Bankruptcy could protect Jammie Thomas
Prior to last year, bankruptcy court would not have sheltered Jammie Thomas-Rasset from the $1.92 million debt she owes the music industry. But a decision by the Ninth Circuit Court of Appeals in San Francisco could enable her to walk away from the debt, several legal experts said on Friday.
In a stunning jury decision on Thursday, Thomas-Rasset was found liable for willful copyright infringement and ordered to pay damages of $80,000 for each of the 24 songs she was accused of illegally file sharing. The 32-year-old is the first person accused of online music piracy by the Recording Industry Association of America who has taken his or her case to court.
(Credit:
Greg Sandoval/CNET Networks)
This is the second time that a jury has ruled in the case against the Brainerd, Minn., resident. In October 2007, she was ordered to pay $222,000, but the decision was thrown out after the judge in the case acknowledged he erred in giving jury instructions. Thomas-Rasset has become the Joan of Arc of the file-sharing community. She has vowed to keep fighting. She's told reporters she hasn't the means to pay the RIAA, and wouldn't if she could.
Here's why bankruptcy court may be an option for Thomas-Rasset, according to Ira Rothken, the lawyer who has represented BitTorrent tracking sites such as TorrentSpy and Isohunt, and has a long record of defending clients against the entertainment industry:
He says that in the past, when someone was found liable of willful copyright infringement, the law prevented the defendant from discharging, or wiping out the debt in bankruptcy court. Last year, however, the Ninth Circuit Court of Appeals found in the case of Barboza vs. New Form, that "willful" meant one thing in civil court and something else in bankruptcy court.
In trademark or copyright cases, "willful" means that a defendant knew what they were doing. According to the Ninth Circuit, bankruptcy laws mandate that for a debt to be non-dischargeable, a plaintiff must prove a defendant was "willful and malicious," meaning the person's intent was to cause harm.
Even entertainment lawyers agree that the Ninth Circuit's decision in Barboza makes it tougher for copyright owners to collect damages. Kathryn Bartow, an attorney with Manatt, Phelps & Phillips, a Los Angeles-based law firm that does extensive work for the major movie studios, wrote in a February issue of her firm's newsletter:
(Barboza) serves as a warning to trademark and copyright owners as well as the counsel who represent them in willful infringement cases. When presenting evidence and crafting jury instructions, beware. In willful infringement cases, to prevent an individual defendant from having its debt discharged in bankruptcy, the plaintiff should consider introducing sufficient evidence and including additional jury instructions to satisfy the Bankruptcy Code's definitions of 'willful and malicious.'
If the jury had only found Thomas-Rasset guilty of copyright infringement instead of willful infringement, it would have been easier for her to get rid of the debt.
"If she could have won on that point," Rothken said, "it would be absolutely dischargable without even having to have another hearing in bankruptcy court. She'd be going into a settlement discussion (with the RIAA) saying 'Look, if we can't settle it, I'm just going to go bankrupt and you're not going to get anything.' Now her conversation must be 'Hey, if we can't settle, I'm going to go forward and file for bankruptcy,' and they'll say 'Well, you'll have to have another trial.'"
Fred von Lohmann, an attorney for the Electronic Frontier Foundation, an Internet-user advocacy group, said that proving malice in bankruptcy court might be extremely hard for the RIAA.
"No. 1, I'm not at all sure that they'd be interested in trying this case again," von Lohmann said. "And No.2, I'm not sure they'd win. Just because you think she did it doesn't mean necessarily that she knew and intended to harm the industry. We know that lots of people are running Kazaa without understanding that they're sharing (the music files) at the same time."
Jammie Thomas-Rasset now owes the RIAA $1.92 million.
(Credit: Jammie Thomas-Rasset)Much of what happens next depends upon how settlement talks go between the RIAA and attorneys for Thomas-Rassert.
Since the second the jury's decision was read, the RIAA has said it wants to settle. The trade group for the four largest music companies repeated that sentiment on Friday.
"It was a jury of regular folks who rendered this decision," said Jonathan Lamy, a spokesperson for the RIAA. "We do not seek any specific damage awards. For the few existing cases, this verdict is a reminder of the clarity of the law. With any case, including that of Ms. Thomas-Rasset, we seek to settle these out of court. We stand ready and willing to talk settlement with Ms. Thomas-Rasset or anyone. We think that's most beneficial for everyone involved."
What Thomas-Rasset must consider before going forward is that she has lost twice in court. The legal costs for her may rise. As it stands, the RIAA can legally garnish her wages. According to Bloomberg, she works as a natural-resources coordinator for a Native American Indian tribe.
For the RIAA, the size of the damages stamps it with the bully label and backfires when it comes to public relations. That's the opinion of Ben Sheffner, a former entertainment lawyer and copyright proponent. He says the jury award also potentially hurts the RIAA if someone decides to challenge the damages on constitutional grounds.
"On the plus side, the decision sent a strong message," Sheffner said. Twenty-four "average Minnesotans with no ties to the entertainment industry have now said what she did was wrong and she deserves a strong punishment. On the other side, the size of the monetary damages could be used as serious ammo against the music industry."
Greg Sandoval covers media and digital entertainment for CNET News. He is a former reporter for The Washington Post and the Los Angeles Times. E-mail Greg, or follow him on Twitter at http://twitter.com/sandoCNET. 
I had been buying more music than ever since the studios had finally made the stuff easily available, but now I think that I, for one, will be making an effort to support only local music and off-label bands. Screw the labels.
I am a services provider and I do create products for a living, and have been not paid by a client. I am suing that client for what my services are worth, and the court agrees with my position; the client has gone so far as to dodge the server - but those evasive actions of my former client do not entitle me to an outrageous award, and that's the position of the court.
The $80k per song award is not in line with the damages or the legal costs associated with the pursuit of the crime. The latest award must be thrown out. And, IMO, the members of the awarding "jury" should never be allowed to serve again.
* I for one would not want to be physically in or around (or even near) any RIAA-owned building, or any RIAA executive's house or office, if they ever decide to turn this into any sort of campaign. I can see them suing the wrong person into financial oblivion, and the first poor schmuck that suddenly gets convinced that he or she has nothing left to lose will likely do something rather violent. Dumb, yes, but certainly violent. Think about this: typical lower-to-middle-class guy gets slammed with a fine bigger than any credible number he has ever seen -or will ever see- in his/her financial life. Lawyers and deputies come and take away pretty much everything he has ever saved up for (401k, kids' college funds, nest egg, etc), and a huge chunk of whatever he will earn from now until he's dead. After a fiscal anal-rape of that caliber, I'd be surprised if someone didn't go postal (in every sense of the word).
* the whole "creator" argument by "JM_NL" is a strawman. The RIAA and its membership companies don't really 'create' anything in the classical or intellectual-property sense. The artists who contract with these companies create the content, and, sadly, see very little return for the efforts they put into it.
* personally, I'm thinking the appeals process will squash it, or that perhaps Thomas and her lawyers deliberately want this to wind up in the US Supreme Court... if for no other reason than to use that figure to make the RIAA and its member companies look incredibly bad.
I've never pirated music nor do I support the theft of intellectual property or copyrighted material, but in this case, the RIAA and music industry sucks, like a bunch of leeches....
Any way people can get around them is fine by me... They've (the music industry) done nothing but lie, cheat (go back to the 80's and the introduction of CD's for some great lies), and steal for many decades.
Besides, look what they've done to the world. We have Britney Spears (sp?, but who cares?) and countless hordes of 10% talents just like her.. For that alone, they should be punished, but I digress...
All of use create copyrighted works as part of our jobs. A few of us actually get the privildge of trying to make a living by selling those works. A heck of a lot of us are afforced no such luxery though folks like you get to enjoy the fruits of my copyrighted labor every day.
That said. Sharing a crappy song that nobody would ever by ever for any rason it's so bad (like if I actally did one) deserves a vertict of 0.00. A great song that folks didn't buy for the sake of the download, perhpas more than zero but less than 80,000. That the awards are all the same means the math was wrong and the jury bought into it.
The artist makes pennies on the dollar...and when you split those pennies between four or five band members, the amount they earn keeps shrinking.
So that's why I see all these artists living in mansions, invited to the best parties, tossing money around like it's nothing, driving Ferrari's, Lamborghini's and whatnot. Having guitar collections that blow away ANYTHING that could be found in ALL Hard Rock's. Oh, that's right, it's because they have gotten screwed over by the record industry. Uh....remove the blinders from your eyes and get a clue!!!
NO ONE has forced these artists to sign with a label. They knew EXACTLY how much money they were getting going in and have no one else to blame if they don't make it big!!! Hell, I have never been involved with the music industry in any capacity and yet I know that the artist gets the raw end of the deal when it comes to signing a band. Why wouldn't the artist know that before going in? I DO!! Because the majority of them have DELUSIONS OF GRANDEUR.
Go look up how Steve Vai got over on the record industry with his VERY FIRST ALBUM and then come back and join the discussion.
Support small bands. Support the guys who are out there after the shows selling their records. Support the labels with a reputation for offering real music (not the saccharine crap that is all we seem to get today).
Sounds like the RIAA is using the relative lack of technology of many Americans to control the argument of what is fair and lawful.
If our oh so great government educational system did its job then the population as a whole would know this. Too bad they don't teach the Constitution and what powers the government was granted.
So I say to JM_Nl, you obviously don't create anything for a living either.
Now can virtual copyright infringement be the same as regular theft? Well when somebody buys a cd and decides to share it with others and so he makes tons of free copies and gives it to others free of charge and leaves the original copyright or credits intact, and does not claim that that person created the content shared. So how can it be stealing?
all it does it cause patent control problems but sharing and downloading is not theft at the least, if u went to law school and looked at the technical aspects of theft, it is taking something physically or digitally without asking and when sharing something bought at a music store and then ripped it was not taken, it was paid for and all this was was that she shared unlicensed music and was caught, she did not steal, she did not deprive the music artists, she just didn't pay for her licenses kinda like driving on the road without a drives license, she may cause a risk but she did not hurt anybody.
All this was was a copyright issue, she did not commit any criminal offense but she did commit a civil and copyright offense. She is not the same as a ID thieve or shoplifter.
I mean, what did she download or upload or whatever she did? Whatever it was, I doubt it was original.
And for the RIAA to go after this Native American woman. She should turn around and sue them for stealing her land. What a bunch of complete creeps.
There is all sorts or art, science, research, music amongst other things being created today that has never been thought of before.
Go ahead and prove you're a no-talent by arguing about it further.
I agree the fine award in this case is ludicrous, but your argument is just as ludicrous.
"The only people who actually believe that "Nothing is wholly original" are no talent people who have never and could never come up with anything original themselves."
"Go ahead and prove you're a no-talent by arguing about it further."
Nice ad hominems. Please point to one of these works that are complete free of outside influence.
Everything is built on something, nothing is original.
I wonder how many starving artists will see anything from this lawsuit (assuming it was ever paid, which it won't be). Hell, I wonder how many RICH artists will see anything from it. Something tells me that the number will be rather low...
;-)
No one is fooled. We know who the true crooks are. Tyranny will not stand. NOW is the time to act.
The defendant shared 1702 copyrighted songs which is illegal in the US.
Support local bands.
We continuely dis-assemble any labor and work rights for people and yet continue to assemble socialist, anti-capitalist, anti-competitive structures like patents and copyrights.
We live under a chinese style regime here in the ole U.S. of A.
First off, there's nothing wring with socialism with a little capitalism thrown into the mix (in case you haven't been paying attention to the news lately, capitalism has just done us a world of good).
However, patents and copyrights are not there to prevent people form owning anything, they are there to prove and protect things people invent and actually do own. And although I do believe the patent office in the USA is run by monkeys and lower animal forms I do believe we need patents and copyrights in some form.
So if you start a new company, you only own the rights to the name for 14 months? I think I will start a new computer company. I will call it IBM or Microsoft.
As to a 24 month copyright, People who create content need to get paid. Two year copyrights would be far to short to make your money back.
Again, this was all due to corporations buying off Congress. And we can thank the Supreme Court in the late 1800s for creating corporate personhood, where a corporation has the same rights as a person under the Constitution.
Hey, we agree here. The beautiful thing about Disney is they fought to copyright their reworking of public domain stories and tales which ws a large part of their portfolio.
@newsite0987,
I'll bet you would have another change of heart if you were a professional photograpgher or musician.
I work in comics, computers, movies, TV, music, and other so-called "arts". The satisfaction I see as a CREATOR is something using my work then being satisfied with the end result, discussing the merits or demerits of the content thereof.
You are a shrill from the RIAA/MPPA fascist mafia.
By the way, RIAA stand for (and I could get banned for this) Reallly Idiotic ******** in Association, and MPAA stands for Movie People Are ********.
Yeah sure you do and I'm an astronaut.
If you actually created something for a living then you wouldn't want people to steal it.
Yeah sure you do and I'm an astronaut.
If you actually created something for a living then you wouldn't want people to steal it.
I agree -- you ARE a shill for the RIAA.
A LOT of us that create for a living think that being paid a basic amount it okay and that the record companies that are ripping off the musicians and then also ripping off the public are the real criminals.
Tell that to thousands of developers and companies that openly share their softwares for free use. The fact is they are greedy in going after this lady. Instead of inventing or adopting an alternate business model that fits current distribution model aka internet; they are suing people. And, that is the problem.
Just because you don't agree with the copyright laws doesn't mean they don't apply to you.
I like to drive fast but you won't hear me complain because I got a speeding ticket, defiance of the law doesn't hold up in court.
get real. The jury passed an excessive verdict that is unconstitutional. Perhaps your little fascist brain doesn't understand the concept of the bill of rights, but it is still the highest law of the land. And it is far more important than any copyright law. For some reason, the RIAA thinks they are more important than the constitution, and have repeatedly attempted to pass laws (often with success) that are far more dangerous to freedom than anything the Bush administration ever did. I therefore have to contend that the RIAA is wholly un-american, and an enemy of the people of the united states. If you don't agree with the constitutional rights, well, then america doesn't need your sorry fascist self.
Money awarded by suing single mothers: $2 million
Financial damage cause to recording industry by excessive and ruthless greed: Priceless
This is just one thief suing another thief for stealing what had already been jacked.
Because that's all the plaintiffs could easily prove in court, trying to prove someone shared 1702 songs would take years of litigation.
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Take a moment to look into "peer-to-peer technology" and explain how anyone can prove she shared even one song in it's entirety. Please, I'd love to hear it.
They are never going to successfully end piracy- no matter what. it only gets easier over time, and every day there are more reasons to do it.
And the MAC address? Are you going to suggest that she either acquired the network adaptor of the real villain or that her MAC address was spoofed? I tend to agree with the defense that it cannot be proven that she was the actual person doing the sharing but I am certain that it was someone with physical access to her computer (the ex-boyfriend does sound more plausible given relative tastes in music). However, I lost all sympathy with her when she lied.
You're joking, right? Did you not know that a router has a MAC address too? For as much trolling as you do, you sure don't know much about computers.
In any case, I'm amazed that she lost. They certainly didn't prove that people in general were downloading what she was sharing, and in any case her goal was to amass tons of music, not to share it with the world. Had she been smart she would have turned off the sharing feature, ha!
O-o
Now can virtual copyright infringement be the same as regular theft? Well when somebody buys a cd and decides to share it with others and so he makes tons of free copies and gives it to others free of charge and leaves the original copyright or credits intact, and does not claim that that person created the content shared. So how can it be stealing?
all it does it cause patent control problems but sharing and downloading is not theft at the least, if u went to law school and looked at the technical aspects of theft, it is taking something physically or digitally without asking and when sharing something bought at a music store and then ripped it was not taken, it was paid for and all this was was that she shared unlicensed music and was caught, she did not steal, she did not deprive the music artists, she just didn't pay for her licenses kinda like driving on the road without a drives license, she may cause a risk but she did not hurt anybody.
All this was was a copyright issue, she did not commit any criminal offense but she did commit a civil and copyright offense. She is not the same as a ID thieve or shoplifter.
In shoplifting, she only steals one copy. Max loss is the total price of all the physical albums she steals. If she manages to steal 5 albums, at an average of $9.99 per album, then the max loss is less than $50. And there are many controls that can be put in place to deter shoplifting (having security guards, cctv cameras, electronic tags, etc.)
With file sharing, she's potentially distributing each song to thousands of other people, who now will not buy the song legally. Plus each of those people collectively continue to share the song, long after she stops sharing. So the potential max loss is (average song price) * (number of songs) * (total number of downloaders) which can total to a huge sum.
The argument that "she did not deprive the music artists" doesn't hold water. Of course she deprived the music artists (however large or small of an amount it might be.) First, she did not pay for each song as she is supposed to have. Second, she helped potentially thousands of other people to not pay for each song either.
We can all be outraged by the seemingly excessive damage award, but let's not pretend file sharing "doesn't hurt anyone".
Having said all that, these lawsuits have backfired against the music industry and they know they have to take a different approach than litigation.
And I even agree that sharing is not stealing and this court case is senseless.
But the stuff you are saying makes no sense. There are no patents involved, Copyright means someone cannot copy it without permission. It has nothing to do with licensing. Also, it is copyright infringement to buy a CD and then make copies and give them to your friends. That is exactly what copyright infringement is.
Have you gone to -- high school? I would think these basics would be taught in a basic high school law course.
If/when media is distributed and the owner agrees that it can be shared (i.e. copies made), then I will consider file sharing like this to be legal and morally OK.
The RIAA is a corrupt bully. Music artists have had their copyrights taken by record labels without proper remuneration for so long. The recording industry is all about the fat cat record company owners and execs, a tiny handful of wealthy music makers, and thousands upon thousands of totally screwed musicians.
if it costs 99 cents to download a tune on Itunes and if someone illegally downloads 14 songs, then the court judgment should be $14, not $1.92 million. What on earth is wrong with this jury in Minnesota? Too much cold? Not enough sunshine? Winter too long? Have SAD? What is your problem?
Ans: the fact they live in Minnesota.
China believes realistate that was centuries ago should be the way it is now. I'll take USA over that any day.
This thread is proof of the ignorance of this site's readers.
It's sad really, all you morons that think you know about the RIAA and the artists and the law.
You don't.
You're spoiled little sh*ts that have grown-up (sic) thinking your **** doesn't stink and you deserve whatever you want.
Well, the world is now spinning downward due to your way of thinking, and once again, the wisdom of our grandparents is being rescued from their graves.
Spoiled, me me me kids that sadly raise your kids to think the same way.
You're now in your McMansions? trying to figure out who to blame for your foreclosure while simultaneously looking for an Obama bailout to save you.
I laugh, because in the end, you're losers.
Perfect Case for its use.
- by JM_NL June 20, 2009 5:21 PM PDT
- >> Please point to one of these works that are complete free of outside influence.
- Like this Reply to this comment
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- by Renegade Knight June 22, 2009 12:14 PM PDT
- @JM_NL
- Like this
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Showing 1 of 2 pages (100 Comments)There's a world of difference between an influence and incorporation of previously created material, as any working artist in any medium knows.
A writer's book is influenced (assuming someone is sufficiently bright and literate enough to write one; and we're talking here about real books by real writers from real advance- and royalty-paying publishers here; not fanfiction or self-published stuff) by the preceding whole of Western literature (assuming a writer from that culture), but that does not have a damn thing to do with incorporating bits,pieces, fragments, or even a single phrase or sentence created by any other writer. (Not unless he or she is plagiarist, anyway.)
Just gotta love comments on the nature of creative works and the desired ownership of and dispersal of them y people who don't create. And who would scream like hell if someone wanted to appropriate the fruits of their labor.
And the difference between a working, professional artist who devotes his or her life to that art or craft, and depends upon it for a living, and the legion of amateurs and wannabes who dabble in such activities s the difference between a professional or Olympic athlete and a weekend sandlot jock.
"the difference between a working, professional artist who devotes his or her life to that art or craft, and depends upon it for a living, and the legion of amateurs and wannabes who dabble in such activities s the difference between a professional or Olympic athlete and a weekend sandlot jock." Which is to say, the Sandlot Jock could be the greatest athlete who ever lived but was never discovered or who liked butterfly collecting more than capitalizing on their athletic prowess. The ?lucky ones? are not always the best for what they do. Most are merely good enough to do it and the best may have been overlooked.
The fruits of my labor were, are, have been, and will continue to be appropriated. It's only specific segments of the creative professions that are allowed by custom to market their works. Many creative segments, by societies very design are not allowed any such luxury as marketing their works or royalties.
Also, keep in mind that the value of your work is set by the sandlot jocks who ultimately are the ones who pay to enjoy it. Not you Olympic Pros.