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Jammie Thomas To Appeal $1.9 Million RIAA Verdict

Soulskill posted more than 5 years ago | from the if-at-first-you-don't-succeed dept.

The Courts 204

CNet reports that the lawyers representing Jammie Thomas-Rasset have confirmed she will be fighting the $1.9 million verdict handed down in her case against the RIAA. "The Recording Industry Association of America said on Monday that it had made a phone call to Sibley and law partner Kiwi Camara last week to ask whether Thomas-Rasset wanted to discuss a settlement. An RIAA representative said that its lawyers were told by Sibley that Thomas-Rasset wasn't interested in discussing any deal that required her to admit guilt or pay any money. ... 'She's not interested in settling,' attorney Joe Sibley said in a brief phone interview. 'She wants to take the issue up on appeal on the constitutionality of the damages. That's one of the main arguments — that the damages are disproportionate to any actual harm.'"

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Exxon Valdez, Anybody (4, Interesting)

MarkvW (1037596) | more than 5 years ago | (#28580107)

How does Jammie Thomas stack up against the EXXON Valdez case? EXXON got its punitive damages reduced. Why won't the same arguments work for Ms. Thomas? Any lawyers with opinions out there?

Re:Exxon Valdez, Anybody (-1, Offtopic)

Anonymous Coward | more than 5 years ago | (#28580423)

I love black people from Africa. They come to the USA and they say that they can't stand American blacks because they're self-destructive, racist, maladaptive pieces of shit for the most part though there are some really great exceptions. It's not race or color of skin because "black people" are NOT niggers. It's cultural because American black people ARE a bunch of niggers. Get that chip off your shoulder, quit glorifying violence and drugs and the abuse of women, get a better plan for your life other than being a thug with a shitty attitude, and quit thinking that getting an education is "too white" or anything other than "smart". That's how American blacks can stop being a bunch of niggers. While you're at it, stop listening to these clowns like Jesse Jackson and Al Sharpton and go back to the words of good worthy men like Dr. Martin Luther King Jr.

Re:Exxon Valdez, Anybody (0)

Anonymous Coward | more than 5 years ago | (#28580435)

Correct me if I'm wrong, but I don't think they've actually paid out anything yet apart from the cost of the cleanup

Re:Exxon Valdez, Anybody (0)

Anonymous Coward | more than 5 years ago | (#28580809)

So she should be made to pay the cost of cleaning any copyright infringing mp3s off her hard drive? Great idea.

Re:Exxon Valdez, Anybody (4, Insightful)

moon3 (1530265) | more than 5 years ago | (#28580451)

Can we say bad analogy? I see no parallel between those two cases except that Exxon and Thomas are both being defendants.

Re:Exxon Valdez, Anybody (2, Interesting)

causality (777677) | more than 5 years ago | (#28580527)

Can we say bad analogy? I see no parallel between those two cases except that Exxon and Thomas are both being defendants.

I don't know for sure what the GP was saying. However, rather than balk at this, I will apply just a tiny bit of common sense and see where that takes me.

Assuming that punitive damages were awarded agains Exxon and that Exxon argued that those damages were excessive and therefore unconstitutional, perhaps Thomas could make a similar argument. I am "assuming" that because there is no other way that the GP's statement could make any sense, therefore it must obviously be what he meant.

Having established the strong likelihood of that, the question now is whether Thomas is some kind of special case that can't use those arguments.

Re:Exxon Valdez, Anybody (1)

YenTheFirst (1056960) | more than 5 years ago | (#28580923)

http://en.wikipedia.org/wiki/Exxon_Shipping_Co._v._Baker

basically: An Exxon oil tanker grounded, spilling oil and causing TONS of damage. Punitive damages were set at $2.5 billion, but reduced by quite a bit, to $500 million.

The argument presented there was that punitive damages should be at least in the same ballpark as compensatory damages. This is the same argument many people believe apply to the Thomas case, since if her punishment was proportional to actual damages caused, it would be significantly less.

Incidentally, there's a reason that there's such a high cap on punitive damages in infringement cases. If that weren't the case, large companies could attempt for-profit infringement, and even if they did get caught and had to pay damages based on actual damage, those fines would be largely covered by the profit made infringing!

So, without excessive punitive fines to make up for the ease of copying, in theory, willful for-profit copyright fraud would be much more attractive, because of it's positive expected value.

Re:Exxon Valdez, Anybody (4, Insightful)

causality (777677) | more than 5 years ago | (#28581187)

Incidentally, there's a reason that there's such a high cap on punitive damages in infringement cases. If that weren't the case, large companies could attempt for-profit infringement, and even if they did get caught and had to pay damages based on actual damage, those fines would be largely covered by the profit made infringing!

True, though that's why this is unjust. It's unjust because there is a staggering difference between commercial for-profit infringement and what Thomas has done. Measures intended to deter the former should never be used against the latter. It is my belief that it would be better for the RIAA and all of its member companies to go bankrupt than for our legal system to be perverted and used as a tool of revenge in this way.

Incidentally, since when did our justice system start caring about making sure that commercial lawbreaking is not profitable? They certainly don't seem to care about this for antitrust cases...

Re:Exxon Valdez, Anybody (2, Interesting)

mrchaotica (681592) | more than 5 years ago | (#28581195)

Incidentally, there's a reason that there's such a high cap on punitive damages in infringement cases. If that weren't the case, large companies could attempt for-profit infringement, and even if they did get caught and had to pay damages based on actual damage, those fines would be largely covered by the profit made infringing!

Wait, that doesn't make sense: the profit should be used up covering the fines for the compensatory damages (by definition!); punitive damages, even if proportional to the compensatory ones, would be over and above that.

Re:Exxon Valdez, Anybody (0)

Anonymous Coward | more than 5 years ago | (#28581235)

Well, according to my reading of the Supreme Court opinion, the punitive damages were limited by Maritime Law. That is not applicable to the Jammie Thomas case at all, so it's not going to apply. Even if the damages were punitive. Which again, doesn't apply to Jammie Thomas.

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&navby=case&vol=000&invol=07-219 read the opinion yourself if you want.

Re:Exxon Valdez, Anybody (1)

Hurricane78 (562437) | more than 5 years ago | (#28580647)

Because EXXON basically IS the government? (You know, revolving doors and such.)

Re:Exxon Valdez, Anybody (3, Insightful)

harlows_monkeys (106428) | more than 5 years ago | (#28581129)

How does Jammie Thomas stack up against the EXXON Valdez case?

If Exxon had been offered a chance to settle for $5000 at the start, they would have taken it.

if Exxon had been offered a chance to settle for $5000 after their first court loss, they would have taken it.

Hence, you can't really compare Exxon to Thomas, as Exxon is not stupid.

EXXON got its punitive damages reduced.

If Thomas gets lucky, and the statutory damages are reduced from $80k per song to the statutory minimum of $750 per song, it will still come out to more than the RIAA has repeatedly offered to let her settle for.

I hope she gets a second opinion (5, Funny)

Anonymous Coward | more than 5 years ago | (#28580113)

Given the track record of her lawyers, she could end up with a life sentence.

Re:I hope she gets a second opinion (1)

Cylix (55374) | more than 5 years ago | (#28580327)

I was thinking something similar, but then again maybe their best bet was to get the maximum insanity.

Without contrast some things are difficult to perceive. In this scenario, these damages are quite a bit more then the original figure.

Though I'm not quite banking on it, but perhaps they wanted things to leave reality and enter the realm of complete silliness.

Re:I hope she gets a second opinion (1)

Jurily (900488) | more than 5 years ago | (#28580933)

Without contrast some things are difficult to perceive. In this scenario, these damages are quite a bit more then the original figure.

Quite a bit? $80 thousand per mp3. She could've produced a new album for each file from that money.

Re:I hope she gets a second opinion (1)

Frosty Piss (770223) | more than 5 years ago | (#28580331)

Yes, indeed funny.

But I think this was the plan all along, to determine what the actual realistic "damages" for this type of transgression is. Something perhaps in the "reasonable" range.

It was impossible to cause that much damage (4, Interesting)

slashqwerty (1099091) | more than 5 years ago | (#28580631)

If one does the math it is easy to see it was impossible for her to have caused $1.92 million damage. The offense occurred in 2004. Back then a typical cable modem had an upload speed of 256kbps shared with the neighbors. A typical song costs $0.99 on iTunes. An average MP3 is about 3MB. To upload 1.92 million songs would take 2,184.5 days (almost six years) with no protocol overhead, no downtime (infinite nines!), nobody using bandwidth to search for songs, no neighbors using any of the bandwidth, and no one in her house using the internet for anything but uploading files. Kazaa had only existed for three years at the time. She would have had to start before even Napster existed.

We already know the plantiffs were unsuccessful in several of their download attempts (this was brought up at trial). So it seems many attempts to upload files failed which means it would have taken even longer to cause $1.92 million in damages.

Oh yeah, also note today is Independence Day in the U.S. Four of the companies that sued her are headquartered outside the U.S. The one U.S. company has a CEO from Canada.

Re:It was impossible to cause that much damage (2, Insightful)

Anonymous Coward | more than 5 years ago | (#28580959)

Direct damages, your calculations are probably correct. But the 100 people she gave songs to, also gave them to 100 people, exponentially.

Personally, I'd have a huge garage sale, transfer all my money off shore, then relocate to a country (indirectly of course) that isn't extradition-friendly to the USA, but still has a nice lifestyle.

Then I'd photograph myself giving them the bird against a plain white wall and mail it from a general address a few countries away. Like Peru, if I were staying in Uruguay.

Just a thought.

Re:It was impossible to cause that much damage (1)

think_nix (1467471) | more than 5 years ago | (#28581301)

Direct damages, your calculations are probably correct. But the 100 people she gave songs to, also gave them to 100 people, exponentially.

IANAL but I dont think that is justifiable, the MI would then have to call those other file sharers to the witness stand, also which they could plead the 5th ? Because it would indite themselves ?

Re:It was impossible to cause that much damage (4, Insightful)

Khyber (864651) | more than 5 years ago | (#28581329)

"But the 100 people she gave songs to, also gave them to 100 people, exponentially."

Your argument makes absolutely no sense. She should be punished for the copyright infringement of others? Why haven't they tracked down those people yet, if they have so much evidence against her?

Re:It was impossible to cause that much damage (1)

TheThiefMaster (992038) | more than 5 years ago | (#28581057)

Yeah, but the people she shared to would share too, and that's clearly her fault. They would never have got the songs and shared them without her.

</sarcasm>

Re:It was impossible to cause that much damage (2, Interesting)

harlows_monkeys (106428) | more than 5 years ago | (#28581071)

If one does the math it is easy to see it was impossible for her to have caused $1.92 million damage. The offense occurred in 2004. Back then a typical cable modem had an upload speed of 256kbps shared with the neighbors. A typical song costs $0.99 on iTunes

Your first mistake is using the iTunes price. Last time I checked, if you get a song from iTunes, it does not include a license to make the song available for an arbitrary, untracked, number of uploads to other people. If you were to write to the rights holders for the songs involved and ask what it would cost to get a license for unrestricted, untracked, copying and redistribution, I am pretty sure they would ask for more than $1 per song.

This is why it is often expensive for movie producers to use popular songs in their soundtracks. Did you think they just went to the iTunes store, downloaded a copy for $1, and then used it in their movies, without paying more?

For movies, the licenses can be thousands of dollars per song. If she had to pay similar per song, and had to pay for all the songs she was sharing, not just the 24 that were brought up in trial, it would actually come in the ballpark of $1.92 million. However, that's not really relevant, and that brings is to your second mistake.

The $1.92 million is not meant to represent actual damages. Actual damages are very hard to prove in most copyright cases, and so the plaintiff can elect to take statutory damages, which are defined in the statute (hence the name). They are from $750 to $150000 dollars, with the jury deciding where they go. The jury went for something in the middle of that, per song, for the simple reason that she was not very good at lying to them. Juries do not like it when clearly guilty defendants tell a shifting tale of several badly told obvious lies, and that tends to push damages up.

Re:It was impossible to cause that much damage (1)

ArsonSmith (13997) | more than 5 years ago | (#28581123)

"This is why it is often expensive for movie producers to use popular songs in their soundtracks. Did you think they just went to the iTunes store, downloaded a copy for $1, and then used it in their movies, without paying more?"

Funny thing is, they often get paid for doing this. Ever notice how it started getting to the point where every movie has a popular song in it, or is it that every popular movie produces a popular song? Having a song in a popular movie makes that song that much more popular.

Re:It was impossible to cause that much damage (1, Insightful)

TerranFury (726743) | more than 5 years ago | (#28581167)

Juries do not like it when clearly guilty defendants tell a shifting tale of several badly told obvious lies, and that tends to push damages up.

...to $1.92 million. Assuming a household income of $50,233.00 (the median), and moreover assuming that the defendant will cease eating, receiving medial treatment, or paying for rent, water, or electricity from now on, it will take over 38 years to pay that off.

The jury might as well have just ordered the woman executed.

Re:It was impossible to cause that much damage (2, Insightful)

sumdumass (711423) | more than 5 years ago | (#28581231)

Here is the thing, If Itunes is offering the song for $1.00, then it's safe to say that their distribution license is under $1.00 a copy. The Itunes comparison is still valid unless it's fair game to have licensing fees specifically higher then your getting in real life just in case you have to take an infringement case to court.

Re:It was impossible to cause that much damage (1)

nitehawk214 (222219) | more than 5 years ago | (#28581131)

no downtime (infinite nines!)

I don't know where you come from, but here we call that 100%.

Re:It was impossible to cause that much damage (3, Interesting)

clarkkent09 (1104833) | more than 5 years ago | (#28581147)

That's all beside the point. The damages awarded were statutory damages [wikipedia.org] as set by the law. It is impossible for the plaintiff to prove the actual damages because there is no way to tell how many people downloaded those songs that she uploaded so the law sets a default amount. On the first glance it seems that $80K per song is too high but then I don't know the technical argument for it.

Tactically, I think she and her lawyers are making one mistake after another and she will eventually have to pay a lot more than she could have if she settled right away. Here is the part I don't understand: on one hand she is not "interested in discussing any deal that required her to admit guilt or pay any money" but on the other hand the main argument of the appeal is "that the damages are disproportionate to any actual harm." Doesn't it mean that she is admitting that harm occurred and only challenging the amount? It seems like her main argument is at odds with her unwillingness to accept any guilt or settle for any amount.

Re:It was impossible to cause that much damage (3, Interesting)

sumdumass (711423) | more than 5 years ago | (#28581265)

I believe she was the one who paid for the Kazza program and originally claimed that the content came with the membership.

In that case, she could admit damages but not admit her own wrong doing because she acted in what appears to be a legal and lawful way.

Re:It was impossible to cause that much damage (1)

think_nix (1467471) | more than 5 years ago | (#28581279)

If one does the math it is easy to see it was impossible for her to have caused $1.92 million damage.

Yes exactly the point. I dont know all the details of the case. But why hasn't the defense called in some kind of "Statistic Bean Counter" /* with an idea of p2p technology of course */ to their defense ? Maybe would have swayed the judges decision ?

Of Course (1, Insightful)

camperdave (969942) | more than 5 years ago | (#28580121)

'She wants to take the issue up on appeal on the constitutionality of the damages. That's one of the main arguments -- that the damages are disproportionate to any actual harm.'"
Of course they're disproportionate to any actual harm. That's the whole point. The damages are meant to be a deterrent against future abuses. The RIAA is sticking her head on a pike as a warning to others.

Re:Of Course (2, Interesting)

Cowclops (630818) | more than 5 years ago | (#28580157)

IANAL but if I recall correctly, punitive damages are typically considered unconstitutional if they exceed 10 times actual damages. Feel free to correct me on that one.

Re:Of Course (5, Insightful)

Nomen Publicus (1150725) | more than 5 years ago | (#28580163)

And when did deterrents ever stop murders or kids making copies of songs for their friends?

The big fines were intended to make professional copyright violations where some factory turns out hundreds or thousands of copies of fake product unprofitable. Using the same law to beat up some random person is disproportionate.

Re:Of Course (1)

Quothz (683368) | more than 5 years ago | (#28580559)

And when did deterrents ever stop murders

Eh? But they do. Compare the murder rate in, say, Somalia to that of the US. Nations in anarchy or without effective police enforcement consistently have tremendously higher crime rates than countries with stronger police. Deterrents will never put a stop to crime, and I don't know whether there's good evidence that stronger deterrents are more effective, but there's absolutely no question that deterrents have a powerful effect.

It's worth noting that the deterrent in question - civil action for file sharing - is applied pretty inconsistently. Only a tiny percentage of uploaders are targeted and some points of the law are still in question. Someone has probably researched how such things correlate to the effectiveness of the deterrent, but I haven't looked into it. Purely talking out of my ass, I suspect it weakens the social effect considerably.

Re:Of Course (3, Informative)

orkysoft (93727) | more than 5 years ago | (#28580659)

The deterrent is the chance of being caught. In Somalia, or any other country without an effective police force, the chance of being caught is zero, so there is no deterrent. The actual magnitude of the punishment has surprisingly little deterring effect, and in some cases can make crimes worse: back when capital punishment was applied to just about every crime, there was a big incentive to kill all witnesses to reduce the chance of getting caught, leading to many more murders than would otherwise have been the case.

Re:Of Course (1)

Temposs (787432) | more than 5 years ago | (#28580965)

Somalia is a war-ravaged nation of mostly desperate and very impoverished people. That has a huge effect on what actions people take. Desperate people take desperate actions. They will take any kind of work, do any kind of deed that gets them a meal. Having no effective police force, they look to ruthless people with power and resources who can protect them and their family from being killed or attacked or robbed. The ruthless alpha character by his nature must act in violence against rival factions to keep them at bay.

In the US, people are mostly fat and more or less don't have to think about where their next meal is coming from. We have an effective policing that are likewise not desperate, and are minimally corrupt. This means we don't have to worry about protecting our families and we can think about moral considerations before we think about our very survival.

This is why our murder rate is lower than Somalia's.

Re:Of Course (1)

Hurricane78 (562437) | more than 5 years ago | (#28580665)

That argument is wrong.

The fines on big companies should be just as proportionate. And they are. Because there they get fined millions, but also SOLD millions of fake CDs.

Re:Of Course (1)

westlake (615356) | more than 5 years ago | (#28580727)

And when did deterrents ever stop murders or kids making copies of songs for their friends?

Murder rates in countries with a tradition of strong and effective law enforcement tend to be quite low. List of countries by intentional homicide rate [wikipedia.org]

The extortion kidnapping as an organized criminal enterprise was effectively extinguished in the U.S. in the nineteen thirties.

In Mexico it dominates the news. Mexico refuses to send French kidnap convict home [google.com] [June 22]

In the U.S. it isn't the kid who is being sued. It is her parent or guardian.

The one the geek is always saying should bear the responsibility when things go wrong at home.

The big fines were intended to make professional copyright violations where some factory turns out hundreds or thousands of copies of fake product unprofitable. Using the same law to beat up some random person is disproportionate.

The civil judgment isn't a fine.

It's an award of damages for your unlicensed wholesale distribution. You aren't distributing a fake - you are distributing the real thing.

The production budget for a film like WALL-E is about $200 million dollars - double that for marketing and other costs.

The film represents four or five years of full or part-time work of four hundred highly skilled artists and engineers - and raked in hundreds of millions of export dollars.

Should it surprise the geek that the government doesn't want to see all that go away?

Should it surprise the geek that talent at this level is more likely to be invested in sequels to Toy Story and Ice Age than in the original - adult-oriented - sci-fi and fantasy films he claims he really wants to see?

Re:Of Course (1)

ae1294 (1547521) | more than 5 years ago | (#28581125)

The production budget for a film like WALL-E is about $200 million dollars

Why are you quoting movie cost info on a case that involves music? It's dumb to troll high on crack!

Re:Of Course (2, Insightful)

sking (42926) | more than 5 years ago | (#28580165)

It seemed to me that a disproportionate damage award may have been the strategy all along, given the performance of her attorneys.

Re:Of Course (4, Insightful)

Overzeetop (214511) | more than 5 years ago | (#28580183)

Which her lawyers believe is unconstitutional, hence the appeal. Making an example of one particular offender isn't the way the law is supposed to work. You transgress, you are punished appropriately. The problem is that the law, written in a different age, and with different parameters in mind, should not be applied in this fashion. Unfortunately, in this case, the defendant does not have the financial means to set this straight. The lawyers, with deep pockets and a public name to make for themselves, do have the means. There is no doubt in my mind that they are not doing this altruistically, but they happen to be fighting what many believe to be a poorly written statute and in that sense are fighting for the common good at the same time. I've got no problem with their desire to gain reputation in the process.

Re:Of Course (1)

icebike (68054) | more than 5 years ago | (#28580275)

There is no doubt in my mind that they are not doing this altruistically, but they happen to be fighting what many believe to be a poorly written statute and in that sense are fighting for the common good at the same time.

Its not clear how you can string those two thoughts together in the same sentence and not see the conflict.

Fighting for the common good with no payday in sight is a pretty good definition of "altruistic" if you ask me.

Re:Of Course (0)

Anonymous Coward | more than 5 years ago | (#28580339)

lurn 2 englesh comprehendshun

Re:Of Course (1)

Cylix (55374) | more than 5 years ago | (#28580345)

I recall something about exposure being important later in a legal career.

I remember an interview with someone who would constantly attack items and submit something akin to open briefs on topics hoping to be heard.

The game didn't seem to be so much about making change or simply righting wrongs, but rather simply get exposure so that one day he could sit on that same bench.

I admit I know virtually nothing regarding politics and lawyers. Both tend to leave a sour taste in my mouth ;)

Re:Of Course (2, Insightful)

Overzeetop (214511) | more than 5 years ago | (#28580359)

Their payday is in marketing dollars, and it's very real. For example - I do training exercises, and spend time with local officials - free of charge - to help them understand the technical points of building codes. I do this for local contractors and architects as well. As a result, my name is "known" locally in the industry, and when a really tough case comes up, just about everyone says "you'd better get Overzeetop to look at this one." I'm so busy - in the middle of this recession and in one of the heavily affected industries - that I'm working 60-70 hours a week (no, that doesn't include /. time).

Trust me - this is not to fill some magical well of karma. It's to make a name, and to make a name is to make money.

Re:Of Course (0, Redundant)

camperdave (969942) | more than 5 years ago | (#28580391)

For example - I do training exercises, and spend time with local officials - free of charge - to help them understand the technical points of building codes. I do this for local contractors and architects as well.

Mike Holmes? Is that you?

Re:Of Course (1)

westlake (615356) | more than 5 years ago | (#28580935)

Making an example of one particular offender isn't the way the law is supposed to work.

It's the way the law always works.

The lesson never sinks in the first tine around.

The appellate court can reduce the award without ever reaching the constitutional issues that seem so enticing to the geek.

That ends the case and leaves Thomas up the creek without a paddle.

There is nothing more dangerous to a defendant than the lawyer who wants to make law.

Re:Of Course (1)

Krneki (1192201) | more than 5 years ago | (#28580969)

Exactly, it doesn't make any sense.

If I go to a CD store and I steal 2-3 CDs, if they catch me, do I have to pay 2M $?

The punishment can't be bigger then the crime, we stopped to cut hands a long time ago for a reason.

Re:Of Course (5, Informative)

Anonymous Coward | more than 5 years ago | (#28580225)

That's the whole point. The damages are meant to be a deterrent against future abuses. The RIAA is sticking her head on a pike as a warning to others.

Punitive damages can only be awarded in effort to deter the defendant from committing the same infringement again. It is expressly forbidden to make an example of a defendant by awarding a grossly high settlement for the purpose of making others think twice before doing the same thing. It is also expressly forbidden to award higher damages for acts that were not included in the trial. For example, in this case, there were 24 files in question. It's possible the jury said "I'm sure there were a lot more" and award damages with that in mind. They can't do that.

If either of those things occurred, the verdict is immediately nullified. I'm sure they will be raised on appeal, but they will be hard to prove. If you read the jury instructions on this case, it clearly explicates that they are to award damages ONLY for the files in question. There was even a neat little worksheet to help them with it.

Pay up thief (4, Funny)

thetoadwarrior (1268702) | more than 5 years ago | (#28580161)

Well she is clearly one of the biggest threats to this world. I think she's got off light. She should have had to pay infinity billion dollars and spend the rest of her life in Guantanamo Bay.

Re:Pay up thief (0)

Anonymous Coward | more than 5 years ago | (#28580557)

Sadly this is tagged as funny. I think she should spend the rest of her life in prison.

Re:Pay up thief (1)

PiSkyHi (1049584) | more than 5 years ago | (#28580793)

I can see you've really worked on your sense of humour.

Re:Pay up thief (0)

Anonymous Coward | more than 5 years ago | (#28581241)

I can see you failed to take my comment seriously. To each his own.

I think it would be fair and just. Before anyone rebuttals with many examples of "but but but it's not fair! there are far worse crimes which receive lesser punishment!", I will submit that in my opinion criminals get off too easy in all circumstances. Period!

The nerf world, nanny state, kumbaya singing, idiocracy will be the downfall of our species.

Re:Pay up thief (1)

The Outlander (1279696) | more than 5 years ago | (#28580595)

I was going to suggest the death penalty but your suggestion of life in Guantanamo Bay seems a lot worse, with the death penalty at least she will be judged sometime soon

Re:Pay up thief (1)

vodevil (856500) | more than 5 years ago | (#28580699)

But if they close Guantanamo, she might have to come back to the states, and which prison would accept a person who has clearly committed such a heinous crime?!

Re:Pay up thief (1)

wvmarle (1070040) | more than 5 years ago | (#28580987)

Don't worry, people now in Guantanamo are not going back to the US. Where they will go to is another matter of course - so send her to Gitmo and she'll be out of the country forever. Maybe ending up in some minuscule pacific ocean island state or so.

Re:Pay up thief (1)

An ominous Cow art (320322) | more than 5 years ago | (#28581223)

Life in Guantanamo? Are you insane? What if the League of Evil breaks her out? No, this clearly calls for the death penalty.

Worrisome Potential Precedent (5, Interesting)

resistant (221968) | more than 5 years ago | (#28580205)

I'm worried that the Supreme Court, should it eventually take this case, might find a way to justify these hugely exorbitant awards on technically narrow and nit-picky grounds that nonetheless are broad enough in reality to make fighting the RIAA essentially a hopeless cause financially for most people. The Kelo decision [reason.com] shows the kind of sloppy reasoning that can lead to appalling results. It surely doesn't help that Jammie appears to be guilty of deliberate file-sharing and tampering with evidence after the fact. One could wish heartily for a much more sympathetic defendant.

Re:Worrisome Potential Precedent (5, Insightful)

Overzeetop (214511) | more than 5 years ago | (#28580315)

I'm not so sure, actually. If the defendant were not clearly guilty, the ruling might simply be overturned. In this case, with it pretty darned likely that she did do what did, the real case here is what kinds of limits should be set for recovering legal damages. Is non-commercial distribution really worth an amount equal to destroying the rest of your life? I would think that the plaintiff would need to show _actual_ damages, or be limited to a nominal fine. That is true for most litigation I'm involved in (architecture/engineering disputes). Unless you get into personal injury and pain-and-suffering cases, you've got to show actual damages and actual repair costs attributed _directly_ to the act. Consequential and incidental damages are very hard to win. Content industries insist on trying to chase the low hanging fruit (file sharers) because the law stacks the deck in their favor. If they can't provide an actual value, they get to select a prescriptive (that's not the right word...I know) value which is orders of magnitude larger than the original item.

If they can't prove the actual losses, they should get 3x the value (or 5x or 10x, not 100000x). That means finding the people who downloaded the songs and (1) determining that they did not already own that song in another form (vinyl, magnetic, CD, or commercial download) and (2) that they would have purchased the item if it were only available through a commercial site. Simple cause-effect analysis.

Re:Worrisome Potential Precedent (3, Insightful)

Will.Woodhull (1038600) | more than 5 years ago | (#28580657)

If I had mod points this morning, I would mod parent up. Sicne I don't have any at the moment, I'll argue why someone else should mod parent "insightful" or maybe "informative".

If the defendant were not clearly guilty, the ruling might simply be overturned.

This is exactly why I'm pleased that she is appealing the ruling on constitutional grounds. The appellate courts can (and should) look for every other possible basis for deciding a case before they start looking at constitutional issues and setting precedents. Since the preponderance of evidence says that the law was broken, this is now the first good test to see whether the law itself is good. And, ideally, whether the techniques of institutional barratry used by the RIAA and their member corporations are legal.

Re:Worrisome Potential Precedent (4, Insightful)

Solandri (704621) | more than 5 years ago | (#28580957)

If the defendant were not clearly guilty, the ruling might simply be overturned. In this case, with it pretty darned likely that she did do what did, the real case here is what kinds of limits should be set for recovering legal damages.

Agreed. If law said the sentence for drunk driving were 20 years, and you wanted to challenge the constitutionality of the long sentence, by definition the defendant would have to have driven drunk. That said, it would be possible to get a more sympathetic defendant in this case - maybe someone who unwittingly fileshared songs. e.g. They installed Kazaa, tried it briefly, and stopped using it not realizing it stayed active in the background sharing their legit MP3 collection (ripped from CDs they owned).

If they can't prove the actual losses, they should get 3x the value (or 5x or 10x, not 100000x).

Yeah, I can understand being awarded multiple times the value of the song. If she were penalized just 1x the cost of buying the songs (as some here have proposed), then you'd have nothing to lose by downloading. If you're caught, you only pay as much as if you'd bought it. If you're not caught, you get it for free. So clearly the penalty has to be more than the cost of just buying the songs.

But the award in this case works out to $1.9 mil / 24 songs = $79k per song. If you look at the RIAA's 2001 marketing stats [azoz.com] , they made about $500,000 per new CD release. If you figure a CD averages 8 songs, that's only $60,000 in annual worldwide revenue per song in the first year as a new release. i.e. The award has her paying more per song than the average revenue the RIAA gets per new song in its first year. You don't even need to check if the award is "cruel or unusual punishment." You can tell it's way too high because it makes it a better business model to sue filesharers than to actually sell the songs on the market. The initial $220k award was possibly unconstitutional. The current $1.9 million award is insanity and would destroy capitalism if it stands.

Jeez I hope they do (0)

Anonymous Coward | more than 5 years ago | (#28580877)

230 plus years was a good run, time to break it apart and try again.

Re:Worrisome Potential Precedent (2, Insightful)

selven (1556643) | more than 5 years ago | (#28581029)

The RIAA keeps their litigation against sympathetic defendants quiet and trumpets their successes against the more unsavory members of society. They have to - it's all a giant PR game.

This is big news for us... (-1, Troll)

Anonymous Coward | more than 5 years ago | (#28580221)

So why don't we get Obama-mama involved?

Well DUH! (5, Insightful)

icebike (68054) | more than 5 years ago | (#28580255)

Seriously, who could not have seen this coming.

This verdict had to have been the RIAA's worst nightmare. They had to know, as they left the courthouse that they had just snatched ultimate defeat from the jaws of temporal victory.

NOW it all comes into play again, out from under easily impressed small town judges and professionally packed juries.

The entire investigative tactic, the improper application of laws, (not to mention that little phrase containing the words "Cruel or Unusual Punishment") comes under high level review.

They can't have wanted this. They would have been happy with 100K verdict. This is their worst nightmare.

Re:Well DUH! (4, Insightful)

ae1294 (1547521) | more than 5 years ago | (#28580407)

This verdict had to have been the RIAA's worst nightmare.

I don't know about worst nightmare but you know something is up when they want to talk about a deal after they won the case!

Re:Well DUH! (1)

MarkvW (1037596) | more than 5 years ago | (#28580419)

Of course they talk settlement after they won the case! Nothing strange about that when the defendant has no way of actually paying the judgment.

Re:Well DUH! (1)

ae1294 (1547521) | more than 5 years ago | (#28580789)

Nothing strange about that when the defendant has no way of actually paying the judgment

From what I understand she has no way to pay much of any settlement at this point so what where they going to offer her?

Well you owe us 1.9 Million but we'll take a hundred bucks and you can do some TV ads for us?

Re:Well DUH! (3, Insightful)

DJRumpy (1345787) | more than 5 years ago | (#28580417)

I have to agree. This has blown this issue out of the 'techie' blogs and sites, and into the mainstream. I actually had non-technical folk ask me if I'd heard about it. This has far more visibility than I think the RIAA wanted. They may claim to be all about 'educating the public', but we know that's not the case: http://www.groundreport.com/Media_and_Tech/Judge-Orders-RIAA-Hearing-to-be-Televised-RIAA-Fil [groundreport.com]

Any sensible person has to look at this and think WTF? I still have to wonder how they could have ever come out of this with such a large judgement for 24 songs unless the defense was being purposely stupid not to put too fine a point on it. It just boggles the mind that a judgement this large could come down with any sort of reasonable argument from the defense.

Re:Well DUH! (3, Insightful)

causality (777677) | more than 5 years ago | (#28580561)

This has far more visibility than I think the RIAA wanted. They may claim to be all about 'educating the public', but we know that's not the case:

When a monied interests talks about "educating" anyone, you can be sure of one thing: they are using the definition of "educated" where "you are 'educated' if you agree with me."

Re:Well DUH! (0)

Anonymous Coward | more than 5 years ago | (#28580457)

Yes, The RIAA will now pay the price.

Re:Well DUH! (0)

Anonymous Coward | more than 5 years ago | (#28580639)

The RIAA knows it's time is coming.

$1,900,000 for a couple of songs? Any unbiased sane person can see that this verdict is completely .

This story should be located under the business section of every news source out there.

Am I Alone? (4, Insightful)

whisper_jeff (680366) | more than 5 years ago | (#28580383)

Am I alone in thinking this is exactly what the (pro bono) defense wanted? As I see it, wearing my tinfoil hat, they wanted an insane fine to be imposed so they could defeat it as unconstitutional. They would then establish the "right" fine appropriate with the offense (many opinions on this but most agree it should be in the hundreds of dollars, not thousands - these are songs that sell for 99 cents a piece, after all...). Once that's established, THEN they can fire up their class action suit which is where the real money is to be made. I know I'm being all conspiracy-theory with this but I think most of us agree that the defense didn't exactly do the best job possible and they are very intelligent people so I'm left wondering why - why didn't they do the best job possible? And the only answer I keep coming back to is because there's no money to be made winning _THIS_ case but there's truckloads to be made from winning the class action suit down the road.

Re:Am I Alone? (1)

h4nk (1236654) | more than 5 years ago | (#28580465)

nope, and I really hope you're right.

Re:Am I Alone? (0)

Anonymous Coward | more than 5 years ago | (#28580569)

IAAL and I always marvel at the absolutely bizarre legal theories that tech people seem to have around here.

Re:Am I Alone? (2, Insightful)

geekboy642 (799087) | more than 5 years ago | (#28580637)

IANAL, and I always marvel at the absolutely bizarre ways lawyers can twist laws to mean absolutely anything, assuming they've been payed well enough.

Re:Am I Alone? (1)

causality (777677) | more than 5 years ago | (#28580575)

I know I'm being all conspiracy-theory with this

These days, "conspiracy-theory" means "acknowledge that there is such a thing as long-term strategy." It can also be synonymous with "acknowledge that large organizations always act to further their own interests."

Re:Am I Alone? (1)

foobsr (693224) | more than 5 years ago | (#28581003)

These days, "conspiracy-theory" means "acknowledge that there is such a thing as long-term strategy." It can also be synonymous with "acknowledge that large organizations always act to further their own interests."

This should be a modded 'too insightful'.

CC.

Re:Am I Alone? (1)

PiSkyHi (1049584) | more than 5 years ago | (#28580885)

I'm with you, I have been reading many posters comments that seem to in some way admit she is a criminal, even if some wish she had a defense.

Now, she may have been found guilty, but of what ?. If this does go the way I think it will, the class action is the deal that needs to be done and we all know it - it just can't keep going this way with RIAA, many people including many judges surely feel this way as well and for the RIAA going against the people who can help legislate, in a democracy, their time will come.

Re:Am I Alone? (1)

selven (1556643) | more than 5 years ago | (#28580985)

It's an extremely risky strategy that way and Jammie will now have to sit through even more court sessions. Unfortunately she doesn't strike me as the kind of altruistic person who would do that just to establish a precedent for others.

not necessarily disproportionate (0, Redundant)

bcrowell (177657) | more than 5 years ago | (#28580411)

Okay, this is going to be wildly unpopular on slashdot, but I'm going to play devil's advocate and argue that the damages are not necessarily disproportionate to the actual harm.

It's definitely not correct to calculate the actual harm like this: 24 songs, multiplied by a market price of $1 per track on iTunes, giving 24x$1= $24. She wasn't being sued for obtaining single copies of the 24 songs illegally for her own use, she was being sued for giving them to other people -- possibly a very large number of other people.

Another possibility would be to take 24x$1, and then multiply by the number of people who actually downloaded the specific copies of the songs that she made available. There are a couple of problems with this. One is that nobody has any data on how many people downloaded those specific copies. Maybe zero people downloaded them. Maybe 10 people downloaded a particular song, each of them copied that copy 10 times for 10 friends, and so on, so that conceivably there are millions of mp3 files of that song out there that are all descended from Jammie Thomas's original. We just don't know, because the copies don't carry a history that allows us to know how they spread. You could argue that other people may have bought CDs of the same songs, ripped them, and put them online; again, there was no data about this at trial. And in any case, it's kind of morally obtuse to say that what she did isn't really so bad, because lots of other people were doing it as well. If you want to argue that what she did wasn't blameworthy, then you need to do it on other grounds, e.g., US copyright laws are unjust; well, I agree that US copyright laws are unjust, but we're talking about a court case here, so that's irrelevant. Suppose I set fire to the trees behind my neighbor's house, and around the same time 100 other people are also lighting matches and throwing them into the same bushes. My neighbor's house burns down, and he sues me. IANAL, but I doubt that the court is going to reduce the damages they make me pay by a factor of 100, on the theory that there were 99 other people attempting to do the same thing.

So it seems to me there's a pretty strong logical case to be made that you should calculate the damages like this: 24x$1xNxBxLxD. N is the total number of people who downloaded the song (and, as argued above, not just the number who got a copy directly from the ones Thomas put up). B is a factor that takes into account that only a fraction of the blame is hers, but I argued above that setting B=1 is reasonable (or at least not so unreasonable that it's obviously unconstitutional). L is a factor that measures how much the industry really loses when songs of a certain market value are downloaded. The industry usually assumes L=1, i.e., that every illegal download equals one lost sale. We actually don't know what L is. It's possible that 75% of downloaders would never have bought the song (e.g., they're 12-year-olds who have no money), in which case L=.25. It's even possible that L is negative (illegal downloads publicize and popularize the music, thereby driving legal sales). But these things are all impossible to determine, so I don't think it's completely crazy to say L=1, as a ballpark figure. (Again, the issue isn't whether it's exactly correct, the issue is whether it's so crazy that it gives a result that is obviously unconstitutionally disproportionate.) And finally D is the deterrent factor. When you sue someone for copyright violation, you're allowed to sue for more than the actual damages. As an example, if you write GPL'd software, in many cases the market value of the software is vanishingly small because you're intentionally giving it away for free; nevertheless if you satisfy certain technical requirements, you're allowed to sue for more than your actual damages, i.e., D can be much greater than one. (This is one reason that the GNU project encourages authors of GNU software to formally register a copyright, and sign over the copyrights to GNU. If you don't file a formal copyright registration, you can only sue for actual damages, which are likely to be zero, and therefore no lawyer is likely to be interested in taking the case.)

Well, you really don't have to put in absurd numbers in order to get $1.9 million out of this formula. For instance, I can put in N=10^4, B=1, L=1, and D=8, and get about that figure. Is D=8 unconstitutional? I doubt it. The law is specifically designed to allow values of D quite a bit greater than 1.

Re:not necessarily disproportionate (1, Informative)

Anonymous Coward | more than 5 years ago | (#28580493)

Maybe 10 people downloaded a particular song, each of them copied that copy 10 times for 10 friends, and so on, so that conceivably there are millions of mp3 files of that song out there that are all descended from Jammie Thomas's original.

As far as I know, this isn't a consideration. Damages have to be limited to the infringement by the defendant, not what someone else did because of the defendant's infringement.

An example would be this: someone purchases a newspaper from a self-serve machine and holds open the door while he and 10 other people all take copies that they didn't pay for. The actual damages that the first person is responsible for are limited to the paper he stole. While he enabled others to steal newspapers, he did not commit the actual theft. He could be hit with punitive damages related to enabling others to commit the crime, but he cannot be sued for the $3.00 that was lost due to the 10 other people taking papers.

Re:not necessarily disproportionate (1)

maxume (22995) | more than 5 years ago | (#28580507)

Your 'logical' case that damages=24x$1xNxBxLxD rests on the premise that it is reasonable to hold a single person responsible for an arbitrary amount of distribution on the internet. This is nonsense.

If you really think it is reasonable, I suggest you start figuring out how to prove that it wasn't you who killed my dog. I mean, for all I know, it was you.

Re:not necessarily disproportionate (1)

DaveV1.0 (203135) | more than 5 years ago | (#28580535)

The maximum penalty for willfully infringing on someone else's copyright is $150,000 per infringement. That would $150,000 x 24 = $3,600,000 as a maximum penalty.

The fact is that she was found to be infringing and was given a the minimum, then she challenged that and was found to be willfully infringing and given a median amount of $80,000 per infringement.

There is a pretty strong logical case that one should calculate damages according to the applicable laws and not by one person's (probably selfish) desires.

Re:not necessarily disproportionate (2, Insightful)

jedidiah (1196) | more than 5 years ago | (#28580543)

Actual harm should be related to actual revenue. It could be current revenue or it
could even be the maximum annual revenue that these works ever generated. One key
fact that seems to be glossed over here is that these are OLD works. Many of them
would have fallen into public domain on their own by now if the law had not been
recently changed to specifically favor Disney.

The RIAA likely does not see 80K in a year from the 20 year old Richard Marx song involved.

That clearly limits the likely possible damages here.

In general, a statutory damage award 50% of the maximum probably should never
be applied to a copyrighted work that is 20+ years old.

After considering the issue further (based on this verdict) it seems that it
might be unjust even to subject a professional bootlegger to this verdict.

Re:not necessarily disproportionate (0)

Anonymous Coward | more than 5 years ago | (#28580545)

Unfortunately, your logic has totally broken down.

Based on studies of consumer economics, L is demonstrably a staggeringly low number. At most it's in the low single digit percents. Seriously. Look up some papers on the economic difference between 1 cent and free.

Your calculation for N is absurd. You can't count downstream infringements. If you do, than Jammie's own infringement was a downstream infringement. To use your own analogy, it would be ok for the house owner to sue each person who ever threw a match into that bush for the entire value of his house.

Seriously, where do you get this from??

Re:not necessarily disproportionate (0)

Anonymous Coward | more than 5 years ago | (#28580571)

Average seed-ratio in a fileshering network is very close to 1.0
Even if we assume that all downloads equals a lost sale and use punitive damages of x10 there is no reason to why this case should not belong in small claims...

Re:not necessarily disproportionate (1)

kanweg (771128) | more than 5 years ago | (#28580579)

"So it seems to me there's a pretty strong logical case to be made that you should calculate the damages like this: 24x$1xNxBxLxD. N is the total number of people who downloaded the song (and, as argued above, not just the number who got a copy directly from the ones Thomas put up). "

OK, but that would also mean that a person who downloaded a song from her cannot be sued by the RIAA because it already received the damages for that. It seems fair to me that Jammie has a right of recourse on the downloader, although I doubt that would make her happy.

I think it is also fair that the RIAA proves that the 24 songs were not already paid for by someone else they had sued.

Bert
Who no longer has any illegitimate songs (and movies), but does have CDs now from several of the tapes he had when he was a student. If that makes the RIAA happy, I've bad news. iTunes allowed me to buy several songs for which I'd never bought the CD, but now I've effectively stopped buying music.

Re:not necessarily disproportionate (1)

fuzznutz (789413) | more than 5 years ago | (#28580651)

Okay Mr. Devil's Advocate. Some things to consider.
  • Statutory damages are not punitive damages.
  • There is limited bandwidth for uploads.
  • It is unreasonable to assume 100% upload bandwidth would be used for file sharing. The defendant would have shut down the program for disrupting other usage.
  • The time frame for uploads must be limited.
  • If L is calculable, why are they seeking statutory damages?
  • D must be zero (see point 1)
  • GPL violation suits nearly invariably target COMMERCIAL distribution.

Re:not necessarily disproportionate (1)

fuzznutz (789413) | more than 5 years ago | (#28580663)

And another thing...

It doesn't even pass the laugh test. $2 million for 24 songs?????

Re:not necessarily disproportionate (1)

TerranFury (726743) | more than 5 years ago | (#28581249)

The "correct" method would be to model the network, and fine her the difference between the number of songs shared by the network without her presence and that number with her involvement. For an analogy, it would be the drop of current in a resistor network caused by the removal of a particular resistor. This would represent that actual harm that she did. Since this depends greatly on the topology of the network, this is of course not feasible without some assumptions. The theory of random graphs (see e.g. work by Bollobas) might be helpful here. Not that I'm really advocating such a mathematical approach to law.

The upshot of this is that, assuming a relatively highly-connected graph (high Fiedler number), her impact is probably very, very small. For an extreme example, consider the difference in effective resistance between 100 1-ohm resistors in parallel and 99; it's tiny.

Re:not necessarily disproportionate (3, Insightful)

ozydingo (922211) | more than 5 years ago | (#28581275)

I always appreciate a good devil's advocate argument. But you don't have to work through any math to realize that $1.92 million is a ludicrous figure for this small number of non-commercial, personal acts of infringement. At her salary, it's more money than she'll make in a lifetime (ok, fine, I worked through some math there, so sue me). Blindly using these same formulas one would conclude that amount approaching and exceeding several billion in damages would be justified for common cases of infringement when an individual has been sharing hundreds or thousands of songs. If you're looking at this mathematically, this is the point where you step back and look for a sign error somewhere, because you know the result can't be correct.

And regarding your match analogy, IANAL either, but I think that yes, damages should be reduced if 100 others were involved. Why are you being held fully responsible for damages for which the responsibility demonstrably falls in the hands of others? Can your neighbor, after successfully suing you, go on to sue someone else for the same damages, thereby being allowed to receive 100 times the amount than if you alone had caused the damages? Yes, shared responsibility makes the logistics difficult, but avoiding difficulty is not an excuse for unjustly assigning the responsibility.

Furthermore, with multiplicative formulas such as yours, it can be very unreasonable to ballpark figures as you have. Small errors in these numbers result in large errors in the result. And when the difference is between a reasonable fine and ruining someone's life, surely you can agree that it is unacceptable to simply ballpark the figures.

uploads (0)

Anonymous Coward | more than 5 years ago | (#28580467)

I just hopa that if they try to find out the actual damages someone points out that the average upload/download ratio in a filesharing network is ~1.0

Damages (1)

Quietlife2k (612005) | more than 5 years ago | (#28580735)

Ask a silly question - If the $1.9M was paid - would his not mean that anyone who downloaded the named tracks during the time period (the damage the $1.9M is expected to cover) could have a claim that payment has already been made and thus not be liable ?

Re:Damages (2, Insightful)

selven (1556643) | more than 5 years ago | (#28581017)

Secondary uploaders are individually liable for the people who downloaded it from them directly (in theory) and everyone else even further down the chain from them (in RIAA logic). This means that the RIAA can collect fees from Jammie, from the people who downloaded off her and uploaded it, from the people 2 levels down, 3 levels down, and so on, effectively being paid hundreds of times for the same thing.

At the rate she's going (1)

Dunbal (464142) | more than 5 years ago | (#28580859)

I wouldn't be surprised if at the appeal her fine is raised to a round $20 million dollars.

What I think her penalty should be (4, Interesting)

selven (1556643) | more than 5 years ago | (#28581045)

Madoff - $60 billion, 150 years - $400 million per year Thomas - $2 million / $400 million = 0.005 years = 2 days in prison. It all works out nicely.

How would they ever collect? (1)

ArchieBunker (132337) | more than 5 years ago | (#28581103)

Ok heres a question for everyone. Say you make $30,000 a year. How are you expected to pay a judgment of nearly two million dollars? Thats more than you'd make in several lifetimes. Do they garnish a percentage of your wages or negotiate installment payments?

Re:How would they ever collect? (1)

Technician (215283) | more than 5 years ago | (#28581203)

How are you expected to pay a judgment of nearly two million dollars? Thats more than you'd make in several lifetimes.

I would guess that a trust account is set up with $1,000 in it and let the interest pay them until paid off at which time you get the principal back. Depending on interest, it could take a while.

Some Legal Background (2, Insightful)

Grond (15515) | more than 5 years ago | (#28581113)

One commenter made a comparison to the Exxon Valdez case and other punitive damages cases where the damages award was reduced to be more proportionate to the actual harm. Unlike those cases, there is a statutory damages regime here, and long standing Supreme Court precedent establishes that courts must be very deferential to awards within the statutory framework. In particular, statutory damages are reviewed under a standard even more deferential than the already deferential abuse of discretion standard: whether the award is "so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable." St. Louis, I.M. & S. Ry. Co. v. Williams, 251 U.S. 63, 66-67 (1919). Also see, Douglas v. Cunningham, 294 U.S. 207, 210 (1935) (Congress's purpose in enacting the statutory-damage provision of the 1909 Copyright Act and its delineation of specified limits for statutory damages "take[] the matter out of the ordinary rule with respect to abuse of discretion") (via [blogspot.com] ). Appellate courts are also somewhat loathe to disturb jury verdicts. The standard in the Eighth Circuit, where the Thomas case was decided, is whether 'no rational jury' could have found as the jury did. Dace v. ACF Indus., 722 F.2d 374, 376 (8th Cir. 1983).

You might say, well, the ratio of damages to actual harm here is roughly a factor of 80,000, so surely that is sufficient even under that high standard. The RIAA is likely to argue that only the increased damages due to willful infringement are punitive and that the the underlying statutory damages are not inherently punitive. Should it prevail on that theory, then the resulting substantially lower ratio is likely to be seen as constitutionally permissible. Furthermore, the Supreme Court has upheld ratios as high as 113:1, for example, and the ratio alone is not sufficient to overturn the award. Phillip Morris USA v. Williams, 549 U.S. 346 (2007).

Another commenter made reference to the "cruel and unusual punishment" clause of the Eighth Amendment. The Eighth Amendment does not apply to civil cases (not even the "excessive fines" clause). See, Ingraham v. Wright, 430 U.S. 651 (1977).

But the real crux of the issue is that the Copyright Act simply does not make an exception for individual non-commercial infringers. Assuming the facts of the case are accurate--and appellate courts do not like to disturb jury fact finding--then by the plain language of the statute Ms. Thomas is liable for a minimum of several thousand dollars in statutory damages. In my opinion the most likely outcome is that the appellate courts will let the verdict stand but strongly suggest that the legislature revise the Act to exempt individual non-commercial infringers from the statutory damages regime.

Re:Some Legal Background (1)

cdrguru (88047) | more than 5 years ago | (#28581315)

I think the jury was responding to two things. In the original trial she was found to be liable for damages of over $200,000 but the trial was thrown out because of bad jury instructions. In the second trial there were numerous attempts to deflect any fact-finding through obfuscation involving various technical strategies, including referring to the possiblity of a wireless router when no such device was ever used.

Finally, to top things off, Jammie herself got caught having destroyed evidence (the original hard drive) and lying about it on the stand.

None of these things made her out to be a person that was just being mistreated by the RIAA or the legal system. Her lawyers advised her rather poorly about strategies that did not attack the facts of the case but instead just tried to confuse matters. A strategy the judge and likely jury both saw through.

She can appeal all she wants. If she were to get a third trial with the same strategy it is likely the award would be increased yet again.

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