Argues that there’s no way Congress had “illegal but noncommercial music downloading” in mind when it enacted the statutory-damages provision of the Copyright Act, and that the music industry cannot prove any actual damages caused by her “beyond perhaps $1.29 per song or $15 per album in lost sales.”
Jammie Thomas is appealing her sickening $80,000 per song file-sharing judgment this time making the argument that her due process rights were violated because the statutory damages awarded in the case “are punitive in purpose or effect.”
“The concerns that trigger the due process inquiry — arbitrariness, variability, and unpredictability in awards — are here in spades; of this, the nearly order-of-magnitude difference between the verdicts in the first and second trials of Mrs. Thomas is unquestionable evidence,” reads the brief filed with the court. “An arbitrary award imposed pursuant to a statute is still arbitrary.”
Her lawyer cites the wide disparity between the $9,250 originally awarded for each of the 24 illegally shared songs and the $80,000 later awarded in a retrial of the case after Judge Michael Davis said he erred in instructing the jury that simply making music available in KaZaA’s “shared folder” was the same as copyright infringement.
Also taken to task is the fact that the music industry believes Congress intended for statutory damages to have a deterrence effect on others being that when it enacted the statutory-damages provision of the Copyright Act there’s no way it could have foreseen illegal, but noncommercial downloading of copyrighted material.
It continues:
The plaintiffs were not able to offer testimony about any actual damage one to them by Mrs. Thomas’s conduct beyond perhaps $1.29 per song or $15 per album in lost sales. In fact, under cross examination, Mr. Leak testified that he could not identify the particular harm, if any, caused by Mrs. Thomas’s conduct in particular. The testimony that the plaintiffs describe in their response relates to harm to the music industry from illegal music downloading in general, not from Mrs. Thomas’s conduct in particular. It would be unconstitutional to punish Mrs. Thomas for the generalized and widespread conduct of others, whatever the effect of that conduct might be on the plaintiffs.
Statutory damages were intended to seize any profits from commercial piracy not the sort of noncommercial activity seen here.
In fact, he Supreme Court has previously ruled that “compensatory damages are intended to redress a plaintiff’s concrete loss” which in this case is a mere 35 cents – 70 cents minus 35 saved for not having to distribute it – per each illegally downloaded song. A ratio of at most 10:1 makes $3.50 for each song for a grand total of $84 dollars and not $1.92 million.
For in 2003, in State Farm v. Campbell, the court ruled that a single-digit ratio (that is, no more than 9 to 1) was appropriate as a matter of due process in all but the most exceptional cases. Anything greater is excessive and violates the Due Process Clause of the Fourteenth Amendment.
The RIAA seems mostly unconcerned with her arguments and instead focuses mainly on barring Thomas from engaging in any future file-sharing as though her tiny 24 song, perhaps 200MB at most, music folder was the single cause of its deteriorating profits.
“Two separate juries have now found that Defendant engaged in willful copyright infringement of Plaintiffs’ sound recordings. The evidence at trial showed that Defendant knew what she was doing was wrong and that she did it anyway. The evidence also demonstrated that, after Defendant was caught, she tried to conceal her infringing conduct and provided false evidence to Plaintiffs and to her own expert in an effort to avoid liability. Since the second jury verdict against her, Defendant has remained unrepentant and obstinate, and has avowed that Plaintiffs will never recover any monetary relief from her. These circumstances demonstrate that Defendant’s illegal conduct will not be restrained by mere monetary damages, and that a permanent injunction in necessary to require that Defendant simply comply with the law under the Copyright Act,” it writes in its opposing brief.
All of this wasted time and effort for what? Making sure a suburban housewife from Minnesota locks up her 24 MP3s for good? I know guys running full-time servers sporting in excess of 2TB worth of music 24/7. At the end of the day the verdict won’t have the deterrence effect the RIAA seeks because the award is so obscenely high. It’s an amount beyond the comprehension of the majority of folks out there who probably earn an average of $40-50,000 per year.
If the damages awarded had been around $10 or 20,000 people would have taken notice and perhaps deterred them from engaging in illegal file-sharing, but $1.92 million might as well have been $1.92 billion or trillion.
Stay tuned.
jared@zeropaid.com
Related Posts
- Jammie Thomas Wants a Retrial, Says Damages Unconstitutional
- RIAA to Judge: “No More P2P for Jammie Thomas!”
- Jammie Thomas Fined $1.92 Million for Sharing 24 Songs
- Judge Tosses Out RIAA’s First File-Sharing Conviction, Thomas Granted New Trial!
- No Deal! Jammie Thomas to Appeal $1.92 Million Fine
Loading ...
No one wants to lose, but this suit shows that the RIAA wants ultimate revenge and they are taking it out on one person and they just can’t just let it go, and Jammie looks MAD too!
It’s like the bully who is angry beyond reason and wants to keep a fight going. The RIAA should put their resources into finding their place in the world instead of meaningless lawsuits.
many here in europe think that the us justice system is not independent, but it is in many ways sold to the lobby industry.
this way of judgement is far away from any thougt of justice
this is a shame for america and the whole so called democratic world, it is a shame for the real democratic idee of the founder the bill of rights from 1791
this way of judgement reminds on the times of kings and dictatores. it is a step back to the middle age
So what I dont get is, is say I physically stole a cd from a store, sat at my house and listened to it with my friends, then the RIAA finds out. What then? I doubt they would go after someone as hard as they do for someone just sharing.
Ya they would go after you. But only for the songs you shared. The Cops knocking at your door is the result of the theft of the CD.
Another problem is… the court only goes so high in the US ie Supreme Court? And no one who makes 50k a year can afford a lawyer that talented. But the RIAA can. And the best thing you can do is buy a gun to solve that problem.
Gwhiz’s explicitly wrote that he doesn’t share any song in that hypothetical scenario.
If your reading is that off to miss the obvious, I wouldn’t know what you were referring to in my comment.
“Gwhiz’s”
Should read
“Gwhiz”