Tuesday, December 04, 2007

US Department of Justice files brief defending constitutionality of $9250-per-song-file jury verdict in Capitol v. Thomas

In Capitol v. Thomas, the United States Department of Justice has filed a brief defending the constitutionality of the $9250-per-song-file jury verdict, in opposition to Ms. Thomas's motion to set the verdict aside.

U.S.A. Memorandum in Defense of Constitutionality of Verdict*

* Document published online at Internet Law & Regulation

Keywords: digital copyright online law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

Contributions to Ms. Thomas's defense can be made via PayPal at freejammie.com or by check, payable to "Jammie Thomas Defense Fund", and mailed to

Jammie Thomas Defense Fund
c/o Chestnut & Cambronne
Suite 3700, 222 South Ninth Street
Minneapolis, MN 55402.


Unknown said...

I wonder whos re-election fund the RIAA lined with cash in order for this to happen?

Anonymous said...

"Congress established a damages range that provides compensation for
copyright owners in a regime in which actual damages are hard to quantify. Furthermore, in establishing that range, Congress also took into account the need to deter the millions of users of
new media from infringing copyrights in an environment where many violators believe that they
will go unnoticed.
Accordingly, the statutory range specified by Congress for a copyright
infringement satisfies due process."

Wow you americans must have very mighty people in congress. Oviously the gov tries to attribute them psychic powers with the beforementioned claim

As the government points out later in its papers congress did the last "raise" in 1999!

Where were the mentioned millions of users back then when congress allegedly thought about detering them?

Napster was in its infancy (if even "in the wild" at the relevant timeframe mentioned by the gov for congess' motives to raise if I remember correctly and my infos about the high time of napster are not totally wrong)

Anonymous said...

The government sez:

Under the constitutional test adopted by the Supreme Court, an award of statutory damages satisfies the demands of the Due Process Clause as long as it is not “so severe and oppressive as to be wholly disproportioned to the offense or obviously unreasonable.”

Then proceeds to argue that there's nothing wrong with this level, or even much higher ($150,000.00 per song) damages. Talk about having your head up a warm, dark place. These damages are BOTH wholly disproportioned and obviously unreasonable.

Congress acted reasonably...

Translation: Congress caved into special interests attempting to protect forever profits from an antiquated sales model in a modern world.

Congress established a damages range that provides compensation for copyright owners in a regime in which actual damages are hard to quantify.

Damages are hard to quantify because they're not there to be found. A downloaded song that you never would have bought otherwise is no lost sales to the record industry. And if you're going to buy it otherwise, then you've bought it.

Congress also took into account the need to deter the millions of users of new media from infringing copyrights in an environment where many violators believe that they will go unnoticed.

Yeah, that's going well for them. Screwing over one person to compensate for the small sins of many isn't – or shouldn't be – The American Way.

In this civil action for copyright infringements, a jury found defendant liable for willfully infringing 24 copyrights owned by plaintiffs. See Dkt. #106. For purposes of this motion, defendant does not dispute that finding. See Defendant’s Memorandum in Support of her Motion for New Trial, or in the Alternative, for Remittitur (“Def.’s Mem”) at 4 (“[v]iewing the evidence in a light most favorable to the verdict, it may be deemed established that, [inter alia]: defendant’s conduct was willful [and] that defendant was not innocent”).

Boy that's a leap. Because you didn't dispute the finding that files were shared, suddenly that becomes willful. That is so 1984-insane that it defies cogent rebuttal.

I'm truly left wondering just who gave these guys their marching orders to intervene in this case, and intervene now! This brief looks like it was written by the RIAA lawyers themselves.

Copyrights are of great value, not just to their owners, but to the American public as well.

Well they used to be, until the content industry and a greedy Congress colluded to steal away the entire Public Domain and Fair Use. If is not in the PD by now, it won't be for the rest of your life!


Anonymous said...

Well FYC, maybe you should address your concerns to Ms. Thomas's lawyer...you know, the guy who didn't even bother to rebut a good portion of the RIAA case. And..yes...if you don't bother to rebut something in court...then it happened. Sorry, thats the way things work.


Anonymous said...

I see that the enemy has coined a new term here. Now we have "New Media". Somehow this just doesn't ring true as a term a government lawyer would have come up with on their own. It sounds a lot more like the current discussions between the studios and the striking WGA members.

In fact, the more I look at this "government" filing, the more it looks "dirty".

This seems very likely because while the government has no reason to start writing such briefs until a case actually arrives over a Constitutional issue, the RIAA has known for months that statutory damages are being challenged in a number of cases. They've had lots of warning of the need to "prepare and assist" the government in defending the existing statutory damage structure. This sure looks like their style of just inventing new terms to cast such activities in the worst light possible.


Anonymous said...

I think what has been lost in copyright law is the shift from pirate reproductions of copyrighted work to individual use of copyrighted songs. For example, the original copyright law was originally intended to curtail the reprinting and selling of books that one did not have permission to sell or reproduce. Of course, when movies and music recordings came along, we wanted to keep people from illegally reproducing and selling these works, as if they had produced them.

Now, in these file sharing cases, we have people who downloaded copyrighted material for their own use. Certainly, not a single person involved in these lawsuits has reproduced the medium and sold it for a profit. This produces a large discrepancy between a law intended to stop large scale piracy, and individuals not intending to profit from their personal use of a sound file. Certainly those who have used a file sharing program can't be equivalent to your street corner pirate with high speed duplication equipment.


Alter_Fritz said...

I guess you got it exactly right.
It seems what you argument is also what the unsigned anonymous wanted to point out.

When congress set those high statutory values it had definitely in mind (after lobbying with much money of Microsoft and BSA also in their pockets probably) those guys that commercialy style like sold those "Raubkopien" (that's the term the copyrightlobby coint in german for copies where no license fee has been paid for).

Time to remember and watch what really drove congress with those alleged unconstitutional excessive Money figures (It was not music in the mid 80's and late 90's)

Quote:"Pay attention to the comments by Gary and the anti-piracy lawyer Neil regarding the copying of music. My have the times changed!"


I think you are a bit to suspicious about who the real author of the brief is.
The use of the term "media" in this specific context make sense (other then RIAA's "Online Media Distribution system"
It's just that the author did confuse the reasoning even though he/she acknowledges the software piracy at that time as the likely reasoning.
I think author just remembered the often heard mantra of RIAA in their filings about "infringing copyrights in an environment where many violators believe that they will go unnoticed."

(I don't think those they believe it's "unnoticed" but rather "unpunished" if they have basic understanding of math and probability [~30000 compared to a 2 digit million figure of actualy noticed people that don't pay fees in the instant moment. [BTW. do you americans have a levy on blank media and photocopiers that is payed to copyrightholders collection agencies in anticipation of "copyrightinfringement" like we germans or the canadians have?]

Juan Cierva said...

What a shocking document. What splendid proof of the power of lobbies and special interests in today's US. To the absence of truth, the DoJ now adds a dearth of justice. After the John Yoo torture debacle I expected more restraint.

Scott said...

So, is the Justice Department saying that the outrageous statutory damages satisfy due process because Congress determined that it would have a deterrent effect?

By that logic, if New York City decided to execute convicted parking violators by lethal injection, the Justice Department would say it was constitutional. After all, it is difficult to quantify the damage done by parking violators, but "the punishment would deter the millions of parking violators in an environment where many believed that they would go unnoticed."

Of course, the Justice Department is probably making some arguments that make sense to a lawyer. But to lay people like me, it calls into question their willingness to defend people against laws so brutal that the penalties shock the consciences of us mere mortals.

Scott said...

Link to article in The Register: "World's Dumbest File-sharer megafine gets DoJ thumbs-up" is at http://www.theregister.co.uk/2007/12/05/jammie_thomas_fine_ok/

Anonymous said...

The US Department of Justice
Mission Statement

{To enforce the law and defend the interests of the United States according to the law; to ensure public safety against threats foreign and domestic; to provide federal leadership in preventing and controlling crime; to seek just punishment for those guilty of unlawful behavior;

and to ensure fair and impartial administration of justice for all Americans.}

This particular judgement they brought down, I believe, is anything but impartial. It seems that their need to uphold this decision to deter present & future p2p users, seems as if it is an attempt to create their own law here.


Alter_Fritz said...

Heise Online (German)

Jadeic said...

This is not on topic but as good a place as any to add my thanks to alter_fritz for his/her (unless I actually know the person I treat all internet acquaintances as gender neutral) links to these German language sites. It is sadly typical that many English speakers will regard anything not expressed in English is not worthy of regard, Nothing could be further from the truth here. Even with my rudimentary German skills and the aid of Google translate I can easily follow the text on the links. Many thanks again to alter_fitz for his/her compelling additions to the debate on this blog: evidence that although not directly affected, we Europeans are as incensed by the RIAA tactics as you in the US.

Anonymous said...

In the brief they are replying to, it is pointed out that even the 70 cents suggested have not actually been lost, since the only evident downloader was the monitoring company. Yet, according to the DoJ, compensating one copy is insufficient because "it is
unknown how many other users - “potentially millions” - committed subsequent acts of infringement with the illegal copies of works". For there to hae been any subsequent acts of infringement, wouldn't MediaSentry/SafeNet have had to leave the files in their "shared folder"?