June 19, 2009

Found guilty of downloading 24 songs, a woman is fined $1,900,000.

In federal court in Minnesota. That's $80,000 for each of her selections, works by Linkin Park, Gloria Estafan and so forth.

IN THE COMMENTS: Marcia said:
Now you see why we need empathetic judges.

To rein in the heartless corporate thugs that we call jurors.

104 comments:

Fred4Pres said...

Linkin Park and Gloria Estafan?

Treacle said...

The rhythm really is gonna' get'cha

MadisonMan said...

Assuming 4-minute songs (generous), that's more than $300 per song second.

Hoosier Daddy said...

Linkin Park and Gloria Estafan?



You beat me to it :-)

Leland said...

Prosecution Lawyer A: "Should we take this to trial?"

Prosecution Lawyer B: "She downloaded Linkin Park and Gloria Estafan; what type of defense lawyer do you think she is going to get?"

Pogo said...

If she had walked into the MN Mall of America and stolen 24 CDs, she'd have committed a Gross Misdemeanor, with a maximum penalty of 1 year in jail and a $3,000.00 fine.

What is it with jurors and their love for the grotesquely disproportionate?

I mean, shit, $2 million??
Why not just shoot her?

Largo said...

Regarding legal technicalities, is the story accurate? My understanding is that such cases are usually argued against people who upload music.

Lem said...

Obama wants to download gitmo detainees all over the US.

But whatever happens is good to know the record companies bottom line will be safe.

American Liberal Elite said...

We have the best copyright laws money can buy.

Lem said...

Hacking Palin's email didn't merit this kind of punishment.

There is something seriously wrong with that penalty.

William said...

Although property is theft, intellectual property is sacred. This land is your land, this land is our land; this song is my song and I'll cut your hand off for filesharing.....It's good to see long haired musicians taking effective action against this drift towards socialism in the American economy. This is a welcome first step, but we need to see a few bodies of these vile criminals hanging from the atrium at the local mall before this practice is stopped.

scinfinity said...

Well, in their defense, you should be punished for downloading Linkin Park.

Maguro said...

What is it with jurors and their love for the grotesquely disproportionate?

There's a hint in this article:

Camara suspects that the jury thought Thomas-Rasset was a liar and were "angry about it," thus leading to the $80,000 per-song damages.

Most likely the jury was pissed at this lady for dragging the trial out when she was clearly guilty and wasting their time. Not really blind justice, but something to consider before you insist on a jury trial instead of plea-bargaining.

ironrailsironweights said...

Was this an actual fine, payable to the government, or an award of damages to the record companies? It's not clear from the article.

Peter

Pogo said...

Makes sense, Maguro. But now the jury is ensuring more wasted effort, as the judge/appeals courts now have to look at the fine itself as excessive.

save_the_rustbelt said...

I think the RIAA should be sued for allowing hip hop to exist.

Matter of taste I guess.

If people are not buying CDs, could it be that the music sucks so bad it has little market value?

MadisonMan said...

My 13-yo son is a fan of hip-hop, and I have to say that some of it isn't horrible. Some is. (Birthday Sex, for example).

Randy said...

Yet more evidence that, all things considered, we have the finest justice system money can buy.

traditionalguy said...

When the Feds collect their Judgement they will levy on her song collection and auction it off for really big money. Isn't this just like shoplifting? And what does this policy mean to songs played on U-tube and posted here?

froggyprager said...

Just out of curiosity, I looked up this woman on Facebook. This young woman is married and has 4 kids. She has enough on her plate. Couldn’t they have picked on some rich single college student who downloaded Eminem for a test case?

Marcia said...

Now you see why we need empathetic judges.

To rein in the heartless corporate thugs that we call jurors.

Richard Dolan said...

This sounds like a verdict that the RIAA will eventually regret, but perhaps not as much as they are enjoying the 'encourager les autres' effect today.

Jim said...

"This sounds like a verdict that the RIAA will eventually regret, but perhaps not as much as they are enjoying the 'encourager les autres' effect today."

The words "Pyrrhic Victory" comes to mind.

No one in their right mind thinks that $80K per song is a legitimate punishment for simply being a part of file-sharing network in which millions of people across the globe participated. All the while, the RIAA actually goes into business with Kazaa the creators of the network.

News of cases like this are going to encourage more people to engage in acts of "civil disobedience" than are going to be discouraged. The outrageous nature of the win is over the top and, very likely, counterproductive for the RIAA.

bearbee said...

Deterrence!

What were the instructions of the judge?

Could the judge have overrule the amount setting a reasonable level and perhaps slammer time or community service?

Apparently she is divorced. Is her ex on the hook if her actions occured while still married?

An Edjamikated Redneck said...

Seeing he list of downloads makes me think that if she has actually listened to that crap, that is punishment enough.

Where do they expect her to get this kinda cash? Is she related to that SoDak lottery winner by chance?

rhhardin said...

Just do away with copyright entirely.

It makes less economic sense than usually supposed.

Econtalk link.

Oligonicella said...

Sounds like SlashDot here.

The woman knew what she was doing. She went to lengths to hide it and then lied when questioned. She was the one who refused to settle, wanting to try to drag it out and desperately find some loophole or empathy for her 'plight'.

They're not going to try to collect, it's just a message for others.

American Liberal Elite said...

"Just do away with copyright entirely."

Or pare the "limited period" back - way back. Twenty years from the date of creation should be plenty.

Salamandyr said...

The woman knew what she was doing. She went to lengths to hide it and then lied when questioned. She was the one who refused to settle, wanting to try to drag it out and desperately find some loophole or empathy for her 'plight'.

They're not going to try to collect, it's just a message for others.


I don't think people are upset she was sanctioned, but at the severity.

By your logic "that she knew what she was doing" and therefore deserved whatever happened to her, we could pass laws mandating summary execution for speeders. After all, they "know what they're doing".

bagoh20 said...

My experience being on a jury deciding a civil suit was very enlightening and scary. Regular people, when given the power to reward money that belongs to someone else, are crazed fanatics. They try to fix all the evils of the world in one fell swoop.

Scott said...

Jammie Thomas is an Ojibwa woman living in a state where 89.3% of the population is Caucasian. Yes, there is racism in Minnesota -- not overt, cross-burning, KKK-style racism; but a kind of smug, condescending relegation of non-white people to second-class citizenship; people to be tolerated with feigned PC magnanimity, while hinting that life would be better if they would just all go away, "back to where they came from."

Against this backdrop of white Minnesota popular culture, it only stands to reason that Jammie Thomas could not have gotten a fair trial from an all-white jury. For justice to be served, the jury should have included at least a few Native Americans, if only to remind the other jurors that Ms. Thomas was not some abstract cultural archtype that they could direct their fears and frustrations at, but that she was a real human being like they were.

I haven't seen any reports of the racial composition of the jury. There is a New York lawyer who has been posting lots of stuff on his blog about the RIAA campaign to sue everybody; but when I asked in a comment about the gender/race composition of the jury, he rejected the comment calling it "offensive."

I just don't get why the notion of a trial by a jury of one's peers is offensive. And if Ms. Thomas' jury didn't have at least one Native American on it, she didn't get such a trial.

[full disclosure: I posted the first two paragraphs as "Gruffbear" on Slashdot. I'm lazy, my apologies.]

rcocean said...

This is the Free Market in action.

BTW,,Isn't the fine excessive and therefore unconstitutional? I thought the SCOTUS ruled fines can't be putative and disproportionate to the loss suffered.

RIAA suffered an economic loss of $24.

Chip Ahoy said...

This RIAA case and the outrageous irrational verdict reminds me of Obama killing that fly. How so? -- you ask. This is how.

Aaron said...

Actually, i suspect this ruling might actually be unconstitutional. I studied up on the 8th amendment's fines clause and basically the surpreme court has linked that up with the BMV v. Gore line of cases. Now the court was very skittish about setting limits on punitive damages, but they said more or less than anything over 4 times the value would "raise a judicial eyebrow."

So, if i were her lawyer, i would start pulling out those cases and try to get the fines cut considerably. i mean basically she is being charged a fine of nearly $2 million for what really is the equivalent of stealing 2 or 3 CDs from a store. I am a law and order kind of guy, who generally likes stiff penalties, but that is a bit much.

Jeremy said...

Scott,
"Trial by a jury of one's peers" is not to be found in the Constitution. See here. It's a long list (with explanation) of ideas, phrases and concepts widely but mistakenly thought to be in the Constitution.

John Althouse Cohen said...

phrases and concepts widely but mistakenly thought to be in the Constitution

You're assuming that the way the Constitution has been interpreted by the courts has nothing to do with the meaning of the Constitution.

save_the_rustbelt said...

Knowing what I know about young people, downloading has increased dramatically while the RIAA has been litigating the daylights out of some single mom.

Could this be a lawyer fee builder?

By the why:

I think Gloria Estafan is a hottie. I hope she never sings hip hop.

Pogo said...

"You're assuming that the way the Constitution has been interpreted by the courts has nothing to do with the meaning of the Constitution."

A good assumption, actually, and largely accurate.

Salamandyr said...

In a small not in the direction of fairness to the RIAA, odds are this woman dowloaded many more songs than the 24 she was convicted of. It's just those 24 were the ones that were the most provably stolen.

Aaron said...

Sal

yeah, but you can't punish a person for what you think they did, only what you can prove. and if we were going to take that attitude, i could think of many other more important crimes than this to do it on.

Besides really, whoever here who has not ever illegally copied an album cast the first stone. that's not to say its right, but there is a certain randomness to this.

Btw, i HAVE linkin park and gloria estafan in my music collection. i listen to LP, and my wife listens to GE. Nothing difficult about that. My wife can't stand LP because they shout so much. I on the other hand love LP because they shout alot. :-)

Jeremy said...

JAC-
I don't think I am. It's a list of things like "Of the people, for the people and by the people" or "separation of church and state" the right to marry, "innocent until proven guilty", etc. Those things are literally not in the Constitution. It seems like a fairly uncontroversial list to me.

-The Other Jeremy

Randy said...

In a small not in the direction of fairness to the RIAA, odds are this woman dowloaded many more songs than the 24 she was convicted of.

Do you have any evidence at all to support such an allegation or did you just think it up all by yourself and decide to post it as being probable?

bearbee said...

Ars Technica followed each trial day starting with jury selection to closing arguments.

... but when I asked in a comment about the gender/race composition of the jury...

...five men and seven women, all white, ranging in age from college students to retirees.

Kev said...

As a musician, I'd be totally happy if the RIAA just went away. With the ability of people to produce their own CDs (unlike the old days when you actually had to go through a record-pressing plant) and distribution models such as MySpace, the iTunes store, etc., there's really no need for a middleman, especially when said middleman is usually a talentless corporate suit who doesn't know a thing about music and refers to people's artistic expression as "product."

Granted, without the big corporate production machine, musicians would actually have to survive on their talent alone, but I consider that a feature, not a bug. :-)

Patrick said...

Someone refers to 'encourager les autres'. Well I am encouraged indeed, to use anonymous or encrypted P2P +/or darknet.

TitusLovesUSoMuchIreallyDo said...

I think a public stoning would of sufficed.

Tits.

TitusLovesUSoMuchIreallyDo said...

If this woman is downloading free songs where is she going to come up with 1,900,000?

tits.

rcocean said...

1) She didn't "Steal anything" - she copied the songs without permission.

2) Even if she downloaded 1,000 songs @ $1 each - that's $1,000.

3) Three - the actual loss to RIAA would be less than $1,000 since she probably wouldn't have bought 1,000 songs anyway.

4) According to the constitution, copyrights exist for only one reason - & its not to make Record companies rich - its to:

"Promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

5) The vast majority of artists either make nothing worth copying or sign away their copyrights in one sided deals with Big Record companies. Further, the ones most stolen are the ones that have already made millions off their songs and books.

6) Why should we be still be paying Yoko Ono to listen to "Hard Days Night"?

Zeb Quinn said...

I'm betting this case was won in the jury instructions the prosecution proffered to the court. Get and/or create a favorable set for your case, and then frame your closing argument around them, repetitively emphasizing key points. Done right it hems a conscientious jury in to strictly follow the law instead of emotions. It's the way I always do it when I have a client with little or no (or even negative) sympathy value going for them compared to the other side. Depending on the facts, it usually works like a charm. Oddly, the other side never sees it coming.

bearbee said...

Judge Michael J. Davis

TitusLovesUSoMuchIreallyDo said...

Tits.

Balfegor said...

Re: American Liberal Elite:

Or pare the "limited period" back - way back. Twenty years from the date of creation should be plenty.

Yes, I think it's absolutely bizarre that patents get only 20 years, while copyright, which does that only incidentally, gets effectively infinity, as every copyright extension extends every existing copyright. The relationship between patents and the promotion of science and the useful arts is rather more direct than is the case with copyright, after all.

But then, there's very few people who will vote against their legislators simply because they are voting for these ridiculous laws, and a minority of extremely committed companies and individuals who will donate zillions of dollars to legislators provided they do vote for them. So the outcome is pretty much a foregone conclusion.

Scott said...

Bearbee, thanks for the link.

So it was an all-white jury. For a Native American in Minnesota, that's a hanging jury.

bagoh20 said...

Zeb,

It may help, but when you hear the conversation that takes place during deliberations, you wonder if the jurors were listening to anyone.
-
My view is that the messages in TV and movies are the most powerful influences on most people's ideas of right, wrong and fairness. This is gradually changing to radio and Internet as prime influencers. We are shown heros and villians and identify with those stories more powerfully than most other things that teach us. It's almost subliminal, but hard to override if you even want to.

Balfegor said...

Re: rcocean:

2) Even if she downloaded 1,000 songs @ $1 each - that's $1,000.

Copyright law provides for massive statutory damages for every violation. Up to $150,000, if it is willful. My understanding is that this is per infringement, not for the overall pattern of infringement.

4) According to the constitution, copyrights exist for only one reason - & its not to make Record companies rich - its to:

"Promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
"

As Justice Ginsberg has so eloquently explained to us, the duration of the copyright just has to be limited at any given time -- nothing stops Congress from extending those times. Ginsberg dismissed the argument that Congress is just building copyrights of effectively infinite duration by extending all copyrights whenever they look like they're going to expire by arguing that that situation isn't before the court at this particular moment.

Salamandyr said...

Do you have any evidence at all to support such an allegation or did you just think it up all by yourself and decide to post it as being probable?

Woah there bucko, I'm on your side. No, I have no evidence that she downloaded more than the 24 songs they proved she downloaded. I don't know this person, or the details of the case.

What I do know is that people who download music usually don't download 24 songs; they download hundreds, even thousands. And I know that for legal purposes, the courts are only going to be concerned with the downloads that are provable wrongdoing. But what is brought up in court is often not all there is.

Either that or everyone who refers to convicted tax evader Alphonse Capone as a bootlegger is slandering him.

It still doesn't justify this award, which is beyond stupid.

T J Sawyer said...

"Jammie Thomas is an Ojibwa woman living in a state where 89.3% of the population is Caucasian. ..."

So what's the penalty for downloading forests and land from the Ojibwa?

Sigivald said...

Jim: The damages are (in effect if not technically, though perhaps the latter also) punitive, because she was found to have willfully violated the copyright.

And of course contra many of the writeups (including Prof. Althouse's), the core of the case and the reason for the high damages is not that she downloaded 24 songs, but that she was offering them on the network for others to download.

(See here for a writeup with many more details.)

The RIAA's really always gone after people offering files for download much more than people who downloaded.

bagoh20 said...

"So it was an all-white jury. For a Native American in Minnesota, that's a hanging jury."

I agree: White skin = murderous, racist mob.

BJK said...

I'm surprised no one else has pointed out that Thomas had already lost to the RIAA in court, back in 2007. The previous trial was overturned due to an error in the jury instructions.

The amount awarded in 2007?
$222,000


Oops.

Bart DePalma said...

Pogo said...

If she had walked into the MN Mall of America and stolen 24 CDs, she'd have committed a Gross Misdemeanor, with a maximum penalty of 1 year in jail and a $3,000.00 fine.

What is it with jurors and their love for the grotesquely disproportionate?

I mean, shit, $2 million???


If the criminal justice system would prosecute these crimes, then such civil silliness would not be necessary. Thirty days in jail would have conveyed the message that this is stealing far better than a ridiculous award that the defendant will likely walk away from in bankruptcy or a post judgement settlement.

scinfinity said...

Or pare the "limited period" back - way back. Twenty years from the date of creation should be plenty.

Agreed. Copyright was never meant to be permanent. It was meant to give the artist years of profit but, EVENTUALLY, to have the work enter public domain.

Zeb Quinn said...

bagoh20:

Note my qualification that it be a conscientious jury. Yes, I know jury members do talk about and get hung up on all manner of extraneous things. But my experience is that most of the time most jury members are, or sincerely want to be, conscientious. And they will try extra hard to be if the lawyer gives them a good reason to try to be.

After twenty-eight years of practice, I say most lawyers don't spend enough time focusing on jury instructions. When in the initial client intake meeting I'm already envisioning the jury instructions I want and how I'll argue it in closing.

Kev said...

6) Why should we be still be paying Yoko Ono to listen to "Hard Days Night"?

Because it's better than having to listen to her sing it?

Randy said...

I imagine you are probably right about those who illegally download not just downloading a few, Salamandyr. At the same time, I can recall a few stories about innocents the RIAA attempted to destroy, so I refuse to automatically assume anything they allege may have happened actually did happen. Their tactics leave me cold.

Salamandyr said...

Sigvald,

That overstates the case a bit. Anyone who has ever used a bittorrent client has offered their files for others to download. If she left her client open with the torrent still active, she was seeding the songs, whether she intended to or not. That's just the way file sharing works.

Aaron said...

Rcocean

Um, I do agree this fine is excessive, but yes she did steal the songs. Let’s not whitewash this. We can say she did the equivalent of shoplifting, but still the fine is excessive.

And this is way off:

> 4) According to the constitution, copyrights exist for only one reason - & its not to make Record companies rich - its to:

> "Promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

Um, yes, and the way that copyrights encourage art is by making their creators rich, or at least making it possible to be rich. Wealth is not the goal, but it is a very important means to that end.

> 6) Why should we be still be paying Yoko Ono to listen to "Hard Days Night"?

I could be wrong, but I don’t think we are. i thought michael jackson bought it out and then with recent troubles had to sell it off.

Bart

> If the criminal justice system would prosecute these crimes, then such civil silliness would not be necessary.

Its my understanding that this is a criminal case. am I wrong? I know the cnn story put it under “crime” and they talk in terms of guilt or innocence, not liability, and fines, not damages. But then reporters are sometimes complete idiots on the law and use the wrong terms.

Then again, this article seems to be about the same case, and seems to be indicating it is a civil case. http://www.duluthnewstribune.com/event/article/id/122974/group/home/

But if it is a civil case, then my analysis above still applies. Just switch the 8th amendment with the 5th and the BMW v. gore line of cases. The courts have explicitly said that 8th amendment fines clause and the BMW v. Gore cases are to be analyzed exactly the same.

By the way, to Sal’s point about her downloading more than 24 songs, well I have seen some articles indicating that they originally accused her of downloading about 1700 songs. So Sal ain’t crazy to think that but I still say it shouldn’t be considered unless proven in court.

David said...

Man--really tough Jury. They must have really not liked her. Or American Indians, if you go along with the "everything derives from racial prejudice" theory.

Do you think she ever had a chance to settle? I'll bet she did. I'll bet her lawyers were trying to show that they could beat the evil recording companies so they could make a big reputation. Or maybe not. Maybe they told her to settle and she was just an idiot about it. Does anyone know the case well enough to reflect on settlement?

The judge is African American. Is he required by empathy to overturn this verdict. Does he have any basis for doing so?

Unless the judge hates her too, he might feel a little bad for her. The judge overturned the earlier $222,000 verdict against her on the basis of his own error in jury instructions. Now that's an honest, contrite thing to do, but it didn't help the defendant much, did it?

Litigation sucks. It's amazing that people think they will profit from it when so often it destroys them. (Not that this woman had any choice, other than the choice not to steal the music in the first place.)

Kev said...

Agreed. Copyright was never meant to be permanent. It was meant to give the artist years of profit but, EVENTUALLY, to have the work enter public domain.

I had always read that copyrights were good for the life of the author plus 70 years, and this seems to bear me out.

It seems as though there's probably a good middle ground to be found somewhere between the 20 years that ALE suggested and the "life + 70" above.

Maybe we could split the difference and go for "life + 20." That way, the family of an artist who met an untimely end could still be taken care of, but it wouldn't extend to an excessive number of generations. (Under the current scenario, I could still be getting royalties from something created by one of my great-grandparents, even though we never met.)

Aaron said...

The fact is disney and other companies like it are too frickin important to our economy to deprive them of their IP. i fully expect congress to keep extending the copyrights indefinitely. And i don't expect the supreme court to intervene.

But what that has to do with this case is beyond me.

Joe said...

To clarify several things, Jamie Thomas-Rasset didn't merely download 24 songs, but downloaded and then shared thousands of songs. The RIAA picked only 24 songs to simplify their case and because it was easiest to prove Ms. Thomas guilty in with those.

Ms. Thomas also repeatedly lied throughout the case went to extensive lengths to cover up her offenses, indicating that she wasn't just an innocent offender, but a very deliberate one. This made her very unsympathetic to the jury.

The bottom line is that Thomas was plainly guilty of willful copyright infringement and that the law allows for damages of $750 to $300,000 per offense.

Is this too much? Perhaps, but the place to change this isn't in court, but through changing the laws. (I would like to see copyright rolled back to 20 years and lengths of patents cut in half. It would also be helpful that non-commercial availability would be a consideration in damages, though I doubt that was a factor in this case.)

Joe said...

(Not that this woman had any choice, other than the choice not to steal the music in the first place.)

She could have settled for $3000-$5000 (not sure why the range, but that's the report.)

Patrick said...

Kev, that's bizarre, the link states in about the first sentence that copyright used to be life+50 from 1976 to 1998, and says not far down that prior to 1976 terms were 56 years flat.

How does that support your recollection that copyright was always life+70?

And I agree entirely that life+20 should do it.

Aaron said...

Joe

Well, the courts have said that it is their place to limit both excessive fines and punitive damages. there is a question whether this case is actually criminal or civil (possibly due to some botched reporting). But either way, the courts have said that it has to have some proportionality and congruency with the actual damage.

No she ain't innocent, and she should pay a price. And i understand why the jury might have been mad at her. but even then for 24 stolen songs that they could prove? $2 million is a bit steep.

And i ain't some wishy washy guy on this. i was mad hell at the Kennedy v. Louisiana decision saying that child rapists can't be executed, for instance. i support tough penalties, but there is a limit to everything. i mean you wouldn't usually get that much in a medical malpractice case. i ain't soft on crime, but there is a limit to everything.

bearbee said...

Do you think she ever had a chance to settle?

Jammie Thomas-Rasset testified Tuesday in U.S. District Court that she could have settled her case with the Recording Industry of America by paying the record companies $5,000

Derek Kite said...

This is funny. Maybe Ann could posit an opinion on the wisdom of having lawyers run your PR and Marketing campaigns.

RIAA hasn't seen adime from me for quite a few years. I was thinking of buying an album a week ago. No more. They get none of my money.

Derek

Daniel said...

She did not download 24 songs, she "made the songs available" for download. Depending on how many people downloaded each of the songs--it could be hundreds or thousands--the total value of her making the songs available could be very substantial indeed. Of course, the damages are still pretty absurdly huge, but we should at least get our facts right.

save_the_rustbelt said...

Kev:

You win the Best Comment Award today!

"Because it's better than having to listen to her sing it?"

save_the_rustbelt said...

As my daddy used to say:

Sitting Bull was right.

Sofa King said...

It seems as though there's probably a good middle ground to be found somewhere between the 20 years that ALE suggested and the "life + 70" above.

Here's what I think would be fair:

1. Copyrights, like patents, must be registered - this need be as simple as obtaining a unique copyright ID of some kind. Registration is straightforward and is free.
2. Once registered, the copyright is enforceable. Authorized copies must include the copyright ID or make it available on request.
3. However, the registration expires after 5 years. Whereupon it can be renewed for a further five years - for a fee.
4. The fee shall be based upon the maximum desired liability TOTAL (not per infringement.) E.g., a copyright entitling the holder to no damages, just injunctions, would be a nominal amount ($500 or so.) A copyright entitling the holder to monetary damages up to say $100,000 would be a little more ($5000). And so on by some formula I haven't really worked out.
5. Thereafter, the copyright holder can collect no more in damages from civil litigation for copyright infringement than the maximum provided by the level of protection paid for above. Further infringements are subject only to injunctive relief, no damages.
6. Copyrights can be renewed for an unlimited period in such five-year increments.

What I think would be fair about this scheme is that after the initial five years (when most IP makes most of its profits), the holder must decide (a) how damaging infringement REALLY is to their business, and (b) whether it's worth it to hang on to the copyright. This means that profitable IP can be protected, but removes the IP "windfalls" that the current system allows. It also encourages holders to place unprofitable IP in the public domain, where perhaps someone else can make profitable use of it - though if they have strong objections, they can compensate the rest of us for the privilege of holding on to it.

Cedarford said...

Pogo said...
If she had walked into the MN Mall of America and stolen 24 CDs, she'd have committed a Gross Misdemeanor, with a maximum penalty of 1 year in jail and a $3,000.00 fine.
What is it with jurors and their love for the grotesquely disproportionate?
I mean, shit, $2 million??
Why not just shoot her?
.

Perhaps the more germane question is that why isn't the local populace rising up to shoot lawyers and court employees?
==============
More and more, people are finding their lives in sway of lawyers attempting to control not just every aspect of government action, but their lives...with absolutely ridiculous levels of coercive intimidation (2 million in fines for one Native American for downloading 24 songs while 30 million other Americans are untouched by the long arm of the law???)

We also have news that the automotive recovery board is comprised of no engineers, no sales people - but 11 lawyers and 4 local activists and 3 NYC bankers..

Meanwhile, the serious cases that form the basis of why we all WANT a criminal justice system - rapes, murders, arsons - are now tending to be tried years, sometimes many years after the crime or war crime. With many years of appeals.

Justice is no longer swift and certain.

nansealinks said...

Perhaps the more germane question is that why isn't the local populace rising up to shoot lawyers and court employees?

because my lack of higher education only allowed me to read the writing on the wall and provided me with point, segment, different angle theory,

however...not point and shoot allowances.

Eric said...

Maybe we could split the difference and go for "life + 20." That way, the family of an artist who met an untimely end could still be taken care of, but it wouldn't extend to an excessive number of generations.

You're mistaking the purpose behind rights that last beyond the creator's lifetime. Those rights are transferable through sale, so if you have a system where they expire too soon after the death of the creator the market value of new works will be less during his lifetime as the creator gets older or sicker. What do you think Norman Mailer would have gotten for his last novel if the copyright expired five years after the death of the author? He was 84 at the time.

I agree 70 years is too many, though. I'm guessing 20 or 30 years would be indistinguishable from 70 on the day of the creator's death.

traditionalguy said...

Do I smell the need for a wise Latino woman Judge hearing this case on the damages remittiture when a motion for new trial is filed? Oh never mind, the Spanish were the Conquistadors who came here looking for the gold and the silver.Heck with empathy...this lady needs mercy.

rhhardin said...

Getting rid of copyright entirely actually works best.

You still get works, and the authors still make money, owing to normal competition; except the very few who make it big on rent-seeking on a single work can no longer can do so.

The point of copyright isn't fairness but to encourage creation. But that's based on an incorrect theory that creation won't happen without it. It does.

Alex said...

This is why I long ago stopped participating in file sharing networks. Way too risky.

halojones-fan said...

rhhardin: Yeah, if you consider bums playing fiddles in the street to be serious musicians.

*****

"copyrights and campaigns" blog has excellent coverage of this case. Perhaps the piece de resistance was the description of Jammie Thomas sobbing as she blamed the whole thing on her kids and her boyfriend.

Balfegor said...

Maybe we could split the difference and go for "life + 20." That way, the family of an artist who met an untimely end could still be taken care of, but it wouldn't extend to an excessive number of generations.

I don't see the justification for including "life" as part of the time there either way. There are "authorial rights" generally folded into copyright for which I could understand that setup being appropriate -- and by that, I just mean a right to prevent works from being used in a way that their creator opposes. And I could support such rights continuing for a time even after a work has become public domain, possibly even after the author is dead. But the pure right to make a copy? I don't see the justification for such a variable restriction there. Inventors don't get the right to let their family live off the fruit of their inventions for life+20 years, let alone life+70. Why are authors and artists worthy of special consideration? It's not like these rights are treated as inalienable in our law -- that's the whole point of these increasingly extravagant extensions, i.e. that they increase the value of copyrights which can be bought and sold in full (rather than, say, merely licensed out by the original author, who cannot transfer away the right in full).

If there is a middle ground to be found here, I think it might be found in a dramatic expansion of "fair use" after a certain period has elapsed, but before the copyright itself has expired. E.g. 20 years after publication, "noncommercial" use might be per se "fair use" or something like that, whereas before that point, it isn't. Thus, groups like Project Gutenberg could put out free, public use etexts of novels and suchlike, but commercial retailers (selling through bookstores or Amazon or whatever) couldn't put out an edition for sale without securing publishing rights. There's a question, I suppose, of what is considered "commercial" (e.g. if you share files and thereby secure something of value (namely access to other peoples' stash of pirated material) is it "noncommercial"?) but that is what courts are for.

On the other hand, this isn't something that would benefit most filesharers, who are sharing the latest album from this or that modern pop artist, or the latest movie out in theatres, pirated via handycam.

Synova said...

What a completely useless article. It doesn't describe what she DID at all. It doesn't say on what possible grounds the damages could have been that much. It doesn't say why this woman came to the attention of the record companies or was picked to get sued over all the so very many other people who "download" music.

What a completely useless article.

Synova said...

"Bearbee, thanks for the link.

So it was an all-white jury. For a Native American in Minnesota, that's a hanging jury.
"

F*ck you Scott. F*ck you and the carpet-bagging racist horse you rode to town on.

Your bigotry and vile hatred for a whole people on no other POSSIBLE evidence than the color of their skin is inexcusible. Get a mirror and figure it out.

You may KNOW that white people are racist, but you are no different than any one who KNOWS that a black man is a rapist and who KNOWS that an Indian is a thief.

You and they are EXACTLY the same inside.

Synova said...

"She did not download 24 songs, she "made the songs available" for download. Depending on how many people downloaded each of the songs--it could be hundreds or thousands--the total value of her making the songs available could be very substantial indeed. Of course, the damages are still pretty absurdly huge, but we should at least get our facts right."

THANK YOU!

I was wondering what the deal could possibly be to have this woman singled out for prosecution ahead of so many others.

The RIAA get's no sympathy from me, but I expect them to behave in a rational manner. I'm disappointed that this seemingly fundamental distinction wasn't made in either the article Althouse linked or the Maguro linked.

My husband mentioned the case this morning, having checked the "news" on his i-phone and I asked if it was just 'downloading' music or if something else was involved. He said no, so his little new-summary didn't include the distinction either, that she was acting as a distributor.

Balfegor said...

It doesn't say on what possible grounds the damages could have been that much.

Well, it's $80,000 per infringement, a little more than half the maximum statutory damages for willful infringement ($150,000). Times 24 infringements gets you to $1.9 million. I'm not sure there's much doubt about the grounds for the damages per se -- it's exactly what the statute contemplates. That kind of middle of the range is probably just a reflection of there being no particular reason to adjust the amount high or adjust it low. It doesn't seem just, sure, but that's copyright law for you. Doesn't have to be just -- it's the law.

As far as the decision to sue -- a separate issue from why the damages are so huge -- yes, the offering for download is probably why the RIAA was happy to force the woman into bankruptcy with a judgment she will never be able to pay. But willful infringement is willful infringement.

Kev said...

Kev, that's bizarre, the link states in about the first sentence that copyright used to be life+50 from 1976 to 1998, and says not far down that prior to 1976 terms were 56 years flat.

How does that support your recollection that copyright was always life+70?


Yeah, I could have found a better link, but I was in a bit of a hurry. And I guess the reason my "always" only extends back to 1998 is because that was around the time that I, as a music store worker on a slow day, I read this booklet in its entirety. Oddly enough, we didn't really cover the subject all that much while I was getting my two music degrees; I bet they're covering it more nowadays.

Chris said...

Synova,

Everyone who uses file sharing software like kazaa is acting as a distributor. It's how the software works.

Zachary Paul Sire said...

Well, after all that, I hope she got to at least keep the songs.

Marcia said...

Hey, I got my own tag! I'm honored.

Scott said...

Synova,

I'm sorry my comments about Minnesotans hurt your delicate sensibilities.

When you wrote "F*ck you..." did Blogger put in the asterisk, or was it your modesty and good taste that compelled you to put that typographic fig leaf on your sentiment?

Trust me, sweetie, I wouldn't "F*ck you" on a bet. Not even a very large one.

I don't know what it is about self-preening white liberals like you that makes them think their narcissism inures them against racism. I certainly think that if there were a few Native Americans on the jury, the outcome could have been far different, for reasons I stated in an earlier comment that you either didn't read or didn't want to consider.

The viewpoint reflected by your unladylike obscenity-laced accusations of reverse racism actually prove my point. You're a bigot from the word go. Jammie Thomas wouldn't get a fair trial if you were on the jury, that's for sure.

Paddy O. said...

She made the mistake of not being a huge corporation.

Google scans in countless books, makes them publicly available to the whole world, and apparently this is entirely fine. They are too big to be fined, I suppose.

Or maybe it's because there's not a BIAA.

Not that I'm complaining. Google books makes research quite a bit easier. As I imagine Google songs might do someday too.

Kev said...

Google books makes research quite a bit easier. As I imagine Google songs might do someday too.

So if that ever happens, do you think they'll have a "search inside the song" function like Amazon does with books? That might be kinda cool to be able to zero in on a couple of specific measures in the music and check out that cool guitar riff or something.

The Mother said...

The article I read said that she UPLOADED. Which is the crime. And it should be punished.

L. E. Lee said...

I have no problem with protecting copyrights but this is just plain bullying. Plus it is well known that the RIAA (the music industry) cheats the artists who actually make the music.
BOYCOTT THE MUSIC INDUSTRY!
http://www.boycott-riaa.com/myactions
*Buy only used CDs
*Support your local independent musicians, go see them perform and buy their CDs or tapes
*Tell your music store you are not buying RIAA Member music in August and why
*Listen to music you already own, the radio, or online broadcasts - just don't give the Evil Empire your money
*Support the bands, not the RIAA send money directly to the band with Fairtunes.com
*Post this message to other websites

Balfegor said...

The article I read said that she UPLOADED. Which is the crime. And it should be punished.

Um, no. I'm pretty sure that downloading copyrighted material when you have no right to do so is also a crime, or at least a civil violation. From a pragmatic standpoint, the RIAA closes off more filesharing by shutting down the filesharers. But the more people squeal that uploading is the crime => downloading is okay, the greater their incentive is to squash a few downloaders too, just to remind people that they can go after any of you.

Chris said...

Does no one understand how filesharing works?

lifeofthebeatles said...

Further to Paddy's point, the same company (Google) makes lots of ad revenue on YouTube from copyrighted material - they only have to take it down when asked, so it's a system that allows them to profit until the copyright holder says otherwise. Brilliant system if you ask me.