‘Insane’ file-sharing verdict could challenge law’s constitutionality
Published: June 19, 2009
Updated 5 months ago
In the first file-sharing case to go to trial in the United States, a Minnesota jury has ruled that a 32 year old woman must pay the music industry $1.92 million dollars for illegally making 24 songs available for sharing from her hard drive.
The woman, Jammie Thomas-Rasset, had originally been accused of uploading 1700 songs to Kazaa. An earlier verdict of $220,000 was overturned because of a faulty jury instruction, with the judge describing even that lower amount as “unprecedented and oppressive.”
After today’s ruling, Thomas-Rasset called the damages “ridiculous” and said she had no means of paying them. A representative of the Recording Industry Association of America said the music companies were willing to settle for a much smaller amount, which based on past cases might still be in the tens of thousands of dollars.
A blog entry at technology news site ZDNet, however, describes the verdict as “insane” and suggests that it “could prove [the] RIAA’s downfall.”
Lawyer and tech writer Richard Koman points out several serious problems with the amount of the verdict. For example, the law used in the case normally prescribes damages of $750 to $30,000 per infringement. The judgement against Thomas-Rasset comes out to $80,000 per song — an amount which is considered appropriate only when there has been “willful” infringement, which would seem to mean a crime committed for profit or out of a desire to do deliberate harm.
Koman says he also spoke with Ray Beckerman of the blog Recording Industry v. the People. Beckerman has been following the case closely and has no doubt that it could serve as a test cast to challenge the constitutionality of the law. He told Koman, “Courts have repeatedly held that statutory damages can be more than actual damages but only by two or three times.”
An analysis by the Electronic Freedom Foundation goes more deeply into the constitutional issues. It notes that “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. … 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.”
At his own blog, Beckerman points out that in this case, the statutory damages are 228,571 times as much as the actual damages of $0.35 per song. “it is clear from reports I am seeing that this verdict is making the US an international laughingstock,” he states, “providing great fuel to those inclined to laugh in their beer at the US justice system. When will the courts do something to stop this madness?”
35 comments
Printer Friendly |
Email
| Get breaking news alerts: Email/mobile |
The RIAA is the bastard child of Sony. You will never see another Sony product in my home.
It’s not just the RIAA, but the artists who sign with the major labels, thinking they’ll become big rock stars when in reality all they become is indebted.
To destroy the RIAA you need to take away their power. You give them power whenever you buy an album from a recording company under the umbrella of the RIAA.
Boycott any artist that releases an album on a major label. Support all artists that self-publish.
Apply this simple technique to any evil organization. Bad organizations get their power from your patronage. STOP PATRONIZING EVIL ORGANIZATIONS.
This applies to governments and central banks as well, by the way.
The world has been laughing at the American court system uproariously since Bush vs. Gore and Kelo vs. New London. Recently the Supreme Court has even moved to announcing papal bulls, causing ever more uproarous laughter. Some say the world will end with a whimper, some say with a bang. I submit it will end with a wise man’s laugh.
Spot on dansacramento, spot on. That is a good statement, the world or the US will most certainly end with a wise man’s laugh.
The RIAA is their own worst enemy. I hope they end up shooting themselves in the foot. Their days are numbered!
I have so much music on so many different mediums it will be easy for me to boycott the music industry for life.
Gee, Billy. Would you like to share? (hee hee)
I’m afraid to respond but…
you one funny randybastard!
Music is indeed Big Business, but this verdict is like shooting a nat with a nuke….the scale is way out of wack. What’s happened is, RIAA has used their lobbying power to wrench legislation out of Congress that’s totally out of line. This is an example of what a fascist state the USA has become. Yes she broke the law, but I don’t see how the artists, labels, and composers involved were damaged $80k per song. Maybe $8.00.
The magnitude of this fine relative to the crime committed is absurd beyond belief. A great example of the chaos of the current American justice system.
Cox Cable turned off our freakin innernets in 2005 cuz one of my roomies allegedly downloaded a file.
No warning, no trial, just NO innernets.
See:
http://s234.photobucket.com/albums/ee287/notoriouskelly/?action=view¤t=CoxLetter.jpg
Corporate fascists!
My ISP notified me of an illegal download. It was a cable program that I actually subscribe too. Believe me, the Sopranos are more level headed than the MPA/RIAA–neither one to mess with.
Funny you should mention that. Many record companies were founded by the Mafia to provide 45s for their juke boxes. And Hollywood was founded by New York nickelodeon owners to escape paying royalties to the Edison company.
I bet the Republicans are loving this that a corporation can sue for that much money. But as soon as an individual sues a corporation they want to limit us to $250,000 or $400,000 depending on the state.
It’s time to turn off the radio, get a karaoke machine and listen to the children sing at home, turn off the tv and play sports with the kids in the back yard.
GREED has ruined everything in this country. Corporations have no compassion, care for nothing beyond their profits and CEO exec salaries.
A person could lose his arms and legs and not be granted the awards these corporates have won.
It’s time to rebuild American families and forget about the “rich and famous,” stacked, insane “justice,” synthesized/fake music, bookie-driven glitter sports, and executives whose bellies are NEVER, and will NEVER be satisfied.
Exactly how much of the $2M will end up in the Recording Artists’ pockets? Most likely none.
Ah, those FILTHY RICH $$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$
and greedy corporations have no limits, do they?
All those corporate executives should be horse whipped and
thrown into Guantanamo prison for an annual “vacation”.
Laughingstock indeed. At the same time this unfortunate mother is sentenced with paying millions for the download of 24 songs, a damage of less than 24 dollars (at .99c per song), a fraudster who delibertely disenfranchised hundreds of citizen from voting is “punished” by a mere 30 days of community service! Ha!
Something is seriously amiss in the US judicial system. Get your priorities right again and push for a change of laws! It’s not the judges’ fault if the lawmakers suck up to the lobbyists demands and threaten minor felons with ruining them for the rest of their lifes, while at the same time turn a blind eye towards serious violations of basic rights. “Change”, my, uh, my. Where is it???
You can still share CDs, trade them with friends and family, or loan them out temporarily.
Know what I mean?
Wildcat
Or record music from the radio and TV. Perfectly legal, and the record companies get paid for that. No need to pay them even more.
Let us not forget that this is the same industry that engaged in price fixing for 5 years (1995-2000) and only had to pay back around $68 million without admitting any wrong doing.
And your point is …what?
The price-fixing charge was over MAP (minimum advertised price), a practice the music companies engaged in the 1990s to try to prevent their music from being used as loss-leader product by big box retailers, and to keep smaller independent record stores open. The music companies feared becoming beholden to a couple of large retailers (such as Wal-mart) who could then entirely control the distribution channel and their price structure. MAP attempted to put small retailers on an even footing with large retailers so that large retailers could not drive out small retailers.
In the DOJ view it was anti-competitive in the short term. In the record industry view, it created more long term competitiveness by ensuring more retailers and by attempting to prevent monopolistic control of the distribution channel.
After the practice was discontinued, the results were the wholesale destruction of small independent retailers (try to find an independent record store these days), and the use of music product by the big retailers as loss-leader product to get people in the stores so they could then be sold big ticket items like TVs and washing machines.
So when you walk into your local Best Buy, and all you see are the top 40 CDs, remember this post.
>Firstly, the “1700 songs” accusation has never been proven in court. The RIAA lawyers didn’t even try, which makes it probable that they noticed there is something seriously wrong with that claim and didn’t dare to follow up on it.< The RIAA lawyers focused on 24 songs entered as evidence because there is no point in bogging down the proceedings with 1700 evidence entries. The liable damages from 24 songs (see below) would be more than enough to cover the plaintiff expenses. This is done ALL THE TIME in copyright infringement suits. Do some research.
>Secondly, three times punitive damages for the download of 24 songs, worth 23.76 bucks at iTunes, amounts to less than 96 bucks, all in all, not $3500.<
You misunderstand copyright law. This is how the actual law reads:
“In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000.”
Notice that is $150k PER INFRINGEMENT. With multiple infringements there will be higher penalties. That’s why the RIAA lawyers entered only 24 songs as evidence.
BTW, you might want to actually read that FBI warning that you see on CDs and that pops up before your DVD feature.
I am not going to get into the other evidence of the trial. Suffice to say that TWO juries heard the evidence in two trials, and both returned guilty verdicts. You can run your “defense scenarios” all you want, but be assured they were brought up at the trial and were found non-believable.
“The RIAA lawyers focused on 24 songs entered as evidence because there is no point in bogging down the proceedings with 1700 evidence entries. ”
Well, but it seems they referred to the 1700 files in court. Which looks like a major failure of the defense, which should have strongly appealed any mentioning of unproven accusations. Regarding the very high punitive damages, which makes no sense regarding the theft of 24 songs, it looks as if the RIAA lawyers made an impression on the jury with those accusations.
“This is done ALL THE TIME in copyright infringement suits.”
Excuse me ps, but this is the first case of copyright infringement by file sharing, there is no definitive precendent! And also, it’s undisputed that the defendant didn’t conduct copyright infringement as a business activity, so many of those other precendts don’t apply.
“Notice that is $150k PER INFRINGEMENT.”
Notice that is $150k per WILLFUL infringement. And that’s the absolute maximum, for those cases where real criminals were making a lot of money by stealing intellectiual property. And then, the defense totally failed in not bringing up a single expert to prove that everybody with access to the computer, probably even a hacker, could have downloaded the songs, showing that there is reasonable doubt that Thomas-Rasset herself did it. That would have killed the “willful infringement”, and possibly the whole case of the plaintiff.
“BTW, you might want to actually read that FBI warning that you see on CDs and that pops up before your DVD feature.”
It’s unavoidable, and it’s a scandal. I paid for my DVDs and CDs! Why are honest customers treated like pirates?
“be assured they were brought up at the trial and were found non-believable”
You seem to be totally uninformed. Nothing was brought up. No exertise for the defense. Read a good roundup of the case here:
arstechnica.com/tech-policy/news/2009/06/jammie-thomas-retrial-verdict.ars
Now, you seem to know a bit about law stuff. Do you really think this was the best possible defense? It sure looks more like a defense severely hampered by lack of funds. The side which spent more money won. No real surprise.
RIAA and ASCAP are music mafia.
Don’t oppose the ruling class! She’s damn lucky they didn’t blind her with hot irons, and rape her to make their point. They have to be brutal to keep the peasants in line. Why, society would collapse if the rulers didn’t keep the peasants in line and stay on top where they can make the decisions for all of us!…… God Save the King!!….Know your place.
>Do you really think this was the best possible defense?< We're not arguing about "the best possible defense." We're discussing what the law states, and the fact that this woman was found guilty buy a jury trial (twice). Now you might not like the outcome, but the law is pretty clear. If you disagree, then change the law through your elected representatives.
>xcuse me ps, but this is the first case of copyright infringement by file sharing, there is no definitive precendent!< I never said that this wasn't the first file sharing case, I said that entering a reduced list of copyright infringement evidence is done all the time in copyright infringement SUITS. There is a difference between a trial and a suit.
>You seem to be totally uninformed. Nothing was brought up. No exertise for the defense< Did you ever consider that the reason her defense was so weak was because the charges were true? She essentially had no defense.
I suggest that this woman was used as a political showpiece by those with a political agenda without regard for the actual facts of the case, or for her eventual welfare. They were not looking out for her best interests, especially since the RIAA has continued the offer to settle for $3500.
>It’s unavoidable, and it’s a scandal. I paid for my DVDs and CDs! Why are honest customers treated like pirates?<
Because of people like Jammie Thomas-Rasset, who seem too thick to understand the idea that redistributing other peoples’ intellectual property is a crime.
I would SOOOOOO like to see the performers bypass these middle men, form their own organization and market and promote directly.
With the advent of the Ipod and the interweb, there’s really nothing stopping them. In a few years, the same could go for screen actors.
Recording artists despise the RIAA.
I’m with the artists.
Hang these RIAA turds.
Really, folks, it is time to make an example of somebody — a cop, a Republican, a recording industry appartchik.
Murder == conscious and deliberate — is the people’s only recourse against a fascist state.
I might be the only person leaving comments who is available on CDs with a major label around the world. I say that profits are secondary. The important thing is to get the music out there. I actually support file sharing.
Greetings,
I’ve worked in the entertainment industry for over 10 years now and I can tell you that the record labels are nothing more than legalized mafia. A few artists are allowed to make some money while the majority never make a penny.
Case in point: One of my bands was signed with a major label and just completed a tour to support their 3rd album. The singer came by and showed me photos of the band playing huge stadiums all around the world. Then he left my office to go work his job as a dishwasher at Friday’s because, otherwise, he would not have enough money to eat.
This story is not unique. There are about 60k albums released each year and you can actually look at the Soundscan numbers and see what the sales are. In 2005, less than 300 of the 60,000 albums produced enough sales to warrant paying the artist. Remember, the artist must pay back the manager, recording studio costs, advertising, everything, at .35 per unit (give or take). How many units must an artist sell to pay back the record label if they spend $250000 on an album? do the math.