Obama Administration, Once Again, Says $222,000 For Sharing 24 Songs Is Perfectly Reasonable

from the oh-really? dept

This shouldn’t be seen as much of a surprise at all, given that the Obama administration previously supported the $1.5 million verdict against Jammie Thomas-Rasset for sharing a mere 24 songs. However, now that an appeals court has reverted back to the original $220,000 ruling (procedural reasons…), and Thomas-Rasset has filed to ask the Supreme Court to hear the case, the Obama administration is back again, saying that there is nothing wrong with $220,000 for 24 songs. The argument is basically what you’d expect. In short: Congress set the statutory rates, the record labels asked for statutory damages, and thus nothing in that range should be considered too high.

The administration does have a point that there is not a real controversy between different circuit courts on the issue at play here, and thus there may not be a need for the Supreme Court to get involved. After the appeals court ruling, we predicted that the Supreme Court would refuse to hear this case, and that still seems likely. That doesn’t mean that there aren’t problems with the government’s analysis. Its focus on using a Supreme Court ruling from a century ago (“Williams”) which covered an obscure issue not directly relevant, still seems problematic to me — but not so problematic that the Supreme Court is likely to weigh in.

Statutory damages are a massive problem with copyright law today. They are way out of proportion with any actual harm, and thus do raise considerable questions, that might amount to interesting Constitutional challenges. That doesn’t mean that this case was the right case (in fact, it has many problems). Even so, it’s a bit disappointing to see the Obama administration weigh in at all on the issue, giving a de facto thumbs up to massive and ridiculous statutory damages. The basic conclusion of “Congress decides, and that’s good enough” is a real problem:

That public interest cannot be realized if the inherent difficulty of proving actual damages leaves the copyright holder without an effective remedy for infringement or precludes an effective means of deterring further copyright violations. The statute reflects a legislative determination of the range of assessments necessary to vindicate those public interests, see 17 U.S.C. 504(c), and Congress’s judgment as to the appropriate amounts is entitled to deference.

If the administration was interested in true leadership in fixing the problems of the copyright system, it would not condone such clearly ridiculous awards. Doing so merely confirms that it remains focused on helping out its friends in legacy industries, rather than reflecting what is actually best for the public.

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Comments on “Obama Administration, Once Again, Says $222,000 For Sharing 24 Songs Is Perfectly Reasonable”

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Anonymous Coward says:

it’s perfectly reasonable to them for three reasons

a)they are not the ones having to pay it

b)it is not their lives that have been/are being devastated

c)they have to go along with what the entertainment industries want because of the amount of financial backing given to the Obama Administration. they wouldn’t do anything to jeopardize that, would they!

Josef Anvil (profile) says:

Re: Could I borrow someone's fax machine?

I need to fax over the text of the 8th Amendment someone in Washington D.C.

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

There is nothing wrong with this case. This is the perfect case to go to the Supreme Court for violation of the 8th Amendment. Because if piracy is as widespread as everyone says it is, then there are A LOT of people who should be fined more than 5x their annual income for infractions that occur daily.

Donnicton says:

Re: Re:

What makes it even sadder is that they say this while at the same time being completely oblivious to the disconnect between this type of infringement and, say, local DJ radio jockey playing a song in public without a license.

DJ gets what, a five grand fine? If that? If anyone even bothers to report him?

John Q Public sitting at his home downloads a song? Maybe it gets auto-shared to a couple of people by the program he uses to download it? Cut off his internet and bankrupt him three generations down!

Anonymous Coward says:

Re: Re:

It makes sense if you think about it the way congress did when drafting it. This law was designed for commercial infringement, as in someone making a business out of selling someone else’s works.

So if some company sold an untold number of DVDs over 5 years before anyone became aware of their counterfeit movie distribution ring then it makes sense to not make the victim have to figure out exactly how many movies they sold. You make large fines to deter these kind of criminal organizations and to make up that lost income.

The problem of course is these same penalties are being applied to a lady who downloaded 24 songs. Because of the way bittorrent works she also distributed those songs, but it was not her intent or a source of profit. So she saved herself ~30$ and now owes hundreds of thousands.

So while these fines may, according to the Gov, deter others from downloading this is certainly not the type of “criminal” they were designed for.

bob (profile) says:

Uh, that's why it's called punishment

All of the losers getting these judgments had a choice. They could have used a legit service from companies like Apple, Amazon or others. They could have paid 99 cents for each song but they chose to be cheap and to stick up their middle finger to the artists.

This is the nature of punishment. Speeding tickets cost more than regular road tolls. People go to jail for shoplifting.

Of course the numbers are going to be large. They’re meant to hurt. That’s why they’re called punishment.

Anonymous Coward says:

Re: Uh, that's why it's called punishment

You are unlucky to 100 fold the damages you incurred for shoplifting, let alone 10 thousand fold which is the case (or more) with piracy. Usually you will get a slap on the wrist and banned from the shopping center, or a few nights in jail.

Seriously the music would have cost $23.76, and he gets slammed for $220k. Nothing about that is reasonable.

fed reality says:

Re: Re: Uh, that's why it's called punishment

Also shoplifting is a criminal charge brought by the state which requires a jury judgement of the level “beyond a reasonable doubt”.

Sharing songs is a civil judgement that sometimes has a jury, but cases could be made through judge alone. The standard for guilty ruling is 50% proponderance of evidence- meaning that it is 50% more likely than not likely guilt exists.

So in the end cases like Jamie Thomas’ are based on the fact that she was just over 50% likely to have committed a crime. She was never judged on the criminal standard of beyond a reasonable doubt so this interpretation that she would have been guilty under a criminal trial is more akin to Hollywood and RIAA disinformation efforts.

This is also why the penalty for a civil action should always be lower than a criminal action, since there is a much lower bar and threshold of evidencial proof required. True she will not go to jail for one year, but never having financial stability in your life again might as well be a jail sentence for longer than one year and given a choice…who knows…

If the Supreme Court does not take the case, her best move might be to leave the United States and never return to forever face life crippling debt and a corrupt U.S. Hollywood run administration.

Anonymous Coward says:

Re: Re: Re: Uh, that's why it's called punishment

She had 3 juries. They all found her to be a lying sleazebag.

You never see Mike Masnick write articles about what a lowlife she is though. Why? Because Mike Masnick loves piracy. And he writes articles all the time proving exactly that. But he’s still too ashamed to admit it.

JMT says:

Re: Re: Re:2 Uh, that's why it's called punishment

“You never see Mike Masnick write articles about what a lowlife she is though.”

And why would you expect anything like that here? That’s just a stupid suggestion from someone desperate to distract from the actual topic of ridiculously disproportionate punishments. You know you can’t give any rational reasoning for this.

PaulT (profile) says:

Re: Re: Re:2 Uh, that's why it's called punishment


Because unlike whining tossers like yourself, he actually has a point to talk about, and Thomas’ character is irrelevant. The issue at hand is how ridiculously disproportionate the fine is for the action committed. That’s it. Whether Thomas is an angel of unsurpassed innocence or a criminal mastermind secretly responsible for organising the entire east coast mafia, that’s irrelevant to the issue at hand. You may be incapable of addressing any issue without lies and personal attacks, but thankfully others have a IQ over room temperature and able to discuss only the facts.

What’s sad is that your anger at her seems to be directed solely at the fact that she is daring to fight back rather than merely bow down to the ridiculous demands of your corporate idols. She demanded a fair trial before punishment. While this might be shocking to your tiny mind, there’s nothing bad with that. If the resulting fine had been fair – up to, say, a maximum of $2400 – then this would be over and nobody would be talking about this. Thomas would have paid up, and that would be it. That’s far more money than her actions reasonably lost any record label or artist (100 times the retail value of the songs), and it’s a fair punitive damage for the actions taken. But, you got greedy, and now she has no choice other than to fight back – why not, since you destroyed her life anyway with that ridiculous original fine. For this, you attack her personally.

Once again, you’re a pathetic piece of human excrement, and the fact that you try to take the high road while lying about other people directly to them just shows how slimy and pathetic you truly are.

PaulT (profile) says:

Re: Re: Re: Uh, that's why it's called punishment

I’m not sure how US law works, but my understanding in the UK was that while such punishments are available, they’re only meant for repeat or serious offenders. First time offenders might only get a caution or a fine, but someone who’s, say, caught shoplifting while on probation/parole or already having been caught doing the same thing 10 times might get the maximum.

That’s how I understand how it’s meant to be used though, not sure about practice.

ltlw0lf (profile) says:

Re: Re: Re: Uh, that's why it's called punishment

You can get a YEAR in JAIL for stealing 2 CDs. It’s just music.

Actually, you can’t. In most states, stealing a CD is considered a petty theft charge. Unless there was some burglary involved (at which case it does become a felony,) you are likely to be released with a commercial trespass warning and a misdemeanor ticket within a couple hours of your arrest. If you serve any time, it will likely be less than a month, though some judges may elect for higher if you are a repeat offender.

Of course, burglary charges are possible, but that is only if you entered the store with the intent to commit theft or a felony…which is often harder to prove, especially in shoplifting cases where it is usually a crime of opportunity/spur of the moment thing. Usually if you have money on you or the means to buy the item you stole, you won’t get charged with burglary because the intent to steal isn’t there (except if you confess that you went in the store to steal something.)

ltlw0lf (profile) says:

Re: Re: Re:3 Uh, that's why it's called punishment

Strictly speaking, you can go to jail for misdemeanors. The jail time just can’t exceed 1 year, and you won’t be going to prison.

Yes, you can go to jail for misdemeanors. It is pretty rare though for petty theft/shoplifting, unless you are a repeat offender or there are other circumstances. Usually it is cite-and-release after they spend a couple hours in the detention area (if they aren’t cited at the store.) That is if the store keeps working cameras and the crime is caught on video or the store is willing to have their loss prevention officer testify in court and is willing to do the citizen’s arrest (as with misdemeanors, officers cannot arrest unless they witness the crime, unlike felonies.)

I hear its even worse now here in California with the move of less-violent felons into the county jail system to reduce overcrowding in the state prisons. Which has caused more overcrowding in the jails, resulting in more releases of the petty crimes.

PaulT (profile) says:

Re: Uh, that's why it's called punishment

“All of the losers getting these judgments had a choice”

I agree, and if the system was set up to give them a fair hearing, due process and supply punishment proportional to the crime committed, we wouldn’t be arguing. But, your favourite corporations decided to try and make a ridiculous example.

“Speeding tickets cost more than regular road tolls.”

9075 times as much? You’d be a moron if you thought that was proportional punishment. Oh, sorry, it’s you bob – please continue…

(Quick maths – 220,000 (the fine) divided by 24 (the number of songs) multiplied by 0.99 (the retail price per song) is 9075)

“Of course the numbers are going to be large. They’re meant to hurt.”

Except they won’t. Whether it’s $1.5 million or $220,000 she almost certainly will never be able to pay the money, nor the court costs. The RIAA have pissed away many, many more times the amount of money they actually “lost” by these downloads by fighting this case, and the market has changed completely while they work out exactly how much money to scapegoat this person with.

I can guarantee you that fighting this case has lost the RIAA more than Jammie Thomas ever could by her original actions. Hell, I personally stopped buying major label music as a direct result of this and other lawsuits before it (among other factors) – the lost purchases from me in the first 2 months alone accounts for as much money as she caused them to “lose”, even if you assume that 5 people downloaded each song for her and those represented lost sales.

RJ Parker says:

Re: Re: Uh, that's why it's called punishment

The labels probably wouldn’t even pursue these suits if the government weren’t so “gung-ho” in their support for disproportionate punishment. We need to recognize the government as the bully here and I also want to agree with you that this is going to eventually hurt the mainstream labels but then again, none of the artists on those labels are starving anyway. Let’s see the government step in to defend a small artist who is unsigned, whose music was downloaded. Let’s see them award him $220,000 for 24 songs. Yeah right…

MrWilson says:

Re: Re: Re: Uh, that's why it's called punishment

According the official understanding of the Department of Justice, as informed by the RIAA lobbyists, there’s no such thing as “a small artist who is unsigned.” If they aren’t with the big labels, they’re hobbyists without lobbyists. After all, hobbyists don’t make campaign contributions…

PaulT (profile) says:

Re: Re: Re:3 Uh, that's why it's called punishment

“Try 1700+ songs.”

No. If she definitely downloaded that many, why weren’t they included in the case? Why were 24 songs and 24 only presented to the court? Could it be that they didn’t have the evidence to include them? Then it’s an claim, not fact. A claim they made to make morons like you think there had to be more to the story and reject the facts in front of you.

Sorry, I don’t take unproven claims from people making accusations as proof of anything. I go by what’s proven in court, and what’s been proven is 24 songs. Period. I’m sorry if your irrational bitter hatred of a woman you’ve never met isn’t enough to convince the rest of us that this is a just punishment, but then most people go with facts, not you currency of baseless claims.

“And if they were each downloaded a mere 10 times, that would be over $17,000 retail.”

And if they were hamburgers, I could have one for dinner tonight.

Even with your inflated figures, pulled from the recesses of your own ass, she was being given a punitive fine of over $200,000 above any damages she caused, which would still be a little excessive. Yet, it’s not been proven that any damage whatsoever, let alone anything like that figure.

This is why your arguments always fail. You can’t address reality, so you have to invent a fiction, a strawman to attack. Pathetic.

“And she lied in court.”

…and you constantly lie here. If only you could keep to the facts instead of believe everything your RIAA masters claim, you’d understand what people say better.

JMT says:

Re: Re: Re: Uh, that's why it's called punishment

Those are excellent questions! Those are questions that should definitely have been answered by those demanding (and defending) such huge fines. Except they can’t. They have no frickin’ idea! Can you think of any other situation where you can be punished so harshly for harm that can’t be proved?

Anonymous Coward says:

Re: Uh, that's why it's called punishment

There should be such a thing as the punishment fitting the crime.

Around where I live, a speeding ticket will cost you from ?60 (minor speeding infraction) to ?2500 (severe speeding infraction). If you make too many severe speeding infractions, they take away your driver’s license.

And this is a potentially fatal crime we are talking about here, not the infringement of pseudo-rights, the consequences of which – beyond the lost sale – are still open to debate.

cpt kangarooski says:

Re: Uh, that's why it's called punishment

Your comment might have been correct, but for one small flaw: they’re not punishment. Damages for copyright infringement are merely compensatory, meant to repair the harm caused to the plaintiff copyright holder. Congress could have made a provision for punitive damages (damages meant as punishment) but chose not to. The courts aren’t free to add them.

This is obvious in the case of actual damages and profits; statutory damages are merely available for cases where copyright holders want a shortcut to calculating them. It’s a bit like workers comp. that they may be getting abused and misused doesn’t change what their character is intended to be, and how they ought to be applied, however.

This is a well-known and longstanding feature of US copyright law, and was discussed as recently as a few years ago in the Viacom case. You can read what the court there had to say about its rejection of punitive damages here.

tl;dr: No, they’re not punishment, not called punishment, not meant to be punishment, not legally allowed to be punishment. You’d know that if you looked at the relevant law and had an honest bone in your body.

Lowestofthekeys (profile) says:

Re: Uh, that's why it's called punishment

You’re missing the bigger picture bob. Speeding tickets and copyright fines were implemented differently. Both act as deterrents, but copyright fines were pushed by corporations.

So tell me, is it okay that an entity, which cares for nothing more than a steady revenue, has the ability to influence law?

Mike Masnick (profile) says:

Re: Uh, that's why it's called punishment

Uh, that’s why it’s called punishment

Actually, it’s NOT called punishment, which is a key part of the legal issue. If it was noted that the award was “punitive” then it would almost certainly be illegal. The nature of copyright law is supposed to make the hurt party whole, and not to create punitive damages. That’s actually a key part of what they’re arguing about.

Anonymous Coward says:

Re: Re: Uh, that's why it's called punishment

The nature of copyright law is supposed to make the hurt party whole, and not to create punitive damages.

Statutory damages are in lieu of compensatory damages. You might want to research that one some more. I know how much you love data and facts. You wouldn’t want to publish something that was inaccurate about copyright law. /s

Anonymous Coward says:

Re: Re: Re:2 Uh, that's why it's called punishment

Compensatory damages are also not meant to be punitive. They are meant to compensate the victim for the loss. As such, they should never exceed the amount of actual loss the victim suffered.

Right, and statutory damages are not compensatory. Hence, Mike is wrong to say otherwise.

G Thompson (profile) says:

Re: Re: Re: Uh, that's why it's called punishment

No they are in lieu of harm.
In other words it is under the US stupidity of statutory damages that harm is considered to of occurred no matter what the actual facts state.

In other words the element of harm has been taken out of the formula so that harm is by default proven and that damages to fix that harm have been placed at a statutory maximum that is so egregious that it beggars belief.

No other country does this, no other country specifically states, or is allowed to under their own laws, that if you somehow based on more than 50% probability have breached a civil law (with intent or otherwise) that might have caused no harm whatsoever will have to pay (for the rest of your life and beyond in some cases) a, and lets call it as it really is, a FINE to some private party with no possibility of even serving time in lieu (like in criminal fines etc)

What I find really interesting with all this is that the person in debt for this supposed harm hasn’t basically taken it upon themselves to enact revenge of other forms, be they legal or highly violent since with these sorts of FINES there is no reason for them not to since when it boils down to it they are ruined for life either way, though if they go the violent route at least the publicity could be worth it. Civil wars have been begun for less.

This is why the public interest is absolutely not served (as your DoJ state it is) by these sorts of egregious measures/damages since the public can only take so much non equitable treatment, and if its harmful like they say it is to ‘the public’ for these acts to keep occurring. MAKE IT A CRIMINAL OFFENCE! Until then stating it is in the public interest is basically hypocrisy.

Josef Anvil (profile) says:

Re: Re: Uh, that's why it's called punishment

Punitive or compensatory, I don’t think it matters if the fine is excessive and therefore in violation of the 8th amendment.

I’m no legal scholar, but it doesn’t take a law degree or a PhD in economics to figure out that $220k is far more than the defendant could repay.

Anonymous Coward says:

Re: Re: Re: Uh, that's why it's called punishment

Punitive or compensatory, I don’t think it matters if the fine is excessive and therefore in violation of the 8th amendment.

I’m no legal scholar, but it doesn’t take a law degree or a PhD in economics to figure out that $220k is far more than the defendant could repay.

The 8th Amendment is not the issue since it’s not a fine. These are 5th Amendment Due Process challenges.

Anonymous Coward says:

Re: Uh, that's why it's called punishment

“All of the losers getting these judgments had a choice.”

No, they didn’t. Something you glaringly overlook.

“They could have used a legit service from companies like Apple, Amazon or others.”

Here’s a clue for you, bob, at the time NONE OF THOSE SERVICES EXISTED. The only reason they exist, or came to be, is because of the illegal ways people were getting music. The record labels REFUSED to allow people to purchase mp3s. They refused to let people rip their own mp3s and store them online. So the people did it anyway and in relatively large numbers, to the point that the studios had no choice but to create a legal alternative. And even then, they didn’t want to do things in anything that would resemble a reasonable manner. Apple literally strolled in and did all the work, and the labels tacked on catches like DRM. While cutting off any other attempts to create an online store to purchase music (until recently), and it’s for that reason that iTunes grew to be as big as it did.

“They could have paid 99 cents for each song but they chose to be cheap and to stick up their middle finger to the artists.”

No, they couldn’t have paid 99 cents. There was no legal alternative at the time. None whatsoever.

And stop bringing up the artists. That’s a fallback for an indefensible (using logic or reason) position. People support the artists. They don’t support the labels. And the labels cheat the artists at every turn.

“This is the nature of punishment.”

No, the nature of punishment is to educate one on the consequences of their negative actions, and is done in a manner directly proportional to their action.

As others have pointed out, the physical theft of two cds (holding the equivalent 24 songs) is at maximum a year in prison and/or a $1,000 fine (ticket). Usually, it results in no jail time and less than $500 ticket (and more often than not it’ll be $250 tops). All of which is proportional to the offense.

“Speeding tickets cost more than regular road tolls.”

A speeding ticket depending on how fast you were going is usually like $300. (I should know, I got one recently for doing 30 over in a 30 MPH zone. And my actual ticket was only $260.) So yes, a speeding ticket cost more than a road toll, but it is relatively proportional, and keep in mind that speeding in a vehicle has the potential to harm others (in a manner that can result in death).

“People go to jail for shoplifting.”

No, people CAN go to jail for shoplifting. But they rarely do. The usual result is a fine (in the form of a ticket).

“Of course the numbers are going to be large. They’re meant to hurt. That’s why they’re called punishment.”

In the words of Dr. Cox (from the show “Scrubs”), “Wrong, wrong, wrong, wrong, wrong, wrong, wrong, wrong.”

Numbers are NOT meant to hurt, they’re meant to punish as is directly proportional to the offense. Cause people irreparable financial harm, that they can’t even afford to begin with, is NOT punishment in a way that any sane/reasonable person could call reasonable.

In conclusion, like usual, you’re an idiot and should better educate yourself before you spew what will be readily ripped apart by myself and others.

Anonymous Coward says:

Re: Re: Uh, that's why it's called punishment

Here’s a clue for you, bob, at the time NONE OF THOSE SERVICES EXISTED.

Her’s a clue for YOU, you moronic piracy apologist:


Jammie Thomas was sent a cease and desist letter in 2005, and CHOSE to blow it off.

iTunes was available for both Mac and PC users in 2003.

Anonymous Coward says:

Re: Re: Re: Uh, that's why it's called punishment

Oh my. Thank you kind sir. For that one singular example which quite obviously DID NOT negate anything else the AC you replied to said.

Well done. You’ve effectively proven everyone wrong. /s

Your poor deluded copyright maximalist you. It’s nice to see you advocate for extreme punishments. I hope you never get caught speeding. Because if you approve of extremely disproportionate for sharing a song that causes no provable harm, you should have no problem having a foot chopped off and your car compacted for speeding.

Ophelia Millais says:

Re: Re: Re: Uh, that's why it's called punishment

Both of you, this is a red herring.

The industry’s position is that copyright law doesn’t make an exception for when there are no legal alternatives to obtaining the content. From their point of view, it’s irrelevant whether and when they offered the music in physical formats, or online, or in the file formats people wanted. The courts have indicated that the letter of the law clearly doesn’t allow for an exception, so none can be assumed.

It doesn’t matter if she had a choice of downloading legally or not. She’d be in the same boat either way.

Anonymous Coward says:

Its focus on using a Supreme Court ruling from a century ago (“Williams”) which covered an obscure issue not directly relevant, still seems problematic to me — but not so problematic that the Supreme Court is likely to weigh in.

Williams is still good law. What specifically about it “seems problematic”? Do you actually have an argument as to why Williams is a problem, or are you just saying that because of how old the case is it’s inherently suspect. If it’s the latter, that’s just unsubstantiated FUD. “But that case is really old!” is not a valid argument.

MikeW (profile) says:

Re: Re:

He is not saying anything about the Williams case on its own merits, only about its use in this issue.

My cursory reading of the link seems to suggest that it is about a business overcharging its customers, not to customers making off with its wares. The difference is that the business tends to have much more power in the marketplace than an individual customer. In the case of Williams, it was the railroad that had the only route from point A to point B, and in the present case, it is the record companies that have a government granted monopoly to collect from customers and likely to also shortchange artists. In one case the one in the position of power was being charged for gouging the weaker party, in the other, it is the one in the position of power that is completely destroying the weaker party.

If we want to get more nuanced, the sisters in the Williams case most likely didn’t have another readily available way to get home and so did not have any real choice but to cough up the extra money. The record labels have a wide variety of different ways that they could reach customers and potentially monetize their fandom, but they continue to insist on their own narrow predefined business models from a bygone era and relying on lobbyists and courts to enforce their wishes, thereby alienating the same fans that they should be relying on.

Furthermore, even if the case does apply here, the Railroad overcharged by 66 cents and had to pay damages of around 75 dollars. A fine that is just over 100 times the actual damages. In this case, it is several thousand times. In what way is that not problematic.

Anonymous Coward says:

Re: Re: Re:

I’ll give you props for at least trying to make an argument rather than just tossing out baseless FUD as Mike has, but your argument misses the mark. Williams is the proper standard for a due process challenge to an award of statutory damages. The test is whether the award is “so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable.” Before you jump and say, “It is!”, you have to understand that it’s about more than redressing the private injury. The amount is meant to redress public interests as well. You may disagree with the range that Congress set for statutory damages, but it’s a different matter to say they are unconstitutional. Given that the award at issue was $9K per song, well below the $150K maximum and much closer to the $750 minimum, I don’t think the due process argument has any merit under Williams. Perhaps if the $1.5M award were intact, it’d be a different story. But that’s not the award that will be reviewed, no matter how much her lawyers wish it were.

Josh in CharlotteNC (profile) says:

Re: Re: Re: Re:

Given that the award at issue was $9K per song, well below the $150K maximum and much closer to the $750 minimum, I don’t think the due process argument has any merit under Williams

Those statutory rates were designed for commercial-for-profit infringement – i.e. bootleggers mass producing cds/dvds and selling them. Even at the theoretical minimum $750, they are wholly disproportinate to someone downloading a 99cent track (or 24 of them) for personal use. When the rates were set, it was unthinkable to even be selling a single track of a song for under a dollar, as the cost to just press and distribute a cd was around $2.

But that’s not the award that will be reviewed, no matter how much her lawyers wish it were.

I’ll agree that they won’t, but how does that make even the slightest bit of sense? What does it take to have a reasonable court actually take a look at the Constitutionality of these insane statutory rates, for a type of crime that the law was not intended to be used against?

Jeff (profile) says:

Re: Re: Re: Re:

IANAL – just an ordinary guy on the street. This seems to an incredibly lopsided judgement. In a day and age when somebody murders another, cops a plea and is out of prison is less than 5 years… How is this award at all proportional to the “crime” committed? To me – remember IANAL – this entire judgement rings hollow. Regardless of what the law says – if most people believe that sharing files is akin to jaywalking, then handing out a judgement that effectively puts another person into indentured servitude for the rest of their natural life (and perhaps their decendants too) is morally reprehensible. The law may say they can, but it doesn’t make it right.

If the law supposes that,” said Mr. Bumble, squeezing his hat emphatically in both hands, “the law is a ass ? a idiot.” — Charles Dickens, Oliver Twist

Franklin G Ryzzo (profile) says:

Re: Re: Re:2 Re:

1000 x This!

As an ordinary person who is not a lawyer, the only thing that I can say with absolute certainty is that if the law allows for this punishment to be permissible, then the law is wrong and needs to be fixed. No amount of defending this verdict is ever going to make the public agree with it or respect copyright any more than they already do.

Josh in CharlotteNC (profile) says:

Re: Re: Re:3 Re:

Agree. What’s more is that verdicts like this, and the complete insanity of copyright law, actually damages the public’s respect for the rule of law.

It is unbelievably short-sited. Its a dangerous mix when incomprehensible and unfair laws are upheld, when obvious corruption runs through politics, and trust in institutions and government is low. Revolutions have started over less than that.

Anonymous Coward says:

Re: Re: Re: Re:

Even $750/song seems unconstitutionally excessive to redress both the private injury and the public interests in this case. I also don’t think the precedent set in Williams is that ‘if the award is closer to the statutory minimum then the statutory maximum it’s cleared any and all due process challenges on its face’ the way you seem to be suggesting either.

Ophelia Millais says:

Re: Re:

I agree that it’s not problematic because it’s old, or because it’s not directly relevant. The Capitol v. Thomas-Rasset appeals court was emphatic on this point. When the law says that damages are punitive, they can be reduced by the judge. Ordinary statutory damages can’t be reduced (as per Williams).

If I understand correctly, Thomas-Rasset wants the Supreme Court to decide whether statutory damages for copyright infringement are, in a case like hers, in effect punitive, and thus eligible for reduction. So that’s where Williams, or at least its application in later cases like this one, is problematic…there is an assumption that statutory damages can’t be considered punitive.

Anonymous Coward says:

since when has any government given a toss about the public? money is the important factor, especially when it is going into funding your existence.
the effective remedy for infringement would be to listen to customers and give what customers keep asking for, not what you think they want or are asking for. but then, it is so much easier to just sue everyone possible, as often as possible, for as much as possible rather than turn that energy into adapting and innovating!

ken (profile) says:

For those of you who say she deserves it because she could have downloaded mp3s legally through services forget that the music industry wanted to make mp3s illegal and resisted and sued out of existence every early music service. It wasn’t until Napster that mp3s and downloading music became main stream and the music labels very reluctantly were forced to allow legitimate music services. Without “piracy” there was little incentive for the music industry to move into digital distribution.

Ophelia Millais says:

Re: Re:

You are correct in that MP3s of major-label content were not legally available until 2007, when the RIAA had already committed to pursuing the Thomas-Rasset and Tenenbaum cases in court. But this wasn’t particularly relevant to Thomas-Rasset’s case. She maintained she hadn’t downloaded or shared anything, and the RIAA maintained that the law forbids such activity without license, regardless of what formats they offer. IIRC, they even used the fact that the file format was MP3 as proof that the files were unlicensed.

And I think your explanation of why MP3s eventually became available is only partially correct. The RIAA already knew unlicensed file-sharing services were wildly popular; Napster wasn’t special in this regard, and they treated it no differently. They assaulted it and danced on its grave.

The main reason they eventually tried distributing non-DRM formats, as I see it, was because Apple, a company too big for them to sue out of existence, first pressured them to license content for DRM-encumbered distribution in 2003, and it was a wild success. Once able to prove how profitable digital distribution could be, Apple then pressured them to try dropping the DRM, which finally happened in mid-2007?ironically, with Capitol/EMI being the first on board, at the same time they were taking Thomas-Rasset to court. The success of the non-DRM store led to Amazon getting on board as an MP3 distributor that same year, and many others soon after.

However, despite the money to be made from sales of non-DRM formats, I don’t think they’d be so keen on offering those formats if the trial against Thomas-Rasset hadn’t gone so well for them. If statutory damages couldn’t be applied to small-time infringement via P2P, or if the court had said they needed way more proof, they would’ve been much more cautious.

Valkor (profile) says:

Re: Congress

Congress should not be some nameless Other. Congress is supposed to be US. It is our fault for allowing Congress to get away with it. Congress has the ultimate responsibility to set these statutory damages. Relying on the Executive and Judicial branches to do the work of Congress flies in the face of the original intent of the separated powers in the Constitution, and is one of the major roots of the convoluted mess that is our government. Yes, there are plenty of other structural problems, like the fact that laws are written by lobbyists and staff and congressmen just vote on them, and the enormous number of people that each Representative represents, but the fundamental blame lies with us.

We do not hold our politicians accountable. We do not run for office ourselves. We let politicians set punitive penalties for stupid crap like file sharing. We allow them to VOTE ON BILLS THEY HAVEN’T EVEN READ! We allow them to be politicians, not representatives. We ask the government to do so many things for us, so they tell us they’re doing so many nice things and so few unconscionable things, and we’re fine with that.

It’s our fault.

That Anonymous Coward (profile) says:

Re: Re: Congress

It can’t be our fault, it has to be the fault of terrorists or illegal immigrants or or or something other than us.

The US runs on the concept of no personal responsibility.
Congress running around blaming the deficit on the President, when they spent the money. They stomp their foot and demand everyone accept they had nothing to do with it, and instead we need to just be mad at the new guy.

More people vote for the next American Idol than vote for President.

The system is failing, and where someone could try to run to change things now they have no chance. Until people get annoyed enough to make change happen in extreme ways, we will keep getting the same. Imagine what might happen if people started trying to recall congresscritters one by one. The first few would be seen as flukes, and then they might see the light at the end of the tunnel is a train coming to run them out. We need to “gameify” the process to keep the short attention spans focused on the goal, stop letting the “hot issues” (guns, abortion, marriage) distract from the real issue… most of these people aren’t fit to lead. But until you can break the hold of all your problems are the fault of group x, and make people understand they are responsible for their own actions it is much to easy to stay the current idiotic course.

That and never mistake my blatant attempt at scoring a funny post as a misunderstanding of how fucked we really are.

squall_seawave (profile) says:

ok this disapoint me researching i saw that the yearly salary of an goverment is $193,400 yearly (this is the oficial salary) taking costs a hight payed individual could end their fines in 4 years that sounds a bit irrational but still tolerable the problem is that most people woek for much less
in example a guy i know made 8 usd per hour that means 80 usd per day or 400 usd per week at most he earns 19200 usd per year so the fines simply are insane if they were for eliminating piracy they would be minimun cost of the song i mean if you find it in itunes for .99 usd and in google pay for 5 usd they would use the .99 usd + 5 usd of fine that would be reasonable and would made people think would i save more paying for content or downloading and risking paying more? also a more resonable thing is they pay both lawyers when they lose a case (this is one of the things that made innocent people fold) so in this case the fine should be 145 usd and that would be reasonable but right now the punishment is not for people to learn it is for the enrichment of copyright holders

gov reality says:

Re: Woah on the pay figure...

Only the very top government executives make close to 193k per year. The majority of the government workers are peons like those in military service. If the usual military government worker is lucky they can double the 30k salary due to employment in a war zone. 60k per year and lifetime health coverage after 20 years may or may not be worth risking your life over…That is the reality of most government workers. The guys making 193k were probably appontees from the Obama administration that came right out of the RIAA for that job…

squall_seawave (profile) says:

Re: Re: Woah on the pay figure...

exactly my point even the top paying goverment workers would have troubles paying these fines never mind the people under them so we have the 1 % percent(and that is being generous) of poblation that their lives woulnd’t be ruined by copyright so my point stands the copyright laws needs to define their fines so people learn, not to ruin their lives

Anonymous Coward says:

Re: Re: Woah on the pay figure...

Average compensation for civilian feds is actually around 123k a year if you include benefits, 81k if you don’t.

Your numbers are closer to but still lower than the median income of enlisted military at around 33k which excludes officers, civilian feds, and benefits. It is not representative of the majority of the government workers by a very wide margin.

gorehound (profile) says:

This and other decisions like this are totally against our Constitution.I do not have the time to go on Wikipedia, ETC to read you all what the Constitution says but there is an Amendment which clearly states No Excessive Bail/Fines……….

Politicians are so fucking Corrupted !!! Does not matter who you Vote for.
We need to all start Voting for other Parties and maybe if we are lucky others who feel the same way will join us.
Democrats and Republicans may have different views but when it comes to screwing over people and being Corrupt they are both Guilty.
Talking about Rights they have screwed us on the 4TH……would love to screw us on the 1ST………….and are working on the2ND Amendment as I write.

AdamF (profile) says:

“That public interest cannot be realized if the inherent difficulty of proving actual damages leaves the copyright holder without an effective remedy for infringement or precludes an effective means of deterring further copyright violations.”

The White House seems to admit that this law cannot be effectively enforced in accordance with principles of justice and fairness. So do we change the law or give up on fairness?

RJ Parker says:

People need to stop allowing this.

The notion that the government is using tax dollars to facilitate unbelievable fines for sharing a handful of supposedly “copy-written” songs, to me is deplorable. The debate should really be had as to whether Intellectual Property laws are just and enforceable, not to mention whether government should be holding guns for the “illegal distribution” of a series of 1s and 0s. A person can actually own a string of 1s and 0s in our society. That’s incredibly counterintuitive to me. When people recognize this sort of legal process as tyranny, is when we’ll all start to live better and more freely.

Anonymous Coward says:

Deterring further copyright violations

“That public interest cannot be realized if the inherent difficulty of proving actual damages … precludes an effective means of deterring further copyright violations.”

Deterrence is the purpose of punitive damages. It is not the purpose of compensatory damages. It seems, therefore, that the Obama administration is admitting to the damages in question being punitive rather than compensatory.

SleepyJohn (profile) says:

Was the Amish beard the MAFIAA's copyright?

Clear away the smokescreen of legal technicalities and what we have here is a simple case of the local Gang Boss ordering his ‘lieutenants’ to give someone a good kicking for not accepting his control of the streets, with the added purpose of discouraging others from doing the same.

The internet has brought to us all the most incredible ability to connect and share culture, and an organised gang of greedy corporations and politicians must not be allowed to turn it into a private, thuggishly controlled consumer TV channel. If the only way to kill off this gangster vermin is to abolish copyright altogether, then abolished it must be. Society will soon evolve a different way of doing things.

The current copyright thuggery is a cancer eating away at the very heart of human civilisation, and if it will not respond to treatment it must be ruthlessly cut out. If there are no legal ways to do this, then illegal ones must be found. The bonding together of all the disparate peoples of the world in shared culture and communication is so much more important than the profits of corrupt corporations and the backhanders of corrupt politicians that it seems rather redundant to even have to state the fact.

American law is so unfair, so unjust and so vengeful that it must surely be treated with contempt and ignored. Whatever you may think of the recent Amish nonsense, 15 years in jail for cutting off someone’s beard? $220,000 for sticking a few crappy pop songs on the internet? Your business closed down and all your assets stolen because there is a possibility someone somewhere in the world might possibly use it to possibly deprive some American criminal gang of a few dollars? A young Englishman deported from his home under some terrorist legislation because he told some people where they could find some websites? 60 years in jail for another young man, who apparently has done enormous good for society, because he accessed some files that he apparently was legally allowed to access? And then he kills himself? Dear God preserve us all from such evil insanity. Intellectual property? What an oxymoron! Abolish it.

Ophelia Millais says:

The Supreme Court gets tons of requests to review cases every year, and they only ever choose to review a handful. Maybe I’m wrong, but I don’t think the government normally wastes it time filing briefs urging the court to refuse all of them. Is it telling that the DOJ, which is packed with ex-RIAA lawyers, felt they had to intervene, especially in a case that doesn’t involve a circuit split?

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