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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 (2 years ago)   |  Favorite    |   share:  Share on Twitter share via Email Share on Facebook   more»



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2012-12-13 02:47:44 PM  

Teiritzamna: If you own land that people regularly cross over to get to the beach, you could sue every single one of them for trespass*


What about implied easeme-

Heh.
 
2012-12-13 02:52:15 PM  

Theaetetus: 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.


Doesn't that then conflict with the notion that she's not on the hook for their revenue lost, she's on the hook for infringing on their copyright? Is this a case of a plaintiff getting to have their cake and eat the defendant's, too?

Theaetetus: 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 "We expect her to be able to pay $17,250 ($750 * 23) during the term of her natural life without filing Chapter 7 (or 11, whatever); asking an essentially middle-class woman to fork over $220k ON TOP of general living expenses is tantamount to relegating her to a lifetime of zero earnings" a good reason?

Theaetetus: 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.


"Ability to pay" has no bearing on the subject? Why not fine her at the highest end, then - especially considering she tried to destroy evidence? (Side questions - what happens if/when they take 100% of her stuff, plus a 100% garnishment of her wages, and she still can't afford the penalty? What if she chooses to never work again, thus denying RIAA any sort of ability to collect?)

// Teiritzamna, same questions
// I love a good legal debate
 
2012-12-13 02:54:49 PM  

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


It won't matter in court, but that's not what I'm talking about.

Theaetetus
was sarcastically asking where the law said it was only illegal if somebody was making money off of it. I didn't think anybody was making the argument that it was legal. I was pointing out that it was societally acceptable, and many people probably don't even know it's illegal (or if it is, that the penalties are as harsh as they are).

I'm talking about how to the overwhelming majority of people think. What lawyers and judges say don't matter in 99% of their lives. That is why you get people saying they didn't understand what was wrong because nobody was making money off of it.

People know not to kill, they know not to shoplift, they know they have to file taxes, they know they shouldn't go too far over the speed limit and they need to have insurance and a current car registration. However, the idea that it's a very bad thing to share music files online is still trickling into the public consciousness. If people know of it as illegal, it's treated as being illegal, but that sort of societally accepted bad thing, like many people treat marijuana (technically illegal, but seen by many as harmless).

I wasn't trying to say that's a legal argument, I know that doesn't matter in a court. Most people will never set foot in a courtroom, aside from maybe a traffic ticket. The vast majority of people who have shared files don't see what they are doing as wrong. Everyday people do things that are illegal and don't know it, and some of those things could have huge penalties and fines if they were ever prosecuted. It's a larger problem, but the disconnection between our laws and societal norms isn't likely to change anytime soon.

The industry not going to mp3's has a lot to do with it. You think filesharing would be anywhere near as much of an issue if the industry had embraced mp3 sales instead of spending several years trying to kill it? Of peoples various mp3 libraries, how much of that was built up during the wild-west days of Napster and Kazaa? The culture that let downloading become thought of as acceptable, reenforced by years of downloading with no real consequences, wouldn't have come up.

Again, not legally, why does everybody think I'm making a legal argument here? This isn't a legal argument, hell, I'm not even saying it's a moral argument, I'm just trying to talk pragmatically about what the average person feels and how they act. I am talking about the real world, not the theoretical fantasy-land of lawyers that doesn't affect most people.
 
2012-12-13 02:54:54 PM  

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


Its not that they are bought and paid for by companies - its that no one gives a shiat. Bear me out:

Take your average voter. Adam. Adam lives in a middle of the pack state. Let's assume Adam is politically active and gives money. When Adam goes to the polls or donates, he is thinking about crime, unemployment, taxes, wars against brown people, immigration, etc. Probably the last thing on his mind is copyright policy, especially policy regarding the severity of statutory damages.

Take your average Media corporation. When it comes time to donate to a campaign, guess what Media thinks of: it could be unemployment, or general crime, or immigration - but i bet you the first thing on its mind is: wonky copyright law.

Here is the thing. If every American honestly gave a shiat about these laws beyond posting on a forum, you would see a dreaded SuperPAC filled to the brim with money ($5 each from the hundreds of millions would be a pretty nice war-chest without too much pain to regular folk) to outspend the RIAA's lobbying efforts. Congress critters would run for the hills and draft a bill stat. You can look to bills like CERCLA (i.e. superfund) which are thousands of pages long and basically written in a weekend to respond to public pressure (in that case, the love cannal scandal) But the sad thing is, its not entirely the companies fault, we as a populace just dont care.*

/the attack of the the electorate
 
2012-12-13 03:00:39 PM  

Silverstaff: It won't matter in court, but that's not what I'm talking about.


Oh. Yeah, philosophically, we agree. If the industry had started selling mp3's in 2000, large portions of this mess could have been avoided. Hell, the first 3-5 years of Napster's overexposure was basically a cat-and-mouse game with the law and technology - if they'd instead spent that time, money and effort on creating a licensing/distribution application, we'd be a decade ahead of where we are now.
 
2012-12-13 03:01:00 PM  

Theaetetus: Teiritzamna: If you own land that people regularly cross over to get to the beach, you could sue every single one of them for trespass*

What about implied easeme-

Heh.


I know better than to jump on to that grenade.
 
2012-12-13 03:02:10 PM  

Dr Dreidel: Doesn't that then conflict with the notion that she's not on the hook for their revenue lost, she's on the hook for infringing on their copyright? Is this a case of a plaintiff getting to have their cake and eat the defendant's, too?


No, same thing - the damages for copyright infringement are calculated as [lost revenue for copyright owner]+[profits of infringer]+[ancillary damages (court costs, etc.)]. Statutory damages are intended to be an approximation of that where the first two parts are difficult or impossible to prove. So, if she can show that's really [$1000]+[$0]+[$1000], then the court can reduce the award accordingly.
But she has to actually prove that - with statutory damages, the burden falls on the defendant.

Is "We expect her to be able to pay $17,250 ($750 * 23) during the term of her natural life without filing Chapter 7 (or 11, whatever); asking an essentially middle-class woman to fork over $220k ON TOP of general living expenses is tantamount to relegating her to a lifetime of zero earnings" a good reason?

Say she set fire to your house... Is it a good reason that she shouldn't have to buy you a new house that she's a middle-class woman? Forget about fairness to her, what about fairness to you, the wronged party?
The same applies, even if the RIAA companies are rich as gods. Compensatory damages are about repairing the wrong done to the plaintiff. The fact that that may be painful or bankrupting for the defendant is irrelevant, since the alternative would mean that someone is harmed and doesn't get made whole.

"Ability to pay" has no bearing on the subject?

It's not in the Copyright Act, so the judge doesn't get to use that.

Why not fine her at the highest end, then - especially considering she tried to destroy evidence?

The jury could have, and it's probably part of their reasoning for a large award. But, at the same time, they also know that a $3.5 million judgement is too much.

(Side questions - what happens if/when they take 100% of her stuff, plus a 100% garnishment of her wages, and she still can't afford the penalty? What if she chooses to never work again, thus denying RIAA any sort of ability to collect?)

They're more concerned about the precedent than actually ever getting a fat check from Thomas. Most likely when all is said and done, she'll have her wages garnished to the tune of a few hundred a month for the rest of her life*, but the amount of garnishment is also set by the court, and they're not going to take 100% of her wages and make her a slave.

There's an old saying - if you owe me a dollar, you have a problem; if you owe me a million dollars, I have a problem.

*if she used my argument, it'd be paid off in a decade, but her lawyers are also doing this for publicity and precedent, so really, no one is acting in Thomas' best interests.
 
2012-12-13 03:06:39 PM  
Copyright laws are federal, not state...federal courts are the only path to take.

Years ago I had to go after someone who "borrowed" some of my photography. I tried going local but the US Attorney's office was my only solution. And with fines of $15K per instance, it is usually really quick getting a civil settlement rather than having the federal courts hear the case.
 
2012-12-13 03:09:10 PM  

Theaetetus:

Say she set fire to your house... Is it a good reason that she shouldn't have to buy you a new house that she's a middle-class woman? Forget about fairness to her, what about fairness to you, the wronged party?
The same applies, even if the RIAA companies are rich as gods. Compensatory damages are about repairing the wrong done to the plaintiff. The fact that that may be painful or bankrupting for the defendant is irrelevant, since the alternative would mean that someone is harmed and doesn't get made whole.


Wow. You just compared burning someone's house down to sharing copyrighted material.

/house burned down in my childhood
//fark you very much
 
2012-12-13 03:14:16 PM  

Dr Dreidel: Doesn't that then conflict with the notion that she's not on the hook for their revenue lost, she's on the hook for infringing on their copyright? Is this a case of a plaintiff getting to have their cake and eat the defendant's, too?


There are two conceptual phases to most law (as opposed to equity) trials: liability and damages. If you are sued for, say, negligently producing a product, in what is usually phase 1 you will argue that you didnt do it, and even if you did it wasnt wrongful, and even if you did and it was wrongful, there is an exception. However if you are found liable, there are alternative arguments about damages: I may be liable, but his numbers are crazy, here is this expert that says so; the plaintiff is just as liable as i am so i shouldnt have to pay the whole amount; etc. (these phases are often collapsed into one verdict, but as a mental exercise its not a bad way to think of them as being separate trials)

So she is on the hook for infringing. The next question is "how much is she on the hook for." There are generally three big kinds of compensatory damages- in layman's terms: (1) How much the plaintiff was hurt, (2) how much the defendant profited or (3) the general market value for the goods or services at issue. Here, "how much the plaintiff was hurt" = how much profit did the record companies lose due to her distribution.

Finally, under the statute, if you can actually show real damages, you dont get stat damages. So if the defendant here could show that only 7 people downloaded 3 of the songs she posted, ever. she could prove that damages were ~$30. hence why Theae says that she would need to show what the lost revenue was to defeat the stat damages.

Dr Dreidel: Is "We expect her to be able to pay $17,250 ($750 * 23) during the term of her natural life without filing Chapter 7 (or 11, whatever); asking an essentially middle-class woman to fork over $220k ON TOP of general living expenses is tantamount to relegating her to a lifetime of zero earnings" a good reason?


generally no - the hardship on the wrongful actor is rarely a strong argument in remittitur for what i think are obvious reasons. You usually need to show something else. let us not forget that what we are asking, really, is for an unelected federal judge to say "jury? fark those guys, i am gonna just make a call here" Generally, while this can totally be done (and does in fact happen) this sort of thing is frowned upon in the legal world because it is fundamentally against the whole purpose of having a jury.

Dr Dreidel: "Ability to pay" has no bearing on the subject? Why not fine her at the highest end, then - especially considering she tried to destroy evidence? (Side questions - what happens if/when they take 100% of her stuff, plus a 100% garnishment of her wages, and she still can't afford the penalty? What if she chooses to never work again, thus denying RIAA any sort of ability to collect?)


Again, generally ability to pay is meaningless to the analysis. She is likely what is usually called "judgment proof" anyway. The thing is the RIAA doesnt want the money. they want the press. They want people to see that randomly, out of the blue, you could get hit with a big ol' judgment and a lifetime of court leins and enforcement actions if you upload a song - so stop uploading! It is just about fear leading to compliance with the law - just like random drug checks or spot office inspections at work.
 
2012-12-13 03:16:32 PM  

elchupacabra: Theaetetus:

Say she set fire to your house... Is it a good reason that she shouldn't have to buy you a new house that she's a middle-class woman? Forget about fairness to her, what about fairness to you, the wronged party?
The same applies, even if the RIAA companies are rich as gods. Compensatory damages are about repairing the wrong done to the plaintiff. The fact that that may be painful or bankrupting for the defendant is irrelevant, since the alternative would mean that someone is harmed and doesn't get made whole.


Wow. You just compared burning someone's house down to sharing copyrighted material.

/house burned down in my childhood
//fark you very much


Yep, I did. In both cases, justice demands that the wronged party be compensated for their loss. Sorry for your loss, and don't you think that you were owed a new house if someone else was at fault?
 
2012-12-13 03:16:36 PM  

elchupacabra: Wow. You just compared burning someone's house down to sharing copyrighted material.


he compared 1 tort to another - and aptly at that. The fact that someone is liable, but poor, doesn't make them less liable - whether it be infringement, battery, arson, conversion, whatever.
 
2012-12-13 03:18:38 PM  
Also, thanks and merry christmas Rince!

Hope your exams are going well!
 
2012-12-13 03:19:49 PM  

Teiritzamna: Also, thanks and merry christmas Rince!

Hope your exams are going well!


Merry Christmas!

Studying now, after a day off and one exam down. Three to go.
 
2012-12-13 03:20:50 PM  

Rincewind53: Teiritzamna: Also, thanks and merry christmas Rince!

Hope your exams are going well!

Merry Christmas!

Studying now, after a day off and one exam down. Three to go.


Oooh, good luck. Remember, professors love public policy arguments. Probably because they're all a bunch of ivory tower intellectual elitists who think they know what's best for the populace.
 
2012-12-13 03:22:16 PM  

Theaetetus: Rincewind53: Teiritzamna: Also, thanks and merry christmas Rince!

Hope your exams are going well!

Merry Christmas!

Studying now, after a day off and one exam down. Three to go.

Oooh, good luck. Remember, professors love public policy arguments. Probably because they're all a bunch of ivory tower intellectual elitists who think they know what's best for the populace.


Oh, I'm well aware. First exam was for Professional Responsibility in Public Interest Practice, so it was all ethics and policy arguments.
 
2012-12-13 03:22:48 PM  

Rincewind53: Merry Christmas!

Studying now, after a day off and one exam down. Three to go.


Good luck!

/you should definitely take IP law! With Theae as a prosecutor and me as a litigator, we need a business and transactions guy to hold court here with us.
 
2012-12-13 03:25:21 PM  

Theaetetus: Say she set fire to your house... Is it a good reason that she shouldn't have to buy you a new house that she's a middle-class woman? Forget about fairness to her, what about fairness to you, the wronged party?
The same applies, even if the RIAA companies are rich as gods. Compensatory damages are about repairing the wrong done to the plaintiff. The fact that that may be painful or bankrupting for the defendant is irrelevant, since the alternative would mean that someone is harmed and doesn't get made whole.


Dude, arson's criminal. You of all people should know how bad an example that is. But let's work the math: for her (she's 40, correct?) to get to $220k by the time she hits retirement at 65, she'd have to pay $8,800 per year - $733.333333... per month - for 25 years. That's ON TOP of things like food, rent, etc. Assuming she's making $50k/year and already has a kid or two, where is that supposed to come from, or is that immaterial to the case? Do courts usually waste their time entering judgements that have little possibility of ever happening?

Can RIAA haul her into court in 10 years because she hasn't given them their money (and would they first have to show that she has an extra $733/month first)? Her first home is exempted (correct?) but can they take basically everything else from her to pay that award? And, at the end of the day, isn't Ms Thomas better off never working another day in her life (or is she eligible for contempt if she tries that)?

That's a lot of questions.

elchupacabra: Wow. You just compared burning someone's house down to sharing copyrighted material.


Whoa there. It's a thought experiment to help my understanding. He compared one type of damage award to another - no one's feelings should be hurt.

// sorry to hear about the house
 
2012-12-13 03:28:52 PM  

Teiritzamna: Rincewind53: Merry Christmas!

Studying now, after a day off and one exam down. Three to go.

Good luck!

/you should definitely take IP law! With Theae as a prosecutor and me as a litigator, we need a business and transactions guy to hold court here with us.


Yeah, it'll be like "The Good, The Bad, and The Ugly".

/I leave the individual assignments as an exercise for the reader
 
2012-12-13 03:31:02 PM  
WhatHey, question for you lawyerin' types: what about open directories? Without going into a ton of technical detail here, some people leave a lot of data open to the public, or at least accessible with a search engine.

Two questions, I guess. 1: if an individual left, say, an mp3 in an open directory on a .edu server, are they violating the law? Is the institution? Who's hosting the file?

2: If I know how to use a search engine to look for a song in an open directory, do so, and copy the file, have I violated the law? If I go to a business and take $5 from the cash register, I'm stealing. If I'm walking down the street and a $5 bill just crosses my path and I pick it up, I'm just lucky, right?
 
2012-12-13 03:32:02 PM  

Theaetetus: elchupacabra: Theaetetus:

Say she set fire to your house... Is it a good reason that she shouldn't have to buy you a new house that she's a middle-class woman? Forget about fairness to her, what about fairness to you, the wronged party?
The same applies, even if the RIAA companies are rich as gods. Compensatory damages are about repairing the wrong done to the plaintiff. The fact that that may be painful or bankrupting for the defendant is irrelevant, since the alternative would mean that someone is harmed and doesn't get made whole.


Wow. You just compared burning someone's house down to sharing copyrighted material.

/house burned down in my childhood
//fark you very much

Yep, I did. In both cases, justice demands that the wronged party be compensated for their loss. Sorry for your loss, and don't you think that you were owed a new house if someone else was at fault?


A house, not to mention the incidental damages other material goods, costs a helluva lot more than 23 songs. Yet the fines are not even close to commensurate.

And THAT. Is why the RIAA needs to DIAF.
 
2012-12-13 03:34:26 PM  

Teiritzamna: let us not forget that what we are asking, really, is for an unelected federal judge to say "jury? fark those guys, i am gonna just make a call here" Generally, while this can totally be done (and does in fact happen) this sort of thing is frowned upon in the legal world because it is fundamentally against the whole purpose of having a jury.


I can see why we'd want to limit judges doing that, but if a judge can turn what is essentially the rest of her lifetime in indentured servitude (a $220k bill, plus interest) into a more manageable "ten-year" bill ($17,250) - she's still liable for stat damages in accordance with the law, RIAA gets their fear (because who has a spare $17k to give to RIAA for funsies?), and also the judgement - why not?

Creating a system where judges can prevent people from going broke because a nonliving entity needs their pound of flesh - balancing personal needs against corporate needs, you might say - over what doesn't even amount to a rounding error for the organization (or a significant infringement of their ability to distribute) seems to be in the interests of creating a legal system that isn't beholden to big-money seems like a win to me. But that's probably why I'm not a lawyer.

// forgot to include interest on that bill in my above analysis - they calculate interest, right?
// also, the new gf just finished a civil suit, so learned all about the phases and relative arguments - this shiat is farking weird
 
2012-12-13 03:34:37 PM  

Dr Dreidel: Dude, arson's criminal. You of all people should know how bad an example that is.


But accidentally crashing her Pinto into your living room, causing it to explode in a fireball, is merely civil. ;)

But let's work the math: for her (she's 40, correct?) to get to $220k by the time she hits retirement at 65, she'd have to pay $8,800 per year - $733.333333... per month - for 25 years. That's ON TOP of things like food, rent, etc. Assuming she's making $50k/year and already has a kid or two, where is that supposed to come from, or is that immaterial to the case? Do courts usually waste their time entering judgements that have little possibility of ever happening?

Can RIAA haul her into court in 10 years because she hasn't given them their money (and would they first have to show that she has an extra $733/month first)? Her first home is exempted (correct?) but can they take basically everything else from her to pay that award? And, at the end of the day, isn't Ms Thomas better off never working another day in her life (or is she eligible for contempt if she tries that)?


Hence why I said she's probably going to end up paying only about $100-200 per month for the next 25 years, because a court isn't going to garnish her wages 100%, and they know it's not going to break the RIAA.
If she doesn't pay what the court orders her to pay, the RIAA can haul her into court for it and she'd also be in contempt...

... but that's unlikely to happen. In the grand scheme of things, we're talking a small amount of money for the RIAA... Their legal bills outweigh the judgement. They're never getting their money back and they know it. This is all about precedent.
I wouldn't even be terribly surprised if, once all of the appeals are over and Thomas is a sad and broken woman, the RIAA sends her a letter saying "send us a check for $1, never talk about this to anyone, and we'll consider your debt settled."
 
2012-12-13 03:37:31 PM  

Gonz: WhatHey, question for you lawyerin' types: what about open directories? Without going into a ton of technical detail here, some people leave a lot of data open to the public, or at least accessible with a search engine.

Two questions, I guess. 1: if an individual left, say, an mp3 in an open directory on a .edu server, are they violating the law? Is the institution? Who's hosting the file?


Did they do it intentionally, knowing that the directory was open? Then yeah, they're liable.
The institution is a common carrier and is protected, provided if the copyright owner sends them a takedown, they comply.

2: If I know how to use a search engine to look for a song in an open directory, do so, and copy the file, have I violated the law? If I go to a business and take $5 from the cash register, I'm stealing. If I'm walking down the street and a $5 bill just crosses my path and I pick it up, I'm just lucky, right?

Yeah, but bear in mind one thing... we're talking about uploading, not downloading - so if you find that $5, but the person who left it on the street got it by robbing a bank, they're still in trouble even if you aren't.
 
2012-12-13 03:38:20 PM  

elchupacabra: Theaetetus: elchupacabra: Theaetetus:

Say she set fire to your house... Is it a good reason that she shouldn't have to buy you a new house that she's a middle-class woman? Forget about fairness to her, what about fairness to you, the wronged party?
The same applies, even if the RIAA companies are rich as gods. Compensatory damages are about repairing the wrong done to the plaintiff. The fact that that may be painful or bankrupting for the defendant is irrelevant, since the alternative would mean that someone is harmed and doesn't get made whole.


Wow. You just compared burning someone's house down to sharing copyrighted material.

/house burned down in my childhood
//fark you very much

Yep, I did. In both cases, justice demands that the wronged party be compensated for their loss. Sorry for your loss, and don't you think that you were owed a new house if someone else was at fault?

A house, not to mention the incidental damages other material goods, costs a helluva lot more than 23 songs.


In this case, the 23 songs cost Thomas $222k, and that's pretty close to a house in some parts of the country.
 
2012-12-13 03:38:32 PM  

Dr Dreidel: Dude, arson's criminal.


and also a tort. generally most crimes are also torts - for example there is criminal copyright infringement (which is rarely if ever actually enforced - its mostly used against big organized media counterfeiting rings (huh - why is counterfeiting always done by a ring? wacky!))

Assuming she's making $50k/year and already has a kid or two, where is that supposed to come from, or is that immaterial to the case? Do courts usually waste their time entering judgements that have little possibility of ever happening?

Ability to pay is irrelevant to judgment. What is important to remember is that this is an adversarial system - the court is meant to be an arbiter, not a participant. So really, its no skin off the court's nose if the defendant is broke. Now usually whether the defendant can pay is a big deal to the plaintiff. Its why, in products liability cases no one sues the barely squeaking by mom & pop store where the bad goods were bought, they sue the big manufacturer who has cash and insurance. Determining who to sue or if you can sue is a lot of what litigators end up doing for clients. Here, as noted, the RIAA doesn't care that she will never pay this - they just want to have the judgement as a scare tactic.

Can RIAA haul her into court in 10 years because she hasn't given them their money (and would they first have to show that she has an extra $733/month first)? Her first home is exempted (correct?) but can they take basically everything else from her to pay that award? And, at the end of the day, isn't Ms Thomas better off never working another day in her life (or is she eligible for contempt if she tries that)?

You are now getting into the murky waters of remedies law. Generally they would seek a judgment lien - which is like any other type of lien or mortgage. They may put a lien on her home (doesnt matter if it is the first) or garnish her wages. However, these are equitable remedies and at the discretion of the court. In general they try not to be dicks about it. For example, courts rarely foreclose on property with liens, they just put a lien on it and then wait for it to sell - once it does the money goes to the plaintiff. Courts can get creative here, as they actually have broad authority to enforce their judgements. Finally, they could arrest you for contempt - but this is the rarest of the options and usually reserved for real bad actors.
 
2012-12-13 03:40:34 PM  

elchupacabra: A house, not to mention the incidental damages other material goods, costs a helluva lot more than 23 songs. Yet the fines are not even close to commensurate.


23 songs? of course not. But the distribution rights to 23 songs? That actually comes out to about/more than the cost of a home.
 
2012-12-13 03:45:10 PM  

Dr Dreidel: Creating a system where judges can prevent people from going broke because a nonliving entity needs their pound of flesh - balancing personal needs against corporate needs, you might say - over what doesn't even amount to a rounding error for the organization (or a significant infringement of their ability to distribute) seems to be in the interests of creating a legal system that isn't beholden to big-money seems like a win to me. But that's probably why I'm not a lawyer.


There is a great deal of flexibility in the enforcement phase - and generally - like expelling a tenant - if you have to go to court to enforce a judgment you are likely not seeing the money.

best way to put it - a court is required to dispassionately determine the amount of harm a wrongful actor has caused and assign that as damages. Nothing about the defendant's hard luck story should affect that (as a note: it does, as juries do what juries do) . However, when it comes to enforcing that judgment, a court has a lot of flexibility and will often give poor or overwhelmed defendants a lot of slack.
 
2012-12-13 03:46:33 PM  

Dr Dreidel: // forgot to include interest on that bill in my above analysis - they calculate interest, right?


Oh, hells, yeah. In Massachusetts, damages interest is a juicy 12%.
 
2012-12-13 03:47:08 PM  

Theaetetus: They're never getting their money back and they know it. This is all about precedent.


Precedent for more cases, and more awards they'll never collect on? Qui bene?

// I guess the lawyers kept busy
// they damn sure get paid (I know RIAA's people are retained) - is that the answer?
 
2012-12-13 03:49:11 PM  

Dr Dreidel: Precedent for more cases, and more awards they'll never collect on? Qui bene?


He means - i think - the precedent that this is willful infringement and the big press and handwringing that goes along with it. The RIAA is hoping that many people, when they think about downloading something, will remember this case and decide to just buy it on itunes.
 
2012-12-13 03:50:01 PM  

Teiritzamna: However, when it comes to enforcing that judgment, a court has a lot of flexibility and will often give poor or overwhelmed defendants a lot of slack.


Teiritzamna: You are now getting into the murky waters of remedies law. Generally...


And it doesn't seem strange to you two that a judge has little to no leeway in setting the amount judgement, but tons of it in enforcing how that judgement is enacted (including a de facto reduction)? I get that, for legal reasons, it should be that way, but it strikes no one as...retarded?

// or "it strikes no one as...being the same damn thing, only wearing a fake mustache?"
 
2012-12-13 03:50:37 PM  

Dr Dreidel: Theaetetus: They're never getting their money back and they know it. This is all about precedent.

Precedent for more cases, and more awards they'll never collect on? Qui bene?


Yep. Shuts down the possibility of appeals in the future, making that "pay us $5000 and delete all these files or we'll take you to court for $1.5 million" threat a lot more solid... and resulting in more $5000 checks and less legal fees.

// I guess the lawyers kept busy
// they damn sure get paid (I know RIAA's people are retained) - is that the answer?


The RIAA is a lobbying organization really, so it's more about extending copyright as much as possible. They'll fight Thomas tooth and nail, not for the money, but because they have to.
It's also why both Thomas and Tenenbaum are lousy cases, while those John Doe cases the EFF is involved with are much, much better.
 
2012-12-13 03:50:51 PM  

Theaetetus: Oh, hells, yeah. In Massachusetts, damages interest is a juicy 12%.


Pointless self-buffing: I recently made an argument in a brief before the SJC that Massachusetts statutory interest is unconstitutional, given that the present rates are so brutally low. It was in a footnote, but still . . .
 
2012-12-13 03:54:24 PM  

Dr Dreidel: And it doesn't seem strange to you two that a judge has little to no leeway in setting the amount judgement, but tons of it in enforcing how that judgement is enacted (including a de facto reduction)? I get that, for legal reasons, it should be that way, but it strikes no one as...retarded?


The law is generally a weird system of checks and balances like that. Its because the common law evolves but keeps much of the old development around, and because of the principle that once a system is in place it is very difficult to get rid of it. Instead it is just easier to bolt on a new module that makes it do 95.8% of what we want and then we cross our fingers on move on.
 
2012-12-13 03:55:51 PM  

Teiritzamna: Dr Dreidel: Precedent for more cases, and more awards they'll never collect on? Qui bene?

He means - i think - the precedent that this is willful infringement and the big press and handwringing that goes along with it. The RIAA is hoping that many people, when they think about downloading something, will remember this case and decide to just buy it on itunes.


Right, but if they keep having to file suits that they're planning on never being able to collect the awards from, aren't they just betting we don't figure out that part of the game?

Case #1: [illegal download] - [sue] - [judgement for $Texas against the defendant] - [RIAA lets them off with a $1 "payment"]
Case #2, the following year: [illegal download] - [sue] - [judgement for $eleventy billion against the defendant] - [RIAA lets them off with a $1 "payment"]
Case #3, the following year: [illegal download] - [sue] - [judgement for $potato against the defendant] - [RIAA lets them off with a $1 "payment"]

I ask again - qui bene? Is it just the lawyers? Are they betting that, if they keep filing suit against random people, they'll get all of us to stop uploading - because I have a wealth of information (the last 10 years of legal action they've taken) that says "nagahappen, bro".

Either that, or they'll spend years getting blood from all those stones.
 
2012-12-13 03:59:03 PM  
Teiritzamna

Theaetetus


Thanks for the time and answers, guys. I'll happily be the Fark Legal Team paralegal.

// am I gonna get billed for 30 hours of "consulting" now?
 
2012-12-13 04:01:02 PM  

Teiritzamna: Theaetetus: Oh, hells, yeah. In Massachusetts, damages interest is a juicy 12%.

Pointless self-buffing: I recently made an argument in a brief before the SJC that Massachusetts statutory interest is unconstitutional, given that the present rates are so brutally low. It was in a footnote, but still . . .


I know of at least one case where the plaintiff was happy to grant any and all extensions of time requested, because the compound interest was brutal.
 
2012-12-13 04:01:29 PM  

elchupacabra: Theaetetus:

Say she set fire to your house... Is it a good reason that she shouldn't have to buy you a new house that she's a middle-class woman? Forget about fairness to her, what about fairness to you, the wronged party?
The same applies, even if the RIAA companies are rich as gods. Compensatory damages are about repairing the wrong done to the plaintiff. The fact that that may be painful or bankrupting for the defendant is irrelevant, since the alternative would mean that someone is harmed and doesn't get made whole.


Wow. You just compared burning someone's house down to sharing copyrighted material.

/house burned down in my childhood
//fark you very much


Probably shouldn't have downloaded that ABBA CD off the torrents then, eh?
 
2012-12-13 04:04:34 PM  

Dr Dreidel: Teiritzamna: Dr Dreidel: Precedent for more cases, and more awards they'll never collect on? Qui bene?

He means - i think - the precedent that this is willful infringement and the big press and handwringing that goes along with it. The RIAA is hoping that many people, when they think about downloading something, will remember this case and decide to just buy it on itunes.

Right, but if they keep having to file suits that they're planning on never being able to collect the awards from, aren't they just betting we don't figure out that part of the game?

Case #1: [illegal download] - [sue] - [judgement for $Texas against the defendant] - [RIAA lets them off with a $1 "payment"]
Case #2, the following year: [illegal download] - [sue] - [judgement for $eleventy billion against the defendant] - [RIAA lets them off with a $1 "payment"]
Case #3, the following year: [illegal download] - [sue] - [judgement for $potato against the defendant] - [RIAA lets them off with a $1 "payment"]

I ask again - qui bene? Is it just the lawyers? Are they betting that, if they keep filing suit against random people, they'll get all of us to stop uploading - because I have a wealth of information (the last 10 years of legal action they've taken) that says "nagahappen, bro".

Either that, or they'll spend years getting blood from all those stones.


Actually it is likely not the lawyers. The thing to remember about lawyers is that they are not usually the ones to pull the trigger on strategy like this - its the client. Every litigator has tons of tales about clients who wanted to follow some bizarre self defeating strategy, or who wouldnt settle, or whatever, due to pride, rancor and simple boneheadedness.*

Finally, note that enforcement is always about causing others to stop doing something we dont want. The woman in this story is most definitely gonna be paying something, and will be paying it for a long time - as well as having her whole life turned upside down, her credit rating mucked up, and a federal court all up in her business. The RIAA is hoping that people will weigh the chance of this woman's fate happening to them against the ease and cheapness of free downloads.

*none of my clients are like this of course
 
2012-12-13 04:04:43 PM  

Dr Dreidel: And it doesn't seem strange to you two that a judge has little to no leeway in setting the amount judgement, but tons of it in enforcing how that judgement is enacted (including a de facto reduction)? I get that, for legal reasons, it should be that way, but it strikes no one as...retarded?


Nah. The place for pragmatism and emotion are once liability has been determined. It's why we give judges discretion in sentencing, but no discretion in overturning jury verdicts. Guilt or liability should be a black and white determination... what happens after that is much more flexible.
 
2012-12-13 04:06:22 PM  

Dr Dreidel: Teiritzamna

Theaetetus

Thanks for the time and answers, guys. I'll happily be the Fark Legal Team paralegal.

// am I gonna get billed for 30 hours of "consulting" now?


I spent 4 hours last night talking copyright, trademark, and right of publicity with a bunch of video game nerds at a bar, and my firm even paid for the food, so... no? :)
 
2012-12-13 04:08:25 PM  

Dr Dreidel: Thanks for the time and answers, guys. I'll happily be the Fark Legal Team paralegal.

// am I gonna get billed for 30 hours of "consulting" now?


I am always happy to have real debates over IP law - its what i love. So thank you for being a reasonable person with good Questions/thoughts in an IP thread!

Also personally i am on a slow day (christmas party last night) and my billables are looking good anyway - so lets call it a freebie
 
2012-12-13 04:09:17 PM  

Theaetetus: right of publicity


methinks this was an EA sports discussion?
 
2012-12-13 04:15:45 PM  

Teiritzamna: Theaetetus: right of publicity

methinks this was an EA sports discussion?


No Doubt v. Activison (the Band Hero case), Hart v. EA (the NCAA case), EA v. Textron (the Battlefield 3 Huey case), Escobedo v. THQ (the UFC tattoo case), and My Little Pony: Online's C&D. :D
 
2012-12-13 04:24:08 PM  
Of course its cruel and unusual.
 
2012-12-13 04:30:38 PM  

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.


The right to own property includes the right to destroy it. Why are you against this woman exercising her rights to protect her own private property
 
2012-12-13 04:36:10 PM  

FunkyBlue: elchupacabra: Theaetetus:

Say she set fire to your house... Is it a good reason that she shouldn't have to buy you a new house that she's a middle-class woman? Forget about fairness to her, what about fairness to you, the wronged party?
The same applies, even if the RIAA companies are rich as gods. Compensatory damages are about repairing the wrong done to the plaintiff. The fact that that may be painful or bankrupting for the defendant is irrelevant, since the alternative would mean that someone is harmed and doesn't get made whole.


Wow. You just compared burning someone's house down to sharing copyrighted material.

/house burned down in my childhood
//fark you very much

Probably shouldn't have downloaded that ABBA CD off the torrents then, eh?


You, sir, are a horrible, horrible man.

/Ok, yeah, I lolled. Sue me.
//Wait. Bad idea to say that in this forum.
 
2012-12-13 04:37:36 PM  

Theaetetus: 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.


That's only part of the argument to me, to be honest.

The average person feels that even the $750 minimum per item doesn't fit the "distribution method" the people are using and being sued for. And, given the nature of the technology being used, I would tend to agree (without having more details, since as has been said in this thread already, I just don't care enough to really research the issue).

So, here's my perspective (and I am seriously curious if I'm just way off in left-field here): As others have said here, she's only really on the hook for the total number of songs distributed x the value of each song, and I believe the ASSUMED total number of songs distributed (since she couldn't prove otherwise) is completely out of reality with what is likely (or really even possible).

Maybe it's just been my experience, but when was the last time you participated in a torrent swarm and got to even a 5:1 share ratio? I know she was using Kazaa or something like it, but even back then, how likely was it she got even above 10:1 or 100:1? Out of the nature of the technology, it's designed so you don't need to be a huge distributor for everyone to get a copy, as long as not everyone is a leecher. Sure, not everyone gets to even 0.500, but I'd wager that no one's getting to 750:1 with these technologies for even the minimum damages to be even remotely aligned (if you assume a value of $1 per song, of course). In short, how can the court/jury have concluded that $11,875/song was reasonable, especially when the technology used would suggest she was no where near distributing a total of 11,875 for each song? I know it's been said that "it was within the range that the law dictates," but that isn't a good enough answer as it just means to me that the law needs to change.

As I read here, the statutory damages are based on the fact that they have no idea what she actually distributed and the ASSUMPTION that she COULD have distributed thousands of copies of each song, as each song is valued at a $1-5, right? The problem I have is, that she most likely shared an order of magnitude below that--meaning, even the minimum statutory damage range is putting unfair obligation on the defendant to prove they didn't in fact go well above the average distributor would have (ie, counter to the innocent until proven guilty mindset). Unless someone can show me a statistic saying that the average person using these methods of distribution distributes anywhere near the 750:1 ratio (which, given the technology, is virtually impossible), then the method of distribution needs to be considered in these cases.
 
2012-12-13 04:40:18 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.


And do you not understand the difference between michal Jackson and a woman who is trying to feed her family. The situations are totally different. You dont get fined 250000 for stealing a candy bar
 
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