

Jury finds Minn. woman owes $1.5 million for sharing 24 songs - grellas
http://www.law.com/jsp/article.jsp?id=1202474450517&Jury_Finds_Minn_Woman_Owes_15_Million_for_Sharing_24_Songs

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tzs
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.

~~~
chc
So, essentially, "Look at that skirt! She was asking for it!"

Horrible actions don't become less horrible just because you can come up with
a facile excuse for them. $1.5M does not seem like a reasonable penalty, even
if she isn't very likable and clearly was not in the right.

~~~
darklajid
I'm with you on that "that's an interesting argument" train of thought, but
you ruin the argument if you pull it down to this level.

Most people react _very_ emotional (and - for the most part - this is probably
a really good thing) if you bring in arguments about sexual abuse (bonus
points for minors).

Let's try to stop these comparisons. They are kind of like Godwin's law,
killing the discussion in the process.

In fact - did already someone name this fact before? Can I claim? ;)

~~~
chc
That's a good point. I hadn't intended for the argument to have such a strong
emotional overtone. It just occurred to me as a known-to-be-invalid argument
that the comment resembled very closely. I'll keep your law in mind from now
on.

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yatsyk
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_r...](http://www.pcworld.com/article/125838/settlement_ends_sony_rootkit_case.html)

~~~
sudont
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
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
Piracy is contributing to global GDP.

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tptacek
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
Link?

~~~
grellas
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-wom...](http://blogs.wsj.com/law/2010/11/05/copywrong-again-minn-woman-
keeps-fighting-riaa-keeps-losing/).

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...](http://abovethelaw.com/2010/11/sorry-file-sharing-lady-looks-like-
you-just-have-to-take-one-for-the-team/)).

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.

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codyguy
$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
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.

~~~
ericd
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
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?

~~~
cma
So when I start throwing rocks and break one window a day of your 5000-window
house and announce this intention, when you take me to court and stop me with
an injunction after 5 windows, you can go ahead and sue for the repair costs
of 5000 windows?

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jbail
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?

~~~
soiz
> "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>

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

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

~~~
awa
kazaa

~~~
guynamedloren
Wow, really? Didn't even know that was still around. I was using kazaa to
download music when I was 13 (21 now).

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Kilimanjaro
If you can't persuade them, scare them!

Nice try RIAA

