Posted on 10/16/2007 9:29:40 AM PDT by TChris
A week after signaling her intention to appeal the $222,000 copyright infringement verdict handed down by a federal jury, Jammie Thomas has filed her notice of appeal with the US District Court for the District of Minnesota. Somewhat surprisingly, Thomas is citing the amount of the award as her grounds for the appeal, rather than the jury instructions.
According to a copy of Thomas' motion seen by Ars, Thomas wants a retrial on the actual damages allegedly suffered by the record labels as the result of the sharing of the 24 recordings she was found to have distributed via KaZaA. Her argument is that the award handed down by the jury is unconstitutionally excessive.
It's an argument that has been raised in other file-sharing cases. We first saw it made in the case of UMG v. Lindor, where Marie Lindor's attorney Ray Beckerman argued that the RIAA's actual damages are in the neighborhood of 70¢ per song, less than 0.1 percent of the minimum statutory damage award of $750. Lindor—and others—have argued that, since the labels get about 70¢ of each 99¢ download sale, that's all the damages the record labels are entitled to collect.
(Excerpt) Read more at arstechnica.com ...
Civil awards have gotten out of control, with no basis in fact or reason. Especially in these RIAA cases, which are waaaaay flimsy from the outset, ludicrous awards should be thrown in the trash.
In this case, the damages should have been no more than 3 times the cost of purchase of the CD’s for the songs that are in question, times the number of times each song is downloaded.
They will argue that the loss was not related to her single download, rather to the “millions” of people that she illegally allowed to download the song from her computer.
I agree that these awards are outrageously excessive. Unless the plaintiffs can demonstrate that the defendant marketed the songs or distributed the songs to many other people, I cannot see any justification these large damage amounts.
They will argue that the loss was not related to her single download, rather to the “millions” of people that she illegally allowed to download the song from her computer.
They have to prove actual damages, not potential damages. IOW, how many times were the songs actually downloaded from her computer? That's the salient fact which is missing.
Unless they can PROVE that 314,000 people downloaded those songs, the award is excessive.
There's a huge pile of relevant case law on shoplifting, which seems to be the closest pre-Internet crime to illegal file sharing. Looking at those cases, along with cases involving small-time illegal copying of video tapes, etc., should help iron out what's reasonable in these cases.
In any event, I thought that proving actual damages was required in any civil case. These RIAA lawsuits are playing fast and loose with the standards of civil litigation, and it's going to have bad consequences, IMO. They are de facto criminal prosecutions, punishing defendants for bad behavior rather than exacting reparations for proven losses.
Heres the problem...
She needs to demonstrate how many times the song was downloaded from her.... whoops is she now admitting to putting files up on Kazaa?
If she was using torrent software and the songs were popular, pieces of the file probably went to hundreds if not thousands of people.
The damages are statutory, I don’t think they have to prove actual damages anyway. Not that I agree with RIAA but the defendent would have to prove that the statutory damages are unconstitutional which I think would be pretty tough. It would be like trying to say double fines in a construction zone are unconstitutional.
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Exactly. There should also be a punitive component to this award to deter others from doing the same.
I don't. This isn't a jury giving out major cash out of proportion. I'd agree with the defense if the label had pursued actual damages, but they didn't -- they pursued statutory damages. She got off light considering what the potential damages were. Statutory damages are there for everyone, including the guy who writes free software where no actual damages could ever be claimed if a company started infringing on his copyrights.
However, I do question the judge's "making available == infringement" ruling. IMHO, it can't be infringement if no copies were actually traded. The law would need to change to make that infringement. I also remember something about failure to produce copyright registrations for the songs. You can't go statutory without registering.
Digital copyright law is obsolete because it is unenforceable without police-state monitoring and control of everything you do on your computer and the internet. They are going to have to find another way to make money. Or better yet, the middlemen between artist and consumer should just dry up and blow away.
Well, recently the RIAA and MPAA complained to the California state legislature and demanded an exemption from a bill that outlaws pretexting by private entities toward customers.
Agreed.
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