Four reasons why the RIAA won a jury verdict of $220,000
The Recording Industry Association of American got a chance on Thursday to show everyone just how heavy and intimidating the legal club of copyright law can be.
As my colleague Greg Sandoval wrote a few hours ago, a Minnesota woman named Jammie Thomas was sued by the RIAA for allegedly making available some 1,702 songs through the Kazaa network (though only 24 were at issue in the case). A federal jury sided with the RIAA and returned a verdict of $222,000.
I've put some recent documents in the case online here for your perusal.
So why did this verdict happen?
1. The RIAA was able to match a username and IP address with Thomas. There's not always a 1:1 mapping between IP address and a specific computer, of course, as people who are behind a corporate firewall probably know. But home users tend to be more easily identified, and it's trivial nowadays for a lawyer armed with a subpoena to find out who they are. Large Internet service providers have entire departments to respond to these requests.
The fact that Thomas publicly used the nickname "tereastarr" including as a tereastarr@hotmail.com e-mail address -- and then chose it as a Kazaa username as well -- may have helped the RIAA immeasurably. If she had used a Kazaa username of "anonymous" instead, I wonder if the jury would have been more likely to take her side. The jurors seem to have flatly rejected (and reasonably so) her lawyer's claim of possible IP address spoofing.
2. The RIAA's jury instructions. Both the RIAA and the defense submitted proposed jury instructions (see my link above). Both are pretty similar because of the constraints of 8th Circuit precedent.
The key difference is that the RIAA offered two suggestions, which would eventually become Jury Instructions 14 and 15, which the defense left out. Once U.S. District Judge Michael Davis sided with the RIAA on that crucial point, which he did, and adopted its suggestions, the recording industry had a much easier time of it. Those two crucial instructions are:
JURY INSTRUCTION NO. 14: The act of downloading copyrighted sound recordings on a peer-to-peer network, without license from the copyright owners, violates the copyright owners' exclusive reproduction right.
JURY INSTRUCTION NO. 15: The act of making copyrighted sound recordings available for electronic distribution on a peer-to-peer network, without license from the copyright owners, violates the copyright owners' exclusive right of distribution, regardless of whether actual distribution has been shown.
3. "Making available." Jury Instruction 15 is more important. It says that the RIAA doesn't need to offer any evidence that rapacious Kazaa users actually downloaded songs from Thomas' computer. All they need to do is claim that Thomas left the songs in a publicly accessible directory where they could have been downloaded. Big difference.
This is not an outlier, by the way. A Pennsylvania judge came up with the same making-available-is-infringement conclusion in February. Marybeth Peters of the U.S. Copyright Office has argued that "making (a file) available for other users of a peer to peer network to download... constitutes an infringement of the exclusive distribution right, as well of the reproduction right." Judge Davis' interpretation of the law may not be the only one, but it's a defensible one. Here's his reasoning.
4. Copyright law is harsh. Once the jury decided that Thomas was behind the IP address in question, there was almost certainly going to be a stiff fine--of at least $18,000. In this case, the jury was given these instructions:
JURY INSTRUCTION NO. 22: In this case, each plaintiff has elected to recover "statutory damages" instead of its actual damages and profits. Under the Copyright Act, each plaintiff is entitled to a sum of not less than $750 or more than $30,000 per act of infringement (that is, per sound recording downloaded or distributed without license), as you consider just. If, however, you find that the defendant's conduct was willful, then each plaintiff is entitled to a sum of up to $150,000 per act of infringement (that is, per sound recording downloaded or distributed without license), as you consider just.
In determining the just amount of statutory damages for an infringing defendant, you may consider the willfulness of the defendant's conduct, the defendant's innocence, the defendant's continuation of infringement after notice or knowledge of the copyright or in reckless disregard of the copyright, effect of the defendant's prior or concurrent copyright infringement activity, and whether profit or gain was established.
In this case, the jurors chose $9,250 in damages for each of the 24 songs, or $222,000. They could have gone as low as $18,000 in total or as high as $720,000, and seemed to want to pick something closer to the middle.
So what happens next? Thomas can appeal. Or, if the RIAA's smart, its lawyers will offer her some kind of not-entirely-punishing settlement that's a tenth of today's damage award and strongly encourage her to take it. That would avoid the worst of the negative publicity, but still let the record labels wave around a pretty big club.
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.
law..Stand behind this woman by downloading 24/7..Anything
and everything you want to..This is not stealing...Don't believe
your Goverment.. If this happens in Canada nobody will obey this
law..I'm pretty sure it would be quickly run out of town..
Michael Seagram
Montreal, Canada
Wouldn't that make the labels guilty of "making copyrighted sound recordings available for electronic distribution on a peer-to-peer network"? Nobody was filesharing vinyl!
that the act of making something available for distribution (leaving
a newspaper behond on a train, for example) is prohibited. The act
of making a copy (or derivative, or performance) of it is. Hence the
term "copyright".
The IP address of the system in question was public knowledge,
as was her user ID. Surveys have found that about 24% of all
Windows PCs contain malware of one form or another, many of
them simple proxy gateways, others collecting data or serving
files -- many just "bots" waiting to do someone's bidding at a
later date.
For the defendent to be found liable for infringment, the RIAA
needed to show not that the defendent's computer was used
(not relevent), but that infringement occurred and that the
defendant was the individual that engaged in the infringing
activity (what matters). If another person could have used her
computer, or a third party remotely, they would be the liable
party. Even if the computer was used, it doesn't matter. It's who
was actually operating the application that facilitated the
copying that mattered.
Yet, the RIAA never presented any evidence that she actually
engaged in the infringement. They had some supporting
evidence that infringement took place, and even that it was
associated with her ISP account, but then they stopped there.
There was a claim that she destroyed evidence, but since that
was prior to her being notified that she was being accused, it's
had to say (as a hypothetical, what if she ran it all off a USB
thumb drive?)
I'm not saying that she didn't do it, or that she shouldn't be held
accountable some how (though 220K seems stupid to me), just
that the evidence presented failed to prove her liability. Had she
a more tenacious lawyer, I bet she would have won.
Now, if the ex-boyfriend said that he knew the password, then you could, in theory, argue that the defendant was not the sole user of the computer, and then argue the defense of "it was done without the knowledge of the owner."
As for the evidence destruction, there appears that there was a drive failure on the machine shortly after Media Sentry found the shared folder but before the defendant received notice of infringement behavior, etc. I've seen, as most of us have, drive failures in machines 1 1/2 to 2 years old. Its not the rule, but its not the exception either. Also, there are Best Buy records that the drive was replaced under the defendant's extended warranty. Best Buy isn't just going to replace the drive if the user wants them to. They'll only replace it once they determine that its either in failure or at risk of imminent failure.
All this really tells me is that if you are going to do this kind of stuff, you really don't want to use a nickname that you use all the time for everything else.
Cela ne veut pas dire,pour autant, que je n'aime pas votre pays,bien au contraire,mais vous,vous le déshonorez!
What "We the People" have to do is let the RIAA sue us, don't pay anything and if the judical system would like to inprison hundreds of thousands of people for "SHARING" we'll see how society likes it when murders, rapists and robbers are running the streets because the prisons are full of people guilty of "SHARING".
nuff said!
SHARE AND SHARE ALIKE PEOPLE! The Majority ALWAYS wins!
Back in the 70s, everybody did it -- it was no less stealing, but it was also much more difficult and the quality typically wasn't nearly as good... If I wanted to make 50 copies for my friends, it would take hours and hours. If I want to give 50 copies to my friends now, the email group takes seconds... It's a different environment and RIAA had to evolve in strength and ability to meet that environment...
Sharing only goes so far -- and it's much easier to share the property of others... Were someone to move into my garage or living room and start taking my leftover pizza from my fridge, "share and share alike" ain't gonna be the first thing on my mind...
And the majority doesn't always win... Look at the idiots we have in office now...
I'm not a huge fan of the RIAA, nor of what's going on now -- another commenter mentioned that the penalties don't seem appropriate (whacking someone for hundreds of thousands of dollars for multiple 99 cent thefts -- kinda like executing people for stealing a Hershey bar...) But, I don't think your argument holds water...
has permeated the culture is the base cause for your kind of
attitude. The "everybody does it" argument does not apply and is
totally irrelevant. You have decided that it's ok to get music
without paying for it. You are a thief pure and simple and your
idea of what's right and wrong doesn't matter. There IS absolute
truth and obtaining someone's property or work without
compensating them for it is THEFT. In journalism it's called
plagiarism, at your local WalMart it's called shoplifting, and on
the internet it's electronic shoplifting.
The idea of people like you that it's not wrong if you don't get
caught or since everybody does it the majority has decided it's
ok is simply rationalizing unethical and selfish behavior. That's
how anarchists operate and we all know how successful
anarchists have been at providing a working societal model.
What "We the People" have to do is let the RIAA sue us, don't pay
anything and if the judical system would like to inprison
hundreds of thousands of people for "SHARING" we'll see how
society likes it when murders, rapists and robbers are running
the streets because the prisons are full of people guilty of
"SHARING".
nuff said!
WELL, that works fine when you're talking about "other people"
being in jail. But, people tend to change their minds about
things like this when it's "them" who ends up in jail (for the good
of hundreds of thousands of others who are not in jail...)
LOL! :-)
technology makes it easy for people to access and take money
from your bank account. It would just be an alternative way for
them to acquire wealth. Music compositions and music are art,
not unlike pictures in an art gallery. Just like you cannot walk
into the gallery and take pictures away without paying for them,
without great risk of going to jail, so too should you face
consequences for stealing music. It is a tragedy has made
stealing so easy to do that thieves do not feel like thieves. But it
is stealing - it takes money away from hardworking artists who
create it, making it hard for them to sustain a simple life (home,
food, etc.). So when it comes to your bank account and anyone
who steals music through downloads, let's really share and share
alike, all the money in your bank accounts.
The downloader IS profitting from the downloading. Let's say that you go to bestbuy and you buy a CD. The CD costs 15.00, you hand the clerk a 20 dollar bill, and then when the clerk isn't looking you reach in and take the 20 you just paid with... What crime are you now guilty of?
Most people would say they are guilty of only stealing the CD OR the money. But the reality is, two crimes were committed. One was theft of the CD itself, the other was theft of the money. You didn't pay for the CD, AND you took the money you used to defraud the clerk.
That word, "defraud", is an important word. According to Merriam-webster, it means, "to deprive of something by deception or fraud". You could be then charged with 3 crimes, if someone so wanted, depending on if someone can prove conspiracy to commit fraud.
And by the way, IF the RIAA sues all of you, then you refuse to pay, then the court has the option to garnish your wages. If you are sued, and you lose, you'll have to pay, no matter what.
related.
You were saying...
What "We the People" have to do is let the RIAA sue us, don't pay
anything and if the judical system would like to inprison
hundreds of thousands of people for "SHARING" we'll see how
society likes it when murders, rapists and robbers are running
the streets because the prisons are full of people guilty of
"SHARING". nuff said!
---
What people need to do is really "break the RIAA" and break it in
a way that makes it almost impossible for them to do anything
about it. With "technology", they've got somewhat of an edge on
people to catch them (although there are ways to get around it
and I've already suggested a few here).
I would suggest a "mass movement" for everyone to buy as few
CDs as possible (but some people will buy a few, anyway), and
then pass those CDs that you have in your library around
(physically) to as many people as you know, and then ask all
those people to pass to you (i.e., "loan" them to you for a day or
two) all the music that they have.
Make it an absolute dedicated purpose in your life to loan out
your music collection to as many people as you possibly can. In
the process they will loan out to you as much as they can (as
they'll be grateful to you in the process).
The RIAA doesn't have enough "gumshoes" in the world to ever
do a thing about that. And they absolutely can't do a thing about
that, if you loan out your CDs regularly and with abandon!! LOL!!
It's about time to break the RIAA and that would be one way to
do it, with a mass movement of loaning every last CD that exists
to every other person you can think of... hahaha.... that ought to
really make the RIAA go wild... LOL!
Too bad consumers wouldn't just not buy for a couple of weeks.
Anything over this.. is insane.. and the laws need to be changed asap. This is only going to get worse.
What now... a middle school kid steals a $0.15 pencil from school and is ordered to pay back the school $1,000? C-mon America.. what happend to you?
She "volunteered" to be made an example of.
They had for for almost 2000 songs so she could've gotten off for little more than song costs but rejected it.
Usually, there is a price to pay when you gamble and lose.
Now she's on the hook for $220k instead of $2K.
She only has herself to blame.
While I can appreciate that the artists are entitled to their due for the recordings and I have no problem with them getting it, its all the middlemen making a mess of this. Suddenly we are being slapped in the face with a standard which has apparently always been in existence, upon which they want to stand at the cost of the livelihoods of people who can least afford to pay for such violations.
There is information out there which alludes to the possibility that you could receive an email which has music embedded into it, which you then pass on to others, leaving you subject to prosecution because the person who initiated the email dowloaded the music without paying for it. And there is only potential of it becoming more of a problem, since there are "hot spots" and other types of "free" access to the internet, as in the City of Philadelphia, where one could become prey to information being stolen and used for this purpose. We've all seen the news articles on television where the reporter is out of sight and using a program that is monitoring the activity of users in an internet cafe, only to confront them with what they were doing to make them aware that the location was not secure. Not to say that any of them would do it because they know its wrong, but my teens and their friends have all said that its not that difficult to hack an IP address and that they know others who have done it.
Where is this going to end?
Don't get me wrong, I think the fine that she was slapped with was obsurd, and I personally still have a hard time trying to understand how this really is any different than recording something off of the radio and giving it to a friend, but I don't think they would really have any ground to stand on to go after Kazaa...
Your example of borrowing a disk from the library, in my opinion, is still basically stealing the material. If you go to a video store, rent a DVD, take it home, copy it to your own disk, then return the DVD back to the video store, did you acquire a legal copy of the movie to keep in your DVD collection? At the same time... When VHS tapes were popular, was it uncommon for someone to copy the movie to another tape and keep it? I can't say I haven't seen people do that...
I honestly have a hard time with this topic because it can be viewed in so many different ways. Is downloading a song off of the internet and listening to it really any different than calling a radio station, requesting a song, then listening to that song on the radio? The only difference I really see between the two is that you have to wait to hear it on the radio...
It sounds like the moral of the story here is that if you're going to download music, don't share it back out after you've acquired it. I'm still yet to see the headline "Man in California being sued by RIAA for downlading 100 songs off of the internet".
You're entitled to borrow a CD from the library and listen to it -- once you copy it and put it on your children's iPods and return the CD, you've broken the law in the same way folks sharing via peer-to-peer networks have broken the law...
And you're right -- it was wrong back when we were listening to vinyl and cassettes -- but it was much more difficult and time consuming to do and didn't dent a record company's profits nearly as much as now, when I can create and mail off 1,000 copies in a matter of a few minutes...
And your concerns about "hot spots" and hacking into and monitoring the activity of users and even surfing for passwords and credit card information within these unsecure "hot spots" is a very real danger -- similar to identity theft, people will likely become adept at representing themselves as you, your children, your IP address and covering their trails by performing illegal activity as you...
But as for the occasionnal emails that are embeded with copyrighted data -- they're not going to be looking for accidental or unintentional transfers... They're going to be looking for, and prosecuting those who make a practice of this type of transfer...
It's difficult to go after the websites -- though they may be a forum where illegal activity occurs -- so can your email provider or the U.S. Postal Service. If you mail me a threatening letter or device, I can send the police after you -- but I'd have a hard time suing the post office for delivering it, or allowing you to mail said item... Similarly, if you email a threat to me -- I can report you to the authorities, but there is likely not a lot I can do to your email provider or ISP... They're trying to go after the party committing what they view as a crime -- not necessarily the venue where the crime occured... Kinda like the drug issue -- do you bust the users or the dealers or the producers? It will always be controversial, but in the eyes of RIAA, they're all participating in illegal activity...
I am not saying that this is right or wrong...only that as far as the letter of the so called law is concerned this is the way it is written.
I'm going to support the EFF and their efforts to reform corrupt copyright laws.
It may just be me but the Infringement by making available doesn't hold water since every library in the nation would be guilty of doing this. I can go to any library and rip music from every CD in their collection if I choose. No different from peer to peer except for ease of access. However ease of access only applies if I have already made the effort to make internet available at my house or go to the same library to download music using their computers.
Am I wrong?
Some may also issue this notice: Under the fair use provision of the copyright law of teh United State (17 USC 107), this disc (document..etc) was produced for reference use only from material held by the XYZ Library. Unless permission is granted, neither this copy nor its contents may be reproduced in any form; used by an unauthorized person, or placed in the collections of any other institution or individual.
What this does is protect the library and puts all the responsibility on the user. If the user violates the law, the library is not liable.
I am sorry to hear that the RIAA has taken this woman and made her the example. I do think the price is hefty.
However, if that was your work out there that everyone was download, and you took time and effort to create that work and hoped to make money to earn a living off it, wouldn't you want it protected? Some opt to place their work under creative commons rules. This is great. However, not everyone wants to give their stuff away.
RIAA, right or wrong, is protecting its investment.
Someone drives a high quality camera to your fence, properly lights up your painting, snaps a few pictures... Makes 1,000 high-quality lithos of that image and sells them for $1,000 each... They sell rapidly and he makes $1,000,000...
You are not guilty of anything -- but the guy who sold the 1,000 images probably is... Whether he "stole" and reproduced intelectual/artistic property from you or the artist who produced the work would need to be determined by some law jockey -- but he probably is not entitled to that $1,000,000 (or at least not all of it...)
You are the owner of the image and the artist may also retain some rights -- do you find it OK that he made $1,000,000 on something you own, and potentially something YOU could have profited from?
Another difference between you and the situation involving the RIAA suit -- you just tossed the painting in your back yard and possibily without considering that someone might use it to profit $1,000,000 -- the person involved in the suit posted the art in a place with the intent of allowing others to use/benefit from it (whether she did it or not, that's the reason it was posted there...) She, or whomever did that is guilty -- you may, or may not be guilty when you posted the painting in your backyard depending on your intent...
Putting a picture out in your back yard is very different from taking a copy of it over to a "share your pictures with the world" museum, where visitors are encouraged to take pictures and invited over with the express purpose of doing so.
P2P networks are designed specifically for the purpose of sharing files and making them available. It's one thing if someone hacks your computer and makes a copy of your hard drive's contents, quite another if you purposefully open all ports and run a program pointing straight at your file.
If her site had a password that wasn't given to anyone else, then it wouldn't have been available for download short of hacking it.
I think she has a case for appeal IF and ONLY IF it can be shown that nobody (other than her) downloaded any of the files. In that case, no distribution took place and no actual violation of copyright took place (unless she obtained the files without authorization).
The volume of the fine is ridiculous. Even 25 counts of intent to distribute marijuana would be less than that.
they'll never see another penny of my money.
you're finished with them. The RIAA just hates that... LOL!
cmsix
away from the old model of selling their products to making it all
free such as commercial TV or Google has done. Place
advertisement within all music and movie files and let people
share all they want. I bet that in the long run, changing to an ad-
based model will benefit everyone.
commercials segued every minute or so.... just like television.
Moron.
"I think it is about time for the music and movie industry to move away from the old model of selling their products to making it all free such as commercial TV or Google has done. Place advertisement within all music and movie files and let people share all they want. I bet that in the long run, changing to an ad-based model will benefit everyone."
We're getting there. SpiralFrog is a legal music downloading site that's free and plays ads with its music. It even has the support of Universal Music Group, I'm pretty sure.
- Copyright abuse is killing Electric cars, too
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by liveoilfree
October 5, 2007 8:47 AM PDT
- Never a more decisive argument to get rid of suffocating copyright laws and antequated restrictions.
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Reply to this comment
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- Educate yourself, please
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by bluemarko1234
October 5, 2007 9:24 AM PDT
- Before making loony conspiracy claims, maybe a little education would be helpful.
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View
all 2 replies
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- you can make it stop
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by sanenazok
October 5, 2007 9:42 AM PDT
- put some aluminum foil on your head, that'll make the evil patent/copyright waves from infecting your brain. (BTW patents and copyrights are completely different)
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all 2 replies
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- Oh, for crying out loud!
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by keepingmediahonest
October 5, 2007 9:51 AM PDT
- More brilliant comments from someone who doesn't know the difference between copyrights and patents.
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Showing 1 of 5 pages (300 Comments)Chevron, which purchase the patent rights to the EV batteries, is using that control to stop anyone from using these NiMH batteris in EVs. They funded a lawsuit that won against Toyota, and the production line was stopped in 2002.
Copyright and patent law are two completely different (although admittedly similar) concepts. Patent law covers devices, allowing the inventor a limited period (20 yrs in most cases) during which they and they alone can produce a product. Do you suggest an inventor should spend millions developing a product and then allow anyone and his uncle to copy it for no compensation? That would make it pretty stupid of them to spend the money on development, don't you think?
Copyright covers the specific composition of written (or recorded) material, a different concept. And by the way, to those commenting that it would be a shame if nobody could play Beethoven: during his lifetime, why would you expect to be able to perform the product of his genius? Long after his death (as with all copyright material), it is possible, but during his life, he deserved anything he could get from his product.
Got a patent number on Chevron's patent, by the way? Or is this the "he said she said" type of cluster-fxxked argument?
I can tell you right now who killed the electric car: YOU DID. Yes, I saw you, and I'm going to tell!
Cheer up. The key NiMH patents expire in 2014. Copyrights seem to be renewable forever.