by Mike Masnick
Wed, Jun 9th 2010 10:12pm
by Mike Masnick
Thu, Feb 11th 2010 12:37pm
Record Labels Basically Admit That Statutory Damages Out Of Proportion As They Ask For Third Jammie Thomas Trial
from the groundhog-day dept
Still, the actual filing from the RIAA's lawyers has some interesting claims (pdf):
While Plaintiffs do not believe that either verdict was improper under the law, or that the second verdict should be remitted, they would have considered accepting a remittitur simply so that this case could finally come to an end. However, any remittitur must otherwise be consistent with the law and be guided by what actual juries have awarded under similar circumstances. Unfortunately, Plaintiffs find it impossible to accept a remittitur that could be read to set a new standard for statutory damages -- essentially capping those damages at three times the minimum statutory amount of $750 (or $2,250) for any "noncommercial individuals who illegally download and upload music." (Id. at 2, 25.) This far-reaching determination is contrary to the law and creates a statutory scheme that Congress did not intend or enact.It's a bit of a stretch to claim that this would be a cap on "any" unauthorized noncommercial file distribution. I would imagine that any court still has the right to take into account the specific circumstances to make sure the award is proportionate to the rights being violated. The labels' lawyers are stretching what the judge said here.
Indeed, Congress has spoken on this very topic. Congress deliberately and purposefully established a range of statutory damages that applies without regard to the commercial motivation of the defendant.I find this statement funny, because they then cite what Congress said way back in 1999. Fair enough, Congress (which basically just took RIAA talking points and put them into the Congressional record) did make those comments -- but these are the same entertainment industry lawyers who supported a "secondary liability" or inducement standard in the Grokster case, even though Congress had specifically rejected an attempt to put an inducement standard into the law. And when confronted, how does the RIAA explain that? Well, they say "the situation changed." Ah, so it's okay to have the courts change copyright law when the situation changes in one direction, but not the other?
What the judge was doing here was recognizing that the amount the jury awarded was clearly out of proportion to the actual infringement -- just as the courts in Grokster supposedly recognized that an inducement standard made sense in shutting down third parties (something I disagree with, but it's how the court felt). It seems that the RIAA and its lawyers have a massive double standard here.
A rule that the maximum permissible award in cases involving so-called "noncommercial" infringers is three times minimum statutory damages also ignores the harm caused by such infringers. From an economic perspective, individuals who give away copyrighted works illegally can cause as much harm as those who sell those works illegally, particularly when the so-called "non-commercial" infringer uses a P2P service. The notion that an infringer who does not make a profit should automatically be entitled to better treatment than an infringer who does make a profit is found nowhere in the law. The "not for profit" infringer is hardly entitled to special protection, which is why Congress conferred no such protection.Again, Congress also conferred no such thing as an inducement liability, but the courts -- at the urging of the RIAA -- conferred exactly that via the courts. Why such a double standard?
The Court's cap would set a new ceiling such that no copyright owner could effectively enforce their rights unless they could and did sue on numerous works. No copyright owner would be motivated to enforce its rights where it could only sue on a handful of works because the potential recovery would be too limited. Congress set a wide range of statutory damages for copyright cases precisely because plaintiffs need to be incentivized to bring appropriate cases to enforce their rights -- even those who own a small number of copyrights or those who only have a limited number of works infringed. Conversely, the Court's artificially depressed cap compels parties with a large number of copyrights at stake to sue on all of them, rather than a more modest number. This serves only to increase the discovery and trial burdens on parties and courts. Yet the Court's inflexible "three times" cap would invariably penalize plaintiffs with a small number of works at issue, and would force those with a lot of works to add to their complaints unnecessarily.Woe is the RIAA. If the awards for unauthorized sharing of a $1 song that might help promote their artists and help them make more money (if only the RIAA were to adapt to a changing market place) might "only" be 2,250 times the market price of the song? Cry me a river. And, even more ridiculous is the claim that this is some undue burden on the RIAA that it might have to actually sue over all of the songs someone distributed in an unauthorized manner, rather than just selecting a handful as it does now. This is a major issue. Technically, the RIAA has been able to just pick a couple dozen songs and sue over those, knowing that the totally disproportionate statutory damages will "cover" the rest. But does that seem right to anyone? The idea that rather than proving the actual harm done by the actual distribution, the RIAA is allowed to just pick a "sampling" and without proof get back many times the price without even presenting any actual evidence of the wider damage or the wider distribution of more files?
It seems perfectly reasonable to expect the RIAA should have to actually include what they claim was infringed, rather than being able to just pick a handful, knowing that the totally out of proportion statutory damages will "cover" the rest.
In fact, the paragraph above is effectively the RIAA admitting that it knows the statutory damages are out of proportion, but it believes it's fair because the RIAA is too cheap and too lazy to actually sue people for what it claims they infringed on.
Talk about a sense of entitlement.
Still, as we've said for a while now, this is a really bad case all around. It's pretty clear that Thomas-Rassett was involved in widespread infringement, and then lied about it. If people are going to challenge ridiculous statutory rates and other aspects of copyright law, this is really bad case to do that (ditto for the Tenenbaum case). This is one where it seems like she really might have been better off settling early and moving on. And the oddity of the judge reducing the jury award just makes this whole case into something of a circus...
by Mike Masnick
Wed, Jan 27th 2010 2:45pm
Jammie Thomas Rejects Offer From RIAA To Settle For $25k Plus Request For Judge To Vacate Last Week's Decision
from the and-so-it-goes dept
by Mike Masnick
Mon, Nov 16th 2009 3:22am
from the doesn't-really-change-much dept
In my mind, the biggest news is the new restrictions on countries from which it will scan books. From now on, the book scanning project will only scan books that have registered copyrights in the US, UK, Australia or Canada. This was mainly to address ridiculous concerns by some in Europe that this project -- to help make all books more accessible -- was somehow a threat to European culture. I was in Europe on Friday (well, Saturday there) when the announcement was made, and it actually pissed off the folks I talked to about it -- who felt that their politicians were doing serious harm to European books by having them excluded from such a useful resource.
Separately, a lot of the focus on this new agreement, as with the old agreement, is over how Google treats orphan works. Again, I have to admit that I think most people are making a much bigger deal of this than it warrants. The orphan works stuff really covers a very small number of works. And giving rightsholders ten years to claim their rights seems more than adequate to me. I just don't see what the big deal is here. The real issue is that we have orphan works at all. Under the old (more sensible) copyright regime, you actually had to proactively declare your copyright interest. The only reason we have orphan works at all is that we got rid of such a system in the ongoing effort of copyright maximalists to wipe out the public domain.
Anyway, I think this is all something of a sideshow. I still stand by my original feeling towards the settlement, which is that I'm upset anyone felt it was necessary at all. Google had a strong fair use claim that I would have liked to have seen taken all the way through the courts. And, of course, this settlement really has nothing at all to do with the main issue of the lawsuit (that fair use question) and is really a debate over a separate issue: how to take the books Google scans and trying to turn them into a "book store" rather than more of a "library." And, in doing so, the important fair use question gets completely buried -- which I find unfortunate.
by Mike Masnick
Tue, Sep 22nd 2009 6:58pm
from the reading-the-unscanned-tea-leaves dept
by Mike Masnick
Fri, Aug 14th 2009 1:12pm
from the tell-that-to-Jammie dept
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.
by Mike Masnick
Mon, Jul 13th 2009 1:42pm
from the this-is-odd dept
by Mike Masnick
Tue, Jul 7th 2009 6:48am
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
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.
by Mike Masnick
Tue, Jun 30th 2009 11:19am
from the bizarre dept
So, you get a slightly bizarre situation, where it's the RIAA proactively reaching out to Thomas to try to settle the lawsuit -- but so far Thomas apparently isn't interested. I've been saying that I thought she would settle, but the longer this goes on, the more I wonder if she's actually planning to fight on. If so, this could certainly represent a case to examine the statutory rates associated with copyright violations. The verdict seems so out of proportion with the supposed "crime" that it's difficult to see it pass the laugh test. However, there's a halfway decent chance that a court punts on the issue, saying (as the Supreme Court did in the Eldred case) that such questions are up to Congress, rather than the courts. Of course, if the case is to move forward, it would help to have lawyers who have had more than a few weeks to study up on the issues, and who didn't make public pronouncements that were distractions rather than anything related to the actual case.
by Mike Masnick
Fri, Jun 19th 2009 7:29pm
from the time-to-pull-back-the-attack-dogs dept
Tom Sydnor, from the Progress & Freedom Foundation (PFF), a loud and proud supporter of stronger copyright at every turn (and who is well funded by the RIAA labels), apparently missed the memo on playing down the number. He told the reporter that it was a perfectly reasonable number.
"Legally acquiring a license to give copies of a song to potentially millions of Kazaa users might well have cost $80,000 per song,"Except... that's not even close to accurate. The record labels presented no proof that she gave the song to millions of users, and seem to totally ignore the fact that these songs were available from tons of other sources (either legally or illegally) for prices between nothing and $1. To claim that the record labels would literally consider an option to license a single user putting a song into a shared folder at $80,000 is simply ridiculous.
But, of course, it shows the mentality of those paid for by the RIAA. These are the same people who accuse Larry Lessig of being a communist by taking a few statements totally out of context, and then accuse universities of supporting terrorism by not violating students' privacy and handing over their details to the RIAA.
So, if the RIAA is really serious about playing down the size of the jury award, it might want to rein in Sydnor before he says much more. If you're looking for someone to get out a message by appearing as a caricature of the evil record labels, I don't think you could find any organization better than PFF. But, that's probably not what the RIAA needs right now, unless it really wants to give the folks on the fence even more reason to leap over to the side who recognizes just how much the labels have twisted, stretched and abused copyright law over the years, totally at odds with its constitutional prescription of promoting the progress of science. Defending a $1.92 million award to the record labels for 24 songs in a shared folder, with no evidence that a single one was actually shared, is not promoting the progress. It's promoting massive greed and regulatory capture at the expense of society.