p2pnet news view RIAA | P2P:- Yesterday, we ran a post in which Ray Beckerman (right), a New York lawyer whose Recording Industry vs The People is the Net’s only repository of documents and information centring on RIAA lawsuits, outlined how the Jammie Thomas-Rasset fiasco might have unfolded in a world where justice, and not the Big 4 corporate music industry, held sway.
A Minnesota jury decided Jammie should pay for 24 tunes she’s alleged to have downloaded.
The amount? No less than $80,000 for each song —- for a total of $1.92 million!
How did these 12 very ordinary people reckon another very ordinary person, whom they’d decided was a ‘wilful infringer,’ could possibly come up with that kind of money?
That they arrived at this conclusion is shocking proof of just how successful three giant multinationals — Vivendi Universal (France), Sony (Japan), EMI (Britain), and a fourth quasi-US company, Warner Music — have been in a massive PR blitz in which they’ve used the mainstream media to transform a simple commercial concept, copyright infringement, into a ‘crime’ in which the penalties are far worse than if ‘perpetrators’ had robbed an armoured car, or a bank.
“The courts have not received the benefit of the crystallization of issues that would normally result from the proper working of our judicial system, resulting in a ‘parallel universe’ which, to an outside observer, might look like litigation, but is not,” said Ray, going on to present his view of how the case would have played out in the real world.
Writing in ZDNet, Richard Koman, also a lawyer, wonders, “what did she do that was so bad”?
Viewing the evidence in the light most favorable to the RIAA, she illegally downloaded songs via Kazaa and made them available over the network, he says, going on
“That`s it. (She also lied about her hard drive being replaced, but that that misbehavior is sanctioned by discovery rules and cannot be part of the calculation of the wrongfulness of her filesharing.)
“I`m not convinced she even knew that Kazaa automatically shared her music with the network, but even if she did, that`s not what ‘willful’ means. ‘Willful’ means, to my mind, a bad actor, a privateer, a counterfeiter, someone who is in the business of selling someone else`s work for profit.”
Kazaa is the P2P file sharing application owned by an Australian company, Sharman Networks. It’s featured in the vast majority of RIAA cases and as a result, was itself was the subject of a class action lawsuit.
And as judge Michael Davis, who presided in this and an earlier Big 4 vs Jammie civil court case, wrote, Jammie is an, “individual, a consumer” who, “is not a business” and who “sought no profit from her acts”..
Koman spoke with Beckerman and goes on »»»
There`s no doubt, Ray said, that this case can be the test case to question the constitutionality of the statutory damages in the law. But before we even get there,
There`s a very long body of law, that statutory damages have to bear a reasonable relationship to actual damages. Courts have repeatedly held that statutory damages can be more than acual damages but only by two or three time.
Then we get to the Constitution. In BMW v. Gorethe Supreme Court held that grossly excessive punitive damages awards violate due process. The court established three factors to analyze this:
- Most importantly, the degree of reprehensibility
- The ratio of punitive to actual damages
- The relationship of the award to criminal sanctions
In that case, a jury found that BMW had sold as new a repainted car and awarded punitive damages of $2 million â 500 times the actual damages. The Court found that was grossly excessive. EFF`s Fred von Lohmann asks:
Does a, “$1.92 million award for sharing 24 songs cross the line into ‘grossly excessive’?” – Koman asks, adding:
“And do these Due Process limitations apply differently to statutory damages than to punitive damages?
“These are questions that the court will have to decide if the issue is raised by Ms. Thomas-Rasset`s attorneys.”
Meanwhile, Koman has Beckerman saying:
“The silver lining is that the RIAA`s morons — by carrying it to the logical extreme — have bolstered the constitutional argument. If they were smart they would have asked for $750 – $3,000 per work. By allowing this to happen, they now have this public relations fiasco.
“They`ve been going all over the world to ask governments for help. This will force governments to take a second look. ‘What are you kidding, we`re going to give these maniacs information to go sue our citizens’?”
might have unfolded – Ray Beckerman on Jammie v the RIAA, June 21, 2009
24 tunes – Jamie Thomas-Rasset`s $1.92 million playlist, June 19, 2009
ZDNet – ‘Insane’ $1.9 million verdict could prove RIAA’s downfall, June 19, 2009
class action lawsuit – Kazaa, the RIAA and Jammie Thomas, October 17, 2008
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