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DoJ Sides With RIAA On Damages

kdawson posted more than 6 years ago | from the banding-together-with-bullies dept.

Music 469

Alberto G writes "As Jammie Thomas appeals the $222,000 copyright infringement verdict against her, the Department of Justice has weighed in on a central facet of her appeal: whether the $9,250-per-song damages were unconstitutionally excessive and violated the Due Process Clause of the Constitution. The DoJ says that there's nothing wrong with the figure the jury arrived at: '[G]iven the findings of copyright infringement in this case, the damages awarded under the Copyright Act's statutory damages provision did not violate the Due Process Clause; they were not "so severe and oppressive as to be wholly disproportioned to the offense or obviously unreasonable."' The DoJ also appears to buy into the RIAA's argument that making a file available on a P2P network constitutes copyright infringement. 'It's also impossible for the true damages to be calculated, according to the brief, because it's unknown how many other users accessed the files in the KaZaA share in question and committed further acts of copyright infringement.'"

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469 comments

The good news... (4, Insightful)

nunyadambinness (1181813) | more than 6 years ago | (#21577703)

That's not the DOJ's decision to make.

Re:The good news... (4, Informative)

The Only Druid (587299) | more than 6 years ago | (#21577725)

Because we all know, no courts ever consider the DOJ a good source of argument...

Realistically, this is expected but not necessarily a big deal; had the DOJ presented some new argument here - one which was more powerful than the existing arguments - that would have been problematic. Here, they've done little more than endorse the existing arguments.

NO (-1, Flamebait)

nunyadambinness (1181813) | more than 6 years ago | (#21577775)

Because we all know, no courts ever consider the DOJ a good source of argument...


OOH sarcasm, the lowest form of humor.

NO guy, it's because the DOJ's decision is irrelevant in the face of a court decision.

THAT'S A-L-L.

Re:NO (-1, Troll)

Anonymous Coward | more than 6 years ago | (#21578181)

OOH sarcasm, the lowest form of humor.

OOH 7 digits UIDs, the lowest form of commenter.

NO guy, it's because your dumb First Post had an interesting comment following it.

THAT'S A-L-L.

Re:NO (5, Funny)

UncleTogie (1004853) | more than 6 years ago | (#21578223)

OOH 7 digits UIDs, the lowest form of commenter.

...says the anonymous coward...

END MODERATOR ABUSE (-1, Troll)

Taco Meat (1104291) | more than 6 years ago | (#21578413)

I am replying with this to Uncle Togie. Not only will his post ensure strategic placement of mine, I like the kid. He's got moxy, and he shouldn't lose that. http://127.0.0.1/ [127.0.0.1] ...a classic gem!

I have again been the victim of moderator abuse http://slashdot.org/comments.pl?sid=366293&cid=21424075 [slashdot.org] . MOD me up to correct this injustice. Mod me down if you think I am a moron. Of course, in the immortal words of PeeWee: "I'm rubber and you're glue, whatever you say bounces off me and sticks to you".

Too many moderators use Insightful as "I agree". Too many moderators fall for unoriginal groupthink and mod it up. People complain about trolls, but the REAL line noise on slashdot comes from the posts modded +4 or +5 that contribute NOTHING to an intelligent discussion. You can't filter that out, and even if you have your thresholds set high, you still see all the stupid stuff that you've already seen. That's why digg sucks and will never be anything but a place for 1338 high-skool haxx0rs. And it's happening here. So I used this account to call shenanigans on sucky posts. I getted modded into oblivion for pointing out truth. I guess that's how it goes. Most of you are a bunch of mindless sheeple.

You know, I once suggested that IQ tests be given to moderators to separate the wheat from the chaff. I think that wouldn't help. I kind of like having idiot moderators. MORONS! DOPES! Bring it, tubers!

Re:NO (3, Funny)

Cassius Corodes (1084513) | more than 6 years ago | (#21578341)

Its not the size of your UID, its how you use it.

Remember kids, winners don't do drugs.

Re:NO (2, Insightful)

Cassius Corodes (1084513) | more than 6 years ago | (#21578293)

At the risk of being stoned here I would like to say I agree with that argument.

The amount presented per song as damages are not just "to buy that song" as some have argued here, but the equivalent of buying the right to distribute that song. When you purchase an album it does not give you the right to give it out to people, it just gives you the right to listen to it. Its also not unconceivable that the record companies lost that much money from her actions either, especially if she was one of the first to make it available for download.

The argument that making something available on a P2P network constitutes copyright infringement is quite logical. Imagine you were on a street corner giving out illegally burned cds, and the police come and arrest you. Do you think they would buy the argument that you haven't actually given out yet? Or that you were blindfolded so you don't know if you have given one out? Of course not. You could make the argument that she was unaware that they were available for download, but ignorance has rarely been a good argument to make in court (except for politicians).

Re:NO (5, Funny)

JudgeFurious (455868) | more than 6 years ago | (#21578329)

That is technically incorrect. The lowest form of humor comes from the sounds and odors emitted from the typical human anus.

  Come on man, everybody knows that. It's the one thing on this earth that you will find amusing on some level for your entire life.

  When you were 2 you laughed when you farted. When you are 92 and sitting in a wheel chair in a nursing home you'll laugh at the old guy next to you who can't get away from your ancient mummy farts.

no surprises here then... (4, Insightful)

advocate_one (662832) | more than 6 years ago | (#21577717)

the American legal system, the best justice money can buy... stays bought...

Re:no surprises here then... (5, Insightful)

zsavior (1198363) | more than 6 years ago | (#21578147)

And yet if you sue a company for killing a loved one, or if a doctor leaves his watch inside your loved ones body, they want you to be limited to how much you can sue them for. She is paying over 1k for a single song. But you have to limit yourself if a corporation or doctor takes your family members life. Good thing we know our priorities.

Re:no surprises here then... (2, Insightful)

OrangeTide (124937) | more than 6 years ago | (#21578333)

It is pretty obvious that Britney Spears and Usher are the priority in our society.

She deserves the fine (0)

Anonymous Coward | more than 6 years ago | (#21577727)

She was obviously and unquestionably guilty and she had a slashbot's arrogance to go to court instead of paying a few grand.

Re:She deserves the fine (1)

pravuil (975319) | more than 6 years ago | (#21577813)

Yeah, us none /. cowards are really arrogant because paying a grand for a one dollar song is fair in any book. Would you like fries with that troll?

Re:She deserves the fine (1)

compumike (454538) | more than 6 years ago | (#21578187)

It's not "paying a grand for a one dollar song"... it's paying as a punishment for illegally redistributing it, and as a deterrent to future piracy. While the value of the media does have relevance to the damages, there might have been hundreds of copies distributed illegally. And for each instance, there should be a greater than 1 to 1 fine so that it's actually a punishment and deterrent.

It only seems strange because she's the first one.

--
Educational microcontroller kits for the digital generation. [nerdkits.com]

Re:She deserves the fine (1)

Gideon Fubar (833343) | more than 6 years ago | (#21578447)

She's not the first one, she's just one of the first who fought against it and didn't quite have the smarts (or the money) to avoid the penalty. Others have paid thousands each to avoid these lawsuits.

and yes, it IS paying a grand for a one dollar song. There's no other avenue in civil court that offers plaintiffs a 1:1000 renumeration scheme.

Re:She deserves the fine (1)

Zarxrax (652423) | more than 6 years ago | (#21577837)

Yes, because no one should ever have the audacity to want to have a fair trial. We should all just hand over all of our assets to any corporation that wants them, no questions asked.

Re:She deserves the fine (1)

xero314 (722674) | more than 6 years ago | (#21578289)

Isn't it only a fair trial if you win. I don't think I have ever heard of someone losing a trial and then stating, "that was a really fair trial and I got what I deserved." I applaud anyone that turns down a settlement offer and instead takes the case to trial. But they won't get any sympathy from me when they are clearly in the wrong (breaking the law) lose. Read up on civil disobedience, it may be the right thing to do, but it is still breaking the law, and punishable.

Re:She deserves the fine (1)

Brian Gordon (987471) | more than 6 years ago | (#21578373)

But that has nothing to do with sentencing- she was guilty doh but she doesn't deserve to be slapped with hundreds of thousands in fines. There's no way she's filesharing ever again, it's not exactly a deterrent.

Re:She deserves the fine (1)

xero314 (722674) | more than 6 years ago | (#21578471)

Obviously the jury in the "fair" trial that she received disagrees with you. Personally I think getting away with just a fine, after wasting the courts and peoples time, should be considered a gift. But my point was that fighting when you are clearly in the wrong is not usually the best approach. She could have gotten away with the crime and not been labeled as guilty for a few dollars (which she have been easy for her to come by since she owned a computer and had time to rip and share mp3s). The best you can hope for once it goes to court is a Not Guilty verdict which is considerably different than being innocent.

Re:She deserves the fine (0)

Anonymous Coward | more than 6 years ago | (#21577955)

Remember kids: it's very important to be a selfish, slovenly pig. When you get 'caught' doing something everyone else does, just pay a small fine and go back to wallowing in your own filth.

Re:She deserves the fine (3, Funny)

grub (11606) | more than 6 years ago | (#21578221)


Remember kids: it's very important to be a selfish, slovenly pig. When you get 'caught' doing something everyone else does, just pay a small fine and go back to wallowing in your own filth.

I'm in Canada. I don't need to pay a fine before wallowing in my own filth!

Yes, the same $ as Scooter Libby pays 4 treason (2, Interesting)

schwaang (667808) | more than 6 years ago | (#21578345)

Fair enough.

Re:She deserves the fine (1)

91degrees (207121) | more than 6 years ago | (#21578403)

She deserves a fine perhaps.

But are you suggesting she should be punished for wanting the courts to make a judgement rather than the record industry?

Why am I not surprised? (5, Insightful)

PhxBlue (562201) | more than 6 years ago | (#21577753)

Oh, right, because this is the same Department of Justice that doesn't see anything wrong with waterboarding, transporting people to secret overseas prisons, etc. It's the same DOJ that kowtowed to Microsoft pretty much the same day that President Bush swore his first oath of office.

Re:Why am I not surprised? (1)

Hatta (162192) | more than 6 years ago | (#21577763)

Yeah no kidding. A branch of the American government, siding with big business? Really? I never thought I'd see the day.

Re:Why am I not surprised? (2, Insightful)

PhxBlue (562201) | more than 6 years ago | (#21578021)

Try "A branch of the American government that's come to represent the exact opposite of its name." What kind of "justice" department condones torture?

Re:Why am I not surprised? (1)

Myopic (18616) | more than 6 years ago | (#21578501)

The kind that accurately, legitimately, and democratically represents the will and opinion of the majority of the electorate. ...an incredibly ignorant and thoughtless electorate.

If we lived in a monarchy we could blame the king, but we live in a democracy, so blame your neighbors. Half of them *re*-elected this administration. (Not me, though; I'm a blamer not a blamee.)

Of Course They Do (0)

bit trollent (824666) | more than 6 years ago | (#21577765)

The America's government is corrup from the lobbyists who bribe politicians all the way up to the Congress and President who accept bribes every day.

A country which is run by bribes and corruption is always going to screw the common man to benefit the people who can afford to bribe the politicians.

This is what the RIAA's bribes paid for.

Re:Of Course They Do (-1, Troll)

Anonymous Coward | more than 6 years ago | (#21577791)

Then move.

Re:Of Course They Do (1)

bit trollent (824666) | more than 6 years ago | (#21577833)

Is it ok if I use my free speach rights to complain about corruption?

May I vote against politicans who uplhold the system of bribes for laws?

Oh yeah, that's right. I can. Fuck off.

Re:Of Course They Do (2, Insightful)

pravuil (975319) | more than 6 years ago | (#21577919)

A proper mature response to the troll would be, "no, you move."

Re:Of Course They Do (1)

Frigga's Ring (1044024) | more than 6 years ago | (#21578125)

Isn't that something Captain America said... right before he was shot?

Re:Of Course They Do (1)

Sierpinski (266120) | more than 6 years ago | (#21577829)

The American Government is the best government that money can buy.

Corruption starts in the streets... the beggars bribe the councilmen.
The councilmen bribe the senators.... it goes all the way up to the Department of Justice!

Shit!!

Kill him!!!!!

Re:Of Course They Do (0)

Anonymous Coward | more than 6 years ago | (#21578001)

Beggars in my lobby? I think not.

Re:Of Course They Do (1)

Frigga's Ring (1044024) | more than 6 years ago | (#21577995)

If your comment doesn't get modded up, I don't want you thinking you're wrong. You're not; it's just that this isn't really news to most of us. I'd wager that most of Slashdot's readers are middle class Americans who see neither the tax breaks the Republicans give the rich nor the free rides the Democrats give the poor. I'm just worried that any anger we should be using to act is instead being defused by bitching on our blogs and laughing at the satire news shows.

Maybe it wasn't that good an idea... (0, Flamebait)

filbranden (1168407) | more than 6 years ago | (#21577769)

Maybe it wasn't that good an idea to appeal. It was pretty obvious to me that it would end like this. It just strenghtened the RIAA. However, not appealing could be interpreted as an acknowledgment from JT and the lawyers that the RIAA was right as well... This whole RIAA thing is very unfair in general, and the fact that the government not only allows it but even encourages makes it still more miserable.

Re:Maybe it wasn't that good an idea... (1)

oh_my_080980980 (773867) | more than 6 years ago | (#21578309)

End like what exactly? DOJ is not the court. The DOJ can say whatever they want. They can file whatever brief they want. It's up to the COURT to make the decision whether or not the damages are unconstitutional, NOT the department of justice.

Impossible? (4, Interesting)

juuri (7678) | more than 6 years ago | (#21577785)

'It's also impossible for the true damages to be calculated, according to the brief, because it's unknown how many other users accessed the files in the KaZaA share in question and committed further acts of copyright infringement.'"

Given that the fair market value of a song has been established at $.99 it sure seems like the DoJ is making a directly contradictory statement. They are saying that even though it is impossible for one to know how many accesses there were it's okay to go ahead and assume that number was over nine thousand. Didn't know the DoJ should be out there supporting assumptions... oh well.

Re:Impossible? (2, Interesting)

devjj (956776) | more than 6 years ago | (#21577877)

Incorrect. They are providing reasoning for why statutory awards are not necessarily related to actual monetary damages: instances where determining the exact monetary damage is difficult or impossible.

Re:Impossible? (0)

Anonymous Coward | more than 6 years ago | (#21578157)

In other words, they pulled a number out of their ass.

"You can't put a value on a human life! So that's why we're asking for 50 million dollars."

Re:Impossible? (0)

Anonymous Coward | more than 6 years ago | (#21578335)

Given that the fair market value of a song has been established at $.99

So what, maximum damages should be 1$ per track? That's not much of a deterrent. Hell, it's an incentive to pirate. The expected cost through piracy would be less than paying for it legitimately.

The fine has to be larger than what it sells for. It has to be larger than what it sells for multiplied by the inverse of the expected likelihood of being caught, otherwise, it's an incentive to break the rules.

Re:Impossible? (0)

Anonymous Coward | more than 6 years ago | (#21578365)

it's okay to go ahead and assume that number was over nine thousand.

What?! Over NINE THOUSAND?!?!

Re:Impossible? (0)

Anonymous Coward | more than 6 years ago | (#21578483)

That is something I never understood with regard to the law, in particular to copyright. If the fair market sets the price on a commercially available copyrighted work, how can a court, i.e. jury, legally come back and say that the fair market established price is invalid and as such, these are the values for which the copyrighted works in question are worth. Its one thing to give damages to a plaintiff for verifiable infringement. It's another to come up with some pie in the sky number when you have NO information on what that number should be held against, aside from the mental abstraction that is 'copyright infringement'

The other side I have a problem with is what is actually being distributed. Unless you are distributing a bit for bit copy of a CD, non-codec compressed, how can they seek a value equivalent to that of the fair market price when what you are actually distributing is of a lesser fair market value standard recording? After reading about all these cases of copyright infringement, I have yet to see someone make that argument.

Love the logic. (4, Insightful)

Basilius (184226) | more than 6 years ago | (#21577789)

'It's also impossible for the true damages to be calculated, according to the brief, because it's unknown how many other users accessed the files in the KaZaA share in question and committed further acts of copyright infringement.'

Since it's unkown how many other users accessed the files, the possibility that the number is zero is as possible as any other number.

If you cannot prove HOW many accessed the file, you cannot prove ANY accessed the file. Yet simply making available is a violation anyway.

The award is ludicrous.

Re:Love the logic. (1)

TubeSteak (669689) | more than 6 years ago | (#21577949)

If you cannot prove HOW many accessed the file, you cannot prove ANY accessed the file.
The same line of thought occurred to me too.
I took it further and concluded that would make a good argument for not awarding damages, since the plaintiffs didn't show actual infringement...
But they don't need to.
The monetary penalty is written into law and it doesn't matter if anyone accessed the file or not.

Re:Love the logic. (1)

bahwi (43111) | more than 6 years ago | (#21577973)

Or everyone, and the remaining lawsuits by the RIAA for those songs should be thrown out on account that damages have been paid in full.

Re:Love the logic. (1)

kkovach (267551) | more than 6 years ago | (#21578007)

What's even more ludicrous is that they could go after everyone else who had the same shitty Britney Spears song available for download and get $9250.00 from them while saying the exact same thing... that they're not able to tell who accessed what. That they could potentially do that for every copy out there is absolutely amazing.

Re:Love the logic. (4, Insightful)

Pharmboy (216950) | more than 6 years ago | (#21578035)

Next up:

Well, you have a gun. We aren't sure how many people you killed, but you might have killed a bunch, so we are going to electrocute you. 9000 times. Thank you.

Your argument is biased (0)

Anonymous Coward | more than 6 years ago | (#21578377)

Since she destroyed evidence (log files) by having her hard drive replaced, she shouldn't get the benefit of the doubt about how many songs she uploaded

and I thought the subprime mortgage meltdown was a (0, Offtopic)

zappepcs (820751) | more than 6 years ago | (#21577815)

big problem. Forget that, the US is obviously bleeding dry financially from the ungrateful copyright infringers who can't even be considerate enough to log who downloaded files from their computer. No wonder congress won't fund the war in Iraq anymore, this is obviously an imminent danger to all of the world's economies. (end sarcasm) So each song that might have been downloaded has obviously been downloaded 9250 times? I wonder how much it would cost to hire hackers to find kazaa software installed on **AA servers? Perhaps they might find some seditious reading material to help us in the US all decide who to vote for in the coming presidential election. The MPAA's ISP was just served DMCA takedown notice because of their University Toolkit being in violation of the GPL http://www.boingboing.net/2007/12/03/mpaas-university-wir.html [boingboing.net] I seriously wonder what else can be found to be wrong with the **AA's internet infrastructure.

The DOJ is Right (5, Informative)

devjj (956776) | more than 6 years ago | (#21577821)

If you RTFA, you'll find that the DOJ is siding with the RIAA because the defendant agreed to the terms put forth to the jury. She acknowledged and went along with the instructions, which included precisely how much she could be liable for if found guilty. In so doing she effectively waived her right to make this claim.

I'm one of the last people who would take something the DOJ says seriously these days, but their reasoning on this issue is sound.

More on this at Ars Technica [arstechnica.com] .

Re:The DOJ is Right (3, Interesting)

palladiate (1018086) | more than 6 years ago | (#21577941)

Courts have found in the past you cannot waive certain due process rights, and I'm pretty sure they may say you can't waive your rights prohibiting a cruel and unusual punishment.

Google fails me at the moment, but I remember a case a few years back about a death row inmate arguing he should be allowed to hang, but the courts said he couldn't agree to it because it's cruel and unusual.

This may be in the same category.

Re:The DOJ is Right (1)

devjj (956776) | more than 6 years ago | (#21578059)

You're right, and also wrong. While no document can strip you of Constitutionally protected rights, the DOJ is saying that she effectively acknowledged that the statutory damages were not in violation of her rights because she agreed to the instructions. So really, you have two separate issues.

Re:The DOJ is Right (1)

plague3106 (71849) | more than 6 years ago | (#21578175)

Well, you could say the same about the guy that wants to be hung but is denied.

Re:The DOJ is Right (1)

devjj (956776) | more than 6 years ago | (#21578241)

IANAL, but something tells me there's a difference between being forced to pay $200K+ and choosing how to die, in the eyes of the law.

Re:The DOJ is Right (1)

Pharmboy (216950) | more than 6 years ago | (#21578331)

It isn't a matter of compare, its a matter of threshold: does it constitute "cruel and unusual". I will leave it to a court to decide that...

Re:The DOJ is Right (0)

Anonymous Coward | more than 6 years ago | (#21578249)

It is not a seperate issue. She doesnt have the capacity to make this determination.

Re:The DOJ is Right (2, Interesting)

hung_himself (774451) | more than 6 years ago | (#21578313)

You should admit you're wrong here I think.

If a court finds her rights were violated - then we agree that no matter what she agreed to or what her opinion is makes absolutely no difference. Since we also agree that she can't waive her constitutional rights by agreeing to the instructions - all we are left with by her implicit acknowledgement is an *opinion* that her rights were not violated. Since she is not a constitutional expert nor has she given any arguments for why she believes her rights were not violated, this opinion carries no weight.

Re:The DOJ is Right (1)

devjj (956776) | more than 6 years ago | (#21578379)

Excellent point. I stand corrected.

I think you misread me (5, Informative)

palladiate (1018086) | more than 6 years ago | (#21578367)

she effectively acknowledged that the statutory damages were not in violation of her rights because she agreed to the instructions.

And what I said was that the Eighth Amendment may constitute a right you cannot waive. While that right cannot be stripped, it may also be a right you cannot waive, as in you cannot agree to a public dissection (drawing) if the DA wants to pursue that option. You cannot waive your right to be shielded from cruel and unusual punishment.

However, the same court said in Lockyer v. Andrade that life in prison for shoplifting $150 worth of video tapes was not excessive, so I doubt they'll have a problem with the constitutionality of the judgment.

Re:The DOJ is Right (0)

Anonymous Coward | more than 6 years ago | (#21577961)

Constitutional rights cannot be waived no matter what you sign or agree too.

Constitutional rights easily waived (0)

Anonymous Coward | more than 6 years ago | (#21578351)

How about a roadside traffic stop where the nice copper asks if he can search your car. You got nuttin' to hide right?

You just waived a right if you said yes.

that's one way to fund your lawsuit machine... (1)

themushroom (197365) | more than 6 years ago | (#21577831)

Now, if only the artists were making a cent of that $9,250-per-song.... Guess the RIAA somehow convinced the DoJ that someone should make up for the lack of profit the new Simpson sister album is experiencing.

oh noooo.... (1)

WwWonka (545303) | more than 6 years ago | (#21577885)

..the Department of JUSTICE(emphasized for extra scariness)weighed in! Might as well stop the appeal and just pay up those fines when a government agency(which is surely free from media corporation corruption) weighs in. Hell, why doesn't Homeland Security and the FCC weigh in too? That would make this an open and shut case in the court system. President Bush, want to weigh in too?

"hehe, I love tacos."

No problem... (2, Funny)

geminidomino (614729) | more than 6 years ago | (#21577895)

This is the same DoJ that claimed that George Washington and Abraham Lincoln made wide use of electronic surveillance against citizens...

If I wasn't so lazy.. (1, Troll)

josteos (455905) | more than 6 years ago | (#21577923)

... I'd set up a honeypot limewire/kazaa/torrent/whatever and firewall access such that only the RIAA/MPAA 7 their tools can access it. And then populate the shared directories with files like:
BRITNEY_SPEARS_OOPS.MP3
METALICA_ONE.MP3
etc.

Of course the MP3's would just be actual MP3 audio of my kids singing some random song.

While I don't actually WANT to be sued, I would like to see them explain to a judge why they think they own the rights to my kids singing "The RIAA is a bunch of floppity-floofy heads!".

If only I wasn't so lazy...

You let go of shift too early (1)

strcpy(NULL,... (1089693) | more than 6 years ago | (#21578017)

Case closed.

I for one... (1)

Cryacin (657549) | more than 6 years ago | (#21578107)

While I don't actually WANT to be sued, I would like to see them explain to a judge why they think they own the rights to my kids singing "The RIAA is a bunch of floppity-floofy heads!".
don't welcome our new "floppity-floofy head" overlords.

Re:If I wasn't so lazy.. (0)

Anonymous Coward | more than 6 years ago | (#21578467)

You wait until they or media defender or whoever else downloads it in order to 'verify' the contents and then you sue them for copyright infringement. At what, 120k per infringement for statutory damages, you can make a killing this way.

It is excessive because... (2, Insightful)

Alexpkeaton1010 (1101915) | more than 6 years ago | (#21577951)

you would not be fined $222,000 if you stole a few CDs from Walmart.

Re:It is excessive because... (1)

everphilski (877346) | more than 6 years ago | (#21578049)

You might, though, if you made a few hundred copies and distributed them, which is the whole justification behind the monetary damages.

Re:It is excessive because... (0)

Anonymous Coward | more than 6 years ago | (#21578423)

Everything's changed in a post-9/11 world - didn't you know that?

How much is this worth again? (0)

Anonymous Coward | more than 6 years ago | (#21577967)

Wait, so if I share a song with fifty people and they each share with fifty people are we all responsible for 2550 shares each?

So even though only 2551 people heard the song we owe, in total, 6.5m times the value of the song?

Freakin' twilight zone here. (5, Interesting)

palegray.net (1195047) | more than 6 years ago | (#21577971)

From the article summary: "...because it's unknown how many other users accessed the files in the KaZaA share in question and committed further acts of copyright infringement."

Sure, people can debate all day long about how much she should or shouldn't be held liable for given her infringing activities. But how the hell can you use other people's possible, but admittedly unverified activities which might have resulted from something you did to exact additional punishment on the "offender?"

Let's say I'm not paying attention and run over someone's cat. Am I now liable for the possible, but unverifiable, increase in the rodent population in my neighborhood, and consequently liable for potential damages in hospital bills for a contagious disease which might be spread by some lucky rat?

Someone's being prosecuted for stuff that may or may not have happened, and may or may not ever happen, but nonetheless is regarded as damaging in the eyes of the courts. Wow.

Re:Freakin' twilight zone here. (1)

berashith (222128) | more than 6 years ago | (#21578167)

or if you printed fake money, how is it your fault that someone else spent it and a store lost money when the bank didnt accept it?

or to be more base... if you give somebody a bomb to play with in a field, how are you responsible for the damage done to the local shopping mall?

Aside from these facts, and the obvious civil vs criminal elements here, I agree with you. We need some kind of different damages for contributing to infringement if this course should be pursued.

Re:Freakin' twilight zone here. (1)

palegray.net (1195047) | more than 6 years ago | (#21578291)

I just thought of another analogy. An artist sues a man for giving away free photocopies of her artwork. At the man's trial, the prosecutor decides to push for $222,000 in damages, and somehow gets the judgement. The man appeals on grounds of unconstitutionally harsh treatment, but the court system says "who knows how many people could have seen the photocopies of the lady's artwork, depriving her of revenues owed" and upholds the judgement.

Does that make any more sense than what's going on here?

Re:Freakin' twilight zone here. (1)

OutSourcingIsTreason (734571) | more than 6 years ago | (#21578233)

It's also unknown how many of those hypothetical other users who committed further acts of copyright infringement were already sued for it by the RIAA for big bucks. So why should JT be accountable for them too? Somebody in the DOJ took a stupid pill today.

Re:Freakin' twilight zone here. (1)

provigilman (1044114) | more than 6 years ago | (#21578453)

You're missing the whole point here. If you run over the neighbor's prize show cat that had won numerous awards, there's a reasonable expectation that the cat would have continued winning awards in the future. However the cat could have been run over because it suffered a fatal stroke in the middle of the street a split second before you hit it...

We award damages all the time for things like. Wrongful death suits, pain and suffering, continued medical care, etc.. The way the law is currently written the RIAA doesn't have to prove the full extent of the damages, only the possibility of them.

For example, imagine that you burn 1,000 copies of a Britney Spears CD and leave them in a park so that people can enjoy her music for free. Anyone can take them, right? They could be picked up and thrown away by a garbage man, someone could take all 1,000 or 1,000 people could take one. There's no way to know. Does that change the intent though? No, because your intent was to mass-copy and then distribute copyrighted media, and just because you can't tell how many people it was distributed to, doesn't mean you tried to distribute it.

Oh, and BTW, something to note from the Ars Technica write up... "The jury awarded the RIAA statutory damages of $9,250 per song, for a total of $222,000, out of a maximum of $150,000 per track." They awarded way down at the low end of that range. Now, that doesn't mean the range is correct, not all copyright protection in the same. What it does mean though is that she could've been ordered to pay millions for what she did because of how the laws, however poorly equipped to deal with this sort of situation, were crafted.

Further infidgements?? (0)

Anonymous Coward | more than 6 years ago | (#21577981)

So they are punishing her for the "further infringements" others MAY have done after the got the songs from her computer as well ?? This doesnt make any sense @ all to me ..

"impossible for the true damages to be calculated" (4, Interesting)

Dekar (754945) | more than 6 years ago | (#21578029)

It is impossible to have an exact figure, but an accurate estimate, at least an order of magnitude, is entirely feasible.

They say they lose billions a year due to piracy. Let's say they are right and are losing 10 billions, not an unrealistic figure [tgdaily.com] , but still on the high side.
There are over 1 million people in America sharing music. We all know it's a lot more than that, but let's be conservative.

That would leave an average of $10 000 lost due to each file sharer, and that is an the upper limit. Sharing less than 30 songs is probably under the average if there are indeed only 1 million file sharers, so there is absolutely no way $220 000 can be a correct punishment in this case.

What was so tough about this?

Two cents (no, really) (4, Insightful)

wile_e_wonka (934864) | more than 6 years ago | (#21578033)

Two things.

1) It seems to me that, given the fact that statutory damages in copyright infringement claims, are allowed in place of actual damages in instances in which actual damages cannot actually be calculated--the statutory damages are an attempt by Congress to estimate the likely actual damages caused to the plaintiff. In this case, that amount seems to be on the side of outragiously overestimating actual damages.

2) The DOJ argues that a damage of the high award is mitigated by the fact that no one knows how many other people accessed the songs made available by the defendant. This bothers me because it basically states that it is ok to collect damages that were not properly proven (which is obviously not ok).

Why is this tagged Republicans? (4, Informative)

halivar (535827) | more than 6 years ago | (#21578083)

The DMCA was written by (predominately) Democratic lobbyists, advanced by Fritz "Disney" Hollings (D), and signed into law by President Clinton.

The Republicans may have been the majority party at the time, but at least own up and take some of the responsibility. This is bipartisan hatred-of-consumers.

Re:Why is this tagged Republicans? (0)

Anonymous Coward | more than 6 years ago | (#21578149)

You must be new here.

Re:Why is this tagged Republicans? (1)

Trogre (513942) | more than 6 years ago | (#21578535)

It goes way beyond Clinton. Remember the DMCA is just a local ratification of the WIPO treaty, not much more.

Outsource DoJ (0)

Anonymous Coward | more than 6 years ago | (#21578163)

The DoJ cost way too much money to tax payers, it's time to outsource it to a region where stupidity costs much less.

Actually it is easy to calculate how much (1)

roguegramma (982660) | more than 6 years ago | (#21578177)

The right question is not how many times the song was downloaded but how much.

How much the song can be downloaded and therefore uploaded by you is limited by your upload bandwidth, which is lower than the download speed for DSL connections.

Also many filesharing programs show the upload/download ratio statistics.

Also, download speeds and therefore upload speeds reciprocally usually suck as far as I know it.

File sharing math (4, Insightful)

CopaceticOpus (965603) | more than 6 years ago | (#21578195)

Within a P2P network, the total amount of uploading and downloading is the same. For every packet downloaded by someone, that packet was uploaded by someone. Therefore, the average user found to be sharing songs should be liable for two copies of that song: the copy they downloaded, and the copy they (probably) uploaded. Unless it can be shown that they did more than an average amount of uploading, this is the most reasonable assumption to be made.

The defendant was convicted for 24 songs. If we count each song as two infractions, this would be like stealing 4 CDs and giving 2 of those away. (Except that stealing the CDs would be worse, because it would be both retail theft AND copyright infringement.) What's the penalty for stealing 4 CDs? IANAL, but I'm pretty sure it's less than 1% of the penalty she received.

Any rational person would have to call this penalty absurd, unless they had ulterior motives to pretend otherwise.

(See also my post on why the RIAA thinks they are owed 83 trillion dollars [slashdot.org] .)

Re:File sharing math (1)

Basilius (184226) | more than 6 years ago | (#21578415)

(Except that stealing the CDs would be worse, because it would be both retail theft AND copyright infringement.)

No, stealing CDs is not copyright infringement. It's simply theft. Giving away two of the four CDs you stole isn't copyright infrigement either. You never copied anything and illegally distributed the copy. You might be busted for distributing stolen material, and mailing them to a friend in another state would probably turn it into a felony as it crossed state lines.

Ripping CDs you stole, THEN distributing those files over P2P would be both copyright infringement and theft.

Re:File sharing math (1)

jammindice (786569) | more than 6 years ago | (#21578473)

actually wouldn't you have to steal 2 cd's and burn copies and give them away to commit copywright infringement? if you stole 4 cd's the store you stole them from bought all 4 from an upstream provider which makes them legit...

A pyramid scheme ? (0)

Anonymous Coward | more than 6 years ago | (#21578239)

'It's also impossible for the true damages to be calculated, according to the brief, because it's unknown how many other users accessed the files in the KaZaA share in question and committed further acts of copyright infringement.'

That sounds like the person who made the first copy available should allso suffer for all the wrong-doings of whomever downloaded the copy (I sincerely doubt to the legality of that), while the RIAA is allowed to extract punishment (read: a lot of money) from them too !

So, while the RIAA demands a lot of dough with the reasoning that a single copy is (no doubt at all) the top of a destribution pyramid, a distribution they want to be re-embursed for, it has no qualms to use the same reasoning against whomever in that pyramid made a copy and allso distributes it.

That sums up (pun intended) to the RIAA demanding multiple payments for the same product.

The Law can be harsh, but a Law accepting that two people can be convicted for a "crime" for which one of them has allready payed is no Law at all, but a farce. But than again, Law and Right are not the same ...

*Other* users' infringements?!? (1)

Cajun Hell (725246) | more than 6 years ago | (#21578247)

"..it's unknown how many other users accessed the files in the KaZaA share in question and committed further acts of copyright infringement.
[emphasis mine]

Whoa. What does that have to do with anything? Do these damages preempt later damage claims?

Re:*Other* users' infringements?!? (1)

oahazmatt (868057) | more than 6 years ago | (#21578343)

I believe this is being equated to the Defendant serving as an enabler, where the RIAA can argue had the Defendant not made these files available, other parties would not have been able to download said files from the Defendant only to upload them to other, additional parties. While this argument doesn't hold very much water when considering the odds of the Defendant as the sole distributor of the material (which was most likely not the case) it does have a hint of logic to it.

Be careful what you wish for.... (2, Interesting)

samuel4242 (630369) | more than 6 years ago | (#21578271)

Imagine someone shares a DRM-free song from Apple iTunes by posting it deliberately on a small file sharing network. Someone in that network turns around and "shares" it with millions. Then the RIAA says, "Okay, you want us to count all of the infringement? We subpoenaed some network and found that the one particular copy of the song has been downloaded 1 million times." [Cue Austin Powers little finger.] At .99 per download, that $990,000 in damages for that one song. And thanks to the fact that Apple listened to the demands for no DRM, we can now trace that one copy of the song back to the rightful owner, the original infringer. Here's a bill for $990,000. We won't bother with just asking for $9250 for that song.

Now, I realize that many of the million people wouldn't have paid 99 cents for the song in the first place. I realize that the band probably got some publicity. But it sure sounds to me like $990,000 is as fair a number as we can ever come up with. So maybe these statutory guesstimates aren't so bad after all. I've seen file "sharing" networks. I've seen the number of songs sloshing around college campuses. The more I think about it, the more I realize that $150,000 isn't tooo outrageous.

The so-called copyfighters should be careful what they wish for. If the RIAA is forced to actually count the downloads because some pedantic fool is able to successfully argue that "making available" isn't really infringement, then they're going to do it. And the numbers could be even higher and more damning. Computers can log a huge amount of data and 64 bit machines can count pretty high. :-)

Re:Be careful what you wish for.... (1)

91degrees (207121) | more than 6 years ago | (#21578389)

Well, surely the counter argument is that the person being sued cannot be held responsible for what the subsequent uploaders did, unless the RIAA wishes to decide not to sue anyone else over that song (since they've already been compensated for that loss).

Sigh. I'm sure I could have explained this better but I hope you get the general idea.

STOP defending her!!! (0)

Anonymous Coward | more than 6 years ago | (#21578305)

I am very anti RIAA/MPAA, but this woman blew her credibility by LYING and destroying evidence.

The jury handed out the huge settlement in the RIAA's favor for this very reason.

She could have fought the RIAA and won if she had chosen to be honest about her actions.

She is no hero or victim. Instead she is an IDIOT.

We need to fight the RIAA/MPAA with the TRUTH to win.

FRIST CPSOT?! (-1, Flamebait)

Anonymous Coward | more than 6 years ago | (#21578347)

metadIscussions

Further acts of infringement (4, Insightful)

BootNinja (743040) | more than 6 years ago | (#21578355)

'It's also impossible for the true damages to be calculated, according to the brief, because it's unknown how many other users accessed the files in the KaZaA share in question and committed further acts of copyright infringement.'

Maybe I'm way off base here, but why aren't any further acts of copyright infringement the sole responsibility of those who commit that infringement?

Otherwise, it would seem to me that an affirmative defense would be that the RIAA has already recovered damages for your infringement because they already prosecuted your source.

Why should the RIAA recieve compensation from me for infringement that may or may not have been perpetrated by someone who is not me?

By this argument,,, (1)

FranTaylor (164577) | more than 6 years ago | (#21578369)

If the owner of a record store left it unattended while going to the bathroom, he should be liable for ever possible for each person who could have come in and duplicated all the records (using a super secret instant duplicator) while he was taking a pee.

Fixed The Quote (0)

Anonymous Coward | more than 6 years ago | (#21578387)

"It's also impossible for the true damages to be calculated, according to the brief, because it's unknown how many other users accessed the files in the KaZaA share in question and committed further acts of copyright infringement."

That should be

"It's also impossible for the true damages to be calculated, according to the brief, because it's unknown if any other users accessed the files in the KaZaA share in question and committed further acts of copyright infringement."
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