Thursday, June 18, 2009

Best lede on a Thomas-Rasset verdict story award goes to...

Jon Healy of the LA Times:
Maybe Jammie Thomas-Rasset should have quit while she was behind.
The reference is to the October 2007 verdict of $222,000, which was vacated at Thomas-Rasset's urging. I'm sure she hated that $222,000 award, but it looks a hell of a lot better than $1.92 million.

On a related note, a friend reminds me of a similar scenario in Feltner v. Columbia Pictures Television, Inc. At the defendant's urging, the Supreme Court threw out the original bench trial verdict of $8,800,000. The case then went to a jury -- which proceeded to award $31.68 million. Be careful what you wish for...


  1. Ben - since she can't possibly ever pay either award, the real joke may be on the RIAA.

    Today's award is exponentially more likely to attract appellate reversal on contitutional or other grounds.

    It's such an obvious target.

    So maybe the RIAA should have been more careful what it wished for.

  2. The RIAA didn't ask for any specific amount in damages, that's one of the risks and the benefits of statutory damage awards. The jury set the award based on their interpretation of the case, and if they chose to send a message, it's not the RIAA's fault.


  4. "Elementary notions of fairness enshrined in our constitutional jurisprudence dictate that a person receive fair notice not only of the conduct that will subject him to punishment but also the severity of the penalty that a State may impose."
    BMW v. Gore, 517 US 559 (1996).

  5. Just an idle thought, but I wonder if the defense's attempt in the closing arguments to claim that $3.6 million was being demanded worked against them in determining the damages, in as much as the jury thought it was doing them a favor in not making it that large.

  6. @Anonymous 12:12:

    The response to your point is that the Supreme Court was saying that punitive damages provide no fair notice because they have no limits. Statutory damages are different; the world is (at least constructively) on notice that the amount of damages ranges from $750-$150,000.

  7. Mr. Sheffner,

    If memory serves me correctly, during oral argument in Feltner one of the Justices made note of what the petitioner was seeking, and in an off-the-cuff remark noted he should be careful because he may very well get what he wanted and may ultimately not be pleased with the eventual outcome.

  8. No offense, but isn't a lot of this debate a complete waste of time at this point.

    "It is what it is" ... an impartial jury decided that damages should be awarded roughly halfway up the scale of possible damages ($750.00 to $150,000.00 per independent work) set by Congress for willful infringement. It is not their job to determine her ability to pay.

    Most of the "chatter" here pertains to what harm this might do to others in the future. Nonsense! Has anyone thought about the deterrent impact this will have on millions of people who download copyright-protected content over the Internet thinking (or at least pretending they do) it SHOULD all be free?

    I cannot tell you how many times I have witnessed copyight defense attorneys advise their clients poorly "do not settle ... we can beat this thing!") over the past 6-8 years, claiming, among other things, that no judge or jury would EVER award damages for the actual amount of unlawful distribution that occurs in this type of Internet case.

    Well, they were wrong. How many of them do you suppose are returning any of those legal fees to their clients now?

    This is one of the major events to occur in the past decade that WILL have an positive impact on the overall digital piracy rate in this country. Who could possibly argue that is bad news for anyone other than willful infringers?

    Artists need this kind of news.

    Congratulations to the RIAA team! Many people out here do not think that theft should be encouraged or rewarded. This "lady" tried to blame her children at the last minute. Don't you think she got exactly what she deserves?

    I do!

    George Riddick
    Imageline, Inc.

  9. What can be said, is this...

    The RIAA doesn't have to collect a penny. That wasn't the point. They made an example by publicly "executing" her.

    They (the RIAA) showed every "tweenie," teen, pirate and casual illegal downloader in the country that they will subpoena every IP address, data record, ISP account and bank statement available to build a federal case against any and all individuals, no matter how "small" and "off-the-radar" they are.

    This was the legal equivalent of a town-square public-hanging.

    Let's break this down point for point...

    A. This wasn't about money for the RIAA. It wasn't about settlements, dollars, statutory damages pursuant 17 USC 504 or recovering anything for the industry. It was about sending a cold, clear message to everyone who thinks that "Pirate Bay Rules!" and that they can download anything they want, because they'll "never get caught."

    B. It was the defense's tactics that caused the RIAA to make this issue so public. My group hears the "it really wasn't me at my computer" defense, everyday. That doesn't fly, and the RIAA found a very, very public forum to prove this to the world.

    C. The "What is Kazaa? What is Internet? What is keyboard? I love lamp." defense. Garbage.

    D. "There will be another trial... She'll keep fighting... bla bla bla..." Why? She's lost twice. She pirated music. The first time, a jury of her peers said she owed $220,000. This time a jury of her peers said that she owed $1.9 Million. The next trial, they'll probably make her wear a "scarlet circle-C."

    I don't understand what anti-RIAA proponents are waiting for... God? The Copyright-Fairy? ...To part the clouds and say "It's OK, my children, to steal all the music, movies and software you want... go forth... steal everything... live long and prosper...Go Pirate Bay!...Go Packers!..." Really? I mean... Really?

    It's... not... going... to... happen.

    Pirate Bay guys - jailed
    Kazaa Girl - lost two trials and is now owned by RIAA
    ISP's - strong-armed into bending to the RIAA's will

    More fun stuff...

    This judgment will follow her forever. Recent court rulings (known as "case law") have clearly established that willful copyright infringement is nondischargeable in bankruptcy. Which means, anytime she gets a paycheck, alimony payment or birthday-card from grandma... the RIAA will be there to garnish it. A $1,920,000 judgment will appear on her credit for the rest of her life. Which means... no car loan... no house loan... and probably no job above that of "burger flipper."

    Let me be perfectly clear... the RIAA literally, and legally owns Ms. Thomas-Rasset.

    As for the statement, "You can't squeeze blood from a turnip." True. But you can publicly crush it.

    G.C. Hutson
    Sadien, Inc.

    For the record... I am not pro-RIAA, pro-BSA, pro-SIIA, pro-Hollywood nor pro-Big-Software. I believe in (and love) the law. Specifically, copyright law. It's my job. It's my life.

    I work, everyday, to help people and companies avoid problems, just like the one Ms. Thomas-Rasset is now facing. The first step is education on what copyright is, and how it works.

    Copyright is extremely complex, and very complicated.

    Rule 1: If you wait until someone is "knocking on your door" to start worrying about copyright, music files, software licenses, etc... it is too late.

    (This comment contains subjective opinion)

  10. I wish more people would stop, and take the time to read the Ben's blogs on Copyrights & Campaigns. It seems that those who "scream" the loudest complaints about copyright law, know the least. Ben does a great job, using common language to explain the law, and educate people.

    Well done.

    G.C. Hutson
    Chief Executive
    Sadien Intellecutal Property, Inc.


Comments here are moderated. I appreciate substantive comments, whether or not they agree with what I've written. Stay on topic, and be civil. Comments that contain name-calling, personal attacks, or the like will be rejected. If you want to rant about how evil the RIAA and MPAA are, and how entertainment companies' employees and attorneys are bad people, there are plenty of other places for you to go.