Comments on: Jammie Thomas asks for new trial

Lawyers for the Minnesota woman ordered last month to pay $1.92 million in damages for the illegal sharing of 24 copyrighted songs say judgment is "grossly excessive."

[ikramerica--2008]

Those lawyers look like tools. And while many may sympathize with her plight, how many trials does this woman get? How much public money must be spent to please someone who clearly broke the law and refuses to settle for even a token sum because that would be admitting wrong doing?

[gerrrg]

What public money? This is a civil trial.

[baconstang]

From $220,000 to $1.92mil....... she should quit while she's ahead.

[gerrrg]

But with the $1.92 million award, that's actually a gift. If she loses this request for a new trial based on specific rulings this judge made, she may get a better chance at having the SCOTUS review this case in relation to the 8th Amendment, than if the original $222,000 judgement stood.

[sanenazok]

@gerrrg Ha because $1.92 mil is anything that the SCOTUS bothers with. They barely take a handful of cases for people who are in prison for life and less than $2 mil is the sort of judgment bankruptcy court is for.

[rrod182]

@gerrrg Please explain how the 8th applies here? If they can prove that her willful act lead to that much in damages then the punishment fits. Also, this is a civil case, not all criminal precedents will apply.

[gerrrg]

@ sanenazok, rrod182 - United States v. Bajakajian, 1998, Justice Thomas wrote the majority opinion, "Comparing the gravity of respondent?s crime with the $357,144 forfeiture the Government seeks...we conclude that such a forfeiture would be grossly disproportional to the gravity of his offense [and therefore] the full forfeiture of respondent?s currency would violate the Excessive Fines Clause."

The $222,000 judgement against Jammie Thomas was high, but $1.92 million against a single mother with no means to pay the award, surely is excessive by any reasonable measure. Hence, the gift the jury gave to Jammie Thomas and her legal defense.

[gerrrg]

@rrod182 - I forgot to mention, go look it up; it doesn't matter if it's civil or criminal. Tobacco lawsuits were brought to the SCOTUS over the high punitive damages awarded, and those were civil lawsuits. (The State AGs settled their own criminal complaints with tobacco companies without a trial.)

The US Constitution applies to all laws, not the least of which, the entire US Code, Title 17- Copyrights, Chapter 5 - Copyright Infringement and Remedies, Section 504 - Damages and Profits, and Section 506 - Criminal Offenses.

And, at last, if you don't believe me, you can read Ars Technica: http://arstechnica.com/tech-policy/news/2009/06/whats-next-for-jammie-thomas-rasset.ars

Or, if you're still in doubt, you could have read the original article by Greg Sandoval, and noted that the lawyers filed for an appeal in the FEDERAL District Court, based on lack of DUE PROCESS...otherwise known as a guarantee provided by the 5TH AMENDMENT of the United States.

[sanenazok]

@gerrrg: The 8th Amendment like all parts of the Bill of Rights are designed to limit what the government can do and so require some sort of government action. So it can be used to challenge fines imposed by federal or state governments, whether they be civil (Tobacco) or criminal (United States v. Bajakajian). See if you can find a case where the 8th amendment is used for a civil matter between two private entities. I don't think you will.

The copyright act provides for statutory damages. The jury followed the laws and for the Supreme Court to intervene is extremely unlikely to say the least. The Supreme Court will get involved if the damages award is incorrect as a matter of law (as it was in the Exxon case in 2008 Exxon v. Baker), but with these statutory damages being so clearly defined in the law that's not a problem. Again there's a big difference between the 8th amendment and finding that a judgment violated the law.

[gerrrg]

@sanenazok

1996, BMW of North America v. Gore, the Supreme Court DID rule against excessive punitive damages that was awarded by the jury.

[gerrrg]

@sanenazok - Also, there are two parts to this case that differ from prior ones, in that this is a test of the federal codified statutory damages that are unrelated to any punitive award (there was no punitive judgment here), and the jury assigned $80,000 per song, but the question remains, how do you come to assign $80,000 per song?

Under cross examination, the RIAA's own witness couldn't come up with any way to determine the amount of damages. In previous interviews, lawyers for the record companies admitted as much, as not being able to determine how much actual damage P2P users cause.

So let's do a little math. The actual cost to the RIAA, per downloaded song (if you exclude a retailer's profit) is closer to $0.30 ~ $0.80 per song, depending upon the label, which would give you a calculated number of over 100,000 people accessing Jammie Thomas' computer for ONE song (based on the $80,000 award). Multiply that by the number of songs and the number of bytes in an average MP3 file @ 128 Kbps bitrate of 4MB. Then assume she had a 4 Mbps connection. She would have had to keep her folder open 24 hours a day for 212 days continuously for 100,000 downloads each of 24 songs, no interruptions for surfing the internet.

If that's not unreasonable - remember this is NOT a punitive award - then I don't know what is.

[sanenazok]

@gerrrg: sorry but punitive damages are different from statutory damages. The 80K number per song comes from Sec. 504. She could have been hit up to $150K per song, really. Instead, the jury gave her $80K per song. The whole point of statutory damages is that they don't have to be explained.

[BantryBay]

You think she will ever get it.

[heathdumpert]

this is absurd, even though she broke the law, how many others do so and get away with it?!
and on top of that, 2 million dollars for 24 songs? 2 million?! that is far too much. the time doesn't equal the crime in this case. make her pay a measily 30 bucks and call it a day. if the case is she shared these songs with others, then prosictute them. i mean where do you figure she got the songs from? it's peer to peer sharing.

[mikestatic1]

Look, another "I want everything for free" file-sharer complaining about the damages!! You are next, and I hope they hammer your freeloading butt for $10 million. That is a lot of burgers to flip...

[heathdumpert]

actually i use itunes. i pay for everything i download, unless it's a free ap.
and i dont need a job. i'm very well off thank you.
it's a matter of justice.
what penalty represents the crime.
and to hope evils upon another person is just cruel.
you are ignorant for your statement

[8301]

Hey Mike, maybe if you make a few more excuses for the RIAA, they'll have enough influence ($) to tweak the laws a little more and come after you every time you change the radio station without listening to all the commercials. I would say I hope they hammer your free-loading butt, but by then I imagine I'd have a little more to worry about than gloating over some poetic justice served to a moral hypocrite.

[El_Segfaulto]

There is no way she could have conceivably shared the songs the number of times necessary to even come close to the original judgment. She would have needed an uncapped dedicated T1 and to have been uploading for years (longer than some of the songs have been out).

@mike

Do you get paid per personal attack? A reasonable argument made discussing excessive fines and you RIAA shills come out of the woodwork.

[paulej]

More importantly (in my opinion), it really matters very little how many songs she shared and how many people downloaded them. I understand that it is believed that she violated the law, but I disagree. And if she did technically violate the law just by making it possible for somebody to steal something, then I think that law needs to be changed. The only person(s) who violated the law, in my opinion, are those who stole the music. And, I suspect they have no idea how many people copied the music. Perhaps nobody other than the RIAA did! Perhaps if the music was stolen, then perhaps the only ones who "stole" it are some living in countries with relaxed copyright laws? Who knows? Nobody, I suspect.

While I am sure there are still folks out there sharing music, I'm not sure why anybody even bothers any longer. One can buy a song from Amazon, iTunes, and elsewhere for $1 now. If folks are unwilling to do that, there is little the RIAA will be able to do. There will always be a certain number of people engaging in file sharing. It's a total and complete waste of time trying to chase down individuals like this. Even if they are able to "make an example" out of her, most people sharing files are probably entirely unaware of this lawsuit and ... so on it goes.

[radioswade]

this will be retried as the judge keeps denying a possible defense basic saying that if the RIAA accuses you, you must prove your innocent; not that they discovered your guilt. that is not the way the laws are supposed to work. without the ability for a defendant to present a plausible argument, you cannot defend yourself. the RIAA wants the fact that you burned music to your computer as a violation of copyright law, whether you bought that music legally. the RIAA needs to prove that you illegally downloaded songs, not just burned a copy to your computer, that is the reason a large number of the original charges were removed. the mere act of having a song on your computer does not mean you are sharing files. a former roomate of mine was enough of a hacker that he was able to take songs off of my laptop, even though i do not use peer-to-peer sights. by the RIAA estimation, i should be charged with copyright infringement; even though i did nothing except have a trust misused by a "friend".

[sanenazok]

Yeah I don't think *anyone* would be able to stop her from claiming that she "bought that music legally." The problem for her is she would have to prove it and whoops you know she can't. Her initial phoney theory was that she didn't set up the account and now TWO juries have not bought it. I guess you would because you were a victim of a computer crime. However sad your case may be (which is not very) it has no bearing on hear guilt or innocence, and her guilt has been established on two occasions now.

[sanenazok]

I feel bad for this woman since she's been taken around the legal system by these "free content" lobbyists who want to make some caselaw. Instead, they have screwed her over twice now and I wouldn't be surprised if she was grateful to them for their "hard work." I bet you that the plaintiffs offered her a settlement for a few thousand up front. She didn't take it so that they could have their day in court. Now she'll have to pay with bankruptcy.

Just look at the picture of Joe Sibley and Kiwi Camara. They sure are happy with themselves having sold this woman down the river.

[gerrrg]

Right...people like Jammie Thomas don't deserve the right to contest the allegations of the RIAA, with all their highly-paid lawyers and lobbyists in Washington. How dare she challenge the system which allowed the RIAA and MPAA to extend copyrights years beyond the death of the original creators? Why, Disney should have copyrights held in perpetuity of the life of...forever!

Death to the original intent of copyright laws...long live the corporate right to control your life!

[sanenazok]

@gerrrg: I think "having her day in court" sort of attitude is the reason why she now owes millions. She should have known that she did something wrong and it would have been in her interest to settle the dispute as soon as possible. Instead, she got an earful of challenge the system sort of rhetoric and she's now paying for it. With all the lobbyists, the RIAA still took the case to the jury, twice now and she lost both times. It's all in the name of challenging the system. Oh yeah the RIAA is sure feeling the pinch. If someone doesn't like how corporate interests control media distribution then don't consume their products and especially don't copy them off of P2P which they have been monitoring for almost a decade now.

[gerrrg]

That's a ridiculous statement: "She should have known that she did something wrong and it would have been in her interest to settle the dispute as soon as possible."

A. Why do you assume that she is GUILTY?
B. The RIAA nearly 10 years ago said that an MP3 player (the Rio MP3 player) was a product that infringed upon copyrights. It seems that the RIAA can be wrong. But maybe the manufacturers should have caved in and stopped making MP3 players, huh? After all, that was written in the US Code Copyright section.
C. So what if P2P monitoring has been going on for a decade? There are serious concerns about HOW the RIAA has been allowed to make a showing of evidence WITHOUT actually showing that other people had downloaded a single file. What the RIAA has said - and has been accepted by some judges - is that simply showing that files existed in a public folder, is proof enough that a copyright was violated.
D. The RIAA probably knew that suing was not effecting change, and therefore recently announced changes to their strategy...by engaging ISPs to cut off users. Again, the RIAA is trying to find ways around due process, by skipping the court's rules of evidence, and pushing ISPs to act as their agent of enforcement.

[gerrrg]

@sanenazok - I'd also like to point out the ridiculousness of that statement, "If someone doesn't like how corporate interests control media distribution then don't consume their products."

As you're well aware of, copyrights dictate how we use media including newspapers, magazines, books, movies, radio including music, television, and the internet (where much of this media is now distributed). Therefore, if we do not agree with the Sonny Bono Act that declared 120-year lifespans of copyrights - nevermind that the original 1790 copyright law had a 28 year limit - we should simply stop reading magazines, books and newspapers, stop watching movies and television, and stop listening to music, including live music of cover songs, or going out to eat at restaurants that pipe in music from CDs (a violation of copyright laws).

As Moby recently posted, "the riaa needs to be disbanded."

Or as Chuck D of Public Enemy once said about the RIAA's lawsuits, "those scare tactics are pure Gestapo."

And as noted last year by Don Reisinger, the RIAA in fact argued that artists should "accept less money in order to keep the whole industry alive."

That's who you're defending, and who you think Jammie Thomas should have settled with.

[sanenazok]

@gerrg: OK you win! Hitler! Gestapo! Yay!

A. I assume she's guilty because she's been found to be guilty by two juries. What more does she need? What defense has she not aired?
B. The RIAA interpreted laws in its own favor. Who doesn't? Rio brought a suit and won on time/place shifting. They could have folded but didn't and they got to sell a product. It's a trade off.
C. Since P2P monitoring has been happening for so long, she should have known not to download this music. She knew she was doing something wrong and should have known that she was being watched. Hence she's now being punished
D. Lawsuits are a big waste of time. The RIAA is skipping the courts which are not effective for anything other than legal bills. Go start a business as I have and spend money and time in a single lawsuit.

Regarding your other post, so you want to have your cake and eat it too. First you want to consume all these nice corporate media products, but at the same time you want to abolish big media. It wouldn't be hard to avoid big media if you tried.
There are plenty of independent publishers, indie music groups, independent news outlets, geez. If big media made me this unhappy I would just stop interacting with it. It sure isn't going to go away just because you want it to.

[magicmaster]

Another reason for legal listeners to pay less and resort to other legal, free sources.

[pentest]

The RIAA shot themselves in the foot this time. I see this as yet another McLibel Case when McDonalds in England went after some protesters over libel. After 10 years McDonalds lost nearly every accusation of libel. Not only did they lose millions of dollars, they ended up proving in court how damaging they are to people and the environment.

This lady has nothing to lose by dragging it out.

The RIAA is a criminal organization that produces nothing, gives nothing to those it claims to represent and has turned off the majority of people. They are no longer required, just another bloated middle man selling an artificial and third rate product.

[Altotus]

I would like to ask her lawyers how and why would a legal system intended to to just can turn a person into a slave so easily? Perhaps the legal system is a monstrous atrocity perpetrated upon people who don't have the resources to defend themselves? A corruption or perversion of truth and justice? Was there ever a time that the system was not monstrous?

[BantryBay]

What part of stealing does this woman not understand. Everytime she appeals she loses, as she should. Maybe jailtime will cool her heals and make her think for once in her life.