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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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4271 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 04:48:44 PM

FarkGrudge: 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.


Unfortunately, at present no, the method of distribution does not need to be considered. This is why i was saying that the statute likely needs to be changed. As it stands the statutory damages were written with larger defendants in mind who were likely making far more from their distribution than even the upper range of stat damages.

However, it is well within Congress's powers to write a stupid law. A foolish law. A mind-bendingly ridiculous law. As long as the law is within the ambit of an enumerated power, there is really not much a judge can do about it. Here, the judge appears to have applied the law properly and the jury picked a number for damages.

TL;DR - alas, this is a legislative problem, not a judicial one.
 
2012-12-13 04:50:31 PM

Theaetetus: 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, wh ...


Thanks for that. This is precisely why I'm so interested in law. There's ALWAYS more to the story (see: McDonald's infamous coffee case) and the outcomes of these cases (which are often misunderstood) have a real bearing on society.
 
2012-12-13 04:52:21 PM

Teiritzamna: Unfortunately, at present no, the method of distribution does not need to be considered. This is why i was saying that the statute likely needs to be changed. As it stands the statutory damages were written with larger defendants in mind who were likely making far more from their distribution than even the upper range of stat damages.


Agreed.

Teiritzamna: TL;DR - alas, this is a legislative problem, not a judicial one.


Agreed, but, since she's saying that the penalty as a result of this law was unfair, doesn't that make it also a judicial one (for her specifically)? Not to sound snarky, but the whole checks-and-balances thing.
 
2012-12-13 04:52:29 PM

Teiritzamna: TL;DR - alas, this is a legislative problem, not a judicial one.


As almost ALL are. There are almost no truly "activist" judges out there.
 
2012-12-13 04:56:22 PM

Warlordtrooper: 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


1) as has been said, many times, many ways: not a fine

2) differences between them. MJ is a dead effeminate black (?) man - the mother is not? When MJ feeds his kids its his cock? I know this wasn't addressed to me, but still I dont really know what you mean.
Could you explain what you think the difference is between an example of the distribution rights to a song being valued at $11,875/song through a sale, and song distribution rights being valued at ~$9565/song through a court action?

3) your analogy is off, it appears - as often happens when analogizing from a public good to a market good. If you could instantly copy the candybar and gave them away to everyone, thus cutting into Hershey's profits due to your initial wrongful act of stealing, perhaps you too would face over $250000 in damages.
 
2012-12-13 05:01:50 PM

FarkGrudge: Agreed, but, since she's saying that the penalty as a result of this law was unfair, doesn't that make it also a judicial one (for her specifically)? Not to sound snarky, but the whole checks-and-balances thing.


remember a law can be stupid, shiatty, or even unfair and still 100% constitutional.

She is arguing that the judgement against her is so outrageous as to shock the conscience - that it is so unexpectedly large as to be out of the norm, and thus that it violates the due process clause.

The trick is, that is a hard argument to make when the damages are within the range set in a public statute by Congress and chosen by a jury.

Additionally, attempting to argue that Congress somehow overstepped its constitutional authority when drafting that law setting statutory damages is even harder - especially as i have no idea on what hook you would hang that stinker. I mean if setting stat damages is so unfair i figure anyone actually incarcerated would have some fun lawsuits to file.
 
2012-12-13 05:02:22 PM
So anybody that isn't a windy lawyer wannabe care to step up and post an opinion?
 
2012-12-13 05:06:56 PM

Teiritzamna: She is arguing that the judgement against her is so outrageous as to shock the conscience - that it is so unexpectedly large as to be out of the norm, and thus that it violates the due process clause.


She's also trying to call it punitive damages - much the same argument we've been having here - in order to draw parallels to W.L. Gore.
 
2012-12-13 05:09:42 PM

Teiritzamna: Could you explain what you think the difference is between an example of the distribution rights to a song being valued at $11,875/song through a sale, and song distribution rights being valued at ~$9565/song through a court action?


While not trying to defend the original poster's position, I would like to answer this.

The difference is that the distribution rights purchased by MJ allow for him to market the songs to anyone (and include using the songs for advertisement revenue). The "distribution rights" that these defendants are being sued for using allowed them to distribute to likely tens of people, and at no profit.

It's only when you assume that either the defendants had "all distribution rights" or none does it make sense. But, given that the defendants do not get rights to continue to distribute after the case, nor did their actions demonstrate they had willfully infringed on the rights to use the songs for any sort of revenue, then they should not be valued the same.

/again, it's the whole "how was is distributed" should matter
//but saying what MJ purchased should be the same as what these defendants are charged with defies common-sense, even if it's legally accurate (unless they are in-turn awarded the rights after trial like MJ)
 
2012-12-13 05:16:36 PM

FarkGrudge: While not trying to defend the original poster's position, I would like to answer this.

The difference is that the distribution rights purchased by MJ allow for him to market the songs to anyone (and include using the songs for advertisement revenue). The "distribution rights" that these defendants are being sued for using allowed them to distribute to likely tens of people, and at no profit.

It's only when you assume that either the defendants had "all distribution rights" or none does it make sense. But, given that the defendants do not get rights to continue to distribute after the case, nor did their actions demonstrate they had willfully infringed on the rights to use the songs for any sort of revenue, then they should not be valued the same.

/again, it's the whole "how was is distributed" should matter
//but saying what MJ purchased should be the same as what these defendants are charged with defies common-sense, even if it's legally accurate (unless they are in-turn awarded the rights after trial like MJ)


See now that is a real answer - well reasoned and sensible. One that feeds back into the legislative issues we were discussing. Sadly, given the style and substance of his mini-polemic, i doubt that Warlordtrooper would have given such an answer.
 
2012-12-13 05:17:24 PM

Theaetetus: She's also trying to call it punitive damages - much the same argument we've been having here - in order to draw parallels to W.L. Gore.


Yeah, which is so ridiculous an argument that it makes me feel all Rule 11-y.
 
2012-12-13 05:19:36 PM

Teiritzamna: i doubt that Warlordtrooper would have given such an answer.


Agreed, which is why I wanted to answer it. :) I'm legitimately curious to see how "out there" I am with my perspective on this issue.
 
2012-12-13 05:21:38 PM

Ohlookabutterfly: So anybody that isn't a windy lawyer wannabe care to step up and post an opinion?


Proceed, Ohlookabutterfly.
 
2012-12-13 05:32:39 PM

Teiritzamna: remember a law can be stupid, shiatty, or even unfair and still 100% constitutional.


Yes, but the opposite can also be true: a law can be smart, wonderful, and fair and still be 100% unconstitutional.

Teiritzamna: She is arguing that the judgement against her is so outrageous as to shock the conscience - that it is so unexpectedly large as to be out of the norm, and thus that it violates the due process clause.

The trick is, that is a hard argument to make when the damages are within the range set in a public statute by Congress and chosen by a jury.


I don't know much about how judgments can and are overturned, but it would seem to me (ie, the average person), that the only thing she can do is keep appealing as high as the court system will let her go until the judgment is reduced or overturned. I guess I'm not really surprised that someone in her position would keep trying to fight it judicially--they're the only ones who can actually "fix" her judgment (even if the law changed, it'd have to go through the courts again).
 
2012-12-13 05:34:08 PM
personally i think for this kind of piracy / copyright infringement damages should be capped at the retail value of the item or items in question +10% and legal costs are the responsibility of the parties themselves unless there is ironclad proof the items were being sold for profit.
 
2012-12-13 05:55:57 PM

grimlock1972: personally i think for this kind of piracy / copyright infringement damages should be capped at the retail value of the item or items in question +10% and legal costs are the responsibility of the parties themselves unless there is ironclad proof the items were being sold for profit.


The trick - as has been discussed, is that the retail value of what she "took" was actually rather high - the cost of a music distribution license.
 
2012-12-13 06:03:00 PM

Teiritzamna: grimlock1972: personally i think for this kind of piracy / copyright infringement damages should be capped at the retail value of the item or items in question +10% and legal costs are the responsibility of the parties themselves unless there is ironclad proof the items were being sold for profit.

The trick - as has been discussed, is that the retail value of what she "took" was actually rather high - the cost of a music distribution license.


... Which has an unconstitutional value assigned to it right now.

/Okay, that was a little snarky. :)
 
2012-12-13 06:06:26 PM

FarkGrudge: Teiritzamna: grimlock1972: personally i think for this kind of piracy / copyright infringement damages should be capped at the retail value of the item or items in question +10% and legal costs are the responsibility of the parties themselves unless there is ironclad proof the items were being sold for profit.

The trick - as has been discussed, is that the retail value of what she "took" was actually rather high - the cost of a music distribution license.

... Which has an unconstitutional value assigned to it right now.

/Okay, that was a little snarky. :)


heh.

The real question, however, is what do you think is unconstitutional about it?
 
2012-12-13 06:11:05 PM

Teiritzamna: FarkGrudge: While not trying to defend the original poster's position, I would like to answer this.

The difference is that the distribution rights purchased by MJ allow for him to market the songs to anyone (and include using the songs for advertisement revenue). The "distribution rights" that these defendants are being sued for using allowed them to distribute to likely tens of people, and at no profit.

It's only when you assume that either the defendants had "all distribution rights" or none does it make sense. But, given that the defendants do not get rights to continue to distribute after the case, nor did their actions demonstrate they had willfully infringed on the rights to use the songs for any sort of revenue, then they should not be valued the same.

/again, it's the whole "how was is distributed" should matter
//but saying what MJ purchased should be the same as what these defendants are charged with defies common-sense, even if it's legally accurate (unless they are in-turn awarded the rights after trial like MJ)

See now that is a real answer - well reasoned and sensible. One that feeds back into the legislative issues we were discussing. Sadly, given the style and substance of his mini-polemic, i doubt that Warlordtrooper would have given such an answer.


I like this answer. There's a potential double-dipping argument that, if the plaintiff is fully compensated for the distribution license and gets to retain exclusivity, then they've been "made whole" twice.
It also implies that, once accused of file sharing, you should start a legal defense fund selling copies of the songs in question for $1 each, since with a distribution license, you're "entitled" to those profits - which you'll then turn over to the plaintiff, but at least they aren't coming out of your pocket. :)
 
2012-12-13 06:11:41 PM

Teiritzamna: FarkGrudge: Teiritzamna: grimlock1972: personally i think for this kind of piracy / copyright infringement damages should be capped at the retail value of the item or items in question +10% and legal costs are the responsibility of the parties themselves unless there is ironclad proof the items were being sold for profit.

The trick - as has been discussed, is that the retail value of what she "took" was actually rather high - the cost of a music distribution license.

... Which has an unconstitutional value assigned to it right now.

/Okay, that was a little snarky. :)

heh.

The real question, however, is what do you think is unconstitutional about it?


Not enough guns. The second amendment requires all court cases to involve firearms. I saw it on Freep so you know it's true.
 
2012-12-13 06:12:06 PM

Teiritzamna: FarkGrudge: Teiritzamna: grimlock1972: personally i think for this kind of piracy / copyright infringement damages should be capped at the retail value of the item or items in question +10% and legal costs are the responsibility of the parties themselves unless there is ironclad proof the items were being sold for profit.

The trick - as has been discussed, is that the retail value of what she "took" was actually rather high - the cost of a music distribution license.

... Which has an unconstitutional value assigned to it right now.

/Okay, that was a little snarky. :)

heh.

The real question, however, is what do you think is unconstitutional about it?


Honestly, I wouldn't say unconstitutional necessarily (wouldn't know either way). But I do maintain that it is an exaggerated value as mentioned above.
 
2012-12-13 06:28:21 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


I watched a friends house burn down and knew a kid that had 3rd degree burns over a large portion of his body due to a house fire.

Master Strawman Builder.
 
2012-12-13 06:39:35 PM

Theaetetus: 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 app ...


First of all, it's not limited to punitive (criminal) cases. Secondly, it cruel and unusual applies regardless of the crime.

I shall also remind you of United States v. Bajakajian, 524 U.S. 321 (1998), Excessive fines.
 
2012-12-13 06:45:54 PM

Teiritzamna: FarkGrudge: Agreed, but, since she's saying that the penalty as a result of this law was unfair, doesn't that make it also a judicial one (for her specifically)? Not to sound snarky, but the whole checks-and-balances thing.

remember a law can be stupid, shiatty, or even unfair and still 100% constitutional.

She is arguing that the judgement against her is so outrageous as to shock the conscience - that it is so unexpectedly large as to be out of the norm, and thus that it violates the due process clause.

The trick is, that is a hard argument to make when the damages are within the range set in a public statute by Congress and chosen by a jury.

Additionally, attempting to argue that Congress somehow overstepped its constitutional authority when drafting that law setting statutory damages is even harder - especially as i have no idea on what hook you would hang that stinker. I mean if setting stat damages is so unfair i figure anyone actually incarcerated would have some fun lawsuits to file.


And yet companies like Exxon make the argument and WIN all the time on damages awarded by the jury as being too excessive despite it being written into law and given by a jury. So I'm sorry, what is your argument again?
 
2012-12-13 06:45:56 PM

Princess Ryans Knickers: I shall also remind you of United States v. Bajakajian, 524 U.S. 321 (1998), Excessive fines.


See:

Princess Ryans Knickers: Theaetetus: Nope, because it's not a "fine" or "penalty" - those go to the state. These are compensatory damages, which go to the plaintiff.

 
2012-12-13 06:47:42 PM

Princess Ryans Knickers: And yet companies like Exxon make the argument and WIN all the time on punitive damages awarded by the jury as being too excessive despite it being written into law and given by a jury. So I'm sorry, what is your argument again?


That these aren't punitive damages (or fines), they're compensatory damages.
 
2012-12-13 06:52:19 PM

Princess Ryans Knickers: I shall also remind you of United States v. Bajakajian, 524 U.S. 321 (1998), Excessive fines.


Um ok. I dont know why you would do that though, as it doesn't help you at all:

The Eighth Amendment provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U. S. Const., Amdt. 8. This Court has had little occasion to interpret, and has never actually applied, the Excessive Fines Clause. We have, however, explained that at the time the Constitution was adopted, "the word `fine' was understood to mean a payment to a sovereign as punishment for some offense." Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, 328*328 Inc., 492 U. S. 257, 265 (1989). The Excessive Fines Clause thus "limits the government's power to extract payments, whether in cash or in kind, `as punishment for some offense.' " Austin v. United States, 509 U. S. 602, 609-610 (1993) (emphasis deleted).

United States v. Bajakajian, 524 U.S. 321, 327-28 (1998). So yeah, 8th amendment is limited to government imposition of punishments and fines. This case is not a fine, it is a civil judgment.
 
2012-12-13 06:55:37 PM

Teiritzamna: Princess Ryans Knickers: I shall also remind you of United States v. Bajakajian, 524 U.S. 321 (1998), Excessive fines.

Um ok. I dont know why you would do that though, as it doesn't help you at all:

The Eighth Amendment provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U. S. Const., Amdt. 8. This Court has had little occasion to interpret, and has never actually applied, the Excessive Fines Clause. We have, however, explained that at the time the Constitution was adopted, "the word `fine' was understood to mean a payment to a sovereign as punishment for some offense." Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, 328*328 Inc., 492 U. S. 257, 265 (1989). The Excessive Fines Clause thus "limits the government's power to extract payments, whether in cash or in kind, `as punishment for some offense.' " Austin v. United States, 509 U. S. 602, 609-610 (1993) (emphasis deleted).

United States v. Bajakajian, 524 U.S. 321, 327-28 (1998). So yeah, 8th amendment is limited to government imposition of punishments and fines. This case is not a fine, it is a civil judgment.


Yes, and it's still held to the same guidelines. See Gore and State Farm judgements. So in a way this case could lead to the answer from the Williams case.
 
2012-12-13 06:57:59 PM

Princess Ryans Knickers: Teiritzamna: Princess Ryans Knickers: I shall also remind you of United States v. Bajakajian, 524 U.S. 321 (1998), Excessive fines.

Um ok. I dont know why you would do that though, as it doesn't help you at all:

The Eighth Amendment provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U. S. Const., Amdt. 8. This Court has had little occasion to interpret, and has never actually applied, the Excessive Fines Clause. We have, however, explained that at the time the Constitution was adopted, "the word `fine' was understood to mean a payment to a sovereign as punishment for some offense." Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, 328*328 Inc., 492 U. S. 257, 265 (1989). The Excessive Fines Clause thus "limits the government's power to extract payments, whether in cash or in kind, `as punishment for some offense.' " Austin v. United States, 509 U. S. 602, 609-610 (1993) (emphasis deleted).

United States v. Bajakajian, 524 U.S. 321, 327-28 (1998). So yeah, 8th amendment is limited to government imposition of punishments and fines. This case is not a fine, it is a civil judgment.

Yes, and it's still held to the same guidelines. See Gore and State Farm judgements. So in a way this case could lead to the answer from the Williams case.


You are mixing up totally different case law. Gore and State farm are about the 14th/5th amendment limits on punitive damages. It has nothing to do with the 8th amendment. Neither are applicable to this judgement as it is a compensatory judgement applying damages set forth in a lawful statute.
 
2012-12-13 07:00:52 PM

Teiritzamna: grimlock1972: personally i think for this kind of piracy / copyright infringement damages should be capped at the retail value of the item or items in question +10% and legal costs are the responsibility of the parties themselves unless there is ironclad proof the items were being sold for profit.

The trick - as has been discussed, is that the retail value of what she "took" was actually rather high - the cost of a music distribution license.


No she took mp3s song, she never stole a license. it can be argued that those illegally distributing any stolen media only stole what they are selling copies of as they never had any intention of getting a license to sell them legally, and how th hell could you steal a license? you can get a fake but that fraud more than it is theft, same for using someone else's license.
 
2012-12-13 07:02:07 PM

Teiritzamna: Princess Ryans Knickers: Teiritzamna: Princess Ryans Knickers: I shall also remind you of United States v. Bajakajian, 524 U.S. 321 (1998), Excessive fines.

Um ok. I dont know why you would do that though, as it doesn't help you at all:

The Eighth Amendment provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U. S. Const., Amdt. 8. This Court has had little occasion to interpret, and has never actually applied, the Excessive Fines Clause. We have, however, explained that at the time the Constitution was adopted, "the word `fine' was understood to mean a payment to a sovereign as punishment for some offense." Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, 328*328 Inc., 492 U. S. 257, 265 (1989). The Excessive Fines Clause thus "limits the government's power to extract payments, whether in cash or in kind, `as punishment for some offense.' " Austin v. United States, 509 U. S. 602, 609-610 (1993) (emphasis deleted).

United States v. Bajakajian, 524 U.S. 321, 327-28 (1998). So yeah, 8th amendment is limited to government imposition of punishments and fines. This case is not a fine, it is a civil judgment.

Yes, and it's still held to the same guidelines. See Gore and State Farm judgements. So in a way this case could lead to the answer from the Williams case.

You are mixing up totally different case law. Gore and State farm are about the 14th/5th amendment limits on punitive damages. It has nothing to do with the 8th amendment. Neither are applicable to this judgement as it is a compensatory judgement applying damages set forth in a lawful statute.


Not really. First, in the 8th amendment it does not state for punitive or State damages only. Secondly, the early SCOTUS applied the rule of the "evolving common decency of man" rule to damages regardless of it being a fine, criminal, or compensatory (actual). Thirdly, I again point you to the class action suits against BP and Exxon where they BOTH got reduced damages after a jury ruling despite the law as written.
 
2012-12-13 07:02:12 PM

Princess Ryans Knickers: Yes, and it's still held to the same guidelines. See Gore and State Farm judgements


Civil fines are still held to the same guidelines - see Gore and State Farm. These aren't fines. I don't know how many times we can say this - it's not about whether this is criminal or civil, it's about whether it's punitive or compensatory in nature. In this case, it's the latter.
 
2012-12-13 07:03:14 PM

Princess Ryans Knickers: First, in the 8th amendment it does not state for punitive or State damages only.


"Excessive fines" - and from that case, "at the time the Constitution was adopted, "the word `fine' was understood to mean a payment to a sovereign as punishment for some offense."" Thus, yes - the 8th amendment applies to punitive damages, not compensatory ones.
 
2012-12-13 07:04:22 PM

Princess Ryans Knickers: Thirdly, I again point you to the class action suits against BP and Exxon where they BOTH got reduced punitive damages after a jury ruling despite the law as written.


I'm just about done with this one.
 
2012-12-13 07:05:37 PM

Theaetetus: Princess Ryans Knickers: Yes, and it's still held to the same guidelines. See Gore and State Farm judgements

Civil fines are still held to the same guidelines - see Gore and State Farm. These aren't fines. I don't know how many times we can say this - it's not about whether this is criminal or civil, it's about whether it's punitive or compensatory in nature. In this case, it's the latter.


And were the actual damages reduced in those cases brought by the People and not the United States? Yes, yes they were. So you don't disagree with me in saying that what's good for the corporation is good for the People.
 
2012-12-13 07:07:42 PM

Theaetetus: Princess Ryans Knickers: Thirdly, I again point you to the class action suits against BP and Exxon where they BOTH got reduced punitive damages after a jury ruling despite the law as written.

I'm just about done with this one.


And keep farking that chicken by pointing to the case brought by the US instead of the class action I keep pointing to.
 
2012-12-13 07:10:44 PM

StoPPeRmobile: 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

I watched a friends house burn down and knew a kid that had 3rd degree burns over a large portion of his body due to a house fire.

Master Strawman Builder.


I argue that his usage of that comparison was seriously out of whack. Where do you find a strawman?
 
2012-12-13 07:11:31 PM

Princess Ryans Knickers: Theaetetus: Princess Ryans Knickers: Yes, and it's still held to the same guidelines. See Gore and State Farm judgements

Civil fines are still held to the same guidelines - see Gore and State Farm. These aren't fines. I don't know how many times we can say this - it's not about whether this is criminal or civil, it's about whether it's punitive or compensatory in nature. In this case, it's the latter.

And were the actual damages reduced in those cases brought by the People and not the United States? Yes, yes they were.


No, no they weren't - the actual damages were not reduced at all. The punitive damages were reduced. Do you understand the distinction?

Princess Ryans Knickers: And keep farking that chicken by pointing to the case brought by the US instead of the class action I keep pointing to.


arrrgholyfarkit'snotaboutwhobroughtthecase! Compensatory damages were not reduced in any of the cases. Punitive damages were reduced, and are subject to the 8th amendment.

/like talking to a particularly dense wall
 
2012-12-13 07:13:50 PM

Theaetetus: Princess Ryans Knickers: Theaetetus: Princess Ryans Knickers: Yes, and it's still held to the same guidelines. See Gore and State Farm judgements

Civil fines are still held to the same guidelines - see Gore and State Farm. These aren't fines. I don't know how many times we can say this - it's not about whether this is criminal or civil, it's about whether it's punitive or compensatory in nature. In this case, it's the latter.

And were the actual damages reduced in those cases brought by the People and not the United States? Yes, yes they were.

No, no they weren't - the actual damages were not reduced at all. The punitive damages were reduced. Do you understand the distinction?

Princess Ryans Knickers: And keep farking that chicken by pointing to the case brought by the US instead of the class action I keep pointing to.

arrrgholyfarkit'snotaboutwhobroughtthecase! Compensatory damages were not reduced in any of the cases. Punitive damages were reduced, and are subject to the 8th amendment.

/like talking to a particularly dense wall


Again, you are pointing to a different case. There were two cases. One brought by the US for fines imposed (punitive) and the second brought by the People as a class action lawsuit (compensatory also known as actual).

Secondly, in the Jammie Thomas case you are considering presumed damages and not proven. SCOTUS has already rejected twice this argument and tossed the cases on their ear.
 
2012-12-13 07:22:58 PM

Theaetetus: Princess Ryans Knickers: Theaetetus: Princess Ryans Knickers: Yes, and it's still held to the same guidelines. See Gore and State Farm judgements

Civil fines are still held to the same guidelines - see Gore and State Farm. These aren't fines. I don't know how many times we can say this - it's not about whether this is criminal or civil, it's about whether it's punitive or compensatory in nature. In this case, it's the latter.

And were the actual damages reduced in those cases brought by the People and not the United States? Yes, yes they were.

No, no they weren't - the actual damages were not reduced at all. The punitive damages were reduced. Do you understand the distinction?

Princess Ryans Knickers: And keep farking that chicken by pointing to the case brought by the US instead of the class action I keep pointing to.

arrrgholyfarkit'snotaboutwhobroughtthecase! Compensatory damages were not reduced in any of the cases. Punitive damages were reduced, and are subject to the 8th amendment.

/like talking to a particularly dense wall


BTW, the Exxon one is compensatory and not punitive. Might help if you learn the definition of compensatory:

Compensatory damages, called actual damages, are paid to compensate the claimant for loss, injury, or harm suffered as a result of (see requirement of causation) another's breach of duty.

The duty and legal obligation of Exxon was to ensure their ship and cargo were safely conveyed to their destination. They did not do that. Therefore harm was done to the local environment, livelihood, and health of the residences within the sphere of the spill.

There is no actual harm and no proven damages in the Jammie Thomas case.
 
2012-12-13 07:30:26 PM

Princess Ryans Knickers: BTW, the Exxon one is compensatory and not punitive. Might help if you learn the definition of compensatory:


From the syllabus of that case:
3. The punitive damages award against Exxon was excessive as a matter of maritime common law. In the circumstances of this case, the award should be limited to an amount equal to compensatory damages.

/oy vey
 
2012-12-13 07:32:46 PM

Theaetetus: Princess Ryans Knickers: BTW, the Exxon one is compensatory and not punitive. Might help if you learn the definition of compensatory:

From the syllabus of that case:
3. The punitive damages award against Exxon was excessive as a matter of maritime common law. In the circumstances of this case, the award should be limited to an amount equal to compensatory damages.

/oy vey


And it's a misuse of the term. Again, what's the definition of compensatory?
 
2012-12-13 08:25:59 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 is precisely what she's arguing. "Cruel and unusual" punishment is "excessive."

However, statutory damages are set to deter offenders, not just to compensate the aggrieved party. If you review the holy-fark history of this case, you'll find that this woman is not easily deterred. Nor are file-sharers in general. So yes, the statutory damages need to be high.

Her lawyers argue that the "excessive" statutory damages make it worthwhile for copyright owners to go after infringers, as if that's a bad thing.

They also argue that it is "file-sharing in general" that damages rights owners, not her. "(T)he songs she listened to were on KaZaA, available to the whole Internet, and would have been there even if Thomas had never discovered file sharing. Punishing an individual for injuries caused by a group to which the individual belongs rather than by the individual herself is neither American nor constitutional."

So it's neither American nor constitutional to jail any Wall Street employee. The crimes of his firm would have been committed whether he was there or not. Pull the other one.

She's asking the SCOTUS to rule the statutory damages unconstitutional because they are not narrowly tailored to her type of infringement. But it's up to a jury to do that tailoring within the range of statutory damages set by Congress. Three juries did so, coming up with $220,000, $1.5 million, and $1.9 million. She's getting the lowest of the lot.
 
2012-12-13 10:00:03 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.


Looks at profile... Patent attorney.

Yeah well that pretty much explains it. This is his meal ticket, so of course he thinks it's a good idea to extort massive damages from these folks.

They deserve to be sued for the value of the files, which last I checked was less than a dollar each on iTunes.
 
2012-12-13 10:04:31 PM
So my ex had bought this "music service" that charged $40 a year for unlimited downloads. It was a reskinned Kazaa, and she thought it was a legal, unlimited music download service. I could not convince her that it was illegal, because she had paid for the "service" and thus the music was obviously paid for.

I got her to switch to Pandora when it became available, but she never understood how a paid service could be tapping into something that could get her into trouble.

I wonder how she would fare in court. She was both downloading and seeding hundreds of songs without knowing anything about torrents. Her level of internet savvy was a constant problem for me, and despite cleaning up problem after problem for her she never seemed to trust my computer advice. I could see her absolutely denying in court that she had done anything illegal, getting hit with millions in damages and still not understanding that she was paying crooks and not a legal service.
 
2012-12-13 10:53:08 PM

Princess Ryans Knickers: Theaetetus: Princess Ryans Knickers: BTW, the Exxon one is compensatory and not punitive. Might help if you learn the definition of compensatory:

From the syllabus of that case:
3. The punitive damages award against Exxon was excessive as a matter of maritime common law. In the circumstances of this case, the award should be limited to an amount equal to compensatory damages.

/oy vey

And it's a misuse of the term. Again, what's the definition of compensatory?


You're arguing that the Supreme Court is misusing the term "punitive" in their decisions?

bulk.destructoid.com
 
2012-12-13 10:53:52 PM

EbolaNYC: 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.

Looks at profile... Patent attorney.

Yeah well that pretty much explains it. This is his meal ticket, so of course he thinks it's a good idea to extort massive damages from these folks.


Patents, copyrights... why, they're totally the same thing. The different spelling and pronunciation are probably irrelevant.
 
2012-12-14 01:24:19 AM
Sorry, I know you guys like to go on and on about minute details and all but let me cut all that BS out. You're a lawyer and you don't particularly care if something is right and fair as long as you can argue the point to death and win (profit).
 
2012-12-14 03:15:29 AM

Teiritzamna: grimlock1972: personally i think for this kind of piracy / copyright infringement damages should be capped at the retail value of the item or items in question +10% and legal costs are the responsibility of the parties themselves unless there is ironclad proof the items were being sold for profit.

The trick - as has been discussed, is that the retail value of what she "took" was actually rather high - the cost of a music distribution license.


Why do you guys continue to compare this to things such as a license for digital distribution, or (even worse) the Beatles' publishing rights? To compare to a distribution license the penalty would appropriately be about $0.50 for each copy she distributed, plus her own. For the equivalent with torrenting, the penalty should be $0.50 x (share ratio + 1), because that's how much the owners would get if she were a legitimate digital distributor. This would be the amount of money the rights holders would have gotten if every single download was one lost sale, if they applied this fine to every uploader. Since she didn't have exclusivity rights, you can't honestly include those costs.

To compare to Michael Jackson's rights to the Beatles, you would be saying she bought the publishing rights. This means she would be privy to about 50% of the royalties the songs made through all their sales through any medium. Somehow I doubt they're giving her their royalties. To suggest this case is equivalent to that is completely asinine.
 
2012-12-14 08:29:00 AM

EbolaNYC: Sorry, I know you guys like to go on and on about minute details and all but let me cut all that BS out. You're a lawyer and you don't particularly care if something is right and fair as long as you can argue the point to death and win (profit).


Actually, no, you've got it backwards - you don't care whether something is right or wrong, and instead say that if a lawyer says it, they're biased shills so it must be wrong.

The astute reader would note that all of us lawyers have actually been arguing against the massive damage awards, just not with "wharrrgarbl unconstitutional excessive fines due process!" rants.
The less astute reader sees everything in a dichotomy in which if you're not wharrgarbling one way, you must be wharrgarbling the other way just as hard, so the fact that we're not saying this is unconstitutional means we must be receiving fat RIAA checks.

Guess which group you fall into?
 
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