Justice Department defends massive file-swapping fine

Nearly two years ago, the Bush administration sided with the major record labels in their civil lawsuit against an alleged and briefly famous Kazaa user named Jammie Thomas. Now the Obama administration is doing so as well.

In a legal brief filed Friday, the U.S. Department of Justice said the whopping $1.92 million fine that the Recording Industry Association of America slapped on Thomas was perfectly constitutional.

Federal prosecutors argue the relevant law is "carefully crafted" and consistent with "due process" and part of a necessary "regime to protect intellectual property. Under current law, copyright holders can sue for up to $150,000 per work (such as an MP3 file, DVD, or book).

Their brief adds: "Congress took into account the need to deter the millions of users of new media from infringing copyrights in an environment where many violators believe that they will go unnoticed." It does not take a position on issues other than the constitutional ones.

In the case of Jammie Thomas--now Jammie Thomas-Rasset--a jury decided that she had willfully infringed copyrights on 24 songs and awarded the RIAA a total of $222,000. Her lawyers successfully argued for a new trial, in which the RIAA won $80,000 per song in damages, or a total of $1.92 million.

Now her lawyers are asking for a third trial on grounds that the total fine is unreasonably, and even unconstitutionally, high.

Jammie Thomas

(Credit: Jammie Thomas)

Thomas' attorneys' brief filed last month says the up-to-$150,000-per-song statutory damages "bear no reasonable relation to the actual injury suffered by the plaintiffs. The damages awarded are grossly in excess of any reasonable estimate of that injury...An award of statutory damages of $1.92 (million) for 24 songs assessed as punishment, not compensation, shocks the conscience and must be set aside."

The Obama Justice Department's arguments echo the ones made by the Bush Justice Department in a December 2007 brief, which said: "Congress has crafted a statute that serves as a deterrent to those infringing parties who think they will go undetected in committing this great public wrong."

Friday's filing wasn't exactly unexpected; for one thing, the Justice Department is generally tasked with defending acts of Congress from legal challenges. It sided with the RIAA in a recent Massachusetts case, and in an unrelated peer-to-peer case in New York.

The RIAA has said it's willing to settle its Minnesota case against Thomas for far less than the seven-figure sum it's now owed. "It was a jury of regular folks who rendered this decision," Jonathan Lamy, a spokesperson for the RIAA, said in June. "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."

One of the RIAA attorneys in the Thomas case was Donald Verrilli of Jenner and Block in Washington, D.C. In February, Obama named Verrilli to a senior Justice Department post as associate deputy attorney general.

[clamenza]

I know there's a risk people would ignore small fines, but this is like the war on drugs - huge penalties for relatively minor offenses. The result is not pretty. Another analogy is using the death penalty for minor offenses (or cutting off hands for stealing). Have worked in some countries but I'm not sure how many people would go for it.

[monkeyfun14]

I don't understand how so much can be given in damages. What did they lose? Even if you count loss sales I doubt she distributed each song to 150,000 people.

[ikramerica--2008]

But the whole point of the case was that she didn't do it 24 times. She did it thousands of times. To make the case LESS ridiculous, they sued for a representative 24 songs, a SAMPLE of her offense. This is because she would possibly be liable for billions of dollars otherwise.

Further, punishment is about PUNISHMENT. This is a PUNITIVE fine, not a compensatory fine. The reason punitive fines are high is because otherwise, if they are simply for the "value" of the work to one or 10 people, etc., the copyright holder would go broke defending their copyright. By making the punishment large, it deters those who plan to violate, and compensates the right holder in such a manner that they can continue to defend their property.

If the damages were a few hundred or thousands of dollars, there would be no way to protect copyright in this country at all.

[magicmaster]

@ikramerica--2008
You already realized it's lucrative to file a lawsuit in US, and it's no surprise that RIAA file many more, because it's very inexpensive. You file, you extort, you collect the fees related to settlements (many defendant want to fight back, but in comparison to the resource RIAa holds, defendants may die paying for legal fees instead). This "loophole" enabled them to make money by lawsuits and nothing else.

RIAA set up a website named "p2plawsuits" to specifically collect settlements from defendants, and I have never seen such case before.

[baconstang]

She broke the law and got caught and punished. The current administration did not pass the law, Congress did years ago. Her fine was 50% of the max allowed by law.

[mbenedict]

@magicmaster:

Big flaw in your argument: these lawsuits are big money losers for the RIAA. RIAA pays millions to investigators (Media Sentry) and lawyers, yet they'll never be able to recoup those funds. They argue they're doing it for the deterrent effect (as they claim they're losing billions in lost sales).

Lawsuits are only "lucrative" when you sue those with deep pockets (such as big corporations or insurance companies). Suing a single-mother from Minnesota who barely makes $40k a year is never going to be a profitable venture for the RIAA.

[8301]

I wonder how profitable it is for the RIAA to contribute to the campaigns of elected officials who construct the laws in their favor.

I sure wish I had enough money to make the government do something for me.

[jc364]

The administration is very wrong in this case. The fine per song is ridiculous; it's clear to see that the courts are punishing her for the wrong-doings of all file-sharers just to make an example out of her, which is unconstitutional.

[DrollTroll]

You are wrong--you don't know the court is making her an example. If 100 similar suits were brought and 99 were thrown out but hers was decided against her, then maybe you have an argument. As it stands, what the court did is not unconstitutional.

[Pete Bardo]

It really doesn't matter what the Justice Dept says. Of course they defend the law--that's their job.

The only thing that really matters is what the courts decide and whether the court decides to hear the case.

[declan00]

"Of course they defend the law--that's their job." Except when the law is too egregious, and the DOJ chooses not to defend an act of Congress. Keep reading for two pre-Obama examples.

Bush:
http://www.aclu.org/drugpolicy/gen/10903prs20050126.html

Clinton:
http://www.cybertelecom.org/cda/hyde.htm

[Vegaman_Dan]

If the government wishes to enforce this fine, then they will find themselves responsible for this person's welfare for the rest of her life as she will be unable to find any work that pays enough to be able to pay off the fine. She will have no home, no car, no posessions of any type, leaving her destitute... and at the mercy of the system. The government then becomes responsible for her health care for the rest of her life as well.

Think of it... the mental trauma alone brought on by this fine is surely enough to warrant suing the government for several hundred million alone.

She could end up a very rich person.... by being a poor one. Go figure.

The only people in this situation at all that benefit are the lawyers.

[dhavleak]

I guess I'm in a very small minority for thinking that this fine is ok..

Here are my thoughts:
1) The fine does not need to be commensurate with the damages caused by the offense -- they should always be a multiple of that. Otherwise, any time you're stealing from someone, you can rationalize it by saying "what's the worst that could happen -- if I get caught, I'll just have to pay for this stuff -- that's all"

2) The multiple needs to be large -- it's meant to be reparation plus a deterrent.

3) I realize it's a very cold way to view the whole matter -- and it's quite possible that she wasn't even technical enough to know how to use whatever p2p client for downloading only -- but that's a question of mercy. And mercy is obtained by pleading guilty or settling out of court. Ignorance has never been a valid defense. Once she got sued, she would have been educated by her lawyers and at that point she should have realized that she was in fact guilty of copyright infringement, and that settling was her best option. You can't plead not-guilty and then appeal the verdict and still expect a merciful punishment when you're found guilty again.

[Random_Walk]

"I guess I'm in a very small minority for thinking that this fine is ok.."

...unless your kid downloaded some songs and you (as the parent) got caught, eh?

Funny thing about outrageous crap like the RIAA's little present... it's always okay until you're the one staring down the possibility.

[El_Segfaulto]

I agree that there should be fines, I'm fairly anti-IP but I will admit that there does need to be some protection for rights holders. However it's the magnitude of the fine that is so unreal. By their twisted logic they should start handing out $30,000 tickets for speeding to act as a deterrent, or $50,000 for a loud party. If she was doing it for commercial gain, then throw the book at her, otherwise charge her a few hundred and let's get on with our lives.

[dhavleak]

@ Random_Walk

If your (minor) kid is the one who downloaded stuff, then yes, the parent is the one who is liable.

The part about getting caught is true for every crime. It's always ok until you get caught. Unless you're referring to social attitudes -- that everyone thinks it's ok. Well -- that doesn't make it ok, either. It's like being part of a mob of looters when a riot breaks out. Just because everyone is shoplifting, doesn't make it ok. Just because everyone thinks they are entitled to free music doesn't mean piracy is ok. Whatever % of people think that music piracy is ok -- I guarantee you that if these people depended on selling music for their livelihood, that % would get whittled down to a pretty ridiculous number.

So I seriously don't think this verdict is that outrageous. Jammie Thomas was guitly. She had a chance to settle for a few thousand dollars. No matter how she got into this situation (her kids installing Kazaa or whatever) once she was sued she should have educated herself on the matter and come to the conclusion that she was guilty, and at that point she should have settled. On failing to do that, she should not have appealed the first verdict. If you do not seek mercy at any point, if you show no remorse for your actions, why should the verdict be merciful?

@ El_Segfaulto

You know -- I don't know exactly what would be the right multiple -- but the first verdict (at about $200,000) was probably not high enough once an appeal was filed. That's because an appeal means even more lawyers fees for the label, etc. Once Thomas the verdict was upheld again, it would have been very very unlikely for the damages to not increase. The if the label spends say $500,000 on lawyers fees over infringement, they can't very well get $24 back ($1 per track). That way anyone who's product is pirated will actually go broke if they sue people for it. That's why charging her a few hundred dollars would simply never have worked. It's not a sufficient deterrent, but much more importantly, it doesn't completely compensate the plaintiff for their expenses.

[8301]

"It's not a sufficient deterrent, but much more importantly, it doesn't completely compensate the plaintiff for their expenses."

The same works in reverse for the RIAA when they hand out litigation like it's free candy. They know they can extort a few thousand dollars from a person, without ever having to present proof (not that they have any, anyway), just by banking on the fact that they have deeper pockets and can afford lawyers when the individuals they're attempting to sue can't afford to defend themselves against the RIAA's baseless claims.

But I guess it's OK as long as the RIAA gets their money.

[dhavleak]

@ 8301

I certainly don't agree with the RIAA's tactics in terms of the people they choose to go after. But when everyone's guilty, people are actually enabling them to pick and choose who they go after.

Besides -- that's a different topic altogether. When evaluating this particular case, the jury would not have been able to consider any of these factors. Rightly so as well -- the overall strategy of the RIAA isn't really relevant to Jammie Thomas's innocence/guilt.

[Renegade Knight]

Constitutuational Maybe. Just? No. You would think the Department of Justice would be concerned with the justice.

[Sausagebiscuit]

Guess it's to be expected when you have ex-RIAA members/lawyers helping to 'lead' our country.

[JohnLaCombe]

"Congress took into account the need to deter the millions of users of new media from infringing copyrights in an environment where many violators believe that they will go unnoticed."

Based on this justification, we should increase speeding penalties...possibly public execution. After all, congress needs to take into account the need to deter the millions of drivers from injuring others in an environment where many violators believe that the will go unnoticed.

The sad part is they have only ever reached decisions this outrageous and of this magnitude when it directly affects corporate profits.

[ikramerica--2008]

There is already a stiff penalty for killing someone.

[8301]

But there's not a stiff penalty for speeding, where there is a potential that a speeder could kill someone. But it's OK to hand out million-dollar judgments on the basis that there was a potential that a music sharer could have allowed someone else to download music? It's OK to assume that these downloads cost the music industry great profit in spite of the absence of any evidence to confirm that's so?

[slumbergod]

I'd be so embarrassed if I was an American. Yes, the fine might be constitutional but anyone with common sense knows it is ridiculous and shows how pathetic the US legal system has become. It is clearly time for the rest of the world to stop trying to follow American culture since it seems to have lost touch with reality.

[ikramerica--2008]

No, anyone who doesn't understand the case, the law, and why the law exists might agree with you. But if you actually look at what would happen if such laws couldn't exist, where we would be as a country, you'd change your tune.

The USA and other nations that protect copyright and patents have been the leaders in the world in creating and innovation. It's not coincidental...

[El_Segfaulto]

I am an American and I can only speak for myself, but I am a bit ashamed of the way our legal system is railroading people for the crime of copyright infringement. It is a crime, but drunk drivers, child molesters, and other "real" criminals pay far less fines. Am I the only one here who thinks the penalty is way out of line for the crime committed.

@ikramerica
Get off your sanctimonious backside and think for a moment, is it worth destroying somebody's life to prove a point about downloading music?

[8301]

"Get off your sanctimonious backside and think for a moment, is it worth destroying somebody's life to prove a point about downloading music?"

It is if you work in the music industry or otherwise directly profit from copyrighted material, as most of the commenters who defend the RIAA's actions on here do.

[AnonTip]

So much for "change"

[baconstang]

Obama can't change laws that are on the books.

[8301]

Maybe not, but he can change the way those laws are enforced.

[jthomasb1987]

Here is the problem,

This is essentially government protectionism of this specific industry. For those who don't understand protectionism - you need to educate yourself - it is the opposite of globalization and free trade. For example, textiles and manufacturing used to be what the United States economy depended on. As technology advanced and spread (take special note here) what the U.S. economy depended on changed. Much of our world depends on the theory of comparative advantage, the idea that even though a country may be better at producing an item than another - it shouldn't produce the item if its time is better spent producing something else that it's even better at. Therefore, the technology used to produce the former item is outsourced to another country for them to produce the item, and then we trade. This has happened with furniture, textiles, manufacturing, IT jobs, televisions, anything you can imagine. Guess what happens when we outsource an industry? The jobs in that U.S. industry evaporate. The workers have to find new skills and new jobs. If you haven't figured it out already, protectionism is the act protecting these jobs and not outsourcing them - making the assumption that the jobs are worth more than the greater economic benefit which comes from free trade and globalization. You see, when a U.S. job is outsourced, the U.S. is not losing. They are using their resources to focus on something better, something more cutting edge. This is how great innovations are born, innovations that change the world. Its time is better spent focusing on new innovations, than manufacturing televisions. This business model is dead. Just like the U.S. furniture manufacturer. Dead. These laws are protectionism for this specific type of industry. And this has happened because technology has advanced faster than this particular mode of businesses ability to generate revenue. This concept of suing single mothers and college kids is testimony of the last dying breaths of a huge industry. It's very safe to say that it is severely crippling the image of corporations such as the RIAA and MPAA and even the actors/song artists that are the catalysts for their message. The worst thing you can do in business is tarnish your image. That is essentially rule number 1. Not to mentioned, the sole reason for going this route is out of desperation, a cheap shot to attempt to scare the masses out of continuing what is sheer propensity. The problem is that the masses are becoming more and more technical oriented and educated and making the realization that there are so many avenues to file share - the risk analysis of ending up like Jamie Thomas is low. Almost as low as being prosecuted for jaywalking.

[eriky4]

If i was her i'd jump ship, screw the RIAA dont give them a penny.

[8301]

"One of the RIAA attorneys in the Thomas case was Donald Verrilli of Jenner and Block in Washington, D.C. In February, Obama named Verrilli to a senior Justice Department post as associate deputy attorney general."

Am I the only person that sees the problem with this?

[Robert_J_Berger]

Its time to strike back. The RIAA should not have Anti-Trust protection and should be proscecuted as racketeers. They are the real pirates. Stealing from Musicians and using the government to strongarm their customers.

Obama should be ashamed and its another clear signal (along with the ongoing bailout of the Financial Industry and the lack of a comprehensive energy program that eliminates oil as the major energy source) that his campaign for hope was a sham and he is just another politician under the control of the Corporate Overlords.

[axiomat097]

It's really only been 8 months -- you expect Obama to be reversing century old mindsets and policies regarding oil use in that time?

The bailout also started with Bush -- and it's already been decided that the financial bailout stopped worldwide economic free fall and most of the worlds recessions have ended at this point in time.

But I do agree that the RIAA should not be granted any kind of protections, especially if your average joe is granted none of the sort.

[mhenriday]

Nothing surprising about the brief in question, a rear-guard action in defense of an industry with intimate relations to all branches of the US government. «Statuatory damages», indeed, - in a civil suit ! The absurdity is as patent as it will prove difficult to resolve with a Congress in the pocket of organisations like the RIAA and the MPAA. Nor can we Europeans point the finger in this case, as recent court judgements here in Sweden have shown, the situation is the same on this side of the pond (not to speack of the situation in Australia)....

Henri

[DrollTroll]

At the end of the day, she should be socked with a humongous fine for either downloading herself or being a poor parent and letting her kids download the crap RIAA protects. The sad state of American music today should be protection enough for drive-by downloads, but what we have are idiots and idiotic parents who actually enjoy this RIAA garbage they call "music."

[tenc21]

Right on, bro. Bring awn duh the Allman Bros, duh Dirt Band, Lynrd Skynrd, dammmm dee junk passin fer muzak deese daze ain't amount two uh pile uv beanz.Hoo'd want two kopy diss sheet. Dat woman shoodn't bee fined, butt sent two uh insane asighlum

[AScoutWhoKnows]

To both the author and the posters calling this a fine or a punishment:

Jammie Thomas faces a civil judgement. Civil judgements aren't fines and they are designed to punish, but to compensate an injured party. Fines are paid to the government; Jammie Thomas owes the RIAA and its constituent record labels named as plaintiffs in the suit. Within tort law, punitive damages are used to punish and/or make an example out of a defendant. Copyright law is a strict liability tort (meaning intent is not an element of infringement). The statutory damages scheme is intended to offer an alternative method for accurately measuring the damages in copyright infringement cases and not offer a windfall to a successful plaintiff. Imposing these types of damage awards on a file sharer should shock the conscience of the court. I believe Thomas has excellent grounds for appeal because these awards are essentially scape goating a few file sharers for the actions of thousands or millions.

The Justice Department's stance on this is another example of what Stanford Law's Lawrence Lessig has pointed over the last two years: the problems with copyright law won't be changed until we figure out some way to balance the legitimate right of businesses to communicate with Congress with the inevitable corrupting influence money has in the political arena.

[yougot2loveart]

I wonder about something here. if you illegally download a single MP3 file you can get a fine of up to $150,000. just because you downloaded it. if you go to a shop and steal the whole CD then your punishment wouldn't be nothing as close to that. where's the logic? 1 MP3 file is worth $1 if you buy it online. following this logic if one would steal a car worth $20.000 he should get a fine worth billions of dollars. this copyright law is pure nonsense. it has nothing to do with reality. nothing at all. this law is as fair and as civil as if we'd be still cutting hands off when someone would steal an apple from a market stall. it's simply barbaric.

[jthomasb1987]

Well in simple terms, the logic they are using is that by using bittorrent she uploaded the files as well. Meaning she "shared" the file with an unknown amount of people. And those people shared the file with an unknown amount of people, and so on and so on. The problem with that logic is that it's making a huge assumption. It's putting a random price on the unknown amount of times the file was shared. For instance, if I have a movie, and I invite several people over to watch that movie throughout a month, it could be comparable. And if I was to let a friend borrow the movie, and they were to invite friends over and let them watch it too. It's essentially the same concept as digitally sharing files. I'm not arguing that it's not crazy. It's insane, and the RIAA and MPAA have an archaic business model that the government is allowing protectionism for. It won't last too much longer though, when you result to suing single mothers and college kids - your public image is shot. They will either evolve past this nonsense, or lose all their money suing the public which will do nothing. Because they only catch/prosecute like 2% of the people who download illegally.

[crusadex]

Just the fact that the prosecuter now works for the Obamanation should tell you something.
Is this an indication of things to come? Just fine people into oblivion?
192 million for some music is insane.It's a joke becuase she couldn't pay that in 3 lifetimes.
Maybe she can declare herself independent much like the US did to England.

[erikcross]

Does the DOJ and Congress understand how frustrating it is for most people to "legally" get music in this country? I can certainly emphasize with many young people who share music. Buying music is much more expensive than in has to be in this digital world and the problems that DRM creates drive many people crazy. If people could buy music at a realistic price and not have to deal with the digital rights management crap, I think that illegal file sharing would start to disappear.

[tmarlow]

What? It's VERY easy to legally get music in this country. Amazon, iTunes, eMusic... all these sites and others offer music to download for what I consider reasonable prices (and are now all DRM free). I pay $12 a month for eMusic and get 35 songs. Seems a reasonable price to me. What she did was illegal, she knew it was illegal, and if she would have paid the first fine of 200k instead of appealing, she wouldn't be facing the outrageous fine she has now.

[jthomasb1987]

The problem is that the majority of people don't want to pay a dollar for a song when they realize it's so easily free. Not only is it free, it doesn't hurt anyone. You could say that it hurts the RIAA, but so what? Welcome to economics. Did it not hurt the U.S. manufacturers when their jobs were outsourced? And while they were hurt and had to find new skills and jobs, the standard of living for the majority still increased. As technology changes, so does the economic environment. The RIAA and MPAA have very limited choices here - attempting to sell music the way they are now is not one of them.