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.

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Tenenbaum Dinged $22,500 Per Song; $675,000 Total

from the and-onto-the-appeal dept

After admitting flat out yesterday that he downloaded and distributed songs using file sharing software, and that he lied about it, there wasn't a question of whether or not Joel Tenenbaum would be found guilty. In fact, the judge even said that the question wasn't even at issue. The only thing the jury had to work out was how much the damages would be, and they didn't take long at all, awarding $22,500 per song, or a total of $675,000. While a lot less than what the Jammie Thomas jury awarded, it's still a hefty chunk of change.

I've already expressed my distaste for how this trial was handled by Nesson and "Team Tenenbaum," but honestly, if he was going to just admit that he did it, it's unbelievable that he didn't just settle earlier when he had the chance. The only reason to go through with this is if the entire purpose is to create a later constitutional challenge on the statutory rates -- which many assume was Nesson's plan all along. However, if that's the case, is this really a good test case for that? Gleefully ignoring the law isn't the sort of thing that I think many judges/justices will find endearing. If this case does move up the appeals chain, one would hope that a better team of folks will handle Tenenbaum's appeal, and focus on the real legal issues. Of course, even before the appeal, it appears that Judge Gertner is planning to review whether or not the amount appears to be unconstitutional. It seems that particular ruling will be a lot more important than what the jury had to say.

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As Jammie Thomas Seeks New Trial, RIAA Claims (Incorrectly) That She Distributed 1,700 Songs To Millions

from the can't-stop-the-lying dept

This will come as a surprise to just about no one, but Jammie Thomas' lawyers have pointed out that the $1.92 million verdict against her is excessive, and is asking the judge to either throw out the award, lower it to the statutory minimum or grant a new trial. That was pretty much expected. What's odd, however, is the note at the very bottom of that article, concerning the filing that the RIAA made to the court. The RIAA keeps insisting that it just wants to settle the case, but if that's true, it seems weird to then attack Thomas in court again, but that's what the filing seems to do. It suggests that Thomas (despite this whole process) must still be sharing songs and that the court needs to issue an injunction barring her from doing so. While we've said that there appears to be ample evidence that Thomas used file sharing programs (and that she shouldn't have let this case go to trial), it would be quite surprising if anyone had any evidence that she was still doing this. As far as I know, the RIAA has not presented any such evidence at all. Demanding an injunction, then, seems quite strange.

On top of that, the RIAA appears to falsely claim (or the AP reporter misquoted the RIAA) that Thomas "distributed more than 1,700 songs to millions of others through the file-sharing system Kazaa." That may be true, but it certainly was not shown in court at all. The RIAA only named 24 songs she was charged with sharing, and then did not present any evidence that she actually shared any of them with anyone other than the RIAA's own investigators. The claim that she "distributed more than 1,700 songs to millions of others" was not proven at all, and in fact this entire new trial was because the judge originally made the mistake of assuming "making available" meant distribution. It does not. For the RIAA to misstate this point is really quite odd.

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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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California Video Game Law, Once Again, Found Unconstitutional

from the try-try-again dept

Some California politicians keep running into a pesky obstacle: The US Constitution. Despite court after court across the country finding bans on sales of violent video games to minors to be unconstitutional, "think of the children" politicians continue to try and implement them. In California, legislators passed such a ban and, predictably, it got tossed out by a court. Led by Governor Arnold Schwarzenegger, the state appealed the ban to an appeals court, which -- you guessed it -- has ruled that it's unconstitutional. But the bill's author is undeterred. He wants the state to appeal the ruling to the Supreme Court and waste more of the cash-strapped state's resources to find out what we already know, but apparently bears repeating: these video game bans are unconstitutional.

Carlo Longino is an expert at the Insight Community. To get insight and analysis from Carlo Longino and other experts on challenges your company faces, click here.

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Governator Wasting More CA Taxpayer Money On Unconstitutional Violent Video Game Ban

from the terminate-this-wasteful-spending dept

At last count, at least 10 states had passed laws banning the sale or rental of violent video games to children, and every single one of them has been thrown out as unconstitutional. At this point, any state that passes such a law is knowingly throwing away taxpayer money to defend the law in court -- and, for the most part they're doing it to pander to the electorate, so they can talk about how they "protected the children" despite more and more evidence that violent video games aren't a threat to kids.

Perhaps the most bizarre of all of these state laws is the one in California, where our governor starred in numerous violent films. Yet, Schwarzenegger has been at the forefront of supporting this law. After a lower court followed all those other states in throwing out the law as unconstitutional, the Schwarzenegger administration quickly appealed, and the new case is set to begin this week, with most noting that it's unlikely that California will somehow buck the trend and get the law approved. Instead, we get a waste of taxpayer money (in a state that's going bankrupt) so that an action hero of a ton of violent films can claim he's "protecting the children" from viewing a little show violence.

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Anti-Online Gambling Law Challenged In Court

from the but-we-need-to-protect-our-ports dept

A year ago, as part of a larger bill that was supposed to be about "protecting our ports," Congress banned online gambling. While there's some back and forth over the law (and some politicians seem interested in changing the law), representatives of the gambling industry have gone to court to get the law declared unconstitutional, violating an individual's right to gamble in the privacy of their own home. The judge said that she expects to rule within 30 days, so it should be a relatively quick turnaround -- though, it's almost inevitable that a series of appeals will follow no matter what the outcome. So don't expect any final outcome on this question for a few years. The Justice Department, of course, has no problem with the law and is asking for the case to be dismissed, even if they haven't even bothered to enforce the law (yet).

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