Jammie Thomas Not Willing To Settle Yet... Acccording To The RIAA
from the bizarre dept
How badly do you think the RIAA wants Jammie Thomas to settle? Since the verdict came down, the organization has done everything it possibly can to distance itself from the $1.92 million verdict against her for file sharing. While willing to play up the ruling itself the organization seems to recognize that the insanity of the $1.92 million doesn't do it any favors. Even the musicians whose music was part of the case are embarrassed by the amount. In an ideal world, the RIAA would love to settle the lawsuit for some lower amount so it can run around touting the "risks" of file sharing without having people laugh outloud when hearing that someone had to pay $1.92 million for potentially sharing 24 songs that could be bought for $1 each.So, you get a slightly bizarre situation, where it's the RIAA proactively reaching out to Thomas to try to settle the lawsuit -- but so far Thomas apparently isn't interested. I've been saying that I thought she would settle, but the longer this goes on, the more I wonder if she's actually planning to fight on. If so, this could certainly represent a case to examine the statutory rates associated with copyright violations. The verdict seems so out of proportion with the supposed "crime" that it's difficult to see it pass the laugh test. However, there's a halfway decent chance that a court punts on the issue, saying (as the Supreme Court did in the Eldred case) that such questions are up to Congress, rather than the courts. Of course, if the case is to move forward, it would help to have lawyers who have had more than a few weeks to study up on the issues, and who didn't make public pronouncements that were distractions rather than anything related to the actual case.
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Filed Under: copyright, file sharing, jammie thomas, lawsuit, music, settlement
Companies: riaa
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Why Not..
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Re: Why Not..
Let's face it, unless someone else pays her attorney fees, she's probably going to have to declare bankruptcy anyway. So there's no real point in settling.
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Re: Why Not..
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A pound of flesh
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outcome would have been had Lessig listened to advice of Fried (I think I'm getting the name right) and taken the alternative tact he outlined in Free Culture. Moreover with Justice Ginsburg off the bench it would be interesting to see how the Robert's court would rule, though I imagine the outcome might be the same.
Regardless this always seems a difficult situation for both sides. Hopefully the law can catch up with Net enabled technologies at some point.
John Andrew
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you have no idea what constitutional law entails
But bankrupting damages in a case where the actual harm was completely speculative and admittedly unproven is a very strong due process argument, and weighing that against something that's not specifically proscribed in A1S8 (statutory damages) is like shooting fish in a barrel.
As someone said in one of the other threads, please go to law school before you speculate about what the Supreme Court would do.
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Re: you have no idea what constitutional law entails
As for the specifics, there are plenty of well respected lawyers who disagree with you on the Eldred case. Calling it DOA is your opinion, but I could easily point to a bunch of lawyers who felt (and still feel) strongly the opposite way. Did they not go to law school? Are you going to insult them?
At the same time I could easily point you to plenty of well respected lawyers who feel that the statutory rates have no chance of making any headway on a constitutional challenge. Did they not go to lawschool? Do they not have a right to express their opinion?
Everyone knows I'm not a lawyer. I make no effort to mislead people into suggesting that I am a lawyer. I'm not. Not even close. But that doesn't mean I can't express an opinion and explain my reasons behind it.
And the fact that you have an opinion is great, but insulting me in the comments doesn't help your credibility -- especially when there are so many respected lawyers who disagree with you (and seem to agree with me). I'm all for spirited discussion, but random insults don't help your case.
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Re: Re: you have no idea what constitutional law entails
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Re: Re: you have no idea what constitutional law entails
Statutory damages in copyright are a joke. There are countless cases and rules on determining even "reasonable royalties" in patent cases. And with the Supreme Court and every lower court knocking out even double digit punitive ratios, there's no way statutories should survive. They're based on gross speculation, and these are way over even 3x reasonable estimates. For instance, if JT-R shared for a year, even with treble damages, that's 500,000 uploads at $2m, or roughly 1370 uploads per day. To give you an idea of how ridiculous this is, at 4mb per song, she'd be uploading almost 2TB over the course of that year. Even by 2004/2005 standards, that's either impossible, or her ISP would have cut her off in a heartbeat.
As for going to law school, even bottom tier law schools are better than nothing. Law school isn't just about reading cases and statutes, but instead, learning how to think. I'm mostly addressing the fact that you get criticism (from not just myself) that some of your arguments are either silly or nonsense. Sometimes this criticism is crap (like some of the stuff in the RIAA blog), and sometimes it's completely warranted. You're more than welcome to have an opinion, but if you're making a technical opinion when you're grossly uninformed (and you certainly are in this instance), you're not allowed to get pissed when someone calls you out for your lack of experience and training.
The only thing I'm wondering is how you're feeling about the FTC looking at paid blog posts. There's some stuff going around that some bloggers are on lobbyist payrolls in order to plug certain views, even if the views are ridiculous. Your name came up on this list. And the fact that you say you (/TIC) are not a consultant, you admit you don't make a living wage off of ads, and that you're usually posting 10x per day or more, it only makes the allegation look stronger.
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Re: Re: Re: you have no idea what constitutional law entails
I made no assertion that your opinion was the opposite. I said that there were many well respected lawyers who felt the other way. I, personally, agree with you that the numbers are ridiculous. But the fact that there are many who don't believe that and think that the courts would laugh such a claim out of court.
You seemed to insist that anyone who went to law school would agree with you, and the only reason that I suggested the courts might not look favorably on such a claim is because of my lack of a law school education. I find that claim to be ridiculous considering the number of lawyers who disagree with you.
The only thing I'm wondering is how you're feeling about the FTC looking at paid blog posts. There's some stuff going around that some bloggers are on lobbyist payrolls in order to plug certain views, even if the views are ridiculous. Your name came up on this list. And the fact that you say you (/TIC) are not a consultant, you admit you don't make a living wage off of ads, and that you're usually posting 10x per day or more, it only makes the allegation look stronger.
Wow. Talk about a non-sequitur combined with a bald accusation based on nothing.
First of all, I'm curious what "list" my name came up on and how you know about it? I'd sure love to see it.
And if the FTC really believes that I'm on a lobbyist's payroll, let them come ask me. We've got nothing to hide. We're not on any lobbyist's payroll (not even close). We make our money off of the Insight Community -- and any such posts are clearly labeled as such.
Besides I'd love to see who you think is funding my opinion, since I can't think of any companies out there that share my opinion on most of this stuff.
What an incredibly misguided cheap shot. I stand behind everything I say, and nothing I write for this site is paid for by anyone.
In the meantime, what an incredible cheap shot for someone who won't even reveal who they are or who they work for to accuse me of such an action. Why not admit who you are? I'm not hiding anything. Why are you?
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Re: Re: Re: Re: you have no idea what constitutional law entails
As for anonymity, it's pointless to claim as a commenter who I am. I could make a name up (you can't verify it, my name is Tom Jenkins! oh, wait, no, I'm Sparticus McGee!), or I could pick a name from countless tech companies, or law firms, or lobbying organizations, and there's nothing you could do to prove it's not me, short of finding the contact info for the actual person and calling/emailing. And even then, I'm just using a name. Putting my actual name into Facebook comes up with dozens of other people with the same name. At least on Facebook, your identity is authenticated by your friend list. Here, anyone can say they're anyone and you can't prove it. You should be happy I'm consistently posting under the same name instead of mixing in with the rest of the "Anonymous Cowards".
If you're really throwing a tantrum about what you call "cheap shots", just delete these comments. I couldn't care less. Just feel happy that I'm contributing to your "community".
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Re: Re: Re: Re: Re: you have no idea what constitutional law entails
By whom?
It's plausible (and yes, there are companies that benefit from a weaker IP paradigm). As for TIC, your "insight" frequency is roughly 1/month, so unless you're charging a ton for your crowdsourced consulting (where the answers read like 6th grade essays littered with buzzwords -- "there are 3 things you can do... the first is ... the second is ... the third is ..."), please enlighten us with TIC's successful business model.
Heh. Your inability to understand our business model is no excuse for you accusing me of something ridiculous and totally unsubstantiated.
I'll give you two hints:
(1) It's not crowdsourced "consulting"
(2) Not every IC case is a public case.
Ok. Thanks for playing.
As for anonymity, it's pointless to claim as a commenter who I am. I could make a name up (you can't verify it, my name is Tom Jenkins! oh, wait, no, I'm Sparticus McGee!), or I could pick a name from countless tech companies, or law firms, or lobbying organizations, and there's nothing you could do to prove it's not me, short of finding the contact info for the actual person and calling/emailing.
If you are going to accuse me of fraud, I figure the least you can do is admit who you are. Considering the claim is laughable on its face, it doesn't surprise me that you'd weasel out of admitting who you are.
What a sad life you must lead to go around anonymously accusing bloggers of fraud.
I spent my day today working with musicians and helping them come up with interesting and compelling business models. It was tremendously exciting and interesting. And then I read some baseless accusation from someone too chicken to stand behind their words? What a laugh.
If you're really throwing a tantrum about what you call "cheap shots", just delete these comments. I couldn't care less. Just feel happy that I'm contributing to your "community".
Heh. Asking you to stand behind your words or prove your baseless accusation isn't throwing a tantrum. It's taking you to task for posting pure lies.
I find it amusing that you would do so right after we proved your little attack on me was shown to be silly. Please, don't take out your own self-esteem issues on those of us here.
As for deleting comments, I don't do that. Why should I hide your baseless accusations when it's easier to just point out how ridiculous they are. Once again, I've got nothing to hide. Why are you hiding?
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Re: Re: Re: Re: Re: Re: you have no idea what constitutional law entails
Consulting is a job where you give advice for pay. However, you repeatedly claim that you don't do consulting. Either you're in denial or you're a liar. Take your pick. The first merely means you're obtuse, while the second one only backs the notion that you're sponsored.
I never said anything about fraud. Sponsorship ID is not about fraud. It's about disclosure. The allegation is that the same way a basketball player endorses a pair of shoes because he's paid to (even if they aren't better), certain bloggers will endorse products (i.e. product integration) or ideologies (i.e. astroturfing) simply because they're paid to do so. You've probably even covered other paid bloggers here on TD. The fact that you've totally lost your cool over this makes it clear that you don't even notice when you're doing it.
As for my anonymity, I have nothing to gain by disclosing who I am (my name is Aldus Coriander! no wait, it's Jenny Shepard). And if I have any character flaws, they're certainly not self esteem deficiencies... it's more like egotistical, brazen, and overconfident.
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Re: Re: Re: Re: Re: Re: Re: you have no idea what constitutional law entails
I do not, actually, but thanks.
Consulting is a job where you give advice for pay. However, you repeatedly claim that you don't do consulting. Either you're in denial or you're a liar. Take your pick. The first merely means you're obtuse, while the second one only backs the notion that you're sponsored.
Or I understand my business and you clearly do not. Though I'm amused at your own inability to figure it out. Since you're not on my board of directors, thankfully (as far as I know, given your anonymity), I don't have to answer to you on that question.
I never said anything about fraud. Sponsorship ID is not about fraud. It's about disclosure.
Either one, we're clean. If we're really on some "list" (which I have a really hard time believing), I welcome the FTC to come take a look and get all the details they want. We would never sell our editorial.
Why would I *ever* risk what we've built here by doing something as boneheaded as selling editorial?
The allegation is that the same way a basketball player endorses a pair of shoes because he's paid to (even if they aren't better), certain bloggers will endorse products (i.e. product integration) or ideologies (i.e. astroturfing) simply because they're paid to do so. You've probably even covered other paid bloggers here on TD. The fact that you've totally lost your cool over this makes it clear that you don't even notice when you're doing it.
Sure, I think such actions are incredibly deceptive and nasty -- which is why we call out those that do it *when there's evidence that it's been done*. The only times I've ever brought it up was when there was clear evidence that someone was being paid for their position.
Actually... given the small number of cases where that's occurred, I'm actually beginning to suspect that you're one of those people... it's a pretty small list. No wonder you won't give up your name.
I'm still confused why you think I've lost my cool. You're spreading a blatant lie about me and I'm simply pointing out where you are factually incorrect and asking you to back up these obviously false allegations. The reason I'm defending myself is because I agree that it's an incredibly nasty practice. We would never do anything of the sort and even you suggesting it is repulsive. Why would I risk my reputation on something like that? What possible benefit would that bring? We'd lose our audience in a second.
As for my anonymity, I have nothing to gain by disclosing who I am (my name is Aldus Coriander! no wait, it's Jenny Shepard). And if I have any character flaws, they're certainly not self esteem deficiencies... it's more like egotistical, brazen, and overconfident.
Uh, you would gain credibility. The fact that you refuse to do so suggests that you have something to hide. Since you seem to think it's fair game to case about baseless allegations, I assume then it's fair game to assume someone is paying you to discredit me. Based on your logic, the fact that you continue to refuse to give up who you are simply adds weight to the fact that someone is paying you to slander me.
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Think about that one carefully.
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Re: Re: Re: Re: Re: Re: Re: you have no idea what constitutional law entails
Hmm. I would assume that most of our clients are looking to profit period. I'm not sure any of them really care about the "free" net or not. Our biggest clients actually have nothing to do with the internet.
Either way, even if they were, no clients pay us for editorial. I think I can recall one ad agency that once brought up the idea of us doing a post outside of an IC post and we shot it down immediately. Editorial is 100% separate. Companies pay for access to the Insight Community's insight. And if you knew how any of these deals actually went down, you'd laugh at the idea that they thought they were buying editorial. The number of players between us and anyone who cares about any sort of public policy issue is tremendous. The policy guys are in a separate wing of any company. We tend to work with marketing guys. And then we don't even work with the marketing guys directly, but with their digital marketing agency. And then there's usually an ad agency on top of that, and a bunch of our deals first come through our own partners -- most of whom don't even know what the hell I write about. They think Techdirt is a site for IT managers talking about storage hardware.
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Re: Re: Re: Re: Re: Re: Re: Re: you have no idea what constitutional law entails
Let's say I am have a company that would greatly benefit from reduced copyright rules. You have one of the leading online blogs dedicated to the ideas of ripping down copyright, patent, and trademarks back to their bare essentials. I don't really need your TIC stuff, but I do want your blog to continue and for you to continue to give public speeches and such, so I decide to "hire" TIC to do some consulting on meaningless stuff, just as a way to pay you to stay on the blog.
After all, as it has been stated before, you post often 10+ items a day, and unlike a comment post here, those posts in theory require research, backgrounding, looking for comparable stories on your blog, etc. While I know this isn't your fulltime job, but from the outside it would appear that you spend full time "time" here. For fair comparison, Carlos posts what, twice a week (and less when he has papers due at school)?
So in the end, if the world at TIC funds the blog in any way, then there is potential for issues, even if you feel you have firewalled yourself editorial wise. Note, no accusations, just views from the outside looking in.
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Re: Re: Re: Re: Re: Re: Re: Re: Re: you have no idea what constitutional law entails
Ha! If that's the case, then EVERY publishing company EVER is guilty of the same thing the second they accept an advertiser.
I'd argue that our situation is significantly better than a traditional publishing company in regards to what you say above. In those cases, the advertisers are blatantly pimping a product. With us, they're actually getting back useful insight.
To claim that we're somehow biased in that way is patently laughable. Why not take a look at what companies work with us, and then look at what we've written about them. It's not as if we give beneficial coverage to clients. Unlike traditional pubs where it's advertising, our clients don't hire us to push a message. They hire us to *get insight* back -- and often that insight is on how to improve their business.
Please. If you have to make accusations against us, at least they should pass the laugh test. Your's does not.
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....How inefficient...
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Heh. If that's their only goal, there are much better ways to do that. When we work with clients, it's about figuring out ways to make sure they get value out of the insights. The fact that other players are involved in the middle doesn't change that. It's just an unfortunate part of the way marketing budgets are spent online these days.
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Re: you have no idea what constitutional law entails
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Re: you have no idea what constitutional law entails
I always like this train of thought, because it so wonderfully highlights how idiotic very smart people can be. My only question is: will any law school do? Why not be more specific, since surely some law schools are better than others. Do we value the opinion of a lawyer who studied at Yale over one who studied at UCLA? If so, does the UCLA trained lawyer get SOME opinion? How much? None at all? What about those trained in law at schools overseas? Do THEY get an opinion.
This is the same as people who say: You don't get to be against the war unless you served in the military. Which is obviously nonsense.
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Re: Re: you have no idea what constitutional law entails
You get a little bit of knowledge, you buy into it, and you really think that you have learned something in school. You genuinely believe that the way lawyers understand things is right. I have a friend in law school right now, and every time we get into morality/ethics discussions he tosses it out the window. Legally it doesn't matter, he says. In most people's minds, it's the law that doesn't matter.
It's just a different way of looking at the world, and probably the reason that everything thinks of lawyers in such a negative light.
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Re: you have no idea what constitutional law entails
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A wild hair
Is it possible the jury that set the penalty actually thought it out and decided to make a laughing stock of the whole situation? The jury consisted of 6 people, could it have been that difficult for them to all agree on something this absurd?
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Re: A wild hair
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Re: Re: A wild hair
I'm always seeing people bitching about their rights but conveniently forget that along with those rights come responsibilities.
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Size of the Settlement was Punitive?
If she was selling music there must be a way to determine an estimate of the retail value of the amount she sold and award damages to the RIAA for that amount plus a punitive and exemplary amount to act as a deterrent to others. A total award of several thousand dollars would seem a maximum reasonable amount given the circumstances, or is there a 5,000 unit an hout CD reproduction factory and a 100,000 member file sharing site that Ms. Thomas owns that is being kept secret?
The US civil court system seems to be seriously messed up given the circumstances in this case. This has a look of possible criminal bias.
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Re: Size of the Settlement was Punitive?
That brings up a good point, considering the Highly outrageous amount that came out with for this case.
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Re: Size of the Settlement was Punitive?
I'm curious about this statement, because I saw no such claim whatsoever anywhere. Can you provide any detail that she was burning CDs for selling?
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I'm beginning to think that after the verdict came down some unnamed parties [the new owners of TPB, EFF, etc.] told her to let it be, and not settle, because it makes the plaintiffs look bad. She'll still have to file BK, but then these unnamed parties will give her a job making a decent wage to make up for it. Just thoughts...nothing more.
Also, why didn't the judge presiding over the case ROFL and tell the jury to get their butts back in that room and come back with a penalty based in reality. Is the judge required to pass on whatever the jury comes up with, or can they change it if it's rediculous?
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Sorry, that logic doesn't hold water. Damage isn't relative to money she earned, it is relative to what was likely lost. If she made $10,000 selling CDs, do you think it would be reasonable for her just to turn over the $10,000 and walk away? Where is the punishment in that?
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Nah, we've got "punitive damages" these days for those that step on the wrong toes.
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Re: Size of the Settlement was Punitive?
The term "illegally sharing" is vague. What exactly did she do to cause such a huge court award? My assumption is Jammie Thomas made a few copies for friends, maybe. This would make the $1.92 million award absurd beyond comprehension. People involved in the Bernie Madoff ponzi scandal will probably get away with less.
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They only have a few days left to launch an appeal, and it needs to be on something good - crap will get tossed outright.
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Love the research...
Every case the RIAA has had taken to court that they have won has been settled out of court regardless of the verdict.
In every case, the RIAA seeks to settle for at or near the original settlement amount.
JT-R was offered a ~$5000 settlement prior to all of this. She declined. She lost in court and was once again offered a ~$5000 settlement. She declined again and lost in court again. She is now being offered yet another ~$5000 settlement.
This is *not* out of the ordinary, in fact, it's the opposite. This is SOP for the RIAA. They have never, in a personal liability issue, as opposed to a commercial liability issue, sought full statutory damages. Ever.
Sorry to burst all your angst-bubbles, but while both parties are being idiots here, JT-R is the biggest.
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Jammie Thomas and RIAA Idiots
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Re: Jammie Thomas and RIAA Idiots
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Re:
Hmm. This is the only case they have "won."
JT-R was offered a ~$5000 settlement prior to all of this. She declined. She lost in court and was once again offered a ~$5000 settlement. She declined again and lost in court again. She is now being offered yet another ~$5000 settlement.
I'm not sure what that has to do with anything. That doesn't change the story and doesn't show anything wrong in the story at all.
This is *not* out of the ordinary, in fact, it's the opposite. This is SOP for the RIAA.
Yes, for the RIAA. No one denies that or suggested otherwise. But it's hardly SOP for normal lawsuits. In fact, the very fact that it is SOP for the RIAA shows the ridiculousness of these lawsuits
They have never, in a personal liability issue, as opposed to a commercial liability issue, sought full statutory damages. Ever.
Now that's a lovely bit of historical revisionism. I like your careful choice of words, but let's be QUITE clear here. While they may not have sought it in court, KNOWING full well the PR nightmare that would ensue, they have waved around those statutory numbers like a huge club.
Sorry to burst all your angst-bubbles, but while both parties are being idiots here, JT-R is the biggest.
Really? Recognizing that such an award might make a good case to challenge hugely questionable statutory rates for non-commercial copying? That's being an idiot? I'm not so sure... It certainly sounds like she (or her lawyers) may realize that this is a fantastic scenario to question the validity of such statutory rates.
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What she needs to start figuring out is that her lawyers aren't interested in her - they are interested in getting their 15 minutes in front of the 9 wise men in Washington, plumping up their resumes. Sucks.
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Constitutional Challenge
"The Defendant argues that the statutory damages authorized by the Copyright Act, 17
U.S.C. § 504(c) -- which range from $750 to $150,000 per infringement -- far outstrip the actual
damages incurred by the Plaintiffs and are therefore unconstitutionally excessive and punitive in
nature. Accordingly, he asks the Court to dismiss this lawsuit. Yet all the parties appear to agree
that, under the doctrine of constitutional avoidance, courts should refrain from deciding
constitutional questions until it is plainly necessary to do so. See Lyng v. Northwest Indian
Cemetery Protective Ass'n, 485 U.S. 439, 445 (1988). In light of this principle, together with the
substantial practical difficulties of comparing actual and statutory damages without a factual
record, the Court will decide this constitutional question only if and when a jury awards damages
against Joel Tenenbaum. The due process challenge is deferred until that time." Order Filed July 15 2009 by Judge Getner .
It seems that the best chance of finding these damages unconstitutional is right now. Judge Getner stated that she would not rule on the issue until possible damages had been assessed by a jury. Now that this has happened in the Thomas case, perhaps her legal team is mounting an argument to that extent.
It also seems plausible that the RIAA tries to settle most of these cases even after a judgment has been awarded to avoid certain constitutionality arguments by the defense. You can pretty much guarantee that Prof. Neilson and Tenenbaum's defense will mount that argument should damages be awarded against him. Lets hope that Jamie has the courage and tenacity to remain standing in this fight and take it as far as need be to defend our rights.
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Actually, that course of study is called 'Logic'.
Law school doesn't teach you how to think, it teaches you how to think like a lawyer, which is quite different.
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YouAreWrong, You're a Fool
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