Is $9250 Per Song Unconstitutional?

from the we-may-soon-find-out dept

It’s well known that Jammie Thomas, the woman who lost her case against the RIAA for unauthorized file sharing was planning to appeal her decision — though, we questioned some of the wisdom behind her pursuing the case. She does have a point in questioning the instructions given to the jury, which say that “making available” is distribution when that’s still an open legal question with some rulings on both sides. The problem, though, is that the evidence that Thomas did participate in unauthorized file sharing is rather strong, which makes her appeal a lot less sympathetic. It looks like her lawyers may be realizing that and may be recognizing that the biggest point in Thomas’ favor is that nearly everyone seems to feel the $222,000 awarded for 24 songs ($9,250 per song) seems rather excessive. With that in mind, the lawyers have now asked the judge to overrule the fine as being constitutionally excessive. You recall, of course, that the constitution has rules against cruel and unusual punishment. Two years ago there was even a research paper that argued the rates set by the law for infringement were constitutionally excessive. A year ago, that theory was first brought up in court. It’s tough to see the court going for this argument, but it definitely would make the appeals process a lot more interesting.

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Comments on “Is $9250 Per Song Unconstitutional?”

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Anonymous Coward says:

Unjust Enrichment

In English Common Law there is a principle against “unjust enrichment”. This basically means that in tort one cannot collect more than actual damages as anything more would be unjust enrichment. In other words, tort can be used to recover damages or losses but not to “punish”. Since tort is only supposed to be used to recover losses and not as punishment, the level of proof required is allowed to be much lower than in a criminal case. In the UK this principle has been used to force banks to refund many of the fees in excess of actual costs they have charged as “punishment” to people who overdrew their accounts, etc.

Now, the US federal legal system is supposedly based on common law too, so there is a question of whether it is acceptable for corporations to use the tort process to exact punishment on people. That is what the criminal process with its higher level of proof is for. The jury in this case, acting on instructions from the judge, used the lower level of proof for tort cases to find liability but then assigned damages at a criminal “punishment” level beyond actual damages.

Anonymous Coward says:

Re: Unjust Enrichment

What about people who can’t pay? Maybe the RIAA could build their own prison for those people. Mitch Bainwol (RIAA Chairman and CEO) could be the warden and Cary Sherman (President of the RIAA Board of Directors) could be his assistant. The RIAA could “re-educate” the inmates. I mean, since we already have private companies running prisons for the state, this would just be a small step.

Anonymous Coward says:

Re: Re: Unjust Enrichment

this is just scare tactics gone wild, im pretty sure then again we never know. They did not expect file sharing to become so global and main stream. (I for one haven’t bought a cd since pulse). I think they started blowing things out of proportion and dramatizing the issue b4 it became so global and started with there trigger happy law suites to scare ppl from sharing.

now they actually have a revolution and they know its totally out of there control but they still act the only way they know how.

The Poor Ms Thomas got the short end of the stick and unfortunately its not looking good for her at all but as more ppl end up in her situation eyes will start to open and notice the unjustice (somehow i feel i borrowed this word from an other language).

But until then quite a few will end up in the same situation
she is in.

George Paul (user link) says:

Legal Question

/////She does have a point in questioning the instructions given to the jury, which say that “making available” is distribution when that’s still an open legal question with some rulings on both sides. The problem, though, is that the evidence that Thomas did participate in unauthorized file sharing is rather strong, which makes her appeal a lot less sympathetic.

This is a legal question – sympathy should not play into the outcome of the appeal decision. The purpose is to evaluate the legitimacy of the Judge’s instructions.

Anonymous Coward says:

Re: Legal Question

I remember a time when sharing or was it uploading was illegal but there was no problem with downloading (I am not sure how the laws have changed since).

a few years back i was using p2p software to get a symantec product they contacted my ISP gave them my IP and told them if i don’t stop uploading said program they would hold them responsible.

I was still downloading that file but there was no mention of of stopping me download.

now under the same logic (the above mentioned statements) if uploading is illegal then having the file in question in the shared folder is making it available to be uploaded, i guess that would make it “intent to distribute” and since distribution is illegal there for intent to distribute would be as well.

I hate to admit it but this gives validity to the instructions given to the judge.

i don’t have any law degree (so I wouldn’t be surprised if there is a flaw in my analysis) so feel free to point out any mistakes i have made.

CHRIS says:

Re: Re: Legal Question

What was the analysis? All I saw were a bunch of poorly worded statements laden with pronoun misusage about something you once did regarding something you once thought might, or might not have been, legal? As far as logic goes I think your entire post was entirely void of it.

Current laws state it’s legal to upload, but to make that uploaded file available to others is illegal, thus it’s being shared. Only when you begin to share copyrighted or un-licensed material does it become illegal. You are able to make as many personal copies (or backups) of any type of media you like, so long as it’s for the sole purpose of personal use. As soon as another party is given access to those copies, it becomes illegal.

When a good is sold it becomes the property of the buyer, and any form of usage is legally granted to the buyer so long as it is for personal use. The buyer can re-sell a good, but once it is sold the use of the product can no longer be had by any other individual or party except the person(s) who now own the good. If any duplicates of the good were made, but the original good was sold, then all duplicates outside the possession of the party who holds the ownership of the original good are no longer legally allowed. For example, if you owned a car(good) you can do whatever you like with it, and if there were a way to make a duplicate of the car(good) to keep on reserve in the event the original was lost, damaged, or by other means rendered incapacitated, the backup could then be used, so long as it remained for personal use. If you then sold the original car(good), any backups of the car(good) would then become illegal for you to possess and would need to be destroyed, or given to the new owner of the original car(good). If the original car(good) was lost, and could never again be recovered, then the backups would have to remain in the possession of the owner of the person(s) who owned the original car(good) and could not be re-sold as the original itself. In other words, if you lost the original you couldn’t re-sell the duplicate as a replacement.

What the RIAA wants everyone to believe is that the original is theirs, and will always remain theirs even though they’re legally bound to release the ownership to the consumer upon the purchase of the good. When you buy a car, the car is yours, not the company who made it. Once it is purchased they can no longer dictate what the car will be used for. Once you buy a car from Honda, they can no longer dictate what the car will be used for. If you want to replace most of the engine components to after-market goods, to increase performance you’re more than welcome to. If you want to scrap everything but the chassis and body, but replace everything else you can; and the same goes for digital media. If you want to change the audio format of a CD into an mp3 you can, if you want to upload it to a device for remote access, you can. If you want to create 100,000,000,000 copies for backup you can. It’s only when you make the alteration available to someone beside yourself, or obtain the alteration, that it becomes illegal.

Therefore, DRM and all the other anti-piracy devices that companies are putting onto CD’s should be illegal, as it restricts the legally allowed ability to create a backup of the original good. The company cannot dictate what the good will be used for once it has gone to market, other than the terms of use the owner has consented to upon the originating purchase.

As far as relevancy goes to the post about Jammie Thomas, if she uploaded any duplicate of an original she owned to a peer-to-peer network she is in the right. If anyone then downloaded that duplicate they are in the wrong. If she downloaded any duplicate of an original she is the wrong, unless she happens to own the original as well, even if she did not create the duplicate. Example: you can download and legally possess Nintendo ROM’s if you once purchased the original Nintendo game cartridge, even though the duplicate you’re downloading didn’t originate from the cartridge you owned.

So depending upon those set laws, she may, or may not be infringing upon them. If she is infringing upon those laws, then the company that is suing her cannot impose a fine that is unconstitutional, or “cruel and unusual.” Just as a judge cannot post bail for millions of dollars for a defendant who was arrested and detained for a misdemeanor charge, the RIAA cannot fine her more than the cost of the song it would have cost her for purchasing the cd it came off of. So the maximum fine should be no more than 24 x which would equal $80-$480 [2 to 24 cd’s (2cd’s @ 12 songs each, or 24 cd’s at 1 song each with an average price of $20 per cd)]. On top of that fine they could impose other fines if she truely had an intent to distrubite, which could only be proved by pervious violations, or if a mechanisim were institued that promoted the downloading of the legally uploaded content.

Chronno S. Trigger says:

Re: Re: Re: Legal Question

That’s all well and good except for one thing, the toilet paper document called the DMCA. For example, I can’t take my legally purchased XBox and put in a legally purchased chip so I can copy my legally purchased games to my legally purchased hard drive so I don’t have to sit threw the two minute loading screens. That would be reverse engineering, even though I didn’t do the engineering I’m just putting a chip in the box.

If you take one of the songs that you got from Napster, iTunes, Rhapsody, Urge, or whatever and turn it into something that can be used on any MP3 player, it’s illegal. The same thing would apply to your Nintendo analogy.

While I’m smacking down your arguments, The part about the Cd’s is completely invalid. You’d have to count digital downloads of the songs, not the Cd’s. She didn’t download the physical media just the songs. So that counts as $0.99 to $1.50, or $23.76 to $36.

bigaldepr says:

Re: Re: Re: Legal Question

Not exactly. You do not buy the music or software on the CD. You purchase a license to use the contents of the CD in the manner prescribed in the license agreement. For example if you purchase a music CD/DVD and you own a business. You cannot play the CD/DVD in your establishment for the entertainment of your customers. Use is limited to your personal entertainment. You cannot “legally” make all the backup copies you want if the license agreement limits the number of backups. There is no “law” except what is in the End Users License (EUL). Generally opening the package is considered acceptance of the terms of the EUL.

If the material is NOT copyright protected, the award of damages is limited to the lost revenue. In this case the cost of the songs if they were purchased legally. If you uploaded or otherwise made it available to others, this could include revenue from others that then downloaded the file. In the case of copyrighted material, the award can be the lost revenue plus a punative award for copyright violations. Still $9K per song is arguablly excessive.

Danny says:

And that is how the record industry works. Notice that they always have these figures on how many sales are lost to piracy every years but they never give a thourough explanation of how they came up with these figures (and when they do try to explain it said explanation is almost instantly refuted). It is to their advantage to keep the numbers obscure and ambiguous for these civil cases. Personally I would said that the damages at the most would be the price of the album.

For (I think) 24 counts of infringement let’s assume all 24 tracks are from 24 different albums. Most albums cost $20. $20 x 24 = $480.

Rob Blatt says:

Does anyone remember the argument that (I think) Mark Cuban made a while back when talking about Yahoo’s music subscription service? He said something along the lines of if Yahoo offers up all you can eat music for $5 a month, then music can’t be worth any more than that.

I am fearful that if the court decides that $9250 is too much, then the RIAA will be going after a set amount per song every single time, and it also will raise the amount of money they want in their extortion letters as well.

Douglas (user link) says:

Hell Yeah!

Getting fined $222,000 just shows everyone how retarded all of this is. It also shows how dumb most politicians are from hearing them support this. Then again, even if they made her buy all the albums of the songs she downloaded, I would think that would be cruel and unusual punishment. I would love to see the songs that she downloaded though.

DCX2 says:

Statutory vs. Punitive damages

The RIAA sued for statutory damages, which should somehow be related to actual damages. I believe one of the jurors was quoted as saying the value of $9250 was chosen to “send a message”. I interpret this to mean that the jury thinks they were supposed to award punitive damages.

Punitive damages are limited by the Constitution, but I don’t think statutory damages are since they must be related to actual damages.

Roykabob says:

Yes, it is excessive...

$9250/song is excessive. iTunes sells songs for 99¢ each. over the Internet. The defendant was found guilty of providing the songs to others over the Internet.

The RIAA should show how much profit it makes per song sold via iTunes, on average. Let’s say for the sake of argument it is 25¢ per song (probably an accurate number…high if anything).

Then the RIAA must show how many people downloaded songs from the defendant.

At 25¢ a song, that $220,000 would have to equal 880,000 song instances distributed. I highly doubt this mom distributed that many instances.

That’s how one proves damages. The RIAA must show damages and get awarded a sum that is in-line with those damages.

No one can just pull a sum out of the air.

Matthew says:

Re: Yes, it is excessive...

True, but the RIAA is still utterly pulling this # out of their collective ass. Every downoad does not equal a lost sale. Just because someone downloaded a song, does not mean they’d have bought the album it was on, or the single itself, when the option to “steal” it was there.

They have to put a penalty on the alleged thievery. I think the RIAA is stupid in this sense, and I refuse to purchase music because of their assinine methods, but if someone steals a loaf of bread and gets caught, the punishment can’t simply be a dollar for the loaf of bread. Then it becomes: if I steal and get away with it its free, or I steal and get caught and have to pay normal price.

$9k per song is rediculous, but, as the law stands, $0.99 per song is no punishment. I think maybe the retail price of the CD the song came on, per song, is more apporpiate so like $10-$12 per.

Kryptos says:

This is a perfect example of the root cause of almost everything in America. Attorneys will manipulate the system and squeeze every last dime out of it and let the rest of us pay for it in higher costs from tennis shoes to toast.

Besides that, the RIAA needs to learn to adapt their business model to the changing times or they will be left behind. Which I guess is fine with me as they are as crooked as they come.

Shohat says:

It is a must. Punishment must be unproportional.

This is actually a much broader issue – punishment must ALWAYS be unpropotional to the crime. Punishment must be unpropotional in order to eliminate the calculated risk when comitting a crime.
Currently, you can rob a bank or steal a candy, and you know that you gain something, and risk spending some time in prison (I’ve been to prison, it isn’t that bad) and a fine. This is not the kind of society you want.
When a person knows that if he steals a candy, his family will be burned alive and he will have both arms torn off, you will see a great drop in candy stealing. Coupled with the elimination of victim compensation (a stupid concept almost unique to the US), you get a society where people avoid being criminals, and people avoid being victims because it doesn’t pay off.
Regretfully, I think this is not a criminal issue, even though it should be, because it’s not that different from theft.

.2 Cents Worth says:

US Legal System

This entire problem can be traced back to the mess the U.S. legal system has become. “Enrichment” is the key word and unscrupulous lawyers have teamed up over the years to concoct out-of-this-world punishments to those who violate both questionable and legitimate laws. Healthcare is a good example. We’re paying through the nose for almost everything these days because of the mess tort has become. Our entire legal system is a mockery of justice.

RandomThoughts (user link) says:

Before you jump all over the legal system, remember that most of these judgements are determined by juries. Regular people, people like you and me.

Healthcare isn’t a good example. Did you know that 40,000 to 90,000 people die in hospitals every year due to hospital staff error? Many more have their stays extended due to these errors.

England is going through that right now, over 90 people have died in their hospitals becasue the staff was not washing their hands in between visiting patients.

Shouldn’t there be some quality control? I agree, the courts shouldn’t be that QC, but if no one else does….

William says:


The fines are high to stop/punish Mafia types from bootlegging thousands of copies of movies and selling them on street corners and flee markets. It is a shame that the jury didn’t realize that the excessively high fines are for institutional infringers. They really should have charged her more like 100 bucks per song. Unless we want to start charging people 125,000$ for speeding and 80,000$ for J-walking. This is so stupid.

Shohat says:

Re: Fines

William , you are actually correct.
If speeding and J-walking IS illegal, and you really want to prevent people from speeding and J-walking, and not just make them calculate their risks of being caught, you should give police permission to shoot at speeding drivers (after pulling over of course) and break J-walker’s legs.
Otherwise, your punishment is useless, because it simply does not deter people from committing crimes.

Anonymous Coward says:

f@#! the music industry

how is it her fault with the software company is the one that enables all file sharing by default. so any thing downloaded or added to your library is automatically shared without any consent of the user. with that said should clearly be the software developers who are to blame. if no ones realizes they are doing it but the company who wrote the program should be liable

Kirk (user link) says:

Burden of proof

I’d like to see the logs or whatever was used to substantiate the RIAA claims. I’d easily be able to argue against all point of facts they attempt to attest to.

For instance, why didn’t they (defendant) argue that spyware installed a sharing program they weren’t aware of? How about static vs dynamic IP addresses assigned by the ISP, how can they be certain one was actually pointing to her at a particular time, do they save ALL of their logs forever?

What about the possibility of software error that resulted in the alleged file-sharing?
How about the origin of said files, how do we know they weren’t recorded originally off the airwaves? – Which leads to another issue: is it illegal to share songs that were recorded off the radio, or is that illegal already?

Also, what about the defendant being able to show something to the affect that her software was configured to block all incoming ports which would have allowed file sharing, so this would make the RIAA’s claims bogus right there. If they then claimed they could still download the files, then the defendant would claim that this was a function of the software she was using, which was obviously defective (whether embedded in the router or firewall software).

I’m rambling now, I’ll stop…

Tempest says:


“Generally opening the package is considered acceptance of the terms of the EUL.”

I’m sure this has been debated/hashed out/whatever numerous times, but how is that legal? That’s like saying I’m bound by a mortgage contract by entering the bank or some other crazy scheme.

How can you be legally bound by a contract you never had a chance to read in the first place?

Chris Brand (user link) says:

Legal Question

You do not buy the music or software on the CD. You purchase a license to use the contents of the CD in the manner prescribed in the license agreement.

That’s very debatable, at least.

There’s at least one court ruling (in California, I believe) along the line of “if it looks like a sale, it’s a sale, even if claims to be a licensing agreement”. They looked at things like whether there was a single or ongoing payments and whether the provider of the work provided any form of updates.
Buying a CD is clearly a sale (I haven’t bought one for a while because I’m boycotting the RIAA, but I don’t remember agreeing to a licensing agreement last time I bought one anyway).

With a CD, it’s your tangible property, but there are restrictions on what you can legally do with it because somebody else holds the copyright. The general rule is “if it’s my property, I can do what I like with it” but if somebody else holds the copyright, there are some restrictions on what you can legally do with your property. Any action not explicitly restricted to the copyright holder by the Copyright Act (or restricted by some other law, of course) is something you are allowed to do with your property.

Even in the US, tangible property ownership is still regarded as more fundamental than “IP” ownership. I have n idea why people are so keen to accept the idea that “it’s still somebody else’s, even though I bought it”.

bigaldepr says:

Re: Legal Question

I agree that digital music is not really purchasing a license, software generally yes. You don’t really purchase the rights to music as Michael Jackson purchased the rights to the Beatle’s music either. It is copyrighted material and subject to “fair use” law. How to apply the concept of “Fair Use” to digital media, computers and the internet is the heart of the legal issue. The law is just way behind technology which leaves us in a black hole. RIAA wants a very restrictive interpretation of Fair Use, while the public has a much broader one.

I really like your point about, “I bought it, its mine.” I mean when you pay $20 for ten cent plastic disk, it is very insulting to have the manufacturer tell you how you can use it.

TSO says:

Strong evidence????

> that the evidence that Thomas did participate in unauthorized file sharing is rather strong

WTF??? YOU CALL THAT STRONG? A bunch of screenshots, logs, etc? Interpreted in a clearly biased way by a moron who has little clue? Thats’ freaking the WEAKEST evidence ever! I can craft such “evidence” by the megabyte, just give me the name. Especially given that absolutely no remnants of any filesharing software was found on her computer! Honestly, if that’s “strong evidence”, I certainly know how to get all my enemies jailed…

Debunked says:

Appeal on this basis is Uphill Battle

Not an impossible appeal but difficult for several reasons:

1. The law in question has been around since 1976 and no one yet has been successful getting it ruled unconstitutional
2. The damages are allowed by statute up to $50,000 per infringement. This jury did not test the upper range of the awards.
3. Congress passed the law with defined statutory fines precisely because it is so difficult to prove actual damages. Because the legislature made that determination and because the legislature expresses the will of the people (that’s why you have to vote) then the judiciary is normally going to be extremely hesitant to just overthrow the will of the people expressed through the legislature and the will of the people expressed through a jury. One can’t rule out an activist judge who doesn’t have this deference to the legislature but if the judge is too activist then at the next appeals level it would have an extraordinary level of scrutiny.

Chris Brand (user link) says:

Legal Question

“Fair use” does make things a little more complex.
I own the tangible property, which gives me the right to do pretty much whatever I like with it.
Except that copyright law reserves some of those rights for the copyright holder if the tangible property in question is a copy of a copyrighted work.
Except that fair use gives me the right to do some of the things that only the copyright holder is allowed to do without their permission.

So “fair use” is the exception to the exception to the rule that you can do what you like with the things you own. Ain’t the law grand ?

Gerry says:

The jury was from Duluth for God’s sake!

Many of these people handing out the sentence never owned a computer. They didn’t want to look backwoods or out of touch and the prosecutor made them feel that this was such a huge deal they had better deal with it harshly. So they did, not wanting to look like they had no clue and fall into the category of 75% of this country.

What worries me is that the RIAA can basically wreck anyone’s life. The person does not even have to do anything wrong, just be suspected. Similar to the Gestapo tactics Nazis used.

So, if I can record a song off the radio or a TV show, is the one putting the information out there responsible or am I responsible for recording the information? With that set of arguements, McDonalds is certainly liable for 100,000 heart attacks, Winchester is liable for the deaths of countless 1000s, but the guy who ate the burgers and the guy who pulled the trigger takes no responsibility?

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