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(Slashdot)   Using federal courts to extort huge copyright violation payments might be just a little bit unconstitutional   (yro.slashdot.org) divider line 164
    More: Obvious, federal courts, Infraction, Federal Circuit, statutory damages, overly broad, trial courts, payments  
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4274 clicks; posted to Geek » on 13 Dec 2012 at 12:29 PM (1 year ago)   |  Favorite    |   share:  Share on Twitter share via Email Share on Facebook   more»



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2012-12-13 11:10:35 AM  
... according to the woman who destroyed her hard drive after receiving the notice of the law suit and then lied in court about it.
 
2012-12-13 11:16:03 AM  

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?
 
2012-12-13 11:26:02 AM  
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.
 
2012-12-13 11:29:40 AM  

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.
 
2012-12-13 11:37:08 AM  

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.


Yeah. They keep focusing on the "but she could have bought those songs for $1 each, so therefore she should be able to set up a record store and give or sell as many copies as she wanted, having paid her $1 royalty!" argument which is clearly false.
They're missing a huge argument about the willfulness standard... but winning that> argument would still leave Thomas on the hook for a couple thousand, and she's unwilling to back down from her "my damages should be $23".
 
2012-12-13 11:41:16 AM  

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.
 
2012-12-13 11:46:32 AM  

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"?
 
2012-12-13 11:46:45 AM  

Theaetetus: 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.


I didn't know royalty rights accompanied mp3 downloads. I'm going to be RICH!!!
 
2012-12-13 11:48:34 AM  

doyner: Theaetetus: 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.

I didn't know royalty rights accompanied mp3 downloads. I'm going to be RICH!!!


You don't think Apple pays the record and movie companies for each sale or rental on iTunes?
 
2012-12-13 12:05:16 PM  

Theaetetus: doyner: Theaetetus: 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.

I didn't know royalty rights accompanied mp3 downloads. I'm going to be RICH!!!

You don't think Apple pays the record and movie companies for each sale or rental on iTunes?


I'm sure they do, but the value of those files rests in the ability to sell them thousands of times over, not in the aquisition thereof by a single end-user. Unless she was going to do that, your statement is a false equivalence.
 
2012-12-13 12:12:27 PM  

doyner: Theaetetus: doyner: Theaetetus: 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.

I didn't know royalty rights accompanied mp3 downloads. I'm going to be RICH!!!

You don't think Apple pays the record and movie companies for each sale or rental on iTunes?

I'm sure they do, but the value of those files rests in the ability to sell them thousands of times over, not in the aquisition thereof by a single end-user. Unless she was going to do that, your statement is a false equivalence.


She was distributing them. She didn't simply acquire them once as a single end-user. My statement is accurate.

Had she merely downloaded the files but never uploaded, she'd be in a much better place, with a legally stronger argument for fair use, and a technically better set of facts that would have led to her never getting sued in the first place.
 
2012-12-13 12:13:08 PM  

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"?


Can you point to where I said they don't deserve any damages? I just think the damages are excessive if she wasn't making any money off it. No, she shouldn't owe just $23 ($1 for each song) because she did break the law, but almost $10,000 per song?!
 
2012-12-13 12:19:37 PM  
ITT: Farkers with GEDs in law thinking they can out-argue an attorney over a legal matter.
 
2012-12-13 12:24:54 PM  

Theaetetus: She was distributing them. She didn't simply acquire them once as a single end-user. My statement is accurate.

Had she merely downloaded the files but never uploaded, she'd be in a much better place, with a legally stronger argument for fair use, and a technically better set of facts that would have led to her never getting sued in the first place.


Ah. That was missing in TFA. Did she get money for them?
 
2012-12-13 12:26:36 PM  

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.
 
2012-12-13 12:27:10 PM  

scottydoesntknow: 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"?

Can you point to where I said they don't deserve any damages? I just think the damages are excessive if she wasn't making any money off it. No, she shouldn't owe just $23 ($1 for each song) because she did break the law, but almost $10,000 per song?!


I agree, but I think her argument - that the damages are unconstitutionally punitive - and your argument - that she's not making a profit so the damages are extortion - are both losing arguments. The better argument is that the range given to the jury of $750-150,000 was based on an incorrect interpretation of the term "willful", and that the jury should have been given a range of $750-30,000. They would have ended up picking an amount much lower, and she would be probably be on the hook for around $25k-50k total, which is much more reasonable.
But, she's not raising that argument because she can't afford even that amount, and if you're in for a penny, you might as well be in for a pound.
 
2012-12-13 12:29:39 PM  

doyner: Theaetetus: She was distributing them. She didn't simply acquire them once as a single end-user. My statement is accurate.

Had she merely downloaded the files but never uploaded, she'd be in a much better place, with a legally stronger argument for fair use, and a technically better set of facts that would have led to her never getting sued in the first place.

Ah. That was missing in TFA. Did she get money for them?


Nope. But she was still uploading.
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.

It also takes away exactly the argument you suggest - that if you only download and never, ever share, then you can reasonably argue that actual damages were just $1. Even if the plaintiff opts for statutory damages, you can show evidence of actual damages to mitigate the award.
 
2012-12-13 12:30:37 PM  

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.
 
2012-12-13 12:40:01 PM  

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
 
2012-12-13 12:42:48 PM  
At this point, she better hope she isn't on the hook for paying ng the RIAA attorneys.
 
2012-12-13 12:44:37 PM  
inglixthemad:
I'll tell you what, you can keep the outrageous "damages" if we return copyright to 14+14 only.

/you can't have everything

The RIAA intends to have everything, and is perfectly willing to bribe everyone necessary to see that it happens.
 
2012-12-13 12:46:21 PM  

scottydoesntknow: I just think the damages are excessive if she wasn't making any money off it.


Consider the fact that her distribution of the works ostensibly denied the rightful distributes of sales. I'm sure the point has been made already, but the damages in these cases are based solely on the fact that she was distributing works that she had no right to distribute.

Distribution rights are a big deal in the media industry. Damages in these cases aren't based on the number of copies illegally distributed. They're based on the distribution itself. That's just how the law is written.
 
2012-12-13 12:46:53 PM  

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


17 USC 505: "In any civil action under this title, the court in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof. Except as otherwise provided by this title, the court may also award a reasonable attorney's fee to the prevailing party as part of the costs."

/ouch
 
2012-12-13 12:48:22 PM  

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.
 
2012-12-13 12:50:37 PM  

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.
 
2012-12-13 12:50:40 PM  
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
 
2012-12-13 12:53:22 PM  

Theaetetus: Nope. But she was still uploading.
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.

It also takes away exactly the argument you suggest - that if you only download and never, ever share, then you can reasonably argue that actual damages were just $1. Even if the plaintiff opts for statutory damages, you can show evidence of actual damages to mitigate the award.


I did not know that. Thanks. It would seem, though, that they would have to know the number of downloads to be able to quantify the damages. Did they?
 
2012-12-13 12:54:56 PM  

ModernPrimitive01: 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


Or just buy used/recycled mp3s.
http://www.hypebot.com/hypebot/2011/02/redigi-says-theyll-sell-your- us ed-mp3s-legally-.html
 
2012-12-13 12:56:32 PM  
She is making an argument based on the due process clause and may have a case. It will be interesting to see how this turns out. The statutory damages awarded do seem to be excessive; a review might determine that they are arbitrarily high.
 
2012-12-13 01:04:06 PM  
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.
 
2012-12-13 01:29:02 PM  

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.


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?
 
2012-12-13 01:39:59 PM  

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.
 
2012-12-13 01:41:38 PM  
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.
 
2012-12-13 01:50:54 PM  

Theaetetus: 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"?


Okay, I know you're an attorney, so I'll try to explain this you.

Most people aren't attorneys, they don't know the wording of the law, they don't care about it. They go by what societal norms tell them the right and wrong things are to do, not by the wording of the law.

Take a look out your window. Right now. See that guy? Yeah. He's not a lawyer. He almost certainly doesn't know copyright law or any one of a zillion other legal fields, but he's still held to them.

So, how do non-attorneys deal with this problem, in everyday life? They do what they think is right, what they see other people doing and what their own combination of experience and morality tells them is right.

Yeah, you spent three years in law school and an entire career in a field learning to think differently. Most people don't think like you. Most people don't see a problem, or at least not a serious problem, with sharing mp3 files. They do see something wrong with selling those files though. That's why people talk about not making any money off of it.

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.

The recording industry spending the first few years of the mp3 fad actively trying to eliminate the medium didn't help either. They didn't provide a legal option, they wanted everybody to keep buying CDs. It was the much discussed "buggy whip" problem. Ultimately the rampant trade in mp3's was not reduced by strict law enforcement and litigation, but by the market. iTunes and Amazon mp3 providing a vast library of music for only $0.99 per song made the process quick, affordable and simple, in addition to legal.
 
2012-12-13 01:56:12 PM  

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.
 
2012-12-13 01:59:52 PM  

Silverstaff: Theaetetus: 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"?

Okay, I know you're an attorney, so I'll try to explain this you...
Yeah, you spent three years in law school and an entire career in a field learning to think differently.


Maybe you mean someone else. I spent a decade as an engineer before moving into this, my second career... In which I spent four years going to law school in the evenings because I was working full time.
If you'd like to try your "hurrdurr you don't know what real life is like" comment again without the incorrect assumption and unjustified condescension, I'd be more than happy to discuss the actual issues in this story with you.

As a first step, you should note that I've made several arguments here as to why this damages award is unjust, and suggested an argument that would be successful.
 
2012-12-13 02:03:16 PM  
Silverstaff

And none of that will matter a fart in a windstorm once a judge gavels in a session.

Judges, by and large, are bound by what the law says. Attorneys have to creatively argue that the controlling law does not apply (for reasons X, Y and Z), that the formula for determining damages should be based on these factors (and ignore those); they can't use the Idiocracy defense: "Just look at this guy. *snort* I mean, right?"

SCOTUS is an exception, as they're the final remedy. They can invalidate portions of copyright law (a laughable prediction), they can reduce the award in accordance with some legal principle (what I'm hoping for) or they can ignore the case/remand it to the lower court's ruling (in which case, she's basically done earning any money for the rest of her life).

That the industry chose to ignore technology is of no consequence. That she could have bought those songs for $23 is also of no consequence - she's been sued for distributing them, not for getting them in the first place. If the award is determined to be excessive to the point of cruelty - THAT's an issue SCOTUS can take up, as it relates to the interpretation of a law as applies to a specific case.

It's possible, but very rare, that a judge will toss a case because the law is ridiculous. Juries will more often do that, but we're long past the point where a jury holds any sway over Ms Thomas' case.
 
2012-12-13 02:10:30 PM  

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.
 
2012-12-13 02:22:18 PM  

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.
 
2012-12-13 02:23:33 PM  

Teiritzamna: 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.


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?

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?

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
 
2012-12-13 02:27:52 PM  

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.
 
2012-12-13 02:29:55 PM  
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.
 
2012-12-13 02:30:33 PM  
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?
 
2012-12-13 02:30:57 PM  

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.


None of the above is true, Doyner.

First, Thomas (and Tenenbaum) were not using BitTorrent. These cases are pretty old. Tenenbaum was on Gnutella, and Thomas was using Kazaa.

Second, the newer suits most assuredly look for seeders, not leechers, for both the technical and legal reasons I noted above. The investigators have to show that they obtained a copy of the file from the defendant, not merely that the defendant was "in the same swarm". What they do is find a file being seeded, then block connections to all IPs other than the one they're targeting. That way, they have a clean log that shows that they obtained the entire file (they only need a significant portion, since infringement doesn't actually require you to distribute the entire file, but where they can show the entire thing, they do) from a single source. Not only do they have those logs, they absolutely do bother to show that your IP allegedly uploaded, because it's an element of the complaint that they have to provide supporting evidence for and swear to.

And finally, think about it pragmatically: to get to trial, or even past summary judgement, they have to show that the defendant infringed. Are they just going to "NOT bother" collecting that evidence, when it's so trivial to do so once you've found a seeded file, and it's required for the case?
It's notable that not one defendant in these cases has argued that they didn't distribute the file. In fact, Tenenbaum admitted to it under oath, as part of his testimony on the stand.
 
2012-12-13 02:36:08 PM  

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.
 
2012-12-13 02:37:42 PM  

Dr Dreidel: Teiritzamna: 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.

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?


Nope, because it's not a "fine" or "penalty" - those go to the state. These are compensatory damages, which go to the plaintiff. Her means of challenging the amount of damages are to attack the amount of damages, by showing that their actual lost revenue was much lower - she can't attack the damages by saying that it's a cruel and unusual punishment to compensate the plaintiff for their loss, any more than you can run over someone with your car and argue that you shouldn't have to pay their medical bills because it's cruel.

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?

Not the times 1 for a medium, but times the number of works infringed, or 23... They could say that $750 * 23 is a reasonable amount but it'd probably be overturned on appeal, because it would basically be throwing out a jury verdict and they would need to show a really good reason.

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.)

Nope, their concern would be a precedent that says that distribution damages are at the bottom of the statutory damages range - the statute makes no distinction between private citizens or corporations, so any such precedent wouldn't necessarily include the distinction either.
 
2012-12-13 02:39:54 PM  
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?
 
2012-12-13 02:41:34 PM  

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.
 
2012-12-13 02:42:43 PM  

Teiritzamna: 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.


Yeah, instead we get one where the laws are bought and paid for primarily by companies.

I know what you're trying to say, but it's not like if people petitioned for a change it would do anything. Lobbyists from the MPAA and RIAA keep Congress paid off through campaign contribution and other benefits. Our laws won't reflect our cultural values because of laws aren't written by people representing the interests of people.

Yeah, their power isn't absolute, they couldn't get SOPA enacted. That was some downright draconian copyright law that was only barely avoided being passed, and only when it was crystal clear how strong public opposition to it was. . .so they let it slide (after much complaining) and just look for another chance to make the Congressmen they bought pay for it.
 
2012-12-13 02:45:49 PM  

Karac: 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.


The statute allows the copyright owner to either select - and prove - actual damages, or select Congressionally-set statutory damages. The latter was intended for cases where the plaintiff lacked sufficient evidence to prove actual damages. Like, if I sue you, and you destroy all of your records and logs, should I be shafted because I can't prove how many copies you sent out? Instead, there's the statutory levels as a safety.

Now, that said, if Thomas had evidence that she only distributed one copy to the investigator and no others, then she could actually prove the actual damages and mitigate the statutory damages. So, with the same hypothetical, if I sue you for infringement and you didn't destroy your business records, you could bring them up to show that the statutory damages level was too high.

... but Thomas destroyed her hard drive instead. Ooops.
 
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