How RIAA Case Should Have Played Out 296
NewYorkCountryLawyer writes "If a regular 'country lawyer' like myself had taken a case like the RIAA's in Capitol Records v. Thomas-Rasset to court, he or she would have been laughed out of the courthouse. But when it's the RIAA suing, the plaintiffs are awarded a $1.92 million verdict for the infringement of $23.76 worth of song files. That's because RIAA litigation proceeds in a parallel universe, which on its face looks like litigation, but isn't. On my blog I fantasize as to how the trial would have ended had it taken place not in the 'parallel universe,' but in the real world of litigation. In that world, the case would have been dismissed. And if the Judge had submitted it to the jury instead of dismissing, and the jury had ruled in favor of the RIAA, the 'statutory damages' awarded would have been less than $18,000."
Re:NYCL (Score:1, Insightful)
Disclaimer: I don't like or agree with the RIAA, but believe the problem is with the broken judicial system. The RIAA is just doing anything they can to stay in business, like any good capitalist business should.
RIAA (Score:5, Insightful)
Re:Makes sense (Score:5, Insightful)
Now if only I could use the imaginary money from my monopoly set to pay them off too, all would be well...
Re:NYCL (Score:5, Insightful)
The RIAA is just doing anything they can to stay in business, like any good capitalist business should.
Now that's funny. A "good" capitalist business should roll with the changes, should cater to their customer, should work with their customer, should take advantage of technology, etc. The RIAA is not a business. It is a lobbying group. It is comprised of businesses. A good business would sue someone who stole their property for the amount of losses they experienced. We do not have that going on here. We have a hilarious trial that stinks to high hell where you are fined $80,000 per song you downloaded in copyright violations.
The businesses that support the RIAA are past due on realizing that the RIAA has outlived itself. Now it's just a monster run amok and the consumers are the victims.
You are without help if you believe the RIAA is just another capitalist business trying to get by in tough times.
"Work" is an Album (Score:2, Insightful)
At least from a damages perspective though, we should treat all of those infringements as having a net total worth of that song's fraction of the album's value. Everyone might not be particularly happy with their fraction of a sale but in theory everyone agreed to the contracts that setup the whole divvying scheme (bargaining power is a discussion for another day).
Re:I think you have it backwards (Score:5, Insightful)
You're not doing a very convincing job of constructing an argument. So far you have
- ad hominem: You only think Ray's good cause he's popular on Slashdot
- argument from authority: lawyers, judges, and juries must be right
- another ad hominem: for Ray to claim those guys are wrong, wow, what arrogance!
Ray's blog, on the other hand, contains actual substantive arguments pertaining to proper procedures (who should be allowed to testify and with what caveats or warnings) and prior case history (what is the relationship between award of damages and monetary harm). He might be wrong, but then so might be the jury.
In fact, if the jury thinks the way you've presented your arguments, they'll just think, "Wow, all these really masterful lawyers on one side, they can't be wrong--I'll just trust whatever they say and not think about it!" The judge, if he or she shares the approach you took in this post, is liable to be similarly swayed.
I guess we've all learned a lesson... (Score:3, Insightful)
I mean seriously don't do that, but if you go into Wal-Mart and steal a CD most likely nothing is going to happen to you if you get caught with one CD on you. Maybe they'll call the cops to come scare you, and that's a maybe.
Just getting a copy off the internet though (not even depriving another person or store of the actual CD even) will cost you MILLIONS. I mean really, 1.92 million? I mean if she gave 100% of every paycheck she ever makes, even at a decent wage, she probably won't make that much money in her LIFE. So destroying someones entire existance because they downloaded some songs? Does that seem just?
In Lane County, Oregon (google about our Jail situation, where they have a comuter program to determine who gets released early based on certain criteria) a guy was sentenced to 1 year in jail by a judge for rape. The jails are so over crowded that they (the computer program) let him out after 3 hours!! 2 weeks later he raped and murdered some other lady. (We're all hoping they keep this guy in next time for at least a week
So a rapist gets 3 hours of Jail time, and someone who DL'ed Kazaa to her computer gets their life ruined?
The RIAA are pulling some strings behind the scene I think it's obvious to say.
Sorry NewYorkCountryLawyer (Score:1, Insightful)
Date of commencment is flawed logic (Score:3, Insightful)
no statutory damages could be awarded as to any work whose copyright registration effective date was subsequent to the date of defendant's commencement of use of Kazaa
I'm sorry but this logic is laughable. Say I started using Kazaa in 2005. In 2006 I take a newly produced and copywritten album and share it, no problem! The effective date of the copyright (2006) is subsequent to when I started using Kazaa (2005), so I'm in the clear. The earlier you start file sharing, the better!
Re:I think you have it backwards (Score:5, Insightful)
Yes, Ray is claiming that all those people did it wrong and I have no idea if he's right. But he is giving a list of arguments to support his point.
So if you want to claim that he is wrong, you should show that those arguments are wrong.
So far, all you are saying is "a lot of judges and lawyers agreed on this, therefore the decision is correct", like there's never been a wrong judgement in the history of mankind.
"Wrong about this"? How, exactly? (Score:2, Insightful)
> But he was wrong about this. Plain and simple
How could he be "wrong" about this? He predicted the outcome?
All he claims is that in his opinion the law reads in a certain way; he's much too smart to assume that the court system is going to agree with him.
You, on the other hand, seem to have a knee-jerk between your ears. Get over it, and start to tolerate other people's opinions.
Re:NYCL (Score:3, Insightful)
Nonsense. A good capitalist is someone who makes a lot of money. How that money is made is of no concern whatsoever. The morals of capitalists have to be imposed by the government.
Re:NYCL (Score:2, Insightful)
Umm, because its proponents get to live like intergalactic royalty whilst everyone else lives in the gutter?
Did I win?
Re:NYCL (Score:1, Insightful)
The RIAAA is a is a business made of other businesses. Its goal is profit. The method they use (lobbying, lawsuits) doesn't mean they aren't in it to make money. Hit men are for profit businesses too (independent contractor/sole proprietor). Just because their business model is despicable doesn't mean they aren't a for profit organization.
Re:I guess we've all learned a lesson... (Score:4, Insightful)
Speaking of misinformation, you're full of shit.
She was only uploading BECAUSE she downloaded the song, and the software defaulted to uploading it for her without intervention. Technically you are right that the case is about uploading, but there was never any intent to upload on the defendant's part.
It isn't a parallel universe, sadly (Score:5, Insightful)
As a Brit, I'm aware that my own country's legal system has gone rather downhill over the last 30 years. But the thing that strikes a European most about the US legal system is its cruelty. Punitive damages. Unconvicted defendants for white collar crimes going into court with wire ties binding their wrists. Three strikes and you're out for even a trivial third offense. "Humane" systems of execution where executioners spin out the proceedings for hours. Obviously practice varies greatly across the US States, just as some EU countries (ahem, Greece, ahem) have crap legal systems and others like Germany have good ones. But you only have to look at the outcome of the Pirate Bay case in Sweden, and this one, to see the disproportion involved. The effect of the Pirate Bay case on the European elections (and now a German MEP has defected to the Pirate Party) also shows the different levels of popular tolerance involved.
US citizens need to start growing a backbone. You do not have to support criminal activity to demand that corporations not be allowed to take over and distort the legal system.
Re:Makes sense (Score:5, Insightful)
I've started to wonder what the real value of "Jamie's playlist" really is.
If she would have had the option of "buying these works outright" what would
their appraised value be based on actual current revenue? What might the
asking price for those works be when compared to something like commercial
real estate?
I suspect that the RIAA made out like bandits and they got a payday for these
works that dwarfs their actually real value by far.
Really. How many copies of "Pour Some Sugar On Me" were moved in 2004 or even
today? This could be relevant Album sales, singles sales or tracks on iTunes.
This is information that seems to be sorely lacking from this discussion.
What is the actual value of a 25 year old Journey song?
How does this jury award compare to the actual annual revenue recieved from these works?
Re:Monday morning quarterbacking (Score:2, Insightful)
Re:Sorry NewYorkCountryLawyer (Score:5, Insightful)
Well...
You shouldn't concentrate so much on that verdict, but as to what that verdict does to foreign perception of the US. I live but two hours from the US border, and what Jamie did doesn't even qualify as a civil issue, let alone a crime, where I live. Unfortunately, US lobbyists are trying to change the law here, but, so far, with little success (except for the typical lip service; love to see politicos at work sucking hard!).
Tough luck on the verdict, USA. I am laughing at you.
Now, for a practical matter. If a friend from the US comes and visits, and makes copies (or downloads) of music, is she liable for copyright infringement when she returns to the US? Now, further, if she downloads exclusively from me, and yet is resident in the US, is she guilty?
Tough questions, but these SHOULD be resolved in a hurry. After all, the difference between $0 and $1.92 million is, well, $1.92 million! Comparisons to cocaine smuggling are welcome... You can get 500 songs on the cheapest mp3 player these days, which is 400 times what Jamie is accused of, with a potential fine of 1/2 billion dollars now -- Say this out loud, and try not to break out laughing. "a $20 investment can result in $500 million in fines".
Nope, couldn't keep a straight face, sorry.
Dred Scott (Score:3, Insightful)
Outcomes like this $1.92 million in damages for nothing hurt and weaken our system. Whatever a person's stand on copyright and Thomas' guilt, I'm seeing agreement that the amount is excessive and unfair. It reinforces cynical ideas that the whole system is corrupt, shot full of bribery and payoffs. It's also, as everyone realizes, complete bull. The fine is uncollectable. She'll never have the money. She's stuck now for years more litigation, trying to appeal all this. If this fine is ultimately upheld or she feels that the agonies of further fighting are worse than giving up, she is stuck having her wages garnished for the rest of her life, or going through bankruptcy, or maybe fleeing to another nation and asking for asylum.
Dred Scott was another unjust decision. That one lead to Civil War. Other issues have lead to civil unrest. The courts and lawmakers should think about such things when they do their work.
Re:I guess we've all learned a lesson... (Score:3, Insightful)
You know, this is a civil case. I find the preponderence of belief that she didn't have any intention to do any such thing really quite high. You know, what with the perjury she committed, the fact that she replaced the hard drive after being caught, and lied about that, etc, etc.
Let's be honest here. Whatever you think or don't think of the RIAA's actions, Jammie Thomas was quite possibly one of the worst defendants that anyone could have chosen to take up the cause. We're not talking the grandmother whose kids come over once every week and play on the PC, etc. We're talking a woman who was logged onto filesharing sites using her email account and username she'd used on dozens of sites over the last decade, when she found out she'd been caught, she immediately went to Best Buy, had them replace her hard drive, then LIED ABOUT IT IN COURT, for a start.
Re:I guess we've all learned a lesson... (Score:4, Insightful)
Re:NYCL (Score:3, Insightful)
Then you get the mess that is America.
Re:I think you have it backwards (Score:5, Insightful)
"In my most honest opinion, Jammie owes the record companies a couple dollars to pay for her downloaded songs. She owes something in the way of punitive damages. 24 songs, at a buck apiece, is 24 bucks. Drawing on ancient tort law, let's treble the damages, so she now owes 72 bucks. If she had been offered this deal from the get-go, her conscience might have convinced her that 72 bucks was a good deal, and paid it."
It's important to keep in mind that she was nailed for distributing, not downloading. When you use the word "damages" here I think you may be thinking in terms of downloading. For instance, if I found a way to get free songs from the iTunes or Amazon store and managed to download 24 tracks before caught but did not distribute them, then it would fit the framework you've described. But that's not what she did -- she was making them available. In this case it did not matter how the tracks got into her share directory.
The issue here is that the limits for statutory damages are a remnant of the days when large-scale distribution required one person to have a lot of resources, and thus was almost always for profit. Given the new reality of sharing a track with thousands or millions of people with just a few clicks and at very low cost, the limits for statutory damages should be scaled back immensely (less than $1,000 per work), or at the very least, a separate set of limits should apply to commercial vs. non-commercial infringement, so that the courts can still wreak serious financial harm to the folks churning out fake Windows CDs by the pallet.
I should also point out that while she was taken to court for sharing 24 songs, she had something like 1,500 tracks in her share directory. This is fitting with the RIAA's usual tactic of going after the "whales" of file sharing; if you have just a few dozen tracks in your share directory you're less liable to be caught. To use an ugly analogy, Timonthy McVeigh killed 168 people but was charged only for the murder of 11 federal agents (in addition to some other charges not relating to particular victoms). I take it that this is relatively common in the legal system; only charge them for enough to get the punishment you want.
Re:RIAA (Score:3, Insightful)
Doesn't work. I've been trying for longer than you do. All that happens is that they look at the declining sales and claim that you must be copying since you bought before and now you don't. It can't be that the crap ain't worth your money. It can't be that you refuse to buy DRMified content. It can't be that you are fed up with their behaviour. It must be that you're copying.
So clearly we need tougher DRM, more privacy invasion, and capital punishment for copyright offenders. THAT will teach you to buy again... erh... or something like that.
Re:If you're on a jury for cases like this, NULLIF (Score:3, Insightful)
If you know enough to nullify it, odds are extremely good that you'll be dismissed during the selection process. As much as we here on slashdot love to poke fun at lawyers, they're usually pretty smart, and will pick a jury they feel will get them the verdict they desire.
Let's be a little more honest about this. (Score:3, Insightful)
Speaking of misinformation, you're full of shit.
Please.
Kazaa is a file-sharing program.
Downloads default to your "shared files" folder. Shared files default to "share."
Which to a jury means exactly what you think it does.
There is neat little progress graph which shows which files are on the move and which are waiting in line.
You have a nickname.
You can chat with other users.
There is an option to scan the shared files of other users - and scoop up all you can eat.
There are options to set limits on your upstream and downstream traffic. When you try to close the program, you will warned if files are still in transit.
What Kazaa does and how it works is perfectly transparent.
In civil law, you are responsible for the consequences which can be reasonably be expected to follow from your actions.
That you shut your eyes to the truth is not a defense.
Stupid is not a defense.
But being too clever by half will sink you.
The geek is Wile E. Coyote - Super Genius - in court. He expects the system to roll over and play dead just because he says so.
Re:Sorry NewYorkCountryLawyer (Score:5, Insightful)
Tough luck on the verdict, USA. I am laughing at you.
You and everyone else in the world who knows about this.
Re:If you're on a jury for cases like this, NULLIF (Score:3, Insightful)
She lied in court and destroyed evidence, plus she was quite simply undeniably guilty of what she was accused of. That tends to piss juries off, as far as I can tell.
Re:I think you have it backwards (Score:4, Insightful)
I covered the "distributing", I believe. Apparently, you skipped over it. Copyright infringement was meant to apply to people using copyrighted material for commercial gain. Copyright never was meant to prevent an individual from making copies for himself, or for friends, for which he is not paid. In today's world, friends might be located all around the globe, and you may not even know their real names - but being a member of the filesharing community makes them your friend.
RIAA makes little if any distinction between people distributing for financial gain, and people who are just sharing. The law needs to address that little oversight. At most, it's an aggravating circumstance to a petty theft when a private individual is involved.
Re:I think you have it backwards (Score:3, Insightful)
No, I don't think rape should be legalized, nor did I say that mass downloading/uploading of music should be legalized. However, that's a great example. It is a broad societal problem, and thus can't be solved by jailing the individual offenders. It can only usefully be solved through education to rid people of the ridiculous notion that raping a virgin will cure AIDS. You have to fix the underlying problem---the lack of education---not the symptom.
In the case of mass music downloading/uploading, education is the only way that it might realistically be reduced, and if that doesn't work, no number of arrests is going to make a dent. The war on drugs is another example of this sort of broad problem. I'm sure we could name at least a dozen other examples. The question of whether it should or should not be a crime is a separate question---a question whose answer does tend to have an impact on whether education campaigns are effective or not....