DoJ Sides With RIAA On Damages 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.'"
The good news... (Score:4, Insightful)
no surprises here then... (Score:5, Insightful)
Why am I not surprised? (Score:5, Insightful)
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.
Love the logic. (Score:5, Insightful)
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:Of Course They Do (Score:2, Insightful)
It is excessive because... (Score:2, Insightful)
Re:Why am I not surprised? (Score:2, Insightful)
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?
Two cents (no, really) (Score:5, Insightful)
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).
Re:Love the logic. (Score:5, Insightful)
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.
Re:no surprises here then... (Score:5, Insightful)
File sharing math (Score:5, Insightful)
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:NO (Score:2, Insightful)
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 surprises here then... (Score:3, Insightful)
Further acts of infringement (Score:5, Insightful)
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?
Re:NO (Score:5, Insightful)
$9000+ per song is nonsense, the music industry would do far better if they took a more generous stance in these matters
Re:no surprises here then... (Score:5, Insightful)
They are indeed. Think about it: what else does America produce anymore besides "intellectual property"?
You can expect more Draconian copyright and IP as time goes by, not less. Our country has literally nothing else to offer the rest of the world.
Re:She deserves the fine (Score:5, Insightful)
Gotcha, so why exactly do we multiply the punishment times the number of songs that were simultaneously shared from a single computer as part of a single instance of a single crime?
$9250 total already seems a bit excessive as punishment for a first conviction of illegally sharing some songs via p2p for no personal gain.
$9250 per song... that's just stupid.
I know a 12 year old who shares some 10,000 songs via p2p; should he or his parents really be fined $92 million?
And for each instance, there should be a greater than 1 to 1 fine so that it's actually a punishment and deterrent.
Right, but its only one instance of the crime. They only got convicted once. It doesn't matter that they were sharing multiple songs.
If a guy steals a handful of bulk M&M's do you count the M's? If a cop pulls you over for speeding do you get charged for each yard you were observed speeding or for each mile over the limit you are? I can see it now...
"Sir, I followed you for the last mile and you consistently went 67. This stretch is a 55. So I'm fining you, and we really need this to be an actual punishment and deterrent so I'll set the base fine at $9250 per instance of the crime."
"Now lets see, there are 63360 inches in a mile, and you were speeding in each one of them... so 63360 x 9250... you owe just over 586 million dollars. I hope you've learned your lesson, son. Your just lucky I pulled you over when I did, I have a suspicion you would have kept up your pace at least another 20 miles if I hadn't. And you know,... this town has always wanted its own jet fighter squadron."
Re:NO (Score:5, Insightful)
Re:NO (Score:3, Insightful)
They argue that they cannot know how many people actually downloaded the works and with that argument, any file sharing on the network puts you in jeopardy of gigantic damages. There is a difference between illegally burned CDs sold on the corner (which they aren't doing much about) and sharing a file. The CDs have already been burned and it is easy to show intent to distribute with the idea of making a profit from someone else's work. IMHO, intent is harder to prove with file sharing, and it is certainly not motivated by profit (like selling illegal CDs is).
Everyday I grow to dislike RIAA more and more. Their actions have directly caused me to stop spending money on music as I don't want to endorse this abuse of theirs in any way. They need to pull their head out of their ass and find a new, customer friendly, solution to this issue, one that doesn't treat ALL your potential customers like criminals. If they don't -- I expect them to die way in the next few years, like the dinosaurs that they are.
Disclaimer: IAMAL, nor do I want to be one.
Re:no surprises here then... (Score:3, Insightful)
OK, let's try 100 times actual damages! (Score:3, Insightful)
OK, what are the "actual damages" in this case?
What she did: making 23 songs available over P2P that were already available over P2P.
If you can, with a straight face, say that the "actual damages" here are over two digits... you're a hell of a poker player.
If she had stolen those 23 tracks as a couple of physical CDs, she'd be facing well under $1000 in fines. $1000 seems a pretty hefty disincentive already: at least it works for petty theft. And seriously, whether you call this "theft" or not, it's pretty damn petty.
But let's go all out, let's make the fines 100 times the actual damages. Let's be really outrageous, and figure 10 lost sales for each song, and count the songs as if they were worth $1.00 each. Those are all pretty damn steep figures, but for the sake of argument... you're STILL off by a factor of 10.
If you don't like the law, work to have it changed.
That's what she's doing.
Re:Further acts of infringement (Score:5, Insightful)
So what?
If I have a gun in the house and somebody uses it to kill somebody, am I charged with murder? If I borrow my brother's car and accidentally leave the keys inside and somebody steals it, am I a car thief?
Or more applicable to the situation, if I sell you drugs and you sell them to 10 other people, do I get charged with 11 counts or 1?
If I make files available, I should be liable for the people who download it from me. I should absolutely NOT be liable for what anybody who got it from me does with it; that responsibility falls on them the same as it fell on me.
Re:no surprises here then... (Score:4, Insightful)
And they only have proof that it was indexed, not even proof that it made it to ONE other PC. To sue someone and say that the one individual is responsible for all other copies of that file on the internet would then mean that the single person is paying the bill for all those other people who then shared that same file out and others copied from that new location.
The RIAA is saying that because there are say, 50,000 copies (made up number) of that file on the net, this individual is responsible for all them. And they sue to get damages. They also press suits against all those other 50,000 people who have other copies, and sue each of them, again saying they are responsible for 50,000 copies. So, you are saying that the RIAA gets to sue for 50,000 people each for 50,000 copies, for a total of 2,500,000,000 copies, when there are only 50,000 in existence? Use some logic here. As much as I agree that she owes something for infringement, they should be able to collect damages from that person for the damages caused by other people down the chain. That is why you sue the person down the chain for their part. The problem is, the RIAA doesn't have the evidence to show who did what damage, but that problem shouldn't be the dependent's problem. The damages is always a problem for the plaintiff to show and PROVE. They can not PROVE ANY actual infringement, other then a name, an email, a screen name, and an index, but that doesn't prove how many people connected to her computer and downloaded a full copy of a song.
Re:NO (Score:2, Insightful)
boneheaded and venal as the RIAA's tactics and position here are, it's time to stop talking about the damages as if the media companies are just trying to make back the retail value lost when someone downloads instead of buys. this is about who has the right to make a song available for download, to whom, and at what price.
the real tragedy for me, and what strikes me as incredibly evil on the part of the media companies, is that most of the people they're targeting as copyright infringers (a) have no idea what it is they're being made to pay for, (b) had no intention to profit by it, and (c) individually made nowhere near the kind of negative impact on record company income that they're being made to pay for. IMO, the disparity between impact and punishment is what makes this whole business into extortion rather than fair legal action.
Re:NO (Score:4, Insightful)
And it's not just his job as president I despise, oh no. I despise every single thing about the man. He has no positive qualities whatsoever. He's a lousy business man, a lousy husband, a lousy father, a coke snorting, frat-bastard, drunk driving, spoiled, over privileged, draft dodging coward. The man isn't fit to clean my toilets, let alone run the most powerful country on earth.
Who Gets the Money? (Score:3, Insightful)
Re:Why is this tagged Republicans? (Score:3, Insightful)
Bogus (Score:1, Insightful)
Another point to consider is where the song originated. Did it come from someone else who shared it? Did they already sue that person? You can't double dip the chip here. They should be forced to validate where the song was first released on P2P and prosecute that person.
Re:no surprises here then... (Score:3, Insightful)
That's not a very accurate statement.
First, copyright holders are not necessarily the authors of the works to which they hold a copyright; often the work is not their creation.
Second, copyright does not include an exclusive right to profit from a work.
Third, copyright is not a constitutional right. That Congress has a copyright power which it can exercise, or not, as it sees fit is not the same thing; if it were, I'd have a constitutional right to social security and freeways, since Congress exercised its powers to create those as well.
Re:no surprises here then... (Score:3, Insightful)
Let's turn this around and say that you actually had to prove damages to have any sort of recovery. In that framework, about the only thing the RIAA could do is get an injunction telling her to stop. But, that doesn't deter anybody from infringing. In fact, it's effectively a license to infringe until you're caught.
Re:no surprises here then... (Score:3, Insightful)
the uploader risks exposure to statutory damages for the simple reason that his contribution to the P2P nets may be copied and recopied without any known or knowable limits.
Re:She deserves the fine (Score:3, Insightful)
2. It's not supposed to be a "fine", it's supposed to be a civil jury verdict awarding reasonable compensation from the defendant to the plaintiff.
Re:She deserves the fine (Score:3, Insightful)
Tough on crime? (Score:2, Insightful)
The criminal justice system in the US can't do everything, so they have to make priorities. This is a huge red flag saying, "we don't give a damn about you victims of serious crimes that put an individual in a hole and/or shatter your life...but don't you dare go messing with a corporation's copyrighted material. Hoo no! That's worthy of few years of your livelihood, biatch. Mess with our major campaign contributors and it's gonna get ugly!" It is surreal. Absolutely absurd.
Re:NO (Score:3, Insightful)