7 ms·

Jury finds Minn. woman owes $1.5 million for sharing 24 songs

36 points by grellas 16y ago

tptacek 16y ago
She did everything she could to ensure that horrible outcome, most notably by overreaching and attempting to demonstrate that she had nothing to do with underlying copyright violations she was (in effect) caught red-handed on. Her team's handling of this case is a setback to efforts to rationalizing copyright damages.
- teamonkey 16y ago
  Link?
  - grellas 16y ago
    A reasonable discussion of the history of the case (noting events that, I think, depict some pretty bad judgments made on the defense side) may be found at the WSJ legal blog: http://blogs.wsj.com/law/2010/11/05/copywrong-again-minn-woman-keeps-fighting-riaa-keeps-losing/ http://blogs.wsj.com/law/2010/11/05/copywrong-again-minn-wom.... Even after the last trial, RIAA offered to let her settle by paying $25K to a charity for struggling musicians. So, indeed, she has had several opportunities to "get off the hook" and, each time, the lawyers have come charging forward saying they will get her ultimately vindicated. Now, of course, she herself can't be excused because a client ultimately controls this decision no matter what the lawyers want to do. But lawyers are in a strong position to influence most clients and, as a middle-class mother of 4, I assume this client would not be taking ultra-aggressive legal steps unless the lawyers were encouraging this, in effect, making her a martyr for the cause (as "Above the Law" puts it: "The crappy thing about being a martyr is that you have to die" (http://abovethelaw.com/2010/11/sorry-file-sharing-lady-looks-like-you-just-have-to-take-one-for-the-team/ http://abovethelaw.com/2010/11/sorry-file-sharing-lady-looks...). This case really illustrates the ugly face of aggressive copyright enforcement while at the same time highlighting the sometimes questionable judgments people can make in responding to it.
jbail 16y ago
I have some trouble understanding this statement: "...willfully infringing on the copyrights of 24 songs by making them available for sharing." How do you infringe a copyright by sharing something? Is sharing tantamount to distributing?
- deleted 16y ago
  [deleted]
- sp332 16y ago
  Yeah, but I think the prosecution was trying to make the case that it's an even BIGGER deal than distributing for profit. If I pay money for a bootleg disc, I won't just give it away when I'm done, because it represents some money to me. But if I get a song for free, then I'm more likely to redistribute further. So the really twisted argument is that non-commercial sharing is even more damaging to the music industry than for-profit sharing, and therefore she should be penalized more than commercial pirates.
- nkassis 16y ago
  forget the sharing part. the available is the big issue. Making them available isn't the same as distributing.
- soiz 16y ago
  > "making them available for sharing." It's a really big slippery slope: The jury was instructed that merely "making available" sufficed to constitute an infringement of the plaintiffs' distribution right, even without proof of any actual distribution.[1][11][12] The issue of whether copyright infringement required actual distribution was raised by the defense during examination of Sony BMG's head of litigation on the first day of trial, but the court sustained the plaintiffs' objection and did not permit the topic to be revisited until jury instructions were prepared just before the end of the trial.[12] Despite disagreement from the defense, the court proceeded to interpret making available as distribution for purposes of instructing the jury.[12] http://en.wikipedia.org/wiki/Capitol_v._Thomas http://en.wikipedia.org/wiki/Capitol_v._Thomas
tzs 16y ago
She brought this on herself. It's interesting to compare what the outcome would have been with a rational defendant. She had downloaded and was sharing a couple thousand songs. I don't think we've been told what the RIAA's initial settlement offer was when they contacted her, but I believe those are generally in the $3-5k range. Now at this point, you probably don't know how many songs they know you have pirated and are sharing, and of those you don't know how many they can actually prove. You can guess that they probably know about a lot, though, as they have generally only gone after big time sharers. For every song that they can prove you violated copyright on, they will get a MINIMUM of $200 statutory damages if you can prove that you were an "innocent infringer". If not, the MINIMUM is $750 per song. (The maximum is something like $30k/song, raised up to something like $150k/song if they can show you were a willful infringer). Being extremely optimistic, knowing that you've in fact infringed a couple thousand songs, and so calculating damages as an innocent infringer, all they need to do is get you on more than 25 songs, and your BEST CASE outcome is worse than just accepting the initial settlement. If the innocent infringer thing doesn't fly, all they have to do is get you on 7 songs and you lose compared to accepting a $5k settlement offer up front. A rational defendant would simply have jumped at the initial settlement offer, accepting that by pirating a couple thousand songs they were essentially taking a bet that they could get the songs for free, but if they lost they'd end up paying about 2.5 times per song than what they would have paid at iTunes. She refused to settle. She tried to blame others, such as her kids, for the downloading. She tried to destroy evidence (after the other side knew about the evidence--if you are going to destroy evidence you really need to destroy it BEFORE the other side knows it exists). She lied about her actions under oath in court. These are the kind of actions that make a jury think you are not an innocent infringer--in fact they make a jury think you are scum, and when told to pick damages from a big range, the jury tends to go high, not low on you. She had another chance to be rational, as the RIAA again made a settlement offer after the first trial, for considerably less than they had won. I don't believe it was as good as their initial offer, but it was still pretty good--somewhere close to the bottom range of non-innocent infringer statutory damages for the 24 songs they actually ended up litigating over. Nope, she fought and got another trial. She lost again (which makes since, given nothing had changed), and this new jury went much higher on damages. Oops. Now she's had a third trial, and another loss, and another jury going high. And she's rejected a $25k settlement offer from the RIAA. She should accept that offer, apologize for being such an idiot, and ask for donations. There will be enough sympathetic people to cover $25k. And then someone should see if the lawyers who represented here can be brought up on ethical charges. It seems pretty clear that they used her in order to try out their cockamamie legal theories, and that they were acting in their interests, not in the interests of their client.
codyguy 16y ago
$62,500 per song? How earth did the jury "determine" this. Seems like someone pulled out a number out of their you-know-what!!
- tzs 16y ago
  Well, how much would it have cost per song to purchase from the copyright holders licenses to do what she was doing? A license to make and redistribute copies, with no restrictions on how many copies can be distributed, and no requirement to track how many copies are distributed or to whom, for a one-time lump sum payment is probably going to be rather expensive.
  - Splines 16y ago
    I understand what you're saying - but I doubt including a README with the contents "you agree to not distribute this file and delete it when done listening" would do little in minimizing any potential fines.
  - ericd 16y ago
    This is a silly argument, though - she was not distributing in perpetuity, and the result is way out of proportion with actual damages. If a total of 100 song copies were downloaded off of her computer, and market price of the songs are $1.30 on iTunes, the damages were no more than $130. In that case, it is as if she deprived them of a maximum of $130, and it should be treated as theft of that amount, at worst. Thieves don't pay back 10000x what they stole, they go to prison. If she's very unlucky and it was downloaded 1.5 million times off of her computer (doubtful - Comcast would have shut down her computer for going way over her bandwidth quota, and the ratio of sharers to downloaders is quite a bit higher than 1:1000-1:1000000), then maybe it's justified. This is even without factoring in the likelihood that those people would have bought that music otherwise, rather than downloading in bulk and listening to a small percentage, as is common.
    - tzs 16y ago
      So when three of the four major labels were refusing to give Apple permission to distribute DRM-free music on iTunes, but were allowing Amazon to distribute their music DRM free, would you argue that Apple could have just gone ahead and distributed the music without permission, as long as it went ahead and paid the labels the same that Amazon pays them?
Kilimanjaro 16y ago
If you can't persuade them, scare them! Nice try RIAA
yatsyk 16y ago
Nice, Sony installs rootkit into your computer and sued for $7.50 fine [1] but when women downloaded 24 songs she fined for 1.5M. What would be the punishment if she install rootkit in Sony or RIAA owned computer? [1] http://www.pcworld.com/article/125838/settlement_ends_sony_rootkit_case.html http://www.pcworld.com/article/125838/settlement_ends_sony_r...
- sudont 16y ago
  Think about it like this: In the US, a corporation is a legal person. However, corporations are composed of many people who run the company. A quick google brings up 158,500 in the case of sony. Since the judge broke down the payment to each person, we can re-constitute the number by the people in Sony she would have hurt. So 158,500 * 7.50 = 1,188,750; a number roughly similar to what she now has to pay. You know, maybe these justices are basing it ((song value * #of songs) * number of people in company) Lawyers: My fuzzy math is available for hire.
  - jules 16y ago
    Another comparison: suppose that every listener pirated music. Assume 2 billion listeners on earth, then the damages awarded would be 3000 trillion dollars. The GDP of the world is about 60 trillion.
    - sudont 16y ago
      Piracy is contributing to global GDP.
guynamedloren 16y ago
Any details on how, exactly, these songs were shared? Just curious.
- awa 16y ago
  kazaa
  - hippich 16y ago
    and how it was found she is sharing?
  - guynamedloren 16y ago
    Wow, really? Didn't even know that was still around. I was using kazaa to download music when I was 13 (21 now).
dpatru 16y ago
The best way to get a bad law repealed is to enforce it strictly. -Abraham Lincoln

36 points by grellas 16y ago

She did everything she could to ensure that horrible outcome, most notably by overreaching and attempting to demonstrate that she had nothing to do with underlying copyright violations she was (in effect) caught red-handed on. Her team's handling of this case is a setback to efforts to rationalizing copyright damages.

teamonkey 16y ago
Link?
- grellas 16y ago
  A reasonable discussion of the history of the case (noting events that, I think, depict some pretty bad judgments made on the defense side) may be found at the WSJ legal blog: http://blogs.wsj.com/law/2010/11/05/copywrong-again-minn-woman-keeps-fighting-riaa-keeps-losing/ http://blogs.wsj.com/law/2010/11/05/copywrong-again-minn-wom.... Even after the last trial, RIAA offered to let her settle by paying $25K to a charity for struggling musicians. So, indeed, she has had several opportunities to "get off the hook" and, each time, the lawyers have come charging forward saying they will get her ultimately vindicated. Now, of course, she herself can't be excused because a client ultimately controls this decision no matter what the lawyers want to do. But lawyers are in a strong position to influence most clients and, as a middle-class mother of 4, I assume this client would not be taking ultra-aggressive legal steps unless the lawyers were encouraging this, in effect, making her a martyr for the cause (as "Above the Law" puts it: "The crappy thing about being a martyr is that you have to die" (http://abovethelaw.com/2010/11/sorry-file-sharing-lady-looks-like-you-just-have-to-take-one-for-the-team/ http://abovethelaw.com/2010/11/sorry-file-sharing-lady-looks...). This case really illustrates the ugly face of aggressive copyright enforcement while at the same time highlighting the sometimes questionable judgments people can make in responding to it.

jbail 16y ago

I have some trouble understanding this statement: "...willfully infringing on the copyrights of 24 songs by making them available for sharing." How do you infringe a copyright by sharing something? Is sharing tantamount to distributing?

deleted 16y ago
[deleted]
sp332 16y ago
Yeah, but I think the prosecution was trying to make the case that it's an even BIGGER deal than distributing for profit. If I pay money for a bootleg disc, I won't just give it away when I'm done, because it represents some money to me. But if I get a song for free, then I'm more likely to redistribute further. So the really twisted argument is that non-commercial sharing is even more damaging to the music industry than for-profit sharing, and therefore she should be penalized more than commercial pirates.
nkassis 16y ago
forget the sharing part. the available is the big issue. Making them available isn't the same as distributing.
soiz 16y ago
> "making them available for sharing." It's a really big slippery slope: The jury was instructed that merely "making available" sufficed to constitute an infringement of the plaintiffs' distribution right, even without proof of any actual distribution.[1][11][12] The issue of whether copyright infringement required actual distribution was raised by the defense during examination of Sony BMG's head of litigation on the first day of trial, but the court sustained the plaintiffs' objection and did not permit the topic to be revisited until jury instructions were prepared just before the end of the trial.[12] Despite disagreement from the defense, the court proceeded to interpret making available as distribution for purposes of instructing the jury.[12] http://en.wikipedia.org/wiki/Capitol_v._Thomas http://en.wikipedia.org/wiki/Capitol_v._Thomas

tzs 16y ago

She brought this on herself. It's interesting to compare what the outcome would have been with a rational defendant. She had downloaded and was sharing a couple thousand songs. I don't think we've been told what the RIAA's initial settlement offer was when they contacted her, but I believe those are generally in the $3-5k range. Now at this point, you probably don't know how many songs they know you have pirated and are sharing, and of those you don't know how many they can actually prove. You can guess that they probably know about a lot, though, as they have generally only gone after big time sharers. For every song that they can prove you violated copyright on, they will get a MINIMUM of $200 statutory damages if you can prove that you were an "innocent infringer". If not, the MINIMUM is $750 per song. (The maximum is something like $30k/song, raised up to something like $150k/song if they can show you were a willful infringer). Being extremely optimistic, knowing that you've in fact infringed a couple thousand songs, and so calculating damages as an innocent infringer, all they need to do is get you on more than 25 songs, and your BEST CASE outcome is worse than just accepting the initial settlement. If the innocent infringer thing doesn't fly, all they have to do is get you on 7 songs and you lose compared to accepting a $5k settlement offer up front. A rational defendant would simply have jumped at the initial settlement offer, accepting that by pirating a couple thousand songs they were essentially taking a bet that they could get the songs for free, but if they lost they'd end up paying about 2.5 times per song than what they would have paid at iTunes. She refused to settle. She tried to blame others, such as her kids, for the downloading. She tried to destroy evidence (after the other side knew about the evidence--if you are going to destroy evidence you really need to destroy it BEFORE the other side knows it exists). She lied about her actions under oath in court. These are the kind of actions that make a jury think you are not an innocent infringer--in fact they make a jury think you are scum, and when told to pick damages from a big range, the jury tends to go high, not low on you. She had another chance to be rational, as the RIAA again made a settlement offer after the first trial, for considerably less than they had won. I don't believe it was as good as their initial offer, but it was still pretty good--somewhere close to the bottom range of non-innocent infringer statutory damages for the 24 songs they actually ended up litigating over. Nope, she fought and got another trial. She lost again (which makes since, given nothing had changed), and this new jury went much higher on damages. Oops. Now she's had a third trial, and another loss, and another jury going high. And she's rejected a $25k settlement offer from the RIAA. She should accept that offer, apologize for being such an idiot, and ask for donations. There will be enough sympathetic people to cover $25k. And then someone should see if the lawyers who represented here can be brought up on ethical charges. It seems pretty clear that they used her in order to try out their cockamamie legal theories, and that they were acting in their interests, not in the interests of their client.

codyguy 16y ago

$62,500 per song? How earth did the jury "determine" this. Seems like someone pulled out a number out of their you-know-what!!

tzs 16y ago
Well, how much would it have cost per song to purchase from the copyright holders licenses to do what she was doing? A license to make and redistribute copies, with no restrictions on how many copies can be distributed, and no requirement to track how many copies are distributed or to whom, for a one-time lump sum payment is probably going to be rather expensive.
- Splines 16y ago
  I understand what you're saying - but I doubt including a README with the contents "you agree to not distribute this file and delete it when done listening" would do little in minimizing any potential fines.
- ericd 16y ago
  This is a silly argument, though - she was not distributing in perpetuity, and the result is way out of proportion with actual damages. If a total of 100 song copies were downloaded off of her computer, and market price of the songs are $1.30 on iTunes, the damages were no more than $130. In that case, it is as if she deprived them of a maximum of $130, and it should be treated as theft of that amount, at worst. Thieves don't pay back 10000x what they stole, they go to prison. If she's very unlucky and it was downloaded 1.5 million times off of her computer (doubtful - Comcast would have shut down her computer for going way over her bandwidth quota, and the ratio of sharers to downloaders is quite a bit higher than 1:1000-1:1000000), then maybe it's justified. This is even without factoring in the likelihood that those people would have bought that music otherwise, rather than downloading in bulk and listening to a small percentage, as is common.
  - tzs 16y ago
    So when three of the four major labels were refusing to give Apple permission to distribute DRM-free music on iTunes, but were allowing Amazon to distribute their music DRM free, would you argue that Apple could have just gone ahead and distributed the music without permission, as long as it went ahead and paid the labels the same that Amazon pays them?

Kilimanjaro 16y ago

If you can't persuade them, scare them! Nice try RIAA

yatsyk 16y ago

Nice, Sony installs rootkit into your computer and sued for $7.50 fine [1] but when women downloaded 24 songs she fined for 1.5M. What would be the punishment if she install rootkit in Sony or RIAA owned computer? [1] http://www.pcworld.com/article/125838/settlement_ends_sony_rootkit_case.html http://www.pcworld.com/article/125838/settlement_ends_sony_r...

sudont 16y ago
Think about it like this: In the US, a corporation is a legal person. However, corporations are composed of many people who run the company. A quick google brings up 158,500 in the case of sony. Since the judge broke down the payment to each person, we can re-constitute the number by the people in Sony she would have hurt. So 158,500 * 7.50 = 1,188,750; a number roughly similar to what she now has to pay. You know, maybe these justices are basing it ((song value * #of songs) * number of people in company) Lawyers: My fuzzy math is available for hire.
- jules 16y ago
  Another comparison: suppose that every listener pirated music. Assume 2 billion listeners on earth, then the damages awarded would be 3000 trillion dollars. The GDP of the world is about 60 trillion.
  - sudont 16y ago
    Piracy is contributing to global GDP.

guynamedloren 16y ago

Any details on how, exactly, these songs were shared? Just curious.

awa 16y ago
kazaa
- hippich 16y ago
  and how it was found she is sharing?
- guynamedloren 16y ago
  Wow, really? Didn't even know that was still around. I was using kazaa to download music when I was 13 (21 now).

dpatru 16y ago

The best way to get a bad law repealed is to enforce it strictly. -Abraham Lincoln