Woman fined $1.9 million for illegal song downloads

[alterego]

@Ace309

Out of curiosity, what’s the basis for your opinion of the constitutionality of the damages?

Point 1: Common sense will eventually prevail. Do the math - millions of people fileshare billions of songs. Each song is worth up to 150,000 dollars in court. There isn’t enough money in the economy to fill the RIAA’s coffers.

Point 2: The RIAA suffers no real commercial damages when an individual shares a file so they aren’t entitled to a dime under the constitution. http://joelfightsback.com/wp-content/uploads/
letter-to-elena.pdf

IANAL, but I do have a brain. And I do have a lot of hope that our Supreme Court will interpret these cases according to the intent and spirit of the Constitution and general fairness. The correct ruling in these cases, IMO, is that it’s illegal to share files (certainly not Fair Use) but that the damages should be equal to the amount of money the RIAA would have made had that song been sold a number of times equal to the number of times the defendant shared it. [edit - hopefully only when the RIAA can actually show they would have been able to sell the song had it not been shared!]

[tdn]

@Swallowed_My_Cellphone

ETA: Do I think she should have bit hit with a penalty of that magnitude? Of course not. Do I feel sorry for her? No.

Exactly. And I won’t be shedding any tears over this. She could have gotten out of this much cheaper, but she continually thumbed her nose at the system. It’s as if she said “I dare you to do something about it.” Well, they dared.

[DSYoungEsq]

@alterego

Point 1: Common sense will eventually prevail. Do the math - millions of people fileshare billions of songs. Each song is worth up to 150,000 dollars in court. There isn’t enough money in the economy to fill the RIAA’s coffers.

Point 2: The RIAA suffers no real commercial damages when an individual shares a file so they aren’t entitled to a dime under the constitution. http://joelfightsback.com/wp-content/uploads/
letter-to-elena.pdf

IANAL, but I do have a brain. And I do have a lot of hope that our Supreme Court will interpret these cases according to the intent and spirit of the Constitution and general fairness. The correct ruling in these cases, IMO, is that it’s illegal to share files (certainly not Fair Use) but that the damages should be equal to the amount of money the RIAA would have made had that song been sold a number of times equal to the number of times the defendant shared it. [edit - hopefully only when the RIAA can actually show they would have been able to sell the song had it not been shared!]

Your assertions are without actual legal merit. Return when you have some actual legal basis for your assertion that the award is unconstitutional.
I believe that the damages are statutory, and that the copyright holder doesn’t have to show actual damages in the amount awarded. They are thus much like punitive damages: they exist to try to deter unwanted behavior. The jury’s determination in the second trial is likely the result of the attempt of the defendant at the second trial to pull out the “how do you know it was me?” card.

As I understand it, this was the only one of the RIAA’s cases filed that actually went to trial (all the others were settled for relatively nominal sums of around $3000). The RIAA stopped filing these suits a while back, and now works with the various file-sharing websites to try and either reign in improper sharing, or to license the sharing with payment of a fee. So this may end up being a blip on the radar, as it ends up.

What she did was wrong. She knew it was wrong, she did it anyway. She did so on the assumption that nothing bad would really happen. Now, something bad has happened. And while I doubt she will ever pay anything amounting to $1.9 million, I am sure that what she ends up paying will be quite a bit higher now than the offers she had to settle before the expenses of the trials were racked up.

As for the propriety of allowing for what amount to punitive damages in these situations, I think that the value of doing that as a method of deterrence can be measured by the fact that the RIAA isn’t trying for them any more, unless really egregious cases pop up. :smack:

[alterego]

@DSYoungEsq

Your assertions are without actual legal merit. Return when you have some actual legal basis for your assertion that the award is unconstitutional.

I posted a letter written by someone with far more esteem than you. Someone who has argued in front of the Supreme Court multiple times. That letter is what I base my assertion on and your pseudo-legalistic-IA"L"-opinion doesn’t mean an epsilon to me.

[buttonjockey308]

For what it’s worth, you could probably get each band/artist to play that song for you in person for that 1.9MM and still have a few hundred thou to pay the lawyers.

This is beyond stupid. I get the reasoning, she got caught, she should have to pay, but honestly, this is one of those things that ought to be handled not by a a jury but by an administrative judge in a single afternoon. What a giant waste of the people’s time and money.

[Gfactor]

The copyright statute spells out what sorts of damages are available:

(a) In General.— Except as otherwise provided by this title, an infringer of copyright is liable for either—
(1) the copyright owner’s actual damages and any additional profits of the infringer, as provided by subsection (b); or(2) statutory damages, as provided by subsection (c).

http://www.law.cornell.edu/uscode/17/usc_sec_17_00000504----000-.html

It spells out how actual damages and profits are calculated:

(b) Actual Damages and Profits.— The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages. In establishing the infringer’s profits, the copyright owner is required to present proof only of the infringer’s gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.

And it makes clear that the copyright owner may elect statutory damages and spells out the burden of proof and ranges of awards that are permissible:

(c) Statutory Damages.—
(1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work.
(2) In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000. In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200. The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the infringer was:
(i) an employee or agent of a nonprofit educational institution, library, or archives acting within the scope of his or her employment who, or such institution, library, or archives itself, which infringed by reproducing the work in copies or phonorecords; or
(ii) a public broadcasting entity which or a person who, as a regular part of the nonprofit activities of a public broadcasting entity (as defined in subsection (g) of section 118) [1] infringed by performing a published nondramatic literary work or by reproducing a transmission program embodying a performance of such a work.

While the award is extreme, it is consistent with the statute and could have been as high as 3.6 million.

@alterego

I posted a letter written by someone with far more esteem than you.

That’s nice, but the letter:

1. Doesn’t support the point you cited it for. “The RIAA suffers no real commercial damages when an individual shares a file so they aren’t entitled to a dime under the constitution.”

2. Doesn’t cite any cases. That’s probably because even he acknowledges it’s an “uphill battle,” based on an extension of existing due process jurisprudence regarding punitive damages to statutory damages, which are different in important ways. http://www.insidecounsel.com/Issues/2009/June%202009/Pages/Download-Damages.aspx?page=3

3. Is less credible because of some of the crazier claims he makes.

I don’t agree with DSYoungEsq that your broader claim (that the award or the statute might exceed constitutional limits) is “without legal merit.” But it is weaker than you might think.

[CaveMike]

@Swallowed_My_Cellphone

See above.

I saw that after I posted, but it didn’t answer my question. I already understand the distinction between downloading and sharing.

You seem to agree with most of the posters in this thread that the damages were unreasonable. With that in mind, why should the jury award such damages? Because the law allows it? Because she is a ‘bitch’? Because she ‘tied up the courts’? Because she mounted a bad defense?

I don’t see how these things validate unreasonable damages.

[Ian_D.Bergkamp]

I agree with Swallowed My Cellphone. The damages award is ridiculous, but the defendant knew that the damages award could be ridiculous (even substantially more ridiculous) and still chose to litigate rather than admit her guilt and settle. It’s not as if she got blindsided by some damages award from out of left field - the numbers are in the statute.

That doesn’t validate the damages, necessarily, but it does prevent me from feeling any sympathy for the defendant.

[Bricker]

@alterego

Point 2: The RIAA suffers no real commercial damages when an individual shares a file so they aren’t entitled to a dime under the constitution. http://joelfightsback.com/wp-content/uploads/
letter-to-elena.pdf

That’s not what your letter says. Your letter says that they might be entitled to a dime or two, but not to bazillions of dollars.

It’s very telling, by the way, that your letter doesn’t cite any cases – not one – in support of its claims. What this means is that the letter writer is urging the courts to adopt a new construction, a new principle of constitutional law. Heaven knows they’ve done such things before, so the idea isn’t impossible.

But it’s close.

[Brown_Eyed_Girl]

I have a few questions:

Why’d they only seek damages on 24 songs as opposed to all the songs she distributed? What made those (crappy) songs so much more valuable than the others?

Also, who owns the copyright on the songs, the artists or the labels? If the former, do the artists of these 24 songs have a right to their portion of any collected damages or do they go to the labels or does RIAA keep them?

[Atrael]

I’m more irritated that this was an opportunity to really bring to life the shoddy way in which the RIAA collected and handled it’s “evidence” and the methods used to handle that evidence. There is all sorts of room to call into account the methods Media Sentry used to both collect the log files, and how they transfered and stored them. Which would have gone a long way to helping the class action suite that I believe this lawyer is persuing. If you’re going to be awarding thousands of dollars to an organization or allowing them to browbeat people into settling for thousands of dollars, then their collection methods need to be beyond reproach.

[Bricker]

@Atrael

I’m more irritated that this was an opportunity to really bring to life the shoddy way in which the RIAA collected and handled it’s “evidence” and the methods used to handle that evidence. There is all sorts of room to call into account the methods Media Sentry used to both collect the log files, and how they transfered and stored them. Which would have gone a long way to helping the class action suite that I believe this lawyer is persuing. If you’re going to be awarding thousands of dollars to an organization or allowing them to browbeat people into settling for thousands of dollars, then their collection methods need to be beyond reproach.

Are you suggesting that they got the wrong person – that they accused someone who didn’t really share songs?

[gigi]

@Argent_Towers

The playlist article says one of the songs was:

Janet Jackson - “Let’s What Awhile.”

That Gloria Estefan song is supposed to be “Coming Out of the Dark”. Poor woman, all that money and they weren’t even real songs.

[Gfactor]

@Bricker

Are you suggesting that they got the wrong person – that they accused someone who didn’t really share songs?

There’s a lot of fussing in the filings about whether there was any proof that anybody besides Media Sentry actually downloaded the files from her (as a factual matter) and whether merely making the files available for download was sufficient to subject her to liability for statutory damages (as a legal matter). IIRC, that was the basis for the new trial.

[Swallowed_My_Cellphone]

@Brown_Eyed_Girl

Also, who owns the copyright on the songs, the artists or the labels?

It can be a bunch of people. The songwriter owns the copyright of the composition (and often shares with a publisher), the label may own the copyright of the particular recording, the performing artist often gets a chunk of royalties, and so does the producer. (Singer, producer, performer, I guess could all be lumped under “artists”)

@Brown_Eyed_Girl

If the former, do the artists of these 24 songs have a right to their portion of any collected damages or do they go to the labels or does RIAA keep them?

I have no idea how/if or how much of the damages will be passed along as royalties.

@CaveMike

With that in mind, why should the jury award such damages? Because the law allows it? Because she is a ‘bitch’? Because she ‘tied up the courts’? Because she mounted a bad defense?

I don’t think the jury should necessarily award damages so high, but rather, I think after a while an enormous award was going to be inevitable.

You can bet the RIAA had a huge team[ of lawyers working on this likely at costs of millions in legal fees, and the industry had a tremendous amount at stake in succeeding in the event of setting a precedent. At some point the RIAA was going to have to ask for statutory damages, just to make sure they would recoup the cost of the legal action.

As tdn said, the woman thumbed her nose at the system. She also kept changing her story and entered a different hard drive into evidence and swore under oath twice that it was the drive she had in her machine at the time of the infringement was the same one presented in court (imagine trying to get away with that in a criminal case!)

When she originally lost the suit (remember she lost this once already) the fines imposted by the jury were $222,000. That seems to me to be more reasonable, although still a painful $10,000 a song! But okay, if the 24 songs were available to millions of people, I suppose 10,000 people could have downloaded all 24 and at $1 a song… that’s a reasonable amount to pay back.

I suspect that the almost 2 million has more to do with deterrence future acts of piracy, than actually getting the defendant to pay up. I don’t know if that does or does not include legal fees (I haven’t been able to find if there was a breakdown of the award, it could have been the original $222,000 plus legal fees totally $1.9 million, for example).

It is so far outside her means, it’s preposterous that the jury would think it was viable.

[Brown_Eyed_Girl]

@Swallowed_My_Cellphone

It can be a bunch of people. The songwriter owns the copyright of the composition (and often shares with a publisher), the label may own the copyright of the particular recording, the performing artist often gets a chunk of royalties, and so does the producer. (Singer, producer, performer, I guess could all be lumped under “artists”)

I have no idea how/if or how much of the damages will be passed along as royalties.

Well, right or wrong, I think that’s the biggest beef people have with the music industry and paying for music. RIAA likes to pretend that you’re denying the artists their due, when in reality the labels make considerably more money off the songs than the artists do. Understandably, they are in it for profits and invest a lot of money in producing the end-product. They should be able to recoup their investments when the product is popular. It appears that they do, however. Many times over. I don’t know how this lady justified her acts (to herself), but I think quite a few people are looking forward to a distribution model that allows them to funnel their payments to artists more directly.

I don’t think the jury should necessarily award damages so high, but rather, I think after a while an enormous award was going to be inevitable.

You can bet the RIAA had a huge team[ of lawyers working on this likely at costs of millions in legal fees, and the industry had a tremendous amount at stake in succeeding in the event of setting a precedent. At some point the RIAA was going to have to ask for statutory damages, just to make sure they would recoup the cost of the legal action.

Unfortunately for RIAA, this David and Goliath situation backfires in that there’s a fair number of the public who see RIAA just as self-serving as the people who download music illegally and less so than people who are actually distributing it illegally. What exactly was in it for this lady? Treating her as if she’s a business entity trying to profit off copyright infringement is somewhat distasteful, imho.

As tdn said, the woman thumbed her nose at the system. She also kept changing her story and entered a different hard drive into evidence and swore under oath twice that it was the drive she had in her machine at the time of the infringement was the same one presented in court (imagine trying to get away with that in a criminal case!)

I don’t support her lying and misrepresenting her behavior at all. But I wonder if she isn’t/wasn’t hoping her case would get laws changed and impact the pro-RIAA legislation that’s been introduced over the past few years. Really, as someone pointed out earlier, medical malpractice awards are capped and obviously it’s difficult to justify million dollar damages for distributing music when you can’t justify that level of damages for Oops-I-was-supposed-to-operate-on-your-left-leg-not-right medical malpractice.

When she originally lost the suit (remember she lost this once already) the fines imposted by the jury were $222,000. That seems to me to be more reasonable, although still a painful $10,000 a song! But okay, if the 24 songs were available to millions of people, I suppose 10,000 people could have downloaded all 24 and at $1 a song… that’s a reasonable amount to pay back.

Frankly, if it were me, $222,000 may as well be $1.8 million, but yes, it is more realistic damages to impose on an individual. Which is why I asked the reason RIAA didn’t go after damages on all the distributed music, as opposed to just 24 songs. The article I read reported Media Sentry had downloaded metadata from her hard drive on over 2,000 songs, though it only downloaded 11 complete songs. I suspect it’s because RIAA felt they would have had a real hard time convincing a jury to impose $750-$150,000 in damages per song. Does anyone believe for a moment that the jury would have imposed $80,000 per song in damages if they were looking at 2,000 songs? This case provides a perfectly reasonable argument for more reasonable caps on statutory damages.

I suspect that the almost 2 million has more to do with deterrence future acts of piracy, than actually getting the defendant to pay up. I don’t know if that does or does not include legal fees (I haven’t been able to find if there was a breakdown of the award, it could have been the original $222,000 plus legal fees totally $1.9 million, for example).

I’m pretty sure that if the defendant doesn’t pay up, and she likely never will, there’s really no deterrence achieved. I don’t have $1.9 million and I’ll never hope to earn that much money in my life, so it’s a completely arbitrary number. The articles I’m reading report the damages are per song statutory damages.

The jury found Thomas-Rasset’s conduct to be willful, which means that statutory damages under the Copyright Act can range from $750 per infringement up to $150,000. In his closing statement, defense lawyer Joe Sibley made clear that even the minimum award would run $18,000 (24 songs x $750 = $18,000), an amount that he said was unfair and crippling to Thomas-Rasset. The jury decided that the per-song penalty would be $80,000, for a total damage award of $1.92 million, over $1.7 million more than the award in her first trial.

It is so far outside her means, it’s preposterous that the jury would think it was viable.

Yes, it is. I don’t expect it to be upheld on appeal.

[DSYoungEsq]

@Brown_Eyed_Girl

Yes, it is. I don’t expect it to be upheld on appeal.

On what legal basis do you believe the damages award will be overturned? Awards aren’t overturned just because, you know.

[Bryan_Ekers]

This woman needs to spill some McDonald’s coffee in her lap and soon.

[Kobal2]

@Swallowed_My_Cellphone

I have no idea how/if or how much of the damages will be passed along as royalties.

Cynical guess : not one dime, because those 24 songs, out of the 1700+ she shared, were likely picked because the RIAA owned all distribution/IP rights to them.

[The_Tao_s_Revenge]

@tdn

Exactly. And I won’t be shedding any tears over this. She could have gotten out of this much cheaper, but she continually thumbed her nose at the system. It’s as if she said “I dare you to do something about it.” Well, they dared.

Yeah and to really show they mean business it’s a pitty they didn’t chop off a hand!:rolleyes: Imagine the nerve, standing up to bullies welding a multimillion dollar club bought through corruption and destruction of our democratic principles.

Thumbing your nose at a cruel and usual unjust system is something that should be celebrated. Did she deserve something? Sounds like it. Did she deserve that? Hell no. This woman is an American hero.