Do The Statutory Damages Rates For Copyright Infringement Violate The Eighth Amendment?
from the questions,-questions dept
While we often discuss the rather large conflict between the First Amendment and copyright law in the US, Stephan Kinsella is also wondering if the current statutory damages rates in copyright also violate the Eight Amendment and its prohibition on "excessive fines." I somewhat wonder if that issue will come up in the Jammie Thomas appeal, which will focus heavily on whether or not an award within the statutory damages rates was too high, but I believe the focus there will be more on the Fourteenth Amendment, and whether or not it was a violation of due process. In fact, it seems like most of the Constitutional discussions on statutory rates focuses on the Fourteenth Amendment, rather than the Eighth. I'm certainly not a Constitutional scholar (and would love for legal scholars to chime in here), but I believe this is because the courts historically treat these two amendments as related, and effectively argue that the 8th Amendment's ban on cruel and unusual punishment is applied via the 14th Amendment on due process when it involves state laws. So I'm not entirely clear why it's also being used on a federal copyright issue -- but I'm sure someone out there will help explain it to us in the comments shortly!
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Filed Under: 8th amendment, constitution, copyright, punishment
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I had a slightly different focus though - excessive fines is major reason for abusing the law.
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Punitive v. Non-Punitive Damages
The really remarkable thing in the Jamie Thomas case was the the judge decided that the statutory damages violated due process despite the fact that he said the fines were not meant to be punitive, but rather, in place of the actual harm suffered. Those types of damage awards are almost never invalidated because the standard for invalidation is really weak -- the award is only invalidated if it is "so severe and oppresive as to be wholyly disproportionate... or obviously unreasonable." The case establishing that standard is available here: Williams
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It should also be considered that the statutory "rates" in this law are wide and allow the judges plenty of latitude. This isn't a situation where the minimum is insanely high, rather it is reasonable in line with a severe speeding ticket or even a fine for parking in a handicap zone in some cities. It would be incredibly hard to say that, given the spread of a single file (which has been shown before), that there is no some damage done.
Further, let's be clear here. We are talking a civil case, not a direct fine. Cruel and unusual punishment normally would apply to fines by the state. This isn't the case here.
The judge in the Thomas case has made a mistake a couple of times over, and to me risks having sanctions applied for being an activist on the bench rather than being realistic. If he wants to change the laws, he should stop being a judge and run for office instead.
8th amendment is not an issue here.
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So what, one should only be responsible for what one did not others.
"It should also be considered that the statutory "rates" in this law are wide and allow the judges plenty of latitude. This isn't a situation where the minimum is insanely high, rather it is reasonable in line with a severe speeding ticket or even a fine for parking in a handicap zone in some cities. It would be incredibly hard to say that, given the spread of a single file (which has been shown before), that there is no some damage done."
I never ever saw a speeding ticket that surpassed the yearly earnings of someone did you see that happen ever?
"Further, let's be clear here. We are talking a civil case, not a direct fine. Cruel and unusual punishment normally would apply to fines by the state. This isn't the case here."
That fact that it is possible is just evidence of the absurd that copyright law has become and the urgent need to reform it, by law or by force.
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Let's say you are an adult, and you have a legal and licensed assault rifle with your mega round clip, fully loaded. You take it, you place it in the middle of a school yard, and wait for recess.
Now, you don't pull the trigger, you don't do anything that involves killing anyone. Yet, you are liable.
Chain of events, foreseeable risk, reckless acts, etc... they are all part of the chain that ends up with dead bodies.
Now, let's be clear here before the bozos jump in: I am not saying that file sharing compares to dead schoolchildren in any way shape or form. I am only invoking an extreme case to show how liablity can exist, even if you didn't actually "do all the wrong", nothing more.
The lack of control after download to someone else isn't key here, because without your download, the next download wouldn't happen either. It's like an infection - if you don't spread it to someone, they can't pass it on either.
People should be held accountable for the full results of their crimes. In file sharing, you start a chain of events that you cannot control, unless you don't share to start with. The prudent legal choice would be not to share.
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If you wan't to think of it as an infection, think about how curing one person would affect the spread of the disease. If its the very first person with the infection, (the legitimate purchase) then you can control it by curing that one person. If its not the first person, curing one of the hundreds that have it will not have an effect on its spread. Would you hold one person responsible for the damage caused by the spread of the disease, after they were infected?
Oh and by invoking an extreme case, you are making a comparison. Try to use an extreme case that stays in the same realm of damage. Infringement is purely a financial issue, not a mortality one. Go ahead an be extreme, but keep it to an extreme loss of money.
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One million people re-sharing your file is at most contributory copyright violation on your part. Yet you're equating it with directly and maliciously putting people in harm's way. Moreover, you are completely ignoring the other 1 million people whose actions had the same effect as yours. Why don't they count? Is it because you're setting an example? Is it because you don't know who they are?
I think your "loaded gun in a playground" analogy is a weak and transparent attempt to generate an emotional response.
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I'm amazed at how often people don't understand how an analogy works. It is obvious that he is not equating the two.
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In that case, you and I agree, only the original up-loader should be responsible.
No one can download until someone up-loads.
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I have a feeling you would actually want to hold each person in the chain accountable for their own actions plus everything that happened afterward, which is ethically unworkable.
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Hmm, in the Thomas case, did the plaintiffs show the spread of the file from Thomas' seeding, as you're stating? My perception was that they had NOT done that and thus hadn't proved real specific damages beyond her downloads and the ever-vague "making available".
Is that not correct?
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That is cannot be proven in absolute terms doesn't mean that it isn't happening. They use the "ever vague" term because there is no simple way to summon every computer in the world to see who has the file.
It doesn't excuse her actions. If millions of people have a copy of each song, and she was part of making it happen, the damages are there. Clearly anyone using P2P software should be aware that their reckless actions could lead to widespread distribution of the file in question.
The Avast example is proof enough that a shared filed "gets around".
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Actually, from a legal standpoint, if the proof provided does not meat the standard of proof required that's exactly what it means.
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Okay, so I was right. And I agree with you that it'd be stupid to think her making it available wasn't resulting in some spread. That really isn't my issue with all of this.
"That is cannot be proven in absolute terms doesn't mean that it isn't happening. They use the "ever vague" term because there is no simple way to summon every computer in the world to see who has the file."
I completely agree. Again, not my issue with this.
"It doesn't excuse her actions."
I agree with you again. Pirating is wrong, in my opinion. Reproducing the work of a creator for yourself in a way they don't want you to is, again in my opinion, something that is wrong. I would prefer it wasn't done.
"If millions of people have a copy of each song, and she was part of making it happen, the damages are there."
And here we have my problem. We have a law that allows for somewhere between $750 and $aGazillion in damages as the result of a civil action in which everyone appears to agree that there is no way to even remotely accurately approximate what damage was done by the person being punished. You cannot prove the amount of harm. Hell, you cannot even actually prove ANY harm, only the overwhelming liklihood for an unspecified amount of harm.
And yet, from there, we get multimillion dollar judgements. That's the stupid part. If you want to create a law that punishes people for creating potential harm in an arena where real harm is IMPOSSIBLE to prove, I could still be on board with that, but that $750 amount had damn well be the absolute HIGH end of the scale, not the minimum....
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After all, we're the good guys.
...Sorry, I got lost in the silliness.
"We're pretty sure" doesn't constitute proof. But apparently it's enough to screw somebody of every dollar they've ever made and ever will make because of a minor copyright violation.
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Here's the rub: There is no gazillion in damages here. Just $750 to a little over $100,000. Those aren't big numbers. Where you get the big numbers is because she did it repeatedly, with many files. They only tried 20 something of them, but if I remember correctly, there were literally hundreds of songs being shared.
The number only really gets big because she did it on a big enough scale.
Even at $750, if she had a couple of hundred songs behind shared, it would still come up to say $150,000 (750x200). So even at the bottom, the number is pretty big.
So would you agree that $750 isn't a real big penalty, especially considering we agree that her actions likely contributed to the spread of the files in question?
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You need new glasses. Your depth perception is way off.
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No, we don't agree on that, and if you read my entire comment you'd know this already. We agreed that we can convict her of possibly creating an unspecified amount of harm per file she made available. How we go from unspecified harm to possibly $150k PER FILE is beyond me. Your pretending that isn't an ENORMOUS number isn't persuading either. It's a HUGE number.
As I said, make the $750/file the TOP fine and limit the counts that can be brought against a single individual and we might have something worth pursuing....
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Has anyone ever shown proof that any damage was done? It is SPECULATED that files shared on the Internet translate in to lost sales. While I can understand the reasoning that doesn't make it fact. I am not ignorant enough to think that there are not people in the world who will choose something free over the same thing that costs money. I do object to the idea that I may be accountable to some Plaintiff's arbitrary claim of lost sales. Prove to me that if this file had never been shared on the Internet that you would have made even a single sale more than you did; you can't.
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I read through the list of songs Thomas-Rassert was sued over and you would have to PAY ME to even listen to any of them, let alone download them.
I'm sure I'm not alone, so the numbers would skew even further.
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Fining someone more than their life-long income for something that millions of other people did as well is certainly punitive, regardless of someone saying it isn't.
The minimum, $2,250 per song, is still wildly punitive in amount, regardless of if you call it "statutory" by name.
"If he wants to change the laws, he should stop being a judge and run for office instead."
A single former judge who successfully gets elected can't change long-established laws that have been purchased by monied interests. That's as much of a cop out as "write to your representative."
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First of all: there was no evidence that either Thomas-Rasset or Tenenbaum shared their songs "millions" of times.
Second of all: even if that's true, then the RIAA could also sue each of those millions of users who shared files (and using P2P, everyone who downloaded would also be an uploader, which is how Thomas-Rasset and Tenenbaum were guilty in the first place). If you get damages from Thomas-Rassett and Tenenbaum for the songs they shared with others, then it would be criminally unfair to also get damages from the people they shared with.
It would be incredibly hard to say that, given the spread of a single file (which has been shown before), that there is no some damage done.
The judges in both the Thomas-Rasset case, and the Tenenbaum case, took the potential damages into full consideration... before both of them reduced the awards as being "unprecedented and oppressive."
The judge in the Thomas case has made a mistake a couple of times over, and to me risks having sanctions applied for being an activist on the bench rather than being realistic.
Both judges are working from well-established remittitur case law, which shows that excessive fines - even when punative in nature - are unconstitutional, if they are an order of magnitude higher than the actual damages. See: BMW v. Gore, State Farm v. Campbell, Correa v. Hosp. San Francisco, Segal v. Gilbert Color Sys., and of course the Williams case that Dave Hansen linked to, above. They are all quoted in Nancy Gertner's ruling reducing damages, if you want to read it.
Of course, juries do not have access to this case law, and are not given any indication that awards should be related to actual damages. They're simply told, "Pull a number out of your ass that's somewhere between $750 and $150,000."
Only an idiot would call these rulings "judicial activism." Both judges were acting well within the requirements of the law. I think you would be hard-pressed to find a judge who would rule differently.
Getting back to the topic at hand:
8th amendment is not an issue here.
For whatever reason, the reduction of excessive damages in jury awards has always been ruled unconstitutional under the 14th Amendment, rather than the 8th. I remember talking about this with Average_Joe on here, and neither of us could figure out precisely why this is so. I think it's just how things turned out in the ever-fluid body of case law.
Or, it could be that the 8th Amendment is used for criminal penalties, rather than tort cases, as you suggested. Not sure.
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Let's look at things in a realistic manner.
There is almost no way to "share" something via P2P to a single person only. It's very nature is in fact to share with as many people as possible. Even in the abstract, the share would involve any number of people.
The results of sharing a file with people is that you set in motion a chain of events. Remember that anyone you shared with has it only because you shared with them. Without the reckless act, there would be no further sharing. Their actions recklessly allow all these other actions to occur.
"The judges in both the Thomas-Rasset case, and the Tenenbaum case, took the potential damages into full consideration... before both of them reduced the awards as being "unprecedented and oppressive.""
This is true, and yet in the Thomas case, twice a jury of citizens has some back with a large award, and the same activist judge set it down to a very small amount. Sometimes tells me the judge isn't in tune with what the juries are seeing.
Remember, there is no "pull a number out of your ass" here. These are juries of reasonable people who come to these conclusions.
The 8th amendment seems, at least on the surface, to be aimed expressly at criminal proceedings, perhaps best explained that punishment can only apply to criminal matters, while settlements or judgements apply to civil matters. I think the 8th is reserved solely for actions of the state in criminal matters.
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Call it crazy, but during the entire trial, did anyone check to see if Jammie had the "share to others" light turned on?
"Sometimes tells me the judge isn't in tune with what the juries are seeing."
Have you read the jury instructions? Just to reiterate what Karl is saying, they literally pull a number between $750 and $150K, multiply that by 24 and boom, out pops the million dollars in damages. Or are you suggesting otherwise?
"These are juries of reasonable people who come to these conclusions."
What would have been reasonable? Possible jury nullification, but that's just me...
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As for the jury, they are told what the law states, they listen to the case, and they come up to a judgement.
You have to remember that Thomas was sharing significantly more than 24 files, but the 24 were selected more or less to be "indicative". If the settlement amounts per infraction are too low, the next case will likely involve hundreds or thousands of files, depending on how many were being shared.
As for jury nullification, I think of that as the last line of legal defence of the Tardian nation, where a single individual can corrupt the legal system entirely, the minority telling the majority what to do. If that is your best defence, you have already lost.
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I think the issue here is that the law states that the jury should make up a number between 750 and 150000. The problem is the law, not the jury.
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-- BAD when it's a non-monied individual in a jury, but
-- GOOD when it's a monied corporation like the RIAA?
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This sounds exactly like what "we the people" are complaining about when it comes to content and IP companies and their associated groups; copyright law, the entire patent system, and other forms of suppression in which "we the people" are being sold out by our government representatives who are failing us on a catastrophic level to the point that virtually none of the culture we experienced in our lifetime will ever be a part of the public domain while we are alive.
"Change the laws if you don't like them." doesn't work when the public cannot possibly pay their own representatives enough money to make them actually represent US instead the entertainment industry. The industry has far deeper pockets thanks to Houdini like accounting practices so morbid that even the 15th highest grossing film in history has never, and will never, show a dime in profit.
The scale is far out of balance I seriously doubt that it could ever be corrected under the current government structure and political practices.
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They looked up the IP address IIRC. Furthermore, with all of the cases about Bittorrent as well as her case, you can not prove that she was sharing the files at the time she was caught.
Here's the instructions they were given:
"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.
"You have to remember that Thomas was sharing significantly more than 24 files, but the 24 were selected more or less to be "indicative". If the settlement amounts per infraction are too low, the next case will likely involve hundreds or thousands of files, depending on how many were being shared."
And Tenenbaum shared more than the songs stated. Big deal. How did they cause severe economic damages with non-profit filesharing?
Or is the fact that the RIAA's campaign spent more than it brought on lost on you? The courts noticed this "sue em all" strategy and took measures to minimize what the RIAA was doing. So your "hundreds or thousands" line is a lot of fluff since it's highly unlikely to occur.
"As for jury nullification, I think of that as the last line of legal defence of the Tardian nation, where a single individual can corrupt the legal system entirely, the minority telling the majority what to do. If that is your best defence, you have already lost"
Please look up jury nullification. Here is the Fugitive Slave Act, where jurors refused to convict through nullification.
Currently, there are hung juries based on our drug policy. Indirect evidence of unfair or biased laws.
In the times of Prohibition, the nullification was used to let off the "rogue gangsters" that were providing alcohol to them.
It has a long history of usage that go far beyond the civil rights issues of copyright. It isn't corrupting the legal system. It's another tool that can express people's feelings based on the laws passed by Congress. In this case, Whitney Harper, Jammie Thomas, and Joel Tenenbaum wouldn't have the huge settlements if jurors and judges had been given more options than the one sided deal that is statutory damages.
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Every time you use a variation on the term "freetard," you reveal yourself to be an idiot who doesn't know what they're talking about.
Let me make something clear. There is no such thing as a "freetard." It is an urban myth, created as a derogatory term so that IP supporters can make a straw man out of their opponents.
I wanted to come up with a phrase that satirized the idiots who use this phrase. I happen to like "IPtard," but Mike doesn't like it, because he wants to keep things civil around these parts.
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That is simply not true. If someone in the middle of the chain decided to not share the file, further sharing would simply come from someone else, such as the original uploader, or any number of other peers.
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As for $750 not being a large sum of money, get a grip on reality. To an average middle class family with a total income of 60k a year (totally random number, I consider myself to be middle class and my total family income is significantly lower), $750 is a VERY significant number, in fact, its damn near 20% of their monthly income. I disagree with DH about the maximum fine on this, for a non-commercial infringement, unless the plaintiff can actually prove damages, I think the total fine should not exceed $100 per infringement. Although to be entirely honest, if its a non-commercial infringement, I really don't think there should even be a basis for a lawsuit.
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Realistically speaking, there's no possible way that Tenenbaum or Thomas-Rasset alone caused even one-tenth of the amount of damages that they had to pay. They caused, as a stratospheric maximum, 100x the cost of each song in damages. Even more realistically speaking, I'd guess that maybe ten people who got the songs would have bought them otherwise, meaning a fair consideration of damages is about $10-$13 per song.
Anything more is completely unrealistic.
There is almost no way to "share" something via P2P to a single person only. It's very nature is in fact to share with as many people as possible. Even in the abstract, the share would involve any number of people.
I doubt very much that more than a couple hundred people, total, were members of their "swarms."
Nor does that even address my major point. The RIAA is also free to sue every single person who shared the file. If each one got the absolute statutory minimum of $200, then you're gaining $200 for every copy of the song that's out there.
That's what lies behind these bulk "lawsuits" by people like USCG. If even one-tenth of those people settle, they're getting about ten times as much money as they would have if every single one of those people actually bought a copy. That is obscene, and obviously not the way statutory damages were intended to work.
Let me give you an example. Cast your mind back to before the internet existed. Publisher A puts out a book, and it is widely infringed upon. Five other publishers (call them Publisher B through Publisher F) put out their own, unauthorized, versions of the book.
Now, Publisher A takes Publisher B to court. Is Publisher B held responsible for the other infringing editions of the book (from Publishers C through F)? Of course not. That is absurd. You're only liable for the infringement that you yourself commit, not anyone else's. If Publisher A wants damages from the other editions, they have to sue the other publishers.
It is just the same with Tenenbaum and Thomas-Rasset. They can only be held responsible for the people they shared with directly; the people that were in their "swarms" - and nobody else.
The results of sharing a file with people is that you set in motion a chain of events. Remember that anyone you shared with has it only because you shared with them.
Even you must realize that this is complete and utter bullshit. As far as I know, they were never alleged to be the originators of the infringing files - likely they got them from some other P2P user. Even if not, it's utterly ridiculous to believe there weren't thousands of other distinct copies already floating around. Nor was it even alleged that they were the sole (or even primary) seeders.
If they had never participated in P2P in their entire lives, the only impact would have been two less seeders in the swarm. That's it. The other P2P users wouldn't have even noticed.
Sometimes tells me the judge isn't in tune with what the juries are seeing.
The judges in the Tenenbaum and Thomas-Rasset cases were not the same judge, yet came to the same conclusion. And as far as I know, these are the only two P2P cases against individuals to ever make it to a jury award. So, thus far, all of the judges have thought the awards were "unprecedented and oppressive."
I think it's more likely that they're not "activist judges," and you just have a personal bias against their rulings. I have problems with some judges' rulings too, but that doesn't mean they're "activist judges." It usually means I dislike the laws that allowed those rulings.
And I have to ask: Why do you have a problem with laws against unconstitutionally excessive jury awards? Do you think the judges should have allowed them in all the other cases I mentioned, too? Or are you just someone who has a hate-on for people sharing music?
Back on topic:
The 8th amendment seems, at least on the surface, to be aimed expressly at criminal proceedings, perhaps best explained that punishment can only apply to criminal matters, while settlements or judgements apply to civil matters.
Another A.C. posted a quote from Browning-Ferris v. Kelco, and it appears that you are absolutely right. You learn something new every day!
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Nitpicks:
The judges slashed the rewards for different reasons.
Joel Tenenbaum - remittitur saved him from the original $675,000 verdict
For Jammie Thomas - Having gone through remittitur already, the judge faced the constitutionality of the damages clause of copyright.
Also, you can't forget the cheerleader Whitney Harper, whose case was shot down by the Supreme Court. She currently has a $30,000 lien against her for downloading songs at the ripe bold age of 14.
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As I understand it, both were remittiurs (remitti?). Remittiur just means that the judge reduces the jury's award. The difference is that Thomas-Rasset got a whole new trial, while Tenenbaum didn't.
The reasoning for both reductions was that the damages were unconstitutional under the Due Process clause.
Also, you can't forget the cheerleader Whitney Harper
I didn't, but her case never made it to a jury. To give some idea of what the judges in her case thought was fair: the original judge set the damages at the statutory minimum of $200 per infringement, ruling that it was innocent infringement. The circuit judge ruled that it legally could not be innocent infringement - and set the damages to the non-innocent statutory minimum of $750 per infringement.
And even that increased award is far lower than the reduced damages in the Thomas-Rasset and Tenenbaum cases... to say nothing of the jury awards.
Unless both these judges (and the Supreme Court who refused to hear the case) are also "activist judges," I'd guess this particular A.C. is motivated purely by hatred of file sharing, and not respect for justice. But what do I know?
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Karl, "activist judge" means "judge I don't agree with". ;-)
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Such as experts in the proper application of vulgarity, phalic-jokes, international men and women of mystery, and most interesting people on the planet.
Plus I'm pretty sure I'm the Dog Whisperer, but it's difficult to be certain....
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Federalism etc.
I thought the suit against Jammie was a federal one; if so, if you are right that she will argue it violated due process, then they would use the Fifth Amendment, which applies due process limits to federal action; no need to look at the 14th. But it would be interesting to see if they try an 8th amendment argument too. And, of course, both the 5th and 8th amendment were part of the Bill of Rights ratified in 1791, two years after the Constitution and its Copyright clause, so arguably, if and to the extent there is a "conflict" between the copyright clause, and the 5th or 8th amendment, those later amendments ought to prevail (in the same way that later legislation trumps or repeals earlier legislation; in the same way that prohibition was repealed by a later constitutional amendment).
Note also that Cato/REasonFoundation/CEI recently argued in a brief that extending process patents to medical diagnostic techniques violates the First Amendment--so the argument there is that the Patent Clause cannot be construed to permit patent grants/patent law that conflicts with free speech rights in the First Amendment.
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What percentage of just the yearly profits of the big recording companies is the measly $67 million they paid to make a price-fixing case go away? Less 1%, you say?
Talk about excessive.
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You are right that the Eighth Amendment is applied to the states via incorporation doctrine, but this isn't an Eighth Amendment issue. That's why Thomas-Rasset and Tenenbaum didn't argue the Eighth Amendment. Instead they argued that it violated the Due Process Clause. Eighth Amendment Excessive Fines would only apply if it were the government doing the fining, and that's not the case here.
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Weren't the fines set by Congress? Also, the choice was given to the prosecution of recouping economic damages or going with the entirely arbitrary statutory damages as set by the NET Act. To me, it seems that the "price" of copyright infringement is entirely set by Congress.
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The Eighth Amendment only applies with "criminal process and with direct actions initiated by government to inflict punishment." That's not the case here with jury-awarded damages.
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I do have to wonder if the judge slashing the jury award will have any effect however...
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My wild ass guess is that the appeals court will probably reverse. While the damages are ridiculous, I'm not convinced it violates due process.
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I doubt highly they would want to reverse it. The backlash on this would be immense. I honestly have no idea what may be a better solution. Either set a new precedent for lowering damages, or have a very high standard as set by these few cases to be used against filesharing later on. Only one option sounds reasonable right now.
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Better jury instructions would be a start. The jury should have known that statutory damage awards should be proportional to actual damages, and that anything more than roughly 4x the possible actual damages is unconstitutionally excessive.
If they had been told these things, I'm guessing that they would have come back with a number that is far less than even the current reduced awards.
Until that is allowed, damage reductions like this are the only thing the law can do.
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I thought the purpose of statutory damages is for when actual damage cannot be proven, or is not proven. How can you instruct the jury to consider actual damages in such a case? Or do I misunderstand statutory damages?
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The 8th Amendment is in general associated with criminal law, and is inapt to the JRT case.
In the JRT case the only constitutional provision being argued on appeal is the due process provisions of the 5th Amendment because it is a federal action.
The case being relied upon by the defendant is associated with the 5th Amendment as incorporated by the 14th Amendment against state action, the Gore case. The case being relied upon by the plaintiff involves the 5th Amendment, the Miller (IIRC) case.
Thus far federal courts have rejected the Gore case and deemed the Miller case to be controlling.
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Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
It does not say "criminal". It does not say "civil". It's says "excessive". And if someone here does not think that copyright statutory fines are excessive, I bet it wouldn't be excessive for him to part with a couple grands: ask me for my bank info.
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The awards granted to the plaintiffs are not fines; they are punishment, as they are statutory. They are also excessive and cruel. Such amounts of money would render most citizens destitute for life, which is pretty cruel in my opinion. It's cruel and excessive punishment, end of story.
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The Eighth Amendment is not "a check on the power of a jury to award damages in a civil case." The Court could not be any more clear that the Eighth Amendment Excessive Fines Clause is not implicated by excessive jury awards in civil cases.
The Clause does apply when it's the government doing the fining. Like my example above with the red light ticket. If I get caught running a red light, I get fined by the government. I pay the fine to the government. Thomas-Rasset doesn't owe money to the government. She owes money to the private party plaintiffs. It's not a "fine" as that term is defined to mean in the Eighth Amendment.
I get what you're saying that this seems like excessive punishment, but the Supreme Court is absolutely clear that as a matter of law the Eighth Amendment does not apply in cases like this involving jury awards. If the damages are excessive, it's a Due Process Clause issue.
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http://en.wikisource.org/wiki/Missouri_Pacific_Railway_Company_v._Humes/Opinion_of_t he_Court
I think that in the case you specify, the court was wrong in saying that the eighth amendment cannot apply. In their justification for saying it does not apply, they say, "But the practice of awarding damages far in excess of actual compensation for quantifiable injuries was well recognized at the time the Framers produced the Eighth Amendment. Awards of double or treble damages authorized by statute date back to the 13th century,"
Yeah, but "double or treble damages" for "quantifiable injuries" is not what most people would consider excessive. That's not what we're talking about in the current case, though. We're talking crushingly high damages for injuries that are unclear at best.
And the amendment perhaps shouldn't have applied to the particular case they were looking at, which involved punative damages of $6 million for a company that made $25 million per week; as opposed to a private citizen with no prospects of ever having that amount.
"If I get caught running a red light, I get fined by the government. I pay the fine to the government. "
So $150,000 per light would be fine if it were paid to the maker of the red-light camera, instead? Or perhaps to whoever happens to be in the car you just cut off?
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You know, you might have a point here.
As the other A.C. pointed out, in case law, the 8th Amendment doesn't apply at all to jury awards (since it isn't the government that is getting the funds). Instead, it is a violation of Due Process. I quoted a bunch of cases (which I in turn got mainly from the Tenenbaum ruling reducing the damages), and they all relied on the Due Process clause.
But here's the catch. In none of the other cases (including the Browning-Ferris case that the other A.C. quoted) were the jury awards based on statutory damages. Since statutory damage amounts are set by Congress, and not entirely by the jury, there could be a good argument that the 8th Amendment applies.
I personally don't think that argument would fly, but I've been surprised before. Were I Thomas-Rasset's lawyer, I'd at least throw it at the wall and see if it sticks.
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I'm hesitant on this, having talked to the AC above on this same issue.
Most judges are err too much on the side of caution rather than look like they're "judicial activists". Usually, they don't want to rock the boat in regards to these cases. I have no idea if the Tenenbaum case will come with a further reduced look at this problem.
The text reads about excessive damages in regards to the 8th Amendment. The punitive damages here are priced exceedingly out of the defendant's ability to pay as well as the MSRP of the song. IANAL, but rather than the rebukes with the words, the spirit of the law should be that she is charged with provable economic damages instead of the higher statutory damages that are arbitrary.
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It's not asinine at all. As the Supreme Court quote I posted shows, jury awards of damages in private-plaintiff civil suits are not "fines" as that term is used in the Eighth Amendment. I see the logic in thinking that the Excessive Fines Clause might apply here, but the jurisprudence is clear that it does not.
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So is anyone willing to pay me a couple of grands in levies? Or ransoms, or taxes, or donations, or allowances? Since only "fines" shouldn't be excessive, the other ways of paying me are not excessive by any means... My bank account info, anyone?
Whatever you call an elephant, it will not magically become a sparrow.
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Common sense.... So damned rare, it's now a superhuman power
We are now in the digital age and those fines should still be used for their INTENDED purpose against illegal commercial scale distribution of copyrighted material. Someone call Common Sense Man, so he can add that verbiage to copyright law.
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Re: Common sense.... So damned rare, it's now a superhuman power
There are currently zero links in piracy and organized crime. The fact remains that these laws do more harm than good. These are exactly the same laws being used against filesharers, be it the Ninjavideo group recently posted or a release group as set upon by their rivals.
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Citation, please.
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Re: Re: Re: Common sense.... So damned rare, it's now a superhuman power
Citation, please.
Here you go:
Major report debunks alleged link between piracy and terrorism
Read the report here:
http://piracy.ssrc.org/about-the-report/
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Re: Re: Re: Re: Common sense.... So damned rare, it's now a superhuman power
Citation, please.
Here you go:
Major report debunks alleged link between piracy and terrorism
Read the report here:
http://piracy.ssrc.org/about-the-report/
Perhaps the authors of this groundbreaking report don't know how to perform a Google search. Here's one article proving Jay's assertion that "There are currently zero links in(sic) piracy and organized crime." is utter, self-serving bullshit. Let me know if you'd like more examples, or better yet try a little basic research of your own.
http://www.dailytelegraph.com.au/news/national/big-crims-push-out-film-geeks/story-e6freuzr-11 11117288527
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They did a lot more than a Google search, and actually talked to lots of people (including government officials) in the countries themselves.
Here's one article
...that simply repeats one of the studies that the SSRC totally debunked.
Really, you should read the book, it's free.
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AFACT is not a source on this first of all. AFACT is the MPAA in disguise in the Land Down Under. It's similar to taking the IFPI's numbers with a grain of salt.
Rethinking Piracy
But here's the text questioning "Does Crime Pay?:"
Claims of connections between media piracy and narcotrafficking, arms smuggling, and other
“hard” forms of organized crime have been part of enforcement discourse since the late 1990s,
when the IFPI began to raise concerns about the transborder smuggling of pirated CDs (IFPI
2001). Claimed connections between piracy and terrorism are a more recent addition.
... Commercial-scale piracy is illegal, and its clandestine production and supply chains
invariably require organization. It meets, in this respect, a minimal definition of organized crime.
Pirated CD and DVD vending, moreover, is often concentrated in poor neighborhoods and
informal markets where other types of illegal activity are common. Such contexts create points
of intersection between the pirate economy and wider illegal and quasi-legal arrangements of
the informal economy. It would be remarkable if they did not.
But we found no evidence of systematic links between media piracy and more serious forms of organized crime, much less
terrorism, in any of our country studies. What explains this result?
Invariably, the rationale offered for criminal-syndicate and terrorist involvement is
that piracy is a highly profitable business. The RAND report, for example, states (without
explanation) that “DVD piracy . . . has a higher profit margin than narcotics” (Treverton et al.
2009:xii)—an implausible claim that has circulated in industry literature since at least 2004.
...
But it is also clear that such networks are marginal to the larger pirate economy and rapidly waning—driven into
unprofitability by expanded local production and free digital distribution. We see no evidence
that piracy, outside a few niche markets, is still a high-margin business.
Now, this goes on to explain how the profit margins have waned by the fact that DVD burners and blank discs becoming a commodity item:
Pressure on profit margins has increased, too, due to the
rise of the massive non-commercial sphere of copying and distribution on the Internet, which
has all but eliminated commercial optical disc piracy in high-income countries and appears
poised to do so further down the GDP ladder. Increasingly, commercial pirates face the same
dilemma as the legal industry: how to compete with free.
So you can't have it both ways. You can't say that copying promotes terrorism while also saying that noncommercial filesharing is continuing to hurt the industry as well.
So, your IFPI link? That's in the book. They talk to the MPAA, the RIAA, and quite a number of other people in industry. They talk about the 1:1 correlation of piracy losses, and how copyright enforcement is really bad through selective enforcement.
It's a REALLY good book to read, and the first part is only 70 pages. I second you looking into the book to better rethink what piracy supposedly is.
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BTW, did you also know that the US drug policy has failed?
Do you recognize that LEAP (Law Enforcement Against Prohibition) has recognized this through their own discussions, which Google has on Youtube?
Just sayin, it's good to read up on these issues.
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Re: Re: Common sense.... So damned rare, it's now a superhuman power
Citation, please.
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Already provided. Zero.
Zero, huh? Start by reading this. There are many more.
http://www.dailytelegraph.com.au/news/national/big-crims-push-out-film-geeks/story-e6freuzr -11 11117288527
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"Members of a narcotics ring that sent large amounts of cocaine and cash back and forth across the U.S. in music “road cases” arranged pickups and deliveries at the offices of Interscope Records, a music industry power whose roster includes artists like U2, Eminem, and Lady Gaga, according to federal investigators."
http://www.thesmokinggun.com/documents/interscope-records-cocaine-shipments-654820
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Re: Common sense.... So damned rare, it's now a superhuman power
First off, they aren't fines. Fines apply only to criminal cases brought by the state. These are settlements, judgements, or the like. They are not fines and this has significant legal implications.
As for the "commercial scale", consider this:
http://www.geekosystem.com/software-license-shared-774651-times/
A single set of licenses, shared online, got used more than 3/4 of a million times. Now, compare that to your "commercial" pirate working at a flea market selling a couple of hundred knock off DVDs, and you start to see the problem. Online, a single seeding of a file can lead to an incredibly huge number of illegal copies being made, and as such, represents a larger issue than almost any commercial infringer.
Common sense man, the flea market guy has a few hundred potential customers, online you have the world's online population. Which one has bigger potential for causing problems?
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Suing a random person in a chain of events is like pulling a random car from a mile-long highway pile-up. Sure that car contributed to the collision by not holding an appropriate distance. So fine that driver.. ok, not fine, but make him pay for all other collided car repairs.
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Part of the wonderful world of P2P is that everyone who shares can be considered a seed as well. Seeding of a completed download is pretty much the default of uTorrent and others.
That she is not the first seeder doesn't minimize her impact. She can choose not to share, not to download, or she can choose to break the law, and help others to do so as well. The original seeder and everyone between to her bears some responsiblity as well (they each performed illegal acts), and by perpetuating the file, she too has encouraged others to do the same.
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Lets assume there are X number of people all sharing the same file.
To get the file one person purchased it, and everyone else downloaded it from some combination of the other people in the network. So we have a total number of downloads equal to x - 1.
But we are not interested in punishing the download, its the making its the uploading that is the REAL harm, each one of those people could have uploaded the file to 1000's of other people, who in turn could have uploaded it to 1000's more. So lets look at the total number of uploads in the network. How do we do that? Well for every complete upload, there has to be exactly one complete download, so the number of uploads for the entire network is equal to the number of downloads: X - 1.
So the whole network is responsible for x - 1 uploads. If we divide by the total number of people in the network we will end up with the average amount of sharing each person is responsible for. So each person is responsible for (X - 1) / X copies of the file getting out.
Lets pretend that one of the files was shared by 1,000,000 people, then each person is responsible for .99999 copies of the file getting out.
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With infringement, you could argue that the original uploader caused the chain events that led to an immeasurable number of downloads, but each individual seeder can only be held liable, using your equation, for a single download. Holding each seeder responsible for every single download means that you could successfully sue them all and recoup an obscene multiple of actual and/or statutory damages. There is no logic in this formula.
However, it should also be noted that statutory damages are, in my opinion, arbitrary in nature and do NOT require proof of actual damages to be awarded.
http://en.wikipedia.org/wiki/Statutory_damages
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Fines
Example Make $50k/year, have $200/month of disposable. One year's worth would be $2.4k. Make them give up 25% of that. Instead of a $1mil fine, they instead get a $600 fine.
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What a joke.
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It's not a joke.
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> because they have no money?
Think about it, you idiot. If the person on welfare has "no money", how likely is it they were going to buy the CD in the first place? How does pirating something they were never going to buy "fuck over rights holders".
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not how I usually spell these words ....
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excessive fines.....
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Re: excessive fines.....
Just to add insult to injury.
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Does anyone think..
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Not that this have ever deterred you from making sweeping pronouncements on the Constitutionality of whatever law or enforcement action you disagree with.
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Idnt care
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8th amendment and Copyright
In United States v. Bajakajian, 524 U.S. 321 (1998), the Supreme Court ruled that it was unconstitutional to take $357,144 from a person who failed to report his taking of more than $10,000 in U.S. currency out of the United States.
This seems to parallel "stealing" a Movie (usually that sells for like $30 when you buy it) and getting a fine for $250,000.
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