when I realized that $1.92 million wasn't a typo, was that perhaps I had made a mistake, and should have made the 8th amendment argument after all.
Re:Justifying piracy (Score:3, Interesting)
....this woman's now on the hook for enough money...
What happens to this woman or someone like her who doesn't have a penny to her name and she simply doesn't pay? How can you squeeze blood out of a turnip? If the award had been 10 times or 100 times or 1000 times as much, what difference would it make? They might as well tell her that she must pay off the national debt. It will never get paid off either.
Re:Well . . . (Score:3, Interesting)
so they delivered injustice, not as a result of ignorance (as is usually the case), but as some sort of personal vendetta?
Re:Justifying piracy (Score:5, Interesting)
If you feel that you have no voice in the government, the way to change the government is not through anonymous piracy. Engage in civil protest or violent revolution -- whatever works for you. But anonymous leaching, and I mean that not only in the p2p sense, but also in the "how is an artist supposed to make a living if everything can be had free" sense, isn't going to accomplish anything. Rather, it shows "file sharers" to be "what can I get for nothing" freeloaders rather than people interested in changing our corrupt government.
As for the issues in this case, the damages are clearly excessive. Although I do believe that Jamie did the deed so to speak, and that the regular retail cost of the songs is not enough (*), $2m is more than she'll make in a lifetime. Damages should be something like 20-30% of her income for a year. That would be substantial without being ridiculously high.
(*) If maximum damages = price of song, there is no incentive, aside from one's own moral compass, to pay for content.
Re:$80.000? (Score:3, Interesting)
I can almost guarantee that $80,000 is less than they've actually spent on those songs. So when does the 'right to sue for damages' turn into the 'right to sue for profit'?
Re:Justifying piracy (Score:3, Interesting)
The law exists to protect the distributors' monopolistic business practices, not the creators. And all work can be done as "work for hire". I can produce a little teaser, hook, whatever you want to call it, and if you want more, you can cough up the scratch. You can hire managers to do the leg work when the money starts coming in. But exclusivity is out the window. Don't like it? Go out and dig ditches. People who produce for the love of it will do just fine. Those who want to make that one big hit, and live off that for 100 years can take a hike. It can only lead to a better quality product. Copyright is responsible for most of today's crap. And it makes it difficult for real talent to reach a wide audience. Well, it did before the net.
What if the RIAA tried a different approach? (Score:3, Interesting)
Just a thought.
According to the CONTU report ... (Score:5, Interesting)
I always though that statutory damages are not meant as a punishment, but as a means to give the copyright holder fair compensation in situations where the actual damage is impossible to establish.
According to the CONTU report ("Committee On New Technological Uses", back when congress was working on extending copyright to software), and if I recall it correctly, the statutory damages are apparently intended to be both punitive and to allow the copyright holder to recover enough from the few moles he manages to whack to make up for the many he missed.
The precedent is a church choir director who purchased sheet music for a song that was scored out of the range of his choir (and most singers), did a transposition that made it singable, ran off a few copies for his choir, and offered the transposition back to the original author and publisher, gratis, for their next edition. Instead of "incorporating the patch", they sued for some large number of thousands of dollars (real money in those days, too) for the infringing copies of this derived work. And won.
Re:Justifying piracy (Score:4, Interesting)
What are the laws for this situation? If I had a diamond/gold bars potentially worth 2 million dollar, and I just gave it away to an employee for just a few dollars, will the USA govt. excuse the employee from paying income/gift tax for the full potential value of the item? Because this seems to be exactly the case with RIAA now. Each of their files are now potentially worth $80000, correct? And just because RIAA's founding companies gift it away to the public at a much lesser price, should be of no concern to the USA government in terms of tax.
If the IRS and government officials ignore this tax fraud, are they not guilty of cheating and defrauding the american public, since they are letting RIAA get away with billions of dollars in tax fraud, while expecting only the poorer american public to pay their taxes?
Why is RIAA being allowed to get away with two different evaluations of its income/wealth in terms of tax? Shouldn't this unpaid tax money be collected from them and used to create new jobs for American people? They are cheating the american public of valuable tax money, especially in this time of global recession. It is the duty of the government to ensure that corporations are taxed *at least* as much as a common man is.
Re:Justifying piracy (Score:3, Interesting)
One sentence- Steamboat Willie is STILL under copyright!
Steamboat Willie is eight minutes of silent era sight gags linked by a thin narrative thread. Filmed on nitrate stock, it was projected with synchronized sound on a phonographic disk.
The copyright on Steamboat Willie protects that single incarnation of the Mouse. When it expires you get the right to distribute the short - if you can find unprotected primary sources. Try MoMA or The Library of Congress.
You get the right to produce derivatives based on Steamboat Willie - and only Steamboat Willie.
You do not get to use the trademarked character designs. You do not get the Phantom Blot - and the "steel-belted" Mouse of the comic pages.
MGM did rather well with Tom and Jerry. Paul Terry with Mighty Mouse. To be successful in this business, you had to find your own way.
Re:Wrong-o (Score:3, Interesting)
Re: Shift in Counsel (Score:5, Interesting)
Yes I was "hoping for the best". And for all I know defendant's counsel did a great job. They certainly worked hard, and demonstrated intelligence and enthusiasm, at least in the earlier stages.
I'm not in a position to criticize her counsel because I don't know what went on, and I don't know what pressures they were under.
All I know is that, as an outside observer, I was disappointed at the absence of a number of things I would have expected to see. Whose fault that is, I don't know.
What's next is:
1.Defendant moves to set aside verdict and for new trial.
2.Motion granted, new trial scheduled.
3.New trial: defendant wins, plaintiffs appeal.
I would also not be surprised to see the RIAA aggressively seek to enter into a confidential settlement with her, even to the point of paying her attorneys fees, to avoid this getting set aside.
Those of us making the constitutional argument on excessiveness of the RIAA's statutory damages theory will be helped by this verdict.
Re:For once I am simply (Score:3, Interesting)
Then let me help: Jammie, if you go nuts and commit an act of retribution against the RIAA and/or their lawyers, and I can scam my way onto the jury, I personally guarantee you a hung jury at worst. Seriously, I figure for $2 million you've pretty much bought the right to any form of revenge you can come up with.
Re:What are the lawyers thinking? (Score:3, Interesting)
It is possible to commit a crime and tort at the same time, yes. But one does not imply the other. That's why we have different names for them.. and completely different legal systems.
Re:Justifying piracy (Score:1, Interesting)
Chances are, if you worked last year, you got paid for it last year. Copyrighted businesses don't work like that....
Right. What CorporateSuit is arguing is that "copyrighted businesses" should work like that--that artists should have to live by the same rules as the rest of us. That includes being paid for a month's work for doing a month's work (instead of being paid in perpetuity for it), having to keep working to keep getting paid (instead of resting on laurels), and, yes, having to do work that is "soul-sucking and demeaning."
That "copyrighted businesses" are based on the lottery model--many play but few win--is no defense. To the contrary, it's further evidence that "copyrighted businesses" are broken, and that copyright isn't doing what it's supposed to be doing. Put it this way, how many wage workers would keep working if, rather randomly, 99.9% of them did not even make subsistence pay, yet 0.1% of them essentially made enough in one year to comfortably retire? Hardly anyone would bother working, then, right? So why is it that people think "copyrighted businesses," which set up exactly that system (i.e., with the overwhelming majority not making subsistence pay for their work), are encouraging more works to be made than a system more similar to wage work?
(As an aside, ever wonder why so many popular musicians are involved with drugs? Could it be because the lottery-style business model of "copyrighted businesses" tends to attract people highly susceptible to addiction? The pop music biz is basically gambling, after all.)
Re:What are the lawyers thinking? (Score:2, Interesting)
The difference between a necessary and a sufficient condition and all that jazz
Re:Justifying piracy (Score:2, Interesting)
You have no idea what you are talking about, so listen, because I'll only explain once:
Ok. I'm interested.
You've made the statistical mistake of comparing one artist in a generation to every artist of our day. How many composers do you know from the classical period? Have you ever heard of Andrea Luchesi? Probably not. For every Mozart, there are hundreds of Andrea Luchesis. Just as now there are hundreds of artists like Brittany Spears.
Sure, misrepresenting a situation with an improper sample set is a common mistake, and there were lots of unknown composers for every couple famous composers, just as today.
Patronage was horrible. You had to compose, perform, or do nothing, all based on what your royal sponsor demanded of the evening. You art would be filled with things only to please your king. See the music of Haydn for an example of this. In some cases, a patron would even modify the work of art however he desired. It sucks.
Woah, wait a second. How is this any different than today? Now bands have to compose, perform, or do nothing, all based on what their corporate (who thinks of themselves as royal) sponsor demands of them for the album, who demands that their art be filled with things that makes them lots of money. At least in the old days the music was designed to be aesthetically pleasing to the person commissioning it rather than being this carefully measured, mathematically balanced formula geared toward the broadest demographic. Regarding the Royals changing songs around, I remember there was this XTC album that they remade to CD where they just dropped a bunch of shitty filler right in the middle of all the good songs. That's not a case of corporate drones changing individual songs, but it disrupts the overall flow of the music. (I'm sure that the band's members got nothing from that cd also...) For other instances of music designed to sell, see also: Anything done by Nickelback and Green Day's American Idiot. Indeed, it is even funnier to grab the copy that someone made where they take four or five modern songs and transpose them over one another. A good one was Wonderwall and Boulevard of Broken Dreams. I lost all respect for Oasis AND Green Day at that moment.
Besides, there was no one like Brittany: no one had her mix of innocence and sexual confidence. She was popular for a reason. If you don't understand why, it just shows that you are also out of touch with the tastes of modern culture.
At the risk of me being snarky, I'll say that you say all that as if its a bad thing. Furthermore, I contend that she had nothing except the ability to sing. The corporate marketing department gave her that finely honed, well measured, bland, "just provocative enough to be alluring, but not so much to alienate parents" touch.
Re:Justifying piracy (Score:3, Interesting)