back to article Recording industry puts stake in ground with Jammie Thomas case

On 1 October, 2007, Jammie Thomas - a single mother living in Brainerd, Minnesota - was sued in civil court for copyright infringement by the Recording Industry Association of America. Three days later, the jury returned the verdict; Ms Thomas was liable for willfully infringing the copyrights on 24 songs. The fine: $222,000. …


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  1. Anonymous Coward
    Thumb Up

    How it works

    You pass laws that make everyone 'guilty' of committing a criminal offense and you keep records (from ISPs, telcos etc) that prove those offenses. You make sure that the penalties for the offenses include large fines as well as imprisonment.

    Then, when someone gets 'uppity' or 'dangerous', you bring out the records and prosecute them. Problem person 'solved'.

    It's the pefect solution for an omnipresent dictatorship that wants to give the appearance of being a democracy. Am I being cynical or what?

  2. Mark

    "downloaded otentially millions of times"

    But if the RIAA goes after any of those infringers, the money gained should go to Jammie, yes? The alternative is that they do each of those millions of people who have apparently (otherwise the judgement is false) downloaded from Jammie, then the same reasoning is had there. Millions of potential downloads.

    However, this can't be any of the millions who downloaded from Jammie because why would they download another copy from someone else? And we run out of people on the planet (never mind ones who aren't connected or bought one of the tracks, in which case, no loss) before we're 1% through those millions.

    I put down in one segment Chris (miller?) wrote on this about how it should be worked out, based on the statutory licensing in the US for radio, where a lower-than-CD-quality (MP3 vs FM stereo) ephemeral image that can be saved to tape (in the US) costs, IIRC, 3.1c per listener per track. You then need to multiply this by a 10-to-1 leecher/feeder ratio (which is VERY high) and then quadruple that (for maximum constitutional reparation). It comes out to about $30.

    That takes it into the "petty crime" level. Therefore it should be persued as such.

    In the UK, we don't have the right by court precedent (ARHA equivalent) but civil cases can only produce damages and cannot be used for punitive fines (you need a criminal court for that). At least that's what I was told by the courts and lawyers when I took a PC supplier to court when they didn't hold up their part of the EULA on MS XP pre-installed. And since they can't show even one illicit download from her (and if they do her for downloading, even a 1-to-1 means that they are double dipping, which is fraud and therefore criminal), that works out to naff all.

    Another thing that Jammie can use in her appeal is the comment of one of the jurors who said (paraphrased) that she was hit with such a large fine for deleting evidence and trying to lie to the court. However, this case wasn't about that, it was about copyright infringement and the fine wasn't appropriate for that. If the judge wanted to, Jammie could be held in contempt and fined for those actions. But that is a new case and must be tried according to the contempt charge. The fine is therefore, by admission of those involved in assigning it, not appropriate for copyright infringement.

    I've posted to the UK MP in charge of changing UK copyrights and in short told them that we ought to go one of two ways:

    1) indefinite copyright. As long as the copyright holder, once they produce a copy, CONTINUES to make a copy, they get the copyright. Failing to make a copy at reasonable cost is a crime and loses copyright.

    2) MUCH shorter copyright. With the speed of distribution, 90% or more of the money of all IP is made in the first 5 years. Allow an extension to 10 maybe for selected works

    and in either case, once copyright is ended, it must be made available in a transformative form (source code for software, formats for documents, unencrypted for DRM'd works and in the latest formats for multimedia). This allows the copyrighted works to become part of the continuing culture, rather than disappear (as will happen with binaries over 20 years old). Failure to provide a transformative version is criminal and the proceeds from the work would be criminal earnings and subject to sequestration as such.

    Copyright then becomes reasonable to those who have the burden (the public) and long enough for the owners to profit. It also allows new works to be based off the expired works, helping new copyright owners to enrich their output, making THEIR work more profitable.

    And, because it's reasonable, there would be little sympathy for those who are too impatient (for the 5/10 year limit) or too cheap (the indefinite term) to obey it.

  3. Jon
    Thumb Up

    @ AC

    No more than I. I agree with you totally.

  4. Anonymous Coward
    Thumb Down

    I may be a raving lefty but...

    It's all just an indication of the way that commercial interests dictate the 'law' these days. Those awful 'piracy is stealing, you could go to jail' clips at the start of films are ludicrous. Let's get this straight: I go into a cinema, record the film on my cameraphone and get caught - I could go to jail. Exactly how 'criminal' is that compared to, say, a hit and run, or B&E? For online music issues, it's even more ludicrous - with DRM, record companies and music retailers restrict how we can use the music we buy. They then use the law to go after anyone who tries to get around that.

    Obviously not all filesharers are equal, but IMHO the law has to change to put things in perspective. If I download a song for free from a current top 40 album, that doesn't mean I'm hellbent on ripping off the record labels. It means I want to hear a couple of tracks, and if I like them I'll buy the album.

    And another thing.... selling poor-quality knock-off DVDs is free enterprise! If the market will pay for DVDs in which you can hear the cinema audience coughing and eating, then obviously there's something wrong with the film industry's business model - either legit DVDs are priced too high, or don't offer enough of an advantage over the knock-off ones.


    Oh, and frankly, the case in point is an exception, mainly because of the unbelievable stupidity of the woman involved...

  5. Anonymous Coward

    system == broken

    the whole system of providing people with wealth for their creative work is broken. from the music industry which robs the poor (the artiste) and gives to the rich (fat b***ard record company execs) to the overpriced shite that passes for cinema nowadays.

    the real crime is that the systems in place make it so hard for creative people to flourish. thankfully der interwebnet is changing all this but the issue is the resistance from those with vested interests (see aforementioned scum).

  6. Anonymous Coward
    Anonymous Coward

    Making an example is the problem

    Even though most people acknowledge that stealing music is naughty and wrong, I think they are uncomfortable with the idea of hammering one easy target with punitive fines as a deterrent. Whether you think the target is "dumb" or not is irrelevant.

    It may be legal for the music industry to do this, but laws that are seen as unfair or unenforceable have a generally hard time.

    It's as if the UK government decided to enforce the motorway speed limit by plucking out one individual doing the de facto standard 85mph and fining them £200,000. It would neither be popular, nor would it serve as much of a deterrent if the odds of getting caught were deemed to be low.

  7. Nikolai Kuzmin

    stealing CD is different

    When you steal a CD, it is the shop that gets hurt - they have invested money and labour into their stock. Once you steal it the shop no longer has it. The publisher of the CD is not hurt by the theft - they've got their money from the shop already.

    When you copy friend's CD - your friend still has the original. The publisher has not invested anything into making this copy (and has probably got some money from the blank media tax). The only problem is that you have made this copy without their blessing. This illegal activity is properly termed 'piracy' as in 'engaging in high-sea robbery without letter of marque' to the detriment of law-abiding citizens who have taken care (and expense) of obtaining said letter/blessing. Now if we translate the situation into proper terms the position of media companies is that all the available plunder is theirs by right and any takings by unlicensed ships are their direct losses.


  8. Anonymous Coward

    Licensing Model

    I know it has been stated before

    but its time to adopt a licensing model, pay an annual fee (like your tv license) and download all you want.

    I suppose to make it more profitable, it could be graded to have upper limits of content say you only think you will buy 5 albums a year, then thats that

    this also opens up the expiring download demo which would be exempt from your license but allow you to listen to music, or view material before buying.

    regular income = possibility for better financial management of content firms = better investment in new material.

  9. Anonymous Coward
    Thumb Up

    @Licensing Model

    A bit utopian but i agree, maybe as first step both sides in this need to be a bit fairer and honest.

    File sharers need to have a fairer idea of fair use and be prepared to give something for that use.

    Also the copyright holders need to come up to date with technology and change their business model to avoid criminalising their customers.

    No small task, but eventually commercial pressure will make them reconsider.

    The fact that there is so much focus on all this e.g. Universal / Apple, this case, etc is only a good thing.

  10. Spleen


    "RIAA, Business Software Alliance (BSA) and Motion Picture Association of America (MPAA)"

    Who are these guys? Shurely you mean the Record Industry Ass. of America, the BS Alliance and the Motion Picture Ass of America?

    El Reg is slipping. I'm going to call them on my mobe and complain.

  11. P. Lee Silver badge

    Rights & Wrongs

    @AC - a tried and tested technique with everything from infringement to the GWOT.

    I'm pretty sure my CD player copies music from the disc into memory. That operation means the music is copied, stored (briefly) and deleted. Yet the RIAA probably won't come after me.

    If I do the same thing with my computer, I'm pretty sure at least one KDE CD player copies the music to a temporary file before playing it - again, the music is copied, stored (briefly) and deleted. I may or may not get the RIAA after me for this.

    Now if I rip the CD to wav files and put the CD away in the cupboard I've infringed, even though few people would suggest I've done anything morally wrong. I've done the copy/store thing again but haven't deleted it. What happens when I share my /multimedia directory with a computer in the lounge? What happens if I share /dev/cdrom with the computer in the lounge but leave the CD in the drive? What if I run a couple of extra wires from my computer to speakers in the lounge - that would also copy the music (in analogue form) to additional speakers.

    Don't even get me started on graphic-equalisers... base up, treble up = derivative work as far as know. If I don't distribute it (play it loudly?) I don't know if that's allowed or not.

    I've no problem with JT being prosecuted but if you shouldn't expect damages for imagined harm. As for "deleting the evidence" I can see a parallel:

    Prosecution: This lad was nicked for purloining a 2 CDs (24 tracks) which belonged to his mate. He might have let others copy the CDs while they were in his possession.

    Judge: What did he do when caught?

    Witness: He returned them.

    Prosecution: He hid the evidence of his crime! We want $220,000 because he's so naughty.

    The industry takes a hardline making an example of an easy target in order to discourage similar activity. The public sees an over-powerful "fat cat" corporate taking advantage and loses even more sympathy for an industry whose main recruitment ploy is to tell people, "Sing like Madonna or Britney and you can join us and become mega-rich and famous."

    We also have an industry which for the most part is selling audio (and for MTV/VH1, visual) sexual stimulation (that's porn to the recipients and prostitution for those who get paid for it) telling us _we've_ done something wrong giving away what we have in our possession.

    So now we have some problems:

    1) What is illegal is neither wrong nor well defined. This leads to disrespect for the law, the prosecutors and those enforcing the law.

    2) the prosecution appears to be fabulously wealthy and the defendant poor

    3) the defendant has done wrong, but the prosecution's moral credentials aren't that shiny either

    4) nobody knows if there was any damage to the plaintiff beyond the defendant acquiring 2 CD's-worth of music, but the sentence is grossly out of proportion with that offence.

    No wonder they want the offence to be criminal. One prosecution is a stake in the ground. Lots of prosecutions like this would be really bad PR. It would be much better if the FBI did all the dirty work for them.

    It rather reminds me of the sheep-stealing/deportation to Australia scenario we got rid of a long time ago. If she had a decent lawyer I'd rather fancy her chances at appeal.

    Oh right, she's poor. I'll wish her good luck then.

  12. Anonymous Coward
    Anonymous Coward

    RE: "downloaded otentially millions of times"

    "In the UK, we don't have the right by court precedent (ARHA equivalent) but civil cases can only produce damages and cannot be used for punitive fines (you need a criminal court for that). At least that's what I was told by the courts and lawyers when I took a PC supplier to court when they didn't hold up their part of the EULA on MS XP pre-installed. And since they can't show even one illicit download from her (and if they do her for downloading, even a 1-to-1 means that they are double dipping, which is fraud and therefore criminal), that works out to naff all."

    While that is technically right, under the Copyright, Designs and Patents Act damages are payable for going against the author's "Moral Rights" or "droit moral" of being able to decide when their work is destributed. This is separate from the damages payable for the actual commercial value of the infringement and are to all intents and purposes unlimited. And hence they are punitive damages in all but name, simply levvied against the percieved level of offense that the rights holder has taken that the work was used without their permission.

  13. Mark

    RE: Moral Rights

    They are not about how it's distributed but about how it is presented. E.g. your music cannot be used in a Neo Nazi rally (even though no copy is made and you have a broadcast license). Or I can't put a banner in front of your statue proclaiming my name because it changes the ambience of your statue.

    Not that I copied and played the copy.

  14. Ian

    CD theft

    "That's because I have some physical manifestation of the intellectual property."

    A CD is property, the contents are not. They are licensed works covered by copyright, and quite different laws apply to each. "intellectual property" seems to be a bit of a misnomer really.

  15. Mark McGuire

    @mark RE: "downloaded otentially millions of times"

    Dear God, if only I believed that laws like that could be passed. Governments in these times only get out of their lethargic monotony only if people die or big business gives them a bit to grease the wheels. I am almost certian that such laws will never be passed in the US, as the companies (seem to me) be the greediest bastards, thinking they're still innovating, when they don't do anything, and claiming a buck for it. Most of the big companies were innovators at one time, but now, in their monopolies they are complacent with doing nothing and suffocating competition with mountians of cash.

  16. Anonymous Coward
    Anonymous Coward

    Bill of Rights ?

    Might be interesting if she could argue that:-

    she should have the:-

    freedom from cruel and unusual punishments and excessive bail

    (see US Bill of Rights).

    In other words, the punishment does not fit the crime.

    It does seem cruel that she might have to lose say, her house in order to pay for the misdemeanor. Still, she will have the last laugh in jail since the state will be picking up the tab for her 'crime'. Easy to come to the conclusion that the law is a jackass.

    I liked the argument that in the UK it would come under a 'small claim' since the RIAA might have to show the damage caused to it in terms of lost revenue.

    Clearly the poor woman almost qualifies for a Darwin award as do the legal scumbags making a living out of all this nonsense.

  17. Anonymous Coward

    Intellectual property is theft.

    "Even when the RIAA, Business Software Alliance (BSA) and Motion Picture Association of America (MPAA) are trying to do the right thing ..."

    Huh? When the hell did they ever make even the slightest attempt to do that?

  18. Anonymous Coward
    Anonymous Coward

    The stake in the ground

    is evidently for roasting people. Welcome (back) our new medieval overlords - same as the old medieval overlords.

  19. Anonymous Coward
    Anonymous Coward

    Root cause

    What a bunch of assholes. Not you El Reg lot, but the Industry and Lawyers. After years of putting up with this crap, I'm past ready to puke.


    #1 -- I do not condone stealing (piracy)...

    #2 -- ... No more than I condone price gouging.

    Price gouging is the root cause of this issue. When people perceive that the value received is less than the (artificially inflated and controlled) market price, they'll find alternative methods of supply -- grey market for cars and electronics, counterfeit goods, illegal rips, downloads and file sharing.

    The cost of a CD/DVD and especially download prices are far higher than the production and distribution costs of the product. And the poor artist gets a tiny potion of the price paid at the point of sale. The whole thing sucks and I agree with others that a new model is needed.

    The trouble with annual download subscriptions is that, if the current providers are any indication, you'll be stuck with either a DRM hobbled file or low quality encoding -- or both. With few exceptions, 128k seems to be the default download quality -- no where near hi-fi or CD quality.

    So, I'm not sure what the answer is, but the draconian attack-dog litigation methods taken by the recording industry will only result in further alienating long suffering music lovers. I for one applaud Radiohead's brave step in allowing consumers to set their own price for the 'In Rainbows' album. Indications are that this has, so far, been successful for them -- let's hope that more artists will follow that model.

  20. Anonymous Coward


    "Clearly the poor woman almost qualifies for a Darwin award as do the legal scumbags making a living out of all this nonsense."

    Indeed. And the jury should have come out of the closet and just have her put on death row for Christ's sake. After all, she's about in the same league as Osama or Reagan. They could then have left early to watch reruns of "Lost".

  21. Keith Doyle

    Unequal Justice...

    A woman illegally shares a bunch of MP3 files over the internet, gets dinged for 3x-4x her yearly income. Record industry illegally uses hidden "payola" schemes to control radio airplay, and record and movie industry use funny accounting schemes to hide the profits to reduce royalties, and it's mostly overlooked-- and when they have gotten dinged for those things, it's been a relative pittance and just the "cost of doing business."

    Record industry touts big cost savings in moving from releases on LP to releases on CD-- but cost savings actually passed on to the consumer is about minus $7 as cost of an $8 LP on CD suddenly jumps to $15.

    And now again, Record industry gets dragged kicking and screaming into big cost savings in moving from CD to DRM digital distribution (fidelity of the product actually goes DOWN in the process), but wants to INCREASE relative price-per-song. A 15 song CD as DRM digital download costs about $15 and only as little as that because Steve Jobs is a hard-nose. And there is now another benefit for the labels with digital downloads, as you also lose any legal means of resale, AND you may lose access to your music in the future and have to pay AGAIN if new devices stop supporting today's DRM scheme. The product costs about the same but delivers less to the customer.

    So I ask, just why would anyone think any of us would give a BLOODY S#!T about infringements to the copyrights owned by any of the major labels?

    If you feel sorry for the artists, then why not just send them a check directly for that CD you copied from your roommate, and bypass the distribution industry crooks in the process. And when you do, include a note explaining that they really don't need those guys anymore...


  22. Fraggle

    These aren't the £s they're looking for...

    "If you feel sorry for the artists, then why not just send them a check directly for that CD you copied from your roommate, and bypass the distribution industry crooks in the process. And when you do, include a note explaining that they really don't need those guys anymore..."

    'cause then you've hung yourself, by providing a confession, ready-made. The artist may be grateful but the record company will still nail you to the wall.

    Think of the age-old question: Daddy or Chips? In all honesty, why have Chips when you can have Daddy who will buy you plenty of Chips?

    Take note, *they don't want your money*. They want the total control that will enable them to rip whatever amount of money they want *later* right out of your hand.

  23. corestore

    Use the right ISP...

    "And heaven help the poor person to whom the digital trail erroneously points. If the ISP's records show that your IP address committed an infringement, it can be forced to shut you down, disable your access, offload your content, and turn you in to the intellectual property police."

    Well... use a decent ISP:


  24. Anonymous Coward
    Anonymous Coward


    Movie studios spend millions creating and marketing copyrighted works...and they are entitled to protect their works...costs the bottom line.

    Err, if they didn't pay tens of millions of dollars to individuals, their costs might be less. Duh never thought of that.

  25. Ole Juul

    Pay for play

    I've been a musician for nearly half a century and I don't have a need to download recordings. Mostly because I think, play, and sing music all day. I don't see anything wrong with people copying CDs, or downloading music. This has little to do with music and much to do with a way to make money. We all need to make a living and where the money comes from is not always so relevant. Perhaps it should be. In the case of musicians making money from the playing of their recordings that is only one option and not a very honorable one in my mind. I expect to pay a musician when he plays not when he is not. Keep in mind that all music is highly derivative and built on the work of all those that came before. Music without reference is noise. The "meaningfulness" comes from recognision of past concepts. I understand that software is similar, the bits have to have meaning, and the meaning comes from reference to previous ideas. For example, the person who invented adding doesn't claim IP.

    This whole "copy" thing is crazy. This has gone way, way, too far and become way too abstract. We need to get back to earth. Many people will listen to a song and remember it. They might even hum it on the way home. A musician might go home and play it, or use parts of it... even without conciously doing so. Am I supposed to forget it? Can I not tell someone else what I heard. I copy things in my mind, is that illegal? Will they cut off my head to do a forensic search?

    The only thing that makes sense is to pay artists when they are working and not when they are not. Play it again and I'll pay you again. I have little respect for those that try to make money from copyright. They are just plain lazy and I suspect many don't have the talent to make a legitimate living.

  26. spiny norman

    Nothing new

    In the 1760s the thing to do if you were hip was to go to Rome during Holy Week to hear Allegri's Miserere in the Sistine Chapel. This was the only place you could hear the work performed and only 3 authorised copies of the manuscript existed. Copying it whole or in part was punishable by excommunication. Mozart, aged 14, heard the work and wrote it out from memory, but being a good Catholic, kept it private. However, an non-Catholic Englishman called Burney published a version in 1771 and after that copies appeared all over Europe.

    So a) this is not a new problem, people have been trying and failing to control the distribution of music for centuries b) far from destroying music and musician's livelihoods, copying and embellishment of existing works has resulted in a far richer heritage in the classical music tradition than anything produced by the RIAA c) the RIAA will be pleased to know that they are acting like mediaeval popes - not that they would have the faintest clue what that means.

  27. Austin Troxell

    Non-random Musings

    To @P. Lee: A digital play-back device only buffers a relatively small portion of the work being played and not the entire piece. This is acceptable under current US Fair Use guidelines as you are not creating a "copy" but only "sampling" the work. Also, I believe manufacturers of CD and DVD players must pay a license for each such device. This allows us, as consumers, the "right" to play the media we purchased.

    To Darling Dearest Jammie in a Jam: Were your "copies" in a lossless format, such as FLAC or Monkey Audio? No? You mean to say your files were in MP3 format? Then they weren't true *copies;* they were lossy "representations" of the original work. This is no different than recording over-the-air broadcasts to cassette tape for personal use. Ask the judge for a summary dismissal and to vacate all penalties. And while your at it, also ask that the judge recommend the RIAA nolle prosequi any current and future cases involving MP3s.

    To the RIAA: Do you really think alienating consumers is ultimately good for your business?

  28. Snert Lee


    I keep getting the feeling that, in and amidst the furor of protectionism and punishment, the purpose of copyright and patent has been lost.

    Intellectual property rights are not about the protection of profit making and information ownership.

    Rather, intellectual property rights are an elaborate bit of bribery offered by society, through the mechanisms of law and government, as an incentive for creators and inventors to share their creations and inventions with the rest of us.

    We, as a society, offer to the creators of these works, or their duly authorized designees, the promise of exclusive control over these works, for a period of time, enforced by the promise of legal remedy should that control be illegally infringed upon during that period of time.

    In return for this protection, at the end of that period, all rights of usage pass to the public.

    It's as simple as that.

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