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)
Re:The good news... (Score:5, Informative)
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.
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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
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
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Re:NO (Score:5, Insightful)
Re:NO (Score:4, Informative)
Of course, IANAL, so check out http://en.wikipedia.org/wiki/Jury_nullification [wikipedia.org] for a decent overview.
Re:NO (Score:4, Interesting)
Heh, sounds like you are already stoned. Thanks for the RIAA's journey through the wonderful world of dorm-room-debate what-ifs which makes up their boilerplate logic of absurd extremes: ...like, what if everyone who could access the songs actually downloaded them? and what if each and every one of those guys was, like, someone who was totally going to go out and buy it, but didn't? Think about it, she would owe us, like infinity dollars!!! We should totally get that from her, because like, if bits were like physical CDs, she would be just like a street vendor, you know, and not a blindfolded street vendor.
Anyway, yeah, usually when RIAA guys are reciting that, they're wearing suits and not laughing, so some people get fooled into repeating the goofball logic and thinking it justifies total financial destruction of a few unlucky draft picks. I'm not saying people should never pay for music they hear, but there's something seriously wrong with the thinking process that leads to ruining the life of a middle-class family breadwinner who is guilty of about as much actual, real harm as that caused by speeding or smoking.
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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
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The professional bootlegger is stealing a paying customer. Yes, that's a PAYING
customer. This is not some "theoretical paying customer" who has only demonstrated
a willingess to consume for free.
The copyright holders don't "lose out on the same amount" in both cases.
zero != some number other than zero.
Re:NO (Score:5, Interesting)
What's wrong with being stoned [erowid.org]? ;)
As a legal argument I'd agree with that. However, don't we still have one problem?
And therein lies my problem with this. How can they prove how much they lost when they can't even prove how many people (if any) downloaded those songs from her? What if they lost nothing because nobody downloaded from her? Doesn't the plaintiff in a lawsuit usually have to prove how much damage, if any, they've suffered?
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Who Gets the Money? (Score:3, Insightful)
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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.
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Re:NO (Score:5, Funny)
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.
Re:NO (Score:5, Funny)
...says the anonymous coward...
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Seriously.
Re:NO (Score:4, Funny)
Remember kids, winners don't do drugs.
no surprises here then... (Score:5, Insightful)
Re:no surprises here then... (Score:5, Insightful)
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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.
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Or get sued personally when the prosecutor succesfully argues your corporation is a sham and pierces the veil.
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What the hell are statutory damages if they are not a limit on damages? The geek is making the same argument as the lawyer or doctor. He just doesn't want to pay the bill. That single song - worth 99 cents on iTunes - may have found its way to 2,000 other PCs.
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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.
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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.
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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
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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.
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.
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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?
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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.)
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It's a spelling error, and I suspect we're the ones making it. When they say the word "Just-us" we hear it and think they mean "Justice."
Impossible? (Score:5, Interesting)
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.
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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.
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However, we can also assume that some people upload more than that. How many times? Once? Twice? I could imagine ten times. I'd say more than that per file i
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How many total possible copies of any of the infringing works could've been uploaded in that time. Even in a month, let's just guess at a low upload rate - say a 128kbit up on DSL.
That's a 4mb song every 5 minutes, given near BEST circumstances. 12 / hour. 288 / day. So, 8640 transfers in a month, if your ISP doesn't cut you off first.
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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.
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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.
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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.
The DOJ is Right (Score:5, Informative)
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 (Score:4, Interesting)
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.
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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
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I think you misread me (Score:5, Informative)
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.
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That guy should have bought more of those penis enlargement pills.... We're talking about the guy who wanted to be hanged.... :-)
No problem... (Score:3, Funny)
It is excessive because... (Score:2, Insightful)
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Freakin' twilight zone here. (Score:5, Interesting)
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.
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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.
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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 th
"impossible for the true damages to be calculated" (Score:4, Interesting)
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?
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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).
Why is this tagged Republicans? (Score:5, Informative)
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.
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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].)
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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, THE
Rational penalties (Score:4, Informative)
not the same (Score:4, Informative)
*Other* users' infringements?!? (Score:2)
Whoa. What does that have to do with anything? Do these damages preempt later damage claims?
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Let's say she actually caused one dollar of losses (a very very low assumption) and the chances of getting caught are one in a million (also a very very low assumption), then statutory damages might be a million dollars or
Be careful what you wish for.... (Score:3, Interesting)
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.
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: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.
By this argument,,, (Score:2)
Where's the value here? (Score:2)
Actual damaes don't apply here! (Score:2)
There has to be a lot more negative for getting caught breaking the law than the damage created. That ensures people will
It's called punitive damages (Score:3, Informative)
http://en.wikipedia.org/wiki/Punitive_damages [wikipedia.org]
"In response to judges and juries which award high punitive damages verdicts, the Supreme Court of the United States has made several decisions which limit awards of punitive damages thr
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 le
Extend the logic ! (Score:5, Funny)
Possible Defense? (Score:4, Interesting)
http://hypebot.typepad.com/hypebot/2007/07/itunes-hits-3-b.html/ [typepad.com]
7/31/07: Apple announces hitting the 3 Billion mark with it's iTunes downloads. Now, assuming that an equivalent amount have been distributed illegally since the inception of the internet we can come up with a conservative estimate of what the damages would look like.
$9,250 per song x 3,000,000,000 songs = $27,750,000,000,000
For those of your not used to so many zeroes that's 27.75 trillion dollars. You would have to almost take every sale of music since Edison first made the Phonograph to come up with that kind of money.
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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!!!!!
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I agree wholeheartedly. Anything else we can do besides donating to the EFF?
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Run for office.
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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.
Yes, the same $ as Scooter Libby pays 4 treason (Score:2, Interesting)
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It only seems strange because she's the first one.
--
Educational microcontroller kits for the digital generation. [nerdkits.com]
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."
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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!