She did everything she could to ensure that horrible outcome, most notably by overreaching and attempting to demonstrate that she had nothing to do with underlying copyright violations she was (in effect) caught red-handed on. Her team's handling of this case is a setback to efforts to rationalizing copyright damages.
Even after the last trial, RIAA offered to let her settle by paying $25K to a charity for struggling musicians. So, indeed, she has had several opportunities to "get off the hook" and, each time, the lawyers have come charging forward saying they will get her ultimately vindicated. Now, of course, she herself can't be excused because a client ultimately controls this decision no matter what the lawyers want to do. But lawyers are in a strong position to influence most clients and, as a middle-class mother of 4, I assume this client would not be taking ultra-aggressive legal steps unless the lawyers were encouraging this, in effect, making her a martyr for the cause (as "Above the Law" puts it: "The crappy thing about being a martyr is that you have to die" (http://abovethelaw.com/2010/11/sorry-file-sharing-lady-looks...).
This case really illustrates the ugly face of aggressive copyright enforcement while at the same time highlighting the sometimes questionable judgments people can make in responding to it.
Yeah, but I think the prosecution was trying to make the case that it's an even BIGGER deal than distributing for profit. If I pay money for a bootleg disc, I won't just give it away when I'm done, because it represents some money to me. But if I get a song for free, then I'm more likely to redistribute further. So the really twisted argument is that non-commercial sharing is even more damaging to the music industry than for-profit sharing, and therefore she should be penalized more than commercial pirates.
The jury was instructed that merely "making available" sufficed to constitute an infringement of the plaintiffs' distribution right, even without proof of any actual distribution.[1][11][12] The issue of whether copyright infringement required actual distribution was raised by the defense during examination of Sony BMG's head of litigation on the first day of trial, but the court sustained the plaintiffs' objection and did not permit the topic to be revisited until jury instructions were prepared just before the end of the trial.[12] Despite disagreement from the defense, the court proceeded to interpret making available as distribution for purposes of instructing the jury.[12]
She brought this on herself. It's interesting to compare what the outcome would have been with a rational defendant.
She had downloaded and was sharing a couple thousand songs. I don't think we've been told what the RIAA's initial settlement offer was when they contacted her, but I believe those are generally in the $3-5k range.
Now at this point, you probably don't know how many songs they know you have pirated and are sharing, and of those you don't know how many they can actually prove. You can guess that they probably know about a lot, though, as they have generally only gone after big time sharers.
For every song that they can prove you violated copyright on, they will get a MINIMUM of $200 statutory damages if you can prove that you were an "innocent infringer". If not, the MINIMUM is $750 per song. (The maximum is something like $30k/song, raised up to something like $150k/song if they can show you were a willful infringer).
Being extremely optimistic, knowing that you've in fact infringed a couple thousand songs, and so calculating damages as an innocent infringer, all they need to do is get you on more than 25 songs, and your BEST CASE outcome is worse than just accepting the initial settlement.
If the innocent infringer thing doesn't fly, all they have to do is get you on 7 songs and you lose compared to accepting a $5k settlement offer up front.
A rational defendant would simply have jumped at the initial settlement offer, accepting that by pirating a couple thousand songs they were essentially taking a bet that they could get the songs for free, but if they lost they'd end up paying about 2.5 times per song than what they would have paid at iTunes.
She refused to settle. She tried to blame others, such as her kids, for the downloading. She tried to destroy evidence (after the other side knew about the evidence--if you are going to destroy evidence you really need to destroy it BEFORE the other side knows it exists). She lied about her actions under oath in court.
These are the kind of actions that make a jury think you are not an innocent infringer--in fact they make a jury think you are scum, and when told to pick damages from a big range, the jury tends to go high, not low on you.
She had another chance to be rational, as the RIAA again made a settlement offer after the first trial, for considerably less than they had won. I don't believe it was as good as their initial offer, but it was still pretty good--somewhere close to the bottom range of non-innocent infringer statutory damages for the 24 songs they actually ended up litigating over.
Nope, she fought and got another trial. She lost again (which makes since, given nothing had changed), and this new jury went much higher on damages. Oops. Now she's had a third trial, and another loss, and another jury going high.
And she's rejected a $25k settlement offer from the RIAA.
She should accept that offer, apologize for being such an idiot, and ask for donations. There will be enough sympathetic people to cover $25k.
And then someone should see if the lawyers who represented here can be brought up on ethical charges. It seems pretty clear that they used her in order to try out their cockamamie legal theories, and that they were acting in their interests, not in the interests of their client.
Small point, but I think it's important to distinguish between being sued for downloading vs uploading. This wasn't just a bet about costs of buying from itunes vs downloading, which she could probably have done with impunity.
That's the biggest issue here because I don't think they ever showed that the songs were downloaded from her computer. The RIAA used the make available argument which makes no sense to me.
Frankly, this whole case has nothing to do with Thomas being a good person or an evil person stealing music, rational or irrational. The real question is why 1.5 million was awarded for something that's orders of magnitude less in damages. It's ridiculous.
While you seem to be much better informed that I am: Still, in some parts of the world damages this high are just mind-blowing.
Yes, you might be perfectly right and she should know the legal outcome in her country, but reading this here I somehow have to assume that Proposition 19 was accepted and the jury was stoned.
Again: I _know_ that the legal system is just different and I have no right to judge it. But I can compare it and say that this is completely out of perspective from my position here. Wow.
So, essentially, "Look at that skirt! She was asking for it!"
Horrible actions don't become less horrible just because you can come up with a facile excuse for them. $1.5M does not seem like a reasonable penalty, even if she isn't very likable and clearly was not in the right.
I think "She brought this on herself" is pretty close to "She was asking for it." And most of the facts in the comment go not toward the severity of the crime she was convicted of nor necessity of such a severe response, but merely toward showing that her behavior was provocative and that she failed to take many precautions.
My point is that many people violate laws every day without receiving such an absurd punishment. The fact that somebody violated a law does not give society — much less the recording industry — a right to do whatever it wants with them.
I'm with you on that "that's an interesting argument" train of thought, but you ruin the argument if you pull it down to this level.
Most people react _very_ emotional (and - for the most part - this is probably a really good thing) if you bring in arguments about sexual abuse (bonus points for minors).
Let's try to stop these comparisons. They are kind of like Godwin's law, killing the discussion in the process.
In fact - did already someone name this fact before? Can I claim? ;)
That's a good point. I hadn't intended for the argument to have such a strong emotional overtone. It just occurred to me as a known-to-be-invalid argument that the comment resembled very closely. I'll keep your law in mind from now on.
Regardless of her trial strategy, the absurdity here is the federal law permitting essentially a financial death penalty for an individual sharing a few songs. The statutory copyright penalties were clearly written with commercial-type infringement in mind, not individuals engaging in personal use. The penalty is grossly unfair, the RIAA - regardless of their settlement offers - come off looking like huge pieces of shit, and the whole thing needs to be appealed and the judgment reversed.
"The statutory copyright penalties were clearly written with commercial-type infringement in mind"
The whole "these bits are worth $X each" scenario becomes meta-absurd when you consider commercial infringement. At $60K/song, The Pirate Bay would be on the hook for more money than the Earth could produce before it was consumed by the sun.
If you took away all the parts that make her an unsympathetic defendant (blaming it on the kids, destroying evidence, lying about actions under oath), would you still support this outcome? After all, the exact same thing could have happened to her if she hadn't done those things, but still refused to settle. In other words, do you support making an example of a guilty person by punishing him in a way that far exceeds the damage that he caused? If so, in what situations is it justifiable? Would $150,000 be an appropriate fine for single graffiti tag?
Well, if I perpetrated graffiti, got caught, and the building owner said to pay him essentially the cost of painting over the graffiti and he'd consider the matter settled--otherwise he'd take me to court, and then I found out that the anti-graffiti law had been written with major offenders who cause massive damage in mind, and so the minimum I'd be out if it went to court is $150k...guess what?
I'd freaking settle, and write to my legislators suggesting that the law needed to be tweaked to allow for small time graffiti, where a reasonable penalty would be the cost of clean up plus enough to sting enough to discourage repeat offending.
Well that I agree with. I don't think nearly as many people would have a problem with this if the statutory penalty were in the $1,000 per song range. But $1.5 million dollars just seems absurd.
One problem with my graffiti analogy is that there's a precise way to measure the actual harm to the victim from graffiti, whereas with file sharing it's very nebulous and almost entirely centered around punishment as opposed to restitution.
The fact that she was both wrong and stupid is beside the point. The real issue is the absurdity of the punishment, which is both cruel and unusual in that it's wildly disproportionate, and totally unparalleled by any other form of statutory damage.
Cases like this are exactly why the Framers insisted on jury trials in the first place. Through the principle of Jury Nullification, jurors retain power over the law through sanctioned refusal to convict - even when the law has clearly been violated. This check exists as the last line of defense against lawmakers who are abusive, corrupt, and/or inept. For example, the ones who authorized these monstrous fines.
In 1972, the U.S. Court of Appeals for the District of Columbia said that the jury has an " unreviewable and irreversible power... to acquit in disregard of the instructions on the law given by the trial judge.... (US vs Dougherty, 473 F 2d 1113, 1139 (1972)). However, this ruling went on to note "The fact that there is widespread existence of the jury's prerogative, and approval of its existence as a necessary counter to case-hardened judges and arbitrary prosecutors, does not establish as an imperative that the jury must be informed by the judge of that power".
In other words, the judge is free to 'command' that the jury rule only on the law, not on its justice. And the jury is free to ignore him - but only if they're aware of the option.
I don't know if the 1972 ruling has been superseded. Assuming it hasn't, it appears that none of the judges (or the defense lawyers) made the rules clear. So now we get a legal fiasco, ridiculous public expense, and at least one ruined life.
A jury also has the power to convict in disregard of the law given by the trial judge as many a black defendant in the south from around the end of the civil war through the mid 20th century found out.
The judge or a higher court can reverse a jury guilty verdict, so some such wrongly convicted defendants are spared, but most won't be so lucky. In most cases, there will be enough evidence offered to support conviction if the jury believes that evidence over the defendant's explanations, and so there is no way for the court to tell if the jury convicted because they felt the defendant was guilty, or if they convicted because they don't like the defendant's race, religion, sexual orientation, etc.
The Framers understood this, which is why they didn't require juries to be told of the nullification power. No one has ever managed to come up with a way to tell juries of nullification without taking a great risk that juries will figure out that they can also go the other way and convict when the law doesn't support it. Not telling the jury about the nullification power is essentially the check on the nullification power.
Regardless of her poor judgement, the end result is that RIAA is being awarded $1.5 million dollars for an action that caused less than $24 in economic harm.
The action was prompted by a couple thousand songs, not just 24 songs, so the economic harm could be up to several thousand dollars (depending on how many people downloaded the songs she was sharing)--a number remarkably close to what the RIAA initially offers to settle for when they first contact people.
BTW, even if the RIAA could actually collect $1.5 million dollars, it would be a net loss for them. They've almost certainly spent more than that on legal fees so far.
For 1.5$ mil you can get 5 medium-level lawyers to work for you for entire year full-time. There is no indication that this case required this amount of legal power.
Well, how much would it have cost per song to purchase from the copyright holders licenses to do what she was doing?
A license to make and redistribute copies, with no restrictions on how many copies can be distributed, and no requirement to track how many copies are distributed or to whom, for a one-time lump sum payment is probably going to be rather expensive.
I understand what you're saying - but I doubt including a README with the contents "you agree to not distribute this file and delete it when done listening" would do little in minimizing any potential fines.
This is a silly argument, though - she was not distributing in perpetuity, and the result is way out of proportion with actual damages. If a total of 100 song copies were downloaded off of her computer, and market price of the songs are $1.30 on iTunes, the damages were no more than $130. In that case, it is as if she deprived them of a maximum of $130, and it should be treated as theft of that amount, at worst. Thieves don't pay back 10000x what they stole, they go to prison.
If she's very unlucky and it was downloaded 1.5 million times off of her computer (doubtful - Comcast would have shut down her computer for going way over her bandwidth quota, and the ratio of sharers to downloaders is quite a bit higher than 1:1000-1:1000000), then maybe it's justified.
This is even without factoring in the likelihood that those people would have bought that music otherwise, rather than downloading in bulk and listening to a small percentage, as is common.
So when three of the four major labels were refusing to give Apple permission to distribute DRM-free music on iTunes, but were allowing Amazon to distribute their music DRM free, would you argue that Apple could have just gone ahead and distributed the music without permission, as long as it went ahead and paid the labels the same that Amazon pays them?
So when I start throwing rocks and break one window a day of your 5000-window house and announce this intention, when you take me to court and stop me with an injunction after 5 windows, you can go ahead and sue for the repair costs of 5000 windows?
No, it is a completely different argument: if you do something that requires a license, and you don't have a license, the damages reasonably should be at least what a license would cost.
Otherwise, there would be no point in ever buying a license. You'd always be better off just using the item without permission, and then paying the penalty if caught.
Think about it like this: In the US, a corporation is a legal person.
However, corporations are composed of many people who run the company. A quick google brings up 158,500 in the case of sony. Since the judge broke down the payment to each person, we can re-constitute the number by the people in Sony she would have hurt. So 158,500 * 7.50 = 1,188,750; a number roughly similar to what she now has to pay. You know, maybe these justices are basing it ((song value * #of songs) * number of people in company)
Another comparison: suppose that every listener pirated music. Assume 2 billion listeners on earth, then the damages awarded would be 3000 trillion dollars. The GDP of the world is about 60 trillion.
52 comments
[ 2.4 ms ] story [ 94.2 ms ] threadEven after the last trial, RIAA offered to let her settle by paying $25K to a charity for struggling musicians. So, indeed, she has had several opportunities to "get off the hook" and, each time, the lawyers have come charging forward saying they will get her ultimately vindicated. Now, of course, she herself can't be excused because a client ultimately controls this decision no matter what the lawyers want to do. But lawyers are in a strong position to influence most clients and, as a middle-class mother of 4, I assume this client would not be taking ultra-aggressive legal steps unless the lawyers were encouraging this, in effect, making her a martyr for the cause (as "Above the Law" puts it: "The crappy thing about being a martyr is that you have to die" (http://abovethelaw.com/2010/11/sorry-file-sharing-lady-looks...).
This case really illustrates the ugly face of aggressive copyright enforcement while at the same time highlighting the sometimes questionable judgments people can make in responding to it.
How do you infringe a copyright by sharing something? Is sharing tantamount to distributing?
It's a really big slippery slope:
The jury was instructed that merely "making available" sufficed to constitute an infringement of the plaintiffs' distribution right, even without proof of any actual distribution.[1][11][12] The issue of whether copyright infringement required actual distribution was raised by the defense during examination of Sony BMG's head of litigation on the first day of trial, but the court sustained the plaintiffs' objection and did not permit the topic to be revisited until jury instructions were prepared just before the end of the trial.[12] Despite disagreement from the defense, the court proceeded to interpret making available as distribution for purposes of instructing the jury.[12]
http://en.wikipedia.org/wiki/Capitol_v._Thomas
She had downloaded and was sharing a couple thousand songs. I don't think we've been told what the RIAA's initial settlement offer was when they contacted her, but I believe those are generally in the $3-5k range.
Now at this point, you probably don't know how many songs they know you have pirated and are sharing, and of those you don't know how many they can actually prove. You can guess that they probably know about a lot, though, as they have generally only gone after big time sharers.
For every song that they can prove you violated copyright on, they will get a MINIMUM of $200 statutory damages if you can prove that you were an "innocent infringer". If not, the MINIMUM is $750 per song. (The maximum is something like $30k/song, raised up to something like $150k/song if they can show you were a willful infringer).
Being extremely optimistic, knowing that you've in fact infringed a couple thousand songs, and so calculating damages as an innocent infringer, all they need to do is get you on more than 25 songs, and your BEST CASE outcome is worse than just accepting the initial settlement.
If the innocent infringer thing doesn't fly, all they have to do is get you on 7 songs and you lose compared to accepting a $5k settlement offer up front.
A rational defendant would simply have jumped at the initial settlement offer, accepting that by pirating a couple thousand songs they were essentially taking a bet that they could get the songs for free, but if they lost they'd end up paying about 2.5 times per song than what they would have paid at iTunes.
She refused to settle. She tried to blame others, such as her kids, for the downloading. She tried to destroy evidence (after the other side knew about the evidence--if you are going to destroy evidence you really need to destroy it BEFORE the other side knows it exists). She lied about her actions under oath in court.
These are the kind of actions that make a jury think you are not an innocent infringer--in fact they make a jury think you are scum, and when told to pick damages from a big range, the jury tends to go high, not low on you.
She had another chance to be rational, as the RIAA again made a settlement offer after the first trial, for considerably less than they had won. I don't believe it was as good as their initial offer, but it was still pretty good--somewhere close to the bottom range of non-innocent infringer statutory damages for the 24 songs they actually ended up litigating over.
Nope, she fought and got another trial. She lost again (which makes since, given nothing had changed), and this new jury went much higher on damages. Oops. Now she's had a third trial, and another loss, and another jury going high.
And she's rejected a $25k settlement offer from the RIAA.
She should accept that offer, apologize for being such an idiot, and ask for donations. There will be enough sympathetic people to cover $25k.
And then someone should see if the lawyers who represented here can be brought up on ethical charges. It seems pretty clear that they used her in order to try out their cockamamie legal theories, and that they were acting in their interests, not in the interests of their client.
Frankly, this whole case has nothing to do with Thomas being a good person or an evil person stealing music, rational or irrational. The real question is why 1.5 million was awarded for something that's orders of magnitude less in damages. It's ridiculous.
Yes, you might be perfectly right and she should know the legal outcome in her country, but reading this here I somehow have to assume that Proposition 19 was accepted and the jury was stoned.
Again: I _know_ that the legal system is just different and I have no right to judge it. But I can compare it and say that this is completely out of perspective from my position here. Wow.
Horrible actions don't become less horrible just because you can come up with a facile excuse for them. $1.5M does not seem like a reasonable penalty, even if she isn't very likable and clearly was not in the right.
That isn't even remotely the argument that was made in the comment you're replying to.
Most people react _very_ emotional (and - for the most part - this is probably a really good thing) if you bring in arguments about sexual abuse (bonus points for minors).
Let's try to stop these comparisons. They are kind of like Godwin's law, killing the discussion in the process.
In fact - did already someone name this fact before? Can I claim? ;)
The whole "these bits are worth $X each" scenario becomes meta-absurd when you consider commercial infringement. At $60K/song, The Pirate Bay would be on the hook for more money than the Earth could produce before it was consumed by the sun.
I'd freaking settle, and write to my legislators suggesting that the law needed to be tweaked to allow for small time graffiti, where a reasonable penalty would be the cost of clean up plus enough to sting enough to discourage repeat offending.
One problem with my graffiti analogy is that there's a precise way to measure the actual harm to the victim from graffiti, whereas with file sharing it's very nebulous and almost entirely centered around punishment as opposed to restitution.
Cases like this are exactly why the Framers insisted on jury trials in the first place. Through the principle of Jury Nullification, jurors retain power over the law through sanctioned refusal to convict - even when the law has clearly been violated. This check exists as the last line of defense against lawmakers who are abusive, corrupt, and/or inept. For example, the ones who authorized these monstrous fines.
In 1972, the U.S. Court of Appeals for the District of Columbia said that the jury has an " unreviewable and irreversible power... to acquit in disregard of the instructions on the law given by the trial judge.... (US vs Dougherty, 473 F 2d 1113, 1139 (1972)). However, this ruling went on to note "The fact that there is widespread existence of the jury's prerogative, and approval of its existence as a necessary counter to case-hardened judges and arbitrary prosecutors, does not establish as an imperative that the jury must be informed by the judge of that power".
In other words, the judge is free to 'command' that the jury rule only on the law, not on its justice. And the jury is free to ignore him - but only if they're aware of the option.
I don't know if the 1972 ruling has been superseded. Assuming it hasn't, it appears that none of the judges (or the defense lawyers) made the rules clear. So now we get a legal fiasco, ridiculous public expense, and at least one ruined life.
The judge or a higher court can reverse a jury guilty verdict, so some such wrongly convicted defendants are spared, but most won't be so lucky. In most cases, there will be enough evidence offered to support conviction if the jury believes that evidence over the defendant's explanations, and so there is no way for the court to tell if the jury convicted because they felt the defendant was guilty, or if they convicted because they don't like the defendant's race, religion, sexual orientation, etc.
The Framers understood this, which is why they didn't require juries to be told of the nullification power. No one has ever managed to come up with a way to tell juries of nullification without taking a great risk that juries will figure out that they can also go the other way and convict when the law doesn't support it. Not telling the jury about the nullification power is essentially the check on the nullification power.
BTW, even if the RIAA could actually collect $1.5 million dollars, it would be a net loss for them. They've almost certainly spent more than that on legal fees so far.
A license to make and redistribute copies, with no restrictions on how many copies can be distributed, and no requirement to track how many copies are distributed or to whom, for a one-time lump sum payment is probably going to be rather expensive.
If she's very unlucky and it was downloaded 1.5 million times off of her computer (doubtful - Comcast would have shut down her computer for going way over her bandwidth quota, and the ratio of sharers to downloaders is quite a bit higher than 1:1000-1:1000000), then maybe it's justified.
This is even without factoring in the likelihood that those people would have bought that music otherwise, rather than downloading in bulk and listening to a small percentage, as is common.
Otherwise, there would be no point in ever buying a license. You'd always be better off just using the item without permission, and then paying the penalty if caught.
Nice try RIAA
What would be the punishment if she install rootkit in Sony or RIAA owned computer?
[1] http://www.pcworld.com/article/125838/settlement_ends_sony_r...
However, corporations are composed of many people who run the company. A quick google brings up 158,500 in the case of sony. Since the judge broke down the payment to each person, we can re-constitute the number by the people in Sony she would have hurt. So 158,500 * 7.50 = 1,188,750; a number roughly similar to what she now has to pay. You know, maybe these justices are basing it ((song value * #of songs) * number of people in company)
Lawyers: My fuzzy math is available for hire.