This is why Jury Nullification is important...

Andrew

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I'm sorry, but there is no way you can justify a $9,250 per song fine, even if she was guilty of sharing.

HungryJoe

"We Wanted to Send a Message"? If the message is that you're a bunch of evil idiots, then message received.

Kilarney

I agree that it was excessive. It was written back when large-scale copying was done primarily by professionals.

The remedy, though, is to change the law.

HMTKSteve

Were those punitive damages?

cosmicenema

It was a civil suit and they didn't have to go that high due to the law. What's more they didn't base their amount on any real evidence of loss to the RIAA. She's guilty of 'making available'.

If I were on the jury and was told making available was enough to be tried as guilty then I would've said guilty, but I couldn't justify to myself almost $10k per song when there's no evidence at all that anyone got the song from her illegally.

Kilarney

Were those punitive damages?

No, they were statutory damages. In other words, the statute, if elected, sets damages regardless of what the actual damages were. By statute, they had to award at least $18,000 in damages.

The problem is that the statute was written pre-internet. The damages are geared towards hard-core copyright offenders. That's why the law should be changed.

Apreche

Were those punitive damages?

No, they were statutory damages. In other words, the statute, if elected, sets damages regardless of what the actual damages were.

Wow. I just learned something. And after thinking about this new learning for about five minutes, I have formed an opinion. Statutory damages are complete bullshit. I can't think of even one example of a civil suit where I think someone should have to pay more damages than they caused. Can one of you lawyer types give me an example so I don't continue to think that all statutory damages should be completely eliminated?

Rym

I can't think of even one example of a civil suit where I think someone should have to pay more damages than they caused.While it's usually punitave, how do you quantify pain and suffering in terms of monetary damages caused?
Let's say I'm a small company.  Let's say I decide to not actually ship product to every tenth customer yet keeping payment, futher covering my evil with a grassroots campaign of the satisfied customers decrying the liars as just hating on the company.
Now, say I'm sued by an individual customer and lose in court.  Oh noes!  The damages I caused were the money I took.  Send them the product, or return the money, possibly plus basic interest, and I'm clear.  I paid exactly the damage I caused.  With such low risk, there's practically no reason not to continue defrauding my other customers.
It's like the train tickets on Metro North.  Imagine if, upon trying to purchase a ticket on the train, you only had to pay what it would have cost at the machine ahead of time.  In that case, there's no reason to ever buy a ticket unless the conducter catches you.  Always try to ride free.  If they catch you, just pay for the ticket.  The risk is zero.
Instead, it's quite a bit more money to buy the ticket on the train.  The reward for not paying is set low, but the penalty for being caught is now higher, and you tend to lose out in the long run.

HungryJoe

Statutory damages are complete bullshit. I can't think of even one example of a civil suit where I think someone should have to pay more damages than they caused.

How do you know what damage a person causes when they violate copyright? How do you calculate it? That's kind of the point of stautory damages.

The provision of evidence for the calculation of actual damages may be very difficult or even impossible for the right holder to establish. In copyright piracy cases, for example, it is notoriously difficult for right owners to meet the burden of proof in establishing the true volume of the infringement. Such a burden is magnified when the infringement happens in an online environment and the right holder has to show the number of illegal downloads from the Internet.

Source.

Andrew

If they can't establish the true volume of the infringement, what gives them the right to choose the penalty? A guess?

Apreche

It's like the train tickets on Metro North. Imagine if, upon trying to purchase a ticket on the train, you only had to pay what it would have cost at the machine ahead of time. In that case, there's no reason to ever buy a ticket unless the conducter catches you. Always try to ride free. If they catch you, just pay for the ticket. The risk is zero.

Instead, it's quite a bit more money to buy the ticket on the train. The reward for not paying is set low, but the penalty for being caught is now higher, and you tend to lose out in the long run.

I see the idea there. It makes sense. However, I think I see an important distinction. If someone is defrauding customers, or trying to ride the train for free, that's a criminal offense. They should be arrested, tried in court, and sentenced with a fine or jail. Also, the train prices are a company policy, not a law.

I think that in a civil case. You have party A who believes that they have been damaged by party B. For the sake of argument, let's pretend that the truth is that party B did $10 of damage to party A. A sues B, and after hearing arguments and examining evidence determines the truth, that B did $10 of damage to A. In the absence of any criminal wrongdoing, how can you say that B should pay $20 to A? Keep in mind, I'm including lawyer fees, time lost, etc. in the calculation of $10. Everything that A lost because of B can be assigned a value of some sort. Even if we arbitrarily set that value, as we do for non-monetary damages, we have a value. How can you ever judge that someone should have to MORE than undo the harm they did, when they did nothing criminal?

Apreche

How do you know what damage a person causes when they violate copyright? How do you calculate it? That's kind of the point of statutory damages.

If you can't calculate how much damage they did, then how do you even know they did damage at all? If you are unable to prove they actually did some damage, they might have in fact done $0 of damage. That's a reasonable doubt to me. Innocent until proven guilty. No penalty. The RIAA has to pay her legal fees. Case closed in my not-a-laywer point of view.

HungryJoe

In the absence of any criminal wrongdoing, how can you say that B should pay $20 to A?

If there were criminal wrongdoing, B would face criminal sanctions. If B's conduct was not criminal, but so bad as to "shock the conscience", B could be ordered to pay punitive damages. Punitive damages are not supposd to be a windfall for A, but a punishment to B to deter similar conduct from B and others in the future.

Andrew

If B's conduct was not criminal, but so bad as to "shock the conscience", B could be ordered to pay punitive damages. Punitive damages are not supposd to be a windfall for A, but a punishment to B to deter similar conduct from B and others in the future.

Who gets to decide these damages and how are they empirically measured?

HungryJoe

If you can't calculate how much damage they did, then how do you even know they did damage at all?

A plaintiff in a civil suit has to prove two things: liability and damages. The jury could have determined the woman was liable, but that the RIAA did not have any damages. I'm sure you've heard of cases in which a plaintiff was awarded $1.00.

Who gets to decide these damages and how are they empirically measured?

The fact-finder (usually the jury), subject to various evidence rules.

Both parties get a chance to show the fact-finder their damages calculations. The fact-finder decides who they think is more persuasive. Even then, they're not bound by either presentation. Once they ask for a calculator, they can come up with any sort of crazy way to calculate damages.

Kilarney

I can also think of situations where it would be incredibly burdensome and expensive to calculate actual damages. Thus, a little player could never afford to have their rights enforced in court. A statute such as this allows everyone to pursue their rights, not just the big guns.

For example, a small, independent musician would benefit the most from this statute.

The problem is that the statutory damages do not take into account changes in technology since the statute was written.

Rym

I still stand by my belief that the priorities of justice should be the following:

Undo or mitigate harm done as best as is possible
Prevent future harm by all reasonable means

Andrew

Does it bother anyone else that the juror stated he has never used the internet?

Apreche

If there were criminal wrongdoing, B would face criminal sanctions. If B's conduct was not criminal, but so bad as to "shock the conscience", B could be ordered to pay punitive damages. Punitive damages are not supposd to be a windfall for A, but a punishment to B to deter similar conduct from B and others in the future.

But if activity isn't illegal, then there is no democratic process backing the discouragement of that activity. Maybe society thinks that that activity should actually be encouraged. Who knows?

During the course of life, even if you never do wrong and you never do anything illegal, you are most likely going to end up hurting someone else on purpose or by accident. Maybe you made a defective product, it put two people in the hospital and then you recalled it. Well, you are already discouraged from doing that again because of the bad press about your company, the hospital bills you have to pay for the hurt people, the cost of the product recall itself, etc. You pay the people who got hurt an amount to make up for the damage you did to set things right, and you move on.

If the government wants to punish you more than that, then there should be some law. Perhaps they can charge you with assault, or endangering the lives of people. Maybe if your faulty product killed somebody they can get you for involuntary/negligent manslaughter of some sort. Perhaps they discover that your product failed to meet safety regulations, so they fine you for that. Maybe they can make new safety regulations laws so that the next person who does the same thing will have to pay the fine.

It just seems wrong that some party who is not guilty of wrongdoing, but simply happened to cause damage in the course of life, should be forced to do more than undo the damage they did.

Rym

Does it bother anyone else that the juror stated he has never used the internet?
It bothers me on a very fundamental level.  I feel that it would be impossible for me to be judged by a jury of my peers.  By and large, the people who serve on juries, both by design and by chance, tend to be the lowest common denominators.

HMTKSteve

As someone who has served on a jury in CT we were specifically told to base our decision only on what happened in the court room. We were told not to use any outside knowledge.

To me court is more of a game played by lawyers. If lawyers tell me that IP addresses can not be hacked than I have to base my decision on that reality, no matter how far from the truth it is.

Apreche

To me court is more of a game played by lawyers. If lawyers tell me that IP addresses can not be hacked than I have to base my decision on that reality, no matter how far from the truth it is.

There can be no justice in a court of lies. This speaks to a much more fundamental problem with our judicial system, and not the topic at hand.

HungryJoe

Does it bother anyone else that the juror stated he has never used the internet?

It bothers me on a very fundamental level.  I feel that it would be impossible for me to be judged by a jury of my peers.  By and large, the people who serve on juries, both by design and by chance, tend to be the lowest common denominators.

It bothers me as well. The only thing I can say is that it hopefully will be remedied like Julie Amero's case has been.

HMTKSteve

Here here Joe! That trial was a travesty.

Watching that trial I expected to see a lawyer come up and interact with the jury as in the Holy Grail movie "she turned me into a newt" scene.

Apreche

You know, I've wondered something. Was there ever a time in history where we had technology outpace law? Back in the day there must have been a problem when telephones starting getting widespread. There must have been plenty of people doing things with telephones that were not yet illegal. There must have been plenty of cases where juries ruled improperly because they did not yet understand the technology of the telephone. If not the telephone, then some other technology. The radio? The television? The boat? There has to be some lesson in law history we can look to for answers to our current predicament. Obviously rewriting the law with new technology in mind and educating people in the ways of technology is the final solution, but are we doomed to suffer injustice until that day comes, if it ever does?

Omnutia

Would it be possible to DBAN your computer and just claim hackers were using it as a proxy and you had wiped it a few weeks previously to get rid of viruses?

Apreche

Would it be possible to DBAN your computer and just claim hackers were using it as a proxy and you had wiped it a few weeks previously to get rid of viruses?

Creating reasonable doubt involving a computer connect to the Internet is so much easier.

Andrew

I wonder what defense was used. I would have gone the zombified computer route.

HMTKSteve

Would it be possible to DBAN your computer and just claim hackers were using it as a proxy and you had wiped it a few weeks previously to get rid of viruses?

Creating reasonable doubt involving a computer connect to the Internet is so much easier.

We are talking about people who know nothing about the technology involved. You might as well be telling them that some Beboos found their way into your sandisks while downloading data to your printer.

HungryJoe

Was there ever a time in history where we had technology outpace law?

This might not be exactly what you were looking for, but I remember a series of Spring Gun cases from school. . .

HungryJoe

This blog has an excellent discussion of the Capitol Records v. Thomas case, including a discussion of the Jury Instructions.