Is $9250 Per Song Unconstitutional?
from the we-may-soon-find-out dept
It's well known that Jammie Thomas, the woman who lost her case against the RIAA for unauthorized file sharing was planning to appeal her decision -- though, we questioned some of the wisdom behind her pursuing the case. She does have a point in questioning the instructions given to the jury, which say that "making available" is distribution when that's still an open legal question with some rulings on both sides. The problem, though, is that the evidence that Thomas did participate in unauthorized file sharing is rather strong, which makes her appeal a lot less sympathetic. It looks like her lawyers may be realizing that and may be recognizing that the biggest point in Thomas' favor is that nearly everyone seems to feel the $222,000 awarded for 24 songs ($9,250 per song) seems rather excessive. With that in mind, the lawyers have now asked the judge to overrule the fine as being constitutionally excessive. You recall, of course, that the constitution has rules against cruel and unusual punishment. Two years ago there was even a research paper that argued the rates set by the law for infringement were constitutionally excessive. A year ago, that theory was first brought up in court. It's tough to see the court going for this argument, but it definitely would make the appeals process a lot more interesting.
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Filed Under: copyright, fines, unconstitutional
Companies: riaa
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I think i read that some place oh ya its the RIAA's company statement, you know along with:
- Sue them all and let god sort them out.
- If your not my customer ill put you in jail or make sure you're no one else's customer either.
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Unjust Enrichment
Now, the US federal legal system is supposedly based on common law too, so there is a question of whether it is acceptable for corporations to use the tort process to exact punishment on people. That is what the criminal process with its higher level of proof is for. The jury in this case, acting on instructions from the judge, used the lower level of proof for tort cases to find liability but then assigned damages at a criminal "punishment" level beyond actual damages.
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Re: Unjust Enrichment
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now they actually have a revolution and they know its totally out of there control but they still act the only way they know how.
The Poor Ms Thomas got the short end of the stick and unfortunately its not looking good for her at all but as more ppl end up in her situation eyes will start to open and notice the unjustice (somehow i feel i borrowed this word from an other language).
But until then quite a few will end up in the same situation
she is in.
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Legal Question
This is a legal question - sympathy should not play into the outcome of the appeal decision. The purpose is to evaluate the legitimacy of the Judge's instructions.
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Re: Legal Question
a few years back i was using p2p software to get a symantec product they contacted my ISP gave them my IP and told them if i don't stop uploading said program they would hold them responsible.
I was still downloading that file but there was no mention of of stopping me download.
now under the same logic (the above mentioned statements) if uploading is illegal then having the file in question in the shared folder is making it available to be uploaded, i guess that would make it "intent to distribute" and since distribution is illegal there for intent to distribute would be as well.
I hate to admit it but this gives validity to the instructions given to the judge.
i don't have any law degree (so I wouldn't be surprised if there is a flaw in my analysis) so feel free to point out any mistakes i have made.
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Re: Re: Legal Question
Current laws state it's legal to upload, but to make that uploaded file available to others is illegal, thus it's being shared. Only when you begin to share copyrighted or un-licensed material does it become illegal. You are able to make as many personal copies (or backups) of any type of media you like, so long as it's for the sole purpose of personal use. As soon as another party is given access to those copies, it becomes illegal.
When a good is sold it becomes the property of the buyer, and any form of usage is legally granted to the buyer so long as it is for personal use. The buyer can re-sell a good, but once it is sold the use of the product can no longer be had by any other individual or party except the person(s) who now own the good. If any duplicates of the good were made, but the original good was sold, then all duplicates outside the possession of the party who holds the ownership of the original good are no longer legally allowed. For example, if you owned a car(good) you can do whatever you like with it, and if there were a way to make a duplicate of the car(good) to keep on reserve in the event the original was lost, damaged, or by other means rendered incapacitated, the backup could then be used, so long as it remained for personal use. If you then sold the original car(good), any backups of the car(good) would then become illegal for you to possess and would need to be destroyed, or given to the new owner of the original car(good). If the original car(good) was lost, and could never again be recovered, then the backups would have to remain in the possession of the owner of the person(s) who owned the original car(good) and could not be re-sold as the original itself. In other words, if you lost the original you couldn't re-sell the duplicate as a replacement.
What the RIAA wants everyone to believe is that the original is theirs, and will always remain theirs even though they're legally bound to release the ownership to the consumer upon the purchase of the good. When you buy a car, the car is yours, not the company who made it. Once it is purchased they can no longer dictate what the car will be used for. Once you buy a car from Honda, they can no longer dictate what the car will be used for. If you want to replace most of the engine components to after-market goods, to increase performance you're more than welcome to. If you want to scrap everything but the chassis and body, but replace everything else you can; and the same goes for digital media. If you want to change the audio format of a CD into an mp3 you can, if you want to upload it to a device for remote access, you can. If you want to create 100,000,000,000 copies for backup you can. It's only when you make the alteration available to someone beside yourself, or obtain the alteration, that it becomes illegal.
Therefore, DRM and all the other anti-piracy devices that companies are putting onto CD's should be illegal, as it restricts the legally allowed ability to create a backup of the original good. The company cannot dictate what the good will be used for once it has gone to market, other than the terms of use the owner has consented to upon the originating purchase.
As far as relevancy goes to the post about Jammie Thomas, if she uploaded any duplicate of an original she owned to a peer-to-peer network she is in the right. If anyone then downloaded that duplicate they are in the wrong. If she downloaded any duplicate of an original she is the wrong, unless she happens to own the original as well, even if she did not create the duplicate. Example: you can download and legally possess Nintendo ROM's if you once purchased the original Nintendo game cartridge, even though the duplicate you're downloading didn’t originate from the cartridge you owned.
So depending upon those set laws, she may, or may not be infringing upon them. If she is infringing upon those laws, then the company that is suing her cannot impose a fine that is unconstitutional, or "cruel and unusual." Just as a judge cannot post bail for millions of dollars for a defendant who was arrested and detained for a misdemeanor charge, the RIAA cannot fine her more than the cost of the song it would have cost her for purchasing the cd it came off of. So the maximum fine should be no more than 24 x which would equal $80-$480 [2 to 24 cd's (2cd's @ 12 songs each, or 24 cd's at 1 song each with an average price of $20 per cd)]. On top of that fine they could impose other fines if she truely had an intent to distrubite, which could only be proved by pervious violations, or if a mechanisim were institued that promoted the downloading of the legally uploaded content.
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as far as the amount of the fine i did not approach that point. Cause clearly 9k a song is over kill i just do not know how much a fair fine would be.
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Re: Re: Re: Legal Question
If you take one of the songs that you got from Napster, iTunes, Rhapsody, Urge, or whatever and turn it into something that can be used on any MP3 player, it's illegal. The same thing would apply to your Nintendo analogy.
While I'm smacking down your arguments, The part about the Cd's is completely invalid. You'd have to count digital downloads of the songs, not the Cd's. She didn't download the physical media just the songs. So that counts as $0.99 to $1.50, or $23.76 to $36.
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Re: Re: Re: Legal Question
If the material is NOT copyright protected, the award of damages is limited to the lost revenue. In this case the cost of the songs if they were purchased legally. If you uploaded or otherwise made it available to others, this could include revenue from others that then downloaded the file. In the case of copyrighted material, the award can be the lost revenue plus a punative award for copyright violations. Still $9K per song is arguablly excessive.
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Unconstitutional?
Based on today's music, I'd put it somewhere about a buck-fifty.
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The court might. So perhaps she might as well try.
Thanks for the links. I posted about this here.
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sharing
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*****
Fines are paid to a government or government agency, not to individuals.
This was a law suit so this is a awarded both compensatory and punitive damages
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That being said, as I said before, you never want a judge or a jury making an example out of you. Nothing good can come from that.
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For (I think) 24 counts of infringement let's assume all 24 tracks are from 24 different albums. Most albums cost $20. $20 x 24 = $480.
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I am fearful that if the court decides that $9250 is too much, then the RIAA will be going after a set amount per song every single time, and it also will raise the amount of money they want in their extortion letters as well.
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Hell Yeah!
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Statutory vs. Punitive damages
Punitive damages are limited by the Constitution, but I don't think statutory damages are since they must be related to actual damages.
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Yes, it is excessive...
The RIAA should show how much profit it makes per song sold via iTunes, on average. Let's say for the sake of argument it is 25¢ per song (probably an accurate number...high if anything).
Then the RIAA must show how many people downloaded songs from the defendant.
At 25¢ a song, that $220,000 would have to equal 880,000 song instances distributed. I highly doubt this mom distributed that many instances.
That's how one proves damages. The RIAA must show damages and get awarded a sum that is in-line with those damages.
No one can just pull a sum out of the air.
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Re: Yes, it is excessive...
They have to put a penalty on the alleged thievery. I think the RIAA is stupid in this sense, and I refuse to purchase music because of their assinine methods, but if someone steals a loaf of bread and gets caught, the punishment can't simply be a dollar for the loaf of bread. Then it becomes: if I steal and get away with it its free, or I steal and get caught and have to pay normal price.
$9k per song is rediculous, but, as the law stands, $0.99 per song is no punishment. I think maybe the retail price of the CD the song came on, per song, is more apporpiate so like $10-$12 per.
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The Whole Song
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Thank you for pointing out another revenue stream.
Signed,
RIAA Goon
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Besides that, the RIAA needs to learn to adapt their business model to the changing times or they will be left behind. Which I guess is fine with me as they are as crooked as they come.
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Wouldn't the library and radio stations be liable for this too then?
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It is a must. Punishment must be unproportional.
Currently, you can rob a bank or steal a candy, and you know that you gain something, and risk spending some time in prison (I've been to prison, it isn't that bad) and a fine. This is not the kind of society you want.
When a person knows that if he steals a candy, his family will be burned alive and he will have both arms torn off, you will see a great drop in candy stealing. Coupled with the elimination of victim compensation (a stupid concept almost unique to the US), you get a society where people avoid being criminals, and people avoid being victims because it doesn't pay off.
Regretfully, I think this is not a criminal issue, even though it should be, because it's not that different from theft.
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US Legal System
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Healthcare isn't a good example. Did you know that 40,000 to 90,000 people die in hospitals every year due to hospital staff error? Many more have their stays extended due to these errors.
England is going through that right now, over 90 people have died in their hospitals becasue the staff was not washing their hands in between visiting patients.
Shouldn't there be some quality control? I agree, the courts shouldn't be that QC, but if no one else does....
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Fines
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Re: Fines
If speeding and J-walking IS illegal, and you really want to prevent people from speeding and J-walking, and not just make them calculate their risks of being caught, you should give police permission to shoot at speeding drivers (after pulling over of course) and break J-walker's legs.
Otherwise, your punishment is useless, because it simply does not deter people from committing crimes.
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f@#! the music industry
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Burden of proof
For instance, why didn't they (defendant) argue that spyware installed a sharing program they weren't aware of? How about static vs dynamic IP addresses assigned by the ISP, how can they be certain one was actually pointing to her at a particular time, do they save ALL of their logs forever?
What about the possibility of software error that resulted in the alleged file-sharing?
How about the origin of said files, how do we know they weren't recorded originally off the airwaves? - Which leads to another issue: is it illegal to share songs that were recorded off the radio, or is that illegal already?
Also, what about the defendant being able to show something to the affect that her software was configured to block all incoming ports which would have allowed file sharing, so this would make the RIAA's claims bogus right there. If they then claimed they could still download the files, then the defendant would claim that this was a function of the software she was using, which was obviously defective (whether embedded in the router or firewall software).
I'm rambling now, I'll stop...
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Re: #39
I'm sure this has been debated/hashed out/whatever numerous times, but how is that legal? That's like saying I'm bound by a mortgage contract by entering the bank or some other crazy scheme.
How can you be legally bound by a contract you never had a chance to read in the first place?
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Re: Legal Question
That's very debatable, at least.
There's at least one court ruling (in California, I believe) along the line of "if it looks like a sale, it's a sale, even if claims to be a licensing agreement". They looked at things like whether there was a single or ongoing payments and whether the provider of the work provided any form of updates.
Buying a CD is clearly a sale (I haven't bought one for a while because I'm boycotting the RIAA, but I don't remember agreeing to a licensing agreement last time I bought one anyway).
With a CD, it's your tangible property, but there are restrictions on what you can legally do with it because somebody else holds the copyright. The general rule is "if it's my property, I can do what I like with it" but if somebody else holds the copyright, there are some restrictions on what you can legally do with your property. Any action not explicitly restricted to the copyright holder by the Copyright Act (or restricted by some other law, of course) is something you are allowed to do with your property.
Even in the US, tangible property ownership is still regarded as more fundamental than "IP" ownership. I have n idea why people are so keen to accept the idea that "it's still somebody else's, even though I bought it".
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I really like your point about, "I bought it, its mine." I mean when you pay $20 for ten cent plastic disk, it is very insulting to have the manufacturer tell you how you can use it.
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Strong evidence????
WTF??? YOU CALL THAT STRONG? A bunch of screenshots, logs, etc? Interpreted in a clearly biased way by a moron who has little clue? Thats' freaking the WEAKEST evidence ever! I can craft such "evidence" by the megabyte, just give me the name. Especially given that absolutely no remnants of any filesharing software was found on her computer! Honestly, if that's "strong evidence", I certainly know how to get all my enemies jailed...
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And of course RIAA totally should sue BestBuy! For making them available for shoplifters! Which is unathorized distribution too!
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Well, they would be if people like you ever voted (if that is where they get the list for jury duty)
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Appeal on this basis is Uphill Battle
1. The law in question has been around since 1976 and no one yet has been successful getting it ruled unconstitutional
2. The damages are allowed by statute up to $50,000 per infringement. This jury did not test the upper range of the awards.
3. Congress passed the law with defined statutory fines precisely because it is so difficult to prove actual damages. Because the legislature made that determination and because the legislature expresses the will of the people (that's why you have to vote) then the judiciary is normally going to be extremely hesitant to just overthrow the will of the people expressed through the legislature and the will of the people expressed through a jury. One can't rule out an activist judge who doesn't have this deference to the legislature but if the judge is too activist then at the next appeals level it would have an extraordinary level of scrutiny.
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Re: Appeal on this basis is Uphill Battle
You're kidding, right?
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Re: Legal Question
I own the tangible property, which gives me the right to do pretty much whatever I like with it.
Except that copyright law reserves some of those rights for the copyright holder if the tangible property in question is a copy of a copyrighted work.
Except that fair use gives me the right to do some of the things that only the copyright holder is allowed to do without their permission.
So "fair use" is the exception to the exception to the rule that you can do what you like with the things you own. Ain't the law grand ?
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Many of these people handing out the sentence never owned a computer. They didn't want to look backwoods or out of touch and the prosecutor made them feel that this was such a huge deal they had better deal with it harshly. So they did, not wanting to look like they had no clue and fall into the category of 75% of this country.
What worries me is that the RIAA can basically wreck anyone's life. The person does not even have to do anything wrong, just be suspected. Similar to the Gestapo tactics Nazis used.
So, if I can record a song off the radio or a TV show, is the one putting the information out there responsible or am I responsible for recording the information? With that set of arguements, McDonalds is certainly liable for 100,000 heart attacks, Winchester is liable for the deaths of countless 1000s, but the guy who ate the burgers and the guy who pulled the trigger takes no responsibility?
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