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RIAA vs. Jammie Thomas
June 18, 2009 3:42 PM   Subscribe

Jammie Thomas to pay RIAA $1.92 million. Found guilty of willful copyright infringement, the jury awarded the RIAA $80,000 each for 24 songs. This is up from $220,000 in the first trial (previously). Ars Technica has a good review of the case.

Kiwi Camara, her most recent lawyer, intends to press on with his class action suit against the RIAA, along with his old Harvard prof Charles Nesson, also involved in the Joel Tenenbaum piracy case.
posted by 6550 (138 comments total) 3 users marked this as a favorite

 
Camara suspects that the jury thought Thomas-Rassert was a liar and were "angry about it," thus leading to the $80,000 per-song damages.

Gotta love those jury trials.
posted by mek at 3:46 PM on June 18, 2009 [5 favorites]


Well, the RIAA needs the money. I for one haven't paid for music in over 10 years and I don't plan on starting any time soon.
posted by item at 3:46 PM on June 18, 2009 [34 favorites]


Headline is misleading; in the article she's quoted as saying she won't pay it because it's flatly impossible.
posted by localroger at 3:55 PM on June 18, 2009


There's either something I'm missing here, or this is just so absurd as to defy the imagination.

Let's say I'm walking down the street and I find a box full of CDs (or books, or DVDs, or magazines) on the sidewalk. I then pick up the box, take them home, and listen to (or read, or watch, etc) them. If the recording industry is mad that I did not pay for them, why don't they go after the person who left the box on the sidewalk? In other words, why is the onus of legal copyright responsibility on those who download songs, rather than on those who upload them? It makes no sense. If this person (Jammie Thomas) took 24 songs from the internet, who put those 24 songs on the internet? Should not the greater copyright infringement burden fall on someone uploading the content, rather than on someone downloading it? It's madness.
posted by ornate insect at 3:55 PM on June 18, 2009 [3 favorites]


Get in line, RIAA! This lady owes me $1.92 million, too.
posted by Flunkie at 3:59 PM on June 18, 2009 [1 favorite]


I'm amazed they managed to find 12 people who had apparently never downloaded an illegal file themselves.
posted by djduckie at 4:00 PM on June 18, 2009 [12 favorites]


... one hundred BILLION dollars!
posted by pyrex at 4:02 PM on June 18, 2009 [4 favorites]


"...one of Thomas' attorneys is willing to discuss a settlement with the music industry."

In seeing that the first jury also found her quilty, I think it might be wise for her to consider settling and not appealing this current jury/court ruling.
posted by ericb at 4:02 PM on June 18, 2009


They win a lawsuit and still rather settle afterwards, the RIAA is so nice: Since day 1, we have been willing to settle the case and remain willing to do so."
posted by acro at 4:03 PM on June 18, 2009


Can someone explain to idiots like me how it's possible to award $1.92 million damages for stealing songs that are legally downloaded for $20 total? I'm genuinely confused.
posted by swift at 4:03 PM on June 18, 2009 [13 favorites]


Should not the greater copyright infringement burden fall on someone uploading the content, rather than on someone downloading it? It's madness.

That is what she was found guilty of. Downloading music is not illegal.
Sharing it, or making it available for other people to download, is.

That said, this judgement is ludicrous. It has to violate the Eighth Amendment.
posted by Benny Andajetz at 4:04 PM on June 18, 2009 [2 favorites]


The evidence clearly pointed to her machine, even correctly identifying the MAC address of both her cable modem and her computer's Ethernet port.

Ah, MAC addresses, you can't change those or anything.

If there's anything I learned from watching rich people get away with things is that you must be very complicated about what you're doing. Downloading something with a cutesy nickname and matching a cable modem MAC address? That's enough to make the guy who has a hard time figuring out how to iTunes works to convict you of this outrageous amount.

Having a European seedbox that you SFTP into? Now you're just having people scratch their heads, because it is so remote from how they download their music, that something has to be wrong.
posted by geoff. at 4:06 PM on June 18, 2009 [2 favorites]


Downloading music is not illegal. Sharing it, or making it available for other people to download, is.

Wait, so if I never upload a file, and only download, say, from rapidshare, no p2p, I am not doing anything illegal?! That can't be right.
posted by milarepa at 4:07 PM on June 18, 2009


Camara suspects that the jury thought Thomas-Rassert was a liar and were "angry about it," thus leading to the $80,000 per-song damages.

Gotta love those jury trials.


Well that's one of her defense attorney's speculation. Two trials with two juries found her guilty. Don't blame them.

I've served on four juries and found everyone took the job seriously and carefully examined the evidence before us carefully and methodically as it applied to each case and the laws involved. I suspect such happened before these two juries.

As the Ars Technica article points out:
"The case is a reminder that in civil trials, simply raising some doubt about liability is not enough; lawyers need to raise lots of doubt to win the case, and Camara and Sibley were unable to do so here."
posted by ericb at 4:09 PM on June 18, 2009


Wait, so if I never upload a file, and only download, say, from rapidshare, no p2p, I am not doing anything illegal?!

Absolutely correct. Download to your heart's content.
posted by Benny Andajetz at 4:09 PM on June 18, 2009


BTW -- the jury could have found damages per infringement from $750 to $150,000 each! It looks to me like they decided to somewhat "split the difference."
posted by ericb at 4:12 PM on June 18, 2009


I think I would consider suicide. In fact, I know I would.
posted by bz at 4:14 PM on June 18, 2009 [1 favorite]


Wait, so if I never upload a file, and only download, say, from rapidshare, no p2p, I am not doing anything illegal?!

That depends. Have you disabled the share function or otherwise put the files into a non-shared folder? If I remember correctly, p2p downloads default into a shared folder, so you're sharing them until you stop it.

It has to violate the Eighth Amendment.

I think this is a civil case, though. Correct me if I'm wrong, but I think the Eighth Amendment only applies to criminal cases. Due Process, on the other hand...(pretty sure there's a case out there whose name I've forgotten that says excessively high punitive damages violate the Due Process Clause)
posted by inara at 4:17 PM on June 18, 2009


What was she sharing this stuff on?
posted by anazgnos at 4:19 PM on June 18, 2009


Can someone explain to idiots like me how it's possible to award $1.92 million damages for stealing songs that are legally downloaded for $20 total? I'm genuinely confused.

"The jury found Thomas-Rasset's conduct to be willful, which means that statutory damages under the Copyright Act can range from $750 per infringement up to $150,000."

She was found guilty of a crime. The punishment meted out was determined by the current components of the Copyright Act. There have been/are numerous attempts to challenge the act, as it is now defined. Courts and/or legislators are the right avenue to challenge it and its provisions.
posted by ericb at 4:19 PM on June 18, 2009


This was Kiwi "Nigs" Camara's first-ever trial, right?

If so, it doesn't really surprise me that she got slammed. It is not prudent to turn to a brand-new lawyer with little or no trial experience to represent you in a high profile case. I guess she was desperate ... and look how it turned out.
posted by jayder at 4:20 PM on June 18, 2009 [5 favorites]


FYI ... Thomas's original lawyer (Brian Toder) for this case asked to be released from it last month. He was.
posted by ericb at 4:24 PM on June 18, 2009


Two trials with two juries found her guilty. Don't blame them.

No, I think I will blame them. A jury's paramount responsibility is to do justice, regardless of the bullshit fed to them by prosecutors and judges. What they did is a mind-boggling injustice.
posted by Crabby Appleton at 4:25 PM on June 18, 2009 [22 favorites]


What was she sharing this stuff on?

Kazaa on her Windows PC in her bedroom, over the cable modem, onto the internet.
posted by @troy at 4:25 PM on June 18, 2009


That depends. Have you disabled the share function or otherwise put the files into a non-shared folder? If I remember correctly, p2p downloads default into a shared folder, so you're sharing them until you stop it.

milarepa said "no p2p", but you're right. If you are using a p2p client, you definitely need to turn off sharing. ( Then, of course, you're a leech. But that's another story.)

Correct me if I'm wrong, but I think the Eighth Amendment only applies to criminal cases.

I believe you are correct, but still. If anything exemplifies an "excessive" fine, it's this.
posted by Benny Andajetz at 4:27 PM on June 18, 2009


Let's say I'm walking down the street and I find a box full of CDs (or books, or DVDs, or magazines) on the sidewalk. I then pick up the box, take them home, and listen to (or read, or watch, etc) them. If the recording industry is mad that I did not pay for them, why don't they go after the person who left the box on the sidewalk?

They did. Normally when people used early decaded P2P software, any files you download would be shared for other people, so people can end up uploading accidentally. But either way, they went after someone for uploading, not downloading. With BitTorrent, it's a bit more anonymous, you only share the file you're currently downloading with the people you're downloading with. So you really only risk getting busted for one song at a time.
In a surprise decision, the jury imposed damages against Thomas-Rasset, who was originally accused to sharing more than 1,700 songs, at a whopping $80,000 for each of the 24 songs she was ultimately found guilty of illegally sharing..
The RIAA keeps things confusing, so that people who don't know better are afraid of downloading not just uploading.

Also, with the right of first sale, your box example would only be a problem if the box was full of burned CDs.
posted by delmoi at 4:29 PM on June 18, 2009 [1 favorite]


How unlikeable is this woman? Does she come across as incredibly arrogant in addition to being guilty?

I'd have pushed for a jury nullification route. Guilty with a penalty of nothing.
posted by graventy at 4:31 PM on June 18, 2009 [1 favorite]


If so, it doesn't really surprise me that she got slammed.

Kiwi Alejandro Danao Camara is a "he."

And woo-hee he has be the subject of controversy (as per your "Nig" reference) while at Harvard and at Yale.

Jeffrey Toobin had an article on the racial controversy at Harvard in the January 7, 2oo3 issue of The New Yorker: "Speechless; Free expression and civility clash at Harvard."
posted by ericb at 4:31 PM on June 18, 2009


She was found guilty of a crime.

No, she wasn't. She was found liable to the plaintiffs. This was a civil case, not a criminal case, and thus there is no "punishment," but rather, a civil judgment against her.

in the article she's quoted as saying she won't pay it because it's flatly impossible.

She may not be able to pay all of it, but now that there is a judgment, the judgment can be enforced by levying her bank account, taking and selling her personal property and real property, and making it impossible for her to accumulate any property until the judgment is paid. If she tries to hide property, she can be brought into court and forced to testify under oath about her assets and their location, under the criminal penalty of perjury. Perhaps the debt would be dischargeable in bankruptcy ...
posted by jayder at 4:33 PM on June 18, 2009 [1 favorite]


No, I think I will blame them. A jury's paramount responsibility is to do justice, regardless of the bullshit fed to them by prosecutors and judges. What they did is a mind-boggling injustice.

Prove it. Are you judging the jury without having sat in the jury box, deliberated and come to a consenses? Of course you are. Honey, that's how our system works. Don't like how they applied the law? Petition your legislative representatives in Washington DC to change the law.
posted by ericb at 4:33 PM on June 18, 2009


Holy crap her new lawyer is a giant douche.
posted by graventy at 4:33 PM on June 18, 2009


She was found guilty of a crime.

No, she was found Liable for a Tort. Crime != Tort.

People who commit crimes are criminals. People who commit torts are... TORTFEASORS
posted by delmoi at 4:33 PM on June 18, 2009 [22 favorites]


She was found guilty of a crime.

True. My bad. It is indeed a judgement and not punishment.
posted by ericb at 4:34 PM on June 18, 2009


Kiwi Alejandro Danao Camara is a "he."

And I was referring to the defendant, who, I understand, is a "she."
posted by jayder at 4:35 PM on June 18, 2009 [1 favorite]


Kazaa on her Windows PC in her bedroom, over the cable modem, onto the internet.

With the candlestick!
posted by Epenthesis at 4:36 PM on June 18, 2009 [18 favorites]


Whoa, Camara? You have a huge high profile lawsuit and you put up a 25 year old lawyer against the RIAA? Are you fucking kidding me? The RIAA probably produced more billable hours than this kid has been alive. And it is not like he's shown exact prudence in regard to being smart. I remember that Toobin article, it was like WTF? and reminded me of the whiz kids we'd encounter during the Iowa Basics in school, the kind of kids who tested well and seemed smart but would buckle under any test of common sense.
posted by geoff. at 4:40 PM on June 18, 2009


jayder. Gotcha.

It is not prudent to turn to a brand-new lawyer with little or no trial experience to represent you in a high profile case. I guess she was desperate ... and look how it turned out.

And: "Camara...[defended]...Jammie Thomas-Rasset after only two weeks of preparation."
posted by ericb at 4:41 PM on June 18, 2009


Eh, they don't want the money. They just want to scare people. All it's really doing is scaring them into not getting hold of the RIAA's music at all, either free or by paying for it.
posted by davejay at 4:43 PM on June 18, 2009


You have a huge high profile lawsuit and you put up a 25 year old lawyer against the RIAA?

She was desperate. Her former attorney, who was a heavy hitter, withdrew, and Camara, not having anything better to do, agreed to handle the case for free.

Moral of the story: Clients get what they pay for.
posted by jayder at 4:45 PM on June 18, 2009 [1 favorite]


Prove it. Are you judging the jury without having sat in the jury box, deliberated and come to a consenses? Of course you are. Honey, that's how our system works. Don't like how they applied the law? Petition your legislative representatives in Washington DC to change the law.
posted by ericb at 12:33 AM on June 19


"Dear legislative representative... I think the law is a disgrace and ought to be changed. Signed, one of your constituents."

Legislative representative: By golly, my constituent has a point. By crikey, this IS an outrage. I shall do all in my power to overthrow this unjust law.

RIAA : Hello. I see you're up for election soon. Can I possibly interest you in a little contribution to your campaign?

Legislative representative: You sure can!

RIAA : Lovely. And ... you've not heard anything about a copyright law being unjust have you? Only some malcontents have been bitching ...

Legislative representative : No, not a word from anyone. I think the law's just great.

RIAA : Good boy. Who do I make the check out to?

All animals are created equal. But some animals have much bigger purses than others.
posted by kaemaril at 4:45 PM on June 18, 2009 [15 favorites]


In the long run, this strikes me as a money-loser for the RIAA. Far from frightening people into legal downloading or into buying CDs, the reaction of most young people I deal with to these sorts of announcement ranges from disinterest to rage against the RIAA. Obviously, that's not a statistically reliable statement, but I haven't seen a whole lot of evidence that suggests that these enormous penalties have been an effective deterent against "illegal" downloading.

(In fact, it seems like the RIAA, perhaps in its death throes, is doing more damage to itself with most of its decisions of the last five years, but thats a derail)

Enormous fines of this sort are so huge as to be uncollectable and generate bad publicity. If the RIAA wanted to make some serious money off of this, reduce the fines to like $2 per track, issue something like a "speeding ticket," and aggressively go after everyone, every time. Most people will probably be willing to pay the smaller fines just to get the RIAA off their back. Yes, this still annoys people and doesn't make the RIAA many friends, but given the choice between getting hit with multiple $2 fines or paying $1 for a file, I suspect many people will pay $1 per file just to avoid the hassle.

These huge fines aimed at a very small number of people just make file sharing sort of like a reverse lottery. The odds are against you ever being the one targeted, and you'd never be able to pay that amount anyways, so why not take the risk?
posted by Joey Michaels at 4:47 PM on June 18, 2009 [4 favorites]


Wait, so if I never upload a file, and only download, say, from rapidshare, no p2p, I am not doing anything illegal?!

Absolutely correct. Download to your heart's content.


Absolutely wrong.

17 USC 501(a): Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122...is an infringer of the copyright.

17 USC 106: [t]he owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies

By downloading a copyrighted file you reproduce the work in a copy. Further, it is the downloader who is the most immediate cause of the creation of the new copy. The uploader can at least try to hide behind the 'merely making available' defense, which of course did not work for Ms. Thomas.
posted by jedicus at 4:48 PM on June 18, 2009


How can Camara be so smart and also so stupid?
posted by Optimus Chyme at 4:49 PM on June 18, 2009


jayder: "Moral of the story: Clients get what they pay for."

In civil litigation, sure. In criminal law, not necessarily.

Most public defenders could be making significantly more money practicing some other kind of law. They do it because they actually care about seeing their clients get a fair shake. That's better than those clients will be able to afford on the open market - even though some of them don''t seem to understand that.

The public defender's proud slogan is: The best representation money can't buy
posted by Joe Beese at 4:52 PM on June 18, 2009 [1 favorite]


Petition your legislative representatives in Washington DC to change the law.

That's cute. So, like, we're high school civics students in the fifties now?

I believe the most recent polling on a public health care option was something like 75%, and there aren't 51 senators who will commit to supporting it. Public opinion means as little here as it does in Iran.
posted by Epenthesis at 4:53 PM on June 18, 2009 [22 favorites]


FYI ... Thomas's original lawyer (Brian Toder) for this case asked to be released from it last month. He was.

The link about Toder also suggests that he was chummy with the RIAA lawyers, which suggests that Jammie Thomas might have grounds for appeal if she can convince an appeals court that she got screwed because her counsel committed legal malpractice.
posted by jonp72 at 4:54 PM on June 18, 2009


As they said in Rome, Dura lex, sed lex.
posted by acb at 5:00 PM on June 18, 2009


It's not that often when one comes across an actual travesty.

Pretty sure this qualifies.
posted by Sphinx at 5:01 PM on June 18, 2009


Is there any industry which has treated its own customers as enemies, and survived?
posted by Chocolate Pickle at 5:02 PM on June 18, 2009


That said, this judgement is ludicrous. It has to violate the Eighth Amendment.

You'd be surprised. The Supreme Court has held that reviews of statutory damages awards are to be reviewed under a standard even more deferential than abuse of discretion: whether the award is "so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable." St. Louis, I.M. & S. Ry. Co. v. Williams, 251 U.S. 63, 66-67 (1919). Also see, Douglas v. Cunningham, 294 U.S. 207, 210, 55 S.Ct. 365, 79 L.Ed. 862 (1935) (Congress's purpose in enacting the statutory-damage provision of the 1909 Copyright Act and its delineation of specified limits for statutory damages "take[] the matter out of the ordinary rule with respect to abuse of discretion"). (via)
posted by jedicus at 5:03 PM on June 18, 2009 [1 favorite]


The link about Toder also suggests that he was chummy with the RIAA lawyers, which suggests that Jammie Thomas might have grounds for appeal if she can convince an appeals court that she got screwed because her counsel committed legal malpractice.

That's a non-starter. You think lawyers who are adversaries in court are not chummy with each other? Any claim that it was misconduct for Toder to give a high opinion about the abilities of an adversary would be laughed out of court. Lawyers are routinely friends with attorneys they go up against in court.

That link you point to says this:

“Brian Toder, the attorney who unsuccessfully acted for Jammie Thomas, the only one of the RIAA’s 40,000 victims to appear a civil court, was instrumental in helping Richard Gabriel, the RIAA lawyer who defeated him, gain a much-coveted post,” said p2pnet last Wednesday, going on, “Gabriel was under consideration for a judgeship in Colorado and officials who were vetting the RIAA lawyer called Toder, seeking his opinion.”
posted by jayder at 5:04 PM on June 18, 2009 [1 favorite]


Is there any industry which has treated its own customers as enemies, and survived?

The software industry. The BSA is quite like the RIAA.
posted by spasm at 5:05 PM on June 18, 2009 [1 favorite]


Oh my ... from jayder's abovethelaw.com link:
"Today Thomas' current counsel Brian Toder filed a motion to substitute out of the case and be replaced by Camara, now a partner at Houston's Camara & Sibley, and Garrett Blanchfield of Reinhardt, Wendorf & Blanchfield of St. Paul. The motion indicates that Thomas will not request a continuance of the June 15 trial date....

Camara may not be a copyright specialist per se -- but specialization is not what his firm is about. In February of this year, he and partner Joe Sibley started Camara & Sibley, a Houston-based firm that will handle a wide range of litigation and corporate matters. Camara described the firm's caseload as 'commercial litigation, and commercial transactions with contested acquisitions.'

'We're generalists who handle the most complex, unique, one-off matters,' explained Camara. 'If you take a complex matter to a big firm, you'll be routed to twenty different hyperspecialists. You'll end up settling for partial advice -- "Do this, but we haven't considered this aspect" -- or you'll end up paying huge fees, because you're getting specialized advice from twenty different people who don't work well as a team.'

Camara & Sibley's model is different, according to Kiwi: 'The idea here is that you get generalists who learn the intricacies of your one-off, unique case. You don't want a hyperspecialist. You just want a good lawyer.'

....Having just joined the litigation [a few weeks ago], will the firm be ready by trial time?

Camara did not seem fazed. He cited the firm's involvement in the English and Tenenbaum cases, whose issues substantially overlap with those raised in the Thomas case. 'And we don't sleep,' Camara added.

At the same time, he acknowledged, 'it's going to be an all-hands effort at the firm.' Camara & Sibley's two summer associates -- see, not everyone is killing their summer program -- will be pitching in. 'If you're a summer associate at a big firm, you might have a bowling party,' he said. 'If you're a summer associate here, you have a jury trial in Duluth.'"
From that article it is also apparent that he and his firm seem to be "ambulance chasing" for RIAA cases. I suspect that those they currently represent -- and those who might consider them in the future -- are/will taking a second look at these young attorneys.

And by all means, if you're one of their clients, have them fight "tooth-and-nail" for a continuance of a scheduled trial date, so that they can properly prepare for your case with more than just two-weeks!
posted by ericb at 5:07 PM on June 18, 2009 [1 favorite]


jedicus:

Those are indeed statutes, but good luck proving it court. Anybody who uses email has "downloaded" copyrighted material at some point. NOT ONE PERSON has been charged by the RIAA for downloading only.
posted by Benny Andajetz at 5:09 PM on June 18, 2009


Enormous fines of this sort are so huge as to be uncollectable and generate bad publicity. If the RIAA wanted to make some serious money off of this, reduce the fines to like $2 per track, issue something like a "speeding ticket," and aggressively go after everyone, every time. Most people will probably be willing to pay the smaller fines just to get the RIAA off their back. Yes, this still annoys people and doesn't make the RIAA many friends, but given the choice between getting hit with multiple $2 fines or paying $1 for a file, I suspect many people will pay $1 per file just to avoid the hassle.

I don't see street protests arising against this, mobs setting fire to the headquarters of Universal Music or Sony BMG, and an embattled President Obama being forced to look into reforming copyright law to legalise file-sharing. A few geeks and penguinheads will grumble, the kinds of people who use Linux and read Boing Boing will, for a few years, use the RIAA as the synonym for absolute evil and/or the Empire in Star Wars, but most people won't notice, and the next people sued will pay up on cue, even if the RIAA treble their demands, because they know that they'll get worse if it goes to court. (US law is based on precedent, like English common law, isn't it?)

Jammie Thomas is, as of now, the equivalent of the tarred corpses of highwaymen that swung in cages alongside roads in 18th-century England; a grim warning to anyone else thinking of sharing music. The RIAA have won this one decisively, and I don't see it blowing up in their faces any time soon.
posted by acb at 5:09 PM on June 18, 2009 [1 favorite]


In Soviet America, copyright infringes you!
posted by XMLicious at 5:12 PM on June 18, 2009 [3 favorites]


I think the class action lawsuit is pretty smart, actually. 40,000 victims of the RIAA, and a total pool of $100 million? If a lawyer could successfully argue against the RIAA, they could reap 30 Million in legal fees, right?
posted by ShadowCrash at 5:15 PM on June 18, 2009


Is there any industry which has treated its own customers as enemies, and survived?

Fashion.
posted by swift at 5:20 PM on June 18, 2009 [17 favorites]


Speaking of the quality of defense lawyers involved in these RIAA cases, Charlie Nesson, the eminent Harvard Law professor appointed to represent another RIAA defendant, got slapped hard by the judge for filing frivolous motions and failing to make his initial disclosures (an embarrassingly rookie mistake). It appears that, for all their academic pedigrees, the defendants' attorneys are seriously overmatched by the record industry's legal teams.
posted by jayder at 5:21 PM on June 18, 2009 [1 favorite]


Man, this sucks. Someone should write a song about it.
posted by jamstigator at 5:22 PM on June 18, 2009 [1 favorite]


80 grand a song? No wonder that dude from Blur could blow through so much blow.
Were they dumb enough to share their music collection on Kazaa and not on a friends-only Soulseek folder, someone I know quite well would have to pay $1,398,080,000 in damages at these rates.
posted by dunkadunc at 5:23 PM on June 18, 2009


What a coincidence, I saw a movie in which Jammie is featured at the SilverDocs festival last night.

It's available for free (or whatever you want to pay)!
posted by azarbayejani at 5:24 PM on June 18, 2009


Calling it the Law don't make it right
posted by digsrus at 5:32 PM on June 18, 2009 [2 favorites]


Is there any industry which has treated its own customers as enemies, and survived?

Is "government" an industry?
posted by small_ruminant at 5:40 PM on June 18, 2009


In other news, I heard on the radio today that piracy here in Sweden is back to the levels it was at before a new anti-filesharing law came into effect this past February. So.. suck it RIAA, I guess?
posted by pyrex at 5:43 PM on June 18, 2009


All animals are created equal. But some animals have much bigger purses than others.

No, I believe some call it "speech". Some animals talk louder than others.
posted by Mental Wimp at 5:44 PM on June 18, 2009


Prove it. Are you judging the jury without having sat in the jury box, deliberated and come to a consenses? Of course you are. Honey, that's how our system works. Don't like how they applied the law? Petition your legislative representatives in Washington DC to change the law.
posted by ericb at 12:33 AM on June 19


The law is not the main problem. The pure idiocy of my supposed peers is. The only law I could petition for to fix that would be some kind of eugenics program.

(I've been on two juries. The civics lesson I learned was never ever end up in court because jurors are fucking idiots.)
posted by Lentrohamsanin at 5:59 PM on June 18, 2009 [5 favorites]


Charlie Nesson, the eminent Harvard Law professor appointed to represent another RIAA defendant, got slapped hard by the judge for filing frivolous motions and failing to make his initial disclosures (an embarrassingly rookie mistake).

Yeah, say what you want about Camara's inexperience but at least he hasn't pissed off the judge repeatedly by doing weird stuff.

I'm not a lawyer, but I have followed a fair number of legal cases in some detail including the Tenenbaum case, and Nesson's behavior has just been bizarre.
posted by grouse at 6:05 PM on June 18, 2009


I think I would consider suicide. In fact, I know I would.

Preferably by exploding yourself while attending a boardroom meeting of RIAA executives.
posted by five fresh fish at 6:09 PM on June 18, 2009 [1 favorite]


and Nesson's behavior has just been bizarre.

Billion Dollar Charlie is just being groovy, baby.

(Seriously, he sounds like a freethinking, unconventional and pretty cool guy ... I am just not sure I would want him to be representing me in a high stakes civil case.)
posted by jayder at 6:13 PM on June 18, 2009


I got on a civil case jury once. I had just read 'The Juror', so I kinda wanted to get all Grisham-ish on our legal system and see if I could manipulate things.

The first step, of course, was to get selected for the jury. The case was someone who slipped on some spilled dishwashing detergent in a grocery store, suing them for medical bills and some extra to deter them (and make her lawyer some moolah, I'm sure). The lawyer defending the grocery store spilled the freaking *perfect* question to get me on the jury. He asked, "If you think there should be a maximum amount awarded for damages, raise your hand." Well, nobody did! So I did. He nodded at me to explain and I said, "Well, of course there should be some maximum. I mean, a billion dollars ought to be enough for damages, no matter what the case." So he liked me because I used the phrase "a billion dollars" and the OTHER lawyer wanted me, because I was the only one that thought there should be any limit at all!

Next came the manipulation. First, I thought I'd sway the jury toward not awarding any damages at all. So I picked apart her story in the jury room, and pretty soon everyone was nodding with me. They were probably just wanting to get the case over with and collect their $12 daily pay and not having fun like me, so that made them, shall we say, intellectually malleable.

Then, I went the complete other way, and pushed for awarding her a TON of money, and picked apart the grocery store's (rather meager) defense, and sure enough, pretty soon I had them all nodding along again. Finally I was bored and thought that this was about enough of manipulating these folks, so we went with an award. I tried to push it down some, because I thought they were giving her a bit too much, but in the end she was awarded around $18,000, which was about $12,000 more than her hospital bills.

And that was my jury experience. I had fun! ;)
posted by jamstigator at 6:26 PM on June 18, 2009 [3 favorites]


Prove it. Are you judging the jury without having sat in the jury box, deliberated and come to a consenses? [sic] Of course you are. Honey, that's how our system works.

ericb, the outcome is unjust on its face. I don't need to know anything about the process to determine that. I don't care if an archangel descended from heaven and dictated the verdict to the jury. The result is an injustice, and the jury could have prevented it. And I'm not your honey.
posted by Crabby Appleton at 6:27 PM on June 18, 2009


Jammie Thomas is, as of now, the equivalent of the tarred corpses of highwaymen that swung in cages alongside roads in 18th-century England; a grim warning to anyone else thinking of sharing music. The RIAA have won this one decisively, and I don't see it blowing up in their faces any time soon.

Its not a matter of soon - its a matter of slowly eroding their sales by alienating their customers. As you may recall, evidence seems to suggest that file sharing isn't actually what's doing the most damage to the RIAA's profits. With that in mind, slowly making the folks who spend the most money on your products despise you is a piss-poor marketing move.

That said, your medieval imagery is appropriate. We don't lay out corpses anymore because they weren't an effective way of deterring crime. In fact, the evidence is suggesting that this is the sort of "crime" that no amount of ludicrous court fines is going to prevent.

You want to stop file sharing? Treat file sharers like cats - give them a more convenient way to download files for a little money or make it more inconvenient for them to download illegally.

Killing one cat isn't going to prevent the next one from pissing on your begonias.
posted by Joey Michaels at 6:29 PM on June 18, 2009 [1 favorite]


I think I would consider suicide. In fact, I know I would.

In all seriousness she should consider flying to Europe and bumming for awhile. It's now a no-lose situation for her and there are many communities in which she would be considered a heroine.
posted by localroger at 6:31 PM on June 18, 2009


ericb, the outcome is unjust on its face.

It's too bad that legal disputes, rather than being submitted to juries, can't be decided by some dude sitting at a computer.

But I agree with you. I know that the $1.92 million in damages in Capitol v. Thomas are statutory damages, but I wonder whether an argument might be made that such a large damages award violates Due Process, similar to the ruling in BMW v. Gore. Has such an argument made any headway? Is there any chance of such an argument succeeding given that there is a statute that allows such high damages? (I sense that such an argument would not go anywhere, but don't know enough about due process law to opine on it.)
posted by jayder at 6:39 PM on June 18, 2009


In all seriousness she should consider flying to Europe and bumming for awhile.

Would somebody who is bankrupt and in debt to the tune of US$2M be allowed to leave the country in default?
posted by acb at 6:50 PM on June 18, 2009


Jamstigator, I hope for your sake and the sake of the parties involved in your trial that you are joking about your story / being a troll. If not, you should be ashamed of yourself. Treating a person's life like a game for the purpose of amusing yourself with "Grisham-like manipulations" of a jury is both personally horrendous and morally reprehensible as well as a pretty clear violation of your oath you must swear as a juror in Missouri.

To quote from the guide to Missouri Jury Service, where you presumably served: "You do need an open mind and the ability to make decisions free of bias." As well, you would have swore or solemnly affirmed that you would "well and truly try the matters in issue and a true verdict render according to the evidence and the law." This makes you "duty bound to act fairly and impartially in considering (the case)" Clearly, you have failed on all of these points, and manipulated a jury to your own ends without regards for the case. Even if you can argue that you ended close to where you think they should have, your actions may have had a different result in a different context are are still inexcusable.

The jury process is not a perfect one, but it is a cornerstone of most democracies and you are making a mockery of that system, and negatively impacting people's lives in the process. Just because you CAN manipulate a jury for lulz doesn't mean you should, and by your own admission you helped deliver what you thought was a reward that was above what should have occurred after you "pushed for awarding her a TON of money" and couldn't get them to knock it back down, all at the expense of a poor grocery store owner who I'm sure could use the money.

Well played, Grisham. This is why we can't have nice things.
posted by evadery at 7:00 PM on June 18, 2009 [16 favorites]


jayder: You might give a listen to Episode 5 of the IP Colloquium, which is all about statutory copyright damages and includes Prof. Nesson and the RIAA General Counsel, Steven Marks.

Basically, Nesson definitely feels that the statutory damages system goes far beyond due process when applied to small scale, non-commercial file-sharers. Since Capitol v. Thomas was the first file-sharing trial, I don't think that theory has been tested yet, but I'm sure Nesson will try it in his own case.
posted by jedicus at 7:02 PM on June 18, 2009


Jammie? Sounds rather unfortunate to me...
posted by pompomtom at 7:05 PM on June 18, 2009 [1 favorite]


Absolutely correct. Download to your heart's content.

Absolutely wrong.


Quoting US law doesn't make this "absolutely" wrong. It makes it wrong in the USA. In Canada, downloading continues to be legal for "private use". Court cases continue.
posted by GuyZero at 7:44 PM on June 18, 2009


Quoting US law doesn't make this "absolutely" wrong. It makes it wrong in the USA.

That's fairly well implicit in any citation to US law, I think. Also, we are discussing a US case, and prior to claiming that downloading was not copyright infringement, Benny Andajetz mentioned the Eighth Amendment, further establishing a strong US law context to that subthread.

As you point out, other countries may do it differently, and I made no claim to the contrary.
posted by jedicus at 7:51 PM on June 18, 2009


I think I would consider suicide

Never never never never never. Especially not for stupid stupid stupid money.

Not when I can hide her file-sharing self and her four kids in my trailer for a long, long drive to a wonderful (if regularily chilly) new life somewhere just south of the Arctic Circle.
posted by CynicalKnight at 8:03 PM on June 18, 2009 [1 favorite]


The woman violated the copyright of companies. You can wish big music was free, but this is dead-to-rights copyright infringement. The law said don't do this, she did it. Open and shut. We have a system of IP rights. Until that changes, this is a hugely predictable result.This woman stole. She got caught and busted. When you download music, you are taking the rights held by others without paying for it. You are not entitled to do that. Where is the moral basis for being able to steal? Chalk me up on the side of "kids today" on this one.

A good counterexample here is computer programs. Do all of the programmers on MeFi think it would be right for a customer to copy their code for free and not pay them? I doubt it.

The entire music industry that brings you your Lady GaGa and Madonna was created with money based on this model. No rights-based model, no Lady GaGa. These pop stars are made by record producers paid by record companies. Auto-tune ain't free, folks. Whining about it now makes no sense.


It is highly unlikely this model will survive, so you'll have a more localized and smaller industry, with music being generally free and more small bands and fewer big ones.

None of these means that Metallica still aren't assholes.
posted by Ironmouth at 8:08 PM on June 18, 2009 [2 favorites]


I'm kind of surprised that lawyers aren't able to make a better defense out of the fact that the RIAA essentially gets evidence by trespassing on the users' computers. I certainly never have given the RIAA permission to access my computer, and I assume few others do. If I happen to leave my computer running a file-sharing program so that a few (or few thousand) friends can access my files, it's still trespassing for the RIAA to access it.

This is the online equivalent of me leaving my door unlocked so that a friend might drop by to borrow a book, and a publisher entering my apartment, seeing that I have books on my shelf available for borrowing, and declaring that I'm violating copyright.
posted by explosion at 8:15 PM on June 18, 2009 [1 favorite]


These cases act like a weak antibiotic. At best, it might get rid of the casual/unsophisticated sharer. It will only strengthen, drive deeper underground, and so make less vulnerable the rest. Private networks, usenet, and other ways will proliferate. You will not stop the "disease" - the forces driving it are too fundamental, and RIAA times a thousand are not a match.

Sucks for Jammie. Makes no difference to serious sharers. In fact, Jammie Thomas is a poster case of the casual user - her technical sophistication, her tools, and most importantly what she shared, the content. Look at that music - is this a music fanatic, someone with a deep knowledge and dedication? I'm not being a snob here. I think odds are, she is not a music fiend. Why does it matter? Because for anyone who cares very deeply about music, someone for whom music is that important - well, such a person is going to take a great deal more care in obtaining such music. And that means, they'll be a lot harder to catch and prosecute. So, this case is a weak antibiotic. It will do nothing to the serious sharers.
posted by VikingSword at 8:20 PM on June 18, 2009 [2 favorites]


How unlikeable is this woman?

Well, she is an enrolled member of the Mille Lacs Band of Ojibwe. Anti-Indian racism isn't universal up here, but when it does happen, it can be brutal, sharp and breathtaking.

A bit more widespread is this notion that "they all get casino money". Large checks written out to individuals are unusual, and increasingly rare the further north you go. The Mille Lacs Band at least has a reputation for responsible investing in reservation businesses and social programs, rather than just handing out checks to people, but there are still people who like to imagine that individual Native Americans have a lot more money than they actually do.

Strictly idle speculation, of course, since we don't know a lot about the jurors, but a bit of bad luck in jury selection--even just a couple of drooling idiots--could have gone very, very poorly for her.
posted by gimonca at 8:25 PM on June 18, 2009


"ericb, the outcome is unjust on its face. I don't need to know anything about the process to determine that. I don't care if an archangel descended from heaven and dictated the verdict to the jury. The result is an injustice"

The damages are essentially a sentence of lifetime indentured servitude. Even many murderers get out after 25 years. It's wildly disproportionate to any potential harm done and despite her breaking the law, the law is unjust. It'll be interesting to see if the types who trumpet the McDonalds coffee case as a miscarriage of justice add this case to the barding of their hobby horse.

"Would somebody who is bankrupt and in debt to the tune of US$2M be allowed to leave the country in default?"

You all don't have debtors prisons do you? I've never heard of a civil judgement requiring one to surrender a passport so I'd be interested to hear of any examples.

Ironmouth writes "The woman violated the copyright of companies. You can wish big music was free, but this is dead-to-rights copyright infringement. The law said don't do this, she did it. Open and shut. We have a system of IP rights. Until that changes, this is a hugely predictable result.This woman stole."

You open with the correct term and then jump to the incorrect hysterical hyperbole not six sentences later. Copyright infringement is not stealing.
posted by Mitheral at 8:32 PM on June 18, 2009 [10 favorites]


It makes it wrong in the USA.

Well, this entire thread is about a US court case and the RIAA, which is a US industry group. So I think it's fair to assume that's what they meant by "absolutely wrong".
posted by wildcrdj at 8:33 PM on June 18, 2009


Ironmouth, are you actually making an ironic argument for more filesharing? A "more localized and smaller industry" with "more small bands and fewer big ones", and most importantly no Lady Gaga or Madonna, sounds absolutely fantastic to me. (And I say this as someone who works in an IP-based industry, still buys physical books and CDs, and doesn't even have a torrent client installed.)
posted by No-sword at 8:40 PM on June 18, 2009


Kiwi Camara, her most recent lawyer, intends to press on with his class action suit against the RIAA, along with his old Harvard prof Charles Nesson, also involved in the Joel Tenenbaum piracy case.

I know that, intellectually, I am not qualified to shine Nesson's shoes, but this idea of a class-action lawsuit by a guy who apparently can't get hired by any firm due to his ignominious career at Harvard Law School (Camara), and by a professor smoking so much weed he can't get his most basic filings submitted in time (Nesson), really sounds amusing ... it's not exactly a "dream team," more like a premise for a slapstick comedy. Class action lawsuits against huge, well-funded defendants are not for dabblers.
posted by jayder at 8:57 PM on June 18, 2009


You all don't have debtors prisons do you?

Sort of. In some states failure to pay certain debts like child support can land one in jail. I'm fairly certain that failure to pay a civil judgment does not carry such a penalty, though.
posted by jedicus at 9:02 PM on June 18, 2009


You want to stop file sharing? Treat file sharers like cats…

What, stick firecrackers up their ass and light the fuse?
posted by five fresh fish at 9:06 PM on June 18, 2009


This is the online equivalent of me leaving my door unlocked so that a friend might drop by to borrow a book, and a publisher entering my apartment, seeing that I have books on my shelf available for borrowing, and declaring that I'm violating copyright.

Dude, you put a sign on the front door saying "Anyone can come on in and take a look around." That it was maybe in a language you couldn't read doesn't mean you weren't responsible for what's on the sign.
posted by Pope Guilty at 9:33 PM on June 18, 2009


oh hey guys is it analogy time yet?
posted by grouse at 9:38 PM on June 18, 2009 [6 favorites]


I'm kind of surprised that lawyers aren't able to make a better defense out of the fact that the RIAA essentially gets evidence by trespassing on the users' computers. I certainly never have given the RIAA permission to access my computer, and I assume few others do. If I happen to leave my computer running a file-sharing program so that a few (or few thousand) friends can access my files, it's still trespassing for the RIAA to access it.

It is called Discovery. It is necessary for all cases.

As for me advocating a more file-sharing universe, I am doing so and unironically. Bands will rule the new universe. Record companies will be promotion outfits. And taste will be made purely by the public.
posted by Ironmouth at 10:22 PM on June 18, 2009


I'm kind of surprised that lawyers aren't able to make a better defense out of the fact that the RIAA essentially gets evidence by trespassing on the users' computers. I certainly never have given the RIAA permission to access my computer, and I assume few others do. If I happen to leave my computer running a file-sharing program so that a few (or few thousand) friends can access my files, it's still trespassing for the RIAA to access it.

This is the online equivalent of me leaving my door unlocked so that a friend might drop by to borrow a book, and a publisher entering my apartment, seeing that I have books on my shelf available for borrowing, and declaring that I'm violating copyright.


When you hook up to a public network and share files from a public folder, with no effort made to discriminate in who can access your files, you're explicitly giving everyone who can connect to your computer permission to download what you're making available. This is not leaving your front door open so your friend can pick something up, this is leaving your stuff out on your lawn with a sign that says "free for the taking". Complaining about the RIAA downloading files from you is like pointing to a guy who just grabbed your ottoman and saying "wait... everyone but that guy!"
posted by fatbird at 11:10 PM on June 18, 2009 [1 favorite]


No rights-based model, no Lady GaGa.

Works for me!
posted by nicwolff at 11:54 PM on June 18, 2009 [5 favorites]


Here’s an interesting thought experiment. I know this doesn't work, and why, but allow me to indulge anyway.

If I had a diamond necklace worth 2 million dollars, and I just gave it away to an employee or friend for just a few dollars, the government will likely tax the employee for the full 2 million, probably through capital gains taxes. Each of the files owned by the record companies are now potentially worth $80000, and giving them away for $0.99 at the iTunes store doesn’t change that. Perhaps each US citizen should be taxed for capital gains taxed for $79,999.01 for each song bought at the iTunes store.

Lets see how much music they’ll sell that way..
posted by DreamerFi at 2:03 AM on June 19, 2009


Wait -- need more reporting -- are they STILL willing to settle for approx $2k-$5k, even though they have such a whopping judgement? Huh.
posted by cavalier at 5:23 AM on June 19, 2009


The damages are essentially a sentence of lifetime indentured servitude. Even many murderers get out after 25 years. It's wildly disproportionate to any potential harm done and despite her breaking the law, the law is unjust.

Think of all the Wall Street fraudsters who brought down the major investment banks and the rest of the economy along with it. Are any of them getting fined $1.92 million?
posted by jonp72 at 6:16 AM on June 19, 2009 [3 favorites]


If I had the money, I would pay off her fine, with the understanding that I will be investing an equal amount in the development of file-sharing systems that can't be tracked by the RIAA.
posted by Astro Zombie at 6:26 AM on June 19, 2009


She was originally accused of sharing 1700 songs, and the RIAA narrowed it down to a select 24 songs to use in the case. Does anyone believe sharing 1700 songs should result in a civil settlement of $136 Million ($80k/song, the value in this case and only half of the max amount)? Considering that there must be at least 10,000 college students sharing collections this large or larger (and I think my number is greatly underestimated), we're arguing that the college students of America sharing music owe the RIAA over $1 Trillion dollars. That's absolutely insane to me.

I second Jaydar's recommendation that the court should overturn this settlement as a violation of Due Process. Of course, even $100k fine would likely ruin her life, so I'm sure Jammie is more concerned with trying to overturn the verdict, not reduce the amount.
posted by ShadowCrash at 6:37 AM on June 19, 2009


Wait -- need more reporting -- are they STILL willing to settle for approx $2k-$5k, even though they have such a whopping judgement? Huh.

Well, the most practical thing is, as Thomas mentioned, she will never be able to pay even a fraction of that $1.92 million. But the real issue is the RIAA already knows they aren't held with high esteem by the public–at least the public aware of these cases–and, though they want to appear firmly to committed to their stance on file sharing, they probably don't want to (further) appear as this soulless, vindictive corporation suing a single mom for millions of dollars for sharing two dozen songs. Yeah, Jammie almost certainly did share those songs with her Kazaa account, lied about it, destroyed a hard drive to destroy the evidence, and generally came off as unlikable to the jury. But none of that makes $1.92 million any less egregious.

Frankly, I'm more stunned by the jurors than anything the RIAA has done in this case.
posted by 6550 at 6:45 AM on June 19, 2009 [1 favorite]


file-sharing systems that can't be tracked by the RIAA.

Let me know when you invent an internet without IP addresses.
posted by Pope Guilty at 6:52 AM on June 19, 2009 [1 favorite]


IP addresses don't mean anything by themselves.
posted by zennoshinjou at 7:19 AM on June 19, 2009


Hell, even an IP address with a corresponding MAC means next to nothing when you get down to it.
posted by zennoshinjou at 7:19 AM on June 19, 2009


Pope Guilty - it's easy. Used to call it "sneakernet" and it generally involves you going to your friend's house with an external HD and playing the "trade you this album for that one" game.

Not as fast, not as much choice, but a hell of a lot harder for the RIAA to monitor.

Ironmouth - I don't think that very many people are trying to say Jammie did nothing wrong in this case. From my perspective, she did do something that wasn't legal (as a whole lot of us are prone to do at times - online and off). The problem isn't the deed, it's that the punishment is so far above and beyond what we'd expect the majority of reasoning people to consider logical and fair that it's utterly astounding the case was ever settled in such a manner.

I mean, come on. There's no way in hell that any single recording shared on a hard drive with standard US data upload speeds could possibly be downloaded enough times to warrant the per-track charges levied in this case. Even if it's a valid method of assuming damages, I cannot for the life of me understand why her defense team didn't try to put the onus of proving beyond a doubt how many times the tracks were actually downloaded (not theoretically) on the prosecution. If the RIAA thinks they should charge persons for the number of songs made available, they should also be forced to prove how many times people took advantage of the availability, not just throw some imaginary number out there with no proof whatsoever.
posted by caution live frogs at 7:21 AM on June 19, 2009


If the RIAA thinks they should charge persons for the number of songs made available, they should also be forced to prove how many times people took advantage of the availability, not just throw some imaginary number out there with no proof whatsoever.

That's the difference between statutory damages vs. actual damages. I believe Nesson actually addressed that somewhere, wanting the law reformed so that actual damages would have to be proved instead of these near criminally insane statutory awards.
posted by 6550 at 7:26 AM on June 19, 2009 [1 favorite]


If you still don't think the RIAA is a criminal enterprise in their own right consider this: To date, they have sued +/- 35,000 people. They always extend the option that the issue can be solved up front with an easy credit card payment and, if payed thusly, the matter will be dropped. They sued a college student in Michigan for 97.8 billion dollars. And they sued AllofMP3.com 1.65 trillion dollars.

This is not about justice - it's a shakedown.
posted by Benny Andajetz at 8:17 AM on June 19, 2009 [5 favorites]


Is there any industry which has treated its own customers as enemies, and survived?

In what sense are people who refuse to pay for your product, and who actively encourage others to take it without paying, "customers"?

Viz:

Well, the RIAA needs the money. I for one haven't paid for music in over 10 years and I don't plan on starting any time soon. [29 favorites]
posted by yoink at 9:04 AM on June 19, 2009


Yeah! Why do people who presumably want to make a living at something work as hard as they can to advertise the fact that they have nothing but contempt for the people whose custom they depend on to make that living?
posted by Iax at 10:37 AM on June 19, 2009


The more I read about this case, the more I think Kiwi Camara royally screwed his client by substituting in. There are two aspects of this: (1) the fact that Camara does not appear to be an experienced attorney (how much trial experience, if any, does he have? It can't be much), and (2) he apparently volunteered to substitute in as her counsel with less than a month before trial, and he expressly agreed to not request a continuance.

One thing that puzzled me about news reports was that they stated that Camara agreed not to request a continuance. Why would he agree not to request a continuance, I wondered, especially given that he had only a few weeks to prepare? The answer appears to be that Jammie Thomas's original attorney, Brian Toder, was seeking to withdraw due to non-payment of his fee. He had already filed two motions to withdraw, which had not been granted. The Court, it appears, was reluctant to grant his motion to withdraw due to the fact that the trial was imminent. Camara, I suspect, was following the case and learned that Toder was trying to withdraw, and may have approached Toder offering to take over. Toder then amended his second motion to withdraw as counsel, to become a motion for substitution of counsel. Toder contacted the plaintiffs' attorneys, who (understandably) said they had no opposition to Toder withdrawing and Camara substituting in. (Of course, it was a no-brainer for them --- why would they object to a guy in his twenties with little or no trial experience substituting, a few weeks before trial, for a heavy-hitter who is on all kinds of "superlawyer" lists?) Toder, in his motion for substitution of counsel (PDF), said that he (Toder) "has caused there to be highly competent, substituted counsel, intimately familiar with the case, who do not require a continuance respecting any of the scheduled proceedings, including trial." So what it comes down to is that Camara wanted to be involved in this high-profile case, and in order to facilitate his involvement in it, he stepped forward and promised he would not request a continuance, thus helping Toder withdraw from the case that he'd already been trying to withdraw from, for some time. Does that sound like Camara did Jammie Thomas a favor? Hell, no. A few weeks before trial, if there had not been other counsel lined up, there would be NO WAY the judge would have let Toder withdraw. Camara wanted to worm his way into the limelight, and managed to do so, at grave cost to his client.

A competent attorney, looking out for the interests of a client, would have said, "I will agree to substitute in, but I will only do so if the defendants will agree to a continuance." See, Camara surely knew that Toder would have been stuck on the case if Camara had not agreed to take over. The proper thing, if no continuance was possible, would be for Camara not to take it, and let her go to trial with the attorney who had been working on it for years. In my opinion, it was astonishingly bad judgment for him to agree to substitute in for the original attorney, weeks before trial, and it is hard to deny that in doing so he harmed his client immensely.
posted by jayder at 12:49 PM on June 19, 2009 [2 favorites]


One point of clarification: Some of the news articles (such as this one) made it sound as though Toder had already withdrawn, and that Camara stepped in and heroically offered to defend this otherwise unrepresented defendant. And if that were the case, it would have been laudable for Camara to represent her, at least if he was the only counsel she could find to help her. From my review of the pleadings, that doesn't seem to be the case. It appears that Toder was still on the case, and in fact was stuck on the case, until Camara offered to take over.
posted by jayder at 12:57 PM on June 19, 2009


An appeal is being planned.
posted by gimonca at 2:07 PM on June 19, 2009


Yeah! Why do people who presumably want to make a living at something work as hard as they can to advertise the fact that they have nothing but contempt for the people whose custom they depend on to make that living?

If the thing you want to make a living from is recording music and selling those recordings (and note that bands are not recording companies--it is true that bands can, sometimes, make a living from concerts; recording companies cannot), the people who refuse on "principle" to pay for your products are not the people you "depend upon to make that living."

Or do you think that brick and mortar stores are fools to try to catch and prosecute shoplifters?
posted by yoink at 2:41 PM on June 19, 2009 [1 favorite]


Or, to put it another way, if that bookstore manager guy had written a blog entry about how annoying he found those people who shoplifted from his store were, do you think I'd have written that comment?
posted by yoink at 2:49 PM on June 19, 2009 [1 favorite]


The difference between copyright infringement and shoplifting is that the penalty for shoplifting is much smaller.
posted by grouse at 2:52 PM on June 19, 2009 [1 favorite]


The difference between copyright infringement and shoplifting is that the penalty for shoplifting is much smaller.

This is often said, but I don't think it's accurate. The copyright owner has authorized the production of the particular copy as well as its sale, and 17 USC 109(a) specifically exempts the transfer of ownership of a particular copy from the scope of copyright. Thus, as I understand it, physical theft of a particular copy is not an act of copyright infringement, only theft of goods.

Now, that said, I do think that the starting point for damages calculations in cases of non-commercial copyright infringement should be the market rate for a particular copy, whether a physical album or a digital copy. But based on my understanding of Supreme Court precedent in copyright and statutory damages cases, I'd wager such a reform will be left to the legislature.
posted by jedicus at 3:37 PM on June 19, 2009


This is often said, but I don't think it's accurate.

I was being a little glib here—I do not think they are equivalent morally or legally. But the penalty for shoplifiting is clearly less.

As an example, stealing a physical CD in Texas is a Class C misdemeanor (Tex. Penal Code §31.03(e)(1)(A)) which carries a fine of no more than $500 (§12.23). The penalty in the Thomas-Rasset case is $80,000 per track.
posted by grouse at 3:50 PM on June 19, 2009


The difference between copyright infringement and shoplifting is that the penalty for shoplifting is much smaller.

If I steal a CD, the store, the distributor, the recording company etc. etc. etc. are out the cost of producing (and the potential profit of selling) 1 CD. If I upload a CD online I'm making it available to an unknowable number of people: the artists and producers of that CD face a literally incalculable, and in many cases probably substantial, injury in terms of lost potential sales. It strikes me as entirely reasonable that the penalty for the latter crime should be greater than the penalty for the former.
posted by yoink at 5:23 PM on June 19, 2009


the artists and producers of that CD face a literally incalculable, and in many cases probably substantial, injury in terms of lost potential sales

That assumes that the downloaders would either: a) pay the price that's being asked or b) pay for it at all. I'd bet a lot of people download music that they'd be willing to pay for if the price was lower, or they wouldn't pay anything for music under any circumstances.

It strikes me as entirely reasonable that the penalty for the latter crime should be greater than the penalty for the former.

Stealing a physical CD in Texas: $500.
$80,000 per track x 24 tracks: $1,920,000
1,920,000 / 500 = 3,840
posted by kirkaracha at 5:41 PM on June 19, 2009


and in many cases probably substantial, injury in terms of lost potential sales

I believe that has time and again proven to be untrue.
posted by five fresh fish at 5:51 PM on June 19, 2009


and in many cases probably substantial, injury in terms of lost potential sales.

HUGE assumption which you have yet to admit is such. No one has offered any substantive data as proof of this claim.
posted by Mental Wimp at 5:52 PM on June 19, 2009


Or what fff said.
posted by Mental Wimp at 5:53 PM on June 19, 2009


fatbird Complaining about the RIAA downloading files from you is like pointing to a guy who just grabbed your ottoman and saying "wait... everyone but that guy!"

Technically you are allowed to do that, though it's normally considered the behaviour of an asshole. Cf "This video is not available from your location".
posted by aeschenkarnos at 7:18 PM on June 19, 2009


Stealing a physical CD in Texas: $500.$80,000 per track x 24 tracks: $1,920,0001,920,000 / 500 = 3,84

What was stolen here was not the music on the disk. What was done was that the rights to distribute the music were taken in violation of copyright. The damages are statutory and Congress was thinking about all violations of copyright here, not just items available for $0.99. This includes the source code for Windows, the right to publish Catcher in the Rye, etc. So the reason the damages are so high is that the statute was written in the light of all potential copyright violations and not $0.99 violations. The jury did nothing wrong. I'm certain there was a jury instruction that said if you find copyright violation, you must impose damages of $X.

In normal circumstances, people don't sue for this low amount of money.

Sometimes the law works one size fits all. You can't have 50 pages of potential damages in the statute. The drafters of the legislation put up a number they thought sufficiently deterrent, and moved on to the nexr bill.

So, if you think this is wrong, read the cited code sections higher up in the thread. Write a letter to your congressman requesting that this specific section have the statutory damages replaced by actual damages. Cite the article and include a printed copy. Explain your position. Frankly, if you think the amount excessive, I think its your civil duty to do that. A lot of these problems happen because we are asleep at the switch.
posted by Ironmouth at 10:32 PM on June 19, 2009 [2 favorites]


Ironmouth, the jury has destroyed this person's life over what is essentially a misdemeanor. The end result is evil. I don't care what the judge's instructions were and I don't care what the exact process was by which they came to this stupid decision; if you were on this jury and you voted for this result, you did something evil and saying "the judge told us we had to" is the totally busted Nuremberg defense.

As for changing the law, many of us have been working toward that for a long time but the people with a vested interest in making the law worse instead of better have much better access to our totally screwed up legal system than mere citizens do.
posted by localroger at 6:57 AM on June 20, 2009 [3 favorites]


Ironmouth, the jury has destroyed this person's life over what is essentially a misdemeanor.

C'mon. I'm no fan of the RIAA but that's pure hyperbole. The RIAA knows damn well she can't and won't pay that kind of money. If she wanted to I would bet she could get the exact same deal everybody else got, even after the verdict: a couple grand. Painful, sure, but not life destroying.

Again, I'm not defending the RIAA but her life is by no means "destroyed".
posted by Justinian at 7:52 AM on June 20, 2009


I dont' know about destroyed but she wouldn't be able to get a job in my field or a lot of other ones.
posted by small_ruminant at 9:04 AM on June 20, 2009


1 MP3 = 3 1/3 Human Lives
posted by five fresh fish at 10:48 AM on June 20, 2009


In other news, with the help of non-insane advocates from the Franklin Pierce Law Center clinical program, the recording labels agreed to dismiss their case against Mavis Roy with prejudice.
posted by grouse at 10:59 AM on June 20, 2009


Wow, that's impressive. That's what being good litigators looks like. I hope Kiwi Camara is paying attention.
posted by jayder at 11:06 AM on June 20, 2009


Ironmouth, the jury has destroyed this person's life over what is essentially a misdemeanor. The end result is evil. I don't care what the judge's instructions were and I don't care what the exact process was by which they came to this stupid decision; if you were on this jury and you voted for this result, you did something evil and saying "the judge told us we had to" is the totally busted Nuremberg defense.

As for changing the law, many of us have been working toward that for a long time but the people with a vested interest in making the law worse instead of better have much better access to our totally screwed up legal system than mere citizens do.


The jury instructions are the jury instructions. You don't get a freebie because "gee my case doesn't fit this." The damn statute requires that the damages be as written. This is the law.

It is a common misconception that the law is supposed to fit every case. It doesn't. When that statute was written, it was not written with this lady in mind. You can be all "Nuremburg defense" but the jury is supposed to follow the judge's instructions. That's how our system works. There are a million cases of things falling between the cracks. It happens every day because it is a very human system. I see it all of the time.

So if you don't like what happened, write your congress person as laid out above. It will solve this problem.
posted by Ironmouth at 11:46 AM on June 20, 2009


All animals are created equal. But some animals have much bigger purses than others.

No, I believe some call it "speech". Some animals talk louder than others.
posted by Mental Wimp at 1:44 AM on June 19


Money talks :)
posted by kaemaril at 11:58 AM on June 20, 2009


Since this post and thread mention Charles Nesson, I thought I would point out this fascinating series of messages to Nesson (written by an attorney named Ray Beckerman), critiquing some of Nesson's work product in the RIAA case Nesson is handling.

Some gems:

--To me the whole brief was problematic throughout; if one of your students, when in practice, submitted a brief like that, the judge would be laughing at him or her under his or her breath.

--the style was inappropriate throughout.

--You’ve made a series of arguments for which you have no basis other than emotion.

--And you’re arguing the case as if Joel [Tenenbaum, Nesson's client] is Jesus.

--In my view you ought to come down from your pedestal and concentrate on real world ...

--You should concentrate on real lawyering, not treating motion practice to a judge as if it’s a television drama closing statement to a jury.

--[in response to Nesson's question, "what do you think has not been done w/r/t to the gore disproportion argument?"] well like for example you left out all the leading authorities from your brief, for one and you left out all the winnable arguments, for another

posted by jayder at 8:02 PM on June 20, 2009 [1 favorite]


Also, to those critquing the jury, the jury is far more informed about the facts and law of this case than anyone here. Think about that.
posted by Ironmouth at 9:45 PM on June 20, 2009


Ironmouth, the jury does not have to follow the jury instructions; the whole reason it is considered desireable to be judged by a jury of your peers instead of a professional judge is that they can be guided by their conscience as well. This jury crushed a poor person with a lifetime of debt (I'll be not a single person on that jury has ever owed anyone over a million dollars) over a handful of songs, for no better reason than that an authority figure told them to.

If you can't see how wrong that is, I pity you.
posted by localroger at 6:08 AM on June 21, 2009 [6 favorites]


Ironmouth So if you don't like what happened, write your congress person as laid out above. It will solve this problem.

Unfortunately the "rule of law" you would have us venerate has been firmly pressed beneath the golden thumb of commerce for decades. Writing to congressmen on the subject of copyright will do jack shit, unless those letters come stapled to very substantial cheques. It is well-established that both sides of the US Congress simply do not understand the matter, nor care enough about it enough to learn.

Writing to congressmen would be whistling in the wind; jury nullification would not. If implemented, it could actually achieve a desirable result, unlike your recommended course of action.
posted by aeschenkarnos at 6:45 AM on June 21, 2009 [4 favorites]


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