Why The Jammie Thomas Verdicts Return Such Huge Amounts Per Song Shared: It's All About The Framing

from the pick-a-number-in-the-middle dept

Fri, Nov 5th 2010 10:00am — Mike Masnick

With the latest jury in the never-ending series of trials for Jammie Thomas-Rasset, awarding $1.5 million, or $62,500 per song, many were wondering how the jury comes up with such numbers that seem so ridiculously out of line with any actual damages. The real problem isn't the jury, but the law. Copyright law has ridiculous statutory damages, which by definition have no basis in actual damages. This leads to purposely nonsensical results like being fined $1.5 million for sharing 24 songs you liked. So why is the jury still picking those numbers? Well, it's all about the framing. If you read the jury instructions to the latest jury, you can see why the jury more or less picked the number it did. Just take this key section:

You are hereby instructed that a jury in a previous trial has already determined that the defendant's infringement of plaintiffs' copyrights was willful. In this case, there is no issue as to the defendant's liability for willful copyright infringement. As a result, your sole responsibility is to determine the amount of damages to be awarded to the plaintiffs for the defendant's willful infringement of the plaintiffs' copyrights.

In this case, each plaintiff has elected to recover "statutory damages" instead of actual damages and profits. A copyright holder may recover statutory damages even if it did not submit evidence regarding actual damages. Under the Copyright Act, each plaintiff is entitled to a sum of not less than $750 or more than $30,000 per act of infringement (that is, per sound recording downloaded or distributed without license). Because the defendant's conduct was willful, then each plaintiff is entitled to a sum of up to $150,000 per act of infringement (that is, per sound recording downloaded or distributed without license), as you consider just.

There's nothing specifically wrong with the jury instructions. They're exactly what the law basically says the judge should say. But, if you're the average person in the jury box, these instructions effectively say "pick a number higher than $30,000 and less than $150,000." That's basically it. The numbers are framed right there, and the jury just has to pick. So, the last two juries picked $80,000 and now $62,500. If you're on the jury, you're not really thinking about what this actually means, or if the punishment fits the actions. You're told, by law, you should pick a ridiculously high number, and then you just sorta pick one within that frame, which has already been set for you. If you're told that they can be fined $150,000 per song shared, and you assume that the law must make sense (because who would pass a nonsensical law?), then at no point do you ever consider the reasonableness of such an award. That seems like a pretty bad judicial system, because it encourages frivolous results that very few people can respect.

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Filed Under: framing, jammie thomas, juries, statutory damages

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:Lobo Santo (profile), 5 Nov 2010 @ 10:09am

Who would pass a nonsensical law?
Any bought and paid for senator/congressman/governor/mayor/regulator/etc/ad nauseum.
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Anonymous Coward, 5 Nov 2010 @ 10:12am

"But, if you're the average person in the jury box, these instructions effectively say "pick a number higher than $30,000 and less than $150,000." That's basically it."

I know the average jury member might not be a scholar or wiz, but I don't think the instructions say that. It's totally within the instructions to award $750 per recording.

"If you're on the jury, you're not really thinking about what this actually means, or if the punishment fits the actions."

What makes you think that?
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- ChurchHatesTucker (profile), 5 Nov 2010 @ 10:16am
  
  Re:
  "I know the average jury member might not be a scholar or wiz, but I don't think the instructions say that. It's totally within the instructions to award $750 per recording. "
  
  I think that 'per act of infringement' is the key point.
  
  That said, there is still jury nullification, which can dismiss all of this. Sadly, that's not part of jury instructions.
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  - Anonymous Coward, 5 Nov 2010 @ 10:23am
    
    Re: Re:
    It's not actually supposed to be "per act of infringement," but "per infringed work." so that's an arguable mistake, though harmless because of the clarifying parenthetical.
    
    Anyway, I don't think there was any miscommunication or dispute regarding the multiplier or number of infringed works, just the amount per work.
    
    Those instructions leave open the ability to award $750 per infringed work, but the jury didn't do that.
    [ link to this | view in chronology ]
    - Richard (profile), 5 Nov 2010 @ 3:25pm
      
      Re: Re: Re:
      Those instructions leave open the ability to award $750 per infringed work, but the jury didn't do that.
      Because then she would have actually had to pay the damages. Whereas - since the award is beyond any possibility of her paying - she will never actually pay it - and anything she does eventually pay will be the result of negotiations (and probably a major climbdown by the plaintiffs once the case has left the headlines)
      [ link to this | view in chronology ]
      - Anonymous Coward, 5 Nov 2010 @ 3:38pm
        
        Re: Re: Re: Re:
        Um, she's actually going to pay, just not the total awarded (since she doesn't have that much).
        
        There is absolutely no reason to award a *higher* number thinking that she'll get away with paying less that way.
        
        It's not like she can pay nothing since they awarded more than she has.
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        Jay (profile), 6 Nov 2010 @ 10:48am
        
        Re: Re: Re: Re: Re:
        They would garnish her wages for the rest of her life if she committed to it. That's 1 million dollars for 24 songs, and no hope of ever making that much money when she's a single mother of 4.
        
        Even then, there's been no actual proof of damages to the ENTIRE music industry because of her downloads. Last I checked, the industry is still doing quite well despite the whack a mole tactics the RIAA employs.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 8 Nov 2010 @ 8:33am
        
        Re: Re: Re: Re: Re: Re:
        I'm not sure how any of that is relevant to my point above: there's no reason to think a higher award means she'll end up paying less.
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  - Anonymous Coward, 5 Nov 2010 @ 12:53pm
    
    Re: Re:
    Wait, juries aren't informed of jury nullification? That's kinda messed up in my opinion, especially since there's pretty much no way to learn it otherwise once they're sequestered. Juries should be given full instructions on what is within their rights to do.
    [ link to this | view in chronology ]
    - Anonymous Coward, 5 Nov 2010 @ 1:05pm
      
      Re: Re: Re:
      Jury nullification is not considered a right or a proper thing to do under the law, so courts don't inform juries about jury nullification.
      [ link to this | view in chronology ]
      - Christopher (profile), 6 Nov 2010 @ 3:23pm
        
        Re: Re: Re: Re:
        Wrong. The fact is that our Founding Fathers said numerous times that Jury Nullification IS a means for a jury to refuse to uphold a law that is unconstitutional or otherwise wrong in their opinion.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 7 Nov 2010 @ 8:44am
        
        Re: Re: Re: Re: Re:
        Citation to an article published in a reputable journal?
        [ link to this | view in chronology ]
        
        Anonymous Coward, 8 Nov 2010 @ 8:34am
        
        Re: Re: Re: Re: Re: Re:
        Not likely.
        [ link to this | view in chronology ]
    - New Mexico Mark, 5 Nov 2010 @ 1:58pm
      
      Re: Re: Re:
      Actually, courts seem to be working more and more to prevent activist jurors and/or jury nullification.
      
      I suspect I was dismissed from a jury pool recently based solely on one question mailed in a questionnaire... something along the lines of: Would you be willing to set aside your personal beliefs and opinions and render a verdict strictly on the law and the instructions of the judge?
      
      My answer: (circled "no" and added comment) I would do my level best to follow the law and instructions of the judge, and in the vast majority of cases I would not anticipate any issues. However, I will not pretend that all laws, nor the practitioners thereof are exclusively good and right. That, in my opinion, is a key reason we have juries in the first place.
      
      This type of question means people who simply answer "yes" either have to believe that all laws and lawyers are good (har!). The alternative is that they would have to lie. Fortunately (or unfortunately) people with sufficient ethical backbone to challenge a question like that would be unwilling to lie just to get on a jury.
      
      So what are you left with? Morally weak or dishonest jurors, and juries like this one that are just rubber stamp committees.
      [ link to this | view in chronology ]
      - Anonymous Coward, 5 Nov 2010 @ 2:02pm
        
        Re: Re: Re: Re:
        "This type of question means people who simply answer "yes" either have to believe that all laws and lawyers are good (har!)."
        
        Wait, what? No. It just means they have to be willing to set aside their own feelings on what the law *should* be and apply the law as written by democratically elected officials.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 5 Nov 2010 @ 2:10pm
        
        Re: Re: Re: Re: Re:
        "It just means they have to be willing to set aside their own feelings on what the law *should* be and apply the law as written by democratically elected officials."
        
        I suspect that if people got to vote on existence of IP laws these laws would substantially disappear. Most people are ignorant and brainwashed, partly due to a government privileged malevolent mainstream media.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 5 Nov 2010 @ 2:11pm
        
        Re: Re: Re: Re: Re: Re:
        (for example, I highly doubt that 95+ year copy protection lengths is acceptable to most people. So clearly this "democracy" is capable of producing publicly unacceptable laws.)
        [ link to this | view in chronology ]
        
        Anonymous Coward, 5 Nov 2010 @ 2:14pm
        
        Re: Re: Re: Re: Re: Re: Re:
        Oh, I'd agree with you there.
        
        Nobody said democracy (or IP laws) were perfect, but (a) I think U.S. citizens generally approve of IP laws, though they have a limited understanding, and (b) I don't think letting 12 people or 1 person overide the will of democratically elected representatives is a good system of government or law.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 5 Nov 2010 @ 2:26pm
        
        Re: Re: Re: Re: Re: Re: Re: Re:
        "(b) I don't think letting 12 people or 1 person overide the will of democratically elected representatives is a good system of government or law."
        
        If juries really are representative then you should have no problems with it.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 5 Nov 2010 @ 2:48pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re:
        I don't think anyone has ever claimed that a jury in any particular part of the country is perfectly (or even approximately) representative of the political makeup of the county at large.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 5 Nov 2010 @ 2:49pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        *country
        [ link to this | view in chronology ]
        
        Anonymous Coward, 5 Nov 2010 @ 2:59pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        http://www.techdirt.com/articles/20101103/22424611712/jammie-thomas-verdict-this-time-it-s-1-5-milli on-for-sharing-24-songs.shtml#c425
        [ link to this | view in chronology ]
        
        Anonymous Coward, 5 Nov 2010 @ 3:41pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        That doesn't negate anything in my prior post. Obviously, you can do what you want, but it's sort of a pain to click on links that you later find out aren't really relevant.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 5 Nov 2010 @ 2:31pm
        
        Re: Re: Re: Re: Re: Re: Re: Re:
        "I think U.S. citizens generally approve of IP laws"
        
        If this were the case it wouldn't be corporations pushing for these laws. It's mostly the corporations pushing for them, the absurd length and fines associated with these laws itself is evidence of that. The RIAA is mostly lobbying for them and pharmaceutical corporations are mostly the ones lobbying for them, not citizens in general. If anything, groups funded by citizen donations (not corporate donations) tend to oppose them (ie: the ACLU and its opposition to gene patents).
        [ link to this | view in chronology ]
        
        Anonymous Coward, 5 Nov 2010 @ 2:35pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re:
        (and the politicians that pass these laws get their campaign funding from the corporations that want them. There is little evidence that the citizens want them, the corporations are the ones that pushed for them. The middlemen, businesses, and the corporations are the reason they exist to begin with, they're the ones that initially convinced the government to pass copyright law in the U.K and eventually in the U.S and they're the ones that continue to get the govt to maintain it. Most of what I see from citizens is opposition to ACTA, petitions to the USTR about how absurd the laws are, while it's mostly the RIAA and corporations and corporate representatives like the chamber of commerce and business entities that are pushing for them with their petitions. At least that's been the case when the USTR has opened up their comments to the public).
        [ link to this | view in chronology ]
        
        Anonymous Coward, 5 Nov 2010 @ 2:42pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        For an example of evidence, see
        
        http://www.techdirt.com/articles/20100325/0414308715.shtml
        
        The claim that citizens want these laws is mostly unfounded. Citizens do not want these laws, most of the comments to the USTR agree with this, while the comments to the USTR that want these laws come from business entities.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 5 Nov 2010 @ 2:45pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        and as more evidence of the fact that the govt could care less about the will of their citizens regardless, see
        
        http://www.techdirt.com/articles/20100630/14391410029.shtml
        
        I doubt most citizens approve of this. It's the corporations that want these laws and the govt is clearly unilaterally serving the corporate interest with no regard for the public interest.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 5 Nov 2010 @ 2:52pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        Ok, hard to respond to serial posting.
        
        Anyway, I don't accept the premise that, if "corporations" are in favor of something, "citizens" must be opposed.
        
        Also, I'm not talking about every aspect of IP law, but the notion of IP law in general.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 5 Nov 2010 @ 2:54pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        "Anyway, I don't accept the premise that, if "corporations" are in favor of something, "citizens" must be opposed."
        
        That's not the premise I'm making. The premise I'm making is that it's the corporations pushing for it and not the citizens.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 5 Nov 2010 @ 2:55pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        (and that the corporations obviously have the capabilities to coerce our government to act in its interest regardless of the will or interest of the citizens. The above Disney link and the absurd copy protection lengths are evidence of that).
        [ link to this | view in chronology ]
        
        Anonymous Coward, 5 Nov 2010 @ 3:02pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        citizens are not pushing for it =/= citizens are against it
        [ link to this | view in chronology ]
        
        Anonymous Coward, 5 Nov 2010 @ 3:03pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        It is the case that citizens are pushing against it and corporations are pushing for it.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 5 Nov 2010 @ 3:43pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        I like using the "threaded" view, and this is getting too far to the right for my tastes, but if you're claiming that a *majority* of citizens are against IP law in general, I disagree, and you haven't really given any evidence for that proposision.
        
        I concede that I haven't given any evidence for my position either.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 5 Nov 2010 @ 4:56pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        "but if you're claiming that a *majority* of citizens are against IP law in general"
        
        I never said they're against IP laws entirely, just that the way they currently are would be largely repealed.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 5 Nov 2010 @ 4:57pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        (and, unlike you, I have given evidence for my position).
        [ link to this | view in chronology ]
        
        Anonymous Coward, 5 Nov 2010 @ 3:02pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        "I don't accept the premise that, if "corporations" are in favor of something, "citizens" must be opposed."
        
        I don't accept the premise "I think U.S. citizens generally approve of IP laws because I said so"
        
        The point is that my position has evidence, yours lacks evidence.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 5 Nov 2010 @ 3:05pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        What is your evidence again? Techdirt articles?
        
        I think your evidence is crap.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 5 Nov 2010 @ 3:14pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        My evidence is the fact that
        
        A: The laws are too absurd for any normal citizen to approve of them (ie: copyright length and the department of homeland security getting involved when it's not even their job among many other things wrong with the law) and so it makes sense that the ones pushing for them are those who benefit, namely, the corporations
        
        B: The corporations clearly have the political influence to have laws past that are against the public interest, laws that are so absurd most citizens would find reprehensible.
        
        C: given the absurd nature of the laws, it's reasonable to assume that given the choice to vote, most citizens would repeal them. Not saying all IP laws would be repealed, just that the laws as they currently are would be.
        
        D: Corporations, business interests, and middlemen are clearly for these laws. They repeat it ad - nausea, they contribute money to politicians that pass these laws, and they are the ones that originally encouraged governments to pass them.
        
        E: When the USTR asks for public comment and opens up their comments to the public, they get tons of comments from citizens criticizing ACTA. Those who want it tend to be business interests.
        
        You may not accept the evidence, you may think what you want of the evidence, but the evidence disagrees with you.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 5 Nov 2010 @ 3:21pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        As more evidence, why is it that ACTA has mostly been open to industry lobbyists but not the public? Could it be because the industry and the industry controlled govt knows that the public doesn't like these laws? If these laws are really for the public, and not for the industries, then why has the ACTA negotiations mostly been closed to the public while being open to the industry?
        [ link to this | view in chronology ]
        
        Anonymous Coward, 6 Nov 2010 @ 1:32pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        and lets not forget that it was public criticisms of leaked ACTA documents that got the negotiators to change various provisions. The citizens don't want these laws, it's the industries that do.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 5 Nov 2010 @ 2:50pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re:
        "If this were the case it wouldn't be corporations pushing for these laws"
        
        I don't accept this premise.
        [ link to this | view in chronology ]
        
        Richard (profile), 5 Nov 2010 @ 3:31pm
        
        Re: Re: Re: Re: Re: Re: Re: Re:
        I don't think letting 12 people or 1 person overide the will of democratically elected representatives is a good system of government or law.
        So you don't believe in juries then - because that is the whole point of juries.
        What you are in favour of is equivalent to Stalin's show trials.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 5 Nov 2010 @ 3:46pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re:
        "So you don't believe in juries then"
        
        Not true at all.
        
        " because that is the whole point of juries."
        
        I don't believe that's true. The "whole point" of juries is not for them to make up the law as they see fit. If that's the "whole point" of juries, then there is no point to legislatures.
        
        "What you are in favour of is equivalent to Stalin's show trials."
        
        Bullshit. Let's tone the rhetoric down a bit, can we?
        [ link to this | view in chronology ]
        
        Anonymous Coward, 5 Nov 2010 @ 2:12pm
        
        Re: Re: Re: Re: Re: Re:
        If we're talking about U.S. citizens, I think you have a mistaken view of how people view IP laws.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 5 Nov 2010 @ 2:37pm
        
        Re: Re: Re: Re: Re: Re: Re:
        I disagree, most of the evidence suggests that the citizens don't want these laws and it's the corporations that push for them.
        [ link to this | view in chronology ]
    - Rekrul, 6 Nov 2010 @ 2:01am
      
      Re: Re: Re:
      Wait, juries aren't informed of jury nullification?
      
      Not only are juries not informed of the right of jury nullification, the judge and prosecuting lawyers will do everything in their power to make sure that the jury never finds out about it. Mentioning jury nullification is the fastest way to kicked off a potential jury. In fact, there have been cases where a jury member has asked for information on nullification and been replaced by one of the alternates. Judges have also declared mistrials when defense attorneys have told the jury they have the right not to follow the law if they think it's unjust.
      [ link to this | view in chronology ]
- John Doe, 5 Nov 2010 @ 10:16am
  
  Re:
  "What makes you think that?"
  
  Probably the ridiculous award.
  [ link to this | view in chronology ]
  - Anonymous Coward, 5 Nov 2010 @ 10:24am
    
    Re: Re:
    I think the jurors having a difference of opinion w/r/t the appropriateness of the award is just as likely an explanation as not thinking about it's appropriateness at all.
    [ link to this | view in chronology ]
- CommonSense (profile), 5 Nov 2010 @ 11:53am
  
  Re:
  "I know the average jury member might not be a scholar or wiz, but I don't think the instructions say that. It's totally within the instructions to award $750 per recording."
  
  Re-read the instructions. It says the normal damages can be between $750 and $30,000, but that for WILLFUL infringement (which is apparently worse), of which this is a case, the damages can be up to $150,000. Basically, just like Mike said, telling them that this type of infringement is worse than a $30,000 fine, and can have up to $150,000....so you should pick a number between the two.
  [ link to this | view in chronology ]
  - Anonymous Coward, 5 Nov 2010 @ 1:11pm
    
    Re: Re:
    Hmm, I guess it's all about the mindset of the person reading it. The initial damages between $750 and $30,000 doesn't mention anything about being willful or not. To me, the second part about willful intent just raises the upper limit to $150,000, so the range is between $750 and $150,000. I suppose though, that $62,500 still lands right in the middle of that range.
    
    I still don't get why juries don't use a bit of common sense though, and make the fine something actually reasonable, rather than bankrupting this person to death.
    [ link to this | view in chronology ]
    - Anonymous Coward, 5 Nov 2010 @ 1:28pm
      
      Re: Re: Re:
      I hope future juries do more to nullify IP laws completely on the grounds that they are unconscionable. They should comment that if congress makes these laws more reasonable (ie: shorter length and more reasonable fines) they will be more inclined to enforce them. Since the laws are obviously intended to be nefarious they shouldn't be enforced whatsoever until more reasonable laws are passed. There is no point in partly enforcing a nefarious law.
      [ link to this | view in chronology ]
    - Anonymous Coward, 5 Nov 2010 @ 2:06pm
      
      Re: Re: Re:
      This is exactly what the law and the instructions say.
      [ link to this | view in chronology ]
  - Anonymous Coward, 5 Nov 2010 @ 2:00pm
    
    Re: Re:
    "telling them that this type of infringement is worse than a $30,000 fine"
    
    Not quite. Worse than a fine between $750 and $30,000
    
    "and can have up to $150,000...."
    
    ok
    
    "so you should pick a number between the two."
    
    does not follow
    [ link to this | view in chronology ]
- bob, 5 Nov 2010 @ 1:13pm
  
  Re:
  Mike can't get his head around the fact that some people think there's something wrong with others just taking property, even if it's just digital and apparently infinite in abundance. The average person knows that something valuable takes time to create and the average person understands that most business models depend upon spreading out fixed development costs among all of the consumers.
  
  But Mike wants to believe that the juries--three of them now-- were somehow deceived by the evil RIAA. He can't bring himself to condemn the jury system itself, even though his main comrades are tenured professors in law schools who are even more divorced from economic reality. So he keeps parsing and reparsing the instructions to invent a way to blame anyone but the jury system.
  [ link to this | view in chronology ]
  - Anonymous Coward, 5 Nov 2010 @ 1:25pm
    
    Re: Re:
    Mike can't get his head around the fact that some people think there's something wrong with others just taking property, even if it's just digital and apparently infinite in abundance.
    
    [citation needed]
    [ link to this | view in chronology ]
    - Anonymous Coward, 5 Nov 2010 @ 1:49pm
      
      Re: Re: Re:
      Mike can't get his head around the fact that some people think there's something wrong with others just taking property, even if it's just digital and apparently infinite in abundance.
      [citation needed]
      Never mind a citation, while we're at it how about accuracy? Whatever you may think about the illegality of the act, the word "taking" is inaccurate. Nothing was "taken" because it is still there. It was copied
      [ link to this | view in chronology ]
  - Anonymous Coward, 5 Nov 2010 @ 1:48pm
    
    Re: Re:
    I don't think Mike has ever said or even felt that making illegal copies of music isn't wrong.
    
    From what I can tell, Mike just feels that fining someone for making copies of 24 songs a ludicrous amount is wrong. Hell, even the judges of the previous trials thought that the amount of damages is wrong.
    [ link to this | view in chronology ]
    - Jay (profile), 6 Nov 2010 @ 11:08am
      
      Re: Re: Re:
      Small correction:
      
      Making 24 copies of a song available on a network is wrong.
      
      And now, I don't think the songs or anything else really matter because the world has moved on.
      
      This is why litigation for downloading music is a poor choice in building a better revenue stream.
      [ link to this | view in chronology ]
  - Anonymous Coward, 5 Nov 2010 @ 2:08pm
    
    Re: Re:
    Yeah, a lot of excuses being made for decisions that contradict the predominantly held views on this board:
    
    "They didn't understand..."
    
    "They were misled by..."
    
    It is entirely possible that the jurors thought unauthorized file sharing is a bad thing and realized exactly what they were doing.
    [ link to this | view in chronology ]
    - jc (profile), 8 Nov 2010 @ 7:10am
      
      Re: Re: Re:
      If that's true, why $62,500? Is that number somehow special? Why is it so different from previous numbers in this case?
      
      And more importantly, if the jurors think "file sharing is a bad thing" are you saying that this amount (over $1 million) is what they consider an appropriate punishment? If the jury is supposed to be determining a punishment based on "how wrong her actions were", why do they need to be given a range in the instructions anyway?
      [ link to this | view in chronology ]
      - Anonymous Coward, 8 Nov 2010 @ 8:40am
        
        Re: Re: Re: Re:
        "If that's true, why $62,500? Is that number somehow special?"
        
        Well, it's within the range given and above the max for non willful infringement. That could be taken as an indication that the jury thought there should be extra damages for "willfulness" (as opposed to thinking that there *must* be extra damages for willfulness).
        
        "And more importantly, if the jurors think "file sharing is a bad thing" are you saying that this amount (over $1 million) is what they consider an appropriate punishment?"
        
        I think it's very hard to accurately speculate as to how the jurors got together and agreed on a number (as Mike does in his article). All I'm saying is that it's plausible that they viewed this number as appropriate.
        
        "If the jury is supposed to be determining a punishment based on "how wrong her actions were", why do they need to be given a range in the instructions anyway"
        
        The law gives a range for statutory damages awards, so the jury must be instructed on that. Could the law be changed? Sure, but that's why they were instructed that way.
        [ link to this | view in chronology ]
  - Anonymous Coward, 8 Nov 2010 @ 7:48am
    
    Re: Re: How many lives should be destroyed over one person's
    [ link to this | view in chronology ]
MrWilson, 5 Nov 2010 @ 10:18am

What I find more absurd than just the result itself is that the jury apparently came out and asked if they were allowed to take the defendant's income into account when assessing the damages and they were told that they could.

It doesn't seem like they considered her income at all, so why did they even bother to ask?
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- RikuoAmero (profile), 5 Nov 2010 @ 10:24am
  
  Re:
  Because, if she makes say 30,000 a year for the next sixty years, that'll be about 1.8 mil. Of course, there's the fact that that money will all go towards the fine, and not pay for rent/mortgate/food/essential expenditure. Hmmm, I wonder if she could argue cruel and unusual punishment, considering its a very minor act that is going to ruin her for the rest of her life?
  [ link to this | view in chronology ]
- Anonymous Coward, 5 Nov 2010 @ 10:25am
  
  Re:
  Maybe they considered it as a reason not to impose the maximum award. Who knows what goes on in the minds of jurors?
  [ link to this | view in chronology ]
  - Anonymous Coward, 5 Nov 2010 @ 11:36am
    
    Re: Re:
    "What's an internet?"
    [ link to this | view in chronology ]
- Cowardly Annon, 5 Nov 2010 @ 12:39pm
  
  Re:
  Maybe so they tell if she could afford the inevitable bankruptcy that'll follow this verdict.... :)
  [ link to this | view in chronology ]
Anonymous Coward, 5 Nov 2010 @ 10:23am

It's not about bad instructions or even bad laws - it's about bad juries. Jury duty SUCKS. NO ONE wants to do it. Anyone who does get stuck doing it doesn't care about what's actually going on in the case, they just want to get to the verdict so they can go home! Not just lawyers, but EVERYONE will tell you that you NEVER want a jury trial (unless you're actually guilty) because something like a trial is WAY to important to be left up to 12 people too stupid to get out of jury duty!
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- The Mighty Buzzard (profile), 5 Nov 2010 @ 12:14pm
  
  Re:
  And yet we encourage the same chuckleheads to vote...
  [ link to this | view in chronology ]
- Gwiz, 5 Nov 2010 @ 12:15pm
  
  Re:
  12 people too stupid to get out of jury duty!
  
  I resent that remark. I am by no means "too stupid to get out of jury duty" and have served on a jury twice in my life. The reason I have and will again because it is my civic duty to do so as a citizen of this country. I also vote in every election and have done so since I turned 18.
  
  It is my opinion that if you try to get out jury duty or fail to vote in elections than you have NO RIGHT to bitch about what the government does what so ever.
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  - Anonymous Coward, 5 Nov 2010 @ 2:10pm
    
    Re: Re:
    I'm with you. I'd love to serve on a jury, but I'd get dinged by one side or the other since I'm an attorney.
    [ link to this | view in chronology ]
  - Anonymous Coward, 6 Nov 2010 @ 12:10am
    
    Re: Re:
    Yes, because failure to vote negates a person's right to their opinion. Go ahead, try to enforce your opinion.
    [ link to this | view in chronology ]
Anonymous Coward, 5 Nov 2010 @ 10:24am

Would have been nice to mention:

1. Link is Nesson's blog at Harvard

2. Both plaintiff and defendant are involved in the process of jury instruction preparation.

3. Nesson tried to interject himself into the JRT case as an amicus, without court approval, and then proceeded to file a brief concerning jury instructions...which brief was considered and rejected by the trial judge.
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- Mike Masnick (profile), 5 Nov 2010 @ 10:46am
  
  Re:
  Would have been nice to mention:
  
  1. Link is Nesson's blog at Harvard
  
  2. Both plaintiff and defendant are involved in the process of jury instruction preparation.
  
  3. Nesson tried to interject himself into the JRT case as an amicus, without court approval, and then proceeded to file a brief concerning jury instructions...which brief was considered and rejected by the trial judge.
  
  None of which is relevant to my point. I was not saying anything about Nesson's commentary, but about the jury instructions themselves.
  [ link to this | view in chronology ]
  - Anonymous Coward, 5 Nov 2010 @ 3:49pm
    
    Re: Re:
    Nesson's blog is a reprise of his unsolicited brief, so it seems to me that mentioning his association with the link is appropriate...especially since it was rejected by the court.
    [ link to this | view in chronology ]
    - Mike Masnick (profile), 8 Nov 2010 @ 12:33am
      
      Re: Re: Re:
      Nesson's blog is a reprise of his unsolicited brief
      
      His blog may be, but this post was not.
      
      So, again, not sure the point of your complaint, other than an attempt to take away from the overall point through childish tactics of complaining about the messenger.
      
      You're better than that. Or at least, I thought you were.
      [ link to this | view in chronology ]
Karl (profile), 5 Nov 2010 @ 10:28am

What is the defense allowed?
I'm not a lawyer (obviously), so I'm a bit confused about how damage appeals work.

Is the defense allowed to present a case for lower damages? Are they allowed to cite numerous cases that require statutory damages bear some relation to the actual damages? Or those cases where high statutory damages are found to violate the Due Process clause? And are they allowed to clarify the common interpretation of "willful infringement," which involves actively undermining a competitor for commercial gain?

Or is the jury just handed instructions and whisked away to deliberate?

In any case, it just shows how much the law needs to be changed, and statutory damages reduced, at least for non-commercial infringement. Good luck getting that through Congress. My guess is this won't happen until this reaches the Supreme Court, and they rule that excessive damages like this violate Due Process.
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- Anonymous Coward, 5 Nov 2010 @ 10:32am
  
  Re: What is the defense allowed?
  "Are they allowed to cite numerous cases that require statutory damages bear some relation to the actual damages? Or those cases where high statutory damages are found to violate the Due Process clause?"
  
  I suspect this will be the bulk of the appeal.
  
  On appeal, you are allowed to challenge legal decisions made by the lower court, or factual conclusions that could not possibly have been supported by the evidence (this is a high bar and rarely works). Whether the damages violate the DPC is a legal matter, so the 8th Circuit appeals court could and likely will decide that.
  
  First, though, Thomas will likely ask the trial judge to reduce the damages on the same grounds, before any appeal.
  [ link to this | view in chronology ]
  - Karl (profile), 5 Nov 2010 @ 10:43am
    
    Re: Re: What is the defense allowed?
    On appeal, you are allowed to challenge legal decisions made by the lower court, or factual conclusions that could not possibly have been supported by the evidence
    
    On a full appeal, yes. But this was just an appeal of the damages, not the verdict. So, the appeals court could not rule that the infringement was not "willful," since that's part of the verdict. They could, however, not award the damages for willful infringement.
    
    Also, I noticed three words that were entirely missing from the jury instructions: "at your discretion." There was no real indication that the damages for willful infringement are optional. "As you consider just" doesn't really capture that meaning.
    [ link to this | view in chronology ]
    - Anonymous Coward, 5 Nov 2010 @ 10:58am
      
      Re: Re: Re: What is the defense allowed?
      I don't think any appeal has been filed yet.
      
      Regardless, limiting the issue to damages doesn't change how and whether the appellate court can consider legal v. factual issues.
      
      The appeals court can't just make their own de novo determination of what damages to award, but they can determine whether the award already given complies with the law (and reduce it accordingly if they determine it does not).
      
      The only way they could not award damages for willful infringement (I assume you mean reducing the award to $30,000 per recording or less) would be to determine that any greater award does not comply with the law, which would probably mean the Constitution in this case, since it clearly complies with the Copyright Act.
      
      I think it's highly unlikely that the appeals court would say that "as you consider just" and the rest of instructions did not make sufficiently clear to the jury that they had to ability to determine where in the $750 to $150,000 per recording range to set the damages, thought I agree that it could have been made clearer.
      [ link to this | view in chronology ]
      - Karl (profile), 5 Nov 2010 @ 12:06pm
        
        Re: Re: Re: Re: What is the defense allowed?
        I don't think any appeal has been filed yet.
        
        As I understand it, the case went to trial, the jury reached a verdict, and awarded astronomical damages. The judge reduced those damages. This case is an appeal by the plaintiffs to overturn the judge's reduction of those damages.
        
        The defendant's appeal of the original verdict has not happened (yet).
        
        Obviously there's a long road ahead, but as far as this case is concerned, it is simply an appeal of the damages.
        
        I'm guessing the road won't end until either this case or the Tanenbaum case reaches the Supreme Court. And I'm guessing that the Supreme Court will rule the damages unconstitutional, because they violate Due Process laws (consistent with the State Farm and BMW cases, among others).
        
        At least I hope so.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 5 Nov 2010 @ 12:38pm
        
        Re: Re: Re: Re: Re: What is the defense allowed?
        Not an appeal, just a retrial on damages issues (i.e., same court dealing with the matter).
        
        I guess I wouldn't be too surprised if the plaintiffs in these cases tried to avoid getting appellate rulings. They might find the statutory damages provisions unconstitutional. We'll see I guess.
        [ link to this | view in chronology ]
        
        Jay (profile), 6 Nov 2010 @ 11:45am
        
        Re: Re: Re: Re: Re: What is the defense allowed?
        Don't forget the Harper case.
        [ link to this | view in chronology ]
    - Anonymous Coward, 7 Nov 2010 @ 9:05am
      
      Re: Re: Re: What is the defense allowed?
      This was not an appeal. It was a trial on the merits.
      
      Prior findings of fact were already a part of the trial record. The only fact that remained was for the jury to perform its constitutional role, as long ago articulated by the Supreme Court, of deliberating and determining an award of damages.
      [ link to this | view in chronology ]
- Anonymous Coward, 7 Nov 2010 @ 9:02am
  
  Re: What is the defense allowed?
  The role of a jury is that of a fact finder. The questions you pose are questions of law, which under our system of law is the responsibility of the trial judge.
  [ link to this | view in chronology ]
Luiz, 5 Nov 2010 @ 10:34am

$750 per song may be the minimum amount, but a minimum of $ 18,000 per 24 songs seems kind of absurd anyway, if you consider that a 10-song CD costs less than $20.
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- Anonymous Coward, 5 Nov 2010 @ 10:39am
  
  Re:
  The problem with limiting damages to actual damages or 3x actual damages or something in a case like this is that there would be no disincentive whatsoever to infringe. On the off chance you get caught and sued you pay under $100?
  
  Statutory damages are there to provide that disincentive.
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  - B.A., 5 Nov 2010 @ 10:48am
    
    Re: Re:
    "The problem with limiting damages to actual damages or 3x actual damages or something in a case like this is that there would be no disincentive whatsoever to infringe. On the off chance you get caught and sued you pay under $100?
    
    Statutory damages are there to provide that disincentive."
    
    Let's get it right... statuatory damages are there to prop up failed business models. If they can't compete... they sue.
    
    There is NOTHING of the founder's original intent was for copyright left.... now, it's a crutch to a sick and dying industry based on works that are all based on previous material in some way.
    [ link to this | view in chronology ]
    - Anonymous Coward, 5 Nov 2010 @ 10:58am
      
      Re: Re: Re:
      "Let's get it [to comply with my worldview]"
      
      fixed that for you
      [ link to this | view in chronology ]
      - Killer_Tofu (profile), 5 Nov 2010 @ 1:24pm
        
        Re: Re: Re: Re:
        "Lets get it to comply with a majority of the citizen's worldview"
        
        FTFY
        
        Trust me, its not just his view as every single person in my generation agrees with it.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 5 Nov 2010 @ 2:11pm
        
        Re: Re: Re: Re: Re:
        [citation needed]
        [ link to this | view in chronology ]
        
        Jay (profile), 6 Nov 2010 @ 11:48am
        
        Re: Re: Re: Re: Re: Re:
        Link
        
        And when you look at Blizzard suing and "winning" 88 million dollars to send a message, you know something is wrong with statutory damages.
        [ link to this | view in chronology ]
      - Anonymous Coward, 6 Nov 2010 @ 9:22am
        
        Re: Re: Re: Re:
        So, how's that MAFIAA paycheck? Big?
        [ link to this | view in chronology ]
        
        Anonymous Coward, 8 Nov 2010 @ 8:44am
        
        Re: Re: Re: Re: Re:
        I've never represented the RIAA. I represent both plaintiffs and defendants, little guys and big guys. I know it's easier to assume people that disagree with you are currupt and swayed by $$$, but you might do well to consider the merits of their arguments anyway.
        [ link to this | view in chronology ]
  - Jaws4theRevenge (profile), 5 Nov 2010 @ 10:51am
    
    Re: Re:
    If the actual harm caused is less than $100, why does there need to be a multi-million dollar disincentive?
    [ link to this | view in chronology ]
  - Karl (profile), 5 Nov 2010 @ 10:51am
    
    Re: Re:
    Statutory damages are there to provide that disincentive.
    
    Only in part, and those punitive damages shouldn't be so large as to be unconstitutional. This was the reasoning in the Tenenbaum case.
    
    In my opinion, a more appropriate "disincentive" would be a fine along the lines of a parking ticket.
    [ link to this | view in chronology ]
    - Anonymous Coward, 5 Nov 2010 @ 11:00am
      
      Re: Re: Re:
      I doubt that the Tenenbaum case will be the last word on this issue. I really have no idea what the last word will actually say, of course.
      [ link to this | view in chronology ]
      - The Mighty Buzzard (profile), 5 Nov 2010 @ 12:20pm
        
        Re: Re: Re: Re:
        "peace."
        
        As in may the "rat-bastards rest in..."
        [ link to this | view in chronology ]
  - Mike Masnick (profile), 5 Nov 2010 @ 10:52am
    
    Re: Re:
    The problem with limiting damages to actual damages or 3x actual damages or something in a case like this is that there would be no disincentive whatsoever to infringe. On the off chance you get caught and sued you pay under $100?
    
    Really? You don't think just getting sued and having to go to court isn't disincentive?
    
    Besides, I think it's been shown that these totally ridiculous rewards that have nothing to do with actual damages haven't done anything to act as disincentives for others. The numbers are so unrealistic that people don't even consider them.
    [ link to this | view in chronology ]
    - Anonymous Coward, 5 Nov 2010 @ 11:02am
      
      Re: Re: Re:
      "Really? You don't think just getting sued and having to go to court isn't disincentive?"
      
      If the maximum damages are under $100, you don't have to go to court. Not many people would hire a lawyer and go to court to avoid paying $60. You pay up and the copyright owner doesn't even recoup the cost of the infringement letter (or whatever other method they used to track you down and inform you of the violation). So, in reality, there is no incentive whatsoever for the copyright owner to enforce their rights in that scenario.
      
      Whatever you think of copyright law in the first place, I think it's awfully hard to argue that such a damages scheme would provide a disincentive to copyright infringement.
      [ link to this | view in chronology ]
      - Mike Masnick (profile), 5 Nov 2010 @ 11:05am
        
        Re: Re: Re: Re:
        Whatever you think of copyright law in the first place, I think it's awfully hard to argue that such a damages scheme would provide a disincentive to copyright infringement.
        
        As others have pointed out, that's ridiculous. Under that theory, a parking ticket is not disincentive to parking violations. Yet, I'm careful to avoid a parking violation because I certainly don't want to pay an extra $40 for parking, even if the chance of getting caught is low.
        
        I can certainly see how $100 would be disincentive.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 5 Nov 2010 @ 11:07am
        
        Re: Re: Re: Re: Re:
        "Under that theory, a parking ticket is not disincentive to parking violations."
        
        Not so. In fact, I think parking tickets illustrate my point. I costs a handful of dollars to feed the meter, and much more than that if you get caught not feeding the meter. There is no limitation to the city's "actual damages."
        [ link to this | view in chronology ]
        
        Free Capitalist (profile), 5 Nov 2010 @ 11:33am
        
        Re: Re: Re: Re: Re: Re:
        Not so. In fact, I think parking tickets illustrate my point. I costs a handful of dollars to feed the meter, and much more than that if you get caught not feeding the meter. There is no limitation to the city's "actual damages."
        
        So you agree $100 would be an adequate disincentive for a $1 song?
        
        Thanks for clearing that up?
        [ link to this | view in chronology ]
        
        Anonymous Coward, 5 Nov 2010 @ 12:39pm
        
        Re: Re: Re: Re: Re: Re: Re:
        I do not. Hope that's clear enough.
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        Killer_Tofu (profile), 5 Nov 2010 @ 1:27pm
        
        Re: Re: Re: Re: Re: Re: Re: Re:
        You just contradicted yourself massively. Saying an award of 40 - 100X is way more than enough disincentive to avoid parking tickets, yet we need an award 750X or MORE for downloading songs? No wonder you people never log in. If you did it would be way to easy to point out your contradictions.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 5 Nov 2010 @ 2:17pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re:
        "You just contradicted yourself massively"
        
        No, I didn't.
        
        "Saying an award of 40 - 100X is way more than enough disincentive to avoid parking tickets"
        
        I did not say that.
        
        "yet we need an award 750X or MORE for downloading songs"
        
        I did not say that, either.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 6 Nov 2010 @ 12:19am
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        '"yet we need an award 750X or MORE for downloading songs"
        
        I did not say that, either.'
        
        Umm... Yeah, you did, in fact. Re:
        
        'The problem with limiting damages to actual damages or 3x actual damages or something in a case like this is that there would be no disincentive whatsoever to infringe. On the off chance you get caught and sued you pay under $100?
        
        Statutory damages are there to provide that disincentive.'
        [ link to this | view in chronology ]
        
        Anonymous Coward, 8 Nov 2010 @ 8:46am
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        Yeah, that quote says 3X damages are not enough in a case like this. It does not say damages of 750X or more are necessary.
        
        Are you actually trying to understand the difference and failing, or just trying to "catch" me, regardless of whether it makes sense?
        [ link to this | view in chronology ]
      - Gabriel Tane (profile), 5 Nov 2010 @ 11:23am
        
        Re: Re: Re: Re:
        Under $100? They would have to award less than $2/ song to get the penalty that low on 24 songs. I don't think Mike is saying to award only a few pennies per song here... just that tens of thousands per song is excessive, whatever the intentions for disincentive.
        
        And forgive me if I'm off on this next part, but does one not have to show actual damages caused by infringement? Or is just the act of infringement grounds for a suit? No sarcasm... actual question.
        [ link to this | view in chronology ]
        
        Karl (profile), 5 Nov 2010 @ 11:43am
        
        Re: Re: Re: Re: Re:
        does one not have to show actual damages caused by infringement?
        
        The copyright holders can either take actual damages, or opt for statutory damages. Obviously, in this case, they opted for statutory damages - seeing as I doubt they could prove that significant actual damages occurred.
        
        Statutory damages are not required to be related to actual damages under the letter of the law. However, there's a long case history where they're supposed to be proportional in some way. Obviously that history was ignored in this case.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 5 Nov 2010 @ 12:43pm
        
        Re: Re: Re: Re: Re:
        You don't need to show actual damages if the copyright was registered prior to infringement.
        
        Someone earlier had suggested that the cost of the songs would seem to be an appropriate measure of damages. That would be about $24, and treble damages would be $72. I don't really think that provides an adequate disincentive to infringement.
        
        In this case, I also agree that significantly less than $1.5 million would be an adequate disincentive, but allowing up to $150,000 per work is not necessarily outrageous for other cases.
        [ link to this | view in chronology ]
        
        Gabriel Tane (profile), 5 Nov 2010 @ 1:38pm
        
        Re: Re: Re: Re: Re: Re:
        Thanks for clearing up the showing of damages.
        
        "Someone earlier had suggested that the cost of the songs would seem to be an appropriate measure of damages. That would be about $24, and treble damages would be $72. I don't really think that provides an adequate disincentive to infringement."
        
        But that's STILL per song downloaded... so over $100 would be paid. Hence, you still go to court. IF going to court would be in and of itself disincentive enough, then a smaller amount WOULD serve most people.
        
        "but allowing up to $150,000 per work is not necessarily outrageous for other cases."
        
        I can see that for singular cases where someone copys a piece of painted art or the like... But digital copies of music are a bit different, in my opinion. While I agree that just being easier to make a copy does not change the fact that a copy was made, I don't think that the exact same process should be applied.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 5 Nov 2010 @ 2:22pm
        
        Re: Re: Re: Re: Re: Re: Re:
        "But that's STILL per song downloaded... so over $100 would be paid. Hence, you still go to court."
        
        Are you basing that on the number of people downloading the songs that the defendant shared? I'm not clear. Anyway, "more than $100" is definitely not a threshold for going to court or not. It's got to be a heck of a lot more on the line than that for a civil plaintiff to go to court.
        
        I think, because statutory damages are based on the number of infringed works (i.e., *not* on the number of copies made), $150,000 could even be too little in some cases.
        
        Let's say I do a design and a restaurant chain rips it off and uses it on 1,000 restaurants nationwide. Maximum statutory damages (assuming you prove willful infringement): $30,000, or $150,000 if you assume you can prove willful infringement.
        
        You can hope that you can prove some of the restaurant chain's profits are derived from the design and go after those, but that's awfully speculative, and if you don't have any money, an attorney isn't likely to take up the case on that type of speculative recovery.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 5 Nov 2010 @ 5:53pm
        
        Re: Re: Re: Re: Re: Re: Re: Re:
        "Let's say I do a design and a restaurant chain rips it off and uses it on 1,000 restaurants nationwide. "
        
        Since there is nothing unethical about copying, at best it's an unimportant law, such insignificant laws are not deserving of such huge fines. If an important law was broken I might agree. But copy protection laws aren't important enough to warrant such huge fines.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 5 Nov 2010 @ 5:55pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re:
        (heck, the law is barley important enough to exist. The founding fathers were initially very skeptical of them but eventually included them with the condition that they be very limited in nature. If these laws are barley important enough to exist, even to the founding fathers, they are certainly not important enough to warrant such huge fines).
        [ link to this | view in chronology ]
        
        Anonymous Coward, 8 Nov 2010 @ 8:50am
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re:
        I disagree with that opinion, but that's a separate argument.
        
        Assuming you want a damages system that actually deters copyright infringement (which I assume you do not, but Congress does), I think something other than actual damages should be available in at least some cases.
        [ link to this | view in chronology ]
        
        Gabriel Tane (profile), 8 Nov 2010 @ 5:33am
        
        Re: Re: Re: Re: Re: Re: Re: Re:
        "If the maximum damages are under $100, you don't have to go to court. "
        
        I was referring to this quote from your comment back in the early-30's. I guess I misunderstood what you meant.
        
        We're on the same page for the (Damages x 24 Songs) equation. I made a point elsewhere in this thread that yes, the dollars are different if you copy one work vs. copying 24 works... and my point is that they should not be treated exactly the same if one of them has an increased intrinsic ability to be copied. A painting should not treated the same as a digital work just because they are not the same based on inherent copy-ability. I'm not saying the ease of copy makes one worth less, just that they should not be treated or handled the same.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 8 Nov 2010 @ 8:51am
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re:
        I think the idea of giving a range of damages is that juries are entrusted with the task of determining, within that range, how different cases should be treated. Of course, not everyone agrees with each jury's decision.
        [ link to this | view in chronology ]
        
        Jay (profile), 6 Nov 2010 @ 11:52am
        
        Re: Re: Re: Re: Re: Re:
        Please provide an example where $150K per song will work to not be outrageous?
        [ link to this | view in chronology ]
        
        Anonymous Coward, 8 Nov 2010 @ 8:58am
        
        Re: Re: Re: Re: Re: Re: Re:
        Well, I wasn't limiting my post just to songs, but to any type of copyrightable work.
        
        But let's say I write a sweet song about how I love Fords more than Nissans.
        
        Then Nissan uses my song in a worldwide advertising campaign where they beat up on a Ford.
        
        I don't have much money, but I want to sue Nissan to get them to stop (and for damages). But (a) it's going to hard to prove actual damages, (b) it's going to be hard to prove what portion of Nissan's profits (if any) are attributable to the use of the song, and (c) my maximum possible statutory damages are $150,000 (assuming willfulness is proven).
        
        I'm going to have a real hard time finding a decent attorney to take the case on contingency, and I can't afford paying a billable rate.
        
        Even if I get one, Nissan may find it cheaper to infringe and *possibly* pay $150,000 than to get permission (which I would not give, since I love Fords so much).
        [ link to this | view in chronology ]
      - Anonymous Coward, 5 Nov 2010 @ 3:12pm
        
        Re: Re: Re: Re:
        I don't think that is bad at all, the courts are a poor replacement for good old talking out the issues.
        
        The courts should not be about money but justice and the more easy you make for some and not others to file something is just not justice at all. Maybe the courts could use a multiplier to charge people with money to spare to make it equitable to the pain on the other side, so if somebody needs to expend 50% of their income to go to court the otherside should be charged the equivalent and that money should go to improve the court system of course LoL
        
        But that ain't happening the justice system is not about justice is about the appearance of justice.
        [ link to this | view in chronology ]
      - Richard (profile), 5 Nov 2010 @ 3:43pm
        
        Re: Re: Re: Re:
        I think it's awfully hard to argue that such a damages scheme would provide a disincentive to copyright infringement.
        
        Reality is that there is no possible scheme that provides an effective disincentive to copyright infringement.
        
        Given this fact it is clear to me that everyone involved in persecuting the likes of Thomas, Tenenbaum etc is morally bankrupt...
        [ link to this | view in chronology ]
    - Anonymous Coward, 5 Nov 2010 @ 11:03am
      
      More than not acting as a disincentive
      I think these excessive damages do more than just not being a disincentive. I have already seen in several places comments where people say they are going to pirate more because of these excessive damages.
      [ link to this | view in chronology ]
      - The Mighty Buzzard (profile), 5 Nov 2010 @ 12:24pm
        
        Re: More than not acting as a disincentive
        One million or five million doesn't matter. If you can't afford to ever possibly pay either, why not just share everything you can get your hands on?
        [ link to this | view in chronology ]
  - Anonymous Coward, 5 Nov 2010 @ 10:52am
    
    Re: Re:
    So that's why everyone recently stopped pirating!
    [ link to this | view in chronology ]
    - Anonymous Coward, 5 Nov 2010 @ 11:03am
      
      Re: Re: Re:
      What? I'm not sure what point you're trying to make there.
      [ link to this | view in chronology ]
      - Karl (profile), 5 Nov 2010 @ 11:09am
        
        Re: Re: Re: Re:
        I'm not sure what point you're trying to make there.
        
        That excessive punitive damages utterly fail as a disincentive.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 5 Nov 2010 @ 11:13am
        
        Re: Re: Re: Re: Re:
        If perfection were the measure of success, that might make sense. But using perfection as the measure of success does not make sense.
        
        In other words, statutory damages don't have to stop everyone from all infringement always to actually act as a disincentive, just like parking and speeding tickets haven't resulted in everyone always obeying all parking and speeding laws.
        [ link to this | view in chronology ]
        
        Karl (profile), 5 Nov 2010 @ 11:36am
        
        Re: Re: Re: Re: Re: Re:
        just like parking and speeding tickets haven't resulted in everyone always obeying all parking and speeding laws.
        
        If you passed parking and speeding laws, and more people started parking illegally and speeding, then I'd question whether those laws acted as a disincentive at all.
        
        Punitive awards for copyright infringement have been in the public eye for many years now, but unlawful file sharing has increased. In fact, after the awards are announced, the amount of P2P traffic usually goes up.
        
        There are other reasons for statutory awards, of course, like reimbursing the copyright holders for tracking down infringers and for legal fees, or because of the difficulty in determining actual damages. But as a disincentive for infringement, they are an utter failure.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 5 Nov 2010 @ 12:46pm
        
        Re: Re: Re: Re: Re: Re: Re:
        "If you passed parking and speeding laws, and more people started parking illegally and speeding, then I'd question whether those laws acted as a disincentive at all."
        
        I'm pretty sure more people violate parking and speeding laws now than when they were first instituted, because there are more people that own more cars. Absolute numbers are a poor measure of effectiveness.
        
        Similarly, more people have access to faster internet connections and bigger hard drives than, say, 1995, so an absolute increase in infringement/file sharing doesn't say much about the effectiveness of the incentive here (aside from the fact that the incentive has not undergone any change in that time).
        [ link to this | view in chronology ]
        
        Karl (profile), 5 Nov 2010 @ 3:58pm
        
        Re: Re: Re: Re: Re: Re: Re: Re:
        there are more people that own more cars. Absolute numbers are a poor measure of effectiveness.
        
        File sharing has been on the rise, even in areas where broadband speeds have been the same. There is not a single demographic where file sharing has decreased.
        
        And as far as "absolute numbers," let's talk relative numbers. The percentage of people who own cars, and who also violate parking and speeding laws, goes down when those laws are enforced.
        
        Now consider the computer users with broadband access, and the relative percentage of those users who engage in unlawful file sharing. Has that percentage increased, or decreased?
        
        Answer: It's increased. A higher percentage of people with broadband access engage in unlawful file sharing - even when laws become more draconian. For example: file sharing in France has increased, despite the HADOPI law.
        
        So: perhaps absolute numbers are not the best indicator of a disincentive. But I've yet to see any numbers that indicate that.
        [ link to this | view in chronology ]
  - dev, 5 Nov 2010 @ 10:55am
    
    Re: Re:
    The problem with $1.5 million dollars is that she will never be able to afford it. If (as an example) she had instead stolen these cds from a store in texas and was caught the fine would be the following:
    
    Theft Amount: $50 or more but less than $500
    Classification: Class B misdemeanor
    Penalties: Not more than 180 days in a county jail and/or a fine of not more than $2,000
    
    from http://www.mytexasdefenselawyer.com/texas-criminal-laws-penalties/theft/
    [ link to this | view in chronology ]
    - Karl (profile), 5 Nov 2010 @ 11:03am
      
      Re: Re: Re:
      Penalties: Not more than 180 days in a county jail and/or a fine of not more than $2,000
      
      Yeah, there's your "disincentive" for you.
      
      Here's the lesson you should learn, everyone. If you want music for free, you shouldn't download it. You should walk into a store and steal it.
      [ link to this | view in chronology ]
      - CommonSense (profile), 5 Nov 2010 @ 12:05pm
        
        Re: Re: Re: Re:
        Except that the risk of getting caught is greater if you actually grab physical goods, because someone will notice them missing. If you are simply copying digital bytes, the chances of getting caught are less...
        [ link to this | view in chronology ]
        
        The Mighty Buzzard (profile), 5 Nov 2010 @ 12:28pm
        
        Re: Re: Re: Re: Re:
        So, steal your neighbors' harddrives full of music, movies, and disturbing tentacle porn while they're at work then?
        [ link to this | view in chronology ]
    - Anonymous Coward, 5 Nov 2010 @ 11:05am
      
      Re: Re: Re:
      Not sure if Minnesota penalties are the same, but you're points are valid.
      
      The plaintiff is certainly not going to fully recover on the ultimate judgment.
      
      But, they are likely going to try to use such a judgment as a disincentive to others.
      [ link to this | view in chronology ]
      - Richard (profile), 5 Nov 2010 @ 3:50pm
        
        Re: Re: Re: Re:
        You make no sense.
        How is a threat that will never be carried out because it cannot be carried out a threat?
        
        Also, by definition the number of people who will ever be subject to such an award is so small that, frankly you are more likely to be struck by lightning.
        
        Rational people will calculate the odds and ignore the whole thing.
        [ link to this | view in chronology ]
        
        jc (profile), 8 Nov 2010 @ 7:24am
        
        Re: Re: Re: Re: Re:
        STOP DOWNLOADING ... or we're gonna black out the sun.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 8 Nov 2010 @ 9:02am
        
        Re: Re: Re: Re: Re:
        I think I'm making sense, but I don't understand your post.
        
        First, I'm saying the RIAA will likely try to use the judgment as a disincentive. Whether or not this will be effective is another thing altogether.
        
        Second, even though the plaintiff won't *fully* recover, the threat of a plaintiff recovering *as much as you've got* is a significant threat.
        
        Third, you're right that these awards are very rare. But not everyone has a rational reaction to such things. And getting some sort of letter or whatever is much more common (though still rare), and this type of award will likely increase compliance with those letters.
        [ link to this | view in chronology ]
      - Jay (profile), 6 Nov 2010 @ 12:20pm
        
        Re: Re: Re: Re:
        It's like saying the death penalty is a threat when it's far more likely for someone to be killed on the streets...
        
        It's not really a threat, merely words at this point. The large amounts are disincentives if file sharing continues to proliferate in newer forms.
        
        Has suing Napster out of existence stopped music from being shared? How about going after Rapidshare?
        
        What I find sad about this argument is that going after all of these places has only proven how ineffective this whack a mole game continues to be.
        [ link to this | view in chronology ]
  - JEDIDIAH, 5 Nov 2010 @ 10:55am
    
    Re: Re:
    Tort reform for the rich. Crime and punishment for the poor.
    
    This is what this case ultimately boils down to. Entities that actually can pay punitive damages will be absolved of responsibility for their actions while individuals are ruined over trivial matters.
    
    People don't get this kind of money for wrongful death settlements.
    
    Yet the Music Industry gets this much over what amounts to a single "moldy oldies" record.
    
    The girl would have gotten off easier if she went on a shoplifting spree at Virgin Megastore and shared the spoils with all of her friends.
    [ link to this | view in chronology ]
    - Anonymous Coward, 5 Nov 2010 @ 11:11am
      
      Re: Re: Re:
      Actually, I think Ms. Thomas might end up the beneficiary of some of the judicially mandated "tort reform" of the last decade or so. Mostly conservative judges have tried to reign in jury awards, and that law may be applied here.
      
      "People don't get this kind of money for wrongful death settlements"
      
      Sure they do.
      [ link to this | view in chronology ]
  - Cowardly Annon, 5 Nov 2010 @ 12:50pm
    
    Re: Re:
    You know, I'd almost agree with you if it served as a deterrent at all.
    
    Looking at how these lawsuits pay out, it seems as though copyright infringement is the worst crime on the planet. Actually stealing a physical CD will result in less charges and payout than downloading the track from a CD.
    
    It is insane, and it isn't deterring anyone from downloading.
    [ link to this | view in chronology ]
  - Anonymous Coward, 5 Nov 2010 @ 1:40pm
    
    Re: Re:
    "Statutory damages are there to provide that disincentive."
    
    I think no such disincentive to copying should exist. It is my natural right to copy whatever I please and, if anything, there should be disincentive to those who try and prevent me from copying. You don't like it no one is forcing you to work, but others will work and produce music and art and content perfectly fine without you.
    
    The fact that copy"right" is a privilege alone warrants the destruction of such absurd disincentives. Such privileges that impede my natural right to copy whatever I please deserve no such absurd disincentives. Violation of such frivolous laws are not deserving of such ridiculous disincentives because the enforcement of these trivial laws is not important enough to warrant such disincentives.
    [ link to this | view in chronology ]
    - Anonymous Coward, 5 Nov 2010 @ 1:45pm
      
      Re: Re: Re:
      To me, it's like imposing a $40K fine for every time someone spat on the grass. Who cares? Copying is a perfectly natural human activity and there is absolutely nothing unethical about it. Even the founding fathers agree here. and it's not like these laws do anything to promote the progress anyways.
      [ link to this | view in chronology ]
    - Anonymous Coward, 5 Nov 2010 @ 3:49pm
      
      Re: Re: Re:
      I think that's a different argument (and one that I'm sure several commenters will support you on).
      [ link to this | view in chronology ]
      - Karl (profile), 5 Nov 2010 @ 4:17pm
        
        Re: Re: Re: Re:
        I think that's a different argument (and one that I'm sure several commenters will support you on).
        
        Anyone who knows the purpose of copyright law will support him. Everyone agrees that making a copy of your possessions is a property right; and since those "possessions" are expressions, it's also a fundamental free speech right.
        
        Still, that doesn't mean that copyright is invalid. It's a deal between artists and the public: "Hey, release your work to us, and we'll give up our right to sell it."
        
        That was the deal, and that's as far as it should go. No sale = no broken deal. That's why non-commercial copying should be legal. Of course, there's a difference between "should" and "is."
        
        Still, even if you believe it shouldn't be legal, nobody in their right minds thinks a million-dollar verdict is fair. Before you say "the jury did," keep in mind that they were instructed to follow the law, even if they thought the law was unfair. If the jury's instructions were "award whatever damages you think are reasonable," do you think they would have come back with $1.5 million? I don't.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 8 Nov 2010 @ 9:06am
        
        Re: Re: Re: Re: Re:
        "Anyone who knows the purpose of copyright law will support him. Everyone agrees that making a copy of your possessions is a property right;"
        
        If you discuss these issues outside of Techdirt, I think you'll find that *not* everyone agrees with those positions.
        
        "they were instructed to follow the law, even if they thought the law was unfair."
        
        And these instructions gave them the option of awarding $750 per song. They obviously didn't do that.
        [ link to this | view in chronology ]
  - Anonymous Coward, 5 Nov 2010 @ 3:04pm
    
    Re: Re:
    You see, I don't think this law was well thought at all.
    A million dollars for mother of 3(or 2) that makes $50 thousand a year is 60 thousand percent of her revenues so the incentive is big there, now for a big company that would be like 0.01 percent of their revenue were is the incentive not to infringe?
    
    If the law was fair it would be based on percentages of income to cause the same pain/incentive at all levels.
    
    This is not what happens today.
    [ link to this | view in chronology ]
  - hxa7241, 6 Nov 2010 @ 10:48am
    
    Re: Re:
    The instrumental disincentive is more a product of two things: size of penalty, and likelihood of being caught. But furthermore, any law relies fundamentally on each person's natural moral disinclination to the proscribed act.
    
    And so there we have the real problem of this law. It is not the size of the penalty that is real the insufficiency. It is the lack of the other two. We cannot enforce it practically, and neither should we truly want to.
    [ link to this | view in chronology ]
Pangolin (profile), 5 Nov 2010 @ 10:46am

Nullification
This is why jurors should be educated about nullification.

This jury could have come back with an award of $.01 per song. Nullifying the bad law.

Too bad they didn't know about nullification.
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- Neil (SM), 5 Nov 2010 @ 11:35am
  
  Re: Nullification
  No, Jurors are not going to be educated about nullification. Jury nullification is not considered a valid option in the eyes of the court -- encouraging it is prohibited.
  [ link to this | view in chronology ]
Josef Anvil (profile), 5 Nov 2010 @ 10:52am

Not sure about Mike's conclusion
I read the instructions and they do not imply a number between $30,000 - $150,000. All those instructions say is that because the act of infringement was willful the maximum compensation can be higher than $30k per song, but not exceeding $150k. The minimum of $750 is still an option.

With that said, I can understand $750 per song, simply because of the nature of sharing a song via P2P. Is it possible that sharing that song led to a loss of $750? Sure its possible, not very likely, but definitely possible.

Even if the defendant was a complete jerk and willfully infringed it would make sense for the jury to choose a number between $750 -$1000 per song just to teach her a lesson, but anything more is just crazy.

I wonder if the jury would be so quick to choose $62.5k if one of the RIAA lawyers were to suggest that all of their computer hard drives were going to be searched for shared files.
[ link to this | view in chronology ]
- JEDIDIAH, 5 Nov 2010 @ 10:57am
  
  Re: Not sure about Mike's conclusion
  I attribute this award to general vindictiveness and a lack of mathematical understanding. Jury awards have been inflated bofore based on nothing more than ignorant jurors adding too many zeros.
  
  Most people simply don't know what 1.5 million dollars means.
  [ link to this | view in chronology ]
- Mike Masnick (profile), 5 Nov 2010 @ 11:02am
  
  Re: Not sure about Mike's conclusion
  I read the instructions and they do not imply a number between $30,000 - $150,000. All those instructions say is that because the act of infringement was willful the maximum compensation can be higher than $30k per song, but not exceeding $150k. The minimum of $750 is still an option.
  
  That's true, but if you're sitting in the jury and you're not familiar with these things, my point was that the *implication* is that if it's willful -- and it is -- you should go higher than $30k.
  [ link to this | view in chronology ]
  - Anonymous Coward, 5 Nov 2010 @ 11:16am
    
    Re: Re: Not sure about Mike's conclusion
    I disagree with a lot of what you say, including in this post, but I think I (somewhat) agree with you here.
    
    I wouldn't call it an implication, but I could see jurors taking $30,000+ as a starting point based on those instructions.
    
    I'd certainly try to get some other language in there if I were representing the defendant.
    [ link to this | view in chronology ]
    - Anonymous Coward, 5 Nov 2010 @ 11:17am
      
      Re: Re: Re: Not sure about Mike's conclusion
      meant to say "in this post" (i.e., referring to comments related to this article)
      [ link to this | view in chronology ]
- Free Capitalist (profile), 5 Nov 2010 @ 11:07am
  
  Re: Not sure about Mike's conclusion
  I wonder if the jury would be so quick to choose $62.5k if one of the RIAA lawyers were to suggest that all of their computer hard drives were going to be searched for shared files.
  
  No, they don't do anything wrong so no one can use their computer, hack their wireless or spoof their IP address. They have nothing to hide but their blood sugar levels.
  [ link to this | view in chronology ]
- Anonymous Coward, 5 Nov 2010 @ 12:11pm
  
  Re: Not sure about Mike's conclusion
  There's no claim that the judge said anything significantly false. The point is that the jury's choice would likely have somewhat different if the instructions had instead been:
  
  determined that the defendant's infringement of plaintiffs' copyrights was willful. In this case, each plaintiff has elected to recover "statutory damages" instead of actual damages and profits. A copyright holder may recover statutory damages even if it did not submit evidence regarding actual damages.
  
  Under the Copyright Act, in the event of willful infringement each plaintiff is entitled to a sum of not less than $750 or more than $150,000 per act of infringement (that is, per sound recording distributed without license).
  
  As a result, your sole responsibility is to determine the amount of damages (between $750 and $150,000) to be awarded to the plaintiffs for the defendant's willful infringement of the plaintiffs' copyrights, as you find just based on the severity of the infringement.
  
  I suspect in this case, the jury still wouldn't have picked anything close to the minimum. On the other hand, if the judge had further given examples of the sorts of actions that would likewise be considered single acts of willful infringement under the same law, I imagine the jury would have been far more likely to pick something very close to the minimum.
  
  If the law says only that damages should be in a certain range, I don't see how a jury could possibly be expected to come up with a reasonable number in that range (given that they've been specifically told it has nothing to do with actual harm) without also knowing what sorts of acts (from the least severe to the most) are covered by the same law. For crimes like, say, murder I suspect jurors would know this without being told, but for willful copyright infringement, that's surely not the case.
  [ link to this | view in chronology ]
  - Karl (profile), 5 Nov 2010 @ 12:35pm
    
    Re: Re: Not sure about Mike's conclusion
    the jury's choice would likely have somewhat different if the instructions had instead been
    
    Even adding "at your discretion" after every instance of "entitled" would have been a whole lot better.
    [ link to this | view in chronology ]
Luc Boardwalk, 5 Nov 2010 @ 11:03am

I'm sure!
Well, I'm sure that a significant portion of the jury award goes to compensate musicians for the income they lost because of piracy, right?

Right?

Wait, what's so funny?
[ link to this | view in chronology ]
kenb (profile), 5 Nov 2010 @ 11:12am

Ridiculous
Why is it that no one slams home the fact that the retail value of the "stolen" 24 songs is less than $24.

$24!!
[ link to this | view in chronology ]
- Anonymous Coward, 5 Nov 2010 @ 2:38pm
  
  Re: Ridiculous
  well they might get their percentage of the $24 that'd be about $2.88.
  [ link to this | view in chronology ]
TDR, 5 Nov 2010 @ 11:41am

Too bad there's yet to be a reenactment in this case of "12 Angry Men," with the one ethical jurist convincing the rest to throw out the whole case entirely.
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Chris in Utah (profile), 5 Nov 2010 @ 12:13pm

Jury nullification is a de facto and traditional power of juries. Judges rarely inform juries of their nullification power.

If I ever find myself on one of these juries....
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Anonymous Coward, 5 Nov 2010 @ 12:18pm

at first I though it was like they had taken 150K added the 30K and the 750 togethere and divided by 3, but no it's (150K +30K +7500) /3
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Anonymous Coward, 5 Nov 2010 @ 12:38pm

Question: Who would pass a nonsensical law?
Answer: http://en.wikipedia.org/wiki/Margarine#United_States

Yellow margarine still gets made, because those laws are stupid. Libraries still have copy machines for copying pages from books, because copyright law is stupid.
Big corporations have been buying arbitrary laws into effect to increase their profits for over a century now, and the end result is nonsensical laws that people end up ignoring.
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Anonymous Coward, 5 Nov 2010 @ 12:43pm

They should not have picked a jury trial. A judge by himself would be more educated in awarding proper punishment.
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- Anonymous Coward, 5 Nov 2010 @ 1:06pm
  
  Re:
  hindsight is always 20/20. If a judge nailed them, I'm sure some people would say a jury would be more understanding.
  [ link to this | view in chronology ]
btrussell (profile), 5 Nov 2010 @ 4:17pm

They should be going after original uploader.

When I download a Linux distro via torrent, it starts sharing back immediately before I have finished downloading and I don't even know what I have downloaded yet.

If everyone knew what they were downloading, we wouldn't have the problems with viruses, spyware, etc...
[ link to this | view in chronology ]
Jakub Kowalski, 5 Nov 2010 @ 5:43pm

Per song or per album?
"sum of up to $150,000 per act of infringement (that is, per sound recording downloaded or distributed without license)"

If you share whole album as one file is it one sound recording or many?
Especially if it's concert album which is just one long recording. It can have many tracks, but there are only pointers to different parts of this one recording. Like book chapters.

BTW German courts have more common sense
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Rekrul, 6 Nov 2010 @ 2:09am

People are saying that the jury simply didn't understand that they could award damages as low as $750 per act. If that's true and they thought they had to award between $30,000 and $150,000, why didn't they award $30,000? Why did they award more than twice that?

I think the simplest explanation is that the jury didn't feel any inclination to go lower.
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Gene Cavanaugh, 6 Nov 2010 @ 5:03pm

Jammie Thomas
I'd love to see a community movement (Insight Community?) in opposition to such horrible abuses of the law.
I would like to see copyright abolished, but failing that, perhaps we could overcome the wealthy with strength of numbers and get the law changed.
[ link to this | view in chronology ]
Anonymous Coward, 6 Nov 2010 @ 11:40pm

A simple answer
People should be more aware of paying artists directly, and artists should make it easy to pay them.
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McBeese, 7 Nov 2010 @ 9:46am

The Law is the Law (even if it's Copyright Law)
Wow, so much energy spent on debating what is fair punishment for a lawbreaker.

Were the laws in place before JT decided to break them? Yes. Were the award guidelines if found guilty in place before she decided to break the law? Yes. Did JT knowingly and willfully break the law anyway? Yes. Have the award amounts been determined by a jury of JT's peers? Yes. Did JTs peers choose the minimum possible award? No, not in any of the three instances.

Most Americans choose not to break the law, believe it or not. I'm sure this limits the amount of sympathy towards those that willfully break the law. The American spirit includes personal responsibility and accountability, in my opinion.

Regardless of the instructions to the jury, they didn't (in any instance) choose the minimum penalty. If they felt the awards were over-the-top, I believe they could have and would have done so.

If the majority of Americans felt that the copyright laws were bad, the laws would be changed. That's how things work around here. Only a small portion of Americans actually engage in file sharing and think it's ok, so don't get your hopes up anytime soon. Especially since music streaming is gaining momentum relative to file purchases and sharing, and non-networked devices are becoming rarer. Yes, there will always be audiophiles who will maintain libraries of personal content for reasons of sound quality, but these people aren't typically those who acquire their content from torrents.
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- Rekrul, 7 Nov 2010 @ 10:32am
  
  Re: The Law is the Law (even if it's Copyright Law)
  If the majority of Americans felt that the copyright laws were bad, the laws would be changed. That's how things work around here. Only a small portion of Americans actually engage in file sharing and think it's ok, so don't get your hopes up anytime soon.
  
  Here's a challenge for you; Go up to any person you know, who doesn't work in the music or movie industry, and offer them free copies of any song, TV show or movie that they want. Make it clear that it's not legal, but that there will absolutely no risk to them. See how many turn you down because of moral objections.
  
  Post back here when you manage to find such a person.
  
  Especially since music streaming is gaining momentum relative to file purchases and sharing, and non-networked devices are becoming rarer.
  
  Streaming sites aren't exactly legal either. How does your theory of most Americans supporting copyright laws account for that?
  
  Streaming sites are crappy anyway. Any title you search for turns up a dozen knockoffs, remixes and concert versions. Search for something obscure and you get stuff not even related to what you wanted. Streaming sites are good for average users who are usually too dumb to find and download a permanent copy of what they want.
  
  Also, that may be fine for music, but what about movies and TV shows? Most disappear from streaming sites within a month or two. All the people relying on streaming are in for a surprise when they decide they want to re-watch a movie or show a couple years down the road.
  [ link to this | view in chronology ]
- Jay (profile), 7 Nov 2010 @ 11:33pm
  
  Re: The Law is the Law (even if it's Copyright Law)
  For the love of all that is holy, just because a law is on the record books does NOT automatically make it just!
  
  First I'm absolutely astounded that anyone truly believes that just because it's "the law" it should be followed that she shouldn't use a filesharing network in the safety of her home for 24 songs that aren't harming the market, nor harming the other forms of revenue that these artists + their labels make.
  
  And no, please stop deluding yourself. It's not a "small amount" that you can count on the back of your hand. It's a number in the millions. It's not just Americans that do it. It's also other countries with wireless access.
  
  When P2P was popular, she was one of the few that stood up to the bully that was the RIAA that took millions from people in exchange for some kind of solvency.
  
  And no, after dealing with the DMCA for 10 years, it's downright difficult to influencs law to be back to the consumer side.
  [ link to this | view in chronology ]
- Karl (profile), 8 Nov 2010 @ 4:43am
  
  Re: The Law is the Law (even if it's Copyright Law)
  Wow, so much energy spent on debating what is fair punishment for a lawbreaker.
  
  The punishment for making a digital copy of a song, is up to 7500% worse than stealing a physical copy of that same song. Despite the fact that the former is not a criminal act, and the latter is.
  
  When that's the situation, it's entirely apropos to ask whether the law is fair.
  
  Did JT knowingly and willfully break the law anyway? Yes.
  
  It's pretty obvious that she didn't know what the penalties were. That's no excuse, obviously, but when a punishment is far out of proportion to common sense, the law should be changed. And her opinion of the damages if caught, though inaccurate, are certainly within common sense.
  
  Have the award amounts been determined by a jury of JT's peers? Yes.
  
  No, the award amounts are determined by copyright law. The jury was following what they thought the law said, but that doesn't mean they actually agree with the award.
  
  In fact, that's the point of the article. The way the jury instructions were worded, it's implied that damages should be between the maximum amount for non-willful infringment ($30K) and the maximum amount for willful infringement ($150K). There was no implication that $750 was an option; and no indication that statutory damages should relate to actual damages.
  
  If the majority of Americans felt that the copyright laws were bad, the laws would be changed.
  
  The reason the laws aren't changed is because they're passed without public input or debate, by Congressmen (and - ahem - vice-presidents) who deliberately ignore any opinion that doesn't come from an old-media industry insider.
  
  No, if the majority of Americans felt that copyright laws were bad, they would break those laws. And they do, and are.
  
  Only a small portion of Americans actually engage in file sharing and think it's ok
  
  Yeah, good luck believing that. Nearly every American with a computer engages in unlawful file sharing at some point in their lives. More and more of them are believing that it's perfectly OK to do so.
  
  For example, in a recent Ofcom survey, more British teenagers (44%) believe file sharing should be legal than believe it should be illegal (38%). And in a Canadian study by Angus Reid Strategies, 45% of respondents believe file sharers are "just regular Internet users doing what people should be able to do on the Internet;" 27% believe these people are "doing something they shouldn�t be doing" but say "it�s not a big deal;" and only 3% believe file-sharers "are criminals who should be punished by law."
  
  Of course, you don't need to believe that unlawful file sharing is OK to believe that these damages are outrageous. According to a survey by FindLaw, 56% of them think the RIAA should not sue infringers at all. Even most artists don't believe the lawsuits are justified: a survey by Pew Research Center showed that 60% of artists oppose the RIAA lawsuits, with only 5% believing that file sharing actively hurt their careers.
  
  So: the majority of people, around the world, think you're wrong.
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- Anonymous Coward, 8 Nov 2010 @ 9:13am
  
  Re: The Law is the Law (even if it's Copyright Law)
  This is way too simplistic.
  
  It's perfectly legitimate to question whether laws and punishments are just, even if they are are legal/enacted. The fact that a law exists before it is broken doesn't mean that it's just to hand out whatever punishment it proscribes (even if it is legally required).
  
  I don't have all that much sympathy with Ms. Thomas (mainly because she had the option of settling for a lot less and she and her attorneys are forcing the plaintiff to spent as much money on the suit as possible), but that doesn't mean we shouldn't question how she is treated.
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Anonymous Coward, 8 Nov 2010 @ 8:03am

How many people would create things if they knew that every item created could potentially ruin thousands of people's lives?
Would you create a song if you knew it would force 10 people to become bankrupt?

Would you write a play if you knew that it would be used to financially decimate 20 Mothers?

Would you film a movie if you knew that it would be used to ruin 50 college students futures?

Aren't the 'disincentives' a little (Ok... WAY THE HELL) out of proportion to the 'incentives' we are giving the 'creators'? The incentive to create is that you will get to ruin people's lives in the future... sounds like we are attracting the right kind of 'creative' crowd doesn't it.

Some of the most 'creative' people on the planet are lawyers, I think the only thing copyright is doing is educating a new crop of lawyers on the 'new and creative' ways to ruin people's lives.

As a small example of how 'creative' lawyers can be, someone says something bad about someone else, this can be:
1. Libel if it is written on paper.
2. Slander if it is verbal.
3. Parody if it's in a movie.
4. Protected speech if it's thru an approved whistleblower format.
5. An act of Terrorism if it's posted to wikileaks.
6. An act of Patriotism if it's posted to wikileaks (see what I did there... it's all about which side of the "Fence" you are on).
7. Bullying if it's in the schoolyard.
8. Gossip if it's on TMZ.
9. A roast if it's done by Bob Sagat...
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