Do The Statutory Damages Rates For Copyright Infringement Violate The Eighth Amendment?

from the questions,-questions dept

Wed, Sep 14th 2011 6:43am — Mike Masnick

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

117 Comments

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sophisticatedjanedoe (profile), 14 Sep 2011 @ 6:44am

I came to the same conclusion couple of months ago. Great minds think alike :)

I had a slightly different focus though - excessive fines is major reason for abusing the law.
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Dave Hansen, 14 Sep 2011 @ 7:11am

Punitive v. Non-Punitive Damages
I'm no expert om the 8th Amendment, but I don't think the court would go too far down that road--I think the Excessive Fines Clause has more to do with fines that are punitive in nature; the courts have pretty clear and relatively restrictive guidelines on how to deal with fines like that, which are seen as punishments (called the "Gore Guideposts". A good article/debate on this is available here.

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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fogbugzd (profile), 14 Sep 2011 @ 7:14am

You shouldn't have a problem getting a constitutional scholar to chime in. All of the posters consider ourselves constitutional scholars, economists, legal experts, international relations experts, and supremely knowledgeable about all things tech. Plus a few other things that I won't go into here.
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Stephan Kinsella (profile), 14 Sep 2011 @ 7:17am

Federalism etc.
The copyright law is federal so this is an attempt to use federal courts to strike down federal law or its application. THe Fourteenth is used mainly to limit what states can do. For example there is a Due Process clause in the 14th that limits State action; and the Court has held that this Due Process clause "incorporates" other important rights in the Bill of Rights (like free speech), so they apply to the states via the 14th.

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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Dark Helmet (profile), 14 Sep 2011 @ 7:19am

Re:
"All of the posters consider ourselves constitutional scholars, economists, legal experts, international relations experts, and supremely knowledgeable about all things tech. Plus a few other things that I won't go into here."

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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Stephan Kinsella (profile), 14 Sep 2011 @ 7:21am

Re:
Nice--I added this in an update to my post that Mike linked to, and will also add your site to the blogroll of c4sif.org
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Anonymous Coward, 14 Sep 2011 @ 7:27am

Re: Punitive v. Non-Punitive Damages
Further, let's not forget that, even if you assign a very small amount of money as they value of a single copy (even $1), it is clear that a single copy online can be the starting point for millions of additional copies. There is seemingly a reckless disregard for the implications of sharing the file online.

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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Anonymous Coward, 14 Sep 2011 @ 7:33am

Re: Punitive v. Non-Punitive Damages
If something that exceeds by 1500 percent the yearly earnings of someone is not unusual and cruel I really don't know what is then.
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MrWilson, 14 Sep 2011 @ 7:38am

What percentage of Jammie Thomas-Rasset's projected life-long income is the $1,000,000+ fine? More than 100%, you say?

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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Anonymous Coward, 14 Sep 2011 @ 7:40am

Re: Re: Punitive v. Non-Punitive Damages
"Further, let's not forget that, even if you assign a very small amount of money as they value of a single copy (even $1), it is clear that a single copy online can be the starting point for millions of additional copies. There is seemingly a reckless disregard for the implications of sharing the file online."

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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Anonymous Coward, 14 Sep 2011 @ 7:42am

Re: Re: Punitive v. Non-Punitive Damages
Except holding someone responsible for the spread of a file after they are done with the transaction is holding them responsible for something they have no control over. Its someone else's infringement. If we move back one step in the transaction chain, we get to where someone purchased the file legitimately. Should we hold the person who sold the file in the first place responsible for its spread online? The retailer has as much control over what happens to the file once they sell it, as the infringer has over it once they upload it. People should be held accountable for there own crimes, not the crimes of other people.
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Anonymous Coward, 14 Sep 2011 @ 7:42am

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 Fourtheenth Amendmenet, 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.

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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Anonymous Coward, 14 Sep 2011 @ 7:44am

Mr. Masnick is correct that the 5th Amendment applies to federal actors and the 14th Amendment to state actors, with the 14th Amendment being the basis for incorporating the substantive provisions of the 5th Amendment to encompass state actors.

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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Dark Helmet (profile), 14 Sep 2011 @ 7:46am

Re: Re: Punitive v. Non-Punitive Damages
"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."

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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MrWilson, 14 Sep 2011 @ 7:46am

Re: Re: Punitive v. Non-Punitive Damages
You can't hold Thomas-Rasset responsible for other people downloading the same songs. She didn't originate the songs herself. Everyone is responsible for their own actions.

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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Dave Hansen, 14 Sep 2011 @ 8:00am

Re: Re: Punitive v. Non-Punitive Damages
Even assuming that the award is punitive in nature, the fact that the range of potential statutory damages is very broad is precisely the point--excessive punitive damages awards are held to violate due process in part because they are so disproportionate that the defendant had no notice that he could be subject to such a large fine. Courts have said that, to be enforceable, people deserve to know the potential consequences of their actions. Statutory damages range from $750 per work infringed at the low end to over $150,000 at the high end. I guess you could say that because this large range is published in the statute, every potential infringer has notice--- but then that would mean the "notice" requirement isn't really a constitutional notice requirement at all, but a statutory one. Could congress could just pass a blanket law that says "listen up everyone, if you violate the law, you are hereby on notice that the fine could be anywhere from $0 up to $1 billion." ? No-- so notice must mean something more like "what would a reasonable person think the fine might be for this." I don't think many reasonable people expect a fine of $50k for downloading a single song.
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sophisticatedjanedoe (profile), 14 Sep 2011 @ 8:00am

Re:
Here is the text:

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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Jay (profile), 14 Sep 2011 @ 8:01am

Re:
How do you mean the government isn't doing the fining?

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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sophisticatedjanedoe (profile), 14 Sep 2011 @ 8:01am

Re: Re:
Thank you.
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Anonymous Coward, 14 Sep 2011 @ 8:05am

Re: Re:
It's not even a fine. An excessive fine would be like if you run a red light and the government fines you $1,000,000. This is statutory damages. They can be excessive too, but it's a due process issue, not an excessive fines issue.
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Anonymous Coward, 14 Sep 2011 @ 8:07am

Re: Re:
Damages can be excessive, but that doesn't make them "fines" as that word is used in the Eighth Amendment. These aren't fines.
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Jay (profile), 14 Sep 2011 @ 8:25am

Re: Re: Re:
That seems to be a quibble on wording, not an explanation to what I've pointed out...
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Josef Anvil (profile), 14 Sep 2011 @ 8:32am

Common sense.... So damned rare, it's now a superhuman power
The statutory fines in copyright law aren't so much broken as they are antiquated. It's obvious, even to a moron in a hurry, that the fines were designed to recoup damages from illegal commercial distribution. Prior to the internet making the old distribution systems irrelevant, those fines were probably necessary and so no one complained much or even cared that they were so high.

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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Karl (profile), 14 Sep 2011 @ 8:37am

Re: Re: Punitive v. Non-Punitive Damages
Further, let's not forget that, even if you assign a very small amount of money as they value of a single copy (even $1), it is clear that a single copy online can be the starting point for millions of additional copies.

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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Bengie, 14 Sep 2011 @ 8:38am

Fines
Make copy right fines based on a percentage of disposable income.

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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Anonymous Coward, 14 Sep 2011 @ 8:42am

Re: Re: Re: Re:
This should help:
We face here the questions whether the Excessive Fines Clause of the Eighth Amendment applies to a civil-jury award of punitive or exemplary damages, and, if so, whether an award of $6 million was excessive in this particular case. This Court has never held, or even intimated, that the Eighth Amendment serves as a check on the power of a jury to award damages in a civil case. Rather, our concerns in applying the Eighth Amendment have been with criminal process and with direct actions initiated by government to inflict punishment. Awards of punitive damages do not implicate these concerns. We therefore hold, on the basis of the history and purpose of the Eighth Amendment, that its Excessive Fines Clause does not apply to awards of punitive damages in cases between private parties.
Browning-Ferris Indus. of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 259-60 (1989).

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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Anonymous Coward, 14 Sep 2011 @ 8:45am

Fourtheenth Amendmenet
not how I usually spell these words ....
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Jay (profile), 14 Sep 2011 @ 8:45am

Re: Common sense.... So damned rare, it's now a superhuman power
I would argue against them.

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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Anonymous Coward, 14 Sep 2011 @ 8:46am

Re: Re: Re:
Cruel and unusual applies here, since I never saw anybody be punished by statutory damages bigger than what they would possibly be able to pay in their lifetimes.
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Jay (profile), 14 Sep 2011 @ 8:48am

Re: Re: Re: Re: Re:
Thank you. That helps immensely.

I do have to wonder if the judge slashing the jury award will have any effect however...
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Anonymous Coward, 14 Sep 2011 @ 8:50am

Re: Re: Re: Re:
The cruel and unusual punishment argument is even more tenuous than the excessive fines argument, and it fails for the same basic reasons. It's not that the damages here aren't excessive, cruel, and unusual, it's just that this isn't an Eighth Amendment issue. It's a due process issue.
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Anonymous Coward, 14 Sep 2011 @ 8:50am

Re: Re: Re:
How asinine.
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sophisticatedjanedoe (profile), 14 Sep 2011 @ 8:51am

Re: Re: Re:
Ok, not fines.

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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Anonymous Coward, 14 Sep 2011 @ 8:52am

Re: Re: Re: Punitive v. Non-Punitive Damages
Karl, let me start with you, as you wrote the most.

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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sophisticatedjanedoe (profile), 14 Sep 2011 @ 8:53am

Re: Re: Re: Re: Re:
I agree. This kind of punishment is not unusual. What is unusual these days is a well balanced, common sense judgement in a copyright case.
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Anonymous Coward, 14 Sep 2011 @ 8:57am

Re: Re: Re: Re: Re: Re:
I do have to wonder if the judge slashing the jury award will have any effect however...

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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Jay (profile), 14 Sep 2011 @ 8:57am

Re: Re: Re: Re: Punitive v. Non-Punitive Damages
"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."

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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Anonymous Coward, 14 Sep 2011 @ 8:58am

Re: Common sense.... So damned rare, it's now a superhuman power
Two things.

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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Jay (profile), 14 Sep 2011 @ 9:02am

Re: Re: Re: Re: Re: Re: Re:
So, they'll charge her for millions in damages, when there's no economic evidence of it, and the judge has already found them to be excessive?

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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Anonymous Coward, 14 Sep 2011 @ 9:05am

Re: Re: Re: Re:
How asinine.

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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Jay (profile), 14 Sep 2011 @ 9:08am

Re: Re: Common sense.... So damned rare, it's now a superhuman power
In the last 10 years of law to try to criminalize the populace, has copies of popular software, games, and movies harmed anyone creating, or have people found newer alternatives? Sorry, but the licensing in software plays a different role than what you're insinuating. There's been no "problems" caused by filesharing that have been found to harm their ability to profit off of a work.
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sophisticatedjanedoe (profile), 14 Sep 2011 @ 9:09am

Re: Re: Common sense.... So damned rare, it's now a superhuman power
Than go after the seeder.

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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big al, 14 Sep 2011 @ 9:13am

excessive fines.....
has anyone read that Righthaven (told to pay $34,000+ leg fees) has cried that this might lead them to bankruptcy...yet think nothing of asking $150,000 per occurrence for there copyright cases.... old stevie boy thinks this is excessive....lol
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Anonymous Coward, 14 Sep 2011 @ 9:22am

Re: Re: Re: Punitive v. Non-Punitive Damages
DH, as the file itself wasn't specifically tagged for tracking, it is very hard to determine from that specific individual file. But you would have to be incredibly ignorant to think that her sharing parts of her file with hundreds of other people wouldn't contribute to the spread of the file.

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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Anonymous Coward, 14 Sep 2011 @ 9:23am

Re: Re: Re: Re: Punitive v. Non-Punitive Damages
"Without the reckless act, there would be no further sharing"
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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Anonymous Coward, 14 Sep 2011 @ 9:25am

Re: Re: Re: Re: Re: Punitive v. Non-Punitive Damages
Jay, the only way she was caught was because they were able to see the file remotely. That would be the share light on.

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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Anonymous Coward, 14 Sep 2011 @ 9:26am

Re: Fines
Yeah, good. So someone on welfare can fuck over rights holders because they have no money?

What a joke.
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Anonymous Coward, 14 Sep 2011 @ 9:34am

Re: Re: Re: Re: Re: Re: Punitive v. Non-Punitive Damages
"As for the jury, they are told what the law states, they listen to the case, and they come up to a judgement."

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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sophisticatedjanedoe (profile), 14 Sep 2011 @ 9:38am

Re: Re: Re: Re: Re: Re: Punitive v. Non-Punitive Damages
True. With one correction: who is the majority here? Just ask around if a million-dollar fines for an individual in a copyright infringement case are insane or not. And see what majority thinks.
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Any Mouse (profile), 14 Sep 2011 @ 9:39am

Re:
And there you go making sweeping generalities. The only thing I am 'expert' in is taking the odds and ends of my pantry and turning them into tasty, tasty food.
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sophisticatedjanedoe (profile), 14 Sep 2011 @ 9:43am

Re: Re: Fines
Right holders (not all of them, but those who embedded litigation into their failing business models) fuck over the rights of general (mostly not wealthy) public and get away with that.

It's not a joke.
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Anonymous Coward, 14 Sep 2011 @ 9:47am

Re: Re: Re: Re: Re: Re: Re: Punitive v. Non-Punitive Damages
No, jury instructions are much more detailed in describing the law as it pertains to statutory damages. While I do not have the document in hand, a copy of Judge Davis' instruction to the jury in the JRT case (third trial) can easily be found via an internet search.
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Anonymous Coward, 14 Sep 2011 @ 9:50am

Re: Re: Fines
We should just send everyone of welfare to an island. Won't somebody think of the poor multinational corporations!
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Ikarushka (profile), 14 Sep 2011 @ 10:10am

Eighth? Fourteenth? When I see those fat cats whining about their "damages" and ruining lives of small guys and girls by claiming ridiculous amounts of money, I can't think of any other Amendment than Second.
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Anonymous Coward, 14 Sep 2011 @ 10:16am

Re: Re: Re: Re: Punitive v. Non-Punitive Damages
"That is cannot be proven in absolute terms doesn't mean that it isn't happening."

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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Chosen Reject (profile), 14 Sep 2011 @ 10:18am

Re: Re: Re: Re: Re: Re: Punitive v. Non-Punitive Damages
the minority telling the majority what to do
Let me get this straight. You find the minority telling the majority what to do as:
-- 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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Anonymous Coward, 14 Sep 2011 @ 10:24am

Re: Re: Fines
A similar principle is what allows patent troll shell corporations to operate. Somehow it's wrong only if individual people do it (and aren't even doing it on purpose they just happen to be poor).
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Dark Helmet (profile), 14 Sep 2011 @ 10:27am

Re: Re: Re: Re: Punitive v. Non-Punitive Damages
"DH, as the file itself wasn't specifically tagged for tracking, it is very hard to determine from that specific individual file. But you would have to be incredibly ignorant to think that her sharing parts of her file with hundreds of other people wouldn't contribute to the spread of the file."

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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Anonymous Coward, 14 Sep 2011 @ 10:27am

Re: Re: Re: Punitive v. Non-Punitive Damages
Well, let's consider liablity here.

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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MonkeyFracasJr (profile), 14 Sep 2011 @ 10:34am

Re: Re: Re: Re: Punitive v. Non-Punitive Damages
the damages are there

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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Ron Rezendes (profile), 14 Sep 2011 @ 10:35am

Re: Re: Re: Re: Re: Re: Punitive v. Non-Punitive Damages
"...the minority telling the majority what to do. If that is your best defence, you have already lost."

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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Jay (profile), 14 Sep 2011 @ 10:46am

Re: Re: Re: Re: Re: Re: Punitive v. Non-Punitive Damages
"Jay, the only way she was caught was because they were able to see the file remotely. That would be the share light on."

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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Jay (profile), 14 Sep 2011 @ 10:48am

Re: excessive fines.....
Don't forget they wanted the domain name.

Just to add insult to injury.
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Anonymous Coward, 14 Sep 2011 @ 10:52am

Re: Re: Re: Re: Punitive v. Non-Punitive Damages
No. Without the legitimate sale, it cannot be passed on. After that, removing one peer from the transaction has no effect on anyone else's ability to get, or send the file.

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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Jeffrey Nonken (profile), 14 Sep 2011 @ 11:01am

Re: Re: Re: Re: Punitive v. Non-Punitive Damages
Your analogy needs work. Are you really equating copyright violation with mass murder?

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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ChrisB (profile), 14 Sep 2011 @ 11:09am

Re: Re: Fines
> So someone on welfare can fuck over rights holders
> 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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Anonymous Coward, 14 Sep 2011 @ 11:09am

Re: Re: Re: Re: Re: Punitive v. Non-Punitive Damages
Your analogy needs work. Are you really equating copyright violation with mass murder?

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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Jeffrey Nonken (profile), 14 Sep 2011 @ 11:10am

Re: Re: Re: Re: Re: Punitive v. Non-Punitive Damages
We're pretty sure that her sharing these files caused a gazillion other people to share them. Furthermore, we've proved beyond the shadow of a doubt that we're pretty sure each of those constitutes a lost sale. Since each lost sale costs us $2, we want $750 million for each one, because that's fair, don't you think? 750 million times a gazillion is larger than the number of atoms in the universe, but we're willing to settle for everybody in the world paying us all the money they have.

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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btrussell (profile), 14 Sep 2011 @ 12:19pm

Re: Re: Re: Re: Punitive v. Non-Punitive Damages
"People should be held accountable for the full results of their crimes."

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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Anonymous Coward, 14 Sep 2011 @ 12:38pm

Re: Re: Re: Re: Re: Re: Punitive v. Non-Punitive Damages
But why analogize at all? Analogies are like cars that murder people without drivers.
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Greevar (profile), 14 Sep 2011 @ 12:41pm

Re: Re: Re: Re: Re:
You keep saying that over and over, yet I see nothing in your comments that compels me to believe a word of it.

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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Anonymous Coward, 14 Sep 2011 @ 12:55pm

Re: Re: Re: Re: Re: Re:
I quoted the Supreme Court saying this: "This Court has never held, or even intimated, that the Eighth Amendment serves as a check on the power of a jury to award damages in a civil case. Rather, our concerns in applying the Eighth Amendment have been with criminal process and with direct actions initiated by government to inflict punishment."

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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Anonymous Coward, 14 Sep 2011 @ 12:55pm

Re: Re: Re: Re: Re: Punitive v. Non-Punitive Damages
I am glad we agree on most of it.

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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Anonymous Coward, 14 Sep 2011 @ 12:59pm

Re: Re: Re: Common sense.... So damned rare, it's now a superhuman power
She is a seeder.

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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Anonymous Coward, 14 Sep 2011 @ 12:59pm

Re: Re: Re: Fines
They may or may not buy it, but they could consume in a legal manner (radio, etc). Piracy takes away from those sources as well, even those which appear as "free" to the end user.
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Dave, 14 Sep 2011 @ 1:02pm

Re: Re: Re: Re: Re: Re: Punitive v. Non-Punitive Damages
Dude. $750 for a single act of infringement isn't a lot? Are you kidding?? That's most of my mortgage payment for the month. Even if you go for comparative value 750xRetail value of song is almost 3 orders of magnitude more. $100,000 is 5 orders of magnitude greater than the retail value of the song.

You need new glasses. Your depth perception is way off.
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Anonymous Coward, 14 Sep 2011 @ 1:31pm

Re: Re: Re: Re: Common sense.... So damned rare, it's now a superhuman power
Ok great! You admit that the other people in the sharing network should be held responsible for there infringement. We can use some simple math to quantify exactly how much responsibility each person in the network should bear (on average)
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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Anonymous Coward, 14 Sep 2011 @ 1:44pm

Re: Re: Re: Re: Re: Punitive v. Non-Punitive Damages
I alone can skew the numbers in the opposite direction.

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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Dark Helmet (profile), 14 Sep 2011 @ 1:47pm

Re: Re: Re: Re: Re: Re: Punitive v. Non-Punitive Damages
"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?"

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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Ikarushka (profile), 14 Sep 2011 @ 1:50pm

Re: Re: Re: Re: Re: Re: Punitive v. Non-Punitive Damages
She should have put all her files in one zip archive: in this case there would be only one file. I'm going to share my entire CD collection by ripping and zipping everything to a single archive. Stay tuned for the .torrent file. I won't whine if I'm eventually caught and forced to pay $750.
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Thomas (profile), 14 Sep 2011 @ 1:54pm

Does anyone think..
that the RIAA, MPAA, or the DOJ really care about constitutional amendments? The DOJ isn't big on the Constitution in the first place anymore.
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btrussell (profile), 14 Sep 2011 @ 2:19pm

Re: Re: Re: Re: Fines
Maybe they decide to download instead of recording the radio.
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Dementia (profile), 14 Sep 2011 @ 2:22pm

Re: Re: Re: Re: Punitive v. Non-Punitive Damages
And you seem to be basing your posts on the assumption that the defendants in both of the cases are the originators of the file sharing. Now, I'm not certain if that topic ever came up, but if they didn't upload the original file, should they still be held accountable? You seem to be saying that only the first person to upload a file should be held accountable and fined in this way.

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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Dementia (profile), 14 Sep 2011 @ 2:26pm

Re:
And I fit very well into the category of jack of all trades, but only a master of some, and none of those that I would consider myself truly knowledgeable in are listed in your post.
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Anonymous Coward, 14 Sep 2011 @ 3:57pm

Re: Re: Re: Re: Re: Punitive v. Non-Punitive Damages
Truly the various studies conducted so far seem to show that file sharing actually helps rather then hinders the industry. Unfortunately those are scientific research, not legal supposition, so they carry no real weight in most political or court arenas.
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Anonymous Coward, 14 Sep 2011 @ 4:28pm

Re: Re: Re: Re: Fines
You don't like it because the technology is more advanced? okay, let me get started on that sharing client shaped like a radio.
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Anonymous Coward, 14 Sep 2011 @ 6:34pm

Re: Re: Re: Re: Re: Punitive v. Non-Punitive Damages
In answer to your question, yes, she did have it on.
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Anonymous Coward, 14 Sep 2011 @ 6:42pm

Re: Re: Re: Re: Re: Punitive v. Non-Punitive Damages
Let's not overlook the fact that she was offered on numerous occasions the opportunity to settle the matter for a very minor amount.
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Anonymous Coward, 14 Sep 2011 @ 6:49pm

I'm certainly not a Constitutional scholar ...

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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BearGriz72 (profile), 14 Sep 2011 @ 8:11pm

Re: Re: Re: Re: Re: Re: Punitive v. Non-Punitive Damages
You sir/ma'am fail. Your troll licence has been revoked.
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Ikarushka (profile), 14 Sep 2011 @ 9:14pm

Re:
I'm not a prosecutor in copyright cases, neither I'm a professor of Linguistics, but these facts have never deterred me from replying to trolls using cruel and unusual language.
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Anonymous Coward, 14 Sep 2011 @ 9:21pm

Re: Re: Re: Re: Re: Re: Re:
Of course, the court also said in another case "the power of the state to impose fines and penalties for a violation of its statutory requirements is coeval with government; and the mode in which they shall be enforced, whether at the suit of a private party, or at the suit of the public, and what disposition shall be made of the amounts collected, are merely matters of legislative discretion."

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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Anonymous Coward, 14 Sep 2011 @ 9:22pm

Re: Re: Common sense.... So damned rare, it's now a superhuman power
There are currently zero links in piracy and organized crime.

Citation, please.
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Karl (profile), 14 Sep 2011 @ 9:30pm

Re: Re: Re: Re: Punitive v. Non-Punitive Damages
Let's look at things in a realistic manner.

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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Karl (profile), 14 Sep 2011 @ 9:38pm

Re: Re: Re: Re: Re: Re: Punitive v. Non-Punitive Damages
the Tardian nation

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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Karl (profile), 14 Sep 2011 @ 9:48pm

Re: Re: Re: Re: Re: Re: Re: Re:
I honestly have no idea what may be a better solution.

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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Karl (profile), 14 Sep 2011 @ 10:01pm

Re: Re: Re: Re: Re: Re: Re: Re:
the power of the state to impose fines and penalties for a violation of its statutory requirements is coeval with government

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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Jay (profile), 14 Sep 2011 @ 11:05pm

Re: Re: Re: Re: Re: Punitive v. Non-Punitive Damages
"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.""

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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Karl (profile), 14 Sep 2011 @ 11:59pm

Re: Re: Re: Re: Re: Re: Punitive v. Non-Punitive Damages
The judges slashed the rewards for different reasons.

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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Anonymous Coward, 15 Sep 2011 @ 2:59am

Re: Re: Common sense.... So damned rare, it's now a superhuman power
There are currently zero links in piracy and organized crime.

Citation, please.
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btrussell (profile), 15 Sep 2011 @ 3:18am

Re: Re: Re: Common sense.... So damned rare, it's now a superhuman power
Already provided. Zero.
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Karl (profile), 15 Sep 2011 @ 7:24am

Re: Re: Re: Common sense.... So damned rare, it's now a superhuman power
There are currently zero links in piracy and organized crime.

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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Anonymous Coward, 15 Sep 2011 @ 7:26am

Re: Re: Re: Re: Re: Re: Re: Re:
That's all well and good, but can you find one case where the Court said the Eighth Amendment applies to jury awards of damages in a private-plaintiff suit? Nope. That's the point. Whether or not you think it should apply is meaningless if the Court has said it doesn't as a matter of law.
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Dave (profile), 15 Sep 2011 @ 9:41am

Re: Re: Re: Re: Re: Common sense.... So damned rare, it's now a superhuman power
I think this is a very astute point that people tend to miss. If 1000 people gather in Times Square with baseball and do $1,000,000 worth of property damage, are they each liable for $1mm in damages or only their share?

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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Jay (profile), 15 Sep 2011 @ 11:44am

Re: Re: Re: Re: Re: Re: Re: Re: Re:
"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'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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Anonymous Coward, 15 Sep 2011 @ 12:40pm

Re: Re: Re: Re: Common sense.... So damned rare, it's now a superhuman power
There are currently zero links in piracy and organized crime.

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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Anonymous Coward, 15 Sep 2011 @ 12:44pm

Re: Re: Re: Re: Common sense.... So damned rare, it's now a superhuman power
@btrussell:

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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Karl (profile), 15 Sep 2011 @ 2:54pm

Re: Re: Re: Re: Re: Common sense.... So damned rare, it's now a superhuman power
Perhaps the authors of this groundbreaking report don't know how to perform a Google search.

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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btrussell (profile), 15 Sep 2011 @ 3:27pm

Re: Re: Re: Re: Re: Common sense.... So damned rare, it's now a superhuman power
Page not found

We could not find the page you requested. This is either because:

There's an error in the address or link you have entered in your browser;
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If you believe that this is a technical error, please contact us and tell us the location of this page.
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Jay (profile), 15 Sep 2011 @ 7:20pm

Re: Re: Re: Re: Re: Common sense.... So damned rare, it's now a superhuman power
"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."

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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btrussell (profile), 15 Sep 2011 @ 7:44pm

Re: Re: Re: Re: Re: Common sense.... So damned rare, it's now a superhuman power
Here is a good one to read:
"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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Jay (profile), 15 Sep 2011 @ 8:55pm

Re: Re: Re: Re: Re: Re: Common sense.... So damned rare, it's now a superhuman power
Also, that article is from 2008, when the RIAA was pushing this terrorist angle, and suing people for filesharing. The trade industries were still getting a sense of what was going on, and they were pushing pretty far on the drug policy.

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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nasch (profile), 19 Sep 2011 @ 6:49pm

Re: Re: Re: Re: Re: Punitive v. Non-Punitive Damages
To expand on that, the position that someone should be held accountable for all the effects and after-effects of their crimes means that after you hold the original uploader responsible for the entire chain of events of infringement around the world, everyone else who downloaded and uploaded from that some copy should be exempt from punishment. Their actions have already been accounted for in the punishment meted out to the original offender.

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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nasch (profile), 19 Sep 2011 @ 7:05pm

Re: Re: Re: Re: Re: Punitive v. Non-Punitive Damages
I think it's more likely that they're not "activist judges," and you just have a personal bias against their rulings.

Karl, "activist judge" means "judge I don't agree with". ;-)
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nasch (profile), 19 Sep 2011 @ 7:10pm

Re: Re: Re: Re: Re: Re: Re: Re: Re:
The jury should have known that statutory damage awards should be proportional to actual damages

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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janeth, 6 Oct 2011 @ 8:16am

Idnt care
hey good commetns guys.
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Erin, 25 Jun 2012 @ 6:37am

8th amendment and Copyright
Actually , I am not a Constitutional Scholar but I am a Criminal Justice major, copyright infringement is a federal offense so it is under the control of the constitution. The 14th amendment, section 1 also known as the Due Process Clause, is used to apply other constitutional rights to the state. This would have no bearing on this case. The Due Process clause you are looking for is the 5th amendment in which due process is applied at the federal level. Now going back to your statement about the 8th amendment I had the same thought as you. So I did a little research and found that there is a precedent that goes to support this.

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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