Friday, June 19, 2009

Jury awards plaintiffs $1,920,000.00 in Capitol Records v. Thomas-Rasset

In Capitol Records v. Thomas-Rasset, the jury has returned a verdict in favor of plaintiffs in the amount of $1,920,000.00, or $80,000.00 per song file. I.e. 228,571 times the actual damages.

[Ed. note. Well I guess there is going to be a third trial.

I hope that during the next trial the RIAA's technical evidence will be challenged, the defendant's expert will not be precluded, the issue of recoverability of statutory damages will be tested, and the plaintiffs will be required to prove (a) dissemination of copies (b) to the public, (c) by a sale or other transfer of ownership, or by lease, rental, or lending, before being deemed to have shown an infringement of the distribution right.

I also hope that this time the judge and the lawyers will not overlook 17 USC 412 and caselaw about what needs to be shown in order to obtain statutory, as opposed to actual, damages.

The size of the verdict provides ammunition to those of us who are making the constitutionality argument as to the RIAA's mad statutory damages theories.

On a PR note, it is clear from reports I am seeing that this verdict is making the US an international laughingstock, providing great fuel to those inclined to laugh in their beer at the US justice system. When will the courts do something to stop this madness? -RB]

Commentary & discussion:
Digital Media Wire
Barrapunto (Spanish)
Meneame (Spanish)
Heise Online (German)
Electronic Frontier Foundation
Computer World
The Inquirer
Punto Informatico
Bridge Nine
Big Footy
Piraattiliitto (Finnish)
Associated Press (via KATU Portland
Chicago Tribune
Club Delphi
SemiAccurate (prior to verdict)
SemiAccurate (after verdict)
ZDNet (6/19)
Raw Story
Doom 9
Heise Online (6/20) (German)
ItCafe (Hungarian)

Keywords: lawyer digital copyright law online internet 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 intellectual property portable music player


Jadeic said...

On what evidence?

Working Stiff said...

I'm fairly confused by the outcome.

Anonymous said...

That's awful. Unfortunately I'm not surprised. As this trial started I realized that we may have all forgotten a crucial point. I'll write an e-mail to you privately Ray. No sense giving them anymore information that might help.

By all logic, she should have won.

Alter_Fritz said...

well, at least when the american justice system holds itself up to ridicule it does so absolutely thoroughly!

Anonymous said...

Ouch... that's so ridiculous. $80,000 per song? Sheesh. I really wonder what the defense was thinking... now that they have a ridiculous damage award, maybe they will go for a constitutionality challenge?

Shabtronic said...

I would think that RIAA would be very worried about this outcome. It's obviously so far out of whack with reality it will bring them into a limelight they don't need. I think the result is a lot better than it seems because of this. I was personally gobsmacked when I read the outcome.

T2 said...

Bizarre. I expected the jury to find the defendant guilty, but to grant minimal damages so that the RIAA would have no fiscal incentive to pursue others in court. The resulting judgment, as Ray observes, virtually guarantees an appeal. Which may well be best, as the new legal defense team will have much more time to prepare.

Anonymous said...

reading the outcome is like getting punched in the face. wow.

i thought for sure that if she lost again, the award would be reduced.


raybeckerman said...

I had to reject a comment for profanity. Something tells me there will be more of those.

Interested said...

It'll be interesting to hear what the jurors have to say about why they assessed such huge damages.

@mwbourgeois: just curious, could you add some more detail about how Mr. Reynolds explained the need for damages in his closing? It seems like most of his argument was that the purpose was to punish Jammie, rather than to try and restore the record industry to any "rightful position."

Anonymous said...

It's hard to imagine an obscenity worse than this case and the conduct of the RIAA.

While the American justice system may have its flaws, I thought it was the best in the world.

Up to now.

K Patterson

Mikkel said...

Absolutely disappointing. As Interested said I will definitely be wondering what will the jury was thinking. Especially the sophomore in college. It just floors me, that in this day and age such a grossly cruel and unusual damage award was levied. By my reckoning that college sophomore was about 10yrs of age when the RIAA began suing children and napster. They have grown up almost half of their life with these lawsuits and somehow thought that this was realistic and fair?
Barring appeals that jury has just ruined a woman's life for 24 songs. I believe that a bachelors degree averages about 2mil over their lifetime, so that if she paid the bill for the rest of her life she would still likely not be able to pay it off. I am extremely upset and distraught that a jury of people after ~10yrs of these lawsuits would still do this.

Anonymous said...

Mr. Beckerman - What makes the RIAA's interpretation of the statutory damages to which they're entitled "wild-eyed"? The statute seems pretty clear.


raybeckerman said...

Dear fj;

Among other things, the Constitution.

Gordon Firemark said...

OK, so the download is a copy. That's infringement of the "make copies" right... so if Plaintiff proves the copy was made without permission, liability is established, right?

So, the question then... is just about damages. Statutory damages have a broad range... but wow... don't they have to have SOME connection to reality? To actual damages? To LIKELY actual damages?

I'm just guessing, but was this jury asked to "send a message...loud and clear" to file-sharers out there?

Is Ms. Thomas the scapegoat for all file-sharers out there?

Will she become, essentially, a martyr,

Anonymous said...

If there ever was a case to challenge the constitutionality of the damages allowed for copyright infringement, this would be it.


raybeckerman said...

Yes there's a copyright law requirement that statutory damages bear a reasonable relationship to economic reality, to the actual damages.

And there's a constitutional requirement that that be the case (see amicus briefs of Free Software Foundation in SONY v. Cloud and SONY v. Tenenbaum).

Certainly the ludicrous verdict is actually a negative for the RIAA and a plus for those of us who are arguing the unconstitutionality of the RIAA's statutory damages theory.

One of the many things that troubles me about this trial is that it appears from the special verdict form and the jury instructions that the RIAA got a free pass on the issue of its ability to recover ANY kind of statutory damages, because there was no requirement that it prove the effective date of the registrations, or the dates on which the defendant's alleged course of action of using an online media distribution system began. It also troubles me that the RIAA got a free pass on its technical evidence, most or all of which should be inadmissible.

Cory said...

The amazing thing is that the foundation for the suit is so flimsy to start. The Court of Appeals already threw out the "making available" theory and they'll see right through this thinly veiled rebranding of the theory for what it is. At a minimum, copyright infringement requires copying. There is no room for "inferences". This isn't like a's not a crime once the first step is's a crime once all of the elements are completed...and until that can be proven, there is no room for finding liability. It's not distribution until it's distributed.

Also, wasn't Media Sentry involved in collecting a lot of this evidence...and shouldn't virtually everything they've collected be excluded?

Anonymous said...

Despite how this seems, it's bad news for the RIAA. It's a reductio ad absurdum to the statute as written, that a single working mother can be forced to pay $2 million in damages!

Eric said...

The fact that the RIAA continues this charade should be enough evidence to anyone that something is wrong. Every dollar spent will never be recovered since JTR probably has no significant assets recoverable in bankruptcy. They are loosing money hand over fist perusing these cases.

As for appellate issues, unless they have a picture of the RIAA laywer blowing the judge while handing over bags of cash I don't see what they have to stand on except for excessive damages since short of claiming incompetence failures of the atty to object at trial kinda precludes a lot of appellate issues.

The constitutional angle will be a hard sell for some as congress acted and the intent was clearly written as a deterrent.

Anonymous said...

So why did these whiz kid defense lawyers fizzle on all of the "technical" issues you mentioned, Ray? They made all the right noises but apparently didn't deliver at trial.

The bravura bit about no continuance being necessary was clearly a mistake in hindsight. It looks like they needed a lot more time to get ready.

And why did Jammie change her story yet again?

What a mess. For everyone.

Anonymous said...

Whether Thomas was guilty or not, I don't know. However, as I recall it, the fat-cats were allowed to do whatever they pleased while she was largely prevented from mounting any real defense. Further, the judge approved of this. What price a fair trial, much less justice? The size of the jury award is simply grotesque. Something like $750 per song is plausible; this award is hateful and vicious. She can forget about ever having a decent life. An award like this must make it tempting for the music industry and its lawyers to simply start fabricating evidence wholesale and suing random names in the phone book: they cam point to this case and say "Pay up now or be destroyed!"

Too bad Sony didn't get a proportionate fine for every single one of the tens of thousands of computers their root-kit compromised ($80,000x10,000 ... I come up with a minimum of $800 million, but that could be low by an order of magnitude). They would have been in bankruptcy. Of course then they pled poor judgment and sought mercy--which they were given. Can't tell it by this. What goes around comes around someday.

I never understood the ferocity of the French Revolution (at an emotional level). A lot of people were introduced to Madame Guillotine who should not have been. Even Lafayette was condemned at one point. I'm starting to understand why now. While I won't wish to see the music industry and it's legal flunkies introduced to Madame Guillotine, I must say that I'd shed no tears for them if they all ended up in Chapter 7 bankruptcy, and lost everything. Every last thing, personal and corporate both, which in my opinion would be every bit as just as this outcome.

What's next debtor's prisons and slavery?

Sorry for the lengthy rant, Ray. I am beyond disgusted. You do a great job, people need know what our august "justice" system is really about ... this.


Anonymous said...

i'm not surprised, and i hope people who are surprised will reflect upon the disconnect between their beliefs and what two juries have ruled based on the evidence they were given.

are the damages too high? maybe, but the riaa isn't in it for the damages. the damages could be reduced, or laws regarding statutory damages could be changed, and i doubt the riaa would care. again, it's not in it for the damages.

two different juries didn't buy her story. doesn't that say anything? set aside your personal beliefs on file-sharing and any feelings you have against the riaa and ask yourself, what am i missing if i just don't understand this verdict?

i think you're missing the obvious different between your feelings on file sharing and the laws regarding file sharing.

there are two solutions: change the laws or work toward market-based solutions. that's all the pro-jammie/anti-riaa camp can do. obviously going to court doesn't work in your favor.

raybeckerman said...


I don't know what you mean about making "all the right noises". You don't win cases by giving press conferences.

neroden@gmail said...

The Constitutional case is pretty obvious. These aren't "damages". The Constitution doesn't authorize Congress to just make up amounts of money and call them "damages"; that is a power not granted to Congress. These amounts would be prohibited under common law, and nothing in the Constitution gives Congress the ability to change that.

These would violate the "excessive fines" clause of the Eighth Amendment if this were a criminal case. They wouldn't be allowed as punitive damages. They certainly bear no resemblance to any conceivable claim of actual damages. They wouldn't be allowed as *taxes* due to selective enforcement!

Combined, that also makes this "award" into deprivation of property without due process of law.

It's clear that the statutory damages are unconstitutional, and I hope we can get a solid appeals court ruling on that soon.

Anonymous said...

Camara & Sibley did seem to be much more bark than bite. It is, however, difficult to jump into a case at such a late stage, as many arguments the new attorneys wish they had been able to make would be waived, and the witnesses have so many statements on record, you're a bit limited in the story you can write.

7:11 anonymous - as to why she changed her story again, I'd guess it would be some combination of poor witness preparation and not being willing to tell the truth.


Neroden is wrong. said...

Neroden -

Surely you're joking, right?

"The Constitution doesn't authorize Congress to just make up amounts of money and call them "damages"; that is a power not granted to Congress."

The Necessary & Proper Clause of the Constitution would beg to differ with you.

"These amounts would be prohibited under common law."

There is no such thing as federal common law.

"They certainly bear no resemblance to any conceivable claim of actual damages."

Nor do they have to, which is why they are distinguished from claims for actual damages in the statutory language.

"Combined, that also makes this "award" into deprivation of property without due process of law"

To say that someone who has had an opportunity to be judged not once, but twice, by a jury of her peers in a federal court of law has not been afforded due process is too ludicrous to require a response.

derivative said...

This is interesting.

I have to wonder if this is a case of one or more of the jurors being "smart like a fox."

Hypothetically speaking, if I were on the jury, and it appeared that a majority of the jurors was going to give the record companies another multi-hundred-thousand verdict (which, obviously, Jammie can't afford), I would have been sorely tempted to vociferously argue the RIAA party line, to make the damages as egregious as possible.

After all, to many people (and Jammie, I assume, from reading a few court filings), the practical difference between $220,000 and $1,920,000 is really zero, and as Ray says, this result really exposes the issue with the statutory damages scheme.

Whether I would have really done that, I'll never know, and whether it was a good idea or not, I guess we'll find out over the coming months.

-- derivative

Anonymous said...

This is fantastic!! Finally the legal system is seeing sense and punishing those evil file shares for their nefarious crimes. I mean to say - this low-life left 24 songs lying NAKED in an open file sharing folder - that is absolutely outrageous and should be punished by the full weight of the LAW. At least the poor recording industry will now be able to defend their business against these criminals who are robbing them blind with their terrible promiscuous ways.

-Billy TK

derivative said...

Dear "Neroden is wrong":

"To say that someone who has had an opportunity to be judged not once, but twice, by a jury of her peers in a federal court of law has not been afforded due process is too ludicrous to require a response."

Then why did you give one? In particular, why did you give an unsupportable non-response? Do you think juries never screw up? Has no jury verdict ever been set aside? Has no judge ever been turned over by an appeals court?

Actually, you don't even need to answer those questions correctly to reach the due process issue. You could just examine a supreme court case from 1855, where the decision said in part "The [due process] article is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave Congress free to make any process ‘due process of law’ by its mere will."

SO, some of us think that Jammie is suffering a lapse of due process that started well before the jury was selected.

Frankly, your whole post is so trollish I'm ashamed to be feeding it. I guess I'm not used to this sort of thing here, because Ray usually yanks the ones that are this stupid.

-- derivative

raybeckerman said...

I apologize, derivative. "Anonymous Neroden is wrong" is kind of trollish, & somewhat "wrong".

derivative said...

No apology necessary, Ray -- my comment was really more of a positive about how you don't let very many at all slip through the cracks.

As several of your readers will attest, you work really hard not to play favorites with this. I know that alter fritz and I, to name a couple, have had potentially misleading posts disappear, and overall, I applaud your level of editing.

DWolfman said...

First time posting here, at least the first time I've had a reason to yet after reading this blog regularly for a few years now.

I am really surprised by this verdict, but not completely. I think what shocked me more was the apparent "falling down" of the defense. What the heck were they doing? And agreeing to those jury instructions? Wow! It's just amazing.

Ray, I'm beginning to think that the only way this could get resolved fairly would be if you got involved in her case somehow. I don't think there's anyone else out there that really understands how this should work any more.

Anonymous said...


The fines here are vastly larger than in criminal cases, and the protections given to Defendant are far far less. How could that even conceivably be constitutional? (It couldn't.)

I can't see how any right-minded person would think a 2 million dollar charge is reasonable for sharing these songs.

"Send a message." shouldn't be synonymous with "Ruin her life." Not for file sharing.

Not to mention the weak jury instructions and flagrantly horrible evidence.


Faethe said...

I would just like to say that every single one of you need to stop consuming content administered by the RIAA. If you must, buy whatever it is used because it has already been purchased once.

That is all. I hope this all does not end in pitchforks and torches but it probably will.

Anonymous said...

I see history repeating itself, and a new form of a "Boston Tea Party" about to take shape. This verdict will undoubtedly gather attention amongst those who actively listen to music and create a lasting negative association with the RIAA. I do feel sorry for those artists that have sold their rights to this cartel that clearly has no honor. I, for one, will urge my children, their friends, and all in their social circles to steer clear of any RIAA labels.

Oldphart in Kansas

Anonymous said...

What sense does a verdict make that can never be fulfilled ?

I wonder when they will ask her to sacrifice organs in order to pay up....

The Peer said...

Does anyone seriously think that filesharing constitutes "by a sale or other transfer of ownership, or by lease, rental, or lending"? No sale, obviously. No transfer of ownership as the sharer retains their copy. Quite clearly not lease or rental. Lending? No; that again would imply the sharer doing without their copy.

So - as is intuitively obvious - copyright laws don't apply to p2p. They are relics from another era altogether.

raybeckerman said...

They professed to have no knowledge of the first trial.

Anonymous said...

The Peer:

You're wrong. There are various rights exclusive to copyright holders, and while the distribution right doesn't lend itself well to P2P cases, others do.


Eric said...

The Peer,

I think p2p would fall under a performance to the public; although for that to be the case they have to show that someone else downloaded the song since her own downloading would not count despite the RIAA's claims.

Let's say the harm per infringement is $0.79 and willful infringement is 4x$0.79 ( a little on the generous side since wholesale is probably half this ). Let's also pre-suppose that the infringing files are 4 mb in size and that she had a 1mbps upload ( that would have been very fast for that time ).

In order to justify $80k/infringement, 1.92M dollars, at $3.16/incident they are claiming that she uploaded 19.43 terabits of data which equivalent to maxing out her 1mbps connection for 7.5 months ( assuming she even had 1mbps and could sustain those upload speeds 24/7/365. Realistically her sustained upload was probably more likely 1/4 that rate which means it would have taken almost 2.5 years years to reach that many copies.

This still does not explain the RIAA's pursuit of this case since they have to know that she has only has a token amount of assets to claim at this point.

I would also love to see the appeal and hear her lawyers explanation for the poor job they did at trial. Even with an appeal on constitutional grounds she has still be tried and found culpable for the willful infringement which the courts will find hard to deny at this point.

Anonymous said...

Dr. Jacobson's testimony this morning

begin quote:
Then Mr. Sibley asked about whether or not Dr. Jacobson had an opinion on whether all 1700 songs MediaSentry found evidence of came from CDs or KaZaA, or another source. He testified that he could not tell the original source of the files, and admitted that it would be easy for a user to move files around, such as in to a shared folder, regardless of their original source.
---end quote

posted by Marc W. Bourgeois @ 6/16/2009 02:00:00 PM

-from this very blog.

The plaintiff's expert cannot state where those files came from. I gather that this was on direct. Doesn't that qualify as impeaching your own witness?

Exhibit 4, certificates of registration, were excluded; the plaintiffs own expert disavows any knowledge of the source of the files in question, and there's a preponderance of evidence showing defendant purchased discs containing many of the tracks found. There's no evidence of p2p software and (possibly) another hard drive.

The jury finds in favor of plaintiffs, awarding $1.9M to same.

I KNOW I'm about to brand myself a kook for saying this, but methinks I smell a rat.

-Quiet Lurker

The Peer said...

So of which exact clause of the copyright act has she been found to have fallen foul? Someone on here must know.

Anonymous said...


I'm not sure the criminal analogy is the best one. The constitution has a provision explicitly preventing the levying of excessive fines by the government. There is no such corollary in civil law. The due process argument under BMW is available but is, I think, a difficult case to make in the context of statutory damages.


Marc W. Bourgeois said...

Anonymous Quiet Lurker,

Just for clarification, the portion of article you quote was testimony on cross.

Anonymous said...

The Peer

In your first post, I agree with paragraph 1, but not with 2. The Copyright act is fully aware of the Internet and online communication, for example the DMCA. If Congress had intended to alter 106, they would have added 123 or whatever and made it a prerequisite for 106 just like 107-122 are now. There is nothing significantly unique about the so called p2p networks. The same functionality can be obtained for example by running a web server and a web browser on the same machine.

On your second post, the Special Verdict Form did not require the the jurors to determine how the copyrights were infringed, only if they were owned, if they were infringed, if the infringement was willful or not, and the damages.

I would have expected the judge to be more specific this time, but this form will not help to identify which (if any) jury instruction cause them to declare infringement.

Just a biased observer

Anonymous said...

For those bashing the expert witness,

It appears to my uneducated eyes that
Jammies expert witness was pretty much
'hogtied' and thus unable to testify in
any meaningful way, deliberately rendering
him useless.

Not his fault. Another marvel of our
american 'justice' system.


The Peer said...

biased observer, is it possible that the judge felt there was more chance of the jury upholding the spirit of the law, rather than the letter of it, which might have set an awkward precedent?

Anonymous said...

A victory for the hunting dogs!

For the future:

Call on the RIAA to prove your hard drive wasn't compromised by a third party using metasploit.

Although you may not find expert witnesses at 2600 meetings, you should find people who know where you can find expert witnesses locally.

Approach 2600 meetings like a supplicant praying for answers at a temple of tech. Allow the techie's their arrogance, and they will allow you your if/when they have legal questions to ask you.

2600 meetings are about sharing knowledge, so may well be strange territory for lawyers used to charging for knowledge. In this case, knowledge may well be one of the few things you have to barter with.

As a lawyer at a 2600 meeting for the first time you may well be perceived to be a representative of "The Man" until after you have made your case to the forum. Don't take tech you don't want pwned. Take pen and paper. Courts are paperwork crunching machines, and lawyers hack courts in the same way that hackers hack computers.

Above all, read this before attending a 2600 meet.

Anonymous said...

" is it possible that the judge felt there was more chance of the jury upholding the spirit of the law, rather than the letter of it,"

Jury Instruction 18 pretty much insured a guilty verdict regardless
of evidence presented ( IMHO ),
So i doubt that.

I can't comment on my opinion of
the Judges motivation on Ray's Blog.


Anonymous said...

biased observer, is it possible that the judge felt there was more chance of the jury upholding the spirit of the law, rather than the letter of it, which might have set an awkward precedent?


If she committed the alleged acts, okay, then prosecute her accordingly. But ruining someone financially for the rest of her life over a couple of dozen songs that wouldn't have cost more than $25??

How can a supposed loss of about $25 equate to almost $2,000,000 in damages? Oh, I get it, the $25 dollars they lost in sales on the copies downloaded by their own investigator that was authorized by the copyright holders to do so proves without a doubt that millions of these copies were distributed to the entire world and the poor recording companies should pin it all on Jammie.

Explain that to me would you?

What's next? Fining people $10,000 because they were caught singing in the shower? Or how about $50,000 because they were humming a song in public? And better yet, we won't let the state collect the fine, we'll let the person/organization who has some mistaken belief "in being entitled" collect the money.

I just hope that this gets overturned on appeal/constitutional grounds/something. Otherwise this is going to end up pretty badly for everyone else caught in the RIAA's litigation scam.

If this isn't a wake up call for something to be done with the current laws, then I don't know what is.

-PO'ed and Angry In The South

cpghost said...

Never attribute to malice what can be explained by incompetence. IMHO, the jury could also have wanted to reduce the fine to $80,000 (total), but were so incompetent that they overlooked the "per song" part.

If that's the case, and the jury realized their mistake, could they have a legal way to correct it after the fact?

Anonymous said...

The Peer

You would have to ask the judge. I don't have a clue as to what his expectations were.

Just a biased observer

Anonymous said...

If there was anything designed to encourage more filesharing in order to screw over the RIAA as much as possible, this verdict is certainly it.

{The Common Man Speaking}

facebone said...

On the requirement that plaintiffs prove the effective date of the registrations, didn't they put them into evidence and doesn't that establish the date?

Anonymous said...

" the jury could also have wanted to reduce the fine to $80,000 (total), "

So 80,000.00 ,for 25 songs that
would retail through itunes for
about 28.00, ( 80,000 is still enough
to ruin most people for life ) is
reasonable ?

Consider that no evidence was, or
apparently needed to be, shown that
anything was tranferred from a pc
to anyone other than Mediasentry.

This is still reasonable ?
Fair ?

Wait till they come for you.
Don't tell me that 'I don't
download' because it doesn't matter.

An IP as an identifying device is
a crapshoot and MANY innocent people
get caught in the net.

You COULD be next.

IF it is ever your turn, think of
how 'reasonable' any of this is.


raybeckerman said...

Jury should have been instructed to make finding as to when defendant began course of action of using Kazaa to (a) make unauthorized copies, (b) make "distributions" of copies as to each song. As to any copyright registration effective date subsequent to that date, plaintiff would be limited to recovering actual damages, no statutory damages.

Anonymous said...

Begin quote:

Anonymous Quiet Lurker,

Just for clarification, the portion of article you quote was testimony on cross.

June 19, 2009 11:45:00 AM EDT

:end quote

I humbly stand corrected.

-Quiet Lurker

RecentJuror said...

I recently got nailed for jury duty. It was a property damage case. Long story short, it was a plaintiff against an insurance company, though the insurance company(ies) of the landlord and contractors were never anmed. With the exception of one litle old lady, everyone picked by the lawyers was a college graduate. A lot of people were in salaried positions where they jurors were expected by their employers to meet their due dates. With laptops, the Internet and Blackberrys, it is possible for people to be required to put in very long days between sitting in the courtroom and cranking out their day job work in a telecommuting setting.

In the case I was on, it boiled down to the jury setting a dollar figure for damages to the plaintiff. The only reason it went to trial was because the plaintiff must have wanted a million dollars and the insurance company wanted to pay ten dollars.

I happen to have stumbled upon a case that I knew some of the dollar figures involved. But, I ran loggerheads with some people who had no idea what anything was worth, especially the little old lady. At one point, I even said the the rest of the jurors, "Look, lets quit torturing ourselves. Award the plaintiff two million dollars. (The plaintiff was due about $10,000.) Then we can get back to our day jobs. Let the insurance company battle it out in appeals court." Before we left the juror's room, we took all the paper we wrote on and stick it in our pockets.

I can see these jurors in Minnesota throwing up their hands and awarding an outrageous and impossible sum of money just to end their time on jury duty. They know damn well the case is going to get appealed.

Anonymous said...

This man is surprised by, among other things, that the actual technician who collected the data wasn't required to directly testify. Unless he was being directly supervised during the data collection then this man thinks that all testimony about it would be hearsay.

Something like $750 per song is plausible;

Surely you jest!

The Necessary & Proper clause was amended to prohibit excessive fines by the 8th Amendment.

Also the term "common law" is explicitly mentioned in the 7th Amendment.

{The Common Man Speaking}

Anonymous said...

A number of commenters have made reference to the 8th amendment. To be clear, the Supreme Court holds that the Excessive Fines clause is only applicable to fines paid to the government. In the case of RIAA, absent a state action theory (very unlikely), the 8th amendment simply does not apply.

The Gore cases are more relevant, but people do not pay attention to the remedy in that scenario. Yes excessive damage awards could be held unconstitutional, but that result would not overturn the statute. It would just create an option of remittur (agreed reduction in damages) or new trial when a jury is too zealous. If you want to see these types of litigation campaigns reigned in or halted, challenging verdicts is unsatisfying.

There is a separate line of Supreme Court cases where civil statutes were challenged as civil in name but criminal in effect. However, the standards set by the court to reclassify a civil statute as criminal are almost insurmountably high. The Copyright Act is not likely, on its face, to meet these standards.

Often overlooked is 512(h) of the Copyright Act. RIAA uses this section to obtain subpoenas to force ISPs to turn over customer information associated with specific IP addresses at specific dates and times. In many states, it is illegal for an ISP to provide this information without a subpoena. Under 512(h), the subpoena requires only the approval of a clerk of the court - no judicial officer is involved.

Given the recent jury award in Minneapolis, there are significant due process concerns with a civil statute that allows such enormous penalties. Arguably the Copyright Act, at least in file sharing cases, is quasi-criminal because the damages are almost entirely punitive and deterrent in nature. This suggests that issuance of a subpoena should occur only after a judicial review of the evidence supporting the request.

Anonymous said...

June 20, 2009 2:47:00 PM EDT Anonymous:

We all recognize what the Excessive Fines Clause refers to, but we also all recognize the motivation for it -- and the exact same reason it's appropriate in criminal cases makes it even more appropriate here!


Anonymous said...

" We all recognize what the Excessive Fines Clause refers to, but we also all recognize the motivation for it -- and the exact same reason it's appropriate in criminal cases makes it even more appropriate here! "

Likewise then, considering the amount of
devastation wreaked on an individual,
the burden of proof in these cases should also
be the same as criminal cases.

Wouldn't you agree ??