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RIAA Confusion In Tenenbaum & Thomas Cases?

timothy posted more than 4 years ago | from the well-there-are-a-lot-of-names-yerhonor dept.

The Courts 229

NewYorkCountryLawyer writes "There seems to be a bit of confusion in RIAA-land these days, caused by the only 2 cases that ever went to trial, Capitol Records v. Thomas-Rasset in Minnesota, and SONY BMG Music Entertainment v. Tenenbaum, in Boston. In both cases, the RIAA has recently asked for extensions of time. In Thomas-Rasset, they've asked for more time to make up their mind as to whether to accept the reduced verdict of $54,000 the judge has offered them, and in Tenenbaum they've twice asked for more time to prepare their papers opposing Tenenbaum's motion for remittitur. What is more, it has been reported that after the reduction of the verdict, the RIAA offered to settle with Ms. Thomas-Rasset for $25,000, but she turned them down."

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229 comments

Real Life Action RIAA Lawyer Doll Says ... (4, Funny)

eldavojohn (898314) | more than 4 years ago | (#30944778)

"Lawyering is hard!"

Push the button on his back down to make him raise his hand to object! Push the same button up and he slides an affidavit full of unmarked bills across the judge's desk! Just like in real life!

Judge'sDeskAndNewYorkCountryLawyerVillainSoldSeparately. RIAADollVoidOutsideOfDesignatedUseAreasAndMayCausePermanentInjuryOr BankruptcyUponMissedPaymentInstallments.

Re:Real Life Action RIAA Lawyer Doll Says ... (3, Insightful)

jhoegl (638955) | more than 4 years ago | (#30944802)

Well, Ill bet with those "winnings" they wont even cover lawyers fees.
This may be what they are pondering over.
Surprise, big corporate suing little Nanny "Apple Pie" Buttons is not profitable.
Who would have guessed that one!?!?

Re:Real Life Action RIAA Lawyer Doll Says ... (1)

mysidia (191772) | more than 4 years ago | (#30946334)

Surprise, big corporate suing little Nanny "Apple Pie" Buttons is not profitable.

It is profitable if you're the lawyer doing the suing, and not you are not one of the RIAA's members :)

Re:Real Life Action RIAA Lawyer Doll Says ... (0)

Anonymous Coward | more than 4 years ago | (#30944848)

Dear Valued Content Thief......Pirate....Customer,

How much are these Real Life Action Lawyer Dolls, and how can we use them to expand pointless litigation at a reduced cost.

Regards,
RIAA

Re:Real Life Action RIAA Lawyer Doll Says ... (5, Funny)

Belial6 (794905) | more than 4 years ago | (#30945428)

You joke, but I wouldn't be surprised if you could sell a couple of thousand NewYorkCountryLawyer action figures. Especially if you gave him huge action figure muscles like they did for Luke Skywalker.

Re:Real Life Action RIAA Lawyer Doll Says ... (3, Funny)

Z34107 (925136) | more than 4 years ago | (#30945620)

+1 preorder

Re:Real Life Action RIAA Lawyer Doll Says ... (1)

Rasperin (1034758) | more than 4 years ago | (#30946570)

He would also have to be in the pheonix wright objection position. When the arm becomes fully extended the action figure emotes "Objection!".

Re:Real Life Action RIAA Lawyer Doll Says ... (1, Informative)

Anonymous Coward | more than 4 years ago | (#30945602)

More like Lawyering is expensive.

If they can bully a person into paying them off they make a profit. If they can't and don't make a large damage sum they don't make a profit, and if the damages are not large enough it makes people think they can fight their overlords.

Different cases, different tactics (1)

DaveV1.0 (203135) | more than 4 years ago | (#30944826)

Or do you suggest that you should be put out to pasture because every case is the same?

Total non-story (4, Insightful)

Grond (15515) | more than 4 years ago | (#30944838)

Requests for extension of time are very common, and there's nothing unusual about the reasons given by the RIAA lawyers in the motions or for the length of extension requested. This seems like little more than an attempt to drive more pageviews to Mr. Beckerman's ad-laden site.

Re:Total non-story (5, Informative)

jhoegl (638955) | more than 4 years ago | (#30944862)

ad-block-plus...
welcome to the internets.

Re:Total non-story (3, Interesting)

MichaelSmith (789609) | more than 4 years ago | (#30944878)

And he has a think geek link to encourage /. to run the story.

Re:Total non-story (2, Interesting)

kaini (1435765) | more than 4 years ago | (#30945332)

And he has a think geek link to encourage /. to run the story.

i heard he has one of those caffeine quilt-covers! they GLOW IN THE DARK!

Re:Total non-story (2, Informative)

Afforess (1310263) | more than 4 years ago | (#30945122)

By ad-laden, I assume you mean the very small ads that are at the very bottom of his site, and are barely noticeable? Google has more ads than his site, IMO.

Re:Total non-story (1)

Trepidity (597) | more than 4 years ago | (#30945194)

I see ads above the post and all down the left sidebar, as well.

Re:Total non-story (0, Redundant)

MichaelSmith (789609) | more than 4 years ago | (#30945200)

I see a lot more than that.

Re:Total non-story (4, Funny)

Gerzel (240421) | more than 4 years ago | (#30945610)

My God... It's made of ads!

Re:Total non-story (2, Funny)

lorenlal (164133) | more than 4 years ago | (#30945648)

I tried clicking the link, but my browser started slowing... curiously my laptop started playing "Daisy."

It might be time to switch systems...

Re:Total non-story (1)

MichaelSmith (789609) | more than 4 years ago | (#30945670)

curiously my laptop started playing "Daisy"

Were you pulling modules out of it at the time? If so why? Did it try to suffocate you?

Re:Total non-story (5, Interesting)

Anonymous Coward | more than 4 years ago | (#30945410)

The attacks on Ray Beckerman are more than a little unfair, given his solid record over the years here on Slashdot. He's given a lot of free legal advice here over the years, and personally, I appreciate him. For the record, Blogspot.com is owned by Google, and I wouldn't be surprised to find that the ads are crammed in there by Google to help pay for the service. The insinuation here (and in other replies immediately following) that he simply posts here to drive people to an "ad-laden" site is more than unfair.

I, for one, appreciate his updates on these very important cases. If you disagree with Ray's take on requests for extension, that's certainly your right (and I disagree with you, by the way; I think it's very significant in this case, given the circumstances).

Re:Total non-story (5, Informative)

smpoole7 (1467717) | more than 4 years ago | (#30945490)

I must have accidentally clicked "post anonymously" when I posted the above defense of Mr. Beckerman. I wrote it and I'm not ashamed of it. :)

Re:Total non-story (1)

swimin (828756) | more than 4 years ago | (#30945580)

One note. No Ads are required by google on blogspot. You may add adwords to your blog easily however though.

Re:Total non-story (5, Insightful)

ari_j (90255) | more than 4 years ago | (#30945728)

I'm going to step in and correct one thing. I wouldn't say that he's given "legal advice" here at all. That's a special creature that includes all sorts of ethical duties. What he has done, though, is provide a great deal of legal information, clarification, and insight. I would hate for a good deed to turn into a regret by people confusing legal information for advice. At the very least, he can be appreciated for being a contributing member of the community where most people in his position would not bother.

Re:Total non-story (2, Insightful)

Grond (15515) | more than 4 years ago | (#30945756)

He's given a lot of free legal advice here over the years

I don't think he would appreciate that claim, actually. If he's been giving legal advice to essentially anonymous internet posters in a public forum he has almost certainly breached the ethical rules for lawyers. It would probably also expose him to malpractice liability if anyone relied on the advice.

For the record, Blogspot.com is owned by Google, and I wouldn't be surprised to find that the ads are crammed in there by Google to help pay for the service.

As another poster pointed out, those ads are put there at the blog owner's discretion, not Google's.

The insinuation here (and in other replies immediately following) that he simply posts here to drive people to an "ad-laden" site is more than unfair.

I don't think that's the only reason he ever posts. I think it's the only reason to post this particular non-story. His other posts are some mixture of relevant news, one-sided commentary, indirect marketing for his law firm, and, yes, driving pageviews.

I, for one, appreciate his updates on these very important cases

Then you can get them directly from his site via the web or an RSS reader. The occasional posting of major developments on Slashdot is one thing, but the steady stream of legal minutiae is another.

If you disagree with Ray's take on requests for extension, that's certainly your right (and I disagree with you, by the way; I think it's very significant in this case, given the circumstances).

They aren't significant at all. There's nothing unusual about the timing, the amount of time requested, or the reasons given for the extension. Parties file for extensions all the time. Neither you nor Mr. Beckerman have offered an explanation for why they are 'very significant.'

Re:Total non-story (0)

Anonymous Coward | more than 4 years ago | (#30945692)

Since when do slashdotters read the article?

OK, I'm dense (1, Interesting)

Anonymous Coward | more than 4 years ago | (#30944850)

I'm feeling pretty dense because I don't get why the headline says the RIAA is confusing these cases nor does it seem like the RIAA is confused about what to do -- indecisive maybe, but that is not the same thing as confusion.

Settlement (3, Insightful)

anagama (611277) | more than 4 years ago | (#30944908)

I suspect Thomas will rue the day she turned down the $25k settlement. While whatever millions the jury awarded was obviously excessive, her lawyer's assertion that $1/song is appropriate is also excessive, but in the opposite direction. If the law's bite was no more than the cost of purchase for what you get caught illegally "sharing", there would be no incentive for people to be honest and pay for their music.

Anyway, $25k is not an enormous life ruining debt. Yes, it is not trivial, but it is surmountable.

Re:Settlement (4, Insightful)

Aphoxema (1088507) | more than 4 years ago | (#30944968)

She did the right thing, though. If she had given up in court at 50k, the next person might have to start over in the millions.

Re:Settlement (-1, Troll)

Anonymous Coward | more than 4 years ago | (#30944988)

she also turned down a $5000 settlement. Of course, that was before she was caught destroying evidence and lying about it. In court. wah! I don't have any money! That's why I racked up $200,000 in legal bills pretending I didn't do it instead of settling up front! Fucking cunt.

Re:Settlement (0)

Anonymous Coward | more than 4 years ago | (#30945078)

Obvious troll is obvious.

Re:Settlement (5, Insightful)

Eskarel (565631) | more than 4 years ago | (#30945022)

This isn't about what her lawyer asserted, it's about what the judge ruled.

She's actually very clever to not take the settlement. Aside from the fact that there may well be someone behind her bankrolling that 25 grand difference anyway, she's more likely than not to end up paying nothing other than court costs.

The RIAA really doesn't want that 54k verdict to become official. It would set a legal precedent, one which would more likely than not be referred to, even in other jurisdictions. It's probably relatively close to a fair number(I can't recall the details of the case at the moment), but that's really not the point. I wouldn't be at all surprised if the RIAA ends up dropping the Thomas case. It'll cost them to do so, but it will severly limit their ability to extort and intimidate future defendents.

Re:Settlement (2, Informative)

anagama (611277) | more than 4 years ago | (#30945112)

Actually, it would not establish a precedent (you only get precedential decisions from appellate courts). It might be an influential decision, but no other court must follow it.

I don't understand why the RIAA would drop the case -- sure, millions sounds better in a headline, but for most people, $54k is seen as a heck of a lot of money. The RIAA is likely hoping that parents will see $54k and be worried about what their kids are doing on the net. In that respect, it probably has an effect near to what a millions verdict would because a millions verdict is so outside the ken of middle-class Americans, that they may not even see it as real. $54k on the other hand has some meaning because it can be paid off over time via garnishment, which would really suck.

As for the shadowy conspiracy-theory-esque person bankrolling her case -- well that seems too silly for further sarcastic commentary.

Re:Settlement (4, Interesting)

Vengie (533896) | more than 4 years ago | (#30945346)

IAAL. I am assuming you meant to write "IANAL." A trial court ruling, while not binding on other courts (but certainly persuasive) may in some instances be binding on that same trial court, and as a practical matter, often is even when it need not be. Also, there may be an estoppel issue for the RIAA lurking here.

Re:Settlement (1)

lorenlal (164133) | more than 4 years ago | (#30945696)

IANAL, and if it weren't for wikipedia, I wouldn't even know what an estoppel is. [wikipedia.org]

In fact, I still don't know what it means. I read it and my head hurts. I think I'll go back to my programming homework...

Re:Settlement (1)

suomynonAyletamitlU (1618513) | more than 4 years ago | (#30945806)

From the summary at the top of that wikipedia page:

Estoppel is ... legal and equitable doctrines that preclude "a person from denying or asserting anything to the contrary of that which has, in contemplation of law, been established as the truth, either by the acts of judicial or legislative officers, or by his own deed, acts, or representations, either express or implied."

stripping out the parts that just repeat what has been said different ways for legal purposes and reorganizing:

Doctrines that preclude a person from denying anything that judges or legislators established as truth

I assume it means it would stop RIAA lawyers from making assertions that a judge has ruled are not true, on penalty of law... but you would have to ask a lawyer. I'm not one.

Re:Settlement (1)

anagama (611277) | more than 4 years ago | (#30946118)

I presume he was referencing "collateral estoppel" though it isn't exactly clear to me what issue some other party might want to use as a sword against the RIAA unless it is the decision that damages much over $2250 per song are too high. Anyway, very broadly speaking and leaving plenty of room for clarification, amplification, and exceptions, the type of estoppel you read about is important when thinking about contracts. This should be more informative: http://en.wikipedia.org/wiki/Collateral_estoppel [wikipedia.org]

Re:Settlement (3, Informative)

tomtomtom (580791) | more than 4 years ago | (#30946606)

IANAL either but my interpretation of most forms of estoppel is that they're more detailed equivalents to the playground rule of "no takebacks".

Re:Settlement (1)

ari_j (90255) | more than 4 years ago | (#30945748)

It should also be noted that some trial court decisions are more persuasive than others. This isn't an area where it matters, but the classic example if a federal court looking to the decision of the lowest-level court in the state for some good, old-fashioned Erie guidance. But any legal writing ex cathedra, as I like to call it, from a court at any level is going to inform other courts what to do. If one court says that your damages are excessive as a matter of law, you will have an uphill battle in the next court to convince its judge that the other judge was wrong. It can be done, but even non-binding precedent against you is harder to fight than a clean slate ever was.

Re:Settlement (1)

Vengie (533896) | more than 4 years ago | (#30946234)

mmmm unguided erie guesses. Did you know that the Illinois Supreme Court will only take certified questions from the Supreme court OR the 7th circuit? (talk about ridic...)

Re:Settlement (1)

ari_j (90255) | more than 4 years ago | (#30946568)

Interesting tidbit. Something tells me that SCOTUS doesn't certify a whole lot of questions to anyone, ever.

Re:Settlement (0)

Anonymous Coward | more than 4 years ago | (#30946306)

It's probably relatively close to a fair number

I think you meant to say that it's relatively closer than 2 million dollars?

Re:Settlement (1)

selven (1556643) | more than 4 years ago | (#30945054)

there would be no incentive for people to be honest and pay for their music.

The real world says otherwise [wikipedia.org]

Re:Settlement (1, Insightful)

anagama (611277) | more than 4 years ago | (#30945148)

One album by an already famous band is not exactly earth-shattering evidence. I'm sure everyone who is honest is with themselves, and who has also downloaded media via illegitimate means, will find that he/she downloaded music he/she liked and might otherwise have paid for, but did not.

Re:Settlement (4, Insightful)

CorporateSuit (1319461) | more than 4 years ago | (#30945074)

Anyway, $25k is not an enormous life ruining debt. Yes, it is not trivial, but it is surmountable.

Considering the damages caused by the crime, $500 would be the high-ball figure for a sane punishment. Considering the act of downloading and uploading files is at least as common as speeding and done by millions of otherwise law-abiding Americans, that should be taken into account -- it's a bad law.

Re:Settlement (0)

mystikkman (1487801) | more than 4 years ago | (#30945302)

Speeding is a criminal offense. Copyright infringement is a civil case and real and statutory damages must be taken into account.

Re:Settlement (5, Insightful)

Anonymous Coward | more than 4 years ago | (#30945384)

aha, so because speeding is criminal, and occasionally deadly, it should have lower costs than a civil offense with no chance of causing physical harm to anyone?

Re:Settlement (2, Informative)

Anonymous Coward | more than 4 years ago | (#30945494)

Speeding is not criminal. It is an administrative infraction. Misdemeanor and felony (i.e. criminal) traffic violations are few and far between--mostly reckless endangerment and DUIs.

A civil offense with no chance of causing physical harm is not a meaningful phrase. Contract disputes between two parties regularly run into the tens of millions of dollars, and they are civil offenses with no chance of causing physical harm to anyone. Employment dispute cases include awards in the hundreds of thousands and are civil offenses with no chance of causing physical harm to anyone.

Speeding, that is, exceeding a posted limit set by political forces and not traffic surveys, is an administrative offense with no chance of causing physical harm to anyone. If people are driving at unsafe speeds, then the risk of injury to others may increase, depending on traffic conditions.

Re:Settlement (2, Interesting)

Maxo-Texas (864189) | more than 4 years ago | (#30946262)

I was thinking $50 or $100 per song would be a "reasonable" fine so that would be about $1,200 to $2,400. (tho you could make an arguement for $50 / $100 per "album" if all the songs were from the same album).

I think people forget that they are breaking the law and get themselves into trouble.

While copyright has been perverted, even the original terms gave 28 years of protection. Without a reasonable but stiff fine, you don't have the original 28 years of protection.

Re:Settlement (0)

Anonymous Coward | more than 4 years ago | (#30945092)

Unless I am mistaken, I seem to recall that she owes tens of thousands of dollars to her original lawyer and if she winds up paying nothing to the RIAA, she is still effectively bankrupted by this.

Re:Settlement (5, Informative)

mystikkman (1487801) | more than 4 years ago | (#30945100)

True, she makes the RIAA guys look like the good folks.. and that's hard.

Now, “Here’s what I’m telling them,” says Jammie.

“You guys can settle this on my terms or take it to trial and try to prove the damages.

“You’re going to be lucky to prove more than $24 ”

I do not understand why Slashdot continues to support this woman.
Some background from the Wiki and http://arstechnica.com/tech-policy/news/2009/06/jammie-thomas-takes-the-stand-admits-to-major-misstep.ars [arstechnica.com]

The RIAA first warned Thomas with a cease-and-desist letter and settlement offer.[when?] Thomas refused to settle, and was then sued on April 19, 2006, by several major record labels for copyright infringement.
In the trial, the plaintiffs alleged that on February 21, 2005, Jammie Thomas shared a total of 1,702 tracks online. The plaintiffs, however, sought relief for only 24 of these.

Two weeks after MediaSentry noted the infringement of "tereastarr@KaZaA" (and notified the user via KaZaA instant message that he or she had been caught sharing files) back in February 2005, Thomas-Rasset hauled her Compaq Presario down to the local Best Buy. There was a problem with the hard drive, so Best Buy replaced it under warranty.

That might sound like no big deal until you realize that Thomas-Rasset later provided this new hard drive—and not the one in the machine during the alleged February infringement—to investigators and to her own expert witness. It becomes an even bigger deal when you realize that she swore under oath—twice—that she had replaced the hard drive in 2004 (a full year earlier) and that it had not been changed again since.

Next up was Eric Stanley, who had been hired by Thomas-Rasset before her first trial to examine the same hard drive that was turned over to recording industry investigators. Thomas-Rasset at first told Stanley that the drive had been replaced in 2004, well before the alleged infringement, so this evidence looked like it would be great for Thomas-Rasset... until recording industry lawyers deposed Stanley and Thomas-Rasset on the same day. At some point during that day, Stanley heard something that led him to examine the physical drive once more during a break. It was then he found the sticker with a manufacturing date—of early 2005.

Stanley realized he was looking at a drive that had likely not even been in the machine when the alleged infringement took place.

So she refused a settlement offer at the very beginning even before being represented by a lawyer, then repeatedly lied under oath to judge and jury(no wonder the damages were soooooo high, juries hate being blatantly lied to and want to teach such people a lesson) and now is still being...well... a dick. Imagine if the only punishment if you get caught stealing(stealing real goods, pedants please note) was to just pay up later, everyone would just steal then and pay up later if got caught. On top of that, the $1/song is for downloading the songs, not uploading which has a bigger punishment under law since the plaintiffs potentially lost revenue. I am sure this distinction will be lost on most of the posters here again who will repeatedly say the actual damages are just $24.

Anyway this was one of the worst cases that should have gone to court against the RIAA. They sued wrongly lots of times but this one case should've been settled long ago by Thomas, she knew she was in the wrong and tried to weasel her way out of it by lying.

More, if you want to read:

Why was Thomas-Rasset's password-protected computer running KaZaA in February 2005, and with the "tereastarr" name, if she had not set up the software? And since no one else had the password, and since her kids were young and had a computer account of their own anyway, who might possibly have used a machine in her bedroom to share thousands of songs without her knowledge?

But those are questions for tomorrow. After Thomas-Rasset makes her best case, expect the recording industry lawyers to really bore in on the inconsistencies in her testimony in a way they did not today.

The case against her certainly looks strong, but Thomas-Rasset remains defiant. When asked point-blank today if the KaZaA share folder seen by MediaSentry was hers, she said clearly, "It is not mine."

Re:Settlement (1)

UndyingShadow (867720) | more than 4 years ago | (#30945276)

Because the enemy of Slashdot's collective enemy is our friend.

Re:Settlement (4, Insightful)

melikamp (631205) | more than 4 years ago | (#30945338)

I support her cause because they cannot prove any damages at all. Them downloading a song does not actually cause them any damage.

I also support her cause because, even if they could prove that her sharing resulted in X copies of the song being distributed illegally in a way which caused a loss of sale, then the actual damages to them would be something between X/10 and X dollars. Suppose X=25. Asking for $250 and the attorney fees would be just. Asking for $2500 would be an overkill, but they think they should get at least $25000 = 1000 times the damages, and that without ever proving the loss of a single sale.

Re:Settlement (1)

mystikkman (1487801) | more than 4 years ago | (#30945872)

I support her cause because they cannot prove any damages at all. Them downloading a song does not actually cause them any damage.

This is a civil case. Thus, a preponderance of evidence is all that's needed and not iron clad proof.

Re:Settlement (1)

melikamp (631205) | more than 4 years ago | (#30945990)

If it is a civil case, then statutory punitive damages should not be awarded: it should be enough that the other party is compensated for their loss, which, again, they failed to show.

Re:Settlement (0)

Anonymous Coward | more than 4 years ago | (#30945530)

I do not understand why Slashdot continues to support this woman.

Because she might be vice-president some day?

Re:Settlement (1, Insightful)

Anonymous Coward | more than 4 years ago | (#30946122)

"I do not understand why Slashdot continues to support this woman."

Because being a dumbass or even an embarrassment doesn't make the law any less unjust.

During the proceedings, Flynt reportedly shouted "Fuck this court!" and called the justices "nothing but eight assholes and a token cunt" (referring to Justice Sandra Day O'Connor) ... he wore an American flag as a diaper and was jailed for six months for desecration of the flag."

Re:Settlement (1)

Maestro4k (707634) | more than 4 years ago | (#30946128)

I do not understand why Slashdot continues to support this woman.

While I find her unsympathetic at best, and am somewhat inclined to not support her going to trial a third time, that's offset by the RIAA's willingness to go for a third trial simply because they don't want the reduced award of $54,000 to be made official. I'm kinda having trouble liking either side here, but since the RIAA (in court anyway) finds $54,000 to be too little an award for sharing some 24 odd songs, I find Thomas slightly more sympathetic.

Basically both sides are idiots and jerks, but the RIAA's the bigger jerk, so I'm supporting the lesser one. That said, I don't think she's really doing anyone any favors here, unless you count her costing the RIAA more money on legal fees as helping stick it to the RIAA. And I suppose her helping show the RIAA's unwillingness to accept something approaching a realistic award in a file-sharing case is beneficial in making the RIAA look like the giant assholes they really are. But it's hard to understand how she can possibly think she'll win, ever. They had the goods on her, unlike many other cases, and her own testimony was probably MORE damning than the RIAA's evidence.

Re:Settlement (4, Insightful)

Urza9814 (883915) | more than 4 years ago | (#30945404)

$54k is CERTAINLY excessive. As is $25k. This is not a criminal case. The payment is not a fine to discourage crime, it's a payment to cover the damages. She shared 24 songs. At $54k, that's more than $2k per song. And when you can buy those songs for $1 each, that's saying that she was personally and directly responsible for 2,000 people not buying each one of those songs. How is that in any way even possible? A single person sharing a single song will NEVER be directly responsible for _thousands_ of lost sales. It just doesn't work that way. And the RIAA has certainly not proven such a loss. And again, this is a civil case. The fine is not a punishment or deterrent, it is pure and simple restitution.

For a reference:
http://www.rbs2.com/cc.htm#anchor111111 [rbs2.com]
"In general, a losing defendant in civil litigation only reimburses the plaintiff for losses caused by the defendant's behavior."

Re:Settlement (1)

mystikkman (1487801) | more than 4 years ago | (#30945880)

Erm no.

From the Wiki:

Statutory damages are pre-established damages for cases where calculating a correct sum is deemed difficult. /quote.

Re:Settlement (3, Insightful)

grimJester (890090) | more than 4 years ago | (#30946282)

Statutory damages are pre-established damages for cases where calculating a correct sum is deemed difficult

This still doesn't mean they should be significantly higher than the actual damages. They're currently several orders of magnitude higher than any reasonable approximation of actual damages. Difficult to calculate != set the figure high to punish people more.

Re:Settlement (2, Interesting)

SCPRedMage (838040) | more than 4 years ago | (#30946288)

I think by this time we ALL understand what statutory damages are, but the point is that they need to be related to what the ACTUAL damages are. As the GP stated, statutory damages do not exist to punish the offender, so when the statutory damages far exceed the maximum possible REAL damage, something's wrong.

Re:Settlement (1)

cenc (1310167) | more than 4 years ago | (#30945416)

Anyone know what the songs she infringed go for on itunes or other online music stores?

Re:Settlement (1, Insightful)

Anonymous Coward | more than 4 years ago | (#30945436)

The fine SHOULD be no more than the cost of downloading the songs! Anything more is excessive and outrageous!! The biggest thing deterring people from paying for music today is the lack of high quality music and th fact that the music is only available in low quality and/or DRMed formats!!! Even $1.00 per track is too much to pay for music in the presently available low quality DRMed formats. Give people good quality music in high quality non-DRMed formats at a reasonable price ($0.25 to $0.50 per track) and you will see many more people willing to pay for music downloads!!

Re:Settlement (1)

Chris Tucker (302549) | more than 4 years ago | (#30945932)

"Even $1.00 per track is too much to pay for music in the presently available low quality DRMed formats."

Actually, That's about what we paid for 45 RPM singles back in the day.

$0.99 for an iTunes track is perfectly reasonable.

I don't care a fat rat's ass about that track having some DRM on it. It plays on the Mac under iTunes and it'll play on my iPod (when I get around to buying a replacement for my dead 2nd Gen iPod)

If you don't like how the iTunes Store does business, don't buy anything from the iTunes Store.

Simple, isn't it?

Re:Settlement (1)

anagama (611277) | more than 4 years ago | (#30945976)

I always check Emusic before buying from iTunes and for what I like, I probably find it on Emusic 50-60% of the time. I pay 33.3 cents per track, i.e. $10/mo for 30 tracks. No DRM -- plain jane MP3s. So why isn't Emusic radically famous? Apparently, price isn't everything.

Re:Settlement (2, Interesting)

Runaway1956 (1322357) | more than 4 years ago | (#30945512)

I was doing moderation - but I must reply here.

COPYRIGHT law was never meant to apply to little people sharing and making personal copies. From it's earliest conception, copyright law was meant to apply to BUSINESS COMPETITION. In effect, if there was a dollar to be made from an idea, a song, a writing, then the AUTHOR should make that dollar.

When no financial gain is at stake, it's a whole different world. If I made a thousand copies of each of my songs/movies/softwares, and GAVE THEM AWAY, I would not be in violation of the SPIRIT OF COPYRIGHT LAW. But, if I profited just one penny on each copy, then I would be in violation.

Copyright law was, and should be, aimed at for-profit businesses, large or small. Producing copies of the Household Mover's Guide, and selling them for $20 at a truckstop late at night is a clear violation of copyright law. The motive is profit.

Setting up a site where Joe Sixpack can download music for ten cents or ten dollars per month is also profit driven.

Sharing a few songs via P2P is NOT PROFIT DRIVEN, and shouldn't even be in court as a copyright violation.

My two cents.

Re:Settlement (1)

mystikkman (1487801) | more than 4 years ago | (#30945954)

Err... Sorry. Most P2P software are designed to give uploaders better download speeds. So it can be claimed that they're benefiting from sharing files.

Eg. Kazaa

In order to support the philosophy and principles upon which peer-to-peer technology is based, Kazaa Media Desktop now includes a Participation Level. This is a title or index assigned to each user based on the way in which they use the software. Basically, the more integrity rated files you share, the better your downloading performance will be. "

Bittorrent:

Choking and Optimistic Unchoking
Choking is done for several reasons. TCP congestion control behaves very poorly when sending over many connections at once. Also, choking lets each peer use a tit-for-tat-ish algorithm to ensure that they get a consistent download rate.
The choking algorithm described below is the currently deployed one. It is very important that all new algorithms work well both in a network consisting entirely of themselves and in a network consisting mostly of this one.
There are several criteria a good choking algorithm should meet. It should cap the number of simultaneous uploads for good TCP performance. It should avoid choking and unchoking quickly, known as 'fibrillation'. .It should reciprocate to peers who let it download. .Finally, it should try out unused connections once in a while to find out if they might be better than the currently used ones, known as optimistic unchoking.
The currently deployed choking algorithm avoids fibrillation by only changing choked peers once every ten seconds.
Reciprocation and number of uploads capping is managed by unchoking the four peers which have the best upload rate and are interested This maximizes the client's download rate. .These four peers are referred to as downloaders, because they are interested in downloading from the client.
Peers which have a better upload rate (as compared to the downloaders) but aren't interested get unchoked. If they become interested, the downloader with the worst upload rate gets choked. If a client has a complete file, it uses its upload rate rather than its download rate to decide which peers to unchoke.
For optimistic unchoking, at any one time there is a single peer which is unchoked regardless of its upload rate (if interested, it counts as one of the four allowed downloaders). Which peer is optimistically unchoked rotates every 30 seconds. Newly connected peers are three times as likely to start as the current optimistic unchoke as anywhere else in the rotation. This gives them a decent chance of getting a complete piece to upload.

Re:Settlement (0)

Anonymous Coward | more than 4 years ago | (#30946196)

Err... Sorry. Most P2P software are designed to give uploaders better download speeds. So it can be claimed that they're benefiting from sharing files.

Where is the monetary gain in uploading to get better download speeds? Oh, I see, you're ignoring the first two definitions of "profit" and the clearly monetary use of the word by the original poster.

I think it's a safe bet that the only profit motive here is you posting in this thread.

Re:Settlement (0)

Anonymous Coward | more than 4 years ago | (#30945600)

Why is $1/song excessive? I can buy an album with 15 songs for about $20 which puts it in that ballpark. Not being obnoxious, just don't understand *why* you make that assertion (I'm happy to be educated).

Re:Settlement (1)

anagama (611277) | more than 4 years ago | (#30946152)

When I said excessive in the opposite direction, I meant "excessively lenient".

Re:Settlement (1)

Sir Homer (549339) | more than 4 years ago | (#30945706)

What makes you think she will end up paying a dime, even if this judgement stands? The civil court system is not designed to put defendants in debt. The RIAA has a time limit to somehow collect the damages, and that is usually no more then a few years. This is why lawyers tend to sue people who have money to begin with.

Re:Settlement (0)

Anonymous Coward | more than 4 years ago | (#30945776)

I suspect Thomas will rue the day she turned down the $25k settlement.

Who talks like that?

Re:Settlement (4, Insightful)

Rockoon (1252108) | more than 4 years ago | (#30945996)

Anyway, $25k is not an enormous life ruining debt. Yes, it is not trivial, but it is surmountable.

What it is, is unconstitutional.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Re:Settlement (2, Interesting)

Philip_the_physicist (1536015) | more than 4 years ago | (#30946120)

In Australia, there are no statutory damages at all for non-commercial infringement, stricter rules about actually suing the right person, and a loser-pays system, and not one person has been sued by the recording industry in the last 15 years for file sharing. Since damages are limited to actual damages, you are actually better off to pirate, get sued (in the small claims court), and pay up than you are buying the files legitimately (assuming you download enough to cover the lawyers fees). Despite this, in the three nearest significant shopping centres to me, there is at least two record shops, and several of the smaller ones have one, not counting target etc. who all sell music and DVDs. From this, I assume the industry is still profitable.

Re:Settlement (0)

Anonymous Coward | more than 4 years ago | (#30946356)

The fines are not excessive, and this is where mandatory penalties need to be legislated so judges cannot override and juries cannot decide to excess.

The fines per song really should be calculated based on production cost, plus promotion expenses, plus projected losses per download... all multiplied by three.

So many forget that even if the media is very inexpensive, there is still value invested in every song that is available on that media, no matter how popular or unpopular the song may be.

Re:Settlement (1)

aCC (10513) | more than 4 years ago | (#30946650)

Heh... Yes, she will rue it. Rue it hard. [penny-arcade.com]

Not settling (3, Insightful)

oldhack (1037484) | more than 4 years ago | (#30944910)

Not settling will set the precedent for future RIAA damage?

54k seems excessive, but probably way less than what the RIAA lawyers would like to charge for their time.

Re:Not settling (2, Insightful)

selven (1556643) | more than 4 years ago | (#30945036)

54k seems excessive, but probably way less than what the RIAA lawyers would like to charge for their time.

The campaign has always been about fear, never about direct profit - the economic status of the defendants prevents the RIAA from possibly getting more than 100k anyway.

Re:Not settling (2, Informative)

Dhalka226 (559740) | more than 4 years ago | (#30945186)

It will set a precedent, but probably not a binding one. For it to even have a shot at being binding the next case would have to be heard in front of the same court, and even then it's not hard to wiggle away.

The reason? A precedent applies to the exact same set of circumstances. If I punch you in the nose and you sue me for $5,000, then I punch you in the nose again and you sue me again there's a precedent that the reward should be $5,000 (and let's assume it's heard by the same court and the precedent is binding). But your lawyer could easily argue that I punched you harder, or your nose was still tender from last time, or I'm a repeat nose-punching offender, or any other number of reasonable or inane excuses for why this set of circumstances isn't the same as the previous set of circumstances and thus the previous precedent does not apply.

$54,000 for X songs? But your honor, Miss. Newrespondant pirated X+1 songs! Clearly the reward should be $108,000. Hmm? Why not ($54000/X) * (X + 1)? Well clearly this is a much worse crime and we need to clamp down harder in order to deter the ever-increasing number of songs people are pirating!

Re:Not settling (1)

anagama (611277) | more than 4 years ago | (#30945286)

The type of precedent it would set is called "persuasive precedent" -- this is why I phrased the case "influential" previously. "Persuasive precedent" does not require other courts to follow the same decisional route in similar circumstances. The type of precedent you are talking about, "binding precedent", is made only by appellate courts and applies only to the courts below that appellate court. So if the court of appeals above the court this decision came out of, issued a published decision, then the case would be "binding precedent" on the courts below that specific appellate court. The decision would still be nothing more than "persuasive precedent" for courts outside the appellate court's jurisdiction. For example, a trial court in San Diego could look at the decision and decide whether or not to apply it depending on the court's own beliefs. This happens. One of the primary purposes of supreme courts (*), whether state or federal, is to resolve situations where appellate courts in different districts come to different decisions.

(*) I belive that in NY state, trial courts are called supreme courts. By "supreme courts", I refer to the court at the apex of the state's appellate system.

Re:Not settling (1)

Vengie (533896) | more than 4 years ago | (#30945374)

New York: Supreme Court (Trial) => Appellate Division (App Div) => Court of Appeals(Highest Court in State). Also you are not entirely correct, in some circumstances, Appellate decisions are binding to ALL lower courts, and in some jurisdictions, they are binding on only those lower courts over which they have direct review. (So the Nassau County Supreme court wouldn't be bound by 1st Department Decisions, but New York County Supreme would. N.b. In New York, this is not the case -- Appellate Decisions from any department are binding provided that the department with direct review does not have conflicting precedent)

Re:Not settling (4, Informative)

Vengie (533896) | more than 4 years ago | (#30945358)

This is not criminal. It's civil. All of the things you cite (except one) go to damages, not liability. Going to law school has made me hate slashdot so much more.

Re:Not settling (1)

ColdWetDog (752185) | more than 4 years ago | (#30946300)

Going to law school has made me hate slashdot so much more.

Just be glad you are not of the biological persuasion. I've given up trying to discuss evolution and DNA biology around here.

I think the only knowledge base you can count on here at Slashdot is car analogies.

Let's play this out to the end, shall we? (3, Insightful)

Nefarious Wheel (628136) | more than 4 years ago | (#30945118)

I would like to see a definitive, ultimate outcome along the lines of the trend I'm seeing here -- reduction of Jammie's fine from the absurdly egregious down to a level she can afford without crippling her family financially for the rest of her life, over a few unlicensed uploads.

Yes she broke the law, there should be a penalty for the infraction, but all the settlements so far have been unjustly high. And yes, I'd like to see it played out to the point where a precedent will be set and honoured.

The RIAA are the worst of the world's ambulance chasers. They shouldn't be allowed to win these huge entitlements, simply because they can afford to make more noise.

Justice should be the outcome of rule by law, decent and upstanding law, not simply "rule by the loud".

Re:Let's play this out to the end, shall we? (1)

mystikkman (1487801) | more than 4 years ago | (#30945314)

Justice should be the outcome of rule by law, decent and upstanding law, not simply "rule by the loud".

She repeatedly lied under oath and willingly misrepresented facts to weasel her way out of the case. Juries don't take it kindly when you do that and hence slapped down the maximum fine permissible under law which the judge later reduced because it was excessive.

Re:Let's play this out to the end, shall we? (1)

Vengie (533896) | more than 4 years ago | (#30945380)

What does that have to do with what the LAW is. Bad facts make bad law, sometimes, but there is a question of law here.

Re:Let's play this out to the end, shall we? (3, Funny)

ColdWetDog (752185) | more than 4 years ago | (#30946310)

When the facts are on your side, bang on the facts.

When the law is on your side, bang on the law.

When neither the facts nor the law are on your side, bang on the table.

Re:Let's play this out to the end, shall we? (1)

rahvin112 (446269) | more than 4 years ago | (#30945656)

And now what they want is the higher courts to adjudicate whether other cases where the supreme court has ruled that 10 times actual damages in the constitutional limit for punitive damages applies. If the higher courts rule that the limits congress set aren't legitimate in cases like these and that the 10X limit applies then her damages could be reduced by another couple factors. Assuming the 10X rule the actual damages in this case would need to be more than $5000 to justify even the lowered award. You would have a hard time proving uploading 24 songs is worth $5k in actual damages. At a dollar a song it would have had to have been shared more than 200 times. Even if you take into account the original 1000+ song shared, which the RIAA only proved 24 were theirs, then you still need more than 5 shares per song. Given this all happened on a modem I doubt she shared the songs more than once.

There is no question in my mind that she's liable for damages, but those damages should be reasonable, at most a few thousand if you throw in the full punitive damages for someone that saw no economic benefit from the copying. It's simply insane for someone that did this for no profit to be hit with millions of dollars in penalties. Those were the penalties congress enacted to stop mass copying by manufacturers. Damages sufficient to prevent large enterprises from hoping to sell more than the damages would be. Those laws simply are excessive when dealing with casual sharing. This would be no different in my mind that going after someone who made a mix tape for someone with $2million in damages. It's excessive and it should be unconstitutional under the equal protection clause.

Re:Let's play this out to the end, shall we? (2, Insightful)

mystikkman (1487801) | more than 4 years ago | (#30946052)

There is no question in my mind that she's liable for damages, but those damages should be reasonable, at most a few thousand if you throw in the full punitive damages for someone that saw no economic benefit from the copying. It's simply insane for someone that did this for no profit to be hit with millions of dollars in penalties..

She was initially offered a few thousand dollars settlement and refused it so that she could go to court and lie under oath about replacing her hard disk in 2004 instead of 2005 among lots of other lies to weasel her way out. Her defense tried every trick in the book which drove up attorney costs for all concerned. After all this she claims that she's only liable for $24. And she's not dumb, she has a BS in Business Administration. I find it hard to feel pity for her.

Re:Let's play this out to the end, shall we? (0)

Anonymous Coward | more than 4 years ago | (#30945678)

If it comes down to "who is more moral", I think she wins.

Estimated actual damages (5, Insightful)

gweeks (91403) | more than 4 years ago | (#30945164)

Estimated actual damages

24 songs with a $.99 retail value. Assume the $.99 is the damage per song that a sale was lost on. (That's not the case actually as the wholesale price is the damage amount.) Assume every song downloaded is an actual lost sale. (Again not true, but simple for this calculation.) Assume a seed ration of 5, so for every song 5 copies were made. (Again not true, 5 is an insanely high ratio on P2P networks as 1:1 is common.) 24*.99.*5 = $118.80 actual losses incurred. 10 times that is the constitutionally recognized limit.

$1188.0

That's why RIAA doesn't want the constitutionality of the damages award adjudicated.

Re:Estimated actual damages (0)

Anonymous Coward | more than 4 years ago | (#30945284)

see numbers, see numbers fly out of my ass with a side of rainbows and pink prancing ponies.

Re:Estimated actual damages (1, Insightful)

Anonymous Coward | more than 4 years ago | (#30945354)

Thats a fair assessment of what damages actually occured by her actions. I'm sick of litigation to "teach other people lessons." She caused "damages" to your "intellectual property" (i love that term), and by that judgement she is paying for those damages plus a little more.

Why does everything need to be a moral panic?

Re:Estimated actual damages (1)

Nefarious Wheel (628136) | more than 4 years ago | (#30945368)

see numbers, see numbers fly out of my ass with a side of rainbows and pink prancing ponies.

See astroturf fly in a pink RIAA sky. Are you a shill, dear Anonymous Coward?

Re:Estimated actual damages (0)

Anonymous Coward | more than 4 years ago | (#30945480)

Where does this so-called 'constituitionally recognized limit' come from (citation)? It is quite common to have statutory fines that are well above that, and as far as I know they have not been ruled unconstitutional. For instance, the city where I live has parking meters. It costs $.05 for 15 minutes. If you don't pay the nickel, you are fined $50.00, 1000 times the so-called 'damages'. As another example, New York has a bottle law - you must pay a nickel every time you buy a beverage in a bottle or can. When you are finished with it, you take the bottle to a retailer and get the nickel returned. If you return a bottle for which no deposit has been payed, you are subject to a civil fine of $100 for each can/bottle, or 2000 times the so-called 'damages'.

It should be obvious in all these cases that the purpose of the fines is to deter the behavior in the first place. If the only consequence of breaking the law is actual damages, there is absolutely no point in obeying the law, so the law may as well not exist. The same is true if the fine is 10x, and there is less than a 10% chance of getting caught.

Re:Estimated actual damages (1)

ljw1004 (764174) | more than 4 years ago | (#30945886)

At least it's good that you count the damages due to distributing, rather than just the initial downloading (as NewYorkLawyer insists on doing!)

Your 1:1 ratio is talking about number of bytes transferred. Your calculation then presupposes that the penalty for copying half a work be half as much as the penalty for copying a full work. I don't believe that's right. So I'd take the average number of peers that you upload to, which from what I've seen is usually closer to 50. So, $11,000.

Re:Estimated actual damages (4, Insightful)

Splab (574204) | more than 4 years ago | (#30946034)

Actually I think $1188 fine would be better for RIAA, headlines with "millions in fine for copyright infrigement" while looking impressive is such a big number most people can't cope with it.

$1188 fine is something people can releate to, that's the new television they where saving up for, the repair bill for their car or something similiar.

Personally, if I got a fine for a bazillion dollars I wouldn't care, there is no way it would ever be repaid and they can't kill you, they might make life miserable, but there are ways around that - getting a fine for $1188 would suck hard, you can't justifiable go bankrupt, it doesn't pay to try to bail on it. Basically you would just have to suck it up and pay the damned thing.

How fat is too fat? (0)

groslyunderpaid (950152) | more than 4 years ago | (#30945306)

I'm 6-1, 230 pounds. Is that fat? If I was only 180, would that be fat? How about 250? 350? 500? 800?

I don't know exactly where the line is, but I can distance it out a bit and make some definitive marks. At 6-1, Let's say anything under 140 is too skinny, and anything over 300 is fat. Those 2 numbers could probably legitimately slide closer together, but they are true where they are.

It's not that difficult of a concept. $24 is a joke. Just as silly would be anything over, idk, let's just say $3000. In all reality, those numbers should slide toward each other, but I think anyone with an IQ over 100 should be able to see that anything over 3 grand is retarded.

Settle and ask online for donations (0)

Anonymous Coward | more than 4 years ago | (#30945350)

Shouldn't she settle for 25K and then ask for donations online to pay it off? That would show the RIAA what we think of them.

The courts are increasingly unfriendly to RIAA (4, Insightful)

mykos (1627575) | more than 4 years ago | (#30945464)

Sooner or later everyone in the world will have heard music that they weren't entitled to hear, or seem movies that they weren't entitled to see, or read books that they weren't entitled to read.

At that point, it's going to be hard to convince a jury people that a multimillion dollar corporation should be able to bankrupt a single mother with children because they liked music.

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