Re: [Commons-Law] 1st Trial on file sharing- fines of 1.9 Million
Via: Pranesh Prakash
And more from Fred von Lohmann of the Electronic Frontier Foundation
(EFF), covering the same grounds more or less, but with a bit more
about the precedents in the excessive punitive damages vs. due process
bit::
The jury in the retrial of Ms. Jammie Thomas-Rasset deliberated only a
few hours today before concluding that she had [willfully infringed
the copyrights of 24 songs and awarding $1.92 million in statutory
damages][1] ($80,000 per recording) to the record label plaintiffs.
The verdict represents a huge increase over the $220,000 award in the
[original trial][2], which was overturned by the judge based on a
[faulty jury instruction][3] pushed by the record labels. Ms.
Thomas-Rasset has said she doesn't have the money to pay this award
(those wondering whether bankruptcy might protect her should consult
[EFF's 2007 memo][4] covering the intersection of copyright verdicts
and bankruptcy law, as well as [In re Barboza][5], 545 F.3d 702 (9th
Cir. 2008)).
[1]: http://arstechnica.com/tech-policy/news/2009/06/jammie-thomas-retrial-verdict.ars
[2]: http://www.eff.org/deeplinks/2007/10/riaa-convinces-jury-impose-fines-filesharing
[3]: http://www.eff.org/deeplinks/2008/09/capitol-v-thomas-judge-orders-new-trial-implores-c
[4]: http://w2.eff.org/IP/P2P/RIAA_v_ThePeople/P2P_bktcy_memo.pdf
[5]: http://www.ca9.uscourts.gov/datastore/opinions/2008/09/22/0656319.pdf
Given the size of the statutory damages award, Ms. Thomas-Rasset's
legal team will likely be seriously considering a constitutional
challenge to the verdict. A large and disproportionate damage award
like this raises at least two potential constitutional concerns.
First, the Supreme Court has made it clear that “grossly excessive”
punitive damage awards (e.g., [$2 million award against BMW for
selling a repainted BMW as "new"][6]) violate the Due Process clause
of the U.S. Constitution. In evaluating whether an award "grossly
excessive," courts evaluate three criteria: 1) the degree of
reprehensibility of the defendant’s actions, 2) the disparity between
the harm to the plaintiff and the punitive award, and 3) the
similarity or difference between the punitive award and civil
penalties authorized or imposed in comparable situations. Does a $1.92
million award for sharing 24 songs cross the line into "grossly
excessive"? And do these Due Process limitations [apply differently to
statutory damages than to punitive damages][7]? These are questions
that the court will have to decide if the issue is raised by Ms.
Thomas-Rasset's attorneys.
[6]: http://supreme.justia.com/us/517/559/case.html
[7]: http://www.ca6.uscourts.gov/opinions.pdf/07a0242p-06.pdf
Second, [recent Supreme Court rulings][8] suggest that a jury may not
award statutory damages for the express or implicit purpose of
deterring other infringers who are not parties in the case before the
court. In other words, the award should be aimed at deterring *this*
defendant, not giving the plaintiff a windfall in order to send a
message to others who might be tempted to infringe. It's hard to know
without having been in the courtroom, but if the record industry
lawyers urged the jury to "send a message" to the millions of other
American file-sharers out there, they may have crossed the
constitutional line.
[8]: http://www.supremecourtus.gov/opinions/06pdf/05-1256.pdf
For more on the details of these constitutional doctrines, I recommend
a recent article by Prof. Pamela Samuelson & Tara Wheatland,
[Statutory Damages in Copyright Law: A Remedy in Need of Reform][9]
(full disclosure: Prof. Samuelson is a member of EFF's board of
directors). For those who want a shorter summary of the debate in
podcast form, I recommend Prof. Douglas Lichtman's IP Colloquim
episode entitled [Statutory Damages and the Tenenbaum Litigation][10].
While I disagree with some of Prof. Lichtman's conclusions, his guests
do a wonderful job summarizing the relevant cases and concepts.
[9]: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1375604
[10]: http://www.ipcolloquium.com/Programs/5.html
I assume these arguments will first be submitted to the trial judge in
post-trial motions. After all, this judge has [already indicated][3]
that he found the previous $220,000 award to be "unprecedented and
oppressive."
On Wed, Jun 24, 2009 at 17:10, Pranesh Prakash wrote:
> 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.
>
> ### Pay it
>
> 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.
>
> ### Settle
>
> 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.
>
> ### Bankruptcy
>
>> 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.
>
> ### The constitutional challenge
>
> 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.
>
> ### Appeal
>
> 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.
>
> ### Change the law
>
> 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
>
And more from Fred von Lohmann of the Electronic Frontier Foundation
(EFF), covering the same grounds more or less, but with a bit more
about the precedents in the excessive punitive damages vs. due process
bit::
The jury in the retrial of Ms. Jammie Thomas-Rasset deliberated only a
few hours today before concluding that she had [willfully infringed
the copyrights of 24 songs and awarding $1.92 million in statutory
damages][1] ($80,000 per recording) to the record label plaintiffs.
The verdict represents a huge increase over the $220,000 award in the
[original trial][2], which was overturned by the judge based on a
[faulty jury instruction][3] pushed by the record labels. Ms.
Thomas-Rasset has said she doesn't have the money to pay this award
(those wondering whether bankruptcy might protect her should consult
[EFF's 2007 memo][4] covering the intersection of copyright verdicts
and bankruptcy law, as well as [In re Barboza][5], 545 F.3d 702 (9th
Cir. 2008)).
[1]: http://arstechnica.com/tech-policy/news/2009/06/jammie-thomas-retrial-verdict.ars
[2]: http://www.eff.org/deeplinks/2007/10/riaa-convinces-jury-impose-fines-filesharing
[3]: http://www.eff.org/deeplinks/2008/09/capitol-v-thomas-judge-orders-new-trial-implores-c
[4]: http://w2.eff.org/IP/P2P/RIAA_v_ThePeople/P2P_bktcy_memo.pdf
[5]: http://www.ca9.uscourts.gov/datastore/opinions/2008/09/22/0656319.pdf
Given the size of the statutory damages award, Ms. Thomas-Rasset's
legal team will likely be seriously considering a constitutional
challenge to the verdict. A large and disproportionate damage award
like this raises at least two potential constitutional concerns.
First, the Supreme Court has made it clear that “grossly excessive”
punitive damage awards (e.g., [$2 million award against BMW for
selling a repainted BMW as "new"][6]) violate the Due Process clause
of the U.S. Constitution. In evaluating whether an award "grossly
excessive," courts evaluate three criteria: 1) the degree of
reprehensibility of the defendant’s actions, 2) the disparity between
the harm to the plaintiff and the punitive award, and 3) the
similarity or difference between the punitive award and civil
penalties authorized or imposed in comparable situations. Does a $1.92
million award for sharing 24 songs cross the line into "grossly
excessive"? And do these Due Process limitations [apply differently to
statutory damages than to punitive damages][7]? These are questions
that the court will have to decide if the issue is raised by Ms.
Thomas-Rasset's attorneys.
[6]: http://supreme.justia.com/us/517/559/case.html
[7]: http://www.ca6.uscourts.gov/opinions.pdf/07a0242p-06.pdf
Second, [recent Supreme Court rulings][8] suggest that a jury may not
award statutory damages for the express or implicit purpose of
deterring other infringers who are not parties in the case before the
court. In other words, the award should be aimed at deterring *this*
defendant, not giving the plaintiff a windfall in order to send a
message to others who might be tempted to infringe. It's hard to know
without having been in the courtroom, but if the record industry
lawyers urged the jury to "send a message" to the millions of other
American file-sharers out there, they may have crossed the
constitutional line.
[8]: http://www.supremecourtus.gov/opinions/06pdf/05-1256.pdf
For more on the details of these constitutional doctrines, I recommend
a recent article by Prof. Pamela Samuelson & Tara Wheatland,
[Statutory Damages in Copyright Law: A Remedy in Need of Reform][9]
(full disclosure: Prof. Samuelson is a member of EFF's board of
directors). For those who want a shorter summary of the debate in
podcast form, I recommend Prof. Douglas Lichtman's IP Colloquim
episode entitled [Statutory Damages and the Tenenbaum Litigation][10].
While I disagree with some of Prof. Lichtman's conclusions, his guests
do a wonderful job summarizing the relevant cases and concepts.
[9]: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1375604
[10]: http://www.ipcolloquium.com/Programs/5.html
I assume these arguments will first be submitted to the trial judge in
post-trial motions. After all, this judge has [already indicated][3]
that he found the previous $220,000 award to be "unprecedented and
oppressive."
On Wed, Jun 24, 2009 at 17:10, Pranesh Prakash wrote:
> 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.
>
> ### Pay it
>
> 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.
>
> ### Settle
>
> 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.
>
> ### Bankruptcy
>
>> 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.
>
> ### The constitutional challenge
>
> 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.
>
> ### Appeal
>
> 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.
>
> ### Change the law
>
> 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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