And Of Course: RIAA Mouthpieces Defend $1.92 Million Judgment

from the time-to-pull-back-the-attack-dogs dept

It's been interesting to see the aftermath of the Jammie Thomas $1.92 million ruling, as it appears that even the RIAA is recognizing that such an insanely large award gives them something of a black-eye and has the possibility of creating a bit of a backlash. However, apparently they forgot to send out that message to all of their usual attack dogs. In an AP article discussing the ruling and the $1.92 million number with a variety of different people, the RIAA tried to distance itself from the number, specifically stating, "That was not our number, that was what 12 regular folks rendered." Uh, yeah, except that the RIAA has long used the statutory numbers in their arguments about the "risks" of file sharing.

Tom Sydnor, from the Progress & Freedom Foundation (PFF), a loud and proud supporter of stronger copyright at every turn (and who is well funded by the RIAA labels), apparently missed the memo on playing down the number. He told the reporter that it was a perfectly reasonable number.

"Legally acquiring a license to give copies of a song to potentially millions of Kazaa users might well have cost $80,000 per song,"

Except... that's not even close to accurate. The record labels presented no proof that she gave the song to millions of users, and seem to totally ignore the fact that these songs were available from tons of other sources (either legally or illegally) for prices between nothing and $1. To claim that the record labels would literally consider an option to license a single user putting a song into a shared folder at $80,000 is simply ridiculous.

But, of course, it shows the mentality of those paid for by the RIAA. These are the same people who accuse Larry Lessig of being a communist by taking a few statements totally out of context, and then accuse universities of supporting terrorism by not violating students' privacy and handing over their details to the RIAA.

So, if the RIAA is really serious about playing down the size of the jury award, it might want to rein in Sydnor before he says much more. If you're looking for someone to get out a message by appearing as a caricature of the evil record labels, I don't think you could find any organization better than PFF. But, that's probably not what the RIAA needs right now, unless it really wants to give the folks on the fence even more reason to leap over to the side who recognizes just how much the labels have twisted, stretched and abused copyright law over the years, totally at odds with its constitutional prescription of promoting the progress of science. Defending a $1.92 million award to the record labels for 24 songs in a shared folder, with no evidence that a single one was actually shared, is not promoting the progress. It's promoting massive greed and regulatory capture at the expense of society.

Filed Under: copyright, file sharing, fine, jammie thomas, lawsuit, music, settlement, tom sydnor
Companies: pff, riaa

The Constitutional Problems With The Award In The Jammie Thomas Case

from the seems-a-wee-bit-excessive,-no? dept

Like many others, when I first heard about the $1.9 million the jury awarded the record labels from Jammie Thomas in her trial, my initial question was how that could possibly be constitutional and not excessive. However, given the immediate talk of settlements, I figured that question is unlikely to be asked in a courtroom. The EFF, however, has taken a look at the specific constitutional issues and how any appeal might be organized. There are two specific potential problems. First, the award is clearly designed to be punitive, rather than remunerative:

First, the Supreme Court has made it clear that "grossly excessive" punitive damage awards (e.g., $2 million award against BMW for selling a repainted BMW as "new") violate the Due Process clause of the U.S. Constitution. In evaluating whether an award "grossly excessive," courts evaluate three criteria: 1) the degree of reprehensibility of the defendant's actions, 2) the disparity between the harm to the plaintiff and the punitive award, and 3) the similarity or difference between the punitive award and civil penalties authorized or imposed in comparable situations. Does a $1.92 million award for sharing 24 songs cross the line into "grossly excessive"? And do these Due Process limitations apply differently to statutory damages than to punitive damages? These are questions that the court will have to decide if the issue is raised by Ms. Thomas-Rasset's attorneys.

The second issue questions whether the court has the right to try to use Jammie Thomas as an examples to warn off others (something the RIAA has been pushing for throughout this entire show-trial of a case):

Second, recent Supreme Court rulings suggest that a jury may not award statutory damages for the express or implicit purpose of deterring other infringers who are not parties in the case before the court. In other words, the award should be aimed at deterring this defendant, not giving the plaintiff a windfall in order to send a message to others who might be tempted to infringe. It's hard to know without having been in the courtroom, but if the record industry lawyers urged the jury to "send a message" to the millions of other American file-sharers out there, they may have crossed the constitutional line.

Interesting stuff, should Thomas decide to push forward. The downside, however, is that for whatever reason, to date the Supreme Court seems to throw normal precedent out the window when it comes to copyright law. I was just reading a long study (more on that later) of how a series of recent Supreme Court rulings on copyright seem to simply ignore precedent and simply accept the myth of copyright's importance over all else.

Filed Under: constitutional, copyright, file sharing, fine, jammie thomas, lawsuit, music, settlement

Jammie Thomas Ordered To Pay $1.92 Million

from the bad-bad-idea dept

Last month, we noted that it was a really bad idea for Jammie Thomas not to settle her lawsuit with the recording industry. There was simply way too much evidence for a jury not to convict her. The trial itself was, again as expected, something of a circus, rather than anything interesting or compelling. So, it should come as no surprise that, yet again, Thomas has been found guilty. But what is surprising is that the the jury chose to fine her $1.92 million, or $80,000 per song. That's $1.7 million more than the original trial. $80,000 per song! Still, it was a really bad idea for Thomas to go through with this suit as there was way too much evidence linking her to the music (and too many problems with her own testimony). Now the RIAA is handed a gift. A verdict that it can gloat about and misrepresent to its own advantages. What might be interesting is whether (for all the RIAA gloating) this ruling has a similar impact as The Pirate Bay victory had in Sweden -- galvanizing people to support the Pirate Party. Somehow, the story isn't quite as compelling though.

Filed Under: copyright, file sharing, fine, jammie thomas, lawsuit, music, settlement

Jammie Thomas Refuses To Settle: This Is Probably A Bad Idea

from the she's-likely-to-lose dept

Despite the judge in her case pushing hard for the RIAA and Jammie Thomas to come to some sort of settlement in their rather infamous lawsuit, it appears the sides have not come to any settlement, and a new trial will be heard. The case, famously, was the first in which the RIAA actually won, only to have that ruling quickly thrown out after the judge realized he made a "material misstatement of the law" to the jury in suggesting that merely "making files available" should count as copyright infringement (a point of disagreement in different courts right now). There were some other questions concerning certain "misstatements" by execs from the record labels, which could have misled the jury.

While it's good that the judge reconsidered based on the misstatement over "making available," this seems like a case where Thomas probably should have settled. It certainly appears that there is plenty of other evidence that she was, in fact, breaking copyright law. While I think the law is bad and the fines are ridiculous, her chances of winning in court remain slim. Handing the RIAA a case where it has so much evidence on its side doesn't help matters. It's likely that it will win again and will once again use the ruling to tout its ability to win in court. Perhaps the only redeeming factor of such an eventual court ruling is calling additional attention to the ridiculous damages that would be awarded.

Filed Under: file sharing, jammie thomas, settlement
Companies: riaa

RIAA Agrees To Settlement, Then Asks For Twice As Much

from the anything-they-can-get-away-with dept

Ray Beckermann is, once again, highlighting some highly questionable activities by the RIAA, noting that after getting defendants to agree to a settlement amount, the RIAA sometimes immediately asks for double the agreed upon amount, and submits that proposal to the court. It's unclear how widely this is happening, but at least in one case, it's good to hear that a judge has prevented the RIAA from getting away with this practice by denying the agreement, noting the different sum than the one agreed to by the parties:

Judge Nancy Gertner: ELECTRONIC ORDER entered re Stipulation To Judgment and Permanent Injunction filed by All Plaintiffs as to defendant LaShaana Straw. "The parties' Stipulation to Judgment is DENIED. Plaintiffs request that the Court approve a Stipulation requiring the Defendant to pay $10,700, yet state in their Response that they have agreed to accept half that amount, $5,350, in full satisfaction of the monetary portion of the proposed judgment. The Plaintiffs do not provide any reason for this highly unusual arrangement, and the Court will not approve a stipulation which fails reflect the actual terms of the agreement. The Plaintiffs must present to the Court a proposed judgment which accurately states the amount the Defendant will be required to pay to settle the claims."

This would be the same judge, by the way, who slammed the RIAA for its questionable legal tactics just a few months ago. You would think that the RIAA would know better than to try to play legal games with Judge Gertner.

Filed Under: nancy gertner, settlement
Companies: riaa

Will Others Now Line Up To Get Paid From Google?

from the bad-precedents dept

I know that many folks disagree with my view that Google's decision to settle with book authors and publishers was a huge long term strategic mistake, but it appears others are beginning to recognize the issues. Already, we've seen Harvard bail out on the deal, since it seems to work at cross purposes to Harvard's mission, but more importantly, others are realizing the implicit statement behind Google's caving: information is not free, and those who have information should line up to Google and demand to get paid. In fact, as found on Romenesko, some are wondering when newspaper and magazine execs will realize what the book scanning deal means, and start demanding the same sort of deal from Google. I would suggest it goes even further than that. If Google is setting up a pool to pay authors, and if that leads to them doing a similar thing for newspapers and magazines, why not other websites as well? Google has now set a precedent of being willing to pay in order to display works in its index, and that's going to backfire badly.

Filed Under: book scanning, free, information, paid, settlement
Companies: google

California Schools Not Using $200 Million From The Microsoft Settlement

from the not-a-priority? dept

A few years back, in settling a civil lawsuit against Microsoft for its monopolistic practices, Microsoft agreed to pay out $250 million to California schools, in the form of vouchers. Now, there are some who might point out that this sort of "settlement" makes good business sense, in that many will use the vouchers on PCs with Microsoft software, thereby getting a new generation of kids hooked on Microsoft products (it's worth pointing out that the vouchers can be used on non-Microsoft software as well). However, that's hardly the biggest issue, apparently. Instead, people are realizing that the vast majority of the $250 million is not being used by the schools. Some are pointing out that their budgets are being slashed, and since they have to pay for the equipment upfront and then request money back later, it's just too much trouble. Others are saying it just hasn't been a priority, even though they know the money is available.

Filed Under: antitrust, california, schools, settlement
Companies: microsoft

Psystar Apple Case Goes To Arbitration; Results May Be Secret

from the hopefully-not dept

As we noted before there even was a lawsuit, a legal battle between Apple and Mac-clone maker Psystar could represent a key legal battle in determining the enforceability of certain provisions in an end user license agreement (EULA). And, indeed, the case was looking interesting, as Apple sued and Psystar hit back with antitrust charges. However, as a bunch of readers have sent in, it appears that the case has moved to "Alternative Dispute Resolution" (ADR). Basically, rather than going through a lawsuit, the two sides have agreed to first take it to an arbitrator, who may be able to work out a settlement. There are many, many good reasons to go this route (many of them have to do with saving money on the lawsuit), but the fear is that any settlement then isn't a binding legal precedent at all, and the actual results may even be kept secret. I can understand why both sides would do this, but it may deprive the world of a useful precedent.

Filed Under: arbitration, clones, eula, settlement
Companies: apple, psystar

Woman Who Claimed RIAA Infringement Damages Were Unconstitutional Settles For $756/Song

from the cheaper-to-settle-than-to-fight dept

We were a bit surprised last month when Denise Barker, who had been fighting the RIAA in a file sharing lawsuit decided to take the strategy of admitting guilt but challenging the constitutionality of the Copyright Act. That seemed like a longshot that was unlikely to play well in court -- especially a court that had already decided against her in interpreting the whole "making available" thing. So, it should come as little surprise that Barker has agreed to settle, rather than fight on, even if her lawyer, Ray Beckerman was more than willing to keep fighting.

The settlement comes to $756 for each of the eight songs she's accused of sharing, and the details of the settlement work out that she'll be paying $110 per month for 55 months (running through February of 2013). That adds up to $6,050, which I imagine will put a crimp on Barker's spending on actual music. While she did break the law, and admitted to breaking the law, the punishment does seem way out of line with the "crime." It's arguable that she did any "damage" at all to the recording industry, as there's a decent chance that she actually helped promote certain artists.

Filed Under: copyright, denise barker, lawsuit, riaa, settlement
Companies: riaa

American Airlines And Google Settle Keyword Advertising Spat

from the too-bad-it's-secret dept

Despite lawsuit after lawsuit ruling in favor of Google whenever a company sued Google because one of their own competitors was buying keywords based on their trademarks, American Airlines decided to get in on the game as well. Since American Airlines was probably the biggest company to take on Google in this manner, some undoubtedly were hoping that it might actually be able to succeed. However, the two companies have now settled the case. And, while the terms of the deal remain secret, Eric Goldman checked the ads on Google and doesn't see anything that indicates that Google has changed its usual practice of allowing non-confusing ads.

In other words, it sounds like American Airlines lawyers finally looked at the details of earlier rulings and realized the company had close to no chance of winning this. A trademark does not give the holder complete control over the use of the word, and a competitor using the word for competitive advertising is completely legal, so long as they're not using it in a way that is likely to confuse a consumer. Even more important, if there's any liability, it should be on the other advertisers, not Google, which is merely the platform provider.

Filed Under: keyword ads, settlement, trademarks
Companies: american airlines, google