Thomas-Rasset faces $220,000 file-sharing bill after losing appeal Nearly five years after being found guilty of file-sharing in the media industry's first jury trial on the issue, Minnesotan mother of four Jammie Thomas-Rasset is back where she started after the appeals court upheld the original verdict. The US Court of Appeals for the 8th Circuit has found that the original fine of $9,250 …
The range of damages are set by statute as enacted by Congress and do not necessarily depend on the amount of harm actually done. There was really no chance that the courts were ultimately going to annul the jury awards, as that would be a usurpation of Congress's legislative power by the courts, and the substitution of a damages award set by the judge instead of the jury would also have violated the plaintiffs' right to a trial by jury.
I always thought that there has to be 'loss' before compensation decided.
I can't go to my insurance company and demand the values of repairs or replacement of my car without showing that I have suffered a loss.
A strange and one sided law made by people who have an 'interest' in the cash outcome.
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"I always thought that there has to be 'loss' before compensation decided."
In the US, punitive damages may be determined by reference to statute (it's "Statutory", not "Statutary" OP), or by precedent depending on the state where the award is made.
In England and Wales, exemplary damages are only awarded in a few limited circumstances, otherwise damages are limited to compensation for demonstrable loss. Other key differences are that juries are only used in criminal cases, and even then they don't get to set fines or sentences.
YMMV in other jurisdictions around the world.
"The clue is in the embarrassment they felt at the size of the fine... Where did they get the jury?"
Probably the same place where they got the SECOND jury that awarded the record companies $1.92 million, and the same place where they got the THIRD jury that awarded the record companies $1.5 million.
Did you actually read the story?
Jammie,
You have only one choice, file bankruptcy and steal away in the night to any foreign country that does not recognize the MPAA or US extradition. Hint, you can get to Cuba from Canada. I hear it's quite nice there after Hurricane season. Or I hear the Ecquadoran Embassy is taking in boarders.
I publicly apologize for the sheer stupidity and financially retarded behaviour of the American Justice System (Now owned by the MPAA and soon to be the very definition of the word, Oxymoron)
Are you frikking kidding me? A maximum of $150,000 per occurence and $9,250 per song??
WTF????
This entire LAW and the CASE should have been overturned on the grounds that the "punishment does not fit the so called crime", Cruel and Unusual Punishment, "Suing for a sum certain in damages" are all appeal possibilities in a real world without undue MPAA influence peddling.
What actual Damage occurred? The cost of a even 1,000 CD's does not equal this judgement. Regardless of the limits other laws state that there has be some basis in reality when determining the fines.
Unequal treament under the law is another venue but she has witless lawyers. They don't fine other white collar criminals like they are doing to her and amking any kind of "example" out of this woman is definitely unequal treament.
Where is the argument about collusion and influence peddling by the record companies that obviously influenced the Judges decision?
Bankrupcy does not protect you from fines. Fines will still need to be paid. In fact she will find herself back in court if she declares bankrupcy to have a judge set what she should pay. Bankrupcy would obviously help this but the fines must be (attempted) to be paid. If necessary the judge will force the fines to be deducted from tax codes, benefits, payments etc.
"file-sharing fines that vastly exceed the commercial value of music "
Will similar amounts be awarded against big companies that rip off individuals?
For instance "We found this photo on the net so it's perfectly legal for us to use it, and if you happen to find out and chase us we'll run you in circles with delay after delay and then might eventually pay some trivial amount."
The Magna Carta seems to have had a say on this:
Clause 20 stated that fines ("amercements", in the language of the day), should be proportionate to the offence, but even for a serious offence the fine should not be so heavy as to deprive a man of his livelihood. No fines should be imposed except by the oath of honest local men.
(from the Oracle of Wales)
Copyright fines are not intended to equal the cost of the stolen property.
Punishment for a crime, such as stealing and or distributing copyright protected works, is intended to be a clear message to the perp and a deterrent for other morons who believe they are above the law. Too bad this dumb bitch didn't have to pay $150K per copy or spend a few years in the slammer. If she lost everything she owns and went to prison - then maybe she'd understand she isn't above the law?
Yes, or maybe she should have had her hands cut off or her family executed because really, when it comes to making arbitrary examples of people such that they understand that they are not above laws dictated by multi-million dollar industries, no price is too high and proportionality is irrelevant.
Maybe you missed the part of the story where she had already done a research paper on Napster's legality and yet claimed not to know that filesharing was and is not legal? Or did you miss the part of the story about the fact that she destroyed evidence?
Let me paste those parts right here:
"As the appeals court ruling points out, [the jury returned a guilty verdict within minutes and set damages at $220,000] in part because Thomas-Rasset clearly had knowledge that what she was doing was wrong. She authored a college case study on the legality of Napster but denied knowing anything about Kazaa or having used it. The jury heard evidence that she had swapped a new hard drive into her system before handing it to investigators."
People like her and Joel "Blame The Foster Child" Tenenbaum get screwed because insulting the jury's intelligence with the exceedingly transparent excuses they dream up is *not* an ideal way to get the jury's sympathy - and in an action where the jury can set the damages, that's about as stupid a strategy as can be devised.
I don't for one second deny that she has fallen foul of a law that she was aware of, a moot point anyway as ignorance is no defence. My point is that proportionality is a key part of all fair and just legal systems, including that of the USA where it derives from the 8th Amendment, but that the principle has evidently not been applied in this case, going some way to making a mockery of the US justice system.
I hope you don't believe your own bullshit because it's sad to see just how far society has fallen. it never was perfect but at least 20 years ago you would occasionally get people helping each other out and sharing and cooperating, and not hurting others, but not any more. Now its sexy to hurt others. Now it's sexy to hurt the weak and vulnerable. If someone needs your help, it's sexy to put your boot on their face.
Yes, why don't we all pay massive fines directly to the global bankers? That's the right way to make the world a better place. Of course time warner and sony bmg need more money. all the great humanitarian work they do. its so sexy.
So it should be OK to just steal whatever media you want? No.
The judgement amount is way out of whack with reality, but there needs to be some kind of penalty. Something like best estimate of actual damages plus punitive damages based on the defendant's ability to pay would be fair. We all know that what is eventually going to happen is that she's not going to be able to pay a $220,000 judgement, will file for bankruptcy, and her life will be slightly more annoying for 7 years 'till the bankruptcy clears. -- Assuming she has a house and car, she'll probably be able to keep those.
"So it should be OK to just steal whatever media you want? No."
Maybe you are right that it shouldn't be okay, but at the moment it is. I know many people who have been committing this "crime" for years. So the victims should just be stacking up left and right. But they aren't.
The same shit pop starlets parade around on the TV and radio. You may have noticed that since the 90s all bands are manufactured. Talentless nobodies show up at a basement somewhere and some guy inducts them into the music industry. Which means they are given electro shock and PCP until they forget who they are, then they're put up in a big mansion house and given millions of dollars to read ghost written songs about global government being so good. Autotune does the rest. Think Justin Beiber. Or willy.i.am. Jordan as well but that's another thing. How MTV used Jordan to brainwash a generation of kids, sadly including British kids.
It was very profitable for MTV to do that, to spoil our young girls minds.
Oh well fuck it who cares if teens are popping out babies they dont want
@AC: Spin it all you want to suit your worldview, but: There are many bands who aren't "manufactured" and anyway, what does it matter if a band is "manufactured". The reason that victims aren't stacking up left right and centre is that the people who are the victims of this sort of crime just have to get another job and/or stop producing music. That burger flipper in Maccy D, may well be the lead guitarist in an up and coming band who has to fund his music because he can't afford it from album sales. I know a drummer who temps as a call centre guy, because session rates are so low, and they're low because of the amount of music which is copied.
Thats bollocks, I went to College with a very, very good session guitarist, used to do gigs with big name bands etc, made sod all money from it. Made enough to live in a squalid flat & keep playing instead of getting a 9-5 job. He was happy to do so & enjoyed his life. But don't make out that music copying made him poor...the internet didn't exist back then.
"The judgement amount is way out of whack with reality, but there needs to be some kind of penalty."
Another way to look at it might be to consider if she had walked into a music store and lifted a CD - a misdemeanor. That would net her a much smaller fine and the possibility of some jail time which would most likely have her placed on probation doing community service. If she had then proceeded to burn copies of the CD and then tried to give them away to her friends, that would have been copyright infringement, even though she was not attempting to make a profit and had even spent some of her own cash to do the deed. She could be charged with one count per copy made (though this would be up to the prosecuting attorneys, I'm no lawyer, blah, blah, blah). Even if she only offered the copied material but did not give any away, she would be in violation of the law.
The rub is in the proportionality of the penalty. Current technology offers theoretically unlimited opportunities to share files, so there is no limit on the theoretical amount of damage she might have done and thus no effective limit on the penalty if implemented based on that metric. All of which flies in the face of logic in as much as there is no way everyone on the planet would have downloaded the files. So, what is an appropriate limit? Perhaps it should be tied to the amount the offender makes in a year in much the same way speeding fines are in some countries (Nokia boss gets record speeding fine - http://news.bbc.co.uk/2/hi/europe/1759791.stm - I thought El Reg covered this one, but could not find it in the archives).
Legal reform needed? Sure. Political suicide for any politician attempting the same? Yep. And it's an election year here in the States.
Speaking hypothetically, having established these numbers for private individuals the corresponding fine for a major music label for doing the same thing plus taking money for said music plus not taking it down when advised (or taking it down & then putting it back up) ... could be enough to, say, jeopardise a major international deal such a music company might be trying to get approved. As I said, hypothetically.
( 150K x num tracks x num distribution outlets x num times put back after take down, hmm... )
The biggest issue to me is that (apparently) no evidence was found THAT THE FILES HAD BEEN DOWNLOADED (sorry for the caps, but still...).
So what this "fine" (it's not really a fine, its statutory damages) boils down to is that the penalty for "making available" is basically $10K per song.
I must remember to lock my front door at all times, because clearly the offense is not the breach of copyright, but facilitating someone breaking copyright. Or to shift back to criminal language, it's not theft that's the problem, but facilitating theft...
I think the point here is that a crime must first be committed. Making someone elses copyright material available is not copyright violation of itself. For copyright violation to occur, someone must have downloaded it. Therefore, if you can't prove someone downloaded it (someone without the right to it, i.e. not representatives of the music industry), no copyright violation has occured, so no offence.
The RIAA etc. are only going after the uploaders because if they went after all the downloaders, they would criminalise so much of the population, that it simply couldn't proceed. It's much easier (and more profitable) to get a large amount from a relatively small number of people, than get a smallish amount from a large chunk of the population.
The latter is also PR suicide, including for any politician who backed it.
They would also get laughed at in court as a single downloader couldnt cost a large amount of HARM. And it is the harm they need to show. An uploader can (in theory) be shown to have provided MASSIVE amounts of harm as countless MILLIONS of people have grabbed from your seed, thus you provided the mechanism of harm and can have this stupid fine imposed (in relation to the perceived harm).
A downloader who didnt seed can only be proven to have lost his own sale and provided a tiny bit of harm thus a tiny fine and certainly not worth the risk of actually losing (i.e. if that person somehow had a CD with that title on it already there would be another can of worms to open)
lets look at the facts:
95% of jobs dont pay enough even to meet basic living costs let alone buy tunes
those that do are staffed by the 5% of elites who dont listen to mainstream music and dont spend their money on it
the 95% is expected to pay for that shit as if we somehow could afford it.
The only growth sector is slave jobs that dont pay enough.
Fix the economy before you blame the people.
or dont buy music. Listen to the radio etc. Whilst I dont agree with the stupid fines imposed and do not agree with the RIAA I do think that if you want something then buy it dont "copyright infringe". I think there should be better mechanisms for sampling music before buying. I remember as a kid going to Action Records and listening the the new records that come in. If they were good we would buy them, if not then we wouldnt.
For digital music you can pretty much get snapshots of the music on albums now but again you get other issues. I can give my pink vinyl dark side of the moon to my kids whereas my ipod collection I could not so I can see why people would download songs from illegal sources.
There are so many problems with the system, unfortunately the system is trying to solve it by creating these massive landmark cases that (in effect) go against them anyway.
"...the maximum fine per track for willful copyright infringement established by Congress is $150,000"
And since she wasn't fined the maximum or anything near it, she should be a *happy* little pleb when she thinks about what they could have done to her!!
The fact that the punishment is totally disproportionate to the actual damage *caused* is, it seems, completely irrelevant.
The moment that the damages + costs exceeded Jammie's net worth, She has nothing to lose by appealing. She will be bankrupt anyway, and fighting on is good for her, and for the rest of us.
IANAL ( thank god), but this is a civil case, so I don't believe imprisonment is an option. By fighting to the top, she maximises the cost to the music cartel. She is bound to find pro-bono lawyers eager for name recognition, and I don't believe there is a risk of setting really bad case law, since there is the amicus curae option for big names to add arguments as required.
This action is basically the music cartels trying to scare the little people by hanging a random victim, but since she is already set to hang, she should at least make it expensive for her persecutors.
On doing some background reading on US bankruptcy law, I am a bit scared for her. It seems that 2005 changes allow the victim to be tortured for a while before being executed, but my non-legal reading suggests that this shouldn't be so in Jammie's case should she be forced into bankruptcy.
In many instances when you appeal a judicial verdict, the appeals court actually increases the fine or punishment when it's clear that your appeal is baseless. She could have been forced to pay $150,000 for each pirated title under U.S. law. Her personal assets can and will be seized to pay the judgment. Bankruptcy does not protect her or anyone else in the U.S. from having to pay the fine. Any future income that she might have can be garnished. The court can also make her pay all court costs and plantiff's costs if they deem the appeal as meritless.
If Joe's music company sells music that's the property of Jane's music company, then these damages are appropriate, allegedly. What the Courts have done is applied the 'what happens when companies violate the law' penalties to an 'individual' who has done the same.
When the laws and penalties were enacted, it wasn't really possible for an individual to break these laws.
These fines were not intended for corps. These fines are intended for pirates who think they are above the law. This chick got off cheap. She could have been fined a whole lot more per copy.
It's worth noting that the U.S. and several other countries are seriously considering making piracy a felony with mandatory jail time. If someone is dumb enough to pirate they are dumb enough to go to jail and pay million dollar fines. These people know exactly what the consequences of their actions are before they decide to pirate and if not they certainly know after they are convicted. Stupidity is not an acceptable legal defense.
Perfectly fair the fine is a statutory amount (its to punish not compensate) designed to discourage behaviour and takes little account of ability to pay or intent. In the cold light of day it seems cruel to impose such a fine on someone who didn't profit from the sharing. but the law is of course an ass.
However I suggest that the american public demand similar level of fines as a proportion of earnings for businesses breaching similar laws.
I look forward to
Sony paying a few hundred Billion for issuing rootkits.
Google a few hundred billion for slurping data.
I assume all the backers of this organisation have never been caught pirating software? I think one licence over is now set at $10,000 but that is on the low side. I wonder if their employees are aware of infringements and want to share with the ladies defence attorneys?
I thought one tenet of a just society is that everybody is equal before the law. How does this go together with the fact, that some selected unlucky few get punished severely for using Napster / Kazaa and the vast majority walks away? Shouldn't there be a reasonable enforcement policy behind the anti-file-sharing laws as opposed to a lottery?
Yeah, it's a shit, it's it? I have never been caught speeding, but I exceed the speed limit far more (on the motorway) than my father. My father god unlucky and got caught speeding. People get away with breaking the law all the time, some get caught. That doesn't mean that the ones who didn't get caught didn't do wrong or the ones that did get caught did super-wrong. It's just bad luck, or good luck, depending how you look upon it.
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