DOJ Doesn't Believe $80,000 Per Song Unconstitutional Or Oppressive

from the tell-that-to-Jammie dept

While this probably isn't a huge surprise, given the fact that the Justice Department is stocked with former lawyers for the entertainment industry (and because it's filed similar briefs before), but it's still worth noting that the Justice Department has filed a brief in the Jammie Thomas lawsuit, in support of the constitutionality of the $1.92 million fine (and, no, none of the former RIAA lawyers are signatories to the brief, though you have to imagine their "expertise" was consulted). The reasoning is quite troubling and appears to include some serious revisionist history.

First, what's stunning is that the brief claims the awards are perfectly constitutional because it is not "so severe and oppressive as to be wholly disproportioned to the offense [or] obviously unreasonable." Really? It seems that an awful lot of people find the idea of being forced to hand over $80,000 per song without any evidence that it was ever actually shared by anyone is severe and oppressive to the point that it's disproportionate to the offense and quite obviously unreasonable. I mean, this is a woman who wanted to listen to her favorite bands, and she now has to pay nearly $2 million. How can anyone claim that's not "severe and oppressive" in relation to the actual "harm" done?

Second, the brief claims that the damages should be much more than the $1.29 price per song found on iTunes, because it "ignores the potential multiplying effect of peer-to-peer file-sharing." Except, if that were the case, shouldn't the plaintiffs been required to show that these songs were actually shared? And should Thomas also be liable for the actions of anyone else she shared the songs with? That seems to go quite beyond what the law states.

Third, and perhaps most troubling, is the Justice Department's sneaky little claim that the statutory rates are obviously fair for file sharing, because they were put in place in 1999, with the explicit statement from Congress that these numbers were there because of internet file sharing. That sounds good, but ignores the fact that this little change in the law was pushed almost entirely by entertainment industry lobbyists (the same folks who now run the Justice Department!) to protect their dying business model, rather than through any empirical evidence. The real original purpose of statutory rates had nothing to do with punishing personal, non-commercial use, but were very much about dealing with commercial harm.

It's a neat, but immensely troubling, trick by the entertainment industry. Sneak through bizarre and totally unsupported legislation through a Congress that's never met a stronger copyright law it didn't love, using your high paid lobbyists. Then, get those same lobbyists appointed to the Justice Department to defend it against Constitutional challenges. Regulatory capture at its finest.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    M-H, Aug 14th, 2009 @ 1:20pm

    This will help in the future.

    "Dear Music Listener:

    We have reason to believe that your IP Adress, 127.0.0.1, Registered to John Doe has shared twelve files. As you know, sharing files is illigal, and we must protect ourseleved. If you settle today for $12,000, a mear $1,000 per infringing file, and sign a confidencial contract allowing us to plant spy software on your PC and block all file sharing applications, we will gladly settle.

    If you do not, we will be forced to take direct Legal Actions. It has been ruled constitutional to recoup damages of no less then $80,000 per song, and of course, you will still be charged lawyer fees. In addition, any lack of imidiate payment will be charged banker interest. As you can see, we will bankrupt you in a manner of days.

    Issue the check care of RIAA"

    I mean, just think of how pretty thier settlement terms must look now, guilty or not.

     

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  2.  
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    Ready to give up?, Aug 14th, 2009 @ 1:24pm

    The fall of the Roman empire

    Every day there is one more thing that reminds us that the government and the justice system is of by and for huge international corporations, NOT the people.

    Are we truly helpless to change it now? Would one --- a hundred --- a million or even a hundred million votes (at the polls or with our dollars) do anything to change the system at this point?

    I don't want to be pessimistic, and I truly love our country (The USA) I'm wondering if it is our county any more.

     

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  3.  
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    :Lobo Santo (profile), Aug 14th, 2009 @ 1:28pm

    Re: The fall of the Roman empire

    I've said it time and time again:

    There is no problem which cannot be solved thru proper application of explosives.

     

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  4.  
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    Chris in Utah (profile), Aug 14th, 2009 @ 1:29pm

    Re: The fall of the Roman empire

    If you follow the link in my name you'll know how to answer that.

    Does lead to one possible solution though. Gives a dam good reason for appeal in the oppressive or sever department.

     

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  5.  
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    Anonymous Coward, Aug 14th, 2009 @ 1:31pm

    "but it's still worth noting that the Justice Department has filed a brief in the Jammie Thomas lawsuit, in support of the constitutionality of the $1.92 million fine"

    Good, hopefully this would increase the backlash and we can vote out our current government and replace them with competent politicians.

     

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  6.  
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    TDR, Aug 14th, 2009 @ 1:39pm

    Re:

    Not politicians, AC. Public servants. There's a difference.

     

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  7.  
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    Dark Helmet (profile), Aug 14th, 2009 @ 1:52pm

    Reiteration

    I've said this before, but I'll say it again, because it is highly pertinent.

    -Benito Mussolini claimed that the first stage of fascism is corporatism.
    -An older definition, since replaced, of fascism defined it as the "Authoritarian merging of government and industry". The point was that high level people, many of them with familiar sounding last names, moved swiftly between government and industry positions.
    -The stated creed of the Bavarian Illuminati was: "The ends justify the means"

    I know I'm just a conspiracy nut, but is anybody fucking home?

     

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  8.  
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    Alan Gerow (profile), Aug 14th, 2009 @ 1:53pm

    Re:

    There's no such thing as a "competent politician" ... because the government system is one of growth. Laws don't expire, they accumulate. With the laws accumulates power. With the accumulation of power, people who wish to have power will flock to attain political positions. Then they will use those positions to secure more power.

    The solution is to vote out our current government, and stop there.

    Remove the positions of power, and the people who wish to have power over you will not have government as their jumping point. If people feel we need a federal government, then reduce it back to Constitutional levels, and require laws be regularly renewed. Then, they will be kept busy maintaining the current system of laws instead of simply adding more and more and more and more and more and more and more.

    And hold people in government positions personally accountable for their decisions, and to a higher moral code. If they wish to tell other people how to live their lives, then should prove that they are without any moral ambiguity in their own lives. The slightest sign they are human, and they should no longer be allowed to tell anyone else what to do. If they can't follow the laws they put in place, then why do they expect us to?

     

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  9.  
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    Anonymous Coward, Aug 14th, 2009 @ 1:54pm

    Can someone run for a political position on behalf of the pirate party in the U.S. ? Perhaps a senator or someone congressman. Another thing is I would like more transparency over how every individual voted on various bills and who was responsible for adding what portions of which bills. I don't know how we can get that accomplished.

     

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  10.  
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    Anonymous Coward, Aug 14th, 2009 @ 1:55pm

    This "revision of history" brief can be perused at:

    http://www.scribd.com/doc/18593475/DOJ-Brief-in-defense-of-ThomasRasset-Award

    Even a casual perusal quickly reveals that the brief is significantly less extreme than your comments suggest.

    I am still trying to understand your use of the term "revisionist".

     

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  11.  
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    Dark Helmet (profile), Aug 14th, 2009 @ 1:59pm

    Re:

    Vote Dark Helmet '10!!!

     

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  12.  
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    Kevin Stapp (profile), Aug 14th, 2009 @ 2:02pm

    "...so severe and oppressive as to be wholly disproportioned to the offense [or] obviously unreasonable."

    Really? A judgement is made that she cannot possibly ever pay (short of winning the lottery) is not wholly disproportional or obviously unreasonable? Since when is bankrupting a person for life not considered unreasonable?

     

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  13.  
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    Dark Helmet (profile), Aug 14th, 2009 @ 2:10pm

    Re:

    "Really? A judgement is made that she cannot possibly ever pay (short of winning the lottery) is not wholly disproportional or obviously unreasonable? Since when is bankrupting a person for life not considered unreasonable?"

    Well, if I'm reading the brief correctly, it's actually even more odd than that. "disproportional or obviously unreasonable" portion is not judged based on her ability to pay, but rather in relation to the actual damages caused by her action or inaction.

    So let's do some math.

    $80000 for each song divided by the $0 in actual damages that they proved she caused....well, according to my calculator the answer is "Error".

    So, there you have it. She owes exactly Error dollars per song.

    Idiots.

     

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  14.  
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    Ryan, Aug 14th, 2009 @ 2:12pm

    math?

    If I did that right, that means that the results of peer-to-peer sharing means that she shared each of her 24 songs with 64000 people. Doesnt really add up to me, Id like to see the proof in that assumption.

     

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  15.  
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    Ryan, Aug 14th, 2009 @ 2:12pm

    math?

    If I did that right, that means that the results of peer-to-peer sharing means that she shared each of her 24 songs with 64000 people. Doesnt really add up to me, Id like to see the proof in that assumption.

     

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  16.  
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    Anonymous Coward, Aug 14th, 2009 @ 2:13pm

    Re: Re:

    I'm serious, I think we should try to spread the word more about the pirate party. A lot more. They need more attention and we can tell everyone how courts are granting these unreasonable fines and how there is a reasonable party that wants to reduce intellectual property down to a reasonable timespan instead of the span of forever minus one day.

     

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  17.  
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    Anonymous Coward, Aug 14th, 2009 @ 2:14pm

    Re: math?

    So file sharing is causing more damage than the amount of money in circulation. It all makes perfect sense now, why didn't I see it before?

     

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  18.  
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    Anonymous Coward, Aug 14th, 2009 @ 2:17pm

    Re:

    I thought we were supposed to be voting the jerk offs out last time. We're just going to get another group of jerk offs in office. The ballot box isn't working, and I think I know why.

    In 1971, Ed Howdersheld said "There are four boxes to use when defending liberty: Soap, Ballot, Jury, Ammo. Please use in that order." Unfortunately no one is using their soap box anymore, at least not to the extent that someone in power can hear. I love Techdirt, but I doubt anyone in power actually reads it (I may be wrong, and it wouldn't be the first time). Start writing letters,take it to the streets, into the parks, wherever there are people congregating physically. Talk to them. The power of real people, real letters (not emails), and real protests is that they are tangible. Without that tangibility many politicians assume it's just a bunch of jackasses playing around on them thar innertubes. Gather people in places where they can't be ignored. Stage peaceful protests. Get the message out that the country has been sold to corporations and that we're not willing to accept that any longer.

    If that doesn't work, campaign to vote the people out of office. Voting people out of office before sending a clear message as to why is going on will do nothing but get the same sort of people in. That's why the soap box needs to be first. Basically it's like saying "We voted these people in because you were all jackasses for not listening to us". Until they can hear that message very loudly nothing will change.

    The jury box is harder to get in on, but it is very important. In 1972 the District of Columbia Circuit Court of Appeals stated: "[The jury has an] unreviewable and irreversible power...to acquit in disregard of the instructions on the law given by the trial judge...The pages of history shine on instances of the jury's exercise of its prerogative to disregard uncontradicted evidence and instructions of the judge; for example, acquittals under the fugitive slave law." Use "Jury Nullification" when the appropriate cases arise. Teach other people about it. It's not for every case (obviously), but it is a tremendous tool for trials by jury where one side may be technically correct by law, the other side is morally right (assisting slaves with escape would be an example..the statement above is specifically speaking about helping slaves escape even though it was against the law). Many times this will be looked back on fondly (such as with helping slaves) but are heavily criticized when they happen. People can't let that deter them. The bigger deterrent is that many people don't even know that this principle exists.

    The ammo box. It's what America used to break free in the first place. Without the support of other nations it would be difficult to use this box since the military has much better equipment than the average person. I don't recommend using this box unless you have some serious support and ALL other options have been exhausted.


    I could just be rambling because I'm short on caffeine on a very long and annoying day.

     

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  19.  
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    TW (profile), Aug 14th, 2009 @ 2:17pm

    Re:

    Hey AC - Let me know when you find a competent politician. I will not be holding my breath.

     

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  20.  
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    Kevin Stapp (profile), Aug 14th, 2009 @ 2:43pm

    Re: math?

    US GDP is about $14 trillion dollars. If the true 'damage' of sharing is song is $80k then sharing 175 million songs would equal to the GDP of the entire US. I'm willing to bet a helluva lot more then 175 million songs are shared across the US so if $80k as song is the actual damages why aren't we bankrupt from all these economic losses?

     

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  21.  
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    Anonymous Coward, Aug 14th, 2009 @ 2:44pm

    Re: Re:

    Ron Paul. There you go. He's even a physician. His son, Rand, is also running for senator and he's also a physician.

     

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  22.  
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    Anonymous Coward, Aug 14th, 2009 @ 2:48pm

    Re: Re: math?

    I think you found the cause of the economic crisis ;)

     

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  23.  
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    Dark Helmet (profile), Aug 14th, 2009 @ 2:51pm

    Re: Re: Re:

    "Ron Paul. There you go. He's even a physician. His son, Rand, is also running for senator and he's also a physician."

    My father, Papa Helmet, once told me, "Never, EVER trust anyone with two first names."

    To date I have yet to be able to prove that wrong...

     

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  24.  
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    Dan, Aug 14th, 2009 @ 2:51pm

    The final solution!

    Would be a total boycott of all product licensed to big media. When the market is gone so are the purveyors.

     

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  25.  
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    william (profile), Aug 14th, 2009 @ 3:09pm

    Re: Re:

    vote+1, oh wait, I am in Canada.

     

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  26.  
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    Silver Fang (profile), Aug 14th, 2009 @ 3:15pm

    Re: The fall of the Roman empire

    There are times I really wonder. They have the money. They have the clout. What do regular people have but one vote every two to four years?

     

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  27.  
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    PRMan, Aug 14th, 2009 @ 3:21pm

    Re: Re:

    "$80000 for each song divided by the $0 in actual damages that they proved she caused....well, according to my calculator the answer is "Error""

    On my calculator, the answer is infinity, so apparently they are going easy on her.

     

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  28.  
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    brian, Aug 14th, 2009 @ 3:22pm

    Luckily... it doesn't really matter

    Luckily... it doesn't really matter what the DOJ thinks in the long run... Only the judicial branch gets to rule on constitutionality.

     

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  29.  
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    Anonymous Coward, Aug 14th, 2009 @ 3:28pm

    Re: Re: The fall of the Roman empire

    Good point. Elections should be held more often and more should be done to ensure the integrity of those votes (see http://www.techdirt.com/articles/20090608/2201455173.shtml ).

     

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  30.  
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    ..., Aug 14th, 2009 @ 6:53pm

    Re: This will help in the future.

    Heh, that looks like it came from Nigeria.

     

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  31.  
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    Anonymous Coward, Aug 14th, 2009 @ 6:59pm

    Names please

    Mike, we know Jammie's name... How about sharing the names of these cultural terrorists? Let's make these fuckers a household name!

     

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  32.  
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    Thomas (profile), Aug 14th, 2009 @ 7:27pm

    DOJ is for business

    Since the **AA took over the DOJ, the people are the enemy. Business is the friend. The DOJ has totally moved to the side of **AA, since the bribes from the election got the **AA lawyers in to take over. Soon the DOJ will stop paying attention to such things as drugs and focus on terrorism as defined in people downloading music. Terrorists blowing up things is no longer their concern. Transferring weapons is no longer an issue, it's transferring illicit music that's the problem! Judicial branch is also open to bribes, so don't think the judicial will help.

     

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  33.  
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    Reed, Aug 14th, 2009 @ 8:54pm

    Re: We were always at war with infringers!

    I am still trying to understand your use of the term "revisionist".

    The justice implies that this case is somehow related to protection of IP BEFORE the Republic was even formed. Do I believe our founding fathers intended to detour private sharing of copyrighted material? Absolutely not! I think this judge is very much revising history in his own eyes.

    This is obviously farcical. Furthermore, the justice never reasons how a law that was only intended to stop commercial distribution of copyrighted material for profit is now being applied to sharing which does not produce profit or deprive the owner of their property.

    I understand this particular judge is not examining this rather only if the damages are unconstitutional. Still it is hard to keep a straight face when a law is clearly being misused to benefit wealthy claim makers.

    They offer no proof and just hide behind laws that were shoved down our throats on the pretense they benefited society. This is clearly not the truth.

     

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  34.  
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    Anonymous Coward, Aug 14th, 2009 @ 9:13pm

    You're stupid

    The Justice Department is not run by former RIAA lawyers.
    First off, lawyers are hired guns, they generally don't care who they're working for. So just because they worked for the RIAA one time doesn't mean they're going to do everything they can to help them.
    Second, you're proof that the DOJ is loaded with RIAA lawyers is like 5 names, out of an organization with 1000s of lawyers? Get a clue.

     

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  35.  
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    Azrael (profile), Aug 15th, 2009 @ 5:02am

    Re: Re: The fall of the Roman empire

    Guns and the will to use them maybe ?

    Remember, Democracy is two wolves and a sheep voting on what to have for dinner, Liberty is a well armed sheep.

     

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  36.  
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    Azrael (profile), Aug 15th, 2009 @ 5:04am

    Re: Re:

    Ah, how nice it would be in Utopia ! Now, back to our regular shithole.

     

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  37.  
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    Azrael (profile), Aug 15th, 2009 @ 5:15am

    Re: You're stupid

    Have you checked the positions in the DOJ hierarchy those 5 lawyers have ? Post back after you do it and will talk some more.

     

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  38.  
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    Anonymous Coward, Aug 15th, 2009 @ 8:03am

    Don't see the problem here

    without any evidence that it was ever actually shared

    Isn't this comment based on the defective "making available" jury instruction that wasn't used in the second trial. The jury found the plaintiff DID download or actually share the files. There doesn't have to be actual evidence of sharing, just more likely than not under the preponderance standard of evidence. We may not like the underlying law, but I don't see the problem here.

    Second, the charge of $80k does not seem excessive. The alternative you propose of $1.29 assumes no one downloaded the files at all, which seems pretty unlikely. In addition, tort law is quite comfortable with joint and several liability when there are multiple bad actors. If there were a thousand people sharing the same song, why not hold any one of them accountable for the sharing of everyone. If the other 999 had dropped off the net, everyone would have downloaded from the one user. Isn't this like two negligent plaintiffs shooting guns at the same defendant? Under tort law, being one of many to share the files is more than sufficient for proximate cause.

    this little change in the law was pushed almost entirely by entertainment industry lobbyists

    We still have to obey laws regardless of the motivation of lawmakers. Doctrinally, this is based on separation of powers. Judges don't get to second guess Congress, for good reason. Everyone would be trying to avoid speeding tickets because the city was motivated by money rather than a genuine desire for driver safety. The vast majority of laws are influenced by lobbyists, this is just the political process.

     

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  39.  
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    Dan, Aug 15th, 2009 @ 8:25am

    DOJ doesn't believe $80,000 Per Song Unconstitutional or Oppressive

    It would probably be cheaper to burglarize a music store though it may not be quite as convenient. If caught, first time offenders might get a month in jail or so, but at least they wouldn't spend the rest of their lives in suffocating debt. Not that I advocate that sort of thing, mind you, and it seems almost bizarre to make such a suggestion, but the consequences seem a whole lot less severe than downloading pirated music.

     

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  40.  
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    Reed, Aug 15th, 2009 @ 11:17am

    Re: Don't see the problem here, cause I am a tool

    "Second, the charge of $80k does not seem excessive."

    By your own reasoning of her sharing 1,000 songs it would be unreasonable (1000x1.29). Do you really believe that this award was "fair"? I doubt you do.

    It is also important to note that the way sharing works is that rarely would that many people ever connect to you, rather the file would be seeded by everyone who downloaded it. This means in reality she may have only transferred a full copy several times.

    Where did the original sample come from.... It wasn't an I-tunes song so were did she get it? If she didn't sample it herself they have failed to even find the person who actually "made" it available.

    As far as your comments about laws. We do not have to follow unjust laws that do not make sense. We do not have to put up with cities who force their cops to write tickets for revenue. Your learned helplessness sickens me.

    The vast majority of laws are pointless and useless and you defend them because some lobbyist pushes them through because "that's how the system works". The only thing more broken than our legal system is you.

     

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  41.  
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    batch, Aug 15th, 2009 @ 12:20pm

    Re: Don't see the problem here

    "Second, the charge of $80k does not seem excessive. The alternative you propose of $1.29 assumes no one downloaded the files at all, which seems pretty unlikely."

    It seems Unlikely?? Then why did they not simply prove that the files had been downloaded? That seems like a "likely" thing to do when you want to prove something. They've got this thing called "forensics" which uses "the scientific method" to "prove" or "disprove" things. Its not hokus pokus you dolt.

    I think its likely that a race of supermen live under my kitchen sink. Based on your brilliant logic, they obviously do.

     

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  42.  
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    Anonymous Coward, Aug 15th, 2009 @ 1:59pm

    Re: Re: We were always at war with infringers!

    correction, on the pretext they benefit society.

     

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  43.  
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    Anonymous Coward, Aug 15th, 2009 @ 2:01pm

    Re: You're stupid

    No, our evidence is the fact that the DOJ is making recommendations and decisions based on the will of the RIAA and not based on the will of the general public. The government is supposed to serve the public interest not some private interest.

     

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  44.  
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    Anonymous Coward, Aug 15th, 2009 @ 2:04pm

    Re: DOJ doesn't believe $80,000 Per Song Unconstitutional or Oppressive

    Cruel and unusual punishment?

     

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  45.  
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    Mike D, Aug 17th, 2009 @ 4:52am

    Re: Re:

    Actually, when any number divided by zero, the result is undefined in mathematics.

     

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  46.  
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    anon, Aug 17th, 2009 @ 8:33am

    let just take our counrty back

    lets do it right and just throw are country back in to cival war and take it back i hope that every one knows that the goverment is suppost to be of the people and for the people not for its self or for bussiness the Decleration of independence of the United States AMERICA We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. — Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

     

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  47.  
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    Anonymous Coward, Aug 17th, 2009 @ 8:48am

    Well, time to call my congress critters and tell them NOT to support Obamacare.

     

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  48.  
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    Alan Gerow (profile), Aug 17th, 2009 @ 2:04pm

    Re: Re: Re:

    Yeah, how nice it would be to live in a world where "if we only get the RIGHT people in government then everything would be better" actually worked.

     

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  49.  
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    steer, Aug 31st, 2009 @ 7:59am

    $80,000 is a Cheap Price for a License to Share

    Mike,

    The price for an iTunes song download is ~$1.29. However, that price does not convey a right to "share" that song with millions of strangers. How much do you think the rights holder might charge you if you asked him/her for the right to distribute millions of free copies of that song? I bet you the price for such a license would be far in excess of $80,000.

     

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

  50.  
    identicon
    Anonymous Coward, Apr 12th, 2010 @ 8:44pm

    jkersch

     

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


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