Re: [Commons-Law] 1st Trial on file sharing- fines of 1.9 Million
Via: Pranesh Prakash
Ars Technica gives a run-down of the six possible options facing
Jamiie Thomas-Rasset:
Now that Jammie Thomas-Rasset owed $1.92 million to the recording
industry for sharing 24 songs on KaZaA back in 2005, the case might
seem to be closed. In reality, though, Thomas-Rasset still has
numerous options for dealing with the verdict. Let's run them down.
According to Thomas-Rasset, paying the $1.92 million damage award is
simply impossible. As a brownfield development coordinator for the
Mille Lacs band of the Ojibwe, Thomas-Rasset doesn't bring the cash
home in wheelbarrows. "Like squeezing blood from a turnip," is how she
described any attempt to collect on the judgment.
According to Thomas-Rasset's testimony during the trial, she could
have settled back in 2005 for $5,000. The RIAA says that the amount
was somewhere between $3,000-5,000; more importantly, it remains
willing to settle the case.
Our understanding is that Thomas-Rasset has simply been unwilling to
negotiate a settlement; she would rather pay nothing, continually
claiming innocence. A judicially-ordered settlement conference before
the trial produced nothing.
Kiwi Camara, Thomas-Rasset's lawyer, said yesterday that she would
examine a settlement offer, but he wouldn't commit to anthing.
Certainly, when facing a $1.92 million award, $5,000 looks like a
bargain—the amount wouldn't even cover the plane tickets for recording
industry attorneys to attend the trial.
But if you feel that the record industry is "extorting" you, this is
no doubt an unappetizing plan.
> The sheer, outrageous size of the damage award in the case is already prompting calls to change the law.
Bankruptcy is of course an option, but there are potential
complications: not all debts can actually be discharged in bankruptcy
court. Back in 2007, the EFF [prepared a brief report][1] on the
issue, intended for lawyers who were arguing exactly these types of
cases.
[1]: http://w2.eff.org/IP/P2P/RIAA_v_ThePeople/P2P_bktcy_memo.pdf
The report pointed out that copyright infringement judgments can be
discharged, unless the infringement was ruled to be a "willful and
malicious injury." (Note that although Thomas-Rasset was found liable
for "willful" copyright infringement, this is a separate standard that
requires a separate judicial ruling on her state of mind.)
The issue doesn't come up often with relation to copyright
infringement judgments against individuals, of course, so it's not
clear how this might unfold. The takeaway, though, is that clearing
the debt in bankruptcy court is possible, but not guaranteed. Should
Thomas-Rasset take this route and fail to have the debt discharged,
settlement would suddenly look like a super-appealing alternative to
having wages garnished for the rest of one's life.
Though the case is "over," it's not actually over. The jury has made
its ruling on the facts of the case, but Judge Michael Davis can still
run on matters of law. One key matter, made even more relevant by the
massive $80,000 per-song damage award, is the [constitutionality of
such a damage award][2]. Is it an "excessive fine" under the Eighth
Amendment?
[2]: http://www.eff.org/deeplinks/2009/06/record-labels-awarde
That amendment says that "excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments inflicted."
Camara has already indicated that he plans to contest the award on
these grounds unless Thomas-Rasset takes a settlement.
Would it work? Recall that after the first trial, Judge Davis took his
opportunity to assail that verdict with these words: "Thomas allegedly
infringed on the copyrights of 24 songs—the equivalent of
approximately three CDs, costing less than $54, and yet the total
damages awarded is $222,000—more than five hundred times the cost of
buying 24 separate CDs and more than four thousand times the cost of
three CDs. While the Copyright Act was intended to permit statutory
damages that are larger than the simple cost of the infringed works in
order to make infringing a far less attractive alternative than
legitimately purchasing the songs, surely damages that are more than
one hundred times the cost of the works would serve as a sufficient
deterrent."
Given that that penalty is now eight times greater than it was in that
case, we can certainly expect Judge Davis to give the issue a close
look. Davis, the [first African-American judge][3] to head up the
Minnesota US District Court, is no lightweight justice who was just
fitted for his robe. He was appointed to a lifetime seat on the
federal bench back in 1994 and has already served a term on the
nation's Foreign Intelligence Surveillance Court—the most secret
chamber in the country.
[3]: http://minnesota.publicradio.org/display/web/2008/06/26/new_chief/
He showed no emotion at all during the verdict yesterday, of course,
but based on his previous comments about this case, it's hard not
imagine him holding out hope that a well-argued set of legal
challenges comes his way and allows him at least some discretion in
mitigating the award.
Such motions would take place within the federal courts, but
Thomas-Rasset could also appeal the entire case to the Eighth Circuit
Court of Appeals, too. Federal appellate cases are generally
high-profile, high-cost affairs, but the legal team of Camara and
Sibley have indicated their continued willingness to represent
Thomas-Rasset.
The sheer, outrageous size of the damage award in the case is already
prompting calls to change the law. Even among the Ars commentariat,
plenty of readers believe that Thomas-Rasset did infringe the 24
copyrights at issue, but there was near universal disdain for the jury
and for the law that allowed such an award.
But the outrage isn't confined to the blogosphere. The Washington
lobby group CCIA, backed by AMD, Microsoft, Yahoo, Google, and others,
calls the verdict "ridiculous."
"Our copyright laws are overbroad, being misused and enforced with a
zeal out of proportion to common sense," said CEO Ed Black. "When Sony
BMG massively and illegally distributed music CDs containing spyware
that compromised individual users' computer security and infected
government and military networks worldwide, the FTC only ordered them
in 2007 to reimburse end-users up to $150 for computer damages. Yet
when Ms. Thomas shared 24 songs belonging to Sony BMG and other labels
on the Internet, she was penalized $80,000 for each single track."
He concluded, "Copyright law was created in a different era for
different business models. It needs to be reformed."
Judge Davis feels the same way and has already "implored" Congress to
"amend the Copyright Act to address liability and damages in
peer‐to-peer network cases such as the one currently before this
Court."
University of California law professor Pam Samuelson, an expert on
statutory damages and copyright law, also [called for reform][4] in a
[fascinating paper][5] released in April 2009.
[4]: http://arstechnica.com/tech-policy/news/2009/04/profs-protest-massive-p2p-damage-awards.ars
[5]: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1375604
In reference to the first Thomas-Rasset judgment, Samuelson concluded,
"Some jurors in the Thomas case wanted to award $750 per infringed
song, while others argued for $150,000 per song; why they compromised
on $9250 per song is a mystery. In today’s world where the average
person in her day-to-day life interacts with many copyrighted works in
a way that may implicate copyright law, the dangers posed by the lack
of meaningful constraints on statutory damage awards are particularly
acute."
One key suggestion for reform: allowing judges to revise damage awards
to below the current $750 minimum threshold in such cases.
Had the amount been a "mere" $750 a song, for an $18,000 total fine,
the Thomas-Rasset case would have offered little incentive to reform
the law. But when the first of the RIAA's 30,000+ actions goes to
trial and the plaintiffs emerge with a $1.92 million award...
legislators may take notice.
On Sun, Jun 21, 2009 at 17:24, Pranesh Prakash wrote:
> Lawrence, just wanted to add a few points:
> 1. There is excellent coverage of this case at Ars Technica
> , whose reporter Nate Anderson was present during
> the proceedings.
> 2. According to most observers, the quantum of the damages will work
> against the RIAA because they will lose a) credibility (USD 80,000 per
> song???) resulting in a backlash of opinion; b) will increase the
> strength of the unconstitutionality arguments being championed by
> Prof. Charles Nesson (in the Joel Tenenbaum case) (U.S. law allows
> claims from $750 all the way up to $150,000).
> 3. There is a chance of this being settled by the RIAA and Thomas-Rasset
> 4. The quantum of damages allows Thomas-Rasset to plead bankruptcy
> under an interpretation by a court that 'wilful' under bankruptcy law
> is not the same as 'wilful' in copyright law -- that in bankruptcy law
> 'wilful and malicious' intent has to be shown, and that this would be
> difficult to show (hence allowing her to declare bankruptcy).
> 5. There a torrent with 24 "representative" songs that the RIAA took
> to court available on The Pirate Bay.
>
> On Sat, Jun 20, 2009 at 09:56, Lawrence Liang wrote:
>> US mum is guilty of file-sharing
>> By Jonathan Blake
>> Newsbeat US reporter
>>
>> A woman has been ordered to pay $1.9 million (£1.2m) in the only
>> file-sharing case to go to trial in the US.
>>
>> A jury in Minnesota ruled Jammie Thomas-Rasset, 32, had violated music
>> copyright and must pay damages to the record industry.
>>
>> The mother of four from Minnesota was accused of illegally sharing 24 songs
>> from artists including Sheryl Crow and Green Day.
>>
>> Outside the courtroom Thomas-Rasset said the damages were "ridiculous".
>>
>> It was the second time record companies had taken Thomas-Rasset to court.
>> The first trial ended without a verdict.
>>
>> A spokeswoman for the Recording Industry Association of America said the
>> companies were willing to settle out of court for a much smaller amount.
>>
>> "Since day one we have been willing to settle this case and we remain
>> willing to do so," said Cara Duckworth from the RIAA.
>>
>> Previous cases
>>
>> Most people targeted by the music industry had settled for around £1,500
>> each.
>>
>> It is not clear if Thomas-Rasset plans to appeal against the decision.
>>
>>
>> This case was the only one of more than 30,000 similar lawsuits to make it
>> to trial.
>>
>> Record companies accused Thomas-Rasset of uploading 1,700 songs to the Kazaa
>> file-sharing site before it became a legal service.
>>
>> In court she described herself as a "huge music fan".
>>
>> Defence lawyers argued companies could not prove that she was sharing the
>> songs, suggesting her children or ex-husband may have done it.
>>
>> Companies including Sony, BMI, Universal and Warner Music say they are now
>> concentrating on working with internet service providers to crack down on
>> the worst offenders of file-sharing.
>>
>> Online piracy has been blamed for a decline in music sales in recent years.
>>
>> Thomas-Rasset said she has no means of paying the fine: "There's no way
>> they're ever going to get that.
>>
>> "I'm a mom, limited means, so I'm not going to worry about it now."
>> _______________________________________________
>> commons-law mailing list
>> commons-law@sarai.net
>> https://mail.sarai.net/mailman/listinfo/commons-law
>>
>>
>
>
>
> --
> Pranesh Prakash
> Programme Manager
> Centre for Internet and Society
> W: http://cis-india.org | T: +91 80 40926283
>
--
Pranesh Prakash
Programme Manager
Centre for Internet and Society
W: http://cis-india.org | T: +91 80 40926283
_______________________________________________
Ars Technica gives a run-down of the six possible options facing
Jamiie Thomas-Rasset:
Now that Jammie Thomas-Rasset owed $1.92 million to the recording
industry for sharing 24 songs on KaZaA back in 2005, the case might
seem to be closed. In reality, though, Thomas-Rasset still has
numerous options for dealing with the verdict. Let's run them down.
According to Thomas-Rasset, paying the $1.92 million damage award is
simply impossible. As a brownfield development coordinator for the
Mille Lacs band of the Ojibwe, Thomas-Rasset doesn't bring the cash
home in wheelbarrows. "Like squeezing blood from a turnip," is how she
described any attempt to collect on the judgment.
According to Thomas-Rasset's testimony during the trial, she could
have settled back in 2005 for $5,000. The RIAA says that the amount
was somewhere between $3,000-5,000; more importantly, it remains
willing to settle the case.
Our understanding is that Thomas-Rasset has simply been unwilling to
negotiate a settlement; she would rather pay nothing, continually
claiming innocence. A judicially-ordered settlement conference before
the trial produced nothing.
Kiwi Camara, Thomas-Rasset's lawyer, said yesterday that she would
examine a settlement offer, but he wouldn't commit to anthing.
Certainly, when facing a $1.92 million award, $5,000 looks like a
bargain—the amount wouldn't even cover the plane tickets for recording
industry attorneys to attend the trial.
But if you feel that the record industry is "extorting" you, this is
no doubt an unappetizing plan.
> The sheer, outrageous size of the damage award in the case is already prompting calls to change the law.
Bankruptcy is of course an option, but there are potential
complications: not all debts can actually be discharged in bankruptcy
court. Back in 2007, the EFF [prepared a brief report][1] on the
issue, intended for lawyers who were arguing exactly these types of
cases.
[1]: http://w2.eff.org/IP/P2P/RIAA_v_ThePeople/P2P_bktcy_memo.pdf
The report pointed out that copyright infringement judgments can be
discharged, unless the infringement was ruled to be a "willful and
malicious injury." (Note that although Thomas-Rasset was found liable
for "willful" copyright infringement, this is a separate standard that
requires a separate judicial ruling on her state of mind.)
The issue doesn't come up often with relation to copyright
infringement judgments against individuals, of course, so it's not
clear how this might unfold. The takeaway, though, is that clearing
the debt in bankruptcy court is possible, but not guaranteed. Should
Thomas-Rasset take this route and fail to have the debt discharged,
settlement would suddenly look like a super-appealing alternative to
having wages garnished for the rest of one's life.
Though the case is "over," it's not actually over. The jury has made
its ruling on the facts of the case, but Judge Michael Davis can still
run on matters of law. One key matter, made even more relevant by the
massive $80,000 per-song damage award, is the [constitutionality of
such a damage award][2]. Is it an "excessive fine" under the Eighth
Amendment?
[2]: http://www.eff.org/deeplinks/2009/06/record-labels-awarde
That amendment says that "excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments inflicted."
Camara has already indicated that he plans to contest the award on
these grounds unless Thomas-Rasset takes a settlement.
Would it work? Recall that after the first trial, Judge Davis took his
opportunity to assail that verdict with these words: "Thomas allegedly
infringed on the copyrights of 24 songs—the equivalent of
approximately three CDs, costing less than $54, and yet the total
damages awarded is $222,000—more than five hundred times the cost of
buying 24 separate CDs and more than four thousand times the cost of
three CDs. While the Copyright Act was intended to permit statutory
damages that are larger than the simple cost of the infringed works in
order to make infringing a far less attractive alternative than
legitimately purchasing the songs, surely damages that are more than
one hundred times the cost of the works would serve as a sufficient
deterrent."
Given that that penalty is now eight times greater than it was in that
case, we can certainly expect Judge Davis to give the issue a close
look. Davis, the [first African-American judge][3] to head up the
Minnesota US District Court, is no lightweight justice who was just
fitted for his robe. He was appointed to a lifetime seat on the
federal bench back in 1994 and has already served a term on the
nation's Foreign Intelligence Surveillance Court—the most secret
chamber in the country.
[3]: http://minnesota.publicradio.org/display/web/2008/06/26/new_chief/
He showed no emotion at all during the verdict yesterday, of course,
but based on his previous comments about this case, it's hard not
imagine him holding out hope that a well-argued set of legal
challenges comes his way and allows him at least some discretion in
mitigating the award.
Such motions would take place within the federal courts, but
Thomas-Rasset could also appeal the entire case to the Eighth Circuit
Court of Appeals, too. Federal appellate cases are generally
high-profile, high-cost affairs, but the legal team of Camara and
Sibley have indicated their continued willingness to represent
Thomas-Rasset.
The sheer, outrageous size of the damage award in the case is already
prompting calls to change the law. Even among the Ars commentariat,
plenty of readers believe that Thomas-Rasset did infringe the 24
copyrights at issue, but there was near universal disdain for the jury
and for the law that allowed such an award.
But the outrage isn't confined to the blogosphere. The Washington
lobby group CCIA, backed by AMD, Microsoft, Yahoo, Google, and others,
calls the verdict "ridiculous."
"Our copyright laws are overbroad, being misused and enforced with a
zeal out of proportion to common sense," said CEO Ed Black. "When Sony
BMG massively and illegally distributed music CDs containing spyware
that compromised individual users' computer security and infected
government and military networks worldwide, the FTC only ordered them
in 2007 to reimburse end-users up to $150 for computer damages. Yet
when Ms. Thomas shared 24 songs belonging to Sony BMG and other labels
on the Internet, she was penalized $80,000 for each single track."
He concluded, "Copyright law was created in a different era for
different business models. It needs to be reformed."
Judge Davis feels the same way and has already "implored" Congress to
"amend the Copyright Act to address liability and damages in
peer‐to-peer network cases such as the one currently before this
Court."
University of California law professor Pam Samuelson, an expert on
statutory damages and copyright law, also [called for reform][4] in a
[fascinating paper][5] released in April 2009.
[4]: http://arstechnica.com/tech-policy/news/2009/04/profs-protest-massive-p2p-damage-awards.ars
[5]: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1375604
In reference to the first Thomas-Rasset judgment, Samuelson concluded,
"Some jurors in the Thomas case wanted to award $750 per infringed
song, while others argued for $150,000 per song; why they compromised
on $9250 per song is a mystery. In today’s world where the average
person in her day-to-day life interacts with many copyrighted works in
a way that may implicate copyright law, the dangers posed by the lack
of meaningful constraints on statutory damage awards are particularly
acute."
One key suggestion for reform: allowing judges to revise damage awards
to below the current $750 minimum threshold in such cases.
Had the amount been a "mere" $750 a song, for an $18,000 total fine,
the Thomas-Rasset case would have offered little incentive to reform
the law. But when the first of the RIAA's 30,000+ actions goes to
trial and the plaintiffs emerge with a $1.92 million award...
legislators may take notice.
On Sun, Jun 21, 2009 at 17:24, Pranesh Prakash wrote:
> Lawrence, just wanted to add a few points:
> 1. There is excellent coverage of this case at Ars Technica
> , whose reporter Nate Anderson was present during
> the proceedings.
> 2. According to most observers, the quantum of the damages will work
> against the RIAA because they will lose a) credibility (USD 80,000 per
> song???) resulting in a backlash of opinion; b) will increase the
> strength of the unconstitutionality arguments being championed by
> Prof. Charles Nesson (in the Joel Tenenbaum case) (U.S. law allows
> claims from $750 all the way up to $150,000).
> 3. There is a chance of this being settled by the RIAA and Thomas-Rasset
> 4. The quantum of damages allows Thomas-Rasset to plead bankruptcy
> under an interpretation by a court that 'wilful' under bankruptcy law
> is not the same as 'wilful' in copyright law -- that in bankruptcy law
> 'wilful and malicious' intent has to be shown, and that this would be
> difficult to show (hence allowing her to declare bankruptcy).
> 5. There a torrent with 24 "representative" songs that the RIAA took
> to court available on The Pirate Bay.
>
> On Sat, Jun 20, 2009 at 09:56, Lawrence Liang wrote:
>> US mum is guilty of file-sharing
>> By Jonathan Blake
>> Newsbeat US reporter
>>
>> A woman has been ordered to pay $1.9 million (£1.2m) in the only
>> file-sharing case to go to trial in the US.
>>
>> A jury in Minnesota ruled Jammie Thomas-Rasset, 32, had violated music
>> copyright and must pay damages to the record industry.
>>
>> The mother of four from Minnesota was accused of illegally sharing 24 songs
>> from artists including Sheryl Crow and Green Day.
>>
>> Outside the courtroom Thomas-Rasset said the damages were "ridiculous".
>>
>> It was the second time record companies had taken Thomas-Rasset to court.
>> The first trial ended without a verdict.
>>
>> A spokeswoman for the Recording Industry Association of America said the
>> companies were willing to settle out of court for a much smaller amount.
>>
>> "Since day one we have been willing to settle this case and we remain
>> willing to do so," said Cara Duckworth from the RIAA.
>>
>> Previous cases
>>
>> Most people targeted by the music industry had settled for around £1,500
>> each.
>>
>> It is not clear if Thomas-Rasset plans to appeal against the decision.
>>
>>
>> This case was the only one of more than 30,000 similar lawsuits to make it
>> to trial.
>>
>> Record companies accused Thomas-Rasset of uploading 1,700 songs to the Kazaa
>> file-sharing site before it became a legal service.
>>
>> In court she described herself as a "huge music fan".
>>
>> Defence lawyers argued companies could not prove that she was sharing the
>> songs, suggesting her children or ex-husband may have done it.
>>
>> Companies including Sony, BMI, Universal and Warner Music say they are now
>> concentrating on working with internet service providers to crack down on
>> the worst offenders of file-sharing.
>>
>> Online piracy has been blamed for a decline in music sales in recent years.
>>
>> Thomas-Rasset said she has no means of paying the fine: "There's no way
>> they're ever going to get that.
>>
>> "I'm a mom, limited means, so I'm not going to worry about it now."
>> _______________________________________________
>> commons-law mailing list
>> commons-law@sarai.net
>> https://mail.sarai.net/mailman/listinfo/commons-law
>>
>>
>
>
>
> --
> Pranesh Prakash
> Programme Manager
> Centre for Internet and Society
> W: http://cis-india.org | T: +91 80 40926283
>
--
Pranesh Prakash
Programme Manager
Centre for Internet and Society
W: http://cis-india.org | T: +91 80 40926283
_______________________________________________
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