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8th Circuit Upholds $220,000 Verdict In Jammie Thomas Case

Soulskill posted more than 2 years ago | from the more-expensive-than-itunes dept.

Music 285

NewYorkCountryLawyer writes "The U.S. Court of Appeals for the 8th Circuit has upheld the initial jury verdict in the case against Jammie Thomas, Capitol Records v. Jammie Thomas-Rasset. This case was the first jury trial for a file-sharing suit brought by the major record labels, and focused on copyright infringement for 24 songs. The Court of Appeals has ruled that the award of $220,000, or $9250 per song, was not an unconstitutional violation of Due Process. The Court, in its 18-page decision (PDF), declined to reach the 'making available' issue, for procedural reasons."

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Don't copy that floppy (-1, Troll)

Mr. Kinky (2726685) | more than 2 years ago | (#41302617)

Fifa98, WHOOHOO! [youtube.com]

Re:Don't copy that floppy (0)

Dr. Sheldon Cooper (2726841) | more than 2 years ago | (#41302711)

Please stop.

Re:Don't copy that floppy (0)

Anonymous Coward | more than 2 years ago | (#41303901)

So does the judge call her "Jam-e"? Because that's how her name is spelled. Like a sandwich with too much jam, it is very jammie!

Good Lord (5, Insightful)

Dr. Sheldon Cooper (2726841) | more than 2 years ago | (#41302653)

Having people who know nothing about technology make case law about technology is like having a Capuchin monkey fix the brakes on your car: cute and funny at first, but ultimately a bad idea that is also highly dangerous.

yikes! (0, Troll)

noh8rz10 (2716597) | more than 2 years ago | (#41302683)

regardless of my personal convictions, it looks like torrenting songs is a big crime with big consequences. I'll think I'll just do itunes. it's more convenient anyway. to be honest, most of the stuff that is torrented is fluff anyway that you wouldn't pay for. Call me maybe!

Re:yikes! (-1, Offtopic)

noh8rz10 (2716597) | more than 2 years ago | (#41303199)

to those who are itchy to mark me troll - why? i expressed an honestly held conviction in a calm and rational matter, and supported my modest claims. c'mon, i'm just trying to be part of the slashdot community. why give me a hard time?

Re:yikes! (2, Informative)

medcalf (68293) | more than 2 years ago | (#41303251)

Because "troll" is apparently "disagree", especially lately.

Re:yikes! (3, Insightful)

ackthpt (218170) | more than 2 years ago | (#41303273)

to those who are itchy to mark me troll - why? i expressed an honestly held conviction in a calm and rational matter, and supported my modest claims. c'mon, i'm just trying to be part of the slashdot community. why give me a hard time?

probably unpopular to take that tone - someone thinks you are an Apple or RIAA apologist. For my money, I too, buy the junk I listen to or watch. I may always be on the right side of things, but that never stops someone suing me if they feel they oughta and their lawyers are all sitting around the office with nowt to do.

Re:yikes! (3, Insightful)

FilmedInNoir (1392323) | more than 2 years ago | (#41303337)

It's not the comments that are the troll, it's you and your green skin. ;)
But ya, I've warned people off using any sort of sharing/P2P/whatever because it's just not worth it anymore.
Until there is some major change in policy (and right now it's full steam ahead for fascism) I'm staying away until the
RIAA/MFAA(whatever) runs out of witches to burn.

Re:yikes! (5, Funny)

dyingtolive (1393037) | more than 2 years ago | (#41303421)

The terrorists have won.

Re:yikes! (1)

Anonymous Coward | more than 2 years ago | (#41303587)

Because its gotten so bad that iTunes (and Netflix and Hulu and other legitimate digital distribution services) are bandage solutions to organ loss.

If "making available" a mere 24 songs will get you hit with a fine of $220,000, god help you if you share your iTunes account because thats "making available" tens/hundreds/thousands of songs to non-licensed user(s). And you can't argue that "the law is only going after evil torrenting file sharers!" because the RIAA already attempted to sue a dead person over the issue.

Re:yikes! (1)

Bob9113 (14996) | more than 2 years ago | (#41303865)

to those who are itchy to mark me troll - why?

I'm going to assume that is a serious question and give you the straight answer:

The reason they are marking you "troll" is because it is the closest thing to "shill" in the mod system. Your comment is indistinguishable from that of a copyright industry shill and you have a high user ID. There's more to it than that in the way your post is presented -- it looks suspicious -- but I'm not going to tell you any more. If you are a shill, I don't want you to know where your veil is thin.

Re:yikes! (1)

rastoboy29 (807168) | more than 2 years ago | (#41303473)

Your personal convictions are not, obviously, convictions at all.

Re:yikes! (0)

noh8rz10 (2716597) | more than 2 years ago | (#41303651)

frownie face :(. I believe that sharing is ultimately caring, and artificial restrictions are bad for all parties. But i have enough since to know that the law does not agree with me, and I need to choose between following my heart and following the law. because i choose the law, does that mean my convictions are in doubt? or does it mean i'll prefer a different hill to die on?

Re:Good Lord (0)

Anonymous Coward | more than 2 years ago | (#41302685)

Who saya they don't know about technlogy? Because they disagree with you?

Re:Good Lord (0)

Anonymous Coward | more than 2 years ago | (#41302925)

Ultimately when it comes to expert judges there are two ways things can pan out:

1. Use elected judges and have the judicial analogue to a meritocracy, or have them select among themselves and have justice dispensed by more of a clique than it is now.

2. Have judges that know as little as possible.

I choose the latter; it's what witnesses and amici curiae are for.

Re:Good Lord (0)

Anonymous Coward | more than 2 years ago | (#41302971)

Have you read this ruling? In what way did they demonstrate a lack of understanding of the technology involved? What's your background in law that you feel able to criticize the judges, while simultaneously complaining that their lack of technological understanding should prevent them from ruling on those matters?

Re:Good Lord (5, Insightful)

man_of_mr_e (217855) | more than 2 years ago | (#41303191)

This isn't a case of lack of knowledge of the technology. It's a case of the law being absurd, and the judges hands being tied. It's absurd that sharing a couple dozen songs can carry a greater liability than murdering someone (I'm talking civil law here).

The punishment certainly does not fit the crime, but that law allows these kinds of damages.

If you don't like it, lobby your lawmakers.

Re:Good Lord (4, Interesting)

TFAFalcon (1839122) | more than 2 years ago | (#41303287)

Is the judge allowed to tell the jury about jury nullification? If he is, then his/her hands are never tied.

Re:Good Lord (4, Informative)

Joe Snipe (224958) | more than 2 years ago | (#41303465)

No they are not allowed to tell the jury about jury nullification. technically no one is allowed to tell the jury about jury nullification, and doing do would be precedent for a mistrial.

Re:Good Lord (4, Interesting)

swillden (191260) | more than 2 years ago | (#41303577)

Is the judge allowed to tell the jury about jury nullification? If he is, then his/her hands are never tied.

I doubt that would have had any effect in this case. Three different juries: The first found that Thomas-Rasset willfully infringed and awarded $222K; the second was given instructions that were slightly more favorable to her, and found she infringed and awarded $1.9M; the third was only asked to reconsider the very high award of the second and awarded $1.5M.

In all three cases, if the juries had had any inclination to favor Thomas-Rasset they could at the very least have awarded the statutory minimum of $750 per song, or $18,000, but they awarded 12, 105 and 83 times that minimum. What makes you think they'd have voted to nullify?

Re:Good Lord (1)

bws111 (1216812) | more than 2 years ago | (#41303461)

Why, in every article about law, does some idiot have to say something to the effect of 'you get away with less for murdering someone'? It is flatly untrue.

Case in point - the judgment in this case was less than $10K/song (it is not the court nor law's fault that she did it 24 times). OJ Simpson was ordered to pay $33M for the wrongful death of Ron Goldman. So it seems like the 'liability' for murder is approx 33000 times greater than the liability for copyright infringement.

Re:Good Lord (1)

mr1911 (1942298) | more than 2 years ago | (#41303631)

Why, in every article about law, does some idiot have to say something to the effect of 'you get away with less for murdering someone'? It is flatly untrue.

Except for the fact that your example proves the point you intended to contradict.

OJ Simpson got away with murdering Ron Goldman and Nicole Simpson in that he was not sentenced to prison, or what would have been more correct, to death.

The fact that OJ Simpson was ordered to pay a fine for wrongful death means that he did, indeed, get away with murder.

Re:Good Lord (3, Informative)

bws111 (1216812) | more than 2 years ago | (#41303777)

If you want to gloss over the minor fact that he was not convicted of murder, then you have a point. His not being convicted had absolutely nothing to do with murder carrying less punishment than copyright infringement.

The wrongful death suit was a civil case, like this one. And the GP carefully pointed out that his was talking about civil law. And in these cases, in civil court, murder carried a 33000 times greater liability than copyright infringement.

Re:Good Lord (2)

N0Man74 (1620447) | more than 2 years ago | (#41303713)

Sure. The OJ Simpson trials were of a completely ordinary sort, completely representative of ordinary American trials.

Re:Good Lord (1)

bws111 (1216812) | more than 2 years ago | (#41303815)

If you are going to make a comparison between copyright and murder civil trials (which the GP, not I, did) then you are going to get comparisons between those cases. There are no ordinary civil murder trials.

Re:Good Lord (2)

man_of_mr_e (217855) | more than 2 years ago | (#41303793)

The OJ trial was not typical of wrongful death trials. More often, someone gets a 50k award or less.

Re:Good Lord (1)

bws111 (1216812) | more than 2 years ago | (#41303855)

And those are almost never murder cases. They are accidents, negligence, etc. Where are the $50K murder cases?

Re:Good Lord (1)

cpghost (719344) | more than 2 years ago | (#41303731)

If you don't like it, lobby your lawmakers.

Sure, go ahead... if you have deeper pockets than the MAFIAA. If you don't, lobbying against the excesses of Copyright Law could put you on a terrorist list or something like that. At least that's my impression of the US political system: they consider the so called "intellectual property" as the new Oil of the 21st century. Their oil, to monetize to the max and beyond. And as in every Oil war so far, people get killed, in real life or symbolically/figuratively. In this particular case, Jammie Thomas is the sacrificial lamb, financially executed on the altar of the Holy Copyright. Absurd, of course, but preventing the free flow of ideas with red tape is the current state of Homo Sapiens in all its wisdom and glory, right?

Re:Good Lord (1)

tomhath (637240) | more than 2 years ago | (#41303433)

One could make the same comment about people unfamiliar with copyright law deciding on their own what should be legal.

Blah blah blah... (0)

Anonymous Coward | more than 2 years ago | (#41302671)

Some nonsense about the costs of receiving permission to distribute copyrighted works from a patent lawyer trying to rationalize this garbage

It will not change anything (5, Insightful)

Anonymous Coward | more than 2 years ago | (#41302691)

We will continue to share and the labels will learn their place.

Re:It will not change anything (-1, Troll)

Anonymous Coward | more than 2 years ago | (#41303471)

We will continue to share and the labels will learn their place.

AH! AHAHAHA! I have no pity for those whose commit illegal acts then act surprised, or even more so, angry, when they are tried for those crimes!

Re:It will not change anything (1)

Anonymous Coward | more than 2 years ago | (#41303617)

They can win this time. But ultimately, we all know the recording industry and major labels are a thing of the past. We will not see the industry die in some loud crash or a blaze of glory. It will die slowly and with not much more than a whimper. This is already underway and is only a matter of time. Attrition and the artists will be the death of the industry. Small independent labels are the future. Those that do support the artists and not CEO salaries will be the victors.

Re:It will not change anything (4, Insightful)

PoliTech (998983) | more than 2 years ago | (#41303857)

Napster, limewire, bittorrent, ... the next method will once again catch the lawyers and copyright police by surprise and completely off their guard. Then when the new method (whatever it may be) becomes mainstream enough that the lawyers and copyright trolls finally figure it out, the media moguls will pursue trial and conviction of another sacrificial lamb to attempt to staunch the bleeding, and once again it will be much too little and much too late.

Too bad for the sacrificial lamb, but as has been said before, if we want the laws changed, we need to work to change them. If we want the media companies to change we need to buy enough stock in the media corporations to exert some influence with regards to marketing, and IP.

Most downloaders however won't bother to expend any time or energy to change the law, or vote on stocks. They'll simply move on to the next media sharing methodology and happily continue on, (as they always have) while the "Mainstream" eventually catches up.

So the story continues ... Until the media moguls finally figure out that they are stepping over dollars to pick up dimes, there will be one after another file sharing methods, and one after another sacrificial lambs.

when is the revolution ? (1)

RichMan (8097) | more than 2 years ago | (#41302779)

Somewhat seriously. The aristocrats of the Capitalistic system are totally messing with us.

Re:when is the revolution ? (0, Flamebait)

Desler (1608317) | more than 2 years ago | (#41302843)

The revolution is when you start it, but that requires leaving mommy and daddy's basement instead of playing armchair general.

Re:when is the revolution ? (0)

Anonymous Coward | more than 2 years ago | (#41302853)

You should check out this documentary. [wikipedia.org] It does a fine job of showing this upcoming revolution I keep hearing so much about.

Re:when is the revolution ? (0)

Anonymous Coward | more than 2 years ago | (#41302891)

Look, if we don't obey these laws then the terrorists win.

Do you want them to win?

Re:when is the revolution ? (0)

Anonymous Coward | more than 2 years ago | (#41303059)

Look, if we don't obey these laws then the terrorists win.

Do you want them to win?

Okay, I'll play this game. No, I do not want the terrorists to win but the government keeps handing victory to the terrorists. I bet Osama bin Laden is has relocated to a safe haven by the US military and the capture and burial at sea were staged photo ops for the politicians. No terrorist, apart from TSA and federal air marshals, dare board a commercial passenger aircraft to hijack it because in the aftermath of 11 September 2001, the passengers would kill the terrorist or die trying just like those passengers that forced the aircraft into the Pennsylvania field that fateful day.

Re:when is the revolution ? (1)

Anonymous Coward | more than 2 years ago | (#41302947)

The popular race towards cerebral bankruptcy and absence of a genuine cultural identity in our society lends us to being herd-immune to revolutions. I for one enjoy watching the dullards rationalize their fascist boot licking. This country was bought and sold too long before I was born to get all caught up in the decay. Let humanity suffer for depriving my children of a world worth growing up in.

Re:when is the revolution ? (0)

Anonymous Coward | more than 2 years ago | (#41303149)

Children? That implies having had sex. Most of slashdot should not have to face this problem

In fact, it's weird how this place is full of people who complain about the way things are, seeing as the people on slashdot are probably the most suited people to thrive in today's environment

Why aren't YOU selling to the record companies a solution to destroy those eeeeeevil pirates (and you use the same copyright math to determine how much you'll charge per song protected! Millions of dollars per song!)

Today's capcha word: economy!

Re:when is the revolution ? (0)

Anonymous Coward | more than 2 years ago | (#41303453)

Children? That implies having had sex.

I fail to see how masturbating while watching porn is supposed to magically create childrens.

Statutory damages are devoid of all meaning (5, Insightful)

Missing.Matter (1845576) | more than 2 years ago | (#41302797)

From the Wikipedia article [wikipedia.org] :

1st civil jury trial Statutory damages of $222,000 ($9,250/song).
2nd civil jury trial Statutory damages of $1,920,000 ($80,000/song).
Remittitur Statutory damages reduced to $54,000 ($2,250/song).
3rd civil jury trial Statutory damages of $1,500,000 ($62,500/song).
Damages reduced Statutory damages reduced to $54,000 ($2,250/song).

Seriously, statutory damages are a joke. The number is completely arbitrary and jumping around, seemingly randomly, from $54k to almost $2m. Isn't this a pretty good sign that things are FUBAR, and "statutory damages" is devoid of all meaning? The $150,000 statutory damages maximum (per infringement) was written into law with a very different context in mind than it's being applied to (industrial scale for-profit copyright infringement). These statutory damages seriously are completely defunct, yet copyright holders are exploiting them to no end. *We* as a society have provided *them* copyright to promote the *useful* arts and sciences. I think it's becoming very clear the art they are producing is no longer useful, but a determent to society. Perhaps *we* as a society should take those rights away, or at the very least severely curb them to avoid this utter nonsense.

Re:Statutory damages are devoid of all meaning (1)

DigiShaman (671371) | more than 2 years ago | (#41302979)

Ask for the Universe and you will get the World. It's how it works. It's the classic high-low-middle negotiation ploy.

Re:Statutory damages are devoid of all meaning (0)

Anonymous Coward | more than 2 years ago | (#41303759)

Then I ask for the All of Eternity + N.

N=everything ever.

that should solve our problem.

Re:Statutory damages are devoid of all meaning (5, Informative)

Missing.Matter (1845576) | more than 2 years ago | (#41302991)

Sorry, forgot the best part... the fact that with the award at $222,000 they're exactly where they were 3 trials and 5 years ago: at an amount which will most likely *never* be paid in full. How many countless wasted hours or lawyers, judges, juries, court time and space have been spent on this, what amounts to realistically probably no more than $24 actual real damages to the record labels (song downloads).

Again, sorry to reply to myself but this nonsense really gets me riled up, especially if you have a look at what the adult film industry is doing with copyright these days. If you're not aware, there's a massive nation-wide campaign going on where over 300,000 people have been sued so far in a grand perversion of technology and the justice system in efforts to extort multi-thousand dollar settlements. And this movement has its roots squarely in RIAA litigation tactics. See: http://fightcopyrighttrolls.com/ [fightcopyrighttrolls.com]

Re:Statutory damages are devoid of all meaning (1)

cpu6502 (1960974) | more than 2 years ago | (#41303195)

This isn't about actual damages which would be higher than $24. (30 songs times 1000 people downloaded them, and 100 people who would have bought the song if it were not free == $3000 lost sales.) This is about setting an example to scare teenagers from downloading. And it's working.

Re:Statutory damages are devoid of all meaning (4, Insightful)

Archangel Michael (180766) | more than 2 years ago | (#41303351)

Part of this, which often escapes /. users is that the law isn't justified by just actual losses, but also also includes punitive recourse as well.

I'm of the opinion that Punitive damages should be awarded, but those should go to the state, not to the victim. I'm all for actual damages, and perhaps 10% (or Treble damages or some other number) of the Punitive damages going to the victim, but most of the punitive damages should be going to the state, into a victims compensation or something like that. This would prevent the idea of "get rich quick, just sue" mentality that is clogging up the courts now. Courts have become Greed Machines.

Re:Statutory damages are devoid of all meaning (5, Informative)

Missing.Matter (1845576) | more than 2 years ago | (#41303791)

Punitive damages are fine and good, but these are not punitive damages; they are statutory. Punitive damages are designed to deter a law breaker whereas the statutory damages written into copyright law are designed to compensate the copyright holder as a proxy for actual damages in the case where they are unable to accurately prove actual damages. So, at face value this has fuckall to do with punitive damages. However the copyright holders are trying to use statutory damages (which 100% go to them) for a punitive purpose because the amounts, being so obscenely high, allow them to.

Re:Statutory damages are devoid of all meaning (0)

Anonymous Coward | more than 2 years ago | (#41303385)

I disagree. I think we should count each download as a violation. 30 songs among 1000 individuals should be considered 30,000 counts, provided the download was done in full. Assuming the iTunes model of about a dollar each, it would be $30k. But I don't believe it's morally right to charge more than thrice the cost of the loss plus lawyer fees. So, I say the maximum that should have been awarded is $90k + lawyer fees.

But for such an easy thing to commit, such verdicts can ruin someone's life. After all, who knows how many lost sales really resulted? An idea might be to allow the person 'sued' to pay 30% of his or her pay until it's paid off if it'd otherwise financially ruin him or herself.

Re:Statutory damages are devoid of all meaning (0)

Anonymous Coward | more than 2 years ago | (#41303495)

It sure is. I listen to a lot less music now. Consequently, I also buy a lot less music now because I am not finding anything new that I like.

Re:Statutory damages are devoid of all meaning (1)

Missing.Matter (1845576) | more than 2 years ago | (#41303597)

This isn't about actual damages which would be higher than $24. (30 songs times 1000 people downloaded them, and 100 people who would have bought the song if it were not free == $3000 lost sales.)

Of course it's not about actual damages; that's why we're talking about statutory damages in the first place. The point is that the Plaintiff isn't seeking actual damages because 1) they are incalculable (incalculable not as in astronomically high, as in there is no possible way to actually calculate them) and 2) any approximation of actual damages is so incredibly low as to be an insult to everyone's time and reputation involved in the trial. Even your generous $3000 calculation spits in the face of the cost of multiple trials and the final arrived at settlement figure.

30 songs times 1000 people downloaded them, and 100 people who would have bought the song if it were not free == $3000 lost sales.

Interesting calculation, but it would be impossible to prove. Luckily they don't have to prove anything, because statutory damages are 10x more than even the most wild actual damage calculations they could come up with.

This is about setting an example to scare teenagers from downloading. And it's working.

But is it really? People are downloading more than ever (Bittorrent accounts for 1/3 of all Internet traffic). No, it's not deterring anyone, but in fact copyright holders don't care. They don't want to protect their copyrights anymore, since it's more profitable to litigate thanks to Statutory damages and cases like this. Why sell someone a CD for $20, when you can catch them downloading it and send them an extortion letter demanding $2000+ or you'll take them to court for $150,000? It's gotten so bad that they don't even need people to violate their copyrights before extorting them; there have been cases where companies monitoring torrent traffic will fake the traffic using known IPs and send extortion letters to individuals who have provably never even downloaded the file in question (anyone interested I can provide the citation... can't find it right now off hand).

Re:Statutory damages are devoid of all meaning (1)

91degrees (207121) | more than 2 years ago | (#41303635)

There's no way 1000 people downloaded that song. In fact, the average for any available song is about 1, since each person will on average download once, they'll upload once on average as well. If there are further damages down the road, then sue the people who shared the copies.

$100 would deter teenagers from sharing, and wouldn't result in them having such a huge disrespect for the legal system.

Re:Statutory damages are devoid of all meaning (2, Interesting)

GIL_Dude (850471) | more than 2 years ago | (#41303737)

Well, to be fair, they would have to settle the whole "making available" thing before they can determine if the actual damages (by law) were more than $24. Because, honestly, WHO makes the copy? The downloader does. Not the seeder. The seeder "makes available" and the legal status of that has really not been settled. It would be similar to you hanging up a pamphlet on a bulletin board near a copy machine. Yes, people may make copies. But you didn't. You made it available for them. Contrast this with the commercial violation of copyright making bootleg DVDs. The person making the DVD made the copy. Very different. I know it is semantics and all, but copyright law is full of things like this where things don't make a lot of sense.

Re:Statutory damages are devoid of all meaning (1)

rastoboy29 (807168) | more than 2 years ago | (#41303503)

I'm going to have to start checking out your blog.

I agree completely, of course.

I think the solution is to expand fair use to include all non-commercial copying, which is what I blog about :-)

Re:Statutory damages are devoid of all meaning (1)

Missing.Matter (1845576) | more than 2 years ago | (#41303875)

Not my blog, but the blog of someone who was was sued by these trolls. Eventually her case was dismissed, as the large majority are after the trolls meet their extortion quota. Of note, not a single troll suit has been tried in front of a jury on the merits. Perhaps these people target a good many actual infringers, but their dragnet tactics incur substantial collateral damage in the form of extorting completely innocent people for thousands of dollars.

Re:Statutory damages are devoid of all meaning (0)

Anonymous Coward | more than 2 years ago | (#41303081)

Perhaps we as a society should concentrate more on who we are individually and what are rights are as opposed to what business's rights are huh? You think statutes apply to your flesh and blood? Nope. Just your name. Your name isn't you, its what you're called. The government owns title to your name, and when you use it, they own you too.

Accessorius sequitur naturam sui Principalis.

We treat ourselves as debtors to our corporate titles. We're the really fucked up people Marla talks about in fight club.

Piracy = theft? (5, Insightful)

OldSport (2677879) | more than 2 years ago | (#41302807)

Industry shills are constantly trying to convince the public that piracy = theft, but punishments like this make it seem more like piracy = murder. In my home state, anyway, "a person convicted of the offense of retail theft of merchandise having a retail value not in excess of $100.00 shall be punished by a fine of not more than $300.00 or imprisonment for not more than six months, or both." Torrent the same CD, however, and you're out $150,000 ($10,000/song, assuming 15 songs on a CD).

Note to potential downloaders: just steal the goods you want. You'll get off a lot lighter that way.

P2P = fence (2)

tepples (727027) | more than 2 years ago | (#41302903)

Torrent the same CD, however, and you're out $150,000 ($10,000/song, assuming 15 songs on a CD).

I agree that the theft analogy has flaws, but let's run with it for the moment: Someone who trades infringing copies over BitTorrent or other reciprocal peer-to-peer file sharing protocols is like a fence [wikipedia.org] , someone who sells stolen property. If the P2P software uploaded 9,250 copies of each song to other users, then Thomas isn't paying more than retail.

Re:P2P = fence (0)

Anonymous Coward | more than 2 years ago | (#41302937)

Response ignoring your point and focusing on how wrong it is to compare piracy to theft in 3..2...

Re:P2P = fence (0)

Anonymous Coward | more than 2 years ago | (#41303023)

If the P2P software uploaded 9,250 copies of each song to other users,

It's fairly safe to say that wasn't the case, regardless of anything else.

I don't really want to try to go through your analogy.

Re:P2P = fence (0)

Anonymous Coward | more than 2 years ago | (#41303047)

I am curious what most peoples bittorrent sharing ratios are. I imagine there are some people out there who seed like crazy I very much doubt that may people upload thousands of times more than they download. While making no assertions that I personally use bittorrent I tend to think that many peoples ratios are closer to 1 to 1.

Re:P2P = fence (1)

Anonymous Coward | more than 2 years ago | (#41303055)

Except that she didn't actually sell or profit from the transaction, as a fence would

Re:P2P = fence (1)

Anonymous Coward | more than 2 years ago | (#41303145)

Here's the thing that I don't get. I've seen that 'uploaded 9250 copies of each song' quoted before, and the whole crux of the case is the uploading part, not the downloading.

How much did he ACTUALLY upload? What was his seeding ratio?

I've taken to cutting the upload speed to the absolute minimum the program allows (I have yet to get around to figuring how to outright block all uploading torrent data), and then killing the file from the program the second it's done downloading. End result, I will have uploaded MAYBE 5kb worth of data. Is that amount of data even CAPABLE of making a sound? Even a 1/4 second beep? I have no clue, but should I ever be brought to court, that will be my argument. I uploaded 5kb. Said 5kb are absolutely, completely worthless on their own. Hell, the text from this post is far, FAR in excess of that amount of data. And, the sheer fact that I specifically decreased the upload speed means I was actively trying to AVOID sending the file to others. That's gotta be worth something.

Course, should I have to go to court, it'd be whatever lawyer they give me vs a dozen high priced lawyers, so I'd be out more than my total gross worth and basically be forced to starve or commit suicide, whichever comes first.

Mental note: Get around to looking into how to outright block even a single bit from being uploaded from a torrent program. Even a scan of the files on my computer.

Re:P2P = fence (0)

Anonymous Coward | more than 2 years ago | (#41303313)

From the court ruling:

“making copyrighted sound recordings available for electronic distribution on a peer-to-peer network, without license from the copyright owners, violates the copyright owners’ exclusive right of distribution, regardless of whether actual distribution has been shown.”

It doesn't matter if anyone actually downloads anything from your computer. According to the court you are breaking the law just by making the files available.

Re:P2P = fence (1)

TheRealGrogan (1660825) | more than 2 years ago | (#41303643)

Well, simply close the port if you don't want to upload torrent data. Get pretty much any consumer grade router, turn off "Universal Plug and Play" (or disable "automatic port mapping" or whatever they are calling it in your torrent client) and don't set up port forwarding.

Alternatively, a software firewall could even be configured not to allow the incoming connections.

Most torrent clients allow you to specify a single port to use. Make sure it's not one that is being forwarded to the outside world.

You'll still be able to download (pick torrents with lots of seeders), and you'll pay the same penalties are you are now if there are any "tit for tat" schemes that you are subject to with peers or private torrent trackers. This isn't contributing, but then you aren't right now anyway.

Re:P2P = fence (1)

grumbel (592662) | more than 2 years ago | (#41303323)

If the P2P software uploaded 9,250 copies of each song to other users, then Thomas isn't paying more than retail.

Yes, if he did upload that much. Except there is no proof that he uploaded that much and not only that, it's also highly implausible. 9250 copies per song, 15 songs, a song say 3MB in size and we are talking about 400GB upload volume. That so much that it should be not only unlikely, but proofable impossible for the average user.

Re:Piracy = theft? (0)

Anonymous Coward | more than 2 years ago | (#41302929)

But what would happen if you took that CD burnt a lot of copies and gave them away, because that's what this case is actually about.

Re:Piracy = theft? (0)

Anonymous Coward | more than 2 years ago | (#41302965)

No it's not. It's about leaving your CD in a public place where anyone COULD HAVE burned a copy of their own.

Re:Piracy = theft? (0)

Anonymous Coward | more than 2 years ago | (#41303315)

That's a point worthy of being made. Theft under $5,000 and a misdemeanor or owing $220,000.

Notwithstanding the criminal record, which I imagine could be pardoned, I know which one looks more attractive.

Re:Piracy = theft? (1)

TheRealMindChild (743925) | more than 2 years ago | (#41303497)

Your argument hinges on the same misconception that most people have, where you are comparing criminal law punishment to civil law punishment. These are two completely different set of rules. Civil law can pretty much only bite your wallet, so it is in proportion the the perception of wealth. Your beef is with the lack of boundaries in civil law. The meanies are financially/socially putting these people in the gas chamber.

Re:Piracy = theft? (1)

cpghost (719344) | more than 2 years ago | (#41303937)

Industry shills are constantly trying to convince the public that piracy = theft, but punishments like this make it seem more like piracy = murder.

Actually, piracy IS theft, but copyright infringement isn't piracy. Piracy is what happens on the High Seas, e.g. near the coast of Somalia. The concept of copying files (instead of stealing them) should constitute piracy is flawed from the get go.

Due process? (5, Insightful)

Hatta (162192) | more than 2 years ago | (#41302897)

Due process is guaranteed by the 5th and 14th amendments. The problem with this case is excessive fines, prohibited by the 8th amendment. Why wasn't this an issue in this appeal?

Re:Due process? (4, Informative)

Anonymous Coward | more than 2 years ago | (#41302987)

Did you read the ruling? they did address that:

Thomas-Rasset urges us to consider instead the “guideposts” announced by the Supreme Court for the review of punitive damages awards under the Due Process Clause. When a party challenges an award of punitive damages, a reviewing court is directed to consider three factors in determining whether the award is excessive and unconstitutional: “(1) the degree of reprehensibility of the defendant’s misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.” State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 418 (2003); see also BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 574-75 (1996).

The Supreme Court never has held that the punitive damages guideposts are applicable in the context of statutory damages. See Zomba Enters., Inc. v. Panorama Records, Inc., 491 F.3d 574, 586-88 (6th Cir. 2007). Due process prohibits excessive punitive damages because “‘[e]lementary notions of fairness enshrined in our constitutional jurisprudence dictate that a person receive fair notice not only of the conduct that will subject him to punishment, but also of the severity of the penalty that a State may impose.’” Campbell, 538 U.S. at 417 (quoting Gore, 517 U.S. at 574). This concern about fair notice does not apply to statutory damages, because those damages are identified and constrained by the authorizing statute. The guideposts themselves, moreover, would be nonsensical if applied to statutory damages. It makes no sense to consider the disparity between “actual harm” and an award of statutory damages when statutory damages are designed precisely for instances where actual harm is difficult or impossible to calculate. See Cass Cnty. Music Co. v. C.H.L.R., Inc., 88 F.3d 635, 643 (8th Cir. 1996). Nor could a reviewing court consider the difference between an award of statutory damages and the “civil penalties authorized,” because statutory damages are the civil penalties authorized.

Applying the Williams standard, we conclude that an award of $9,250 per each of twenty-four works is not “so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable.” 251 U.S. at 67. Congress, exercising its “wide latitude of discretion,” id. at 66, set a statutory damages range for willful copyright infringement of $750 to $150,000 per infringed work. 17 U.S.C. 504(c). The award here is toward the lower end of this broad range. As in Williams, “the interests of the public, the numberless opportunities for committing the offense, and the need for securing uniform adherence to [federal law]” support the constitutionality of the award. Id. at 67.

Re:Due process? (4, Insightful)

vux984 (928602) | more than 2 years ago | (#41303257)

Applying the Williams standard, we conclude that an award of $9,250 per each of twenty-four works is not âoeso severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable.â

The award of $9,250 is not really the issue. In fact, that would be an arguably reasonable punishment for the alleged infringement.

The issue is counting each file as a separate infringement and multiplying $9,250 by 24.

Using kazaa or whatever it was to infringe and being convicted should be a singular crime, not 24 separate crimes.

When I ripped my 800+ disc CD collection I ended up with upwards of 9000 tracks. When I installed a filesharing app that by default pointed at my music folder I am apparently on the hook for 9000 separate crimes @ $9250 each?

Lets see: this court apparently thinks it would be "reasonable" to fine me 83 million dollars for that.

Re:Due process? (3, Interesting)

Hatta (162192) | more than 2 years ago | (#41303381)

Where in the 8th amendment does it distinguish between "punitive damages" and "statutory damages"? It appears to me that statutory damages have been invented by the courts as a way to work around the 8th amendment. They are operating under the fiction that if they call it something else, the restrictions against excessive fines does not apply.

Any honest person can see that this is a dishonest argument on the part of the judge. This sort of jurisprudence should simply not be tolerated.

Re:Due process? (1)

man_of_mr_e (217855) | more than 2 years ago | (#41303697)

Hmmm.. Interesting sidebar. If "actual harm" is impossible to calculate, is it actually harm?

Re:Due process? (1)

RichMan (8097) | more than 2 years ago | (#41303003)

> Why wasn't this an issue in this appeal?

Justice is only as good as the lawyer you can pay for.

Re:Due process? (4, Informative)

Anonymous Coward | more than 2 years ago | (#41303091)

Because in the case and decision they refer to an earlier case which provides precedence for this decision, St. Louis, I.M. & S. Ry. Co. v. Williams. In Williams, the excessive fines can't be disproportionate to the actual amount of PRIVATE loss, but because the $222,000 is instead a punitive damage award, it can be disproportionate. It's designed to address the PUBLIC wrong and to act as a deterrent, not the private loss itself.

At the end of the day, Thomas-Rasset had a million outs in this. She was contacted by MediaSentry but she blew them off. She was contacted by the RIAA, at which time SHE THREW AWAY HER HARD DRIVE TO COVER HER TRACKS (HA!) and went to meet with the RIAA, who undoubtedly offered her the same $5000 (+/-) out they always offered, and she blew them off too and even lied about her use of Kazaa and her online handle...so they sued the shit out of her for WILLFUL copyright infringement.

This wasn't a "oops, I didn't know I was stealing...sorry!" case...this was a "you can't prove s**t, BRING IT" case...and so they brought it. Case closed.

Re:Due process? (4, Informative)

Desler (1608317) | more than 2 years ago | (#41303151)

Except this wasn't a punitive damages award. It was statutory damages.

Re:Due process? (0)

Anonymous Coward | more than 2 years ago | (#41303345)

Ack...you're right. They actually have A LOT more room to increase the award when it comes to statutory damages...or so I read. :)

Re:Due process? (1)

bws111 (1216812) | more than 2 years ago | (#41303115)

Because a civil judgment is not a fine.

Re:Due process? (1)

sumdumass (711423) | more than 2 years ago | (#41303449)

I'm not sure about why not the 8th, but the 5thh and 14th was because the excessive fines were punitive in nature as established by the intention of the government. Courts in the past have limited the punitive nature of civil judgements as it is applying a penalty or punishment without the due process afforded to trials held to punish behavior (criminal).

So it would at least from the outside, seem prudent to include an argument about excessive fines with an argument that a judgement's excess is punitive in nature and therefor violated due process rights. Maybe it is the process or order of events? IIRC, the judgement was reduced once already but then restored on appeal or vacated by a new trial.

Re:Due process? (1)

Wovel (964431) | more than 2 years ago | (#41303669)

It is not a fine.

Analogy (4, Interesting)

Anonymous Coward | more than 2 years ago | (#41302981)

I've always thought of suing file sharers akin to attacking a swarm of bees with a hand pistol. It won't do a thing to stop the bees, but your bullet *might* hit one of those bees and absolutely obliterare them. Looks like Jammie was the unlucky bee.

New Profit Model (1)

AnalogDiehard (199128) | more than 2 years ago | (#41302995)

The major labels' profit model based around sales of shiny circular pieces of plastic is no longer valid because customers stopped patronizing them years ago out of disgust over labels suing their customers and exploiting musicians out of royalties. So their new profit model is based around litigation against customers. Looked how well that worked during the dinosaur age.

Re:New Profit Model (0)

Anonymous Coward | more than 2 years ago | (#41303365)

If they steal it, then they aren't customers. Lawsuits are a way to make them customers. After all, they did want the song right? Now they can pay for it.

Re:New Profit Model (0)

Anonymous Coward | more than 2 years ago | (#41303489)

Of course, none of these lawsuits are about theft, and many of the people sued were previously customers, and many never had the alleged goods at all.

You are welcome (1)

timeOday (582209) | more than 2 years ago | (#41303033)

So much for the idea that the rich don't need government or benefit from the taxes they pay. Otherwise the RIAA could never afford a global goon squad this effective. It will take decades to ring hundreds of thousands from this kid. He might never pay it off.

Re:You are welcome (0)

Anonymous Coward | more than 2 years ago | (#41303107)

Kid? Jammie is 35 years old and 28 when given a cease-and-desist letter.

Re:You are welcome (1)

cpghost (719344) | more than 2 years ago | (#41303903)

Her paying absurdly high fines wasn't the point from the very beginning. It was about making an example of her to intimidate others. By throwing her to the wolves, the MAFIAA effectively says: "don't mess with us, or we'll break your kneecaps and you'll never recover." These statutory damages are legal bullying at its best, brought to you by your elected representatives.

Does anybody really respect judges? (0)

Anonymous Coward | more than 2 years ago | (#41303147)

The whole "your honor" thing just grates on me. I understand you have to have order in a court; but honorifics? Really? The new Constitution should outlow the applicaction of honorifics. They're like royal titles.

Bend Over Jammie, Uncle Sam Has Something for You (0)

Anonymous Coward | more than 2 years ago | (#41303235)

And only anal dentata can save you now.

Seriously Flawed Logic (0)

Anonymous Coward | more than 2 years ago | (#41303269)

In the writeup the appeals court asserts that the awards per song were constitutional only because the record company only chose to go to court over 24 of the songs. What stops them from splitting an offense into 24 song incriments and filing a lawsuit for each??

Jammie's Really In A Jam Now (0)

Anonymous Coward | more than 2 years ago | (#41303281)

I think she's out of appeals now. Time to declare bankruptcy and move on.

My take (5, Interesting)

Zontar_Thing_From_Ve (949321) | more than 2 years ago | (#41303517)

I've read in the past about her case and this is what I remember being her main problems.
1) She had bottom of the barrel lawyers in all of her trials. If I remember correctly at one of the later trials she was actually represented by law school students who prior to the trial basically bragged that this case was going to be "easy" to win. Practicing law for real may just be a little tougher than it seems in class, boys.
2) She has been perceived extremely negatively by juries, which has definitely led to the size of the judgements against her.
3) She's been her own worst enemy when testifying, but that relates to #1 in large part. She lacks a credible excuse for her behavior and seemed to jurors to be a liar and trying to cover up what she did. That has worked heavily against her in reaching a verdict.
4) She has consistently displayed an outsized ego and an erroneous belief that she can beat the charges by going to court when in fact she has probably had the weakest case of anyone to ever challenge the RIAA. I would call her delusional.

In summary, she's got a terrible case and she's tried to win it on the cheap and the outcomes are predictable.

Re:My take (3, Insightful)

cpghost (719344) | more than 2 years ago | (#41303829)

So what you're implying is that she has only herself to blame that the "legal" system is biased against the poor and common people, and in favor of the rich and corporations? Should she have taken the abuse of the MAFIAA bully without putting up a fight, or at least trying to defend herself -- no matter how inept and poor her strategy? If that's the case, why bother with laws anymore? Let the powerful reign unhindered and the common people bow and accept their fate and absorb the abuse that comes their way?

wildly different $ shows inherent unfairness (1)

bzipitidoo (647217) | more than 2 years ago | (#41303579)

In the years this crazy case has dragged on, we've seen awards of $222,000, $54,000, $1,920,000, $1,500,000, and a settlement offer. We don't know what the offer was, but may have been a few hundred or a few thousand. The $54000 would have been lower if the law had allowed it. Obviously, they're having a very difficult time deciding just what the damages should be. When it is so difficult to set an appropriate damage amount, it seems to me that calls for an examination of the basic premise of the suit and the laws it is based upon.

This whole case tries to treat the defendant as if she was a distributor in an environment where the ability to distribute is uncommon, because duplication and distribution is expensive. In such an environment, it may be reasonable to suppose that she might have done the record companies out of hundreds or even thousands of sales, and so a penalty of many thousands of dollars may be a fair amount. But this is not the environment we live in today. On the Internet, anyone can be a distributor at very little cost, and duplication is very nearly zero cost. This is not 1984, when the only practical way to illegally copy a lot of music was to run a bootleg CD stamping (or even vinyl record stamping) or cassette tape recording business, which cost serious money. The law should be changed to reflect these facts. And the court ought to have the power or guts to do more than regretfully reduce the damages insufficiently to fix the real problem. They're leaving a mess, and hoping the legislature takes the hint and does something about it. Meantime, the victims of these lawsuits are harmed disproportionately.

The industry is abusing the slowness of adaptation of new principles in the law to crucify and make an example of a victim. Letting bullies run wild is a hell of a way to run a justice system.

that name (1)

badpool (1721056) | more than 2 years ago | (#41303627)

Despite the current and past crappy rulings on this case...the first thing I think about is what kind of name is "Jammie" anyway? Is it pronounced like "Jaimie", or like some weird singular form of the slang for pajamas ("Ja-mee")? Either way, I wonder wtf is wrong with parents and naming these days. For me, this is a hard case to read about.
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