Jammie Appeals, Citing "Excessive" Damages

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.'"

Sig digs

[UbuntuDupe]

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:

[Woek]

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.

Re:Sig digs

[Atario]

I agree. The correct spelling is "viri".

It's not virii or viri.

[Draconix]

Actually, the correct Latin is "vira" (it's one of those odd neuter words that look masculine at first glance) but as stated by another responder, the correct English is "viruses."

Re:

[Edward Teach]

Actually, in Latin, vir means man and viri means men. Viruses is the correct spelling.
Here is the wikipedia article [wikipedia.org] on it.

Re:It's not virii or viri.

[Anonymous Psychopath]

Wow. A grammar nazi slap fight. Awesome.

Moderators, this post is as relevant to the article as all the ones to which I'm replying. Please mod down along with the rest of them.

Why mod an incorrect statement up?

[msauve]

Yes, the article summary used the term incorrectly, but no, 151.20 does not have more significant digits than 222,000 in this case. Both are exact numbers, are not rounded in any way, and so can be thought to have an inifinite number of significant digits [sc.edu].

Almost right.

[Wilson_6500]

"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:

[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.)
 

Re:Sig digs

[digitig]

The origin of the $222000 probably has three significant figures, because that's probably how precisely the person who was setting the fine was working in their mind. However, once the fine is set, it is $222000.00, eight significant figures of cents, as she would discover if she tried only paying $221999.95. Those last zeros are significant.

The difference in the number of significant figures between the juries mental processes and the actual fine, even though the actual number is the same and has the same meaning, is an interesting one in the recent debate on another story over whether math is objective.

From what it sounds like...

[ravenspear]

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.

Re:From what it sounds like...

[rucs_hack]

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.

Re:From what it sounds like...

[arkhan_jg]

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.

Re:

[AstrumPreliator]

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.

Re:

[clickety6]

THta's only one juror from eleven. It's not guaranteed that all 12 were idiots ;-)

Re:From what it sounds like...

[Kjella]

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.

Re:

[orclevegam]

There's an expression, the punishment should fit the crime. If you stole some candy bars a proper punishment might be a small fine, say $100, or perhaps 6 months of community service or some other small punishment. If the statutory fine for stealing a candy bar was $6,000 per candy bar, you'd sure as hell see people fighting it in court. That's the point, the damages that are being awarded for these cases are grossly out of proportion to the offense, it's like getting the death penalty for trespassing.

Re:From what it sounds like...

[ShieldW0lf]

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:

[xenocide2]

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?

Re:

[Opportunist]

Yes, that would make sense. But how about instead of some arbitrary "damages" which are in no relation to the price of the product damages that can sensibly be assumed? IIRC we were talking about 24 songs here. Now, at $1 retail price per song, to rack up "damages" around 200k USD, every single song would have to be downloaded about 1000 times, from her exclusively. Not from someone else, not even partly. Now, the way P2P works, it's unlikely the whole song was downloaded from her, but let's say that 20% of

reasonable to you, maybe

[westlake]

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.

Re:From what it sounds like...

[speaker of the truth]

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).

Re:From what it sounds like...

[Atario]

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:

[tjjfv]

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:

[cpt kangarooski]

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:

[Eivind]

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.

Re:

[Propaganda13]

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.

Re:From what it sounds like...

[earthforce_1]

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.

Can't even claim a loss

[IndustrialComplex]

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.

Re:From what it sounds like...

[UbuntuDupe]

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:

[Anonymous Brave Guy]

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

Re:

[speaker of the truth]

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.

Re:

[Anonymous Brave Guy]

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.

Re:From what it sounds like...

[Eivind Eklund]

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.

Re:From what it sounds like...

[NewYorkCountryLawyer]

You are correct. There was absolutely zero evidence of any actual damages. Although I would concede that the actual damage for infringement of 24 song files would be in the neighborhood of $8, or 1/30,000 of the award.

But the RIAA didn't actually have to prove any infringement; the jury instruction freed them from that burden.

Re:From what it sounds like...

[richie2000]

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:

[Anonymous Brave Guy]

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

Re:From what it sounds like...

[richie2000]

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?

Re:From what it sounds like...

[Anonymous Brave Guy]

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!

Re:

[Anonymous Brave Guy]

I've read many such things before. I make a point of getting some basic background information straight before getting into these discussions. I have also read widely (and written in formal consultations) on the nature of copyright more generally. The fact that I did not have time to look up a poorly cited source from reference material of dozens of pages just to reply to one Slashdot post does not mean anything other than that I do not have infinite time. The studies I have seen before — some of whic

Re:

[richie2000]

Ironically, the labels are to blame for this effect not being much bigger. Looking at their sales figures, it's easy to conclude that the Napster model for social file-sharing was a lot better at recommending (and generating sales of) new music than the anonymous protocols we have now. To be able to browse someone's entire catalog of music after having found one song you were looking for and to chat with the person lead me to discover a lot of new music, that I bought. After the RIAA shut down Napster, I ha

Re:From what it sounds like...

[Eivind]

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:

[UbuntuDupe]

To me, it seems unreasonable to punish those who are caught for the crimes of those who are not caught.

Yes, but it's more unreasonable for all innocent people to bear the cost, and it's even more unreasonable for the victim to bear the cost alone.

Unless I misinterpret you, you are arguing that the negligent party should actually compensate you more than your actual loss, because sometimes people who cause accidents flee the scene.

You do misinterpret me. If caught, you should pay the actual damages (plus c

Re:

[rtb61]

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

[mastershake_phd]

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:

[fractoid]

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

[ravenspear]

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.

Re:

[fractoid]

My bad. Same shit, different asshole. :P

Re:

[speaker of the truth]

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.

Re:

[Sheetrock]

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.

Re:

[Sheetrock]

Assuming it's a civil matter and not a criminal one, of course.

Re:

[drawfour]

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.

Re:

[leuk_he]

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.

Re:

[sco08y]

If they include legal fees, and what they spend tracking down file sharers...

None of which is considered damages.

Re:

[suv4x4]

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

[User 956]

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.

"unconstitutionally excessive"?

[Max Romantschuk]

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?

Re:"unconstitutionally excessive"?

[ahuard]

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).

Re:"unconstitutionally excessive"?

[uhlume]

The Constitution doesn't "grant" us our rights and freedoms, it legally protects them. This is not a minor philosophical point.

Not Quite

[Spasmodeus]

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".

Re:"unconstitutionally excessive"?

[thomas.galvin]

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.

Re:"unconstitutionally excessive"?

[poot_rootbeer]

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:

[sonamchauhan]

they have something in their constitution against "cruel and excessive punishment"

Re:

[Lost Engineer]

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

[ravenspear]

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

[speaker of the truth]

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

[ravenspear]

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.

Re:

[speaker of the truth]

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.

Re:

[ravenspear]

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

[stinerman]

Nope.

She's citing the 14th. The penalty runs afoul of due process. See BMW v. Gore [wikipedia.org].

Re:

[ravenspear]

That is a good link. It certainly seems that these damages are indeed "grossly excessive" as defined in that decision.

Re:

[Max Romantschuk]

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! :)

Re:

[cliveholloway]

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...

Re:"unconstitutionally excessive"?

[rm999]

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.

Well the dutch use the "grondwet"

[SmallFurryCreature]

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

Re:

[Max Romantschuk]

Several European nations have a constitution as well, and they are used in much the same way as the US constitution.

Finland, where you seem to hail from, got a new constitution in 2000 (http://www.om.fi/21910.htm), so maybe that's why you aren't familiar with it

Did you read my post? I'm perfectly aware that we have a constitution in Finland. I'm just curious as to why there's a need to refer to it in seemingly every other trial.

Re:

[m2943]

Did you read my post?

Yes. You stated that you (1) don't understand why Americans refer to the constitution and (2) made fun of the fact that they do.

I'm just curious as to why there's a need to refer to it in seemingly every other trial.

You're interpreting the data incorrectly. People in the US refer to the Constitution in regular trials. They do refer to it frequently in trials that make the news. They do that because those tend to be the trials that involve issues that are controversial or legally unc

Re:

[prefect42]

Well, in fairness, they drew up a constitution and voted on it. People said no. So now they've reworded it, it's no longer a constitution, and so people don't have to vote on it. So no, we do not have a european constitution, and there seems little point in creating one now.

Motion for Retrial !== Appeal

[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

Re:

[backwardMechanic]

Didn't you mean (!==)!=(!=), with noted exceptions?

They planned it all along

[freshmayka]

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.

Re:They planned it all along

[pnuema]

Is it against our constitution? I see press reports of big corporations getting smacked down with punative damages all of the time. They cry and whine just like this woman. But the little guy usually cheers because it's a big corporation getting smacked. But the penalty is often much larger than the damages.

Those large damage awards are for punitive damages. They are supposed to punish the offending party. The financial punishment has to be scaled by the ability of the offending party to pay. If you have gross revenues of 2 billion GBP, like EMI had last year, then a 100 million GBP judgment against you is less than 5% of your gross income. Conversely, Jamie just got slapped with a judgment worth several times her gross income. Which is fair?

Re:They planned it all along

[pnuema]

Is it fair for the hundreds of thousands of people who work at Exxon to pay for the foolishness of that captain who ran aground up in Alaska?

Damn right. Those "hundreds of thousands" made a ton of money before that incident. You share in the success, and you share in the failures. Everyone together.

Is it fair for the thousands of hard working folks at GM or Ford to pay when some drunk drives a car into a tree?

Um, what?

Is it fair when the hundreds of hard working rock and roll stars (hah) lose their retirement because some decides to "share" the music with hundreds of thousands of their closest friends?

What does this have to do with punitive damages?

This is a problem for the typical slashdot poster. Corporations are made of people too and juries routinely come down hard on corporations. That's celebrated here because the jury is hanging some big, faceless machine. But there the corporation is made up of people and all of those fines at Exxon came out of the retirement fund of thousands of people.

And this is the problem with your typical "I get my news from Fox" conservative. Either a corporation is a legal entity under the law or it is not. Corporations get to lobby, give to political campaigns, and shield their employees from liability because of that standing. You can't treat them like they are a single entity when it is convenient (i.e. profitable), and scream they are "made up of people, too" when it suits your purpose. And your definition of "coming down hard" is a bit ill informed, I feel. I've never heard of a damage judgment that wasn't well within the corporation's ability to pay, and still turn a profit for the year.

Personally, I think the world would be a much better place if when a corporation broke the law somebody has to go to fucking jail, but in the meantime, you can't have it both ways. The only way we have to punish a corporation when they break the law is through financial penalty, and the punishment must scale by the corporation's ability to pay. Otherwise, they would be completely lawless.

Copyright is not a right

[speaker of the truth]

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.

Re:

[dabadab]

"[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:

[speaker of the truth]

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.

Re:

[Tim C]

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

Re:

[dabadab]

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.

Re:

[julesh]

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"

Re:

[Anonymous Brave Guy]

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

Ask Verizon to do the math!

[Zaatxe]

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:

[Chapter80]

Yes $2.46 per bit, but given that roughly half the bits were zero, and half were ones, she was charged $111K per digit.

It's not an appeal...

[NewYorkCountryLawyer]

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.

Two forms of infringement

[Jason Levine]

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.

Re:Know when you are beaten

[speaker of the truth]

She was guilty, clearly, obviously and transparently. she got caught. WTF is going through her head?

"I shouldn't have to pay $222,000 when I only uploaded it to 5 people"? Not such an unreasonable thing to think.

Re:

[speaker of the truth]

Guess her first thought then was "I shouldn't have to pay $3,000 when I only uploaded it to 5 people." Still sounds reasonable to me.

Re:

[Omnifarious]

You are their friend if you think that people should just take their ridiculous settlement offer and leave it at that. IMHO, she shouldn't have bothered with saying she didn't do it and gone for the ridiculousness of the fine right away. But I can't fault her for having tried.

Imagine you are in the dark ages...

[ghostunit]

Imagine you are in the dark ages and you are summoned for not having paid tithe to the local church.

The church complains that not only they are entitled to it by divine right, but also that it's not fair you benefit from the innumerable and priceless services they provide to the community (such as hunting for heretics) without contributing what they ask for.

Knowing that the penalty may range from outrageous fines to beheading even (and especially) when confessing, what would you say when asked whether you did in fact pay your tithe?

Now replace "dark ages" with "ip dark ages".

Re:Know when you are beaten

[itsdapead]

She was guilty, clearly, obviously and transparently. she got caught. WTF is going through her head? if she had common sense she would have taken the very low settlement fine that was originally requested.

Even if someone is as guilty as sin then they deserve justice and a "punishment" that is proportionate to the "crime" ( whether or not "crime", "punishment" or "guilty" are appropriate words in a copyright case, charging a private individual a six-figure sum sounds like a "punishment" to me). "Waive your right to a fair trial and pay us $2000 now, or enjoy your right to a trial and risk us taking your house" is not justice, it is a license to extort.

If a civil court feels that a defendant has lied, it should bring a criminal charge of perjury and let a criminal court decide the punishment. It should not be the place of a civil court to punish someone, without trial, for a criminal offence ramping up the so-called "damages".

If a civil court feels that a defendant has wasted their time and the plaintiff's money by fighting bringing a meritless case, they should add to the reasonable and audit-able damages, some or all of the reasonable and audit-able costs of the case (...bearing in mind that the defendant already has their own costs and that a large, corporate plaintiff may have lawyers on staff, and that its not unreasonable for the main beneficiaries of artificial laws like copyright to bear some of the cost of enforcement ). They should not leave it to a jury to pull some figure out of a hat and call it "damages".

Re:Consent of the victim

[Teancum]

I'm going to echo the AC response to this posting, and re-emphasis an unanswered question I've posted on earlier threads about Jammie:

Is this the RIAA you are talking about, or is this the supposed pirates?

Or more specific and to the point, assuming either compensatory claim is made (either the $200,000 fine or a much reduced $200 fine) will any of the actual musicians who produced the music Jammie is alleged to have offered to be copied receive even a single penny from the settlement? Does the RIAA even have an accounting mechanism to determine who should get the money, presuming that Jammie is being convicted of a copyright violation of several explicit songs that can be named by both title and artist, including song writer and performer?

If the RIAA is truly acting as an agent for and in behalf of these musicians and seeking compensation directly for them in terms of violating the copyright of these genuine artists, I would completely agree with your statement you have made. I do not condone Jammie, but at the same time I question the legal standing of the RIAA, who only represents the record labels... and even that indirectly. A class-action lawsuit (which this court case seems to fit the rough definition of one... the class being defined as the musicians whose music was distributed illegally by Jammie) in any other industry would be considering these settlement terms to be unconscionable and unconstitutional just from the standpoint that those "harmed" have not been fairly compensated at all. It would be like an ACLU lawsuit where the lawyers kept 100% of the settlement.

All this said, there should be some mechanism in place where an ordinary musician can actually make some kind of financial compensation for electronic distribution of their music. From nearly everything I've read regarding the current state of the music industry, this mechanism simply is not in place at all, so there is little incentive for new and emerging musicians to really care about the RIAA cartel. By far the worst thing a new musician can do is sign a contract with an RIAA company, except for the hope that you can eventually hit the major leagues of the top musicians. But don't expect the label to assist you in that journey.

American Idol, Pop Idol, and other similar music competition are a symptom of an industry falling apart: The system is so rigid and unable to be able to find new talent that they have to go through gimicks like a national talent search. For every Ruben Stoddard and Kelly Clarkston that has been found by the major labels, hundreds of otherwise good musicians were passed over and thrown overboard, many of whom could have earned a professional wage to perform music, even if it wasn't necessarily living life as millionaires. It is this level of talent that the current RIAA system has completely failed.