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
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.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.
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.
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Filed Under: framing, jammie thomas, juries, statutory damages
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Who would pass a nonsensical law?
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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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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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Probably the ridiculous award.
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It doesn't seem like they considered her income at all, so why did they even bother to ask?
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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.
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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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What is the defense allowed?
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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Re: What is the defense allowed?
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.
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Statutory damages are there to provide that disincentive.
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Re: Re: What is the defense allowed?
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.
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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.
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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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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.
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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.
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Not sure about Mike's conclusion
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.
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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.
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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/
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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.
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Re: Not sure about Mike's conclusion
Most people simply don't know what 1.5 million dollars means.
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Re: Re: Re: What is the defense allowed?
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.
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fixed that for you
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Re: Not sure about Mike's conclusion
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.
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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.
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More than not acting as a disincentive
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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.
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I'm sure!
Right?
Wait, what's so funny?
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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.
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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.
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Re: Not sure about Mike's conclusion
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.
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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."
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That excessive punitive damages utterly fail as a disincentive.
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"People don't get this kind of money for wrongful death settlements"
Sure they do.
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Ridiculous
$24!!
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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.
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Re: Re: Not sure about Mike's conclusion
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.
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Re: Re: Re: Not sure about Mike's conclusion
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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.
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So you agree $100 would be an adequate disincentive for a $1 song?
Thanks for clearing that up?
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Re: Nullification
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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.
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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.
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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.
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Re: Re: Re: Re: What is the defense allowed?
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.
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Re: Not sure about Mike's conclusion
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.
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If I ever find myself on one of these juries....
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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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As in may the "rat-bastards rest in..."
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Re: More than not acting as a disincentive
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Re: Re: Not sure about Mike's conclusion
Even adding "at your discretion" after every instance of "entitled" would have been a whole lot better.
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Re: Re: Re: Re: Re: What is the defense allowed?
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.
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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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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.
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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).
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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.
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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.
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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.
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FTFY
Trust me, its not just his view as every single person in my generation agrees with it.
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[citation needed]
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"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.
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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.
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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.
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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.
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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
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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.
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"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.
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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.
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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.
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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.
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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.
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If juries really are representative then you should have no problems with it.
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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).
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Re: Ridiculous
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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.
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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.
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I don't accept this premise.
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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.
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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.
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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.
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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.
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I think your evidence is crap.
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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.
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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.
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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)
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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.
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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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I concede that I haven't given any evidence for my position either.
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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...
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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?
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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.
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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.
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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...
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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.
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I never said they're against IP laws entirely, just that the way they currently are would be largely repealed.
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Per song or per album?
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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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.
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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.'
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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.
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I think the simplest explanation is that the jury didn't feel any inclination to go lower.
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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.
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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.
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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.
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And when you look at Blizzard suing and "winning" 88 million dollars to send a message, you know something is wrong with statutory damages.
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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.
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Jammie Thomas
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.
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A simple answer
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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.
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The Law is the Law (even if it's Copyright Law)
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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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.
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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.
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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.
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Re: The Law is the Law (even if it's Copyright Law)
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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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.
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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?
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How many people would create things if they knew that every item created could potentially ruin thousands of people's lives?
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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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.
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Are you actually trying to understand the difference and failing, or just trying to "catch" me, regardless of whether it makes sense?
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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.
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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).
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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.
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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.
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Re: The Law is the Law (even if it's Copyright Law)
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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