Rincewind53: No, it's not.

Look, I hate the RIAA and those cases as much as the next guy, but there is zero basis for saying that it was an unconstitutional decision.

She isn't arguing this right either. She should be arguing for cruel and unusual fines.

Theaetetus: scottydoesntknow: Theaetetus: vudutek: Theaetetus: ... according to the woman who destroyed her hard drive after receiving the notice of the law suit and then lied in court about it.

so, regardless of the existence of said hard drive or not, are you seriously contending that $220,000 for 23 .mp3's isn't extortion, and is indeed a fair judgement for damages and loss of revenue?

Michael Jackson paid $47.5 million for distribution rights to 4,000 Beatles songs, or $11,875 per song. Times 23, that's $273,125. So, yeah, $220,000 is definitely in the ballpark for a license to distribute 23 mp3s.

Yes, he paid $47.5 million, but was able to make a massive profit from that. Sony paid him $95 million to merge Sony and ATV together in '95. He made an assload of money off that deal. Did she make a profit from those 23 .mp3s? I haven't read the full prior case, but if she wasn't selling these songs or trying to make money from it, then I would say that is excessive.

Now if she was trying to sell them for a profit then she does deserve to sink.

That's an interesting theory... Can you point to anything in the copyright statute that says that "damages are only available if the infringer made a profit" or "damages can only be applied if the infringer is a good businessman"?

I'll tell you what, you can keep the outrageous "damages" if we return copyright to 14+14 only.

/you can't have everything

At this point, she better hope she isn't on the hook for paying ng the RIAA attorneys.

Theaetetus: GAT_00: Rincewind53: No, it's not.

Look, I hate the RIAA and those cases as much as the next guy, but there is zero basis for saying that it was an unconstitutional decision.

She isn't arguing this right either. She should be arguing for cruel and unusual fines.

That's a terrible argument. There aren't any fines applied, just compensatory damages.

You'd have to prove that each song's value is worth $20,000 then, or else it's not.

BKITU: ITT: Farkers with GEDs in law thinking they can out-argue an attorney over a legal matter.

It's not that hard. Ask my ex-wife's attorney.

I wish everyone in the country would stop buying music or movies in any form for 1 month. After 30 days of no profits lets see how willing the MPAA and RIAA are to stop extorting money from its customers. I say this as an independent artist who was screwed by a major record label

/buy directly from independent artists it's the only way to go these days

I agree that it's probably unConstitutional and horrendous when the RIAA sues some kid for billions of dollars.

$275K for distributing 23 songs for free? That doesn't seem horrible to me.

I'm still trying to figure out how the RIAA has standing, instead of the ASCAP. The RIAA doesn't get royalties from radio broadcasts, so I would think this would be the same thing. Oh well. This stuff is way too complicated for me.

Theaetetus: vudutek: Theaetetus: ... according to the woman who destroyed her hard drive after receiving the notice of the law suit and then lied in court about it.

so, regardless of the existence of said hard drive or not, are you seriously contending that $220,000 for 23 .mp3's isn't extortion, and is indeed a fair judgement for damages and loss of revenue?

Michael Jackson paid $47.5 million for distribution rights to 4,000 Beatles songs, or $11,875 per song. Times 23, that's $273,125. So, yeah, $220,000 is definitely in the ballpark for a license to distribute 23 mp3s.

If she didn't download Beatles songs, this is irrelevant nonsense.

How to throw a nice monkey wrench, find the people who actually hold the copyrights to the songs ie the song writers, and see if any of them have no issue with what she did. If there's one or two or three who don't mind it, well throws a nice little monkey wrench in the RIAA's stated claim of doing it for the artists.

doyner: Theaetetus: It's a technical limitation, too - the RIAA's investigators can't find you if you're downloading unless they're the source, short of intercepting and deepscanning every packet or demanding logs from every ISP. Instead, they download from you, proving that you're distributing.

I did not know that. Thanks. 

Doyner, you didn't know that because it's not true. If you're using BitTorrent, as busted downloaders almost certainly are, every single IP address connecting to the swarm is visible to all other users on that swarm, the direction of traffic isn't important. You do NOT have to upload for other users to see your IP. And the people bringing these suits do NOT bother to show that your IP allegedly uploaded.

That's exactly how a lot of copyright trolls operate: search a public tracker for a torrent, start that torrent themselves, copy all IP address in the swarm, figure out ISPs, send a subpoena. They do this thinking you'll be so scared by courthouse paperwork that you shiat yourself and write them a check without fighting back.

Dr Dreidel: Which still need to abide the "no cruel & unusual punishment" rule, right? So can SCOTUS consider whether asking a housewife to pay $220k in penalties for illegally distributing 23 songs (an undetermined number of times) is "cruel" in its excess? Can Ms Thomas present evidence of a conspiracy to have these damage awards be in the 6 figures, and always levied against people whose lifetime net incomes are not likely to exceed 6 figures (see above); and might SCOTUS come to a decision that RIAA is free to sue for illegal distribution, but the penalty is no more than $1,000 per song (unless they can prove she distributed it more than X times, or shared it for X days or something)? That asking for these huge awards is tantamount to extorting people?

Cruel and unusual only applies to state punishments. This is a civil matter. She isnt being fined nor imprisoned, so the 8th amendment is silent to her issue.

Her Due process argument isnt too good either, as Theae has noted, especially as i cannot see what process she still was due. This is not a BMW scenario where excessive punitive damages are imposed due to jury rancor at an unappealing defendant - this is a Congressionally defined and clearly indicated range of default damages, which (humorously enough) were meant to be a low figure.* When they were drafted there wasnt much litigation suing john Q Public fro distribution, mainly because Mr. Public didn't have the means to distribute.

The upshot is, Congress should likely rewrite this section of the statute, but i would b shocked if the supreme court - or any federal court - would decide to rewrite it for them. 

*they are a low figure because traditionally in a distribution case, the Plaintiff could get a much larger recovery when suing an equally large defendant from actual lost sales/disgorgement (you know, like a million per item infringed). If they cannot show the full measure of damages, they were supposed to suck it up and take statutory damages as crumbs. Unfortunately, what are crumbs to Disney or Paramount are not crumbs to this whats-her-face.

WhyteRaven74: How to throw a nice monkey wrench, find the people who actually hold the copyrights to the songs ie the song writers, and see if any of them have no issue with what she did. If there's one or two or three who don't mind it, well throws a nice little monkey wrench in the RIAA's stated claim of doing it for the artists.

This isn't about the songwriters, it's about the sound recordings, which are copyrighted separately from the song. The song writers own the copyright for the compositions; the record labels own the copyright for the recordings and it is the latter which all of these infringement cases are (were) focused on.

Silverstaff: Those same people, hundreds of millions of them in the USA, see penalties of thousands or tens of thousands of dollars per song as ridiculous, and unjust. Don't expect a lot of public support and adherence to laws that are widely seen as unjust.

If only we had a form of government - one where the people, i know this is crazy, could channel this anger at unjust statutory damages into picking representatives who would gather together and rewrite this law that it appears the vast majority of Americans dislike.

pfffft, easy solution to all this fookery, we all agree that we have been getting bent over by the record and movie distibutors for years, the artists and writers deserve the majority of the profits from sales and thus in protest EVERYONE download and share. If we all stick together, brothers and sisters, they can't sue us all Right after that we start hanging lawyers and judges.

How do they figure up damages anyway. I assume they have to be somehow related to the revenue lost to the owner of the copywritten work - which would mean they would have to have some formula to at least guess how many people she downloaded the song to.

As it is, the only people the RIAA can prove to have downloaded the song are .... themselves. For all they know, she ripped it from a CD she owned. How can there be any damages when the only think they know happened is that she gave them a 2nd copy of something they already had?

Scrotastic Method: doyner: Theaetetus: It's a technical limitation, too - the RIAA's investigators can't find you if you're downloading unless they're the source, short of intercepting and deepscanning every packet or demanding logs from every ISP. Instead, they download from you, proving that you're distributing.

I did not know that. Thanks. 

Doyner, you didn't know that because it's not true. If you're using BitTorrent, as busted downloaders almost certainly are, every single IP address connecting to the swarm is visible to all other users on that swarm, the direction of traffic isn't important. You do NOT have to upload for other users to see your IP. And the people bringing these suits do NOT bother to show that your IP allegedly uploaded.

That's exactly how a lot of copyright trolls operate: search a public tracker for a torrent, start that torrent themselves, copy all IP address in the swarm, figure out ISPs, send a subpoena. They do this thinking you'll be so scared by courthouse paperwork that you shiat yourself and write them a check without fighting back.

In Canada we are protected by our right to privacy, isp's cannot be forced to provide personal details tied to an ip address. Unless I'm behind the times and the crooked lobbyists have managed to eliminate one more freedom to which I am currently unaware.

Not a lawyer, not pretending to be one, but is her case that the legally defined penalties are too much on their own (due to being created in a day and age where infringement was difficult and thus was only used for larger scale operations & profit, and there were fair-use protections in place for personal "infringing" uses like mix-tapes), or that the potential penalties are so much that the *AAs can offer an unreasonable sum as a settlement, since the case going to trial could result in even larger penalties? So, merely by being accused you only have the choice between rolling over and getting farked for the offered settlement amount, or going to court and, since you cannot pay for top notch legal counsel yourself, getting farked for the maximum amount + whatever the *AAs lawyer says his time is worth? Isn't that how the extortion argument goes?

Dr Dreidel: Isn't this a civil fine imposed by the feds for running afoul of their copyright protections (because as we all know, she's not paying for lost revenue, she's paying a penalty for unlicensed distribution)? So it stays "civil", and she has no means of challenging the amount of the penalty? That's a special kind of dumb - Congress can make a law that sets penalties for civil infractions astronomically high with no remedy available for people to challenge the statute's appropriateness?

Couple things - it is not a fine, it is meant to be a low-ball estimation for what the damages actually were. A lot of copyright litigation involves annoying imponderables in the damages phase - i.e. but for the defendant's act how much money would plaintiff have made. This tends to turn into a shiatfest of expert testimony and wacky theories. So Congress wrote in a backstop, to say - hey if you can show that the defendant willfully infringed your copyrights and distributed them, you can get between $750-150,000 per work infringed. The idea was that this is usually much lower than actual damages - but in cases where damages are a biatch to prove, at least it is something.

As for Congress's ability to set statutory damages, i am not sure if there has been a case alleging that the damages amounts were so problematic as to void the statute - because the only way you would be able to bring such an action would be to show a constitutional issue. I dont know what that hook would be other than an enumerated powers of congress issue. I suppose the idea of setting stat damages could be seen as a violation of separation of powers - i.e. that the legislature is usurping the role of the judiciary - but considering the power given congress in Art I, sec 8 cl 8 and the fact that stat damages are old and well respected - i would put such an argument in the loopy file.

There really are two kinds of law, as "what are crumbs to Disney or Paramount are not crumbs to this whats-her-face." A court could very easily limit the award to the low end of the damage scale, times 1 (since the distribution happened through a single medium? Is that kosher?), and still be within the law, no?

100% the court could do so. Its called remittitur. Happens all the time. Also if you look, the range for willful; infringement starts at $750/work. The Jury could have easily just dinged her that amount which would bring her grand total to around $16.5k. The trick here is the woman in question lied and attempted to destroy evidence, which tends to piss off judges and not impress juries - so they threw the book at her.

Personally i would rather a new law on stat damages - to reflect this brave new world of citizen distribution suits.

Is RIAA worried that there will arise some precedent that holds awards against private citizens to the 3-4 (or 5) figure range, rather than the 6-figure range, and pursuing these cases is no longer profitable, meaning they'll stop pursuing them, meaning the courts would then see their lack of pursuit as tacit approval of unlicensed distribution? (RIAA essentially arguing that failing to sufficiently punish offenders with these ridiculous awards sets the stage for them to not be able to pursue these kinds of cases in the future.)

// I realize that last bit is a bit fanciful

No, under copyright (and patent but not trademark) you have the right to sue or not sue as you see fit. Think of it as any other property. If you own land that people regularly cross over to get to the beach, you could sue every single one of them for trespass* - or decide to sue only a few of them, or just Randall, who you farking hate. Its your land, so it is your call.

*Ignore easements created through adverse possession, i mean it Theae and Rince.