The Constitutional Problems With The Award In The Jammie Thomas Case

from the seems-a-wee-bit-excessive,-no? dept

Like many others, when I first heard about the $1.9 million the jury awarded the record labels from Jammie Thomas in her trial, my initial question was how that could possibly be constitutional and not excessive. However, given the immediate talk of settlements, I figured that question is unlikely to be asked in a courtroom. The EFF, however, has taken a look at the specific constitutional issues and how any appeal might be organized. There are two specific potential problems. First, the award is clearly designed to be punitive, rather than remunerative:
First, the Supreme Court has made it clear that "grossly excessive" punitive damage awards (e.g., $2 million award against BMW for selling a repainted BMW as "new") violate the Due Process clause of the U.S. Constitution. In evaluating whether an award "grossly excessive," courts evaluate three criteria: 1) the degree of reprehensibility of the defendant's actions, 2) the disparity between the harm to the plaintiff and the punitive award, and 3) the similarity or difference between the punitive award and civil penalties authorized or imposed in comparable situations. Does a $1.92 million award for sharing 24 songs cross the line into "grossly excessive"? And do these Due Process limitations apply differently to statutory damages than to punitive damages? These are questions that the court will have to decide if the issue is raised by Ms. Thomas-Rasset's attorneys.
The second issue questions whether the court has the right to try to use Jammie Thomas as an examples to warn off others (something the RIAA has been pushing for throughout this entire show-trial of a case):
Second, recent Supreme Court rulings suggest that a jury may not award statutory damages for the express or implicit purpose of deterring other infringers who are not parties in the case before the court. In other words, the award should be aimed at deterring this defendant, not giving the plaintiff a windfall in order to send a message to others who might be tempted to infringe. It's hard to know without having been in the courtroom, but if the record industry lawyers urged the jury to "send a message" to the millions of other American file-sharers out there, they may have crossed the constitutional line.
Interesting stuff, should Thomas decide to push forward. The downside, however, is that for whatever reason, to date the Supreme Court seems to throw normal precedent out the window when it comes to copyright law. I was just reading a long study (more on that later) of how a series of recent Supreme Court rulings on copyright seem to simply ignore precedent and simply accept the myth of copyright's importance over all else.


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  1.  
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    Anonymous Coward, Jun 19th, 2009 @ 5:57am

    Fawk the RIAA

    Screw the boycott, DECLARE WAR!

     

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  2.  
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    Anonymous Coward, Jun 19th, 2009 @ 5:59am

    Think its limited to copyright?

    If it were not for sending a message, you think Burnie Madoff would get more than 5 years?

     

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  3.  
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    John Duncan Yoyo (profile), Jun 19th, 2009 @ 6:44am

    Madoff only got five years to protect him from his clients.


    This needs to go to the Supremes if only to see if RIAA folds again. Prediction is that they will lose badly and fold somewhere on the appellate ladder.

     

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  4.  
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    MRK, Jun 19th, 2009 @ 6:59am

    Once you realize the American judicial system has nothing to do with justice, and only concerned with punishment, these kinds of verdicts become a lot less shocking.

     

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  5.  
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    JohnRaven,CHT,CSH (profile), Jun 19th, 2009 @ 7:09am

    Boston Tea Party

    I would to organize the Boston Tea Party of Music. I say, nationally we should have a day of CD recycling - I certainly wouldn't dump CDs into the bay or even burn them.

    But just to show our outrage, I think people should take music CDs on a specific day and drop them off at the recycling centers. Get as much publicity as possible.

    It might draw attention to the issue of big business being pretty much an evil dictatorship and having congressional members bought and paid for.

    But until we collectively rise up and tell our senators we will not stand for their selling our rights away for real (or political) currency, nothing is going to change.

    SERVING as a government official stopping being SERVICE along time ago and is now nothing more than a way to increase personal wealth and power but getting in bed with special interest groups.

    I personally think special interest groups should be illegal. I think they do more harm than good. If you want to organize people, organize them to VOTE.

    Groups should create their canidates and get the votes to put them in office. Special interest groups should be abolished, along with the current party system. Democrats and Republicans?!

    How much wasted energy is there by political posturing on both sides?

    This is the 21st century. We have many forms of instant communication. If we millions of people voting for a new American Idol, why can't we have people VOTE on issues? Elected officials could post the issue and vote time and then they would have a CLEAR idea of how their constituents wanted them to vote on a particular issue.... and by a number of respondants, how important the issue was to their constituents.

    I personally think this would get more people involved and get more people aware of what the government is doing.

     

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  6.  
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    Travis, Jun 19th, 2009 @ 7:16am

    Re: Boston Tea Party

    Can I download a thousand albums on BitTorrent and then burn copies of the cd's to take to the recycling center instead?

     

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  7.  
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    Anonymous Coward, Jun 19th, 2009 @ 7:20am

    Re: Boston Tea Party

    i'm down! lets start a facebook group :P

     

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  8.  
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    lux (profile), Jun 19th, 2009 @ 7:29am

    The outcome of this lawsuit truly disturbs me.

     

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  9.  
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    Marcel de Jong (profile), Jun 19th, 2009 @ 7:49am

    Re:

    What can The Surpremes do about this, other than sing about it? :)

     

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  10.  
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    Anonymous Coward, Jun 19th, 2009 @ 8:01am

    Let her appeal, maybe the next jury will award the full punitive damages of $150,000.00 per song next time. Maybe the RIAA can file suit against her for all 1,700 songs she was sharing (her potential liablity in this case is $255,000,000). The RIAA is loving this, she has tried to fight them and lost both times, and the judgment against her increased.

    I think she should stop now. If she takes it to the supreme court and loses the RIAA lawsuits would be furhter validated and they might consider pursuing lawsuits again.

     

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  11.  
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    Michial Thompson, Jun 19th, 2009 @ 8:11am

    The damages are within the law

    If I rear end a car and it then rear ends the car in front of it I am responsible for the damages to both cars. Why should she not be held responsible for the damages of downloads done from the next party after getting it from her?

    While I may not agree with this, I somehow see it as more than justifiable. I would even go so far as the RIAA has acknowledged that the amount in more than they want, so they are trying to settle. Though some of you would just argue that they are trying to get something before she files for bankruptcy...

    Facts are she put up a fight, and lost, then put up a second fight and lost even more... I'm taking this as the US Justice system is tired of thieves steeling from those of us that work for a living.

     

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  12.  
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    The Infamous Joe (profile), Jun 19th, 2009 @ 8:16am

    Re:

    First, when did they stop suing? I heard that they said they did, but I haven't actually seen any proof of it.

    Second, I don't know about you, but I'm equally unable to pay a 1.5 million judgement as I am a 225 million judgement. Either way I file for bankruptcy. I say the try her luck. The worst that can happn is nothing different.

     

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  13.  
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    Emma, Jun 19th, 2009 @ 8:20am

    Mike:

    Can this ridiculous debt be discharged in bankruptcy?

     

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  14.  
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    Anonymous Coward, Jun 19th, 2009 @ 8:23am

    LET IT BE KNOWN TO ALL OLD AND NEW MUSICIANS!

    IF YOU SIGN UNDER THE RIAA RADAR, YOU THEN DONT EXIST!

    NOT 1 CENT!

     

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  15.  
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    Chris (profile), Jun 19th, 2009 @ 8:29am

    Insane

    Can't believe that any sane person would assign penalties of that size for copying 24 files, even if she lied about it. Actually makes me sick to my stomach. The jurors responsible for the verdict in this case should be shamed publicly.

    I'm starting a torrent tracker out of spite.

     

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  16.  
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    The Infamous Joe (profile), Jun 19th, 2009 @ 8:29am

    Re: The damages are within the law

    You are a fool.

    Not only is it not theft, but she is being tried for shaing music, not downloading it. Giving something away isn't stealing. It was shown that she was buying CDs before and after the time of infringement. The only people we are certain downloaded music is MediaSentry.

    Bottom line, it's not stealing any more than it's music traitorism. Or music rape, or music double parking. Just stop.

     

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  17.  
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    duane (profile), Jun 19th, 2009 @ 8:36am

    Re: The damages are within the law

    It's not that they are trying to get any money. They want the judgment to stand. If it goes on the books as a judgment of a kabillion dollars, no one reads the part about settling for $3500. The kabillion dollar judgment is what counts and what they'll use to scare college kids and grandmas with.

    Also, it's not theft. Not now, not ever. They want you to think it is, just like they want you to think that she got punished for downloading music. Neither are true.

     

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  18.  
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    Anonymous Coward, Jun 19th, 2009 @ 8:37am

    Re:

    It's about doing what is right. Most people are cowards, like yourself, would back down from defending yourself when threatened. It has been clearly noted what the judicial system is doing is WRONG in this case.

    BTW tell me where you live so I can steal your lunch money every day and threaten to steal more if you try to stop me. I need some free and fun income.

     

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  19.  
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    Andrew D. Todd, Jun 19th, 2009 @ 8:38am

    Music Piracy Is Like What Shoplifting Used To Be.

    Here is a link to a discussion of mine over on History News Network

    http://hnn.us/readcomment.php?id=134754&bheaders=1#134754

    comment to:

    http://hnn.us/articles/88445.html

    It refers to a case involving a little girl named Jane Thacker, who was arrested for shoplifting in the year 1785, at a time when shoplifting carried the death penalty. You will find the original newspaper clipping quoted in the older piece I cite. Techdirt doesn't seem to like posts with too many links, so I can't link more specifically. Follow the links.

    At any rate, that is where the ultimate logic of "making an example" leads.

    Of course, the amount of damages in the Jammie Thomas case don't really matter. Reading between the lines, I gather she hasn't any assets to speak of, and cannot pay two million dollars, any more than she could pay two hundred thousand, or, probably, thirty thousand. On the Indian Reservations, just as in rural Appalachia, there are a lot of people living in aging mobile homes, often rented, and making approximately minimum wage. She's got nothing to lose by going at it again and again.

     

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  20.  
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    Anonymous Coward, Jun 19th, 2009 @ 8:40am

    Re:

    At nearly $2 million she's ruined as it is; they won't see any more from a $225 million award than they would from this one, so I'm not sure there's any benefit to her caving in.

     

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  21.  
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    Anonymous Coward, Jun 19th, 2009 @ 8:43am

    Re: The damages are within the law

    OK, you can hold her liable for 'ripple' damages as long as you compensate her for the free advertising, and account for ripples in that, too. I can't count the number of bands, let alone songs, that I've become a fan of 9and subsequently given money to) because someone else introduced them to me.

     

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  22.  
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    Anonymous Coward, Jun 19th, 2009 @ 8:45am

    Doubt that the RIAA wanted this...

    A lot of people are holding this judgment up as more RIAA justification for more litigation, but from the looks of it, the group seems to be rushing into damage control. Just looking at the lawyer's immediate statement after-the-fact, the astronomical number was downplayed severely (the verdict only praised for the jury agreeing that the defendant was liable), and the emphasis was that they were still willing to settle.

    Not that I blame them, anyway. As much as people on tech sites hate to admit, the general populace mostly agrees with the RIAA, namely because they don't look into the deeper details. The average person will only know that "downloading music gets you sued" and wouldn't bother looking further.

    When you have a case like this, though, the last thing you want to do is have it spread to the general populace. I mean, this is the kind of verdict that you never want talked about. "Mother of four", "twenty-four songs", "1.92 MILLION dollars". You can be sure as hell that the average person would latch onto those numbers like leeches.

     

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  23.  
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    MusicLover, Jun 19th, 2009 @ 8:48am

    Misguided

    Isn't this type of lawsuit misguided -- somewhat akin to prosecuting drug users while letting the dealer's off Scott free. Why was Kazaa exempted from the suit?

     

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  24.  
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    Alan Shore, Jun 19th, 2009 @ 8:59am

    What does Congress have to say about this?

    This is interesting--

    At the very core of this issue, she was distributing without a license. People use music in movies, TV programs, and advertisements all the time.

    Now, if she had the proper licenses, it seems she wouldn't have been sued. However, the industry has for years decided not to change the terms of the license to maintain with the various technological advances.

    Thusly, the recording interests and copyright holders established a monetary value to having the proper licenses based on their outdated business model.

    The biggest problem is that Copyright, by it's very nature, was never voted upon by the citizens of this Great Nation, and CONGRESS hasn't re-visited the Copyright Act to ensure it's maintained, and re-baselined to keep up with what arguably is the current State of the Art.

    Contrast this to last week's Congressional hearings about Telecomms and Text Messaging. Yes, Congress decided to round up all the telecom companies and poke them with a stick and ask about 20¢ text messaging charges, which is a relatively new technology in comparison to Music. And during these Congressional Testamonies, economists pointed out that it costs 0.3¢ to originate or deliver a text message.

    I would like to see a similar comparison of the fully loaded costs of the licensing schemes used by the RIAA and industry as a whole. What do you suppose the fully loaded cost of acquiring the proper rights cost? Maybe $10.00? if it's a manual process, maybe it's $50.00 tops. Any way you look at it, the $80,000 award seems to have no attachment to reality.

    It's odd that Congress will listen about a 20¢ charge, but remains silent about $80,000 charges. Hopefully Congress can now see the error of their ways, and will do something to reform Copyright Law.

     

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  25.  
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    Bruce E, Jun 19th, 2009 @ 9:02am

    Re: The damages are within the law

    Your car analogy is poor. If you rear-end a car, that driver does not have a choice as to whether or not to rear-end the other car. Their car is literally forced.

    If you share a music file, the receiver has a choice whether to further share it. They may not have been able to further share without you having shared it in the first place, but they do have a choice.

     

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  26.  
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    Crash, Jun 19th, 2009 @ 9:02am

    Interesting Perspective

    Here is something I find interesting.

    Just read a local news article about a politicial frauding taxpayer's out of an estmated $1 million.
    His fine (other then jail time)could be a max of $250K

    But someone who shares 24 songs (total value

     

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  27.  
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    JackSombra (profile), Jun 19th, 2009 @ 9:07am

    It's a cever plan to save america

    1,900,000/24 = 79166.66 per song
    Looks at friend Ipod, 18000 songs
    18,000* 79,166.66 = 1,424,999,880

    I think i have figured it out, it's an clever plan to solve the US national debt, they just need to find 12,000 odd people like my friend and the debt problem of the USA is solved!

    Damn clever of them

     

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  28.  
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    GeorgeH (profile), Jun 19th, 2009 @ 9:08am

    "Ripple" Damages...

    In my opinion, if you're going to hold her responsible for damages beyond the people she immediately shared it with then every gun victim should have the right to go directly after the gun companies when they are shot in the commission of a crime.

    After all, the gun company distributed the gun to the whole-saler, who sent it to the dealer, who sold it to the individual, who let it get on the black market where it ended up in the hands of a criminal.

     

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  29.  
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    Rosedale (profile), Jun 19th, 2009 @ 9:24am

    Supreme Court

    But if there ever were a lawyer, or set of lawyers who would likely relish the idea of going before the supreme court to discuss the constitutional merit of damages you would think "Kiwi" and Nesson would be the likely two. If I were this lady I would just settle and be done with it, but if there really is a case to be had these are the lawyers that I would expect to be drooling over the chance.


    As far as the case is concerned I don't know how anyone could possibly with a straight face ask for this much money when the original product costs 99 cents and she profited 0 from sharing. I also don't know how anyone could award such damages given what I just said and sleep at night. They really have NO concept of reality. Regardless of what you think about this issue the reward does NOT fit the crime. This is like the RIAA saying that this sole lady deserves to pay for every download the world over. Fair? Absolutely not.

     

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  30.  
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    Joe, Jun 19th, 2009 @ 9:30am

    Re: Boston Tea Party

    Boycott the Recording Industry! All of them.
    Don't purchase CD's, I-tunes, concert tickets, posters, T-shirts, anything that produces a royalty.

     

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  31.  
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    The Infamous Joe (profile), Jun 19th, 2009 @ 9:36am

    Re: Misguided

    The same reason that if you then burned those songs onto a CD and gave it to someone else, the CD burning software company would not be liable.

     

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  32.  
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    Squishy, Jun 19th, 2009 @ 9:38am

    Re: Boston Tea Party

    Im all for a Boston CD Party. Name the day. I'll recycle/trash/burn every craptastic cd I've got.

     

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  33.  
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    The Infamous Joe (profile), Jun 19th, 2009 @ 9:40am

    Re: It's a cever plan to save america

    Okay, on the face of it, your sarcasm is at the ridiculousness of the judgement. Bravo.

    However, since the money actually all goes to the record labels, and not the government, I'm going to pretend that you were subtlely hinting that the record labels control the government to such a degree that they might as well be considered the government.

    Well done, sir. Well done.

     

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  34.  
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    The Infamous Joe (profile), Jun 19th, 2009 @ 9:46am

    Re: Supreme Court

    That's what keeps nagging at me, too. These jurors sat around in their room and discussed this. They collectively and unanimously agreed that this woman deserved financial ruin for sharing 24 songs. That's two CD's.

    I could steal (I mean, physically go and take) **20** CDs and not have to pay that much.

    What kind of world do we live in where a group of random citizens feels that it's okay to ruin someone's life because they shared 24 songs for free, with no noticible or proven harm to the rights holders? I weep for my country for many reasons, but this jumps high up on the list.

    Also, I'd really like to find a list of the 24 songs, is anyone can point me to it.

     

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  35.  
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    DCX2, Jun 19th, 2009 @ 9:48am

    Re: The damages are within the law

    The problem with your analogy is that even though Jammie Thomas provided the file to someone else, the other person is not forced to share the file with others down the line.

    There's also the tired old arguments about how some people who pirate music also buy it (like Jammie Thomas), how most pirates wouldn't have bought the music anyway, how she shouldn't be liable for other people's actions, all the talk about sending a message, that the standard settlement is about three orders of magnitude smaller than the damages...

    I must admit, though, it's somewhat amusing to watch RIAA apoligists tap-dance around the obvious punitive nature of the award.

     

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  36.  
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    Anonymous Coward, Jun 19th, 2009 @ 9:59am

    "First, the Supreme Court has made it clear that "grossly excessive" punitive damage awards (e.g., $2 million award against BMW for selling a repainted BMW as "new") violate the Due Process clause of the U.S. Constitution."

    But you forget one important factor. Who benefit from the due process clause in any specific case. If it's a rich and powerful corporation that benefits than the clause applies. If the general public or some poor and powerless entity benefits then it's not OK to apply it.

    Think of Bayer intentionally selling Aids tainted blood and the FDA allowing it. They weren't punished and they shouldn't be, according to our legal system, because they are a rich and powerful corporations. Who cares about the harm they cause to the general public, that's not important. But when someone does anything even remotely threatening to rich and powerful entities then HUGE punishments are in order.

     

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  37.  
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    walteranonymous, Jun 19th, 2009 @ 10:00am

    Typical jury of your peers - if your peers are all dolts

    What a bunch of slack-jawed, bottom-feeding losers the members of that jury were! A more idiotic group of mindless buffoons would be hard to find outside the judicial system. Anyone with any intelligence whatsoever knows how to avoid jury duty, so what's left in the available pool has an average IQ somewhere around the temperature of a walk-in cooler. Consequently, these are the types of moronic judgement rendered by these vapid twits. Anyone who thinks that anything resembling justice is ever produced by the average jury is a.) hopelessly deluded and/or b.) developmentally challenged. They should publish the names of these bozos, just so no company has to go through the trouble of interviewing morons for jobs, and society in general can choose not to associate with known idiots.

     

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  38.  
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    Michael L. Slonecker, Jun 19th, 2009 @ 10:14am

    It is only natural for persons to try and draw an association between "punitive damages" under general tort law, which are generally derived from state statutory and common law, and "statutory damages" under copyright law, which are derived under the Copyright Act of 1976 (See: 17 USC et. seq.).

    Punitive damages decisions by the Supreme Court have generally been based upon the application to the states of the 14th Amendment's "due process" provision. The linchpin of these decisions has been the general absence under state law of guidelines providing the public at large fair notice of the potential liability in the event punitive damages are awarded. It is fair to say that until the "BMW case", a case where a BMW purchaser got a bit upset to learn that his new auto had been touched-up/repainted by BMW as necessary to repair any intransit damage to the paint finish of autos from Germany to the US, punitive damages awards went largely untouched as a matter of constitutional law. Again, the absence of standards to guide juries was the linchpin of the BMW decision.

    Statutory damages are a different creature altogether in that such guidance is set forth in the applicable statute, and such guidance was the sugject of much discussion within the Congress before the legislation was enacted raising the limits originally set in the Copyright Act of 1976.

    If the case is appealled, something I believe is unlikely, the big question is whether or not the court would accept the expected argument that punitive and statutory damages should be treated similarly. The size of the court award in the Thomas case notwithstanding, it is not at all clear that the court would even grant a hearing, much less that it would come down on the side of equating punitive and statutory damages on due process grounds. Of course, there is still the matter of an appeal running its course through the Seventh Circuit before the question could potentially be presented to the Supreme Court for its opinion.

    Were I representing Ms. Thomas I would certainly argue as forcefully as possible to negotiate a settlement as quickly as possible and for her to get back to being a mother and wage earner. Such a settlement would almost certainly be in the order of but a few $K. It is only because of her intransigence and willingness to secure the services of counsel who, her first counsel anyway, has largely written off from his books the money and time he personally spent representing her interests in the two trials.

    "Jammie, you have had your 15 minutes of fame, and nothing useful is to be gained by trying to extend it to 30 minutes. Plus, the facts of your case are about as clear-cut as possible in a copyright infringement case and they make you look like a liar who at the last moment attempted to throw your ex and your kids under the bus."

    If all the indignant groups like the EFF and various academics want to try and change the law, not only is this the wrong case based upon the facts developed at trial, but the potential outcome could very easily create a precedent that would set back efforts to try and reform copyright law to cover P2P as it related to ordinary file sharing.

    If these groups and academics who are chomping at the bit for appealling the case thought about it from something other than a knee-jerk perspective, they would quickly realize that the most receptive audience would be the Congress. I sincerely hope they give a legislative approach the consideration it deserves and proffer an amendment to Chapter 5 of the copyright law to cover situations such as this.

     

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  39.  
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    Fushta, Jun 19th, 2009 @ 10:45am

    Re: Supreme Court

    The damage calculations are based on a commercial entity distributing without a license and profiting from said distribution. If the plaintiff does not monetarily gain from the distribution, then the damages should be reduced.

    If she was selling the downloads, then let her pay the money back to the RIAA, plus "some" extra for a penalty. Just my 2 rupees.

     

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  40.  
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    Anonymous Coward, Jun 19th, 2009 @ 10:51am

    Sadly, this doesn't go very far, because the award is within the guidelines set in the law. The BMW case is an "open ended" deal, with no limits or guidelines. This is something with guidelines.

    Too bad.

     

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  41.  
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    Andy Carpenter, Jun 19th, 2009 @ 10:54am

    Re: The damages are within the law

    Just an FYI. The jury found that she did this infringement willfully, so bankruptcy is not an option to discharge this specific debt. She could file, of course, for relief from OTHER debts that she may have, but this one sticks.

     

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  42.  
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    Travis, Jun 19th, 2009 @ 11:10am

    Re: The damages are within the law

    So...since the damages cover any sharing that the people that downloaded from her, and the people that download from them, etc. etc., the RIAA should not be allowed to sue anyone else ever for these songs right?

    If 1 million people downloaded these songs in one way or another directly or indirectly from Jammie Thomas, and Jammie was fined $1.9M for this damage...if the RIAA were to sue those other 1 million people and get $1.9M charges for each one then isn't that double dipping...or million dipping?

     

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  43.  
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    Anonymous Coward, Jun 19th, 2009 @ 11:34am

    Re: Re: The damages are within the law

    Each step of the pyramid is another level of unlicensed distribution. There has to be penalties that make doing this stuff unattractive. If they penalty is "pay for the song", that is a meaningless punishement.

    Each person on each step of the ladder who re-shared the file is in turn an unlicensed distributor. They can't worm out of it. Thomas isn't paying for them to get a free ride.

     

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  44.  
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    JEDIDIAH, Jun 19th, 2009 @ 12:59pm

    Re: Re: Re: The damages are within the law

    Are you kidding?

    The more I think about it, the more I realize that the
    actual value of these songs is vanishingly small. They
    are all really old. Their money making potential is
    pretty much over. Each of the associated albums might
    move a few units these days but they are essentially
    has beens.

    The RIAA just got 2M for 2 albums worth of has-been
    material. They made out like bandits.

    It's like getting a 2M judgement for a wrecked 85 Dodge.

     

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  45.  
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    Flawed Concept, Jun 19th, 2009 @ 1:20pm

    Flawed Concept

    Isn't this whole case based upon a flawed concept?
    My understanding is that this whole case is based upon the "make available" concept -- not that Jammie Thomas actually distributed any copyrighted material but that she made it available. There was never any proof that Thomas ever distributed the material -- only that it was available on an open share on her machine.
    Would not those who copied the material from that share actually be the ones who violated the copyrights. Thomas possessed legal copies of the tracks obtained from Kazaa. And if those tracks we not legal why was Kazaa not similarly charged for "making them available"?

    What's next?? Is RIAA going to go after those who blast music out of their cars because they "make it available" for others to illegally record?

    I seriously doubt THIS verdict will be allowed to stand.

     

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  46.  
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    rawiswar, Jun 19th, 2009 @ 1:37pm

    Re: The damages are within the law

    the second part in the article is something you clearly cannot comprehend. say AP puts out an article that required you to pay for subscription to view it ... then you post that on your blog ... you think AP is going to come after you for that?!!! like in court??!!! anything that can be put up on the internet is information ... and you can easily see that information including music is becoming free (pandora) ... so, personally, resistance (to withhold anything) is futile.

     

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  47.  
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    rawiswar, Jun 19th, 2009 @ 1:52pm

    For all of you who think this is fair

    I saw someone arguing that it was punitive and would have been meaningless to punish by fining the cost of the songs alone ... that this was meant to serve as a warning ....

    So, according to this argument, this is money that is supposed to go to all the artists (who will be affected in the future)... is RIAA going to give it off to those numerous artists?? infinite hotel problem?? hehe... this is getting ridiculous beyond the point of requiring an explanation ...

     

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  48.  
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    Anonymous Coward, Jun 19th, 2009 @ 2:40pm

    Re: For all of you who think this is fair

    Actually the money in part would go to the artists, but also would go toward further financing legal actions against infringers. With a clear legal victory in their pockets, the RIAA has the ammo they need to move forward. It isn't in question anymore: Sharing files is a violation of copyright, period. Willfully sharing them is even more expensive.

    My feeling is that Ms Thomas got horrible legal advice from people like you, trying to create caselaw. That blew up in all of their faces, and it is only to Ms Thomas to pay the price.

     

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  49.  
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    Anonymous Coward, Jun 19th, 2009 @ 2:40pm

    A few words

    I would like for Congress to reform Copyright Law.

    Therefore, I am happy to donate money to the EFF for collaborating and bringing expert testimony, or other identified parties that would champion Jammie Thomas' effort and throw the damned Copyright Act back to Congress.

    Bankruptcy is always an option, but why not appeal to the Supremes? I talked with at least 30 others today that will send some money in an unmarked envelope to support Jammie and her attorneys, expert witnesses and the like.

    Don't discount the amount raised for Ron Paul.

    Who will take the case?

     

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  50.  
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    Anonymous Coward, Jun 19th, 2009 @ 2:52pm

    Some background

    You all should read "> the Copyright Act of 1976. Quite amusing actually. However, This Graphic is most annoying because it puts so many things into perspective.

    If the only way you can make a living is on how commercially viable a product is, it creates a commercially-based culture. However, I'd venture that most people have different internal desires than to make $2M on a record so they can spend it on hookers and the occasional blow.

    Good stuff.

     

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  51.  
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    CrushU, Jun 19th, 2009 @ 3:48pm

    Re: The damages are within the law

    "If I rear end a car and it then rear ends the car in front of it I am responsible for the damages to both cars. Why should she not be held responsible for the damages of downloads done from the next party after getting it from her?"
    In the first case, it's a Physics issue, when you strike something, it MUST cause a direct reaction. In the second case, it's NOT a Physics issue. Just because YOU share doesn't mean that suddenly everyone you shared with is FORCED to share. This is false reasoning. Think of it this way. If someone commits a murder, do the surviving relatives of the victim ALWAYS kill the murderer, making the murderer responsible for two deaths? NO. Because the surviving relatives make the CHOICE. The person(s) who commit the crime are charged for their crime, and no one else's. (There's a legal term for this, but my memory's fuzzy on which one.)

    "I'm taking this as the US Justice system is tired of thieves steeling from those of us that work for a living."

    Yeah, those stupid lawyers that don't really do any real work are taking away from the hard-working moms of America! ... Wait, what?

    Putting brush to canvas or fingers to guitar strings does not compare with putting hammer to nail. Trying to say that any artist does more work than anyone in any sort of service or production industry is grossly inaccurate. (Note that I'm not saying creative works aren't Work, what I'm saying is that a creative work, in and of itself, is not inherently valuable. A painting or song is only valuable if people want it. Materials, food are valuable because of what they are.)

     

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  52.  
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    CrushU, Jun 19th, 2009 @ 4:16pm

    Re: Typical jury of your peers - if your peers are all dolts

    So it is your opinion that anyone on a jury is stupid. But you think that this is just fine?

    This is something I never got. I served on a jury a time or two, and yes, I felt like the majority of people were... well, I wouldn't likely find them in a college. Every so often there was someone besides me that seemed educated, however. (one worked for a tech company, iirc) But why, someone explain to me, why would you refuse to serve on a jury, just because you are smart? You don't want to improve the quality of jury decisions, is that it?

    (Of course, this line of reasoning also kinda makes me want to try politics, because the average IQ would instantly rise 10 points if I got elected, but I'm highly doubtful I could get far by staying straight, so ultimately I won't go into politics.)

     

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  53.  
    identicon
    Anonymous Coward, Jun 19th, 2009 @ 4:58pm

    In 15 minutes, everyone will be famous.

    Someone mentioned "15 minutes of fame"?
    Who invented that? Oh Andy. He died a few years ago. How's his family doing?

    Warhol.com is different than Warhol.org

    Here's a hint:
    Warhol.org slowly spends the fortune the family was due, away.

    How?

    Well, this was done on the he porch of Andy's house.
    "YOUR SON SIGNED THIS BEFORE HE DIED. THIS ESTATE IS ALL MINE! GET OFF MY LAWN." may have been the words used, but it's family forklore. Who really knows.

    So, use your 15 minutes of fame wisely.

     

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  54.  
    identicon
    The Baker, Jun 19th, 2009 @ 6:34pm

    How the decision is being reported in the local media.

    Funny .... just while I was reading this, the local TV news station reported on the Thomas case stating:"The mother of four was found guilty of sharing more than Seventeen Million songs over the internet." " ... the jury awarded almost 2 million dollars to the musicians for their loss.

    Then went on reporting that you shouldn't eat any raw cookie dough.

    What can you say?????

     

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  55.  
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    reg, Jun 19th, 2009 @ 7:10pm

    Re: The damages are within the law

    my gawd you are an idiot

     

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  56.  
    identicon
    Anonymous Coward, Jun 19th, 2009 @ 7:39pm

    "Vote McGovern" as the set was called, was, in fact, a portrait of Richard Nixon painted in such pointedly repellent colours: blue jowles, green upper face) that Henry Geldzahler declared the work as 'loathsome... a latter-day disaster painting.' The anger and horror Warhol feels for Richard Nixon is sharp and unrelenting.

    Warhol By Victor Bockris Page 356

     

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  57.  
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    Anonymous Coward, Jun 20th, 2009 @ 9:37pm

    I think her only legal recourse might be to claim her council was incompetent. This is a case that should have been settled out of court a long, long time ago - or at least in between trial 1 and trial 2. Horrible legal advice.

     

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  58.  
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    Rabbit80, Jun 22nd, 2009 @ 3:01am

    I dont see how sharing on the internet is different to borrowing a CD from friends... ie. I ask a friend if I can borrow a CD which I then copy. 2 more of my friends ask if they can borrow my copy and copy it for themselves.

    How much should I get fined for a) copying a copy of a CD? and b) loaning a copy of a copy of a copy to 2 friends? I'm pretty sure it would not be in the range of nearly $1 million per CD! Why should digital infringement be vastly different to physical infringement?

    This has already gone on for years with casette tapes, the main difference is that the quality does not degrade with digital copying!

    In the above example I could not be sucessfully prosecuted for distributing the CD's since I would still have my copy and had not duplicated it for the purpose of distribution - it would be the friends who had reproduced the CD - that would be the only infringement! Just as in the internet it is the downloader who chooses to make a copy of my CD!

     

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  59.  
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    Anonymous Coward, Jun 22nd, 2009 @ 3:33am

    Re:

    Speed is one of those things - although the process you explain is in fact copyright violation, it would take too long to have great effect.

    The process you outline, even if everyone was good about passing the discs around on a daily basis, it would take a couple of weeks to hit 80,000 copies. In Ms Thomas's case, the 80,000 number could have been hit within the hour.

    More importantly, most people don't have enough friends to make it work out. The internet allows for the critical mass of people downloading to make it happen quickly. Your "two friends give it to two friends" thing would probably never make it to 80,000 copies. A single file shared online can reach them number very quickly indeed.

    "In the above example I could not be sucessfully prosecuted for distributing the CD's since I would still have my copy and had not duplicated it for the purpose of distribution - it would be the friends who had reproduced the CD - that would be the only infringement! Just as in the internet it is the downloader who chooses to make a copy of my CD!"

    Yup, but in your example, it might be even easier to show that without your actions, none of the other copies would exist.

     

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  60.  
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    Rabbit80, Jun 22nd, 2009 @ 3:53am

    Re: Re:

    "The process you outline, even if everyone was good about passing the discs around on a daily basis, it would take a couple of weeks to hit 80,000 copies. In Ms Thomas's case, the 80,000 number could have been hit within the hour. "

    It is equally true that without Ms Thomas joining in the sharing that the 80,000 copies could have been created within the hour - how significant is Ms Thomas's contribution?

    "More importantly, most people don't have enough friends to make it work out. The internet allows for the critical mass of people downloading to make it happen quickly. Your "two friends give it to two friends" thing would probably never make it to 80,000 copies. A single file shared online can reach them number very quickly indeed."

    Most people don't have 2 friends? have a look at this article - it shows quite clearly exactly how within just 64 steps the number of copies = 18,446,744,073,709,551,615

    http://en.wikipedia.org/wiki/Wheat_and_chessboard_problem

    "Yup, but in your example, it might be even easier to show that without your actions, none of the other copies would exist."

    On the contrary (remember - this is a copy of an already copied file) - if anything it shows that the adding of a single user makes little to no difference to the outcome - it is only when a massive number of users share the same file that massive infringements occur. This reduces the single users responsibility accordingly!

     

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  61.  
    identicon
    Anonymous Coward, Jun 22nd, 2009 @ 4:10am

    Re: Re: Re:

    "Most people don't have 2 friends? have a look at this article - it shows quite clearly exactly how within just 64 steps the number of copies = 18,446,744,073,709,551,615"

    Yes, I understand that - but a CD copy takes longer to be made, and the "walking" time between people (when you start to address larger numbers) because bigger and bigger all the time - something the internet eliminates.

    "On the contrary (remember - this is a copy of an already copied file) - if anything it shows that the adding of a single user makes little to no difference to the outcome - it is only when a massive number of users share the same file that massive infringements occur. This reduces the single users responsibility accordingly!"

    Not really. Each user starts their own branch of the tree and has some responsbility. Everyone under Ms Thomas's "two friends" are a result of her illegal distribution. If she didn't distribute it, untold thousands of people down the tree might never have the file either.

    Essentially, downloading a song is an individual effort, you downloaded it, there you go. Actually distributing (by sharing) is a group effort, which can touch literally everyone in the world. Heck, Mike refers to it as infinite distribution, so the act of making something available for download gives it infinite distribution. I suspect it is the reason the RIAA goes after people who share, not really people who just download.

     

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  62.  
    identicon
    Rabbit80, Jun 22nd, 2009 @ 4:25am

    Re: Re: Re: Re:

    "Yes, I understand that - but a CD copy takes longer to be made, and the "walking" time between people (when you start to address larger numbers) because bigger and bigger all the time - something the internet eliminates."

    If it took a 2 days for your 2 friends to copy the CD then it would take a little over a month to produce 130K copies - Admittedly this is slower than the internet, but in essence it is exactly the same thing!

    "Not really. Each user starts their own branch of the tree and has some responsbility. Everyone under Ms Thomas's "two friends" are a result of her illegal distribution. If she didn't distribute it, untold thousands of people down the tree might never have the file either."

    As already stated - it is the user that is downloading that has chosen to copy the file - it has not been forced upon them - or even advertised as such. It is the user that is downloading that has searched for a copy and is choosing to reproduce it! The files on the internet are generally broken into small parts and are reassembled by the downloading party. Its like getting a copy of each of the sentences from a book from different people, and putting them back in order to reform the whole book. Can a single sentence be copyrighted? How about if those individual sentences are encrypted so that unless you have all of them they are unreadable or make no sense?

    "Essentially, downloading a song is an individual effort, you downloaded it, there you go. Actually distributing (by sharing) is a group effort, which can touch literally everyone in the world. Heck, Mike refers to it as infinite distribution, so the act of making something available for download gives it infinite distribution. I suspect it is the reason the RIAA goes after people who share, not really people who just download."

    If it is a group effort then each user of the group should not be responsible of the group as a whole. That would be like prosecuting one member of a racist organisation for all the racism that the world has ever encountered!

     

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  63.  
    identicon
    Anonymous Coward, Jun 22nd, 2009 @ 4:45am

    "As already stated - it is the user that is downloading that has chosen to copy the file - it has not been forced upon them - or even advertised as such. It is the user that is downloading that has searched for a copy and is choosing to reproduce it!"

    That is like saying that the shopkeeper has nothing to do with the transaction that sells you the bread - they didn't sell it to you, you chose to buy it. If they don't offer bread, you won't have any.

    There is no copy without a source.

    "If it took a 2 days for your 2 friends to copy the CD then it would take a little over a month to produce 130K copies - Admittedly this is slower than the internet, but in essence it is exactly the same thing"

    Again, providing everyone is diligent about doing the job and about finding two friend who want the song - both unlikely. The internet allows you have to friends you don't know, allows many people to receive copies, and allows for a very widespread distribution of the material.

    On the "two friends" routine in real life, I suspect most wouldn't get more than 2 or 3 levels down before they peter out. Online, well, it never stops. You don't have to have two friends, total strangers will do.

     

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  64.  
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    Rabbit80, Jun 22nd, 2009 @ 5:24am

    Re:

    "That is like saying that the shopkeeper has nothing to do with the transaction that sells you the bread - they didn't sell it to you, you chose to buy it. If they don't offer bread, you won't have any."

    Except that a tansaction takes place with a shopkeeper - they give you bread - you give them money! (and they are minus a loaf of bread) As well as the fact that the shopkeeper advertises the fact they sell bread.

    Think of it more like taking a photograph - If I photograph your car down to the finest detail on each individual part, I have enough information to create a copy of that car - but I have not stolen anything - even if I choose to reproduce it!

    "Again, providing everyone is diligent about doing the job and about finding two friend who want the song - both unlikely. The internet allows you have to friends you don't know, allows many people to receive copies, and allows for a very widespread distribution of the material.

    On the "two friends" routine in real life, I suspect most wouldn't get more than 2 or 3 levels down before they peter out. Online, well, it never stops. You don't have to have two friends, total strangers will do."

    This kind of remindes me of the late 80's / early 90's where copying software was rife. I owned a Commodore Amiga and had over 400 copied games. I never obtained them over the internet, and neither did my friends - yet there were 10's of thousands of copied games available - all I had to do was ask around! I still bought games, and owned originals, but there was no way I could afford all of the ones I copied! I guess the first distributions were done via BBS, but the majority was by passing the disks between friends!

     

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  65.  
    identicon
    Anonymous Coward, Jun 22nd, 2009 @ 12:18pm

    Re: Re:

    "This kind of remindes me of the late 80's / early 90's where copying software was rife. I owned a Commodore Amiga and had over 400 copied games. I never obtained them over the internet, and neither did my friends - yet there were 10's of thousands of copied games available - all I had to do was ask around! I still bought games, and owned originals, but there was no way I could afford all of the ones I copied! I guess the first distributions were done via BBS, but the majority was by passing the disks between friends!"

    Yup - and the process was slow enough that it doesn't have the same effect that downloads do now. Just copying that disk might have been an hours work. Actually meeting up with someone took some time, and so on. So your 400 amiga copied games today is what you could get in a few days online. You could probably have had the whole 10,000 i the first year if you wanted to.

    Scale - it puts everything into perspective.

     

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  66.  
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    Rabbit80, Jun 23rd, 2009 @ 1:22am

    Re: Re: Re:

    The process may have been a little slower, but I could still get hold of cracked games within days of release. The main reason I didn't have more copies was simply the cost of the media - and the fact that the games were so easily available that I could just borrow them whenever I wanted.

    The same was true of albums - I remember having hundreds of copied casette tapes (and other people were the same)

    The internet just makes things easier (including making it easier to track how many copies are pirated)

    Ultimately, there were probably as many pirated copies floating around - its just it was better hidden from the industries.

     

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  67.  
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    Tymon, Aug 5th, 2010 @ 5:16pm

    Re: The damages are within the law

    Work for a living? The entertainment industry as a whole hardly classifies as work. Try taking a factory job sometime and you'll see what real work is. This lawsuit is a joke as a whole.

     

    reply to this | link to this | view in thread ]


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