RIAA v Jammie Thomas: back to Square 1
p2pnet news view Freedom | P2P| RIAA:- Vivendi Universal, EMI, Warner Music and Sony BMG’s success rate in their efforts to sue some 40,000 of their own customers to force them to buy corporate ‘product,’ and to gain control of who distributes it online and by what means, has just been reduced from one to zero.
Judge Michael Davis last year presided over the civil trial of Minnesota mother Jammie Thomas who was ultimately ordered to pay almost $250,000 to the labels for alleged copyright infringement.
But he later said he was considering a mistrial because he’d made a “manifest error of law” in telling the civil jury the, “act of making copyrighted sound recordings available for electronic distribution on a peer-to-peer network, without licensefrom the copyright owners, violates the copyright owners’ exclusive right of distribution, regardless of whether actual distribution has been shown”.
Heavyweight legal gun Donald B. Verrilli Jr, named by the Hollywood Reporter magazine as one of the top 100 ‘Power Lawyers‘ in the entertainment industry, was hired to convinced Davis a new trial wasn’t necessary, that damages of $9,250 each for the 24 allegedly infringing music tracks Thomas was said to have made publicly available via the Kazaa P2P file sharing application were correct.
But late yesterday the news broke that Davis has ordered a new trial on a date yet to be decided.
He’s also urged the US congress to amend the US Copyright Act so it addresses liability and damages in P2P file sharing cases such as Thomas’.
“The defendant is an individual, a consumer,” Davis wrote, going on »»»
She is not a business. She sought no profit from her acts.
The myriad of copyright cases cited by Plaintiffs and the Government, in which courts upheld large statutory damages awards far above the minimum, have limited relevance in this case. All of the cited cases involve corporate or business defendants and seek to deter future illegal commercial conduct.
Concludes Davis in Civil File No. 06‐1497 »»»
While the Court does not discount Plaintiffs’ claim that, cumulatively, illegal downloading has far-reaching effects on their businesses, the damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs. Thomas allegedly infringed on the copyrights of 24 songs – the equivalent of approximately three CDs, costing less than $54, and yet the total damages awarded is $222,000 – more than five hundred times the cost of buying 24 separate CDs and more than four thousand times the cost of three CDs. While the Copyright Act was intended to permit statutory damages that are larger than the simple cost of the infringed works in order to make infringing a far less attractive alternative than legitimately purchasing the songs, surely damages that are more than one hundred times the cost of the works would serve as a sufficient deterrent.
Thomas not only gained no profits from her alleged illegal activities, she sought no profits. Part of the justification for large statutory damages awards in copyright cases is to deter actors by ensuring that the possible penalty for infringing substantially outweighs the potential gain from infringing. In the case of commercial actors, the potential gain in revenues is enormous and enticing to potential infringers. In the case of individuals who infringe by using peer-to-peer networks, the potential gain from infringement is access to free music, not the possibility of hundreds of thousands – or even millions – of dollars in profits.
This fact means that statutory damages awards of hundreds of thousands of dollars is certainly far greater than necessary to accomplish Congress’s goal of deterrence.
Unfortunately, by using Kazaa, Thomas acted like countless other Internet users. Her alleged acts were illegal, but common. Her status as a consumer who was not seeking to harm her competitors or make a profit does not excuse her behavior. But it does make the award of hundreds of thousands of dollars in damages unprecedented and oppressive.
1. The Court hereby VACATES the verdict rendered in this case by the ury and grants Defendant a new trial to commence on a date to be et by the Court after consultation with the parties.
2. The Judgment entered on October 5, 2007 [Docket No. 106] is
VACATED.3. Defendant’s Motion for New Trial, or in the Alternative, for Remittitur [Docket No. 109] is GRANTED on the grounds set forth in this Memorandum of Law & Order.
4. Plaintiffs’ unopposed Motion to Amend Judgment [Docket No. 116] is DENIED.
s/Michael J. Davis
Michael J. Davis
Chief Judge
United States District CourtSeptember 24, 2008
‘Sharing online is the same as stealing’
For one ordinary person with no legal or financial resources to be up against the multi-billion-dollar corporate music industry and the legions of highly trained, highly paid, copyright lawyers hired by Vivendi Universal, EMI, Warner Music and Sony BMG’s RIAA (Recording Industry Association of America) is a trial in and of itself.
Now Jammie Thomas will have to go through it all over again.
Nor are the labels the only ones lined up against her. Submitting amicus briefs on behalf of the corporate music industry are the major Hollywood movie studios, Time Warner, Viacom, Fox, Sony, NBC Universal and Disney, in the shape of their MPAA (Motion Picture Association of America), and the US Department of Justice.
But in Round II, she’s not alone. This time, she has powerful and erudite allies of her own.
Acting as friends of the court for Thomas are the Electronic Frontier Foundation and Carlson Caspers Vandenburgh & Lindquist, counsel for amicus, the EFF, are in her corner with Prentiss E. Cox, University of Minnesota Law School, counsel for amicus copyright law professors; Carl E. Christensen, Christensen Law Office, counsel for amicus The Intellectual Property Institute at William Mitchell College of Law; and, Tracey Holmes Donesky, Leonard Street and Deinard, counsel for amicus, the Progress & Freedom Foundation.
Sharing online is exactly the same as stealing, claim the RIAA and its masters.
However, sharing is that, and nothing more. No money changes hands, no one is deprived of anything he or she used to own and the Big 4 have never been able to even nearly back up their assertion that music files which show up online are the direct equivalent of sales lost, on- or offline.
The RIAA and its masters, the major record labels, have used the willing mainstream media to plant the idea that thousands of people, including very young children, whom they’ve labelled criminals and thieves, have been devastating (to use their own word) the corporate music industry by sharing music online with each other.
However, contrary to popular belief, only this one, lone woman has ever been before a civil jury.
The RIAA has frequently compared sharing of walking into a store and walking out again with a CD or DVD for which you haven’ t paid.
It’s literally, and with impunity, terrorised thousands of innocent men, women and children across America.
Has its day finally come?
Stay tuned.
Jon Newton – p2pnet
Los Angeles Times – , September , 2008
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September 25th, 2008 at 1:14 pm
“Donald B. Verrilli Jr, named by the Hollywood Reporter magazine as one of the top 100 ‘Power Lawyers‘”
Not dfor very much longer.
September 25th, 2008 at 1:47 pm
I found a typo:
“Donald B. Verrilli Jr, named by the Hollywood Reporter magazine as one of the top 100 ‘Power Lawyers‘”
should be
“Donald B. Verrilli Jr, named by the Hollywood Reporter magazine as one of the top 100 ‘Rabid Weasels‘”
The correction appears to be factually accurate, the original is highly misleading.
SRG
September 25th, 2008 at 5:03 pm
The judge SHOULD have reccomending that Congress amend the copyright act to correct the RIAA’s bullshit “extensions”, and restore the original 11-year period. Unfortunately, we don’t get that — instead, we get piddlingly-vague nonsense about “addressing liabiilities and damages”. What about the inestimable “damage” to teh public-domain done by the RIAA Lobby-bots?
What about the infamous “orphaned works” problem? That was essentially created in the 1970s, when they dropped the registration requirement. How is anybody supposed to actually know WHO holds the “copyright” on something with no registry?
They can’t — which was exactly what the RIAA and other sundry lobbybots wanted: with no explicit requirement that an item be registered, anybody can basically claim ANYTHING in regard to copyright, and, thanks to their multi-billion stable of ambulance-chasers, they figured it was a foregone conclusion that they’d always win, simply because they could smash anything they didn’t like by means of nuissance lawsuits etc.
Ultimately, the solution isn’t so much copyright reform — although that’s important. The solution is to render copyright completely and utterly unenforceable in any form whatsoever. Mass, continuous, ubiquitous civil disobedience on a global scale.
Let the bastards try to sue hundreds of thousands, millions, or even hundreds of millions. Eventually, no matter how big they are and HOW much money they have, the cost of attempting to prosecute such cases will become too burdensome, and the whole field of copyright ‘law’ will finally look like the evil farce that it really is.
September 25th, 2008 at 8:12 pm
(from the 3rd paragraph)
“But Thomas later said he was considering a mistrial…”
^^^^^
(should be “Davis”)
September 25th, 2008 at 8:23 pm
You’re right. Thanks for pointing it out. Fixed.
Cheers!
September 25th, 2008 at 11:07 pm
“The solution is to render copyright completely and utterly unenforceable in any form whatsoever.”.
Ya that’s what I think too.
September 26th, 2008 at 11:40 am
Henry Emrich, you are mostly right on the ball, but let me add:
“How is anybody supposed to actually know WHO holds the “copyright” on something with no registry?”
How s anybody to know when a work is in the public domain. Because there is no way of knowing for ordinary people, ordinary people cannot copy anything without risking being sued.
“The solution is to render copyright completely and utterly unenforceable in any form whatsoever.”
No that is no solution. No one will spend any money making a movie or a recording if copies can be freely made and sold in streets and stores. The solution is to enforce only criminal infringement, which I describe as copying for direct sale profit.
There are about 100 records from about 20 record companies (some are major ones) being sold in USA stores and the USA based Internet web pages with songs whose copyright belong to my family and music publisher (gvenegas.com) without any license or payment of royalties. On the other hand we know of not one record where legalities (with license) are in order. This is in my view criminal infringement and is rampant in the record industry. The crooks who run the record companies should be prosecuted, and the Jammie Thomas and the 14 year old kids who copy for personal joy should be left alone.
Is it not ironic that same same record companies that frequently infringe the rights of authors are the ones most opposed to personal copying?
September 26th, 2008 at 3:31 pm
“No one will spend any money making a movie or a recording if copies can be freely made and sold in streets and stores. ”
We’ll have to make sure there is some other incentive, product or service to get people to part with their money and/or find some way to fund the creators.
September 29th, 2008 at 4:53 pm
“No one will spend any money making a movie or a recording if copies can be freely made and sold in streets and stores.”
I’m pretty sure that music existed before copyright. And it would continue to exist if copyright went away.