Thomas award reduced from offensive to merely egregious

The award in the Jammie Thomas-Rasset has been reduced by District Judge Michael Davis from $1.92 million to "just" $54,000. Davis was unimpressed with the original level of the award:

“The need for deterrence cannot justify a $2 million verdict for stealing and illegally distributing 24 songs for the sole purpose of obtaining free music,” Davis wrote. “Moreover, although plaintiffs were not required to prove their actual damages, statutory damages must bear some relation to actual damages.”

$54k is still silly money, but let's at least be delighted that a judge has noted that the RIAA's current claims are unjustifiable. He could have reduced the figure even further - the minimum amount per song allowed by law is $750 (even that is a stupid figure) and there is a question as to why Judge Davis decided $2,250 isn't too much to deter in itself.

Thomas-Rasset says she still can't afford the lower amount; the RIAA can apply for yet another trial if they object to the judgement.

Bookmarks: Some things to read on the internet - Filesharing

Jesus Diaz of Gizmodo looks at Jammie Thomas' fine for filesharing, and lists some cheaper pastimes she could have tried:

• Burn someone's house while playing The Doors: Another $375,000

RIAA not prepared to waiver in Thomas damages

To be fair, the RIAA companies could hardly turn round now and say that, actually, nearly two million dollars in damages for sharing unlicensed music is a frankly absurd level of damages, and so it's unsurprising they're having to stick to their morally dubious beliefs and rejected Jammie Thomas-Rasset's appeal to have the jury award reduced to a less absurd figure:

[T]he labels say that the award, which represents $80,000 for each of the 24 works on which the labels sought damages (among about 1,700 in Thomas-Rasset's KaZaA shared folder), survives the more deferential standard set forth in St. Louis, I.M. & S. Ry. Co. v. Williams, 251 U.S. 63 (1919), under which an award must be upheld unless it is "so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable."

Although eighty grand for each instance of filesharing would seem to not just tick the "severe, oppressive and disproportioned" boxes, but also award house points and write 'good job' in big red letters next to them.

There is a grudging sign that not everyone in the RIAA companies is just plain evil, though, as they do offer to consider a remittur:

However, the labels say they will only do so if the reduced award adequately reflects the "infringement of a significant number of Plaintiffs’ copyrighted sound recordings ... as well as the substantial damage caused to Plaintiffs and their businesses by Defendant’s actions." And they will not accept a remittitur based on a reduction in the award on constitutional grounds.

Except, of course, the labels haven't been able to demonstrate serious damage to their businesses - either by filesharing generally, or Thomas' specific file-sharing - except to point to circumstantial evidence.

So, the RIAA line is effectively "we'll only come to terms if we still get a massive wedge, and nobody suggests the law allowing us to demand stupid money is broken beyond belief."

Their confidence is in part buoyed by the disappointing number of copyright fundamentalists who have been welcomed into Obama's White House. Earlier this week, the Department of Justice indicated it was comfortable with the two million dollar fine. Change?

Jammie Thomas fights on

Presumably she's aware that she's not going to get the guilty verdict changed, but Jammie Thomas Rasset is going to appeal the judgement against her in the recent RIAA court case. The focus is going to be on the size of the damages.

The RIAA is making 'well, if you wish...' noises:

"The defendant can of course exercise her legal rights," said Jonathan Lamy, an RIAA spokesman. "But what's increasingly clear, now more than ever, is that she is the one responsible for needlessly prolonging this case and refusing to accept any responsibility for the illegal activity that two juries decisively found her liable for. From day one, we've been fair and reasonable in exercising our rights and attempting to resolve this case."

... of course, the last thing the RIAA wants is the punitive damages being declared unconstitutional; that could unpick what remains of their legal attacks on their customers. If they could only expect reasonable damages, the legal threat would become a lot less scary.

RIAA confuse jury with focus group

To be fair, the RIAA have so far avoided indulging in mindless triumphalism over the results of the Jammie Thomas case - mainly, I suspect, because the stupid sum in damages is so indefensible, anyone looking at it for very long would see whatever the legal rights, there's something morally out-of-whack there.

However, Joshua Friedlander can't resist, and has written a think-piece for the RIAA blog. He starts by rambling about how many focus groups the RIAA hold to try and work out what people want:

Last week we got a chance to listen to one of these groups outside the usual circumstances. It wasn’t a research project, and it wasn’t by sitting behind a two-way mirror. This group of 12 industry outsiders likely hadn’t engaged in debates about long-tail sales theories, the effectiveness of DRM schemes, or consumption patterns of digital media when marginal costs approach zero. Which isn’t to say they were disengaged – most of them had mp3 players, and at least some knew what peer-to-peer software was. But overall, they were probably a good cross section of ‘real world’ music listeners.

We’re speaking, of course, of the 12-person jury in Minneapolis who rendered a decision in the case involving Ms. Jammie Thomas-Rasset (http://www.riaa.com/newsitem.php?id=67AC2E75-E62A-1823-9604-FD0F15EF0F63). This group of 12 Minnesotans showed us that, despite the protestations of some pundits who suggest that the digital world should resemble some kind of new wild west, the majority understands and believes that the same laws and rules we follow every day apply online. Not just in theory, but in practice. Another group of 12 people presented with similar questions said the same thing two years ago. That makes a sample size of only 24, but it’s certainly enough to learn from.

But hang on a moment, Joshua - this wasn't a focus group, and they weren't being asked their opinion. They were a jury - and part of being on a jury is that you are expected to set aside your beliefs about the legislation and approach it as a law.

You can approach this as some sort of focus group, but all it really tells you is that 12 people believed that Thomas had done what she was accused of; not that they believe copyright law is correct. In fact, as you state yourself, Joshua, these are people who haven't followed the debate, who aren't engaged with the questions - so if it was a focus group on copyright law, they were pretty poorly placed to offer a considered opinion.

Jammie Thomas verdict: Ouch.

In a somewhat surprising move, the jury in the Jammie Thomas retrial has found her guilty and ordered her to pay $80,000 per disputed file.

Nearly two million dollars, in other words.

Even the RIAA realises this is absurd, presumably because it knows this sort of crazy judgement is precisely the sort of stinking decision that can help push for a change in the law; its statement is all about 'let's try and settle on a figure that's a bit more realistic, shall we?'

Thomas, for her part, also thinks the judgement is impossible:

Sony lawyer insists $150,000 a fair price for an unlicensed upload

The retrial of Jammie Thomas, accused of breaching copyrights and destroying the US music industry, has got underway, already yielding one of those moments where music industry witnesses say the most amazing things with a straight face, as ArsTechnica reports:

Defense lawyer Kiwi Camara pressed Sony Entertainment's Gary Leak[...], trying to force him to [put a value on each infringement]. Leak refused to be baited. It was "impossible to determine harm" in this case, he said, which is why the labels want statutory damages that can range from $750 to $150,000 per song.

Camara pressed again. "A message should be sent," Leak said. But Camara wanted numbers; what, in Leak's view, did Thomas-Rasset owe Sony?

"You can't tell the jury a number?" he asked aggressively. No, said Leak, it's up to them to decide; the law allows these damages, and we are asking only what's allowed under the law. The jury must pick the award.

Camara wouldn't give it up. He asked if, by Leak's logic, even the maximum $150,000 per song damage award would therefore be an appropriate amount.

Leak at last gave in. "Certainly!" he said in apparent exasperation, milliseconds before an objection from recording industry lawyers put an end to that line of questioning.

Gary Leak is, by the way, a music industry lawyer. So that was one music industry lawyer having to rescue another music industry lawyer. But not before Leak had said - after making a promise on the Bible about God to tell the truth - that there was no reason at all to think that charging the equivalent of thousands and thousands of downloads was in any way absurd. Because, you know, the law lets you.

The case continues.

RIAA ask judge to stop Thomas from objecting to their stuff

The ability of the RIAA legal team in the Capitol case against Jammie Thomas to make themselves look foolish is always a thing of joy.

You'd have thought, at the very least, they'd have confidence in the copyrights they're defending. But it turns out maybe not [pdf link] as they're trying to get the judge to stop the defence from challenging the legitimacy of the copyright proof they've submitted in the case.

The RIAA team insist it's not fair to expect them to provide certified copies of the copyright certificates:

Her objection is now untimely and will serve only to force Plaintiffs to unnecessarily expend resources on an issue upon which there is no dispute.

Hang about - are they really saying "there is no dispute, so stop them from disputing on this point"? And since when did the RIAA legal team start to worry about pissing away money on pointless causes? Isn't that their entire raison d'etre?

[via Recording Industry v The People]

RIAA victory turned back

The RIAA has, so far, only once had a federal jury deliver a guilty verdict in a file sharing case.

And now - without anyone asking him to - the judge in that case has turned up and stolen that victory back. U.S. District Judge Michael Davis of Duluth, Minnesota has declared a mistrial after thinking about some of the instructions he gave the jury.

The key issue is whether the RIAA needs to prove that the accused - in this case Jammie Thomas - had done what she was accused of. You and I might think that this might be a basic requirement of the law, but at trial, Judge Davis had bought the music industry's argument that it would be too difficult:

"Requiring proof of actual transfers would cripple efforts to enforce copyright owners' rights online – and would solely benefit those who seek to freeload off plaintiff's investment," RIAA attorney Timothy Reynolds said in a court filing.

Clearly, Judge Davis suddenly realised what they'd said - and how if you can't actually prove that the person has done what they're supposed to, in what way has it hurt you? "Your honour, I cannot prove that the accused cut me, for I have no scars, but you just have to take my word for it..."?

At the same time, Davis took the chance to point out that the settlement demanded by the jury - nearly a quarter of a million bucks - was just taking the piss:

"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 500 times the cost of buying 24 separate CDs and more than 4,000 times the cost of three CDs."

So, that's now no jury trial victories for the RIAA. How much have they spent on this fools' mission so far?

Evidence? That's for little people, says MPAA

In a submission in the Jammie Thomas case, the MPAA has suggested to the judge that they don't really need to prove anything:

"Mandating such proof could thus have the pernicious effect of depriving copyright owners of a practical remedy against massive copyright infringement in many instances," MPAA attorney Marie L. van Uitert wrote Friday to the federal judge overseeing the Jammie Thomas trial.

"It is often very difficult, and in some cases, impossible, to provide such direct proof when confronting modern forms of copyright infringement, whether over P2P networks or otherwise; understandably, copyright infringers typically do not keep records of infringement," van Uitert wrote on behalf of the movie studios, a position shared with the Recording Industry Association of America, which sued Thomas, the single mother of two.

It is impossible to prove we were damaged, so we should not have to prove that any copyright theft took place. It's wonderful logic and we look forward to this forming a cornerstone of law in future. After all, it's difficult to prove that Marie van Uitert has been brainwashing my cat in order to turn it into a killing machine, but - hey - that need not be a problem any more, need it?

Jammie Thomas may get another day in court

The RIAA won the first file-sharing case that went to court - but now the judge involved is suggesting it might need to fight the case all over.

Jammie Thomas was convicted quite quickly - in law, she didn't have much reasonable doubt to call on - but even so, she might get another chance. Judge Michael Davis has admitted he wrongly told the jury that copyright infringement happened when the track was uploaded to networks; he's since realised it doesn't happen until the track is downloaded by someone else.

But, warns Wired:

One of the cases Judge Davis cited in his order Thursday is also something of a double-edged sword for the defense. In that April decision, Atlantic v. Howell, an Arizona judge said that merely making a copyrighted work available for downloading wasn't infringement. But the judge also held that the RIAA's own investigators can effectively turn it into an infringement just by downloading a copy from the share folder involved.

Can it, though? If the RIAA represents the copyright holders, how can they illegally download a copy of the copyrighted material? And what sort of law is it where the police can turn a suspect into a criminal by the act of observation? (Oh - sort of like when the pretty policemen go into toilets to solicit gay sex.)

RIAA win Thomas case

The jury have found Jammmie Thomas guilty of filesharing in the first downloading case to come to court in the US - a sample of 24 songs has landed her a $222,000 fine, a figure which even supporters of strict copyright have suggested might be a bit much. Writing on ZDNet, the bittorrent-basher Russell Shaw suggests that justice hasn't actually been served:

This has all the earmarks of a defendant being so totally outlawyered by out-to-set-an-example fancy attorneys from Big Music, and a starstruck jury buying the whole line.

But $22,0000? GMAFB.

Now here would be a good compromise. If Thomas is so guilty of hurting music, music labels and musicians, have her do some sort of community service helping musicians in her community. Maybe drive poor kids to after-school music classes, something like that?

But that, of course, would be to assume the RIAA is interested in music rather than money.

Reading the summing-up in the case on Ars Technica, it looks like the fundamental flaw in Thomas' case was her defence - that the RIAA couldn't prove she was using the computer when the tracks were uploaded - seemed to be undermined by a wave of circumstantial evidence which suggested the opposite. Although the music industry will be spinning this as a definitive victory, all they appear to have done is establish a legal precedent of where reasonable doubt might lie.

So, Virgin is suddenly £100k better off. Will this filter its way to the artists? While Thomas is now looking at spending the rest of her life working one and a quarter days out of five to send some cash to the record label, it's about one-tenth of the pay-off Virgin's parent EMI gave to Martin Stewart when he left the company. Suing nine more breadline people, and they'll be able to handsomely pay off another executive, then.