DOJ Doesn't Believe $80,000 Per Song Unconstitutional Or Oppressive
from the tell-that-to-Jammie dept
While this probably isn't a huge surprise, given the fact that the Justice Department is stocked with former lawyers for the entertainment industry (and because it's filed similar briefs before), but it's still worth noting that the Justice Department has filed a brief in the Jammie Thomas lawsuit, in support of the constitutionality of the $1.92 million fine (and, no, none of the former RIAA lawyers are signatories to the brief, though you have to imagine their "expertise" was consulted). The reasoning is quite troubling and appears to include some serious revisionist history.First, what's stunning is that the brief claims the awards are perfectly constitutional because it is not "so severe and oppressive as to be wholly disproportioned to the offense [or] obviously unreasonable." Really? It seems that an awful lot of people find the idea of being forced to hand over $80,000 per song without any evidence that it was ever actually shared by anyone is severe and oppressive to the point that it's disproportionate to the offense and quite obviously unreasonable. I mean, this is a woman who wanted to listen to her favorite bands, and she now has to pay nearly $2 million. How can anyone claim that's not "severe and oppressive" in relation to the actual "harm" done?
Second, the brief claims that the damages should be much more than the $1.29 price per song found on iTunes, because it "ignores the potential multiplying effect of peer-to-peer file-sharing." Except, if that were the case, shouldn't the plaintiffs been required to show that these songs were actually shared? And should Thomas also be liable for the actions of anyone else she shared the songs with? That seems to go quite beyond what the law states.
Third, and perhaps most troubling, is the Justice Department's sneaky little claim that the statutory rates are obviously fair for file sharing, because they were put in place in 1999, with the explicit statement from Congress that these numbers were there because of internet file sharing. That sounds good, but ignores the fact that this little change in the law was pushed almost entirely by entertainment industry lobbyists (the same folks who now run the Justice Department!) to protect their dying business model, rather than through any empirical evidence. The real original purpose of statutory rates had nothing to do with punishing personal, non-commercial use, but were very much about dealing with commercial harm.
It's a neat, but immensely troubling, trick by the entertainment industry. Sneak through bizarre and totally unsupported legislation through a Congress that's never met a stronger copyright law it didn't love, using your high paid lobbyists. Then, get those same lobbyists appointed to the Justice Department to defend it against Constitutional challenges. Regulatory capture at its finest.
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Filed Under: constitutional, copyright, file sharing, fine, jammie thomas, lawsuit, music, settlement
Companies: doj
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This will help in the future.
We have reason to believe that your IP Adress, 127.0.0.1, Registered to John Doe has shared twelve files. As you know, sharing files is illigal, and we must protect ourseleved. If you settle today for $12,000, a mear $1,000 per infringing file, and sign a confidencial contract allowing us to plant spy software on your PC and block all file sharing applications, we will gladly settle.
If you do not, we will be forced to take direct Legal Actions. It has been ruled constitutional to recoup damages of no less then $80,000 per song, and of course, you will still be charged lawyer fees. In addition, any lack of imidiate payment will be charged banker interest. As you can see, we will bankrupt you in a manner of days.
Issue the check care of RIAA"
I mean, just think of how pretty thier settlement terms must look now, guilty or not.
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Re: This will help in the future.
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The fall of the Roman empire
Are we truly helpless to change it now? Would one --- a hundred --- a million or even a hundred million votes (at the polls or with our dollars) do anything to change the system at this point?
I don't want to be pessimistic, and I truly love our country (The USA) I'm wondering if it is our county any more.
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Re: The fall of the Roman empire
There is no problem which cannot be solved thru proper application of explosives.
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Re: The fall of the Roman empire
Does lead to one possible solution though. Gives a dam good reason for appeal in the oppressive or sever department.
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Re: The fall of the Roman empire
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Re: Re: The fall of the Roman empire
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Re: Re: The fall of the Roman empire
Remember, Democracy is two wolves and a sheep voting on what to have for dinner, Liberty is a well armed sheep.
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Good, hopefully this would increase the backlash and we can vote out our current government and replace them with competent politicians.
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The solution is to vote out our current government, and stop there.
Remove the positions of power, and the people who wish to have power over you will not have government as their jumping point. If people feel we need a federal government, then reduce it back to Constitutional levels, and require laws be regularly renewed. Then, they will be kept busy maintaining the current system of laws instead of simply adding more and more and more and more and more and more and more.
And hold people in government positions personally accountable for their decisions, and to a higher moral code. If they wish to tell other people how to live their lives, then should prove that they are without any moral ambiguity in their own lives. The slightest sign they are human, and they should no longer be allowed to tell anyone else what to do. If they can't follow the laws they put in place, then why do they expect us to?
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In 1971, Ed Howdersheld said "There are four boxes to use when defending liberty: Soap, Ballot, Jury, Ammo. Please use in that order." Unfortunately no one is using their soap box anymore, at least not to the extent that someone in power can hear. I love Techdirt, but I doubt anyone in power actually reads it (I may be wrong, and it wouldn't be the first time). Start writing letters,take it to the streets, into the parks, wherever there are people congregating physically. Talk to them. The power of real people, real letters (not emails), and real protests is that they are tangible. Without that tangibility many politicians assume it's just a bunch of jackasses playing around on them thar innertubes. Gather people in places where they can't be ignored. Stage peaceful protests. Get the message out that the country has been sold to corporations and that we're not willing to accept that any longer.
If that doesn't work, campaign to vote the people out of office. Voting people out of office before sending a clear message as to why is going on will do nothing but get the same sort of people in. That's why the soap box needs to be first. Basically it's like saying "We voted these people in because you were all jackasses for not listening to us". Until they can hear that message very loudly nothing will change.
The jury box is harder to get in on, but it is very important. In 1972 the District of Columbia Circuit Court of Appeals stated: "[The jury has an] unreviewable and irreversible power...to acquit in disregard of the instructions on the law given by the trial judge...The pages of history shine on instances of the jury's exercise of its prerogative to disregard uncontradicted evidence and instructions of the judge; for example, acquittals under the fugitive slave law." Use "Jury Nullification" when the appropriate cases arise. Teach other people about it. It's not for every case (obviously), but it is a tremendous tool for trials by jury where one side may be technically correct by law, the other side is morally right (assisting slaves with escape would be an example..the statement above is specifically speaking about helping slaves escape even though it was against the law). Many times this will be looked back on fondly (such as with helping slaves) but are heavily criticized when they happen. People can't let that deter them. The bigger deterrent is that many people don't even know that this principle exists.
The ammo box. It's what America used to break free in the first place. Without the support of other nations it would be difficult to use this box since the military has much better equipment than the average person. I don't recommend using this box unless you have some serious support and ALL other options have been exhausted.
I could just be rambling because I'm short on caffeine on a very long and annoying day.
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My father, Papa Helmet, once told me, "Never, EVER trust anyone with two first names."
To date I have yet to be able to prove that wrong...
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Reiteration
-Benito Mussolini claimed that the first stage of fascism is corporatism.
-An older definition, since replaced, of fascism defined it as the "Authoritarian merging of government and industry". The point was that high level people, many of them with familiar sounding last names, moved swiftly between government and industry positions.
-The stated creed of the Bavarian Illuminati was: "The ends justify the means"
I know I'm just a conspiracy nut, but is anybody fucking home?
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http://www.scribd.com/doc/18593475/DOJ-Brief-in-defense-of-ThomasRasset-Award
Even a casual perusal quickly reveals that the brief is significantly less extreme than your comments suggest.
I am still trying to understand your use of the term "revisionist".
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Re: We were always at war with infringers!
The justice implies that this case is somehow related to protection of IP BEFORE the Republic was even formed. Do I believe our founding fathers intended to detour private sharing of copyrighted material? Absolutely not! I think this judge is very much revising history in his own eyes.
This is obviously farcical. Furthermore, the justice never reasons how a law that was only intended to stop commercial distribution of copyrighted material for profit is now being applied to sharing which does not produce profit or deprive the owner of their property.
I understand this particular judge is not examining this rather only if the damages are unconstitutional. Still it is hard to keep a straight face when a law is clearly being misused to benefit wealthy claim makers.
They offer no proof and just hide behind laws that were shoved down our throats on the pretense they benefited society. This is clearly not the truth.
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Re: Re: We were always at war with infringers!
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Really? A judgement is made that she cannot possibly ever pay (short of winning the lottery) is not wholly disproportional or obviously unreasonable? Since when is bankrupting a person for life not considered unreasonable?
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Well, if I'm reading the brief correctly, it's actually even more odd than that. "disproportional or obviously unreasonable" portion is not judged based on her ability to pay, but rather in relation to the actual damages caused by her action or inaction.
So let's do some math.
$80000 for each song divided by the $0 in actual damages that they proved she caused....well, according to my calculator the answer is "Error".
So, there you have it. She owes exactly Error dollars per song.
Idiots.
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On my calculator, the answer is infinity, so apparently they are going easy on her.
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math?
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Re: math?
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math?
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Re: math?
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Re: Re: math?
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The final solution!
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Luckily... it doesn't really matter
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Names please
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DOJ is for business
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You're stupid
First off, lawyers are hired guns, they generally don't care who they're working for. So just because they worked for the RIAA one time doesn't mean they're going to do everything they can to help them.
Second, you're proof that the DOJ is loaded with RIAA lawyers is like 5 names, out of an organization with 1000s of lawyers? Get a clue.
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Re: You're stupid
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Re: You're stupid
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Don't see the problem here
Isn't this comment based on the defective "making available" jury instruction that wasn't used in the second trial. The jury found the plaintiff DID download or actually share the files. There doesn't have to be actual evidence of sharing, just more likely than not under the preponderance standard of evidence. We may not like the underlying law, but I don't see the problem here.
Second, the charge of $80k does not seem excessive. The alternative you propose of $1.29 assumes no one downloaded the files at all, which seems pretty unlikely. In addition, tort law is quite comfortable with joint and several liability when there are multiple bad actors. If there were a thousand people sharing the same song, why not hold any one of them accountable for the sharing of everyone. If the other 999 had dropped off the net, everyone would have downloaded from the one user. Isn't this like two negligent plaintiffs shooting guns at the same defendant? Under tort law, being one of many to share the files is more than sufficient for proximate cause.
this little change in the law was pushed almost entirely by entertainment industry lobbyists
We still have to obey laws regardless of the motivation of lawmakers. Doctrinally, this is based on separation of powers. Judges don't get to second guess Congress, for good reason. Everyone would be trying to avoid speeding tickets because the city was motivated by money rather than a genuine desire for driver safety. The vast majority of laws are influenced by lobbyists, this is just the political process.
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Re: Don't see the problem here, cause I am a tool
By your own reasoning of her sharing 1,000 songs it would be unreasonable (1000x1.29). Do you really believe that this award was "fair"? I doubt you do.
It is also important to note that the way sharing works is that rarely would that many people ever connect to you, rather the file would be seeded by everyone who downloaded it. This means in reality she may have only transferred a full copy several times.
Where did the original sample come from.... It wasn't an I-tunes song so were did she get it? If she didn't sample it herself they have failed to even find the person who actually "made" it available.
As far as your comments about laws. We do not have to follow unjust laws that do not make sense. We do not have to put up with cities who force their cops to write tickets for revenue. Your learned helplessness sickens me.
The vast majority of laws are pointless and useless and you defend them because some lobbyist pushes them through because "that's how the system works". The only thing more broken than our legal system is you.
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Re: Don't see the problem here
It seems Unlikely?? Then why did they not simply prove that the files had been downloaded? That seems like a "likely" thing to do when you want to prove something. They've got this thing called "forensics" which uses "the scientific method" to "prove" or "disprove" things. Its not hokus pokus you dolt.
I think its likely that a race of supermen live under my kitchen sink. Based on your brilliant logic, they obviously do.
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DOJ doesn't believe $80,000 Per Song Unconstitutional or Oppressive
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Re: DOJ doesn't believe $80,000 Per Song Unconstitutional or Oppressive
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let just take our counrty back
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$80,000 is a Cheap Price for a License to Share
The price for an iTunes song download is ~$1.29. However, that price does not convey a right to "share" that song with millions of strangers. How much do you think the rights holder might charge you if you asked him/her for the right to distribute millions of free copies of that song? I bet you the price for such a license would be far in excess of $80,000.
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