Maybe it’s our imagination, but last we checked, Joel Tenenbaum is not an admin of ThePirateBay nor did he have much involvement in the creation of the mixtape outside of the court documents that listed the songs in the first place.

Still, that doesn’t stop the RIAA member from pulling out all of the stops against Tenenbaum. In court documents, plaintiffs argued, “on or about August 14, 2009, Defendant posted to the “JoelFightsBack” twitter
site—a site intended to publicize Defendant and this case—the following post: “interesting: a
“joel” torrent list of the 30 songs is now on thepirateBay/other torrent sites and is being DL
widely in protest. #JFB.”

The document continues, “The Pirate Bay’s homepage, to which Defendant directed his readers,
prominently featured a photograph of Defendant and an advertisement and link to an allegedly
RIAA approved torrent, “DJ Joel – The $675,000 Mixtape,” containing the 30 songs at issue in
this case”

The document contained a screen shot of the home page of ThePirateBay which, at the time, featured the $675,000 mixtape. The document says, “When a user clicks on the image, they are brought to a Torrent site that allows users to easily, and without authorization or cost, download the 30 sound recordings for which
Defendant was found liable.”

“Additionally, Defendant’s website regarding this case, www.joelfightsback.com, includes literally dozens of other users who have picked up the “tweet” from joelfightsback and have reposted it to their own blogs and twitter feeds, thereby encouraging countless other individuals to illegally download these 30 songs “in protest” [...] In short, despite the verdict and a clear finding of willful copyright infringement by Defendant, he continues to promote, indeed advertise, illegal online file-sharing of Plaintiffs’ copyrighted sound recordings—the very sound recordings for which a jury found him liable for willful copyright infringement”

It should be noted that there were three other arguments to support the plaintiffs conclusion, but using the mixtape someone half way around the world posted on a Swedish website as reason to say that Tenenbaum is contributing to copyright infringement (we aren’t aware of any evidence in the plaintiffs court documents that Tenebaum linked to that website in the first place) is absurd at best. If someone photoshopped a picture of Bill Gates breaking in to a car, does that make Bill Gates liable for car theft if it was posted online? The only thing plaintiffs showed was that Tenebaum mentioned the mixtape. If one were to say, “Interesting that someone in America would take cocaine”, is that somehow endorsing illegal drug use?

So what is the plaintiff asking for?

This court should permanently enjoining defendant from committing, or acting in concert with others in committing, future infringement of plaintiffs’ copyrights

This court should enter the monetary judgement awarded by the jury on July 31, 2009

It’s an extremely bizarre argument to make that suggests that others actions are somehow your fault even though you took no part in the creation or actions that started to, in this case, create the actual mixtape in the first place. It’s a growing theme that the copyright industry wants to double-dip – you are sued for your action and the action of your friend. Then that friend is sued for their action as well as yours. Essentially, it’s like your being sued twice for the same action.

We wonder how such an argument could be taken seriously, but then again, there are reasons why some believe the American court system has been bought and paid for by corporate America.

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Prosecutors are calling it a landmark decision when they successfully sued two web hosting companies and the owner of the websites for trademark infringement. The web hosting companies that were sued are Akanoc Solutions Inc. and Managed Solutions Group Inc.

Apparently, the web hosting companies were contacted by trademark owners over the website owner – who just so happens to be the same owner of the hosting companies – selling the counterfeiting material. When the website owner, Steven Chen, received the demands to take down the website, he refused to take action. That’s what prompted the lawsuit against the companies and the website owner.

On the surface, the case seems to have been a big victory against people who sell infringing material – something that many would celebrate over. However, the case has sparked interesting debate, particularly on Slashdot, over whether or not this has a chilling effect on free speech as well because of the precedent set.

On the international stage, contributing to infringement has been one of the weapons the copyright industry has been using with sometimes surprising success. OiNK, a while back, had legal troubles when their domain name registrar was threatened with legal action if they didn’t discontinued support for the domain name. The Registrar folded and users quickly found their website seemingly offline (although connecting directly to the IP address would reveal that the site was still operational. This caused the website to be forced to move to a different domain. More recently, the “ISP of the ISP” was pressured into blocking ThePirateBay. That was a case where the owners remarked how the copyright industry was going after people who contribute to who contribute to who contribute to who contribute to copyright infringement – a case that brought ThePirateBay down for a mere couple of hours.

Let’s say this latest case does cause a chilling effect in US web hosting companies. That chilling effect that websites are taken down on a mere allegation of copyright infringement or trademark infringement or being threatened with legal action citing this particular case. All it’s really going to do is cause many website owners to simply pack up shop and take their business off American shores – whether they have legitimate reasons or not. This will be at the detriment to American businesses because many will fear that their website will be here today, gone tomorrow. Clearly, then, it would be a court decision that is bad for business.

In this case, it seems a little less likely that such a precedent has been set that the safe harbour provisions have effectively been rendered moot. This is because in this case, the owner of the website was also the owner of the hosting company. Why this is important is because the web hosting owner had full knowledge of the activities of that particular website. In most other cases, the web hosting company doesn’t know what is going on in every given website – only that they receive money at regular intervals in time.

So, it’s really a murky ruling over whether or not free speech and the safe harbour provision has been harmed or not. What it probably will depend on is what future court cases would bring as a result of this ruling.

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The copyright industry, which consists of almost entirely foreign interests, have already resorted to insulting the process. Throughout the whole process, a vast majority of Canadian submissions have called for expanding fair dealings and blocking blanket anti-circumvention legislation to name just two.

The tiny minority of people who have called for tighter copyright laws are feeling, unsurprisingly, threatened. The copyright industry managed to rig the most recent town hall meeting so as to shut out any dissenting voices to their calls.

Just hours after news broke that they stacked an entire townhall meeting in their favour, the Canadian Federation of Students revealed that when they found out about last minute changes to the consultation, they attempted to hand out fliers at the town hall meeting only to be threatened with arrest by security. From their press release:

Heritage Minister James Moore and Industry Minister Tony Clement have been leading a round of public consultations on copyright reform. Thursday night’s meeting was one of two town halls designed to facilitate discussion from hundreds of live participants and online followers.

Because of the last-minute introduction of a lottery system that did not guarantee those participating the right to speak, students attempted to circulate a flyer detailing their position on copyright reform. Event organisers used private security guards to prevent the distribution of the flyers, threatening to remove the students from the premises of the hotel where the consultation was being held. The flyers contained an introduction to copyright that provided a summary of the results of campus copyright consultations held by the Canadian Federation of Students throughout Spring 2009.

“With the ever increasing cost of education, students should not have to pay even more to access the material they require to be able to study, research, and learn,” said Melanson. “It is ironic that while students are concerned that new legislation may allow copyright owners to lock up information, the government is locking up its own consultations.”

Here’s a copy of the flier that was handed out (PDF)

While not everyone agrees that the government is playing a roll in trying to tip the balance of the debate into the foreign copyright industry’s favour, there is increasing evidence that this is the case.

NDP MP Olivia Chow also helped to distribute the fliers, so she knows all about the incident where students were threatened with arrest. Unfortunately, the fallout has since deepened with the American Federation of Musicians issuing an e-mail, calling the calls for “balanced copyright” “disgusting”. Michael Geist has a copy of that e-mail:

Greetings to all.

I am attaching a flyer that was handed out by Olivia Chow at last night’s Copyright Town Hall meeting at the Royal York in Toronto. I am sure all of you will find its content equally as disgusting as I did.

In light of the fact that the NDP at its convention in Halifax this month dealt with a resolution identified as 6-21-09 Expanding Party Policy on “Supporting Canadian Creativity”, and showed clear support for “ensuring appropriate copyright protection so that creators are fairly compensated for their intellectual property”, I am shocked that both Chow and Charlie Angus are allowed to openly depart from party policy and directive, obviously just to shamelessly buy votes among young people and academics.

We intend on taking the NDP to task over this, and will accept nothing less than a retraction of Ms Chow’s statements and an apology.

What is there to apologize for? Exercising free speech or is the American Federation of Musicians also against free speech in general? Was it not enough to threaten your opponents with arrest and rig an entire town hall meeting, now you demand an apology because someone disagrees with you in a country where a vast majority of people who have spoken on the issue of copyright disagrees with you? Who’s really the disgusting one here?

It’s increasingly obvious that the copyright industry saw the consultation as a means where average Canadians can speak their mind and found it a threat to their outdated business models. So they have opted to fighting it on every level, by trying to paint it as a waste of time, then going so far as to hijack it to make it so that only one opinion is heard and even threaten their opponents with arrest – those opponents do include Canadian businesses, Canadian artists, Canadian consumers, Canadian educators and students, Canadian record labels, Canadian libraries and now, even Canadian MPs as well. We have a foreign copyright industry trying to meddle in the internal affairs of Canada and they are doing so by purveying myths that simply do not stack up to scrutiny whatsoever when real evidence is put forth.

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One can’t help but note the interesting timing of this study. It should be noted though, that the study is showing what is happening in the United States. So the connection between Canada and the United States is purely hypothetical from looking at the numbers presented in this particular study (although countless studies have shown Canadian digital sales growth outperforming growth in the United States) but if there is a similar trend happening in Canada, no wonder the primary concerns from Canadians have to do with fair dealings and digital locks. We’re witnessing an industry who is pointing at their paying customers and screaming “illegal pirates!”

The NPD group study also suggests that Apple’s iTunes has a 25% market share in the digital music sales as well.

In fact, many who point to the digital revolution and say that it’s the future may find the comments by a vice president surprising as well.

“Many people are surprised that the CD is still the dominant music delivery format, given the attention to digital music and the shrinking retail footprint for physical products,” said Russ Crupnick, vice president of entertainment industry analysis “But with digital music sales growing at 15 to 20 percent, and CDs falling by an equal proportion, digital music sales will nearly equal CD sales by the end of 2010.”

The trend of moving from physical to digital is particularly evident, even if digital music buyers are still the minority:

CDs comprised 65 percent of all music sold in the first half of 2009 compared to paid digital downloads, which comprised 35 percent of music sales. By comparison, paid digital music downloads comprised just 20 percent of sales in 2007 – growing to 30 percent of the music market last year.

“The growth of legal digital music downloads, and Apple’s success in holding that market, has increased iTunes’s overall strength in the retail music category,” said Russ Crupnick, entertainment industry analyst for The NPD Group. “But the importance of the big box retailers shouldn’t be dismissed, as long as the majority of music consumers continue to buy CDs.”

Still, if in 2007, digital sales accounts for 20% of all sales, then in 2008, it accounts for 30%, then in 2009, it accounts for 35%, one wonders what the market will look like in, say, 2019. If the percentage goes up by 5% every year from now till then, that means 80% of music sold would be online download sales. Who knows what technology would bring us by then on top of it all provided copyright law doesn’t continue to prohibit innovation as seen in the RealDVD case.

Perhaps one of the concerns that record labels should address is how to market sales online to the public. Clearly physical sales is dominant, but it’s a very real possibility that this market domination of the physical CD won’t last forever if this study is anything to go by.

Have a tip? Want to contact the author? You can do so by sending a PM via the forums or via e-mail at drew@zeropaid.com.

The appeals process takes time. That’s why we haven’t heard much from the Jammie Thomas case in a few months now. Back then, many Americans saw the award of $1.92 million as shocking and another reason to see the copyright laws as a departure from reality. The verdict even made waves during the Canadian copyright consultation as major reason to not go down the lawsuit road while considering new copyright laws.

That’s what, for many, makes this latest development all the more shocking.

According to a legal brief filed by the Department of Justice, the Department of Justice is arguing, “If it is necessary to reach the constitutional question to resolve defendant’s motion, then defendant’s motion should be rejected because Conress’ carefully crafted statute satisfies the Due Process Claus.”

They further argue, “The current damages range provides compensation for copyright owners because, inter alia, there exist situations in which actual damages are hard to quantify. Accordingly, the statutory range specified by Congress for a copyright infringement satisfies due process.”

In other words, they argue that because there is little to no evidence that points to actual harm, the damages should be this high in the first place and, therefor, not unconstitutional to fine a young woman $1.92 million for sharing non-commercial copies of 24 songs.

In short, philosophically speaking, the Department of Justice’s argument is this: Actual damages is hard to show. Congress made a copyright law with a given range of damages. Therefor Thomas cannot claim damages are unconstitutional.

There’s probably hundreds of ways to point out why this argument fails. Saying that actual damages are hard to claim is irrelevant to how constitutional the award is. So premise one doesn’t work. Congress have passed copyright laws, but laws can be overruled by the constitution. If congress passed a law that dictated that no more elections shall be had and the current party must stay permanently in power, the constitution would overrule it. Since the constitution has power over lawmaking, premise two is false. Therefor, the DoJ argument fails miserably here.

The bigger concern here is that this is a plain example of a government backing a few particular corporations. Why is the government trying to interfere in this particular case – especially helping the RIAA gang up on someone who has little to no hope in paying off the $1.92 million award in the first place. One wonders why the RIAA needs the whole government backing their case in the first place? Was it getting difficult to fight in the first place and has to resort to the whole government with their unlimited resources to help win the case?

In any event, the government backing the RIAA in a lawsuit may be more disturbing than the fact that the defendant was fined $1.92 million for sharing 24 songs non-commercially.

Have a tip? Want to contact the author? You can do so by sending a PM via the forums or via e-mail at drew@zeropaid.com.

Rewinding a little, during the original trial of Jammie Thomas, Thomas was fined $222,000 for sharing 24 songs. This is $9,250 per work. Here in the Tenenbaum case, a jury fined Tenenbaum $675,000 for sharing 30 works – that’s $22,500 per work. Tenenbaum got fine nearly 2.5 times Thomas’ fine.

With such a huge difference – let alone Thomas’ later fine of $1.92 Million for sharing 24 songs, it immediately raises the question of what kind of measuring stick is being used for infringement. It’s more likely that the fine is little more than guesswork. Added to this, there’s no distinction between commercial infringement and non-commercial infringement in the United States.

The differences in the fine should make it even more clearer that it is critically important that the plaintiff must show actual damages caused, not to mention have a clear-cut foolproof method of actually gathering evidence against someone legally. As the defence has already argued in the Thomas case, given that a song could be bought for just over a dollar, the damages award is stratospheric compared to actual damages – in other words, if 1 download is 1 lost sale, it’s insane to consider any damages above 14 bucks per work. As of yet, the only thing closest to evidence of damage caused was assumptions and guesswork done by the copyright industry.

How is it constitutional that one person could be fined $222,000 while another person, for a very similar act, be fined over 3 times the amount anyway? Given that the awards are purely subjective, it isn’t hard to see just how fishy the whole system is – especially given that this is well in the territory of non-commercial use.

Of course, there are reasons why some outside the US see the whole legal and political system in the US as little more than a servant to the corporate world. Who knows, for some, this may be another sign of this. Either way, the copyright system is bound to draw international scepticism.

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In court documents (PDF – Via Ray Beckerman), the judge in the Sony vs Tenenbaum case issued instructions to the jury.

“In this case,” the judge wrote, “each plaintiff contends that it is, and at all relevant times has been, the
copyright owner or licensee of exclusive rights under United States copyright law with respect to certain copyrighted sound recordings, and that the defendant, Joel Tenenbaum, without the permission or consent of such plaintiff, used a peer-to-peer network to download the plaintiffs’ copyrighted recordings and/or distribute the copyrighted recordings to the public.”

The judge said that the plaintiff had to prove that they owned the works and that the defendant infringed on that work.

“In this case,” the judge concludes, “there is no issue as to liability.”

“Because there is no issue as to liability,” the judge adds, “you must decide on damages. When you do, you
must select a damages award within the specified statutory range.”

The judge clarified only that the statutory range is between $750 to $30,000 “per act of infringement”.

From an outsiders perspective, this is a rather shocking instruction. Perhaps Hollywood has clouded what goes on in the American court system where people mistakenly believe that a jury had the power to decide whether or not the defendant was guilty of something or not. Apparently, in an actual American court, the jury’s roll is to watch the case, pick a number and go home. In order for this to happen, the plaintiffs have to be part of the RIAA or MPAA and simply show up, and claim their millions – if the MPAAs comments about needing evidence is anything to go by. The defendant’s roll is to sit there and receive an automatic guilty verdict. At least, this is what one can learn in this case. And you thought only the Swedish justice system handling the Pirate Bay case seemed insane.

It’s hard not to mention the justice scene in Idiocracy where the plaintiff won the case simply by saying that they have a whole bunch of, pfft, evidence, and that the court should say that the defendant is guilty. It truly appears that a similar thing has happened in this case.

Already, many have condemned the Jammie Thomas fine of $1.92 million including many during Canada’s critical critical copyright consultation. Perhaps at this stage, one could add how someone could be guilty of online copyright infringement simply because the industry said so as well in an American style copyright law.

Have a tip? Want to contact the author? You can do so by sending a PM via the forums or via e-mail at drew@zeropaid.com.

It’s a legitimate fear as it’s happened multiple times – a music service shutters its DMR music service and servers, rendering all legally purchased tracks useless. For those who do the more honest thing of purchasing music, the very idea that a corporate entity could render legally purchased material useless seems like a betrayal to consumer confidence. It’s not a realistic situation for those that spent 10’s of thousands of dollars on vinyl copies of music (that one day, the content themselves all fail at the same time) but it can technically happen with DRM encoded music.

It’s partly why it makes Steven J. Metalitz’s comments regarding authentification servers during a Q&A session of a copyright hearing so outrageous.

“we reject the view,” Metalitz writes (PDF), “that copyright owners and their licensees are required to provide consumers with perpetual access to creative works. No other product or service providers are held to such lofty standards.”

He then explains the reasoning behind it, “No one expects computers or other electronic devices to work properly in perpetuity, and there is no reason that any particular mode of distributing copyrighted works should be required to do so.”

For many, this would mean that back-ups are illegal – especially in the event of a failure either on the user end or the retailers side of it. That would mean that people would be asked to pay for their legally purchased content again – so much for fair use.

“To recognize the proposed exemption would surely discourage any content provider from entering the marketplace for online distribution or offering consumers the convenience of online authentication of disc-based content unless it was committed to do so — or to guarantee the ability of a third -party service to do so — forever.” He continues, “This would not be good for consumers, who would find a marketplace with less innovation and fewer choices and options. Any argument that such barriers to entry are needed to protect consumers in some way is more appropriately addressed to the Federal Trade Commission, rather than to the Register and the Librarian in this proceeding.”

It’s comments like this that re-enforces what many have known for a very long time already – when you “purchase” content with DRM, you don’t own it, you merely rent it. With thinking like this, it’s no surprise when users turn to piracy. It’s not like they simply want to get content for free, it’s just that they want to be able to have the option to create a way to recover their content in the event something goes wrong – something the industry doesn’t seem to keen on allowing. It’s a mystery how preventing back-ups would be discouraging users and innovation when plenty of innovation revolves around re-using the works in unique ways – something DRM prevents.

“I’ve got 78RPM records from my grandparents’ basement that play just fine today — and I’ve got Logo programs I wrote in 1979 that I can run today. I own a piano roll from 1903 that I can play back if I can clear the space for a player piano. I’ve got books printed in the 17th century that can still be read” Cory Doctorow wrote in response, “and if they can’t be read, they can be scanned and the scans can be read. This is what an open format means.”

“It’s hilarious that the same yahoos who argue for perpetual copyright (implying that copyrighted works have value forever) also argue for time-limited ownership (implying that people who buy copyrighted works should be content to enjoy them for a few weeks or years until the DRM stops working).” Doctorow said.

There’s plenty out there who would easily recognize that given that the computer is effectively a copying machine for the most part, it’s not surprising that many would see this latest argument from the industry as backwards at best.

[Via Arstechnica]

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We’ve been following the Jammie Thomas case for some time now and, interestingly enough, our latest coverage discussed how the legalities of MediaSentry was being questioned. During the Jammie Thomas case, there was a motion filed that suggested that the judge only looked at the state laws of the defendants location. The motion to suppress the evidence was originally denied, seemingly on the basis of geography (MediaSentry was operating outside of the state)

You’d think there would be some uncertainty about the legality of MediaSentry’s investigation techniques. Of course, the RIAA seems to think that the techniques are perfectly sound if you read this latest objection in the Tenenbaum case (PDF, source with built-in PDF viewer, hat tip: Ray Beckerman). Here’s the reference:

Finally, the District of Minnesota recently rejected an identical motion asserted by the same counsel in Capitol Records, Inc. v. Thomas-Rasset, Case No. 06-cv-1497-MJD-RLE (D. Minn.). In the Thomas-Rasset case, the court found that counsel’s arguments had no merit and denied it. See Capitol Records, Inc. v. Thomas-Rasset, Case No. 06-cv-1497-MJD-RLE, slip op. at 2-12 (D. Minn. June 11, 2009) (denying defendant’s motion to suppress evidence by MediaSentry because defendant failed to show MediaSentry violated any law in gathering evidence to be used in the case) (hereinafter Thomas-Rasset, attached hereto as Exhibit B). Specifically, the Thomas-Rasset court held that:

MediaSentry did not illegally obtain the evidence in question. MediaSentry acted for the legitimate purpose of discovery infringers and protecting its clients’ copyrights. Therefore, there was no ethical violation committed by Plaintiffs’ attorney’ involvement with MediaSentry’s investigation. . . . Because Defendant has failed to show that MediaSentry violated any law in gathering the evidence to be used in this case, Defendant’s motion to suppress is denied.

Id. For all of these reasons and those explained below and in the Thomas-Rasset decision, Defendant’s Motion to Suppress should be denied.

Perhaps that ellipses is a little convenient given that the reason, according to the more recent motion filed by Thomas’ legal counsel, said that the only real reason that the motion was rejected was because of geographical law problems (the judge merely looked at laws in one state, not the state MediaSentry operated in), not necessarily because the practises were completely legal anywhere. Naturally, this is the legal counsel for the RIAA and it would probably be unwise on the part of the lawyers to expose this vulnerability in their own motion.

Still, who knows how many inconsistencies US law experts can find throughout this case? It’ll be interesting to see how the judge responds to this regardless.

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A few days ago, we noted that Jammie Thomas and her lawyers vowed to appeal the $1.92 million damage award saying that the award was unconstitutional. Court documents (PDF, source with built-in PDF viewer, hat tip Ray Beckerman) recently released certainly backs up what the lawyers had said they’d do now.

While the documents border on being considered a lengthy read, it’s certainly well worth it as one can very easily see the amount of research that actually went in to this motion. There are several pages that point out what we have suggested in a previous posting – that there is quite a discrepancy between how much one pays for a single track on iTunes (we suggested it was 99 cents per track as this has been the classic price-point for a single song, but the documents say $1.29) and the actual award ($80,000 per track)

So, starting from the beginning of the filing, the motion argues, unsurprisingly, that the award amount for damages is unconstitutional. How this argument was brought about, and is repeated throughout the entire document, is what makes this argument fascinating. It’s not entirely the large number, $1.92 million, that is seen as grossly excessive, but the damage of cost versus damages. In this case, on a per song basis with the knowledge of what a single track costs on iTunes – $1.29 – the damages ratio is 1:62,015.

If $1.92 Million was bad PR, imagine the kind of PR the RIAA would get if they sued for $134.24 Million.

The filing further argues that if each song was compared to an album for sale, the ratio is a whopping 1:5,333.

The document explains, “such a judgment is inconsistent with the Due Process Clause of the United
States Constitution.”

In a later part of the document, Thomas’ lawyers cite another case that pin-points why the ratio is extremely important in determining the constitutionality of the award:

Campbell, 538 U.S. at 418. Although the Supreme Court has declined to state a bright-line rule about the maximum permissible ratio, it has repeatedly held that “few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process.”

So, at most, the damage award would be 1:9, or $1.29:$11.61 on a per track basis.

To put the whole concept of the currently awarded damages into another perspective, there’s this particular passage later on in the court documents that highlight further why $1.92 million, or $80,000 per track, is grossly excessive:

Had the recording companies sued on all the songs they claim to have found on Mrs. Thomas’s computer, the verdict would have been $136,240,000. This does not show that they are “being reasonable” by seeking only $1.92M; it shows, rather, that $80,000 per song is a grossly excessive and therefore unconstitutional civil penalty.

“Mrs. Thomas did no physical harm; any harm that occurred was purely economic,” the document further argued, “to the tune of $1.29 for each of the 24 songs or $15 for each of the 24 albums at issue. See also Wechsberg v. United States, 54 Fed. Cl. 158, 167 (Fed. Cl. 2002) (requiring plaintiffs to offer evidence of actual injuries if these are used to justify an award of statutory damages higher than the minimum). Her conduct did not evince any indifference or reckless disregard for the health of safety of others since, again, any harm she did was purely economic. And the targets of her conduct are the largest recording companies in the United States and are hardly financially vulnerable relative to those plaintiffs — maimed children, for example — who we think of as most deserving of punitive damages.”

Not only was there arguments against such a high award, Thomas’ lawyers argued that the discrepancy between the initial $222,000 and the newer $1.92 Million is cause for concern. The document says, “BMW of North America, Inc. v. Gore, 646 So. 2d 619, 626 (1994) (per curiam) (describing disparity between $4M punitive-damages verdict by one Alabama jury and $0 punitive-damages verdict by different jury in case on same facts). “The real problem, it seems, is the stark unpredictability of punitive awards.” Exxon Shipping Co. v. Baker, 128 S. Ct. 2605, 2625 (2008). In this case, this unpredictability is stark indeed: two different juries returned punitive awards that differ by almost an order of magnitude.”

Another note-worthy point being made can be found in this excerpt:

Importantly, the legitimate interests in relation to which a civil penalty must be reasonable are those related to punishing and deterring a defendant for her conduct and the injury that she caused to the plaintiffs. It is unconstitutional to impose a civil penalty on a defendant for either the conduct of others or her own conduct that harmed those who are not plaintiffs. See Philip Morris USA v. Williams, 549 U.S. 346, 353–54 (2007). The plaintiffs in this case repeatedly argued that, in selecting what damages were appropriate, the jury should consider not only the harm to the recording companies, but also to artists creating music (who the recording companies’ representatives repeatedly testified are independent third parties, not employees) and to consumers of music.

What makes this point particularly interesting is the fact that the copyright industry in the United States have stressed for years that the lawsuit campaign is merely an education campaign. An underlying point through legal threats read by tens of thousands is that you could be hauled to court and forced to pay millions in damages if you don’t pay the settlement. That, legally speaking, if this argument goes over well in court, could be the industry’s own undoing. Another way of putting this is, is one user liable for the actions of another user in a given network or should that second person be liable for their own actions? This question has an interesting resemblance to the safe harbour clause in the DMCA that an ISP is not liable for the users of their own network. In this case, say you upload a copyrighted work to three individuals and leave that swarm. Should you be liable for the actions of those users after you leave that given swarm? The industry certainly seems to want compensation not just for the actions of a given user, but for every user involved in uploading a given work. Trying to get a total award out of just one person is certainly an interesting legal question.

So what is being requested includes the following:

Defendant Jammie Thomas respectfully requests that this Court (1) alter or amend the judgment under Rule 59(e) to remove the award of statutory damages; (2) order remittitur of the statutory-damages award to the statutory minimum; or (3) order a new trial on all issues under Rule 59(a).

Another interesting point being brought up is that Media Sentry had illegally obtained evidence against Thomas. The motion to suppress the evidence was denied because the court only looked at Minnesota law. Since Media Sentry was operating outside of that state, the original motion to suppress the evidence was denied. So where was Media Sentry operating? Turns out, they were operating in New Jersey. Since that is a known fact now with regards to this case, Thomas’ lawyers looked at applicable private investigators acts and determined that the activity conducted by Media Sentry was illegal. This was said at the time:

Neither MediaSentry nor Plaintiffs have disclosed the location of MediaSentry’s activities in February 2005. Media reports in 2005 indicate that MediaSentry most likely conducted its activities from either New Jersey or Maryland. Both New Jersey and Maryland have private investigator and wiretap statutes that MediaSentry would have violated if it conducted its activities from these states. See N.J. Stat. §§ 45:19, 2A:156A-2; Md. Code, Business Occupations & Professions § 13-801; Md. Code, Courts & Judicial Proceedings § 10-402.

This court document certainly has a lot of food for thought on the legalities of file-sharing. It also shows that even though the DMCA exists to supposedly make the legal issues of file-sharing as clear as black and white, there’s still a huge grey area – namely around awards in part, thanks to the fact that there hasn’t been any other file-sharing case that has gone this far that’s related to an individual user.

Currently, the RIAA already wants Thomas to destroy all copies of copyrighted works and hinted at wanting more than the $1.92 Million awarded in court. One can easily see that this particular legal case is far from over even though it’s been carrying on since 2007.

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