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Jammie Appeals, Citing "Excessive" Damages

kdawson posted about 7 years ago | from the punative-by-any-other-name dept.

The Courts 403

Peerless writes "Capitol v. Thomas defendant Jammie Thomas has officially appealed the RIAA's $222,000 copyright infringement award. She is seeking a retrial to determine the RIAA's actual damages, arguing that the jury's award was 'unconstitutionally excessive': 'Thomas would like to see the record companies forced to prove their actual damages due to downloading, a figure that Sony-BMG litigation head Jennifer Pariser testified that her company "had not stopped to calculate." In her motion, Thomas argues that the labels are contending that their actual damages are in the neighborhood of $20. Barring a new trial over the issue of damages, Thomas would like to see the reward knocked down three significant digits — from $222,000 to $151.20.'"

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And there you have it folks (-1, Redundant)

Anonymous Coward | about 7 years ago | (#20992267)

Thats the way the cookie crumbles!

Sig digs (4, Insightful)

UbuntuDupe (970646) | about 7 years ago | (#20992269)

151.20 actually has more significant digits than 222,000. (Perhaps "orders of magnitude" was the term peerless wanted?)

But who cares, when you're coming up with a cutesy way of saying something, right? (Make sure to use the terms "north of" and "south of" when comparing numerical values.)

Re:Sig digs (2, Informative)

Woek (161635) | about 7 years ago | (#20992339)

Mod parent up! This is in the same league as the word 'virii', which is actually twice as irritating as the concept it wants to describe.

Re:Sig digs (5, Funny)

Atario (673917) | about 7 years ago | (#20992429)

I agree. The correct spelling is "viri".

It's not virii or viri. (4, Informative)

Draconix (653959) | about 7 years ago | (#20992791)

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

Almost right. (1)

Wilson_6500 (896824) | about 7 years ago | (#20992417)

"222000." has six sig figs, whereas "151.20" only has five. "222000" has three. The period in the first number matters--and, in this case, putting that number at the end of your sentence actually changed the meaning of the number and, from there, your entire statement.

Re:Almost right. (1, Funny)

Anonymous Coward | about 7 years ago | (#20992589)

You're clearly mistaken. That's a period, not a decimal. No meaning was changed. You must be new at /.. The first dot there is a dot, the second one is a period.

Re:Sig digs (-1)

Anonymous Coward | about 7 years ago | (#20992479)

Actually, no. 222,000 has exactly 6 significant digits; it is an exact number, not somewhere between 221,500 and 222,499 (depends on your world view regarding rounding).

The number 2.22E5 has three significant digits but that is not 2.22000E5 (222,000). Similarly, 151.20 has 5 significant digits. If it had 4, it would be written 151.2 (or 1.512E2).

Regardless, the original comment was wrong as well - the drop in significant figures from 222,000 to 151.20 is 1, not 3. And you're right, that drop is irrelevant since it would be the same in increasing the fine from 222,000 to 1.2345E6 but I doubt the defendant would appreciate a fine north of 1 million bucks :-).

Re:Sig digs (2, Funny)

Anonymous Coward | about 7 years ago | (#20992619)

151.20 actually has more significant digits than 222,000. (Perhaps "orders of magnitude" was the term peerless wanted?)
While you're technically correct... if you're facing a fine of either $220,000 or $151.20, I think you'll find the difference in the amount to be quite significant.

(Posting anonymously because this joke doesn't quite have the snap I wanted. Hopefully someone else can fix it up... I'm too tired.)
 

Re:Sig digs (0, Troll)

Technician (215283) | about 7 years ago | (#20992863)

151.20 actually has more significant digits than 222,000.

This is an integer measurement. The unprinted .00 is part of the significant number and is not a product of rounding. The exact ammount of the fine as an integer is 220,000.00. Each digit is a significant digit. Last time I checked the award does contain more significant digits. The presence of a zero does not mean it was rounding measurement error. It is an integer award to the penny.

From what it sounds like... (3, Insightful)

ravenspear (756059) | about 7 years ago | (#20992273)

This may be the first intelligent thing this women has done in this case. I mean she was obviously guilty, lied in an attempt to cover it up, and miserably failed to prove anything to the contrary at trial.

This position on the other hand is very well reasoned. $200k+ is completely outrageous damages even assuming a large number of people downloaded the material she made available. Hopefully there will be a judgement against this damage award that will call attention to how excessively high the statutory damages are, and might even overturn that part of the law.

Re:From what it sounds like... (5, Insightful)

rucs_hack (784150) | about 7 years ago | (#20992391)

her suit was almost frivolous, in that she was in no way innocent, she did what she was accused of, and she knew it. Had she got away with it, it would have been a bad thing for the courts.

The problem is the RIAA wanted her to pay their fine originally, a 'legal' fine imposed without recourse to legal help for the victim. That was also wrong. So she put herself in a position where she was at risk from an unsuitable scale of punishments, because the RIAA have avoided having file sharing properly tested in court, so the punishment scale is way too high.

In a reasonable world, file sharing would attract a parking ticket type fine, and too many would mean your ISP would cut you off for a month or so, or for good if your stupid and don't pay your fines.

Re:From what it sounds like... (5, Insightful)

arkhan_jg (618674) | about 7 years ago | (#20992459)

I don't agree that it wasn't a case worth fighting. They had no evidence that she committed any copyright infringement. Only that her computer, probably at her direction 'made files available' for copyright infringement. The judge changed his mind on the basis of an argument misrepresenting another court case, to allow making available to also be classified as copyright infringement in the jury instructions. Without that jury instruction, it's entirely possible she would have been found not liable, as the music company didn't even look for infringement, just for the possibility of it.

In that light, I expect all photocopiers to now be removed from US libraries, as they are also making available books and a means to copy them.

However, I do agree that if someone were to be found liable for copyright infringement for non-profit and personal use, the fine should represent actual losses plus a bit, rather than a hundred times them as a deterrence. The scale should distinguish between commercial large scale infringement for profit, and small scale personal infringement.

To draw a a parallel with the drug laws in my country, small possession for personal use of illegal drugs is treated a lot less harshly than running a drug distribution business. A punishment, increasing for repeat offenders; but not a life-destroying punishment for a first, small personal offence.

Re:From what it sounds like... (1)

AstrumPreliator (708436) | about 7 years ago | (#20992597)

Without that jury instruction, it's entirely possible she would have been found not liable, as the music company didn't even look for infringement, just for the possibility of it.

Are you sure [slashdot.org] about that? I don't think it would have made any difference judging by what that juror said.

Re:From what it sounds like... (1)

clickety6 (141178) | about 7 years ago | (#20992697)

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

Re:From what it sounds like... (1)

Moderatbastard (808662) | about 7 years ago | (#20992603)

A sensible, balanced post getting modded up? Whatever next!

Re:From what it sounds like... (5, Insightful)

Kjella (173770) | about 7 years ago | (#20992737)

Only that her computer, probably at her direction 'made files available' for copyright infringement.
And if she 'made files available' implies that she authorized distribution, it's a copyright violation.

106. Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
Merely sharing something may not count as distribution. But unlike say a Windows share, the file was uploaded to an index specifically created for exchanging files. That may (ignorance defenses aside) be considered authorization.

All I'm saying is, it's not entirely clear in US law that an actual copy must have been made (the "do" part), it may be enough it was put up for distribution (the "authorize" part). You certainly see arguments along those lines.

Re:From what it sounds like... (3, Insightful)

ShieldW0lf (601553) | about 7 years ago | (#20992741)

What needs to happen is for someone to stand up and say "Yes, this woman downloaded music. But it's your corrupt laws that are at fault, serving the interests of criminal racketeers and destroying lives, and we're going to put a stop to it."

Then millions of people need to follow them in stringing those responsible for this circus up by the neck.

You don't negotiate with racketeers and terrorists.

Re:From what it sounds like... (1)

packeteer (566398) | about 7 years ago | (#20992807)

However, I do agree that if someone were to be found liable for copyright infringement for non-profit and personal use, the fine should represent actual losses plus a bit, rather than a hundred times them as a deterrence.

Let me play devil's advocate for a moment. Lets say you have a system where when someone steals music they have to pay the actual damages. If the actual damages is the lack of money they got from you buying the song then the actual damages are the same as the retail value. So that means you copy a CD online and you damaged them $15 or so.

So in this system what is going to prevent everyone from stealing first and paying later? If the only amount you pay is close to what you would have payed anyway it makes good business sense to steal. With all that said this whole case is ridiculous but thats because of the jury instructions as you mentioned, not the final amount she might have to pay. That is just layers of ridiculousness.

Re:From what it sounds like... (2, Insightful)

shywolf9982 (887636) | about 7 years ago | (#20992885)

So that means you copy a CD online and you damaged them $15 or so.
So in this system what is going to prevent everyone from stealing first and paying later? If the only amount you pay is close to what you would have payed anyway it makes good business sense to steal. With all that said this whole case is ridiculous but thats because of the jury instructions as you mentioned, not the final amount she might have to pay. That is just layers of ridiculousness.

That was not the point of GP. The whole point is that, although higher than the commercial value of what you stole, you shouldn't be fined for an overly excessive amount of money.

Let's assume you hate someone, deeply, and you decide one day to break his/her car's left mirror. It would be okay if they awarded the plaintiff a $300 in damages, but it would surely make me raise an eyebrow if they fined you for $5k: and that was the point of the GP too.

I don't know if, in this case, they have detailed the amount of damage they had: but here where I live, you should bring proof and calculations of the damage by an independent expert in order to get awarded the damage.

In this case, it doesn't seem to me that they did so: since apparently Sony/BMG said they were still in the process of calculating said damage: once they had, this data should be reviewed by an expert nominated by the court and only at last the defendant should be fined.

Re:From what it sounds like... (0)

Anonymous Coward | about 7 years ago | (#20992825)

No no no, you don't get it.

We should demand that all books are removed from libraries as they might have photocopiers that can be used to infringe copyright! Stand up for the rights of your favourite authors!!!1111one

Re:From what it sounds like... (5, Interesting)

speaker of the truth (1112181) | about 7 years ago | (#20992399)

Agreed. At the absolute most the RIAA should have to prove how many people actually downloaded from her and then multiply that with the retail cost of the music. That's an absolute most (a better way would be to prove the people who downloaded from her would otherwise buy the actual song if they couldn't illegally download it. Given the amount of digital piracy that goes on its quite impossible for most to buy all of what they illegally pirate).

Re:From what it sounds like... (5, Insightful)

Atario (673917) | about 7 years ago | (#20992449)

Agreed. At the absolute most the RIAA should have to prove how many people actually downloaded from her and then multiply that with the retail cost of the music. That's an absolute most (a better way would be to prove the people who downloaded from her would otherwise buy the actual song if they couldn't illegally download it. Given the amount of digital piracy that goes on its quite impossible for most to buy all of what they illegally pirate).
You forgot to multiply by the fraction of each file each person got from her.

Re:From what it sounds like... (1)

Propaganda13 (312548) | about 7 years ago | (#20992699)

I'm curious if her computer still had the information on how much data was uploaded for those songs.

I wonder about these figures for each song
(Total upload of a song/song size)*$.70)
Total number of uploads to unique individuals *$.70

I think these could be very useful figures.

Re:From what it sounds like... (0)

Anonymous Coward | about 7 years ago | (#20992783)

"a better way would be to prove the people who downloaded from her would otherwise buy the actual song if they couldn't illegally download it."

Better for her would be to prove that people DID purchase the song as a direct consequence of having downloaded it from her. Then invoice for advertising services.

Honestly, if I thought for a moment that downloading RIAA music would actually cause them any real damage I would actively do so with great enthusiasm. The fact is, it merely propgates their low quality products and damages real independent music. That is why I never collect or share "illegal" music.

Re:From what it sounds like... (3, Interesting)

UbuntuDupe (970646) | about 7 years ago | (#20992499)

Well, given a few assumptions, I don't think it's unreasonable.

1) Actual damages are ~$20.

2) Damages for torts should be divided by the probability of being caught.

3) Virtually no one gets prosecuted, let alone convicted, of filesharing.

4) Copyright law should be enforced.

2) is based on the reasoning that those who commit torts should bear the costs of their wrongdoing rather than innocent third parties. In order to make this happen, you have to shift the costs for crimes for which no one's caught, to those who are caught, which means dividing damages by the fraction of crimes they catch someone for. (Technically, the recovery rate, but same diff.)

(And yes, for most people here, 4 is questionable, but for most Americans, and for the jury in this case, it's not.)

Re:From what it sounds like... (2, Insightful)

Anonymous Brave Guy (457657) | about 7 years ago | (#20992543)

How strange to see a reasoned, balanced post in such a discussion.

I personally am not convinced about the staggering amount of damages here. However, I do wonder how many of the people who argue that she should only have to pay for actual damages based on demonstration by the RIAA of specific downloads are the same people who object to having the authorities tracing their Internet use, want to preserve on-line anonymity at all costs, etc. If you're going to argue for a system where it's almost impossible for someone to bring a case, yet where it's pretty obvious that a substantial amount of damage is being done and the only question is where to draw the line, then you can't argue that in a successful prosecution only token damages should be awarded and maintain any credibility.

Re:From what it sounds like... (1)

speaker of the truth (1112181) | about 7 years ago | (#20992561)

yet where it's pretty obvious that a substantial amount of damage is being done
But there is no evidence a substantial amount of damage is being done. No admissible or inadmissible evidence. In fact given how much some people infringe on the copyright of others, its impossible for all of it to be representative of how much damage that one person has done the copyright holders by infringing on their copyright.

Re:From what it sounds like... (1)

Anonymous Brave Guy (457657) | about 7 years ago | (#20992637)

But there is no evidence a substantial amount of damage is being done. No admissible or inadmissible evidence.

Oh, please. That line is about as credible as the RIAA claiming $150,000 per infringing track.

Your legal weaselry is as offensive as theirs, and as far from an honest attempt to see justice done.

Re:From what it sounds like... (4, Informative)

richie2000 (159732) | about 7 years ago | (#20992601)

it's pretty obvious that a substantial amount of damage is being done
This is not true. It may seem obvious, but then again, it may seem obvious that the earth is flat.

What we have found, after analysing the course of events and interviewing the file sharers, is that downloading and file sharing of music more has a positive than a negative effect on music sales. The music interest is promoted. New music and new artists are discovered.
http://xml.nada.kth.se/media/Research/MusicLessons/Reports/ [nada.kth.se]

Re:From what it sounds like... (2, Interesting)

Anonymous Brave Guy (457657) | about 7 years ago | (#20992769)

Sorry, I don't have time to read an entire zillion-piece web site to find the context for the quote you mentioned. And it's dangerous to give quotes like that out of context. Here's another quote, from page 22 of part 7:

WII interviewed file-sharers how much music they buy now compared to earlier when they were not active as file-sharers. The answers were 3% buy much more, 7% a little more, 55% as before, 25% a little less and 10% much less.

I don't know about you, but that seems pretty consistent with my personal experience. Perhaps those 3% who buy much more really do buy more than 3x as much as each of the 10% who buy much less have stopped buying, and similarly for the "a little" categories, but I couldn't find anything in the report on a quick scan to back this up. It's not exactly reliable to conclude that when you asked illegal file sharers about their activities, and they said they really bought loads more than they ever used to, this means freebie file-sharing is an overall plus.

Now, don't get me wrong. I'm not saying the explanation isn't plausible, and I certainly think that if the music industry gets its act together there are several business models created by on-line file-sharing that could make them more money and make music access easier for everyone. I have nothing against any of these ideas. But that's a far cry from claiming that today's freebie file-sharing culture is really a good thing for the music business and doesn't cost them anything, particularly if your only evidence for this is that you asked some file sharers and they told you so.

Re:From what it sounds like... (1)

Rogerborg (306625) | about 7 years ago | (#20992831)

That's a reasonable argument, and I hope that when you're caught singing Happy Birthday to You to your child, that you're executed for it, you inhuman monster.

Re:From what it sounds like... (1)

1u3hr (530656) | about 7 years ago | (#20992845)

2) Damages for torts should be divided by the probability of being caught.

A very strange principle, basically choosing a scapegoat who takes blame for collective evil. The RIAA could choose to prosecute one case per year, the lucky person chosen for the show trial would be assessed damages equivalent to the total ten million (imaginary figure, but right ball park) people who get away with it. Might as well just execute one file sharer per year.

The chance of being caught is totally in the hands of the prosecutor/plaintiff. Most filesharers expose their IPs, if anyone could be bothered to collect and correlate the data they could be charged.

Re:From what it sounds like... (4, Interesting)

Eivind (15695) | about 7 years ago | (#20992881)

Your step 2 is unreasonable. Causing a miniscule amount of harm is still a miniscule amount of harm, even if, say, the police choose seldom to investigate. (perhaps /BECAUSE/ the harm done is miniscule)

If you steal a single apple from your neighbour, it's not reasonable to argue that the risk of being convicted after having stolen a single apple from a neighbour is 1:1000000, so despite the apple being worth $0.20, you should be fined $200000. It's an unconstitutional excess to put someone in debt for life for the crime of stealing a single apple.

A different problem is that when a huge part of the population is guilty of breaking a certain law, but the risk of being investigated are very low, and punishment very high, this has the effect of giving whomever decides who to investigate the power to essentially punish people at will.

Politicians should make law. Police should investigate. Courts should convict. (or not) That's the way it's supposed to work. With filesharing it works more similar to this:

Politicians make a law, that a huge part of the population breaks regularily.
Police essentially never investigates anyone for breaking it.
Private companies are free to, according to their own criteria, decide who to investigate.
Courts tend to convict (not surprising, since most people are guilty)

This puts a -HUGE- amount of power in the hands of those private companies. I'd guess in a average group of college-students, that company is, currently, free to bankrupt for life anyone they chose to. Well, not -EVERYONE- but close enough. (certainly 90%)

Losing legal arguement (0)

Anonymous Coward | about 7 years ago | (#20992727)

While I agree with her, this is a losing argument.
The courts, especially appellate courts, are not going to let her win on this.

Her problem is that she has a separation of powers problem with her argument.

The rules are pretty clear, the legislature gets to decide the penalty for a crime. If someone thinks the penalty is too severe the proper thing to do is take it up with the legislature.
Here the legislature allowed for much higher penalties than she is suffering.
The appellate court is not going to see an error of law here.

The correct decision (from the court's point of view) is:
"Yes, the law sucks. If we were in the legislature we'd vote to overturn it. But we don't sit in the legislature we sit as judges in the Judicial Branch and therefore we can only rule on whether the law is Constitutional, not whether it is a stupid law. And it is Constitutional."

big numbers (4, Insightful)

mastershake_phd (1050150) | about 7 years ago | (#20992279)

Thomas would like to see the record companies forced to prove their actual damages due to downloading, a figure that Sony-BMG litigation head Jennifer Pariser testified that her company "had not stopped to calculate."

If they include legal fees, and what they spend tracking down file sharers, it just might be more than she has to pay.

Re:big numbers (1, Informative)

fractoid (1076465) | about 7 years ago | (#20992411)

You can't include legal fees as part of damages, can you? I thought they were always listed separately ("ordered to pay damages of $X, plus legal fees" is the way it's often put). It certainly doesn't seem reasonable for the plaintiffs to get punitive damages equal to the legal fees that they volunteered to pay.

From the sounds of it, Sony-BMG have no idea how much actual monetary damage she did them, and pulled a ridiculously large figure out of their ass.

Correction (2, Informative)

ravenspear (756059) | about 7 years ago | (#20992587)

From the sounds of it, Sony-BMG have no idea how much actual monetary damage she did them, and pulled a ridiculously large figure out of their ass.

The JURY pulled the figure out of their collective asses.

The plaintiffs do not set the damages that are awarded to themselves. The judge/jury does that.

Re:Correction (1)

fractoid (1076465) | about 7 years ago | (#20992673)

My bad. Same shit, different asshole. :P

Re:big numbers (1)

speaker of the truth (1112181) | about 7 years ago | (#20992415)

If they include legal fees, and what they spend tracking down file sharers, it just might be more than she has to pay.
In other countries this is true, but not in America. In America you have to pay your own attorney's fees regardless of if you win or lose. This is good in some instances (and absolutely terrible in others) as it would stop people from suing someone for an infinitesimal amount, like the actual provable damages incurred by Thomas making the music illegally available.

Re:big numbers (1)

Sheetrock (152993) | about 7 years ago | (#20992593)

This is generally the case, but it is not an absolute rule. It's quite possible [copyright.gov] in a copyright infringement case for one side or the other to be required to pay the expenses for both sides.

Re:big numbers (1)

Sheetrock (152993) | about 7 years ago | (#20992625)

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

Re:big numbers (1)

drawfour (791912) | about 7 years ago | (#20992523)

If they include legal fees, and what they spend tracking down file sharers, it just might be more than she has to pay.
Even if somehow they're able to get back the expenses they spent tracking down the defendant, there is no way any judge will award them additional monies for tracking down OTHER people.

Re:big numbers (1)

leuk_he (194174) | about 7 years ago | (#20992547)

I am not sure what it is called, but spending several year salaries to track down someone who stole the worth of 2 CD's is not reasonable. If it is then security companies would be rich now.

Just catch a thief and claim the salary of the guard, his boss, his legal counsil, and the food of his dog.

Re:big numbers (1)

sco08y (615665) | about 7 years ago | (#20992645)

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

None of which is considered damages.

Re:big numbers (1)

suv4x4 (956391) | about 7 years ago | (#20992693)

If they include legal fees, and what they spend tracking down file sharers, it just might be more than she has to pay.

That's not a damage she did, it's a damage they did upon themselves.

I've not heard before that a thief has to pay for the salaries of the cops that caught him, or the judge that convicted him, this being part of the implicit damage he did by stealing your truck (for example).

The [RIAA] spokesman told Ars., (0, Redundant)

mrjb (547783) | about 7 years ago | (#20992307)

"We will continue to defend our rights." Hello spokesman. Please define 'defend', 'our' and 'rights'. Attacking people is not defense, it is offense. Also, it looks more and more as though you are acting in the interest of the RIAA itself rather than the artists that it represents. As for 'rights', you have the right to exist as long as you add value.

curious (2, Funny)

User 956 (568564) | about 7 years ago | (#20992309)

She is seeking a retrial to determine the RIAA's actual damage

Afterwards, they'll attempt an inquiry to determine the RIAA's major malfunction.

Re:curious (0)

Anonymous Coward | about 7 years ago | (#20992327)

As if!

"unconstitutionally excessive"? (3, Interesting)

Max Romantschuk (132276) | about 7 years ago | (#20992335)

Can someone please explain to a European, what this compulsive need to refer to the constitution in seemingly all matters relating to the law is all about?

I'll be the first one to agree that these damages are "ridiculously excessive" or "fabricated", but what does this have to do with the constitution? Is it just a cultural thing?

Re:"unconstitutionally excessive"? (4, Insightful)

ahuard (992454) | about 7 years ago | (#20992355)

The US constitution grants the vast majority of American's rights and freedoms, so when these are attacked the constitution is always cited. There are sections in there that grant all rights not mentioned (or thought of at the time of writing) to the people and the states -- not the federal government. So even if a violation is not specifically mentioned in the constitution, the constitution can still be used as a defense (ambiguous to be sure, but it works as a potential argument when the government tries to assert an authority it shouldn't have).

Re:"unconstitutionally excessive"? (4, Informative)

uhlume (597871) | about 7 years ago | (#20992529)

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

Re:"unconstitutionally excessive"? (0)

Hognoxious (631665) | about 7 years ago | (#20992751)

This is not a minor philosophical point.
Agreed, it's a trivial semantic one. The only right you naturally have is to starve, freeze, or be eaten by a bear. Nasty, brutish & short aren't a firm of attorneys.

Not Quite (3, Informative)

Spasmodeus (940657) | about 7 years ago | (#20992877)

The U.S. Constitution doesn't grant rights, the rights are "unalienable". The "Bill of Rights" portion of the Constitution prohibits the government from violating those rights.

Note how everything is expressed in negatives, i.e. "shall not be infringed".

Re:"unconstitutionally excessive"? (2, Interesting)

sonamchauhan (587356) | about 7 years ago | (#20992359)

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

Re:"unconstitutionally excessive"? (0)

Anonymous Coward | about 7 years ago | (#20992553)

The prohibition against "cruel and unusual" punishment is actually generally agreed to be forbidding torture. IIRC, it's a line borrowed from English law, in which it means precisely that.

Re:"unconstitutionally excessive"? (-1, Troll)

m2943 (1140797) | about 7 years ago | (#20992421)

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

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

The Constitution is the cornerstone of all legislation and exercise of public power. It contains provisions on state organisation, checks and balances between the top government branches and fundamental civil rights.


The EU is deciding on a constitution for itself. It's a big problem that many Europeans don't seem to be paying much attention to this and don't understand the significance that it has for society and the legal system. Please inform yourself and participate.

Re:"unconstitutionally excessive"? (1)

Futile Rhetoric (1105323) | about 7 years ago | (#20992467)

Actually, I would argue that in a civil law system, a constitution is much less important. Please inform yourself.

In the Netherlands, for instance, the courts aren't even allowed to constitutionally test legislature, and yet it hasn't managed to descend into complete anarchy quite yet.

Re:"unconstitutionally excessive"? (1)

Max Romantschuk (132276) | about 7 years ago | (#20992549)

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

Finland, where you seem to hail from, got a new constitution in 2000 (http://www.om.fi/21910.htm), so maybe that's why you aren't familiar with it
Did you read my post? I'm perfectly aware that we have a constitution in Finland. I'm just curious as to why there's a need to refer to it in seemingly every other trial.

Re:"unconstitutionally excessive"? (0)

Anonymous Coward | about 7 years ago | (#20992767)

Several European nations have a constitution as well, and they are used in much the same way as the US constitution.
Doesn't every EU country have one? In any case, the political system differs wildly between nations, and in some nations the constitution is more important than in others. I wouldn't say the Finnish and US constitution are used in much the same way.

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

The EU is deciding on a constitution for itself. It's a big problem that many Europeans don't seem to be paying much attention to this and don't understand the significance that it has for society and the legal system. Please inform yourself and participate.
Have you even read it? This is nothing like your constitution. It just combines previous arrangements and tweaks the voting mechanism. 'Giving rights to the people' is just a minor part of it.
Perhaps you should inform yourself about other nations before making these wild statements...

Re:"unconstitutionally excessive"? (1)

prefect42 (141309) | about 7 years ago | (#20992777)

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

Re:"unconstitutionally excessive"? (1)

Lost Engineer (459920) | about 7 years ago | (#20992435)

Nothing really, AFAIK. IANAL of course. The American constitution says little to nothing about civil law as it is now practiced. We copied the British system, but we have gone in our own direction, of course, for two hundred and something years. Still, I've read the whole constitution and all the amendments, and I don't recall anything restricting the responsibility of individuals to repay damages determined in court.

8th Amendment (5, Insightful)

ravenspear (756059) | about 7 years ago | (#20992447)

She could be referring to the 8th Amendment, which states:

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

Re:8th Amendment (3, Insightful)

speaker of the truth (1112181) | about 7 years ago | (#20992469)

This isn't a fine. This is an award for her infringing on somebody's copyright. Unfortunately that part of the constitution wouldn't apply (IANAL).

Re:8th Amendment (3, Insightful)

ravenspear (756059) | about 7 years ago | (#20992493)

Well it still could be a cruel and unusual punishment, cruel because it could bankrupt her and/or ruin her life, and unusual because it is rather large for the crime that was committed, especially considering that we don't know whether any infringement actually took place, she was convicted just on the "making available" part.

Re:8th Amendment (1)

speaker of the truth (1112181) | about 7 years ago | (#20992517)

That part yes. Sorry I was only responding to the bolded bit. Although again she wasn't convicted. She was found to have made available someone's copyright without permission from the copyright holder. The difference is if she were convicted the RIAA wouldn't be making a dime (unless they sued separately) and she would be facing a fine and/or jail time. Which is simply ridiculous, but a separate issue.

Re:8th Amendment (1)

ravenspear (756059) | about 7 years ago | (#20992537)

Yes, I realize the difference between criminal and civil. Sometimes convicted/found guilty/found liable et al just run together. At the rate the current media lobby is progressing though, I suspect it might not be long before we will start seeing laws providing jail time for filesharing. Like I said in my comment above though, maybe this case will provide a court test of the current statutory damages which also absurd and get those thrown out. That would be a step in the right direction.

Re:8th Amendment (1)

91degrees (207121) | about 7 years ago | (#20992717)

I imagine whether this is or is not a fine will be one of the major points to be argued in the case. It shouldn't be possible for legislators to circumvent the constitution by playing around with definitions.

Re:8th Amendment (1)

yada21 (1042762) | about 7 years ago | (#20992793)

IANAL but if it's a civil case then isn't it damages? Fine's are for criminal offences.

Now because they're factoring in a multiplier to punish this person for the one's the didnt catch - is that legal anyway? - isn't that more like a fine as it's an intention of deterrent rather than restitution?

You could argue either way and lawyer's probably will.

Re:8th Amendment (4, Informative)

stinerman (812158) | about 7 years ago | (#20992557)

Nope.

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

Re:8th Amendment (1)

ravenspear (756059) | about 7 years ago | (#20992599)

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

Re:8th Amendment (0)

Anonymous Coward | about 7 years ago | (#20992729)

Link to actual motion [ilrweb.com] shamelessly copied from Mr. Beckerman [blogspot.com] , more background info [findlaw.com] and the 14th Amendment [findlaw.com] . Links further indicating parent is quite correct and for the curious.

Re:8th Amendment (1)

Max Romantschuk (132276) | about 7 years ago | (#20992567)

She could be referring to the 8th Amendment, which states:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Thanks, answered my question! :)

Re:"unconstitutionally excessive"? (1)

cliveholloway (132299) | about 7 years ago | (#20992457)

I don't get it either. Last time I asked this question I got marked as flamebait. People say "constitutional right" like that's it. Nothing more needs to be said. It's impossible to have a debate with these people, heh...

Re:"unconstitutionally excessive"? (3, Interesting)

rm999 (775449) | about 7 years ago | (#20992501)

America takes a lot of pride in its constitution and the attached bill of rights (the first ten amendments), including the 8th amendment which forbids "excessive fines." The US constitution is truly a revolutionary document (something that is easy to forget 230 years later), and I honestly think it has directly led to the stability of the nation. Although there are periodic periods of abuse of the constitution (like the last seven years), the nation has consistently prevailed and proven itself to be relatively stable. The USA was founded on protecting its citizens from the government, something Americans should rightfully never forget, especially in cases like this.

In parts of Europe, Wolfenstein 3D was banned because, even though it was critical of Nazis, it dared to portray them at all. In the USA, we take pride that this sort of censorship was explicitly forbidden when our nation was founded. I'm not trying to troll, but Europe chose not to do this.

Re:"unconstitutionally excessive"? (0, Troll)

PinkyDead (862370) | about 7 years ago | (#20992667)

If you scaled up the terrorist attacks of 9/11 to the combined levels of horror WWI, WWII and the Holocaust, with nearly 100,000 dead or wounded - and most importantly on your own front door, with your family murdered in front of you or your daughters and wife raped and abused. And then to had the strength of character to turn it around within just 10 years, rebuild and forge a future together, then you might feel a little different about banning certain groups or themes.

I have never heard, nor do I expect to hear of a game called, for example, 'Slave Owner' or 'Trade Towers Bombing Run' (please don't tell me they exist). You are lucky that everyone else has the sensitivity not to make light of the horrors of your past - let alone criticize you for asking that to be respected at the very least in your own country.

Well the dutch use the "grondwet" (1)

SmallFurryCreature (593017) | about 7 years ago | (#20992643)

It is just the basic set of laws that stand at the top of the law pyramid, these laws are what must be obeyed and nobody can infringe upon them, not by making new laws, not by new policy. Typically these foundation laws are far harder to change then regular law.

And if in holland a new policy or law goes against the "grondwet" (groundlaw) we refer to it exactly like an american refers to the constitution. For instance discriminatin, Artikel 1, "Allen die zich in Nederland bevinden, worden in gelijke gevallen gelijk behandeld. Discriminatie wegens godsdienst, levensovertuiging, politieke gezindheid, ras, geslacht of op welke grond dan ook, is niet toegestaan."

Rough translation" All who are in The Netherlands, shall in equal circumstances be treated equally. Discrimination according to religion, philosophie, political leaning, race, sex or whatever else, is not allowed".

Whatever law is passed, it got to follow this first law. It cannot be changed (well not likely in dutch climate of coalition goverment that can barely agree on simple things) and it cannot be ignored and with the always hot issue of immigration it is constantly reffered to.

So it is not an american thing, most countries will have a similar system, and people who think they have their fundemental rights infringed will try to get their justice by pointing out these fundemental rights. The US constitution protects against unfairly harsh punishement, this woman thinks she received an unfairly harsh punishment so that is the law she refers too.

What else should she refer too?

RIAA just doesn't sell any... (-1, Troll)

meskk (471044) | about 7 years ago | (#20992345)

My thoughts about this whole RIAA thing has lead me to beleive the following:

a. Most of the jokers buying these albums/ attending concerts for the artists in which RIAA defends are kids/ their parents.

b. The other people that listen to these artists are too lazy to search for worthy artists to listen to which RIAA does not monitor.

c. RIAA makes up for losses from these cases because most of the artists blow (britney spears) or have blown for years, i.e. Metallica, GNR, etc.

I know I have none of this music on my shared drive, I wish I did so these clowns can try me.

Re:RIAA just doesn't sell any... (0)

Anonymous Coward | about 7 years ago | (#20992655)

"most of the artists blow (britney spears)"

Well, then at least there is one way in which which she can make guys happy.

Motion for Retrial !== Appeal (2, Interesting)

Anonymous Coward | about 7 years ago | (#20992385)

IANAL but I don't think the motion for retrial is not the same as an appeal with the appeals courts. This is a motion with the presiding judge of the trial for him to set aside the results of the trial and order a retrial based on the jury award being more then ten times the actual losses to the RIAA. The RIAA of course will file a counter motion and the judge will decide, possibly after hearing arguements again from both sides. If the motion fails then her lawyer will appeal the case. If the motion succeeds then its possible that the RIAA might try to withdraw the case rather then risk setting a precedent of 70 cents a song damages.

Any real lawyers reading this please comment.

Re:Motion for Retrial !== Appeal (0)

Anonymous Coward | about 7 years ago | (#20992497)

I don't know about lawyers, but programmers would like to comment that (!==) != (!=).

Re:Motion for Retrial !== Appeal (1)

gazbo (517111) | about 7 years ago | (#20992695)

Except in some weakly typed languages, where (!==) == (!=) but (!==) !== (!=)

Re:Motion for Retrial !== Appeal (1)

backwardMechanic (959818) | about 7 years ago | (#20992797)

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

Know when you are beaten (-1, Flamebait)

cliffski (65094) | about 7 years ago | (#20992423)

She was guilty, clearly, obviously and transparently. she got caught. WTF is going through her head? if she had common sense she would have taken the very low settlement fine that was originally requested. she made it worse by trying to insult a judge and jury by claiming she didn't do it, now she is trying to push it yet again.
I am no friend of the RIAA, but this woman is mental and I have no sympathy for her tying up court time whining about getting caught taking stuff that she had not paid for. Anyone who wants a good test case against the RIAA will have to accept this is not it, she is guilty as hell.

Re:Know when you are beaten (4, Insightful)

speaker of the truth (1112181) | about 7 years ago | (#20992461)

She was guilty, clearly, obviously and transparently. she got caught. WTF is going through her head?
"I shouldn't have to pay $222,000 when I only uploaded it to 5 people"? Not such an unreasonable thing to think.

Re:Know when you are beaten (1)

Omnifarious (11933) | about 7 years ago | (#20992473)

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

Imagine you are in the dark ages... (4, Interesting)

ghostunit (868434) | about 7 years ago | (#20992873)

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

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

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

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

They planned it all along (5, Insightful)

freshmayka (1043432) | about 7 years ago | (#20992437)

1. Fight the RIAA, go for the jury trial
2. Hold your ace close and play the first round to lose
3. ???
4. Less PROFIT for the RIAA!



And now we know that #3 is:

Appeal $220k reward on Constitutional grounds! BRILLIANT!

Seriously! There is at least one juror who has already opened his mouth to the press and said something to the effect of "the punishment is so high because we want to send a message that this is a bad thing to do... mmmmKay..." Which... ::cough cough:: is against our Constitution in America.

Copyright is not a right (5, Insightful)

speaker of the truth (1112181) | about 7 years ago | (#20992439)

The [RIAA] spokesman told Ars., "We will continue to defend our rights."
Copyright is not a right (despite its name). It is a legal privilege given to certain people for a finite amount of time. Unfortunately big business and Congress have forgotten this.

Re:Copyright is not a right (1)

dabadab (126782) | about 7 years ago | (#20992565)

"[i]Copyright is not a right (despite its name). It is a legal privilege[/i]"

And a legal privilege is... a right, right?

What was the point of your post, again?

Re:Copyright is not a right (2, Informative)

speaker of the truth (1112181) | about 7 years ago | (#20992581)

And a legal privilege is... a right, right?
No, rights are irrevocable. Copyright however is revocable (as works eventually enter the public domain, once upon a time they did this within the creators own lifetime).

What was the point of your post, again?
To point out that Capitol is not defending its rights here.

Re:Copyright is not a right (1)

Tim C (15259) | about 7 years ago | (#20992615)

You could argue that my right to life ends the moment I am convicted of a crime that carries the death penalty. You could argue that my rights to freedom, to freedom of association, to freedom of speech, etc end the moment I'm convicted of a crime that warrants imprisonment (and start again when I'm released).

Even inalienable rights are not irrevocable, and can indeed be revoked and suspended as the law sees fit.

The law confers certain rights to copyright holders, limited in time and in scope but rights nevertheless. You can play all the word games you like, but that won't change the legal reality of the situation.

Re:Copyright is not a right (1)

dabadab (126782) | about 7 years ago | (#20992661)

No, rights are irrevocable.

Where does that definition come from? And anyway, history gives us ample proof that no right is irrevocable. None.

To point out that Capitol is not defending its rights here.

But, they do. You might disagree with how they defend them or with the implementation of these rights (or even with the concept of copyright itself) but there's no denying that in the current legal framework they do have a right that they are defending.

Re:Copyright is not a right (1)

julesh (229690) | about 7 years ago | (#20992801)

No, rights are irrevocable.

That's a very strange definition of "right".

Here are some dictionary definitions:

"a power, privilege, immunity, or capacity the enjoyment of which is secured to a person by law", or "a legally enforceable claim against another that the other will do or will not do a given act", or "the interest that one has in property : a claim or title to property", or "the interest in property possessed (as under copyright law) in an intangible thing and esp. an item of intellectual property" (Merriam Webster Legal Dictionary)

"a moral or legal entitlement to have or do something." or "the authority to perform, publish, or film a particular work or event" (Compact Oxford English Dictionary)

"a just claim or title, whether legal, prescriptive, or moral" or "the interest or ownership a person, group, or business has in property" (Dictionary.com Unabridged (v 1.1), based on the Random House Unabridged Dictionary, © Random House, Inc. 2006.)

"Something that is due to a person or governmental body by law, tradition, or nature" or "A just or legal claim or title" (American Heritage Dictionary)

I'd say that something that is a _moral_ right cannot be taken away from you. But the word is also commonly used in the sense of something that is granted to you by law.

Re:Copyright is not a right (1)

Anonymous Brave Guy (457657) | about 7 years ago | (#20992631)

Copyright is not a right (despite its name). It is a legal privilege given to certain people for a finite amount of time.

There are different kinds of "right". There are legal rights: those things you may do, with the law protecting your freedom to do so. Copyright clearly is such a right. Then there are moral rights (sometimes called human rights, though this clouds the issue): those things that are widely recognised as being important freedoms that should be protected. Hopefully your legal rights include all of your moral rights, though of course this doesn't always work in practice and more than the occasional revolution has started when the gap became wide enough. And then, from a pragmatic standpoint, there is the classic argument that the only rights you truly have are those you are prepared to die defending, because anything else can be taken from you, and if it can be taken from you, is it really a right at all?

In any case, the question is far from the simplistic view you present, and cute sound-bites about the name of something do little to further the debate (whichever side is spouting them this five minutes).

Consent of the victim (0)

denoir (960304) | about 7 years ago | (#20992629)

I'm not a fan of the business model of the music industry but I'm far more appalled by the mindset of many of the consumers of their product. It's not that they copy the music without permission or compensation to the producer. It's not even that they try to dictate the terms on how the industry is to sell its products.

The really disgusting part is when people demand that the industry accepts people using their products without any compensation going to the producer. They demand the consent of the victim. These people that have not produced anything, are not giving anything in exchange demand the product for free and the producer thanking them for looting. How much more perverse can it get?

Take their music if you must, but please, don't fall to the level of demanding their blessing for it.

Re:Consent of the victim (0)

Anonymous Coward | about 7 years ago | (#20992687)

Are you talking to the pirates, or to the RIAA with regard to signed artists?

Re:Consent of the victim (3, Insightful)

Teancum (67324) | about 7 years ago | (#20992855)

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

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

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

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

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

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