RIAA Files Expected Appeal Over Judge's Decision To Decrease Jury Award In Jammie Thomas Trial

from the how-dare-the-judge-be-reasonable! dept

Mon, Aug 22nd 2011 1:36pm — Mike Masnick

The RIAA's war against reasonableness continues. As totally and completely expected after Judge Michael David reduced the jury award against Jammie Thomas-Rasset from $80,000 per song shared to a still ridiculous $2,250 per song shared, the RIAA has now appealed the case to the Eighth Circuit appeals court. Now is when the case finally starts to get more interesting. The RIAA is actually challenging three parts from the three prior trials (as you may recall, the first two were tossed out). Specifically, the RIAA is asking:

Whether the District Court erred by concluding that making a copyrighted work available for download on an online file-sharing network is insufficient to constitute a 'distribution' under 106(3) of the Copyright Act, and therefore refusing to enjoin Defendant from making Plaintiffs' copyrighted sound recordings available to the public.

Whether the District Court erred by concluding that it had committed an error in instructing the jury that making a copyrighted work available for download on a online file-sharing network constitutes a "distribution' under 106(3) of the copyright Act and therefor vacating the jury's verdict and ordering a new trial.

Whether the District Court erred by holding that the jury's award of statutory damages for defendant's willful copyright infringement violated the due process clause even though it was well within the range of damages awards authorized by 504(c) of the Copyright Act.

All three are interesting legal questions. The last one may be the biggest, but the hardest to succeed on. The reasoning used so far by two different judges in dropping jury awards is that the jury awards were so out of line with reality that they violated due process. The RIAA is scared to death that any sort of reasonable awards be associated with copyright law, because they're still under the ridiculously misguided belief that absolutely insane judgments for millions of dollars will scare people into no longer sharing files. The thing is, it's likely they have this misjudged in a big, bad way. The awards in the millions of dollars for just a few songs seem so incredible and so unfathomable, that most people simply think it's impossible. I honestly believe that they'd have a lot more luck if the fines were seen as much lower and much more within the grasp of the average file sharer. But the RIAA is not known for thinking logically.

The first two issues are actually important as well, though they'll get less attention. It's a key fighting point by the RIAA: which is whether or not a copyright holder needs to prove actual distribution to show an infringement of the distribution right under copyright law... or if merely "making available" constitutes distribution. This has been a major point of contention. The RIAA relies on a case about library books to say that merely "making available" is a violation of the distribution right, but other rulings and basic common sense on what constitutes distribution, suggest that merely making available is not, in fact, distribution by itself.

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Filed Under: appeal, constitution, copyright, distribution, jammie thomas, making available, statutory damages
Companies: riaa

49 Comments

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Anonymous Coward, 22 Aug 2011 @ 1:50pm

Seems to me, even if "making available" is not itself direct infringement, the court would still have the power to enjoin the defendant from making songs available via a file sharing network, since that may constitute contributory infringement or inducement to infringe, but also since courts are generally empowered to craft injunctions reasonably designed to prevent future infringement, even if they go somewhat beyond the scope of what was actually found to be a violation.

The damages appeal should be interesting, and I would not be surprised to see the Supreme Court get that question eventually.
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MrWilson, 22 Aug 2011 @ 2:00pm

We've already seen that the RIAA has failed in scaring people into not violating their copyrights in the face of possible litigation. We've already seen that some people actually getting hosed by the RIAA in civil court has failed as a deterrent.

The entire concept of using the Thomas-Rasset trials as a deterrent is silly because it only shows that the RIAA will get tripped up in what few cases it actually takes to a jury even if it manages to acquire a "win." Sure, it's hell for Thomas-Rasset, but at this point she has nothing to lose by fighting because the RIAA has shown that they want to bankrupt her for life to set an example.

They further show that it's unethical to patronize their businesses because that money is clearly going to the unethical practice of ruining people's lives.
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Anonymous Coward, 22 Aug 2011 @ 2:02pm

Excessive fine?
"Whether the District Court erred by holding that the jury's award of statutory damages for defendant's willful copyright infringement violated the due process clause even though it was well within the range of damages awards authorized by 504(c) of the Copyright Act."

Rather than the due process clause, how about the 8th amendment prohibition against excessive fines? I think it should apply even though it's not a criminal case, since the damages are statutory.
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Anonymous Coward, 22 Aug 2011 @ 2:19pm

Being that they are fighting civil rather than a criminal case, it is very likely that "making available" should be enough to show the intent, and certainly being able to download even a single part via P2P from the defendant would show a willingness to distribute.

The second follows the first. For me it is similar to solicitation for prostitution, you don't have to actually perform the act to have made the case. Offering up of the "goods" should be enough, especially on a civil level.

The final one is also likely to go the MPAA's way, because the law is very clear and has limitations built in. The laws are not open ended, the jury didn't randomly come up with a stupidly large number that is beyond the scope of the law, but rather came up with a number that is within the scope of the law as written. Unless the law can someone be invalidated (first amendment challenge, perhaps), there is little to say that the law is wrong.

In front of SCOTUS (if they ever get there), the actions of a judge who appears to be trying to bend the law will not go over well. There is little justification for setting aside a jury award that is within the scope of the law.

The 8th amendment won't be an issue here, for two reasons. First, this isn't really a "fine" in the sense of a criminal action, and secondly that the jury award is within the boundries of the law as written, passed, and signed into law. It's pretty hard to get around that.
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Lord Binky, 22 Aug 2011 @ 2:23pm

You can ask for it all you want....
But I don't have a million dollars, so the difference between getting 1 million, 2 million, or a billion dollars from me doesn't make a difference. The RIAA just seems like Dr. Evil cackling asking for 1 million dollars. Better off trying to get blood from a rock.
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Jeff, 22 Aug 2011 @ 2:24pm

Re:
What you fail to see is that perhaps... The entire law is unconstitutional.
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Anonymous Coward, 22 Aug 2011 @ 2:25pm

Re:
And that's why no one commits acts of copyright infringement.
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Lord Binky, 22 Aug 2011 @ 2:27pm

Re:
The prostitution example might be similar if they charge was for offering to download illegally. Saying you got a snapshot of one piece of the act and trying to prove the whole situation with that one piece is closer to saying you got some bits of a file from that ip address.
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Gwiz (profile), 22 Aug 2011 @ 2:34pm

Re:
The final one is also likely to go the MPAA's way, because the law is very clear and has limitations built in. The laws are not open ended, the jury didn't randomly come up with a stupidly large number that is beyond the scope of the law, but rather came up with a number that is within the scope of the law as written. Unless the law can someone be invalidated (first amendment challenge, perhaps), there is little to say that the law is wrong.

Kind of funny really. I had a discussion the other day with an AC (perhaps even you) where they thought that YouTube lived in the "margins of the law", but now talking about the MPAA it's all good if they are within "the scope of the law as written". Seems like double standards to me.
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Anonymous Coward, 22 Aug 2011 @ 2:34pm

Re: Re:
Except for the part of the constitution that explicitly grants Congress the power to grant authors exclusive rights to their writings.
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Anonymous Coward, 22 Aug 2011 @ 2:36pm

Re:
"There is little justification for setting aside a jury award that is within the scope of the law."

Except that the Copyright Act is not the only law we're dealing with. We are also dealing with the Supreme Court's interpretation of the due process clause. It has held in some cases that damages awards that are many multiples of any actual harm violate this provision.

Saying a the jury award is within the bounds of the statute doesn't answer the ultimate question of "substantive" due process.
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E. Zachary Knight (profile), 22 Aug 2011 @ 2:45pm

Re:
What you don't seem to understand is that the courts are designed by the founders of the US through the Constitution to test the laws of the land. When the courts find that a particular law or part of a law violates the Constitution, they will invalidate that law or part.

The US Supreme Court does this all the time.

Just because the Jury Award is "within the boundries of the law as written" does not mean that the US Supreme Court will not follow the Thomas judge and invalidate the jury award because it violates our constitutional rights to be protected from excessive fines and punishments.

I think bankrupting someone for sharing 25 songs counts as excessive.
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JEDIDIAH, 22 Aug 2011 @ 2:46pm

Cherry Picking
There is also something about "cruel and unusual punishment" in there too. You don't get to just pick the parts you like and ignore the rest (like some bible thumper).

There's also stuff about "limited times".

Some of this stuff was so old that it should have been in the public domain anyways.

Judges being people manage to actually have a problem presiding over a travesty of justice.

Statutory Damages for individuals should be disallowed. The harmed party should be forced to show damages and any standards applied to insurance companies should also apply to citizens.
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Jay (profile), 22 Aug 2011 @ 2:47pm

Re: Re: Re:
Even when no economic harms have been assessed?
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John Doe, 22 Aug 2011 @ 2:50pm

say that merely "making available" is a violation of the distribution right

Why not? After all, if you get busted with a certain amount of drugs they charge you with possesion with the intent to distribute. Don't you know, they are mind readers, just having intentions is against the law.
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Anonymous Coward, 22 Aug 2011 @ 2:53pm

common sense
"...basic common sense on what constitutes distribution, suggest that merely making available is not, in fact, distribution by itself."

To play devil's advocate:

My common sense (or lack thereof) is troubled by the idea that whether I've done something wrong is not based on my actions, but on the actions of others (i.e. whether others have downloaded something I posted). Or that the seriousness of my crime depends on not what I do, but on how much others do.
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The Infamous Joe (profile), 22 Aug 2011 @ 2:57pm

Re: You can ask for it all you want....
You can squeeze blood from a stone, provided you squeeze a sufficiently sharp stone.
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TriZz (profile), 22 Aug 2011 @ 3:04pm

How about a new, lesser charge...
Similarly, we have "attempted murder" or in the drug using world "intent to distribute".

Perhaps someone will make a new crime with "attempted distribution" or "intent to distribute" which would be a lesser penalty than actually distributing.
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out_of_the_blue, 22 Aug 2011 @ 3:11pm

Well, after all the "reality" talk on the "New Fox Delay" thread...
It's still $2250 per song here. Welcome back to the reality that's external to Techdirt, where you'll need more than smart-ass one-liners.

The penalties for "piracy" can be made arbitrarily high.

Stop your knee-jerk reactions for just a second... They (the content Mafia plus gov't) don't /actually/ care that you (or even many people) "pirate" songs or TV shows. You're WAY short-sighted if you think that stopping "illegal" downloads is the goal: in fact, they want MORE people to do so! It's the CONTROL of you all being /criminals/ that's important, of being able at any time to slap you with outrageous fines (or the coming jail terms) just for sharing files. The gov't needs "criminals" in order to rule.

So the IRONY is that while you think you're "free" and "liberating data" and so on, by doing so you've actually made yourself /subject/ to corporatism! -- Tyranny doesn't get you for big meaningful acts of rebellion, but tiny ones.

My advice is that NOW is the time to avoid it, lest you become an example case. The system IS cracking down. -- Just ask that Swartz fellow how looking at decades in prison has changed his mind.
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NotMyRealName (profile), 22 Aug 2011 @ 3:15pm

Re: Re: You can ask for it all you want....
Awesome. +1 internets
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The Infamous Joe (profile), 22 Aug 2011 @ 3:23pm

Re: Well, after all the "reality" talk on the "New Fox Delay" thread...
You're right, the best reaction to an unjust law is to cower in the corner and hope that you're not arbitrarily singled out.

That's the ticket.
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Richard (profile), 22 Aug 2011 @ 3:46pm

Re:
I am amazed that you can support this vindictive and meaningless lawsuit. What happens if, after all avenues of appeal have been exhausted, she is faced with a life of invitable poverty and commits suicide? Really have you NO shame?
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Anonymous Coward, 22 Aug 2011 @ 3:48pm

Re: Cherry Picking
"You don't get to just pick the parts you like and ignore the rest (like some bible thumper)."

Actually, you do. A part of a law can be declared unconstitutional, without throwing out the whole law.

Since the prior commenter said the entire law was unconstitutional, I simply pointed out the fact that the constitution specifically grants Congress the power to enact such laws.

Maybe they have gone beyond other constitutional constraints in some parts, but that doesn't make the entire law unconstitutional.
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Anonymous Coward, 22 Aug 2011 @ 3:49pm

Re: Re: Re: Re:
Sure. Nothing in the constitution says Congress needs to engage in some sort of fact-finding on economic harm before enacting a copyright law.
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Anonymous Coward, 22 Aug 2011 @ 3:51pm

Re: Re:
Listen, I'm not a fan of the jury awards in this case. But this whole "what if" business is ridiculous.

What if she turns to a life of terrorism and child pornography to pay the judgment! What if!!!!!
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Anonymous Coward, 22 Aug 2011 @ 3:52pm

Re: Well, after all the "reality" talk on the "New Fox Delay" thread...
I'm curious where you got your degree in mindreading?
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Anonymous Coward, 22 Aug 2011 @ 3:54pm

Re: Re: Cherry Picking
It says it can grant which means it also don't need too.
Laws change.
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Anonymous Coward, 22 Aug 2011 @ 4:08pm

Re: Re:
Two very different things. The copyright states a minimum and maximum, which is communicated to the jury, and they come back with the judgement amount that is valid and legal within the law.

The "margins of the law" issue comes when a law is intended to do something, but because of the way it is written, it creates a grey area where companies can profit. While many people think DMCA is very strong "pro copyright", it is actually incredibly weak, because it creates all the needed legal defenses to allow widescale abuse of copyright, giving everyone an exit ramp to escape liablity. The law wasn't intended to do that, it didn't intent to create a delay between notification and action, but it has in effect done that.

There is no double standard, as it is two entirely different things.
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That Anonymous Coward (profile), 22 Aug 2011 @ 4:10pm

Remember kids, everytime you torrent an artist dies.

Now get out there and aim for Prince and Bono!
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Anonymous Coward, 22 Aug 2011 @ 4:22pm

Re:
That part about making available probably will pass the reason is simple, anyone can make it available and it happens a lot and I do mean a lot by accident, anyone with Google can do a search and find thousands upon thousands of shared folders that were accidentally marked to share.

http://www.net-security.org/secworld.php?id=8841
http://www.bloggernews.net/11421

You think all those people put very sensitive data on P2P on purpose? they intended to share their bank accounts, passports, resumes, very personal photos with everybody on the internet?

http://www.foundphotos.net/

There is even rumours that Wikileaks used P2P to gather info.
http://seewhatyoushare.com/

And you truly believe that just making available is a sign of intent?

You can't be serious.
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Anonymous Coward, 22 Aug 2011 @ 4:27pm

Ridiculous high amounts mean that anybody infringing has nothing to lose.

If you get strung by one that is just a waste, if you are going to get in trouble do it in style, rip everything you can.

Why bother being careful if you are already in the mud?
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Loki, 22 Aug 2011 @ 4:37pm

Re: Well, after all the "reality" talk on the "New Fox Delay" thread...
I do agree with most of this. They don't really want to actually stop the "illegal" downloading (not yet anyways). In fact, if you look at the way the work, it's as if (like the Fox story below) they look for ways to push more people to pirate so at to have more ammunition to push for stronger and more draconian laws.

I saw this coming more than a decade ago when I started arguing that we were slowly being pushed back towards feudalism, except instead of landholders, it would be corporate overlords. The idea seemed so "fringe" to most back then, but with each passing year the reality of it seems to grow closer and closer.

And I agree the best way to control a population is to criminalize it. Their War on Drugs (especially pot) was one effective tool to do so. But given they are losing the battle against outlawing pot, they need to replace it with something equally mass criminalizing.

Where I stopped agreeing was the last paragraph. Like Benjamin Franklin, I am not going to simply except "this is the way it is" and work diligently to counter tyranny as I am able.
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Gwiz (profile), 22 Aug 2011 @ 4:50pm

Re: Re: Re:
There is no double standard, as it is two entirely different things.

Let me see if I understand this correctly. The first is completely black & white and crystal clear because it follows exactly what the law says and the second is fuzzy shades of grey because it follows exactly what the law says.

Still looks like double standards to me.
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Anonymous Coward, 22 Aug 2011 @ 4:59pm

Re: Re: Re: Cherry Picking
Of course.
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Anonymous Coward, 22 Aug 2011 @ 5:01pm

Re:
"Ridiculous high amounts mean that anybody infringing has nothing to lose."

You misspelled "everything."
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Anonymous Coward, 22 Aug 2011 @ 5:16pm

Re: Cherry Picking
"...any standards applied to insurance companies should also apply to citizens"
Amen brother! Those frauds get out of paying so much money.
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Jay (profile), 22 Aug 2011 @ 6:10pm

Re: Re: Re: Re: Re:
... Yeah...

So let's get this straight...

Allowing JD Salinger to have a monopoly on his book before he died is really promoting the progress of the Arts and Sciences...

And it makes logical sense to make authors higher class citizens than the people who might be good fans of theirs...
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Anonymous Coward, 22 Aug 2011 @ 6:38pm

Re: Re: Re: Re: Re: Re:
The rights of the dead are more important than the rights of the living.
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Jay (profile), 22 Aug 2011 @ 6:39pm

Re: Re: Re: Re: Re: Re: Re:
Yeah, Elvis still makes millions. How the hell is that fair?
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Renee, 22 Aug 2011 @ 7:40pm

The RIAA is wrong and the law is wrong
The fact that the RIAA has the chutzpa to file this appeal, the fact that such an appeal is even allowed, and the fact that such an absurd waste of resources has been expended on such a trivial infringement shows that the whole copyright system is corrupt beyond repair, and that the management of the RIAA are irresponsible, reprehensible, irrational, and immoral.

This case proves that no company should ever be allowed to hold a copyright on anything, because they will abuse that right to the detriment of every human being on the planet.
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Anonymous Coward, 23 Aug 2011 @ 1:24am

Re: Re: Re: Re: Re:
Disagree:

Article 1 Section 8: Powers of Congress
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

If it is not promoting the progress and people can show that those laws become unconstitutional no?
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Richard (profile), 23 Aug 2011 @ 3:17am

Re: Re: Re:
this whole "what if" business is ridiculous

Yup that's the point - the entire basis of the jury award is "what if".

She made a small number of songs available. The huge damages are all based on "what if thousands of people downloaded them.
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John Mitchell (profile), 23 Aug 2011 @ 5:39am

Might this stance backfire?
On the question of "Whether the District Court erred by concluding that making a copyrighted work available for download on an online file-sharing network is insufficient to constitute a 'distribution' under 106(3) of the Copyright Act," I've always wondered whether the copyright owner position might backfire, and harm all copyright owners. Given that the 106(3) right is expressly made subject to 109(a) (the first sale doctrine), one would think that any expansion in the reach of 106(3) to cover making available a copy for reproduction over the Internet would necessarily expand the reach of 109(a) as well. Although the plain language of 106(3) clearly applies to "copies and phonorecords" distributed in tangible form (as those two are defined as tangible objects, if plain English can make leaving your copy out where someone can copy it a violation of the distribution right, then wouldn't anyone who legally reproduced a work from a copy or phonorecord that the copyright holder made available over the Internet necessarily have the right, without the consent of the copyright holder, to make that copy or phonorecord available to others? I know it sounds silly, but no sillier than saying I "distribute [tangible] copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership [of the physical object], or by rental, lease, or lending [of the physical object]" whenever I allow someone access to my copy sufficient to allow them to reproduce it.
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Anonymous Coward, 23 Aug 2011 @ 8:56am

Re: Re: Re: Re: Re: Re: Re: Re:
Since when did "fair" enter into this discussion?
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Anonymous Coward, 23 Aug 2011 @ 9:50am

Re: Re: Re: Re: Re: Re:
I said absolutely nothing about anything making logical sense. I was having a conversation regarding the constitution and copyright law.

As usual, you are unable to follow along.
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Anonymous Coward, 23 Aug 2011 @ 9:50am

Re: Re: Re: Re: Re: Re:
no
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Anonymous Coward, 23 Aug 2011 @ 9:52am

Re: Re: Re: Re:
Great, your point is you'll sink to the level of whomever you disagree with to make ridiculous disingenuous arguments. Nice point.
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Jay (profile), 23 Aug 2011 @ 8:43pm

Re: Re: Re: Re: Re: Re: Re:
I don't know whether to laugh or shake my head. Maybe you should do a better job of making your point.

BTW, look into statutory rights and natural rights while you're doing so.
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ScytheNoire, 24 Aug 2011 @ 7:39am

The RIAA can't even get one down, it's taken forever. So good luck with the hundreds of millions of others you are going to need to sue.
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