In Round 2, Jammie Thomas Jury Awards RIAA $1,920,000 793
NewYorkCountryLawyer writes "Well the price went up from $9250 per song file to $80,000 per song file, as the jury awarded the RIAA statutory damages of $1,920,000.00 for infringement of 24 MP3s, in Capitol Records v. Thomas-Rasset. In this trial, although the defendant had an expert witness of her own, she never called him to testify, and her attorneys never challenged the technical evidence offered by the RIAA's MediaSentry and Doug Jacobson. Also, neither the special verdict form nor the jury instructions spelled out what the elements of a 'distribution' are, or what needed to be established by the plaintiffs in order to recover statutory — as opposed to actual — damages. No doubt there will now have to be a third trial, and no doubt the unreasonableness of the verdict will lend support to those arguing that the RIAA's statutory damages theory is unconstitutional." Update: 06/19 01:39 GMT by T : Lots more detail at Ars Technica, too.
Well . . . (Score:5, Insightful)
Re:Well . . . (Score:5, Funny)
Re:Well . . . (Score:5, Funny)
Also sexy, but everything's sexy to me.
--
I have the heart of a child. I keep it in a jar
Your post and sig make a very scary duo.
Re:Well . . . (Score:5, Insightful)
My thoughts about this award is that it makes it quite clear that the average person posting on slashdot does not know anything about law. If you read slashdot, you'd think that there would have been no possibility of RIAA winning because they are incompetent idiots without a clue.
Apparently not.
Note to self: don't depend on /. for legal news.
Re:Well . . .Here's How (Score:5, Insightful)
All they had to do was find 12 citizens just like themselves.
Re:Well . . .Here's How (Score:5, Informative)
All they had to do was find 12 citizens just like themselves.
The federal jury is essentially creation of the federal courts.
You do not get to handcraft your own:
In civil cases, each party shall be entitled to three peremptory challenges. ... All challenges for cause or favor, whether to the array or panel or to individual jurors, shall be determined by the court. 1870. Challenges [cornell.edu]
The federal juror is 18 or over, a US citizen resident in the district for at least one year, writes and speaks English with reasonable proficiency and is physically and mentally fit for service. 1865. Qualifications for jury service [cornell.edu]
You could make a persuasive case for the geek being the idiot in court - to the despair of his consul and the joy of his opponent -
and the most common mistake he is likely to make is to show contempt for the jury.
Re:Well . . . (Score:5, Insightful)
I think it's fairly clear she was guilty. There was some doubt, but I'm not surprised she was found guilty at all.
I am surprised at the amount. I figured it would be reduced to be more reasonable. My big problem with all this is the damages. $18,000 per song is 900 CD sales per song at $20 a CD.
For simple infingement (not intentional theft) I could see $100 a song, or $250 a song. But $18,000 is ludicrous.
I was hoping the damages would be overturned as bankruptingly high and unconstitutional. I was hoping we'd get a precedent of vague reasonableness in this kind of thing.
Nope.
But the guilty verdict? Unsurprising.
Re:Well . . . (Score:5, Insightful)
For simple infingement (not intentional theft) I could see $100 a song, or $250 a song. But $18,000 is ludicrous.
Well, it's $80,000, not $18,000. However, I cannot possibly see even $100 per song as justified. As far as I know, these file sharing programs require that you distribute about the same amount of songs that you download yourself. Or, turning the argument around, the amount that others download from you is about the same as what you download, so on average any song that is made available for downloading will be downloaded _once_. Damages are at most $0.70 per song (that's what the music company makes if I download a single song from iTunes). So even if we assume without justification that these songs were downloaded from her computer ten times each, that's only $7 per song.
I always though that statutory damages are not meant as a punishment, but as a means to give the copyright holder fair compensation in situations where the actual damage is impossible to establish. So I would agree that the RIAA deserves not the amount that they can actually prove, but a reasonable estimate of the actual damages. $80,000 in damages would be Ok if we could reasonably estimate that a song was downloaded about 115,000 times from her computer. Which is ridiculous.
Re:Well . . . (Score:5, Informative)
To put $80,000 per song in perspective, look at the RIAA's 2001 marketing stats [azoz.com] (last year I could find figures for new releases). On average each new CD title brought in about $500,000 in revenue. If you figure conservatively 8 songs per CD, that works out to $62,500 per song.
In other words, the jury awarded more averages damages per song than if she'd prevented all copies of the song from ever being sold.
According to the CONTU report ... (Score:5, Interesting)
I always though that statutory damages are not meant as a punishment, but as a means to give the copyright holder fair compensation in situations where the actual damage is impossible to establish.
According to the CONTU report ("Committee On New Technological Uses", back when congress was working on extending copyright to software), and if I recall it correctly, the statutory damages are apparently intended to be both punitive and to allow the copyright holder to recover enough from the few moles he manages to whack to make up for the many he missed.
The precedent is a church choir director who purchased sheet music for a song that was scored out of the range of his choir (and most singers), did a transposition that made it singable, ran off a few copies for his choir, and offered the transposition back to the original author and publisher, gratis, for their next edition. Instead of "incorporating the patch", they sued for some large number of thousands of dollars (real money in those days, too) for the infringing copies of this derived work. And won.
Re:Well . . . (Score:4, Interesting)
I think it's fairly clear she was guilty.
But is the law under which she is considered guilty reasonable? That's really the question at the heart of RIAA vs The Consumer. Sometimes I look at all the hard work and money that goes into making and marketing a recording artist, and think it IS wrong to acquire songs without payment. The music has value, otherwise we wouldn't buy it.
But then the Internet has drastically changed how fast music can be sent around the world -- I envision in the not too distant future wireless connectivity everywhere and you just have a music subscription to everything (or maybe, like TV, certain channels, etc). Wherever you are, you can turn on your car, your iPod, your stereo, and select any of numerous playlists you've saved in your online profile, and just listen. Nothing is stored locally -- it doesn't have to be. But you pay for access.
Re: (Score:3, Interesting)
This isn't a matter of law so much as it is a matter of jury behavior.
I wonder if Jamie had run over the plaintiffs with her car if that jury would be so generous.
Comment removed (Score:5, Insightful)
Re:Well . . . (Score:4, Informative)
If you read slashdot, you'd think that there would have been no possibility of RIAA winning because they are incompetent idiots without a clue.
Judging by the summary (No, of course I didn't RTFA.) the only real incompetent in this case was the defense attorney. What is the point of getting an expert witness if you're not going to use their testimony? Why wasn't the technical evidence challenged?
If you read the article, and followed the case, you'd realize that their technical expert turned out to have been shot down in flames [slashdot.org]: "Judge Davis ruled that Prof. Kim could testify about the 'possible scenarios,' but could not opine as to what he thinks 'probably' occurred. The court also ruled that, 'given the evidence that there is no wireless router involved in this case, the Court excludes Kim's opinion that it is possible that someone could have spoofed or hijacked Defendant's Internet account through an unprotected wireless access point. Similarly, because Kim explicitly testified that this case does not involve any "black IP space," or any "temporarily unused" IP space ...., he is not permitted to opine at trial that hijacking of black IP space or temporary unused IP is a possible explanation in this case.' Dr. Kim was also precluded from testifying as to whether song files were conspicuously placed in a shared files folder or were wilfully offered for distribution."
Pirates (Score:3, Interesting)
Re:Well . . . (Score:5, Insightful)
I've seen a lot of people claim that defendents in copyright infringement cases should use NYCL. Forgive my bluntness, but do we really have any evidence that NYCL is a particularly skilled lawyer? Is he more likely to obtain a favorable verdict than the lawyers that these people are using? It seems like we're assuming that he's a good lawyer because he's on our side.
*Dons flame-retardant suit*
Re: Well here goes . . . (Score:3, Informative)
Perhaps NYCL will correct me on this, I've seen great litigators who never step foot in a courtroom and would be a disaster at trial. On the other hand I've seen great trial lawyers - both criminal and civil - who don't have the finesse to be
Re:Well . . . (Score:5, Insightful)
I've seen a lot of people claim that defend[a]nts in copyright infringement cases should use NYCL. Forgive my bluntness, but do we really have any evidence that NYCL is a particularly skilled lawyer? Is he more likely to obtain a favorable verdict than the lawyers that these people are using? It seems like we're assuming that he's a good lawyer because he's on our side.
Agreed.
Re:Well . . . (Score:5, Interesting)
Sorry if I phrased the question trollishly. I think a better way of putting it is this: If I were accused by the RIAA, do you think you'd be a good lawyer to represent me at trial. If so, what are your qualifications? I don't do much infringing anymore, so I'm unlikely to need your services, but I'd be interested in knowing.
Its my impression that you're very knowledgeable, but since I'm not a legal expert, my impressions mean nothing. Sorry if you've already gone over this.
Re:Well . . . (Score:5, Insightful)
Sorry if I phrased the question trollishly. I think a better way of putting it is this: If I were accused by the RIAA, do you think you'd be a good lawyer to represent me at trial. If so, what are your qualifications? I don't do much infringing anymore, so I'm unlikely to need your services, but I'd be interested in knowing. Its my impression that you're very knowledgeable, but since I'm not a legal expert, my impressions mean nothing. Sorry if you've already gone over this.
I don't really think it's for me to say. And I don't think your comment was trollish in the least. You were cautioning people against retaining a lawyer just based on the fact that they like him. And when I said "agreed", I meant it.
Re:Well . . . (Score:4, Funny)
I don't really think it's for me to say. And I don't think your comment was trollish in the least. You were cautioning people against retaining a lawyer just based on the fact that they like him. And when I said "agreed", I meant it.
How do we know that you are not just agreeing with Rycross to trick people into thinking you are a good lawyer when in fact you are not? And which goblet has the iocane powder?
Re:Justifying piracy (Score:5, Insightful)
Artists are now forced to take time out of doing what they want to do.
Just like the rest of us who work for a living?
Re:Justifying piracy (Score:5, Interesting)
As a recording and performing musician who is both excited by the limitless distribution and disgusted with their treatment of artists I find you personally offensive. Furthermore I also find you to be nothing more than a rhetoric spewing fool of the lowest order. I hope you choke on those party lines you parrot off mindlessly.
GTFO, troll.
Re:Justifying piracy (Score:5, Insightful)
Re:Justifying piracy (Score:5, Insightful)
Have you ever tried to make a living by driving around the country doing shows? It is, after a short time, soul sucking and demeaning. But that is the only way even a great artist with fairly broad appeal can make a living in this day and age, because of morons like you.
Since when have musicians EVER made any significant living off of derivative works OTHER than performing live? Mozart did it, Elvis did it, Metallica did it. Artists have never been able to make a substantial income from record (or sheet music) sales. It wasn't until Beethoven that the idea of making money off of copies of musical works even really took off.
Re:Justifying piracy (Score:5, Insightful)
Re:Justifying piracy (Score:5, Insightful)
You've made the statistical mistake of comparing one artist in a generation to every artist of our day. How many composers do you know from the classical period? Have you ever heard of Andrea Luchesi? Probably not. For every Mozart, there are hundreds of Andrea Luchesis. Just as now there are hundreds of artists like Brittany Spears.
Patronage was horrible. You had to compose, perform, or do nothing, all based on what your royal sponsor demanded of the evening. You art would be filled with things only to please your king. See the music of Haydn for an example of this. In some cases, a patron would even modify the work of art however he desired. It sucks.
Besides, there was no one like Brittany: no one had her mix of innocence and sexual confidence. She was popular for a reason. If you don't understand why, it just shows that you are also out of touch with the tastes of modern culture.
Re:Justifying piracy (Score:5, Insightful)
Patronage was horrible. You had to compose, perform, or do nothing, all based on what your royal sponsor demanded of the evening. You art would be filled with things only to please your king. See the music of Haydn for an example of this. In some cases, a patron would even modify the work of art however he desired. It sucks.
I realize that you were trying to contrast patronage with what we've got now, but I don't see the real difference between what you've described and being under contract to a major label.
Re:Justifying piracy (Score:4, Insightful)
If that's the case they were wrong. Given the compensation typical for a struggling artist (or even a minor-league success story) signed to an RIAA label. Selling his CD's himself, even with a signifigantly lower volume I have a hard time believing they would have trouble being just as broke as they already are.
Ignorance may explain the situation, but it does not excuse it.
How about this, if these artists were doing the suing themselves do you think they would ask for $1,920,000 in damages?
Re:Justifying piracy (Score:5, Insightful)
It is, after a short time, soul sucking and demeaning
So you mean... it's like... HAVING A JOB?!?!?!?!?
"Artists" who think that one weekend's work and a year or two of sacrifices and chances should allow them to live luxuriously for years after get no sympathy for me. Buck up and welcome to reality. This recession's full of it.
Re:Justifying piracy (Score:5, Insightful)
Re:Justifying piracy (Score:5, Funny)
Re:Justifying piracy (Score:5, Interesting)
This is the first troll post that I can sympathize with. We all know it; we are breaking the law when we download music/videos. It's just that, unlike mugging someone in the street, no one really loses out. Maybe the music execs will have to buy fewer wraps of coke. Is that such a bad thing? I don't think so.
In the end, the only winners are lawyers.
Re:Justifying piracy (Score:5, Insightful)
I know that not paying someone for their work is wrong
You don't pay people for there work every day. There are thousands of artists out there right now whose work you are not paying for. Artists you've never heard of.
Why does it make a difference if you see their work or not? It doesn't affect them.
Re:Justifying piracy (Score:5, Insightful)
Based on this decision, my music folder is worth almost $5 billion. How come I have to work for a living, then?
Oh, right, that's not real money, and copyright infringement does not mean actual loss of money for the RIAA. Not to mention I live in Hungary, where fair use covers this. To the guy that got slapped with the $2M, however, is fucked.
Now, who's the bad guy again?
Re:Justifying piracy (Score:4, Insightful)
Because it's a valid perspective? I don't agree with it -- John Carmack already gets paid enough for his work to keep doing it (even with piracy possibly sapping the numbers), and for being accused of downloading a couple CDs worth of songs this woman's now on the hook for enough money to record, publish and promote two platinum-level albums -- but if you're trying to figure out the jury this perspective is probably where you should start.
Re:Justifying piracy (Score:5, Insightful)
But it's NOT a valid perspective. I know of nobody here that says people shouldn't get paid to perform work. But that's the troll/flame that he keeps on pimping until somebody actually starts believing it. He's full of it. It is those who advocate strong copyright who want to sit on their butts and collect the rent. They are the true pirates who use guns to lock down ideas. We must not allow this to continue.
Comment removed (Score:5, Informative)
Re:Justifying piracy (Score:5, Interesting)
If you feel that you have no voice in the government, the way to change the government is not through anonymous piracy. Engage in civil protest or violent revolution -- whatever works for you. But anonymous leaching, and I mean that not only in the p2p sense, but also in the "how is an artist supposed to make a living if everything can be had free" sense, isn't going to accomplish anything. Rather, it shows "file sharers" to be "what can I get for nothing" freeloaders rather than people interested in changing our corrupt government.
As for the issues in this case, the damages are clearly excessive. Although I do believe that Jamie did the deed so to speak, and that the regular retail cost of the songs is not enough (*), $2m is more than she'll make in a lifetime. Damages should be something like 20-30% of her income for a year. That would be substantial without being ridiculously high.
(*) If maximum damages = price of song, there is no incentive, aside from one's own moral compass, to pay for content.
Re:Justifying piracy (Score:5, Insightful)
If you feel that you have no voice in the government, the way to change the government is not through anonymous piracy. Engage in civil protest or violent revolution -- whatever works for you.
I'm starting to be sick of this idea you and others repeat over and over again.
If I feel I have no voice in the government, I will do exactly as I please, just like everyone else.
For example, I can decide that I'll only follow laws to the extent I can be forced to. Thus, I might break any and all unenforceable laws, just for the sake of it.
And I don't really care if it's "the way" as you say.
Creating a government that doesn't represent the people can obviously be great for its members and the people powerful enough to manipulate them (and so, it).
Expecting everyone else to follow the rules because it's the right thing to do...
Re:Justifying piracy (Score:4, Insightful)
Re:Justifying piracy (Score:5, Insightful)
As a small voice of support for your position, this is more or less how Prohibition got repealed. The cumulative affect of a very significant portion of the population simply ignoring the law until it could no longer stand. I'm not saying it can or will work for copyright, there were additional factors in Prohibition relating to the public health risks posed both by the smugglers and dangerously unregulated booze production that just don't exist in this case, but it is an analogous if not identical situation.
Having said that, I definitely feel that most of the parties involved in this dispute are being unreasonable. Content creators (or rather the huge companies that "represent" them) are clearly overreaching what they can reasonably claim both in terms of length of copyright and what rights are granted. The Government is clearly giving more weight to the rights of content companies than to rights of consumers, which is both unfair and a violation of its mandate. Many if not most of the "information wants to be free" crowd seem perfectly content to drive the people who create content completely out of business. This is doubly foolish since it both hurts the content creators, in the end, the consumers themselves. Rather like "fishing out" an area, many of these voracious consumers of content may find that should they ever succeed in in their quest they will have no content to consume.
It seems to me that while the concept of copyright is sound, its terms and duration are currently excessive. Unfortunately it is extremely difficult to "unmake" regulation. I am not really sure what the answer is.
Re:Justifying piracy (Score:5, Informative)
Actually, technically speaking, Steamboat Willie is in the public domain due to errors in how they did the nameplates. The copyright act of 1909 was very stringent in that regard.
Re:Justifying piracy (Score:5, Insightful)
The US copyright system, which is being forced down the throats of more and more nations, was a CONTRACT, nothing more. In return for a LIMITED monopoly in the form of government imposed copyrights We, The People got in return a richer and more diverse Public Domain for all of us.
Somehow this is what seems to get lost in a lot of copyright discussions. Not to give a complete history of the copyright, but there was a time when we had no copyright, and people wrote books, painted, composed music, and performed it because they wanted to, and often they found ways to get paid for their expertise and talent. One common way was to do work that someone else wanted them to do on commission, whether they wanted to do it or not. Though many artists wished to have control over their own work, it was just silly to expect as much. Another artist would copy your painting, or another author might rewrite your story, and that's how culture developed.
And basically all that was fine until the the printing press arrived, and book publishers started making a fortune from printing books, neglecting to pay the authors. People recognized this as unfair and discouraging to those who might want to write a book, so they invented the idea of the copyright. The idea wasn't to ensure profitability for publishers by forcing readers to pay for the right to read a book, nor was it meant to allow authors to control the destiny of their work, but it was solely a way to help authors get a share of the huge profits publishers were already making.
Flash forward to the present, and now copyrights are being manipulated in such a way as to have almost the opposite effect that was intended. Copyrights are being used to guarantee profits for the publishers, while the artists are being denied their fair share of the profits. If anything, the Internet should allow us to go back to pre-copyright days, since distribution doesn't really require a "publisher" in the same way.
Now I'm not saying we actually should drop copyrights, but only that convention has twisted the purpose of the copyright and given bad expectations about what copyrights will accomplish. Now we think that people own, buy, and sell ideas. Further, that if you own an idea, you should retain ownership and complete control forever. That's just an unsustainable situation.
Re:Justifying piracy (Score:5, Insightful)
--Most of us here are for fair copyright--
Or even -minimum- copyright. The purpose of having it at all, is to encourage the creation of works. So it follows that the length of protesction, and the strength of protection should be the minimum required to stimulate such creation.
What length that is, and what strength that is, is offcourse debatable, but I haven't seen any coherent argument that todays rules aren't MASSIVE giveaways.
Does -anyone- honestly believe that there'd be less music released if copyright was for 28 years (the original terms in USA) rather than life-of-author plus 70 years ? Would *any* musicians go "Screw that, if I can only profit for the next 28 years, I'm not gonna bother!" -- does that sound plausible to you ?
Does anyone write computer-games, expecting to earn significantly from them for a period LONGER than 28 years ? I seriously doubt it, and I don't think it'll be easy to find anyone who -does- believe that.
In economic terms, 28 years is (more than!) two thirds of forever anyway. If you assume 4% deprecation pro year (i.e. that given a choice between $100 now or $104 one year from now, you consider both offers similarily attractive) then a fixed income-stream has 70% of it's value in the first 28 years.
And -that- is assuming the income-stream is fixed, which is HIGHLY unrealistic, to the contrary, I would guess that most copyrighted works have 90% of their sales in the first 5 years after release. For some classes of works, such as computergames even this is understating it, I bet most computer-games have 95% of their dollar-value in sales inside of the first 3 years after release.
Re:Justifying piracy (Score:5, Insightful)
Because it's a valid perspective?
You can say that again. Seriously, $2M for 24 files? WHAT THE FUCK?
Re:Justifying piracy (Score:4, Interesting)
What are the laws for this situation? If I had a diamond/gold bars potentially worth 2 million dollar, and I just gave it away to an employee for just a few dollars, will the USA govt. excuse the employee from paying income/gift tax for the full potential value of the item? Because this seems to be exactly the case with RIAA now. Each of their files are now potentially worth $80000, correct? And just because RIAA's founding companies gift it away to the public at a much lesser price, should be of no concern to the USA government in terms of tax.
If the IRS and government officials ignore this tax fraud, are they not guilty of cheating and defrauding the american public, since they are letting RIAA get away with billions of dollars in tax fraud, while expecting only the poorer american public to pay their taxes?
Why is RIAA being allowed to get away with two different evaluations of its income/wealth in terms of tax? Shouldn't this unpaid tax money be collected from them and used to create new jobs for American people? They are cheating the american public of valuable tax money, especially in this time of global recession. It is the duty of the government to ensure that corporations are taxed *at least* as much as a common man is.
Re:Justifying piracy (Score:5, Insightful)
No, wrong. Each song is worth like $2 with statutory damages of HOLY FUCK BANKRUPTCY.
I can't say I agree with the size of the damages, but that's no excuse to completely misrepresent the issue.
Re:Justifying piracy (Score:5, Informative)
What are the laws for this situation?
For this situation, or for the one you describe?
For this situation, nothing, because no one (but you) has said their songs are worth $80000 in value.
All the jury said was each infringement is worth $80000 in damages.
It's a fine, not a repayment.
Re:Justifying piracy (Score:5, Informative)
Re:Justifying piracy (Score:5, Funny)
Trouble in the air (Score:5, Insightful)
You know, taking every last thing a person has leaves you with someone who has nothing to lose. One of these days the RIAA's laywers are going to win a punitive suit against the wrong person, and I just hope that I am nowhere near the building the lawfirm is in when it happens.
Re:Justifying piracy (Score:4, Insightful)
Nothing "valid" about it. He is lying when he says that we think people shouldn't get paid for working. What I demand is that they actually work for their money the same way I do. I have no divine providence over my finished work, nor should anybody else.
Re:Justifying piracy (Score:5, Insightful)
One: Jealousy is not a valid reason why copyright is wrong.
Two: If you wire up someone's house, that person pays for all the materials, labor, and profit it takes for you to have your own house and food. $1 will barely buy a single outlet, let alone the box, wire, circuit breakers, or labor to install it. So a person who lets people have songs for $1 but keeps copyright, is hoping to put food on the table through volume sales. If it was required that the first sale cover all costs and some profit -- albums might cost $100,000. Everyone else gets the song free after the first sale, but if nobody bought the album in the first place, nobody would have the song at all. That's part of the social contract behind copyright -- the creator can let people have access to the work at an affordable price, but keeps enough control over the work that he/she can try to sell it to many people. That benefits society because instead of waiting for a patron to pay for the whole enchilada, we all get the work for a modest price while the artist takes the risk making or losing money on his/her efforts.
Three: A smart electrician (gets paid upfront) has almost no risk -- the job is simple profit. For an artist, there is an enormous risk of getting nothing after working very hard. If you don't like that some artists in essence win the lottery, then ensure that all artists get to earn a living wage. Society gets a lot of low cost high quality art from artists who do not win the publicity lottery, so it might actually cost more if artists got paid like electricians.
Re: (Score:3, Insightful)
There is no "realistic" value for lost sales here. Because no sales were lost. Except maybe to the negative publicity from this. In fact more sales were probably gained by sharing. The whole thing is completely bogus. And it's little more than a racket to protect the middlemen and gatekeepers. We should be hammering them on the head with the RICO statutes.
unreasonableness? (Score:5, Funny)
$1.92M for 24 songs is unreasonable? What makes you say that?
Re:unreasonableness? (Score:5, Interesting)
According to this article [wikipedia.org], 5 billion songs were shared in 2006. That means that the music industry, if it weren't for those pesky pirates, would be raking in $400 trillion dollars more than they are right now.
I find that unlikely.
Re:unreasonableness? (Score:5, Funny)
Quick! Call the IRS. We've just solved the budget crisis!
What are the lawyers thinking? (Score:4, Interesting)
I'm starting to believe this lady was paid off by the RIAA to set an example by letting it go through the justice system with a bad defense and keep pushing their luck for the amounts awarded and setting precedents. In the back room she just gets paid everything back in double.
Really, how difficult is it to punch through the RIAA's statements? The average helpdesk technician would punch holes in their statements if called as an 'expert witness'. I'm really starting to doubt the value of lawyers in these type of cases. The Chewbacca defense might even stand.
Re:What are the lawyers thinking? (Score:5, Funny)
haha.. never assign to malice that which can be adequately explained by incompetence.
Re:What are the lawyers thinking? (Score:4, Insightful)
Re:What are the lawyers thinking? (Score:5, Interesting)
The lawyers, no matter how good, were up against one major obstacle during both trials. And that obstacle is that the evidence overwhelmingly said she was guilty of what they were accusing her of.
I don't like the RIAA either. And I also think this award is even more silly than the last one. But that makes two juries now that have found this twit guilty. Its time for her to fess up, quit trying to play the victim, and settle for a few thousand dollars.
And if the intarwebs community wants to be taken seriously in their fight for reasonable copyright laws, they need to find a better case to rally around. One where the accused person really is innocent. Continuing to support Jammie Thomas-Whateveritis only makes us look like stupid pirates.
Re: (Score:3, Insightful)
Continuing to support Jammie Thomas-Whateveritis only makes us look like stupid pirates.
Maybe some people are just stupid pirates?
Some people's attitudes going into it ("I don't care about law, it doesn't make sense to me so I'm going to download anything and everything I want. In fact, I'll download more than I can ever watch in my lifetime just because I can!") appear to come from a stupid pirate mentality...
Not to say I agree with RIAA, etc., but I don't think I can agree with the other side of stupidity, either. :)
Re:What are the lawyers thinking? (Score:5, Interesting)
Chapter 13 will likely take care of that, if she's eligible.
What those who thought the outcome would be different miss is the authority bias of juries and judges. Most people, and particularly most people who end up on juries, have a bias towards believing and favoring whoever appears to be an authority over an individual who appears to be opposing them. The RIAA looks like authority; thus, they are favored.
Re:What are the lawyers thinking? (Score:5, Interesting)
I'm starting to believe this lady was paid off by the RIAA to set an example by letting it go through the justice system with a bad defense and keep pushing their luck for the amounts awarded and setting precedents. In the back room she just gets paid everything back in double. Really, how difficult is it to punch through the RIAA's statements? The average helpdesk technician would punch holes in their statements if called as an 'expert witness'. I'm really starting to doubt the value of lawyers in these type of cases. The Chewbacca defense might even stand.
While it's difficult to second guess the decisions a trial lawyer makes, it is hard for me to understand why defendant's lawyers gave the plaintiffs a free pass on the MediaSentry/Jacobson nonsense, and didn't even call their own expert. It is likewise difficult to understand why the jurors weren't instructed as to what the plaintiffs had to prove in order to establish a "distribution", or why it was assumed that they were entitled to recover statutory damages (as opposed to actual damages) at all, there having been no questions or instructions relating to the essential elements of that.
But I should point out that this outsized verdict (a) makes it inevitable that the verdict will be set aside, and (b) cripples the RIAA's attempts to justify their statutory damages theory as against constitutional attack. Had the jury awarded $50,000 or $60,000 the RIAA would have more of a chance to hold on to the verdict, and would have had a less embarrassing precedent to try to defend in other cases.
Re:What are the lawyers thinking? (Score:5, Insightful)
Probably because the realization that the expert witness (I read the written testimony, and I know Yongdae Kim as a colleague: he is an excellent and honest researcher and professor) can't really contribute to the defense.
This is a civil trial, in terms of probabilities. The probability of misidentification of the computer goes way down when you remove the wireless, password protect the computer, and go from there.
The problem is, Media Sentry's evidence is pretty compelling: Identify her IP, identify her commonly used username, identify the songs, and she wasn't offering up a defense of being a poisoner/spreading bogus files.
As much as you'd like to believe it is nonsense, an honest expert witness for the defense would be forced to acknowledge all of this.
Yongdae Kim's written testimony mostly covered cases which could not have occured (no wireless, etc) and which were specifically ruled out by the judge for being irrelevant possibilities, or which would be exceedingly unlikely (a trojan on the system soley for KaZaA, IP address hijacking which, if Ms Thomas's computer was on, might result in RST storms from unexpected data, dropping the hijacker, by a hijacker who anyway was trying specifically to frame Ms Thomas), and on the stand he'd have to say so.
This is likely why Dr Kim was not put on the stand: during mock cross examination, Ms Thomas's laywer realized just how damaging Dr Kim's testimony would be in the hands of a plantiff's attorney.
Re: (Score:3, Interesting)
Considering their legal performance so far, I'm far from convinced they won't fumble in the supreme court too.
I'm not entirely convinced it was a fumble. Why would defense make such a point of asking whether the statutory maximum of $15,000 (I think it was) per song? It's as if he wanted the completely egregious award so he could push for an appeal.
Re: (Score:3, Insightful)
Why would defense make such a point of asking whether the statutory maximum of $150,00[0] (I think it was) per song?
I too was wondering why the defense counsel referred to big numbers in the trial, referring to $3.6 million; usually that would be the plaintiffs' game, unless the judge -- as judges often do -- forbid the mention of such things.
Re: Shift in Counsel (Score:5, Interesting)
Yes I was "hoping for the best". And for all I know defendant's counsel did a great job. They certainly worked hard, and demonstrated intelligence and enthusiasm, at least in the earlier stages.
I'm not in a position to criticize her counsel because I don't know what went on, and I don't know what pressures they were under.
All I know is that, as an outside observer, I was disappointed at the absence of a number of things I would have expected to see. Whose fault that is, I don't know.
What's next is:
1.Defendant moves to set aside verdict and for new trial.
2.Motion granted, new trial scheduled.
3.New trial: defendant wins, plaintiffs appeal.
I would also not be surprised to see the RIAA aggressively seek to enter into a confidential settlement with her, even to the point of paying her attorneys fees, to avoid this getting set aside.
Those of us making the constitutional argument on excessiveness of the RIAA's statutory damages theory will be helped by this verdict.
Re:What are the lawyers thinking? (Score:5, Informative)
because the punishment doesn't even come close to the crime.
There's that word again. There was no crime. There is no crime.
Re:What are the lawyers thinking? (Score:5, Informative)
No-one is this dumb, but in the interest of education, it's called a tort [wikipedia.org].
Re:What are the lawyers thinking? (Score:4, Informative)
umm.. no. In common spoken English it's a tort.. maybe you should learn the language.
People say "I'm being sued" .. to which you may reply "what's the tort?" or just "what for?" but if you were to reply "what crime?" they would look at you funny and wonder how you could have come to the conclusion that they had committed a crime.
Throwing on purpose (Score:5, Interesting)
That, or massive incompetence of her defense.
Re:Throwing on purpose (Score:4, Interesting)
Re:Throwing on purpose (Score:5, Informative)
It isn't stealing music.
The punishment for stealing music worth less than $250 retail is a class 1 misdemeanor, 6 months in jail and/or a $2500 fine.
This is copyright infringement, and it is a whole different beast than stealing.
To test this, try stealing music you've already purchased - it's impossible. But you can sure infringe on the copyright on music you have already purchased!
Let's think about this (Score:5, Insightful)
They have just judged that she should pay 1/3 more than a typical American will make in their life.
What's wrong with this picture? Clearly she would have never spent that much on music...
Something has gone seriously wrong when... (Score:5, Interesting)
She made it easy for them (Score:5, Interesting)
While it seems absolutely insane that an individual can be sued for so much for something so inconsequential, I have to say that she really made it easy to side with the RIAA.
If it weren't for her destruction of evidence and blatant perjury, the courts might be likely to have some sympathy for her. Instead, she insulted the courts in a way that made Hans Reiser look well grounded. It was obvious to anyone following the trial that she was the one sharing the files, and while she didn't need to volunteer that information necessarily, the deliberate obfuscation (returned hard drives, etc.) put her on the wrong side of the line.
I think this is a terrible precedent that was set, but really, I'm not surprised. The RIAA, of course, will never see their money, but then Jammie Thomas will never own a material possession again, either, so I guess it's even.
Re:She made it easy for them (Score:5, Interesting)
No, she can't. As I understand it, the amount is too large for her to be eligible for Chapter 13 bankruptcy. Further, this type of civil damages generally cannot be waived through Chapter 7, but even if it could be, a Chapter 7 would mean liquidating her assets. She would literally walk away with nothing but the clothes on her back.
Short of somehow convincing a judge to allow her to dismiss this debt by filing Chapter 7, her only option, AFAIK, is to let the RIAA garnish her wages to the maximum extent allowable by law (25% of her income) for the rest of her life, then take all of her assets upon her death. In effect, she would be reduced to near indentured servitude by this verdict. We might as well have debtors' prisons. There's really little difference when faced with a civil judgment of this magnitude.
A Little Perspective (Score:5, Informative)
Assuming a price of $15 per album, the defendant could have stolen 128,000 CDs and resold them and it would have been less damage than what they are collecting for two dozen songs.
$2M? (Score:5, Interesting)
$2M for 24 songs? Sounds like jury tampering.
$80,000 is awesome (Score:5, Funny)
So all I have to do is, twice a year write an awful song, then get someone to put it up on a torrent and that's worth $160,000 right? That's a freaking awesome alternate reality! I can live like a king for playing guitar badly a couple of times a year!
By that kind of accounting, I'm worth billions. Boat salesmen will knock. Bikini clad women will swoon. I can have any car I like!
Tell the truth now, you're just trying to outdo the British, aren't you? They only used to send their convicts to Australia for a dozen years for stealing a loaf of bread. You'd ruin people's whole lives over copying a song.
right verdict, wrong result (Score:5, Insightful)
As a lawyer, I'm not surprised by this outcome. I admit to not closely following this case. But from what I've read, her defense arguments were really weak. Oddly enough, Ars Technica says it best:
I really can't emphasize that last part enough. Winning a civil trial isn't about being "right" in any objective sense. It's about convincing normal people. If your explanations (technical or otherwise) go over their heads or seem implausible, you will lose. If the jury senses any sort of deception or dishonesty, you will lose. Sometimes if they just plain don't like you, you will lose. Clearly erroneous results can get overturned on appeal, but may cases are close enough calls that an appeal won't help.
On the facts above, I'd have found her liable too. It was clearly her computer with a username she commonly used. That creates a reasonable inference that she used Kazaa on it. While there are many ways for her to rebut this presumption, the flimsy conjecture offered doesn't cut it. Especially if she seemed less than forthright.
That said, the damages award is completely insane. I'd have given nominal damages, enough to hurt but not crippling (on the order of $100-500 per song - yes, below the statutory minimum of $750). It will get reduced on appeal, but not to that level. Maybe something on the order of a few thousand per song. My guess is that the jury really disliked her dishonesty and smacked her for it with huge damages.
I won't criticize her lawyers since I don't know all the details. Maybe these were the best arguments they had. Maybe their client chose to use this defense against their recommendations. Undoubtedly the news reports distorted the story. Whatever the case, the defense was really weak. This verdict was predictable.
Re: (Score:3, Interesting)
http://slashdot.org/comments.pl?sid=1272143&cid=28363955 [slashdot.org]
Except that millions of people did not download from her. Most likely, two people downloaded off her and uploaded it themselves (she should not be responsible for these acts, which those people themselves are responsible for)
Now, let's do the math.
Assumptions:
- 1 download = 1 lost sale
- she uploaded 24 songs, each one worth 99 cents
- 2 people downloaded ea
Absolutely Nuts (Score:5, Insightful)
I, for one, cannot wait to see the entire music industry implode in favor of artists who record at home with the low-priced equipment available, and who market through cooperatives over the Internet. Let Big Music Die Now Please!
Eighth Amendment - One Line (Score:3, Insightful)
Re:Eighth Amendment - One Line (Score:5, Interesting)
If what you said was true, then Ray would have been crowing about it, but he isn't.
Actually, if you look at the amicus briefs I filed in SONY v. Cloud and SONY v. Tenenbaum, you will see that the only argument I made was the 5th amendment argument, leaving the 8th amendment argument to others to make.
But one of the first reactions I had when I realized that $1.92 million wasn't a typo, was that perhaps I had made a mistake, and should have made the 8th amendment argument after all.
Well Done! (Score:5, Funny)
Well done, RIAA, and a hearty thank you to your minions at MediaSentry.
I now feel that I am REALLY getting my monies worth from my Internet connection. Just downloaded 1,000 songs in a collection "Best Rock Songs Ever".
Used Bittorrent, so I figure that, at 80,000 per song, I just copped 80 MILLION DOLLARS last month!That theft took just 5% of my transfer cap, so I *could* go for 1.6 BILLION if I really got cracking!
Out of time (Score:5, Funny)
Re:Why oh why didn't she settle? (Score:5, Insightful)
The damages are enormous, but the legal fees that the RIAA has amassed need to be recouped in some fashion.
The expenses can be recouped in the following manner: the RIAA pays the legal expenses they incurred. If we get into a fender bender, and I sue you for damages, that's okay. If I spend 3 million on my legal team over it, that's me spending money foolishly. You shouldn't have to pay for it.
I did say should... applying logic or "should" statements to legal proceedings is it's own type of illogical, I know...
Everyone likes to dogpile on the RIAA, but they are only defending the rights that the law has provided them.
To absurd degrees considering how trivial an offense it was. That's what makes them bad guys.
Moral of the story: don't break the law, and if you do, try to avoid lawyers, they are very expensive. It was foolish to reject the initial $5000 settlement. Any lawyer could have looked at the facts of the case and come to the conclusion that she didn't have sufficient evidence to prove her innocence, which is very important in civil trials.
I wouldn't call standing up to a bully "foolish" exactly.
Oh, and you got the moral wrong (Score:3, Insightful)
> Moral of the story: don't break the law
In my eyes the moral is: don't let large corporations twist the law into an distorted abomination....
The most ironic part of this whole mess is that the jury system was designed to exactly defend against this kind of abuse of the legal system, but because big government and big corporations have gotten so good at controlling the public's behavior, it is actually working out in reverse....
Re:Come on people (Score:5, Insightful)
She lied about her hard drive, thinking it would get her off. I don't like the RIAA, but she deserved this.
Um, no. For lying under oath she deserves to face perjury charges, not have her punishment be magnified 1000 times.
Re: (Score:3, Insightful)
Re:Can they do anything else (Score:5, Interesting)
Oh trust me, I have the highest contempt for the courts right now.
This verdict will be the cause of derision internationally, and will provide endless fodder for those who are fond of laughing in their beer at the USA. Unfortunately, they will have a pretty irrefutable point.
Re:Can they do anything else (Score:5, Insightful)
internationally, this success creates a major problem for the RIAA's efforts to get draconian IP laws passed by foreign governments.
There is no doubt in my mind that this is very damaging to the RIAA. That's another example of the point I've been making that they have the dumbest lawyers working for them. They don't know when to stop being greedy; they could easily have asked for a lesser amount, but chose to ask for anything up to the maximum. Now look how much good they have done for their clients.
Re:Seriously? (Score:4, Insightful)
I don't much care for the RIAA, but everything brought in as evidence was against her, and she couldn't come up with shit-all that might even bring a shred of reasonable doubt (let alone the much greater amount that they'd need to win a civil case).
If you actually think she's innocent, you're out of your mind. She did it. Is the punishment just? Hell, no. But I don't see how any intellectually honest person can take her defense as anything but the most pathetic thing around.
Re:Seriously? (Score:5, Insightful)
Where are they finding these jurors at? Where is the constitution on this one? I just recently served as a juror and I was told to look at the evidence and testimony presented then come to a conclusion based on this without bias. How could anyone come to a verdict like this given the evidence from both sides? Do these people not realize at any time they could be a victim just as the defendant, open Wi-Fi anyone? This has to be a blatant violation of her 8th Amendment rights, this is wrong on so many levels it makes my head hurt.
On the bright side, sometimes when something so stupid happens, it forces a change in the law. And certainly, this verdict (a) will itself be set aside, and (b) gives added ammunition to the lawyers like myself who are arguing that the RIAA's statutory damages theory is unconstitutional.
Re:Seriously? (Score:4, Informative)
I read it as a prediction, based on certain things happening, which didn't happen.
Thing is, I made no such prediction. The GP is fond of attributing things to me which I never said.
What I predicted was that, based upon defendant's lawyers having filed the appropriate evidentiary objections to the MediaSentry printouts, the trial should be "interesting". I was wrong about that prediction, because the defense lawyers did not "voir dire" MediaSentry or Doug Jacobson, did not object to the admissibility of their testimony, and did not rigorously cross examine them. So it was not "interesting" at all; the RIAA was given the free pass I thought it was going to be denied on the technical. I made a prediction that it would be "interesting", and my prediction turned out to be wrong.
But I made no prediction whatsoever about winning or losing.
Re:Evolution at work (Score:4, Informative)
It's always the stupid and careless pirates that get caught in the harbor. It's natural evolution at work, a culling of the weak and unfit from the pirate fleet. Feel sad if you must for Thomas, but also feel comfort that evolution has done its job: the pirates that remain are the cream of the crop. They will bear an even more naturally skilled crew to man the next fleet of sloops and schooners.
While I don't agree with (a) your Social Darwinism theory, (b) your use of the word "pirates" as synonymous with copyright infringement, or (c) your belief that she did in fact do the file sharing, you do bring up a very interesting and perplexing point about these RIAA v. End User cases. The cases started being filed in 2003. ALL 40,000 of them are based on the Gnutella protocol (e.g. Limewire) or the FastTrack protocol (e.g. Kazaa). Meanwhile all of the sophisticated, high volume, 'swashbuckling', file sharers switched to BitTorrent long ago, yet the RIAA hasn't brought a SINGLE case based on BitTorrent. So the litigation scheme was almost by design calculated to ensnare 'low hanging fruit', the people at the low end of the file sharing totem pole, and to ensnare many innocents, since there is obviously no basis for assuming that the person who pays the phone bill is a copyright infringer.
Re:should they have JUST talked about money? (Score:5, Informative)
I would also be interested to know if that $1.9 million award included legal fees as well as compensatory and pun[i]tive damages
1. No it does not include legal fees.
2. It does not include any compensatory damages; the compensatory damages would have been approximately $8.
3. The damages are "statutory" damages which are similar to "punitive" damages.