Judge Decreases Amount Jammie Thomas Owes For File Sharing Again (Yes, Again); Says It's Appalling
from the do-we-get-to-do-it-a-fourth-time? dept
Check out Judge Michael Davis. After the second Jammie Thomas-Rasset case had a jury return an award of $1.92 million for her sharing of 24 songs, the judge reduced the award from $80,000 per song to three times the statutory minimum of $2,250 per song. Of course, this resulted in a wild freakout by the RIAA... and a third trial. In the third trial (just on the award amount), the jury went with $62,500 per song shared, or $1.5 million total. Considering the massive freakout last time, you might think that Judge Davis would just be done with this, but instead, he's sticking to his guns, once again reducing the award to the same $2,250 per song. This really makes it the third time he's overturned the jury (though, the first time was because he felt he gave improper jury instructions).Of course, the RIAA will once again freak out and this will be appealed. The judge's ruling, though, is well worth reading, calling the jury award of $1.5 million "appalling":
The Court concludes that an award of $1.5 million for stealing and distributing 24 songs for personal use is appalling. Such an award is so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable. In this particular case, involving a first-time willful, consumer infringer of limited means who committed illegal song file-sharing for her own personal use, an award of $2,250 per song, for a total award of $54,000, is the maximum award consistent with due process.He notes that, given the past experiences with this dispute, he's "loath" to do this again, but "the Constitution and justice compel the Court to act."
This reduced award is punitive and substantial. It acts as a potent deterrent. It is a higher award than the Court might have chosen to impose in its sole discretion, but the decision was not for this Court to make. The Court has merely reduced the jurys award to the maximum amount permitted under our Constitution.
Judge Davis is clearly aware that the RIAA would freak out about this, and lays out, in great detail, his arguments for why the original awards are unconstitutional (as a violation of due process) and why the maximum fine he believes is allowed under the Constitution would be the $2,250 per song he changed the award to.
The RIAA, of course, will continue to claim that the ridiculous million dollar plus awards for sharing 24-songs are perfectly appropriate. They'll claim, as they have in the past, that the fact that multiple juries came up with this amount shows that the public agrees such ridiculous fines are normal. As per usual with the RIAA, they're being misleading. The reason that juries reach such disproportionate awards is because of the way the choices are framed to the jury. There are all sorts of studies on how framing influences a jury, and how juries don't actually consider the proportional response of the offense to the punishment.
There's one other interesting bit in the ruling that won't get much attention. That is that the RIAA asked for an injunction barring Thomas-Rasset from infringing any further, and the court grants it... in part. It's the part that it doesn't grant, which is interesting. The RIAA asked for the court to say Thomas-Rasset should be barred from "making available" any copyrighted works via file sharing programs, but the court, correctly (despite the RIAA's long-term effort to pretend otherwise), points out that there is no "making available" right within copyright law. The Court is short and sweet on that point:
Plaintiffs further request that the Court include language in the injunction barring Defendant from making any of Plaintiffs sound recordings available for distribution to the public. Plaintiffs argue that, if Thomas-Rasset makes Plaintiffs copyrighted works available on a peer-to-peer network, she will have completed all of the steps necessary for her to engage in the same illegal distribution of Plaintiffs works for which she has already been found liable. Because the Court has held that the Copyright Act does not provide a making-available right, it will not enjoin Thomas-Rasset from making the copyrighted sound recordings available to the public.While there's nothing really new here, it's nice to see that point reinforced once again. Making available, by itself, is not copyright infringement, despite the industry's attempts to portray it as such.
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Filed Under: appeal, constitution, copyright, jammie thomas, statutory damages
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Or maybe you're the Anonymous Legalistic Coward. Because there's probably some case law somewhere that says that merely receiving something isn't the same as participating in the sharing of something. In that case, Carry On, Oh Great Legum, but be aware that no non-lawyers live in that universe.
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Jill has two loafs of bread.
Jack has none.
Jill decides to share, so she gives one loaf to Jack.
Jack receives a loaf of bread.
Both are engaged in an act of sharing, are equally guilty, and should both be prosecuted to the fullest extent of the law.
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and if someone, not myself, but who looks and acts like me downloaded say over 2tb of music in the past 10 years or so. (making assumptions, it's been a long time)
and each song is on avrage 6mb and assuming i did math correctly thats ~16600 songs at $80,000 a song
this person, who likely is infringing on my publicity rights, cost the RIAA $1,328,000,000!
and thats just one person
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http://www.techdirt.com/articles/20110311/06521713462/judge-rejects-riaas-attempt-to-claim-tri llions-damages-limewire.shtml
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$1.3 billion * 1 million = $1.3 quadrillion
Apparently RIAA should be making many times more than the total GDP of the entire planet.
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PIRACY! It's stopping the World making more money than it ever could!
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I think the record labels see a problem here, the reward to them doesn't cover the extensive legal costs to get here. The judgement amount isn't enough to justify the legal action, which neuters the law. That would effectively be legislating from the bench.
Considering the judge has overruled a jury 3 times, I think it is safe to say that this would be an activist judge. Likely the judged ruling once again gets kicked out on appeal, and hopefully the judge gets replaced.
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- http://arstechnica.com/tech-policy/news/2011/07/judge-calls-15m-file-sharing-judgment-appalling-slas hes-to-54000.ars
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Right. I was curious what would have happened if the jury came back with a number less then the minimum. Does it default to the minimum framed amount?
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No. Sorry if it's unclear but the minimum is $750, and the judge set the award at 3x the minimum, $2,250, or $54k.
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You people are hilarious.
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I can make baseless assumptions too - even if it was more than 24 songs, it's unlikely that her actions cost anything like $54k of losses for the industry. This lawsuit has probably cost many times that already on negative publicity alone. I know I wasn't alone in boycotting major label product on the basis of cases like this.
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They tried like heck to let her off lightly, but she got horrible legal advice. She ruined her life by being a pirate.
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According to Wikipedia, the original claim was for 1,702. That's a claim, not a proven fact, coming from organisations that have hardly been perfect in their accuracy in these matters. Only 24 have been proven in a court of law, unless I missed something.
"They picked 24 as "representative" and used them for the court case."
So, why was the list reduced so drastically? Was it because they wanted to make the court's life easier, or was it because those were the only songs they could prove she had ever offered to share? It certainly wouldn't be the first time that claimed long lists of infringements was reduce dramatically because when called upon to prove it in a court of law, because they couldn't provide evidence for most of the content. Tell me again why "we all know" she did something that's never been proven except by your own assumptions?
Let's face it, half the controversy over this particular case is due to the disproportionate fines over a tiny number of songs. IIRC, distribution wasn't required to be proven, only "making available". That's the problem here. Convicted of actually distributing 1,702 songs that have been proven to have caused damage to the industry? OK. But, she's been convicted of sharing just 24, and the fines they're trying to claim are utterly outlandish. Thousands of dollars per track with no evidence that a single dollar was actually lost through her actions (how can she lose them money by simply offering to share, if I'm right about only "making available" having been proven)?
"The judge seems to be forgetting about that."
Unless I misunderstand your legal system, the judge has to base his decision on the evidence in front of him, not what evidence that hasn't been cherry picked might have proven. She has been found guilty of sharing 24 songs. The punishment handed down by the court should be for the sharing of 24 songs. Period.
"They tried like heck to let her off lightly, but she got horrible legal advice."
Maybe. IIRC, half the point of her defense was to set a precedent so that the half-assed extortion tactics from the RIAA might be changed or stopped. Remember, most people were just paying up without ever being tried in court, they were sending out thousands of claims and they managed to screw up many times. She refused to roll over and simply pay their protection fee. A little silly if she knew she was breaking the law, but there's value to it even so. Subsequent actions have been due to the ridiculous penalties being request, which she almost certainly can't pay in any event.
"She ruined her life by being a pirate."
She shared (or could have shared) the equivalent of up to 2 CDs worth of music (that's all that's been proven in a court of law). Because she did this online instead of copying tapes or CDs like people had been doing for decades previously, she was picked as a target, and the resulting court cases are essentially the RIAA trying to make an example of her because she refused to pay the protection money.
Should she have shared music online? Of course not. But, the punishment here is so disproportionate to whatever damage she might have done by her actions, it's astounding.
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This b**** LIED and said it wasn't her. Committed perjury. She should have been charged with that too.
If slimeballs like her are allowed to show such disdain for the law and the justice system, society goes down the tubes fast.
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Demanding $1.5 million for a profitless and potentially victimless civil offence (if the files were only made available and not shared) is letting her off easy? Again, why 24 songs? Why not 10%, or 200?
I'd ask for an explanation as to why this action was taken, and why you think that evidence not submitted to the court should be taken into consideration for sentencing, but I don't think I'll get an intelligent one.
"This b**** LIED and said it wasn't her."
The only evidence that the RIAA have that it is her is an IP address. She may not have been lying, only unable to prove that the IP wasn't being used by her at the time of the offence. There's a difference between not mounting a convincing offence and lying.
"Committed perjury."
Mounting a defence and a "not guilty" plea is perjury now?
"She should have been charged with that too."
Go ahead and charge her. Then it's up to you to prove she had full knowledge at the time a not guilty plea was filed. You'd also have to change the legal system so that someone can be charged for submitting a not guilty plea if they know they're guilty. Again, IANAL or American, but I don't think that's how your legal system works.
"If slimeballs like her are allowed to show such disdain for the law and the justice system, society goes down the tubes fast."
The RIAA is looking a lot worse here than a woman who shared some songs. They certainly lost my business over their actions, not Thomas' actions. Once again, she's been found guilty of sharing 24 songs and should be fined accordingly. The amounts being demanded are ridiculous and totally disproportionate to the crime.
To put it in perspective, $1.5 million is the same as Alcatel were fined recently for illegally bribing global officials, and more than Chesapeake Energy were fined for contaminating drinking water with natural gas, forcing families to be evacuated in Pennsylvania. You and your cronies seem to think that sharing some music is a worse crime than these - I disagree. Please explain your logic here, I don't see it.
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Then that's the choice that they made. It doesn't really matter why, the fact is this case is about 24 songs.
This b**** LIED and said it wasn't her. Committed perjury. She should have been charged with that too.
That is up to the district attorney. Apparently he has not decided to charge her with perjury. Either he disagrees with your assessment, or has some other reason for this decision.
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Pittsburgh may not like hearing you talk like that.
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If she had never participated on a torrent client, would those files still be there?
Are the songs still available via torrent? If yes, then can I download them for free, since she is paying for them?
Until the head is cut off, they are only chasing after fools' gold, more commonly called "pyrites."
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The thing is, here... in America... we give out judicial rulings based on the *actual charges* filed. We don't file charges for x, and then later say "but she also did y."
Perhaps it's different where you live. So, if the RIAA chose to only bring up 24 songs, then she's only punished for those 24 songs. If she did a lot more than that, then they should have filed for more than that.
The law in the US does not work by "representative samples."
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Multiple times.
You slimy piracy apologist.
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Wait a minute. Isn't that an inherent risk of any legal action?
The judgement amount isn't enough to justify the legal action, which neuters the law.
That is kind of silly. If I hire the most expensive law firm I can find at $9,000 a billable hour to sue someone, then my award has to be enough recoup legal fees. Where is that written?
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Yep. This is the exact reason why copyright holders want "pirates" to be charged criminally. It's not expensive for them, but it is expensive for the state.
"That is kind of silly. If I hire the most expensive law firm I can find at $9,000 a billable hour to sue someone, then my award has to be enough recoup legal fees. Where is that written?"
Not sure exactly what you're asking here. You could always... Not sue, but this is the RIAA pre-2008 when heavy statutory damages was going to change people's behaviors. This is the SAME industry that thought it best to spend $3 mil to get $390K back in settlements. Crime sure paid on the extortion that they brought to the courtroom...
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That comment was in response to an above AC who was basically trying to say that the award has to be greater than the legal fees, which I thought was silly. (The missing question mark didn't help).
My original question, which I don't think was answered, was what happens if a jury ignores the instructions and comes back with an award lower than the framed amount in a case like this. Is it a mistrial? Does the judge overrule? What?
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"The Court has merely reduced the jurys award to the maximum amount permitted under our Constitution."
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Add the fact Jammie is potentially liable for all court costs which is probably another 50K or so given possible RIAA lawyer costs. And the lass is still being told to bend over and don't mind the lack of petroleum jelly.
It's a ridiculous penalty to inflict on someone outside of a commercial piracy charge, if a CD is roughly 20 USD each with 20 songs, you're talking charging someone for the value of 750 times the value of the song... I can't think of any filesharer that could claim they've uploaded any song over 200 times.
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That's part of what's so stupid about this entire case. They're not going after a millionaire or someone who made a crapload of money from piracy. It's an ordinary person who might not even have been able to pay the $1/song in iTunes.
At this point, if the RIAA accepted the $2,250 per song, they could use it as a precedent and go after heavier infringers. That's almost guaranteed to be many times more than they'd actually lose from even the heaviest infringers. But, that have to be arrogant fools and try to make an "example" of her. This not only makes them look greedy and evil (i.e. it's not enough to get a reasonable fine, they have to ruin her life as well) but they're not getting any money.
Thomas will continue to fight this for as long as possible, because she literally has nothing to lose. The judge will most likely continue to side with her, because the punishment demanded is so disproportionate to the crime.
"It's a ridiculous penalty to inflict on someone outside of a commercial piracy charge"
This is one of the big problems with the law here. Most of the laws were set up back when the only way to copy was on a physical item. Any significant level of copying involved a significant investment in media and copying devices, which almost guaranteed a profit motive. So, punitive measures were high to make those profits as risky as possible.
The problem is that technology has reduced the cost of copying to nearly zero, and so the profit motive no longer exists for the vast number of infringers. It's now about sharing music, not ripping people off, and fighting this directly has a lot of unintended consequences.
"I can't think of any filesharer that could claim they've uploaded any song over 200 times."
I could in some cases, but that doesn't mean that even that level of sharing loses the money claimed (i.e. any supposed losses assumes that the song would have been bought had piracy not been available, which is often not the case).
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Question
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Then there was an appeal...and I suppose we're still somewhere in the appeals phase.
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Re: Question
A new trial was scheduled, at the conclusion of which the judge gave instructions (sans the one he earlier decided was given in error), and the jury returned a large verdict based upon the statutory damages provisions of US law. The jury could have awarded as little as $750 per worked infringed, but instead awarded significantly more, based in part upon its finding that the various infringements were willful. The judge believed the number was too high, took a look at a district court decision rendered in Boston, and gave the rights holders a choice. Either accept a reduced award under a legal doctrine known as remittitur, or proceed to yet another trial. By this time, however, the defendant had a new set of lawyers who rejected even the reduced amount (the same amount awarded in this most recent go round) because they were intent on trying to get the case ultimately before the US Supreme Court.
Hence, trial number 3 was held and once again the jury came in with a very high number for the same reasons as the jury in the second trial. Once again the judge has reduced the number, and it is a given that the case will finally move along to a circuit court of appeal where the primary issue will be the constitutionality of statutory damages.
The outcome on appeal is anything but certain. Historical precedent from the Supreme Court is on the side of the rights holders, but as with any legal issue appellate courts may try and find a reason why what the Supreme Court has said in the past should not apply here.
Obviously, this case has a long road ahead of it, and the outcome is uncertain.
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Nonsensical laws return nonsensical results... and this surprises who?
Pre-No Electronic Theft Act (1997) she wouldn't have been charged with anything. Infringing copyright for personal use wasn't a crime. You could legally copy your albums, make mix tapes and trade those with your friends. As long as you didn't do it for financial gain it was legal. The only difference from where I sit is that pre-internet, it was cumbersome to make copies and/or swap them with others. Post internet it's almost impossible not to make copies and share.
When those in charge found out that they couldn't actually prosecute people for swapping/exchanging/sharing copyrighted materials for personal use they did what every red blooded American company does. They bought themselves some favorable legislation. Complete with over the top alleged damage amounts. Overnight, what pre-internet people took for granted became illegal. The excessive statutory damage amounts, that were only meant to apply to commercial infringers (remember pre-NET Act personal non-commercial wasn't illegal) now applied to teen-aged Texas cheerleaders, and mothers on welfare.
First stop, repeal the No Electronic Theft Act of 1997. Then dismantle the rest of these 'Intellectual Property' laws that criminalize large swaths of the citizenry and contribute to the trampling of our constitutional rights, not to mention the loss of jobs, innovation, it's costing the U.S. economy.
( http://www.copyright.gov/docs/2265_stat.html )
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infringement is not theft
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Rather telling that bit.
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"I personally think that $2400 total would be a good deterrent for stealing $24 worth of stuff, but the law forces $2250 per song."
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Re: Higher Award
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The juries are the ones that keep getting it right.
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It is in Canada anyway.
I've ripped off more than 24 albums.
Some rips even restored my original "license" back to its' original quality. Amazing how much better my PC can read these "licenses" that my three CD players cannot read at all.
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Does this even scratch smug assertions that you'll get away with "piracy"?
But in the face of facts and force to the contrary, you people must start grasping that you're up against ruthless corporations, not engaging in fantasies that you'll be able to dodge the tyranny. It's here. Real life is abou to catch up to you, soon as the ISPs get their 5 (or 6) strikes programs going.
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Re: Does this even scratch smug assertions that you'll get away with "piracy"?
Come, come, out_of_the_blue, none of your famous false modesty! We won't hear of it!
You need to make more than a casual disclaimer. Your disclaimer is kind of like the phrase, "With all due respect.." prefacing something that expresses disrespect. That is, it does nothing. Since on the internet, mostly all we've got is words, your words give lie to your disclaimer, and point out your biases and prejudices.
At the point of 5 (or 6) strike programs, you'll see reality. I'd wager on huge backlashes when people get their "high speed internet" pulled for mere accusations of infringement, and you have to pay $35 to "dispute" an accusation. The banks who re-ordered incoming checks so as to make the maximum in overdraft fees found out about that sort of thing just a few years ago.
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Re: Does this even scratch smug assertions that you'll get away with "piracy"?
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Re: Does this even scratch smug assertions that you'll get away with "piracy"?
Which in turn should start grasping that the majority of people does not perceive filesharing as morally wrong and certainly not as damaging since the industry fails every time presenting facts for their numbers.
If you really think any law will change that, good luck to you.
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Re: Re: Does this even scratch smug assertions that you'll get away with "piracy"?
Only deluded douchebags like you believe such hilarious narcissism.
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Re: Re: Re: Does this even scratch smug assertions that you'll get away with "piracy"?
Not anyone I know think it is morally wrong they all do it.
And I believe you do it too, or you didn't ever send a song to someone, ever ripped a CD or a movie to make a backup so the kids don't scratch the original? Did you never lend anything or borough anything from anyone? somehow I find that hard to believe, so technically you are a pirate just like everyone else.
I would also like to know what do you think about all those little girls that pull off their cellphone cameras and starting recording the Bieber movie.
Explain why most new girls keep taking pictures with cellphones of books, magazines, recipes, packages or anything else so they can show it to their friends.
Even people filming sports events is criminal in the eyes of crazy people like you LOL
http://www.newscientist.com/blog/technology/2008/07/g8-aims-its-guns-at-cellphone-piracy.html
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Re: Re: Re: Re: Does this even scratch smug assertions that you'll get away with "piracy"?
Extending from that experience I recall something my lecturer told us in school, for a module in film as a part of my university course. We had to make a short film for that module, and during the lecture on sound editing he warned us against using licensed music - this, he stated, extended into classical music, because you'd still have to get the permission from whoever the performer was, even though said music is centuries old and clearly under public domain based on the life + 70 years rule. He also remarked on how most companies in this business make most of their revenue by litigation, so we'd have to tread extremely carefully.
As much as we don't really like him, I grant that he's got ten years experience in the field, and has the credibility to comment on the issue. In which case, it pretty much corroborates with what sites like TechDirt have been pointing out. The content industry doesn't thrive on producing content; it thrives on less scrupulous means.
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Less money is more of a deterrent
When someone that makes an average income is hit with a verdict of $1.5 million it has no meaning. It's like monopoly money.
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Re: Less money is more of a deterrent
If I got hit with a $1.5 million dollar judgment, why not just keep doing it and get caught again? Raise the judgment to $3 million. What's the difference? It's never getting paid anyway.
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Re: Re: Less money is more of a deterrent
Boner just walked away from debt limit negotiations.
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Re: Less money is more of a deterrent
It has to be a percentage of the persons yearly income, so it will have the same effect if you are rich or poor with a minimum to those people who have zero income.
If the purpose is to offer a deterrent that deterrent most have the same effect on every social bracket not just one part of it and that is not possible with fixed values it needs to be a percentage of the income.
$1.5 million for Jamie is ridiculous and she never will pay, that same value for Donal Trump is pocket change he would do it again and again and again, so the law actually doesn't do what it should do.
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not because making available is not copyright infringement, but because there is no right to make available in the first place??
Seriously want to know.
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In order to prove reproduction or redistribution, one must find a party that downloaded it illegally and prove they got it from her.
That's not as easy as it sounds because any downloaded copy made on the record labels behalf (made by their agents for verification purposes) is authorized and therefore not infringing.
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FreeBSD is a copyrighted work and at various BarCamps the audio and video is under a Creative Commons copyright.
Such would not be shareable under such an order.
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You Americams are Hillarious!
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Re: You Americams are Hillarious!
If you think our blank media surcharge allows you to download everything for free, you have another think coming.
This is to cover "ripping off" your purchased media to a back-up copy.
I don't know anyone who buys blank CDs' anymore. I even put Linux "LiveCds'" on DVD or USB sticks now to avoid paying this "you must be a thief" tax.
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Canadian Blank Media Copyright Levy
http://www.musicbymailcanada.com/privcopy.html
Also, the Supreme Court of Canada has stated that offering songs on P2P is not illegal. Just like leaving music CDs or Blue-Ray Movies on my doorstep is not illegal. Pirates are not "stealing" anything. (The definition of theft requires you to take something and therefore deny use of the something to another party.) They are just violating license of copyright. Canadian copyright law presently allows blank media users to pay for all copyright access up front. According to the law, no violation has occurred. If the record companies do not like it, they can take their business elsewhere. IN CANADA, FILE SHARING ON P2P IS NOT AGAINST THE LAW. (provided you burn to blank cd media as your first copy and use all copies for "personal" use)
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wow
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Rediculous
s=number of songs on album
a= price of album
If the song is featured on multiple albums from the artist, it will default to the lowest priced album. I like this because it would be the worth the RIAA has already set the songs to.
If the total amount isn't enough to cover the legal fees, then maybe the RIAA will finally learn when law suits are the best course of action, and will stop wasting our judicial system's time.
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Re: Rediculous
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