RIAA's $222,000 defendant asks for a new trial
Jammie Thomas, the Minnesota woman who was recently slapped with a $222,000 penalty for allegedly sharing music on the Kazaa network, is asking for a new trial.
Jammie Thomas
Thomas' attorneys on Monday filed a motion asking for a new trial on grounds that the statutory damages that the jury awarded are excessive and therefore violate the U.S. Constitution's due process clause.
Alternatively, if U.S. District Judge Michael Davis refuses to grant Thomas a new trial, her attorneys have asked him to lower the damages to between zero dollars and $150. They cited an affidavit by analyst Aram Sinnreich estimating that record labels get 70 cents of the $1 that consumers typically pay for a song online.
Such miniscule damages are appropriate, attorneys Brian Toder and Bryan Bleichner say, because "any award above and beyond actual damages or harm suffered is purely punitive" and there was no evidence that anyone but a representative of the Recording Industry Association of America actually downloaded music from Thomas' computer. (Under federal copyright law, damages are based on the number of songs at issue--rather than the number of times they were downloaded.)
This is not exactly a novel approach: some legal academics have argued for a while that statutory damages are out of line with reality. Because copyright law sets the amount of damages at between $750 and $30,000 per infringement, someone sharing 2,000 songs can face between $1.5 million and $60 million in damages. "Willful" infringement ups the penalty to $300 million.
Which is why defendants in other RIAA peer-to-peer cases have argued that copyright's statutory damages are unconstitutional. (The text of the Bill of Rights' 8th Amendment prohibits courts from imposing "excessive fines.")
In another RIAA case in New York state, UMG v. Lindor, defense attorneys claimed that "the statutory damages sought by plaintiffs are unconstitutionally excessive and disproportionate to any actual damages that may have been sustained."
In a preliminary ruling in November 2006, a New York federal judge ruled that it was not a frivolous argument:
Thus, at this juncture, the court need only determine whether an affirmative defense alleging that statutory damages are unconstitutionally excessive is frivolous. Foremost, plaintiffs can cite to no case foreclosing the applicability of the due process clause to the aggregation of minimum statutory damages proscribed under the Copyright Act. On the other hand, Lindor cites to case law and to law review articles suggesting that, in a proper case, a court may extend its current due process jurisprudence prohibiting grossly excessive punitive jury awards to prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered...For purposes of the motion for leave to amend, Lindor's affirmative defense is not frivolous. The court will address the merits of the affirmative defense, if necessary, at a later date.
Judges do have the legal authority to lower damages below the $750 limit, but only in the rare case of so-called innocent infringement, where the defendant "was not aware and had no reason to believe that his or her acts constituted an infringement of copyright."
Declan McCullagh, CNET News' chief political correspondent, chronicles the intersection of politics and technology. He has covered politics, technology, and Washington, D.C., for more than a decade, which has turned him into an iconoclast and a skeptic of anyone who says, "We oughta have a new federal law against this." E-mail Declan.
My opinion? Unless the RIAA can come up with a number of downloads on which to base the damages, then the damages should be minimal.
Claim you're a wanton violator of the law, demand a retrial, and
demand that you be held accountable for $600 million in damages.
Fight absurdity with the absurd.
In this case, $220,000 for each song a member of the RIAA has made available without a corresponding payment to the artist.
Each song in a honeypot. Every "whoops" where they promo that they allowed into the wrong hands and so on.
Best Buy took the case as far as they could, ultimately applying to the Supreme Court of the United States...claiming that paying treble damages was a 'nuclear bomb' and that RICO statutes were never meant to apply to them...
compare that to this case. Treble damages (times 3)...to this lady, who, has to pay over $9000 per $1 song. (times 9000).
RICO statues aren't supposed to apply to best buy....sounds like laws targetted at professional pirates weren't supposed to go against individual downloaders.
The people cheering that a woman paid damages that were 9000 times the cost of the songs she stole...go strangely silent or even support the reported activity of Best Buy to defraud consumers...who are only facing a times 3 penalty.
It's amazing.
I think the woman is guilty, but I've argued for reasonable fines and penalties.
Imagine if your next speeding ticket was $100,000. It would cut down on speeding, but it would also be ridiculous to fine someone $100,000 because they missed the sign where it said to slow from 45 to 35. Destroy lives over that?
I'm just saying...there are fines that are too great. Reason needs to prevail.
More importantly, next time you are accused of something and are innocent, or are injured by someone's negligence, let's see how you do without lawyers. I bet you sing a different tune then.
Instead of being a parrot and spouting anti-lawyer sentiment mindlessly, please engage the only 2 brain cells you have in your brain, and think before you post.
"The Staten/Barron study indicated that chapter 7 debtors have an average of $41,228 in unsecured debt, and chapter 13 debtors report an average of $20,953 in unsecured debt." http://www.usdoj.gov/ust/eo/public_affairs/articles/docs/abi98marnumbers.html, 16 Oct 2007.
This woman was not running a for-profit illegal publishing business, and no evidence that any of the songs on the system were illegally downloaded except from the RIAA itself.
In short, while the woman was guilty of making the copyright material available for download, she should have been sentanced as a private individual, not a business, and the fine(s) imposed should have been based on the actual illegal downloads, not the availablity of all the materials.
The judge showed a remarkable lack of common sense in defining criteria for penalties; unless it was his secret intention to provide the woman an excuse to challege the award in court. I kind of doubt the judge was quite so machevellian.
What about all thoses 331/3's,45's,cassettes & ( 8-Tracks,(they really SCREWED us there) we purchased with the intent of never having to purchase again,because they said SO. I think to bring down Da' HOUSE, we have to boycott the buying of music for ONE Month or Longer TIL' THEY CRY UNCLE, FOR Jammie Thomas! What do we say?
- Very crazy fine
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by Travis Ernst
October 16, 2007 3:41 PM PDT
- I think the challange of the fine makes an exellant point. The
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Reply to this comment
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(11 Comments)charges they claimed she did, and the jury found her guilty of,
the fines were overly high. Reduction of fines is a valid request.
Why should she have to pay to finance their legal department.
If the fines went to the artists that would be reality... but we all
know they don't do that. If they would give say $250-1000 per
violation to the artist, thats still $6200-23,000. However at
least the funds would be going to an artist (or non profit fund if
the artist waves it).