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Some people should realize that... (Score:5, Interesting)
Resistance is futile in some cases ;-))
Disclaimer: The above sentence was intentionally left ambiguous if we relate to TFA context. As a hint, by "resistance",
"A force that tends to oppose or retard motion." was meant.
Re:Some people should realize that... (Score:5, Funny)
"A force that tends to oppose or retard motion."
I think that very well describes the motion in question; it opposes a retarded motion. ;)
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Re: (Score:3, Insightful)
If the law says the judge can award $80k per violation, while outrageous, there is nothing retarded about a judge doing so. Remember, you don't change laws in court, you change them in Congress.
IMO the judge in question should be shot for total lack of decency, along with those who passed a law awarding a HUNDRED THOUSAND TIMES the retail value of the file, of course, but still, it's not the courts' fault if the laws are bad.
Re: (Score:3, Interesting)
I'm fairly sure the judge duked out whatever he could for the sole reason that she deliberately did whatever she could to BS him. Judges are only people, and people who don't like to be BSed.
Re:Some people should realize that... (Score:4, Insightful)
I'm fairly sure the judge duked out whatever he could for the sole reason that she deliberately did whatever she could to BS him. Judges are only people, and people who don't like to be BSed.
That doesn't change the fact that the law allowed him to do this. Oh, and
Impartiality is a principle of justice holding that decisions should be based on objective criteria, rather than on the basis of bias, prejudice, or preferring the benefit to one person over another for improper reasons.
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Re: (Score:3, Insightful)
Judges are only people, and people who don't like to be BSed.
If someone BS me I am likely to tell them to go fuck themselves or similar. But, I sure as hell would not beat them to pulp and burn their house down, which in my opinion would be pretty akin to the judge's verdict. The verdict is way off in relation to the actual offence. So if the obscene verdict was a emotional response to BS - no matter how much - the judge should be disbarred with immediate effect.
Re:Some people should realize that... (Score:4, Insightful)
I think most Americans DO understand this, but there is a partisan fiction that they don't. At a high level, though, judges get to change laws, IF (IFF, in theory) they are unconstitutional, or unjust. The whole "legislating from the bench" thing is generally a silly post-hoc argument we use when a judge doesn't rule in a way we (based on our political ideals) want.
Oddly, some of our favorite rulings are cases of "ruling from the bench", such as the right to privacy being within the "penumbra" of the constitution, but we don't complain because we subjectively like the idea. Wherein Roe v. Wade is often cited as "ruling from the bench" because a certain segment hates the idea of it.
The judicial branch is also part of the checks and balances scheme, they get to say that laws are bad, which invalidates the law.
They exist to keep congress in check. This is fine and dandy by me.
Parent
Re:Some people should realize that... (Score:4, Informative)
I think most Americans DO understand this, but there is a partisan fiction that they don't. At a high level, though, judges get to change laws, IF (IFF, in theory) they are unconstitutional, or unjust. The whole "legislating from the bench" thing is generally a silly post-hoc argument we use when a judge doesn't rule in a way we (based on our political ideals) want.
As someone who has been reviewing Supreme Court opinions for the last couple years, I can tell you that's bullshit. There most certainly is a history of legislating from the bench and it comes from more than just untoward decisions.
The courts have used the due process [wikipedia.org] clauses of the 5th and 14th amendments to outright make up constitutional bases for decisions they're trying to reach (the dissent in Third Judicial District v. Osborne, decided THIS YEAR, is a great example, if you care to engage in the topic).
-SC Justice Oliver Wendell Holmes, Jr.
Parent
Re:Some people should realize that... (Score:5, Informative)
Remember, you don't change laws in court, you change them in Congress.
If only more Americans understood this.
Please no. That will only do more harm.
You are apparently failing to understand the concept of the US Government check and balance system with the division of power. While in general congress has the power to make law, the executive the power to enforce law, and the judicial to judge a case based on law, each branch has the ability to effect the law in different ways. The executive has the ability to make law by signing of treaty with foreign powers, or to render a law useless by failing to enforce it. The judicial branch has the ability to make and remove laws as well in the form of rulings on the law or the result of jury nullification in the later case.
Unfortunately many people, for whatever reason, fail to understand exactly how the US government is organized, and what powers each branch of government really have over the others. A good read can be had at : http://www.enotes.com/government-checks-balances/legislative-judicial-checks-balances [enotes.com] for more detailed information on this.
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Re:Some people should realize that... (Score:5, Insightful)
I'm fairly sure it was the Jury that decided on damages, not the judge.
Yes but it was the Judge who incorrectly gave them the latitude to do so. Under well settled principles of copyright law, he ought not to have allowed more than $750 per infringed "work".
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Statutory Damages (Score:5, Interesting)
Re:Statutory Damages (Score:5, Insightful)
Maybe she should pay the price of one record per shared mp3? That'd be something like $240.
Or ten record, which would come to $2400.
However, I just don't figure how the imaginary damages could rack up $18k, let alone $192M.
Whoever awarded those damages had no sense of proportion, or was bribed.
Regardless - if someone destroyed my life over some songs, I'd probably do the same to them.
What's few hundred k more for battery and assault, if you already owe $190M more than you
can reasonably ever earn. For that matter, no monetary fine would ever feel like anything -
and jail time is expensive to the society. So.. maybe it's just not worth it?
Parent
Re:Statutory Damages (Score:5, Interesting)
6.7 years of continuous uploading.
(As an aside - holy shit is Google getting scary! To calculate that, I typed in "1.92 million * 3.5 megabytes" and it said "6.40869141 terabytes". Then I asked it "6.41 terabytes / 256kbps" and got 6.81574337 years. I'm starting to think we should be referring to Google as 'a logic called Joe'.
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Re:Statutory Damages (Score:4, Interesting)
(As an aside - holy shit is Google getting scary! To calculate that, I typed in "1.92 million * 3.5 megabytes" and it said "6.40869141 terabytes". Then I asked it "6.41 terabytes / 256kbps" and got 6.81574337 years. I'm starting to think we should be referring to Google as 'a logic called Joe'. :S )
You think that's impressive? Try calculating how much energy the sun has (E=mc^2): mass of sun * c^2 [google.no]. Want it in a different unit? Just say so: in kilowatt hours [google.no]. It does currency conversions and plenty other useful things too. It's not just the search results keeping google on top...
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Re:Statutory Damages (Score:5, Informative)
I don't think the "intent to make profits" should matter at all.
It's relevant; it's just not dispositive. There is a long line of cases -- all of them commercial cases in which the defendant "intended to make profits" -- in which the Courts have held that statutory damages are permissible within the range of 2 to 4 times the actual damages.
It is a factor for the Court to consider. But its presence would not authorize just allowing a jury to do any crazy thing it feels like, like this runaway jury did.
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Re: (Score:3, Insightful)
Re:Statutory Damages (Score:4, Interesting)
Isn't there some kind of common-sense law which prohibits especially large amounts like this to be handed down to individuals?
There's language in the bill of rights that prohibits "excessive fines". This is a civil action though, so it's back to court to figure out whether an excessive award in a civil case is also prohibited.
-jcr
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Re:Statutory Damages (Score:5, Interesting)
Nope, as the OP explained, judges aren't allowed to use common sense if a law says otherwise. Ultimately, people vote to elect a government that will make laws telling the judges what to do. This is how the system works.
Higher court judges have more discretion at their disposal with regards to using common sense, I would bet she will still be found guilty but the amount to pay could be lowered.
Lower court judges tend to stick to the text of the law. Nothing is worse for a lower court judge career than getting his sentence overruled by a higher court judge because he did not follow the text of the law. As long as he stick to the text of the law, he is safe.
It is easier for higher court judges to establish jurisprudence. It is more risky for lower court judges although it occurs sometimes.
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Re:Statutory Damages (Score:5, Insightful)
Luckily, it is people like this who are the reason why laws change.
The RIAA have their low-risk win adding to their warchest of successfully run litigation if she settles. Now they -have- to engage the courts as much as they can to win. They -have- to publicly lobby, they -have- to look the bad guy to ${PUBLIC}. They may win - and it'd be a big win - but they may lose, and losing at such a high level is quite a setback.
At the end of the day, she could've settled, but she's chosen to stand and fight. Would you do the same, given the circumstances?
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Re: (Score:3, Insightful)
So it could have been zero?
So I am with my cousin Bob, whom I haven't seen in almost a year. He requests a drive to the store, since he's had several beer and I've only had one. I give him one. Seems he's a bit of a low life and he robs the store, killing the clerk. He comes out and we leave. The clerk had time to hit the silent alarm before dieing and we are stopped a few blocks away.
I'm charged with murder and threatened with a death s
Re:Statutory Damages (Score:5, Insightful)
Parent
Re: (Score:3, Insightful)
Re:Statutory Damages (Score:5, Informative)
Parent
Re:Statutory Damages (Score:5, Informative)
Standard, I am not a lawyer, I do not intend to create a legal relationship with any reader. This is merely my opinion and should not be relied upon under any situation. If in need of legal advice go get competent legal advice from a bar certified attorney in your jurisdiction
.
Sorry parent, but that is not how statutory damages work in copyright. In copyright cases, the holder gets to elect to take statutory damages instead of actual damages. There is no requirement that they show an inability to prove actual damages in that case. The only limitation is that the work must be registered with the Copyright office in order to be eligible for statutory damages.
The statutory damages range from $750 - $30,000 per infringed work. That $750 is why the RIAA is willing to go only that low, since they will recover atleast that amount at trial--unless the defendant can show that she was not aware and had no reason to know she was infringing. Damages jump to $150,000 per work when the infringement is willful.
17 USC 412 explains registration
http://www.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000412----000-.html
17 USC 504 explains statutory damages
http://www.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000504----000-.html
(2) In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000. In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200. The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the infringer was:
Standard, IANAL disclaimer. If in need of legal advice go get competent legal advice from a bar certified attorney.
Parent
Re:Statutory Damages (Score:5, Insightful)
You miss the point--the law is wrong, that is what is being argued. Those statutory damages are designed for corporate infringement--say, by a radio station broadcasting to 100,000 people. Not by 1 person who uploading a song to...oh, the RIAA couldn't demonstrate how many (and yes, in the radio case it would have been easy to demonstrate how many listened, on an approximate level, because the radio station uses that information every day to sell advertising time).
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Your view of "reasonable" is WARPED (Score:3, Interesting)
That's reasonable? 18,000 for sharing 24 files? You think she SHOULD have settled? REALLY??? Sure it's less INSANE than millions of dollars but it's still INSANE.
Hell, why don't we go back to sending kids who steal bread to Australia while we're at it.
Re: (Score:3, Insightful)
That's reasonable? 18,000 for sharing 24 files? You think she SHOULD have settled? REALLY??? Sure it's less INSANE than millions of dollars but it's still INSANE.
Originally she was offered a $3,000 settlement.
Yes, I'd say that it was quite reasonable for something that's clearly illegal under the standing law.
Re: (Score:3, Interesting)
While actual damages can never be determined, they can be estimated fairly easily.
Most modern P2P software works by distributing the uploading over the entire network. This is certainly true for bittorrent, and mostly true on older networks referenced in this case, if I remember correctly.
A == "number of people wanting a copy"
B == "number of copies desired per-person" == 1
C == "number of copies needed" == A * B == A
D == "number of uploaders" ~= C
X == "number of copies uploaded, per-person" == D / C == C / C
Re:Statutory Damages (Score:4, Interesting)
That's exactly the fallacy in their logic: It's not ONE (illegal) distributor and MANY receipients (that's what this law was created for). That's not the case. You have MANY distributors, contributing a tiny fraction of the infringed work. Yet their logic is to sue all of them for the whole work.
Extrapolating, if they caught all the infringers, they would actually get more people uploading than downloading. You download one copy, as you pointed out. You don't need more than that. Yet you upload to several people, all of them counting as an upload to their statistics.
Basically, if they caught all infringers, they would come up with a multiple of the actual copies distributed.
Parent
Re:Statutory Damages (Score:4, Insightful)
Yes, but remember that statutory damages are supposed to be an approximation to actual damages. It's not supposed to be the way that actual damages is 100$ and statutory damages are 10000$ where 9900$ is a fine. Then of course everyone would opt for the statutory damages, less burden of proof and higher payback. Statutory damages should, in my opinion, be an educated guess of the damage done compared to the zero alternative. So let us assume Jammie Thomas did do everything she was charged with and compare that to her not file sharing at all, how much of an impact would that make? Meaning no offense, but she's a nobody. One little peer in a swarm who'd have as much affect as stomping an ant on the ant hill.
That's what is entirely missing here that makes this case insane. It can't possibly be the intent of the law that they should be able to say "Well, we can't prove any specific instance of infringement so we'll just pick the highest possible number we can". If so, they should just burn all evidence they have on actual infringement. In fact, that's very good grounds why statutory damages should be on the low end of the scale. Let's for example assume that you have a statutory damage estimated to 2000$-5000$. If you, as the plaintiff, know that the actual damage was 2500$ you'd only want to prove it if you'd otherwise get 2000$. If you'll get more in statutory damages then you'd rather suppress that evidence. And if you can't even estimate the statutory damages and get 150,000$ instead, then that too.
I think they're very afraid of just how far the Supreme Court could set them back. Any demand of plausibility for statutory damages is likely to kill their scare tactics. I mean, seriously compared to how many cases there's been and how many people's computers and networks are wide open, do you really think she's the only one that wanted to fight the lawsuit? But I bet far too many have investigated their risk/reward and found that yes, you might win or be a debt slave forever. There's no way the zero tactic will work though, I bet they'll find the damages unconstiutional and send it back to be redone once more with new guidelines. At least that's the way I'm used to, even if the supreme court finds stuff unconstitutional it doesn't have time to deal with fact-finding in actual cases.
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Re: (Score:3, Funny)
You got to know when to hold them and know when to fold them.
That'll be $750 thanks for infringing on poor o'l Kenny Rogers
Pedant looks up who actual wrote the song in 3... 2...
Re: (Score:3, Interesting)
18k is still a fair lot of dough. Depending on what you're actually doing for a living, it can be even more than what you could pay back in 7 years (i.e. time 'til bankrupcy).
So what's the difference between 18k, 180k or 180m if you can't pay any of them?
None. I don't know about her financial situation, but if that's it, continuing the ride is the most sensible thing she can possibly do. Whether you're in for twice of what you could possibly make in 7 years or a hundred times doesn't really make a differenc
Turned Around (Score:5, Funny)
Re:Turned Around (Score:5, Informative)
Since copyright has nothing to do with the free market, and is completely a government-created monopoly, I see nothing wrong with what the GP stated. If these people want to so badly abuse a system this way, they should be forced to live with their made-up prices. Otherwise, we'll just going to remain stuck with the current system of hypocrisy, and it's only going to get worse until we finally wake up and abolish the whole thing.
Then, we can have a free market.
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Re:Turned Around (Score:4, Insightful)
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Smart (Score:5, Interesting)
As per one of my previous posts postulated, they are not fighting based on technical defense, but on a constitutional one, the first court case was indeed a sham to coax the jury to make the biggest most outrageous damages they could. As per NYCL they didn't even call their own witnesses or cross examine (if memory serves me correctly).
Below Zero (Score:3, Funny)
Whatever the outcome (Score:5, Insightful)
This could not happen in Europe because the UN declaration on Human Rights is built into legislation. Not surprisingly, British Conservatives want to get big business (and the US) on their side by derogating from it. This case is evidence of why we in the UK need to worry, not only about our present Government but the probable next one.
Re:Can't pay the fine? (Score:5, Insightful)
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Re:Can't pay the fine? (Score:5, Insightful)
Maybe we can employ the same logic for speeding tickets. $1.9 million because I may be able to go 105 in a 35 despite the fact that I was going 40. Downloading 24 songs is not worth destroying someone's life over. Look at the penalties for vehicular homicide and tell me the fine fits the crime.
Ok...I did look at a recent high profile case, a case as media newsworthy as the $1.92 million RIAA case, about vehicular manslaughter, where an NFL player killed someone while he was driving drunk. Do you think this penalty fits the crime? Or is our justice system truly fucked at all ends?
NFL receiver Donte' Stallworth, a former University of Tennessee star, began serving a jail sentence Tuesday for hitting and killing Miami resident Mario Reyes on March 14th while driving drunk. He had apparently spent the night celebrating a $4.5 million dollar roster bonus he received the day before at a luxury hotel bar.
His blood alcohol level at the time of the incident was a reported .126, well above Florida's legal limit of .08.
Mr. Stallworth not only chose to not check into a room to sleep it off, he proceeded to drive his vehicle while seriously impaired, at an estimated 50 mph in a 40 mph zone when he struck the 59-year-old father of one as he rushed to catch a bus after his shift for a construction company ended that fateful day.
Was he sentenced to multiple years in prison? Were there throngs of protesters lining the streets and sidewalks at his trial? Will he be vilified and his livelihood taken away?
The answer to all of the above is no. Stallworth pled guilty to DUI manslaughter and was sentenced to 30 days in jail. 30 DAYS! He will serve only 24 because he gets credit for one day served and will get five days credit for each month served, according to Florida law.
http://www.t-g.com/story/1548024.html [t-g.com]
If you drunk dive and kill someone with your car you should get 24 days in jail. But download 24 songs and expect nearly $2 million in fines. We need to start reexamining our courtrooms.
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Re:Can't pay the fine? (Score:5, Informative)
2) The "victim" was attempting to cross a 6 lane divided highway with wall barriers and concrete center dividers in the dark and was nowhere near a crosswalk or streetlight.
3) Stallworth should have done more time for the DUI.
4) Manslaughter is a huge stretch in this case which is why the DA settled.
Parent
Re:Can't pay the fine? (Score:5, Informative)
5) Other drivers in the area noted that it would have been impossible for even a non-impaired driver to have avoided hitting the victim.
Was it stupid for the guy to drive while impaired? Yes. Would it have made a difference if he had been completely sober? Probably not.
Parent
Re:Can't pay the fine? (Score:4, Insightful)
In the grand scheme of things, none of us is worth very much. Even at the prime of your life, the odds are against you ever doing anything of any import. Copying a silly song is worth even less, in terms of generations. In geological time, we all are completely expendable.
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Re:Can't pay the fine? (Score:5, Insightful)
so long as you play in the NFL, you can kill someone in a DUI crash and do 30 days.
this woman stole some songs. by doing so, others may have been able to steal those songs too.
however, nobody died. the songs are undamaged. the artists are still fucking rich.
the fact that lawyers can get away with this allows me to look more softly upon murderers.
when you break justice anywhere, you break it everywhere. this madness must end soon.
Parent
Re:Can't pay the fine? (Score:5, Insightful)
It's ironic as I mentioned this very case in the thread about "Don't Copy that Floppy" as the RIAA get $84,000 per song or whatever it works out too, and Air France is giving families of the victims of the Airbus crash $24,000.
Three dead travelers worth less than one song apparently.
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Re:Can't pay the fine? (Score:4, Funny)
Three dead travelers worth less than one song apparently.
Jammie Thomas' Playlist:
You have to realize that figure was averaged per song. Three dead travelers don't even come close to the value of "Welcome to the Jungle". They might be worth a Goo Goo Dolls song however.
Parent
Re: (Score:3, Insightful)
Not saying I agree with this, just saying one *could* look at it like that...
Re: (Score:3, Funny)
So when God fucks up it's less of a problem than when I do? Great, he's first of all much more powerful to avoid it than I am and he's also an effing lot richer.
I knew it all the time. If you have money and power, you won't get blamed for anything.
Re: (Score:3, Funny)
They're lucky Air France didn't treat them like the RIAA members treat the artists. In that case the families would have been charged extra for the special effects used to promote the flight.
Re: (Score:3, Insightful)
You're simply wrong. The law does NOT say you should not download music. It says you should not upload music.