

 Obama administration defends $222,000 file-sharing verdict - redthrowaway
http://arstechnica.com/tech-policy/2013/02/obama-administration-defends-222000-file-sharing-verdict/

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tptacek
Here's 'tzs on Jammie-Thomas Rasset:

<http://news.ycombinator.com/item?id=2140293>

Here's another:

<http://news.ycombinator.com/item?id=4781933>

She's not a very sympathetic defendant. [Late edit: I should be more careful,
since the case could be made that she's being taken advantage of by
unscrupulous attorneys, and it's they who are unsympathetic.]

[Even later: I thought it was 'tzs who had pointed out that Jammie Thomas-
Rasset had also lied under oath, first claiming that her relatives had been
behind the downloaded files, but eventually admitting that it was her;
ultimately, the narrative I picked up was, "the RIAA offered to settle for
$5k, but instead she went to court with a defense so ludicrous she had to
disavow it on the stand; she achieved a retrial, at which point she was again
offered a $5k settlement by the RIAA, which she again refused". That is, for
what it's worth, what seems to have happened, but I'm not sure that whole
story is attributable to 'tzs.]

~~~
redthrowaway
His comment is based upon a misconception of what civil law is supposed to
accomplish. It's not intended to be a disincentive, rather a plaintiff is only
supposed to be able to recover actual damages. The guiding principle is "make
whole" -- a plaintiff can go to court to recover actual losses, and no more.
Punitive damages are assessed where the defendant is shown to have willfully
and intentionally harmed the plaintiff, but only in extreme circumstances
should those damages exceed the actual damages incurred from the act itself.

The statutory minimums don't really adhere to that principle which is
unfortunate.

~~~
tptacek
The US has had punitive damages since its inception. The point of punitive
damages is to deter conduct when the mere threat of actual damages is
insufficient. It is exactly the same principle that leads a ticket for a
skipped tollway toll to cost $75 when the underlying damages were only 80
cents: if the ticket only cost 80 cents, or even a buck sixty, nobody would
pay tolls, because it would be economically irrational to do so.

For whatever it's worth, the RIAA offered --- on two very separate occasions
--- to settle for actual damages.

~~~
DannyBee
The court-based fines are not only higher just to be punitive, nowadays.

Despite thinking this particular verdict is ridiculous, in a lot of cases,
walloping unreasonable defendants if they lose is a mechanism to prevent
overburdening the courts.

Courts are a wildly inefficient way to settle disputes, they know this, and
they are overburdened docket-wise with mostly bullshit. There is a determined
push by most courts across the country to not try cases that could be settled.
Some force day-of-trial mediation for simple suits. For complex suits, the
vast majority now require at least some mediation.

If you come along, refuse to settle a case that is by-the-books law _and you
lose_ , judges will generally impose enough to make you think twice about
doing this again.

Whether they should, whether it's right, this is what happens. This has
actually been fairly successful on the torts side. Only something like 2% of
tort cases now go to trial across the US. Results in other areas are not so
good yet. Family law is an area where it is very hard to get people to settle,
even when lawyers on both sides tell their clients "you won't get what you
want at trial, the judge is going to follow the law and statutory guidelines,
and do X. We should settle". They still want a trial (mostly because they want
some judge to tell them they were right and their ex was wrong, and instead
the judge just tells them both they are wasting his time), then get angry at
the lawyers.

In any case, to be fair to the judges, most people truly have no concept of
the amount of stupid cases[1] that the average federal district court judge
sees. This kind of stuff is why the average civil lawsuit now takes years to
resolve.

[1] Not person did dumb thing stupid, but cases that are so trivially
resolvable that they complete waste of time for everyone involved.

------
habitue
Just in case anyone was not aware (or is shocked by this), the Obama
administration has very close ties to the copyright industry:
<http://www.wired.com/threatlevel/2009/04/obama-taps-fift/>

It is entirely unsurprising they would react in this way

~~~
tptacek
Government attorneys defend by-the-books application of decades-old federal
law. Film at 11.

~~~
vishaldpatel
Government attorneys fail to act on behalf of the people. Film at 11.

~~~
tptacek
Government attorneys fail to act on behalf of the people _I favor_. Film at
11.

Fixed that for you. :)

~~~
burke
Yes and no. There's a clear divide in this case between corporate and personal
interests. America wasn't originally all about defending corporate rights more
vigorously than personal ones.

~~~
tptacek
And you find the idea that the interests of groups of people are disfavored
over those of individual people where, exactly, in the Constitution?

~~~
logn
Hopefully the 28th Amendment: <http://www.wolf-pac.com/the_plan>

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rayiner
Yes, it's a stupid verdict. Yes, the defendant's reasoning that the statutory
damages in this case be analogized to unconstitutional punitive damages is a
very compelling one.

That being said, the DOJ is basically Congress's lawyer. It is obligated to
defend Congress's laws from Constitutional challenges.

~~~
habitue
It seems, the POTUS has discretion in telling the Justice Department what to
pursue:

[http://www.huffingtonpost.com/2011/02/23/obama-doma-
unconsti...](http://www.huffingtonpost.com/2011/02/23/obama-doma-
unconstitutional_n_827134.html)

~~~
rayiner
The DOJ's decision to not prosecute DOMA is actually quite a soupy mess, and
much more controversial legally than it was politically.

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teilo
What is it with these administrations in recent years urging the Supreme Court
_not_ to do it's job?

I admit, I have not studied the history of such particular requests from the
justice department, but I do not remember hearing so many of them from
previous administrations. By "previous" I mean before Bush, since if memory
serves, W did a lot of this as well.

~~~
rayiner
The DOJ will always weigh in on the side of asking the Supreme Court not to
invalidate the Constitutionality of a law. It's part of their job. The
decision to not defend the constitutionality of DOMA was quite controversial
actually.

I think the reason it seems worse in this administration is because Obama's
DOJ is fucking bad at public relations. Their understanding of the optics of
cases is unusually bad.

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hakaaaaak
"The President shall be Commander in Chief of the Army and Navy of the United
States, and of the Militia of the several States, when called into the actual
Service of the United States; he may require the Opinion, in writing, of the
principal Officer in each of the executive Departments, upon any subject
relating to the Duties of their respective Offices, and he shall have Power to
Grant Reprieves and Pardons for Offenses against the United States, except in
Cases of Impeachment. He shall have Power, by and with the Advice and Consent
of the Senate, to make Treaties, provided two thirds of the Senators present
concur; and he shall nominate, and by and with the Advice and Consent of the
Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges
of the supreme Court, and all other Officers of the United States, whose
Appointments are not herein otherwise provided for, and which shall be
established by Law: but the Congress may by Law vest the Appointment of such
inferior Officers, as they think proper, in the President alone, in the Courts
of Law, or in the Heads of Departments. He shall from time to time give to the
Congress Information of the State of the Union, and recommend to their
Consideration such Measures as he shall judge necessary and expedient; he may,
on extraordinary Occasions, convene both Houses, or either of them, and in
Case of Disagreement between them, with Respect to the Time of Adjournment, he
may adjourn them to such Time as he shall think proper; he shall receive
Ambassadors and other public Ministers; he shall take Care that the Laws be
faithfully executed, and shall Commission all the Officers of the United
States."

Hmm. Nothing in there about getting involved in potential supreme court cases.

~~~
rayiner
> he shall take Care that the Laws be faithfully executed, and shall
> Commission all the Officers of the United States

What about defending the Constitutionality of Congressional laws seems outside
the scope of "take care that the laws be faithfully executed" to you?

Also, note that the Attorney General's position was created in 1789 by the
first Congress, and was tasked with more or less the responsibilities he has
today: <http://en.wikipedia.org/wiki/United_States_Attorney_General>

~~~
hakaaaaak
Read the section labeled "argument" here:
[http://www.wired.com/images_blogs/threatlevel/2013/02/12-715...](http://www.wired.com/images_blogs/threatlevel/2013/02/12-715-Thomas-
Rasset-Opp2.pdf)

That sounds like a defendent of the record companies, not the executive branch
trying to ensure law is faithfully executed. It would be one thing if the
supreme court were ignoring laws, but arguing for the denial to review a case
is hardly taking care that law is faithfully executed. Our executive branch is
suggesting the subversion of due process in this case.

~~~
tptacek
Exactly how is a brief suggesting that a case doesn't merit cert a "violation
of due process"? A full hearing of one's case by the Supreme Court is _not_ a
procedural right guaranteed to citizens by the constitution. SCOTUS rejects
the overwhelming majority of appeals without hearings.

~~~
hakaaaaak
From the argument: "Petitioner’s further contention (Pet. 15-18) that the
court of appeals misapplied the Williams standard is not fairly encompassed in
the question presented and is, in any event, a case-specific challenge that
does not warrant this Court’s review."

In other words, ignore the man behind the curtain.

Edit: to clarify- this is the final statement in the reasoning why due process
should not be considered. Read the argument.

~~~
tptacek
You didn't answer my question.

~~~
hakaaaaak
I did. Their argument was that due process was handled in the preceding two
trials and due process should be denied because X and Y, but to the point that
a relevant case was misapplied (which should result in appeal), they basically
say "umm... that was case specific and yada yada yada we're right".

~~~
nialo
What exactly do you mean when you say "due process"? can you explain without
using the actual words "due process"?

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grecy
Disgusting that the executive branch is sticking it's nose into copyright law
and the Supreme Court.

Does anyone care the highest office in the country has been bought?

~~~
tptacek
Constitutionally incoherent argument is constitutionally incoherent. The
executive branch houses the DOJ, which is charged with the enforcement of all
laws.

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thbrown23
I'm glad for not living in a country with so many cases of legal bullying for
small cases of copyright infringement.

------
dmauro
That quote from the solicitor general upset me enough that I decided I would
go right ahead and petition the White House to address this issue. We've got
this great democratic resource, so I figured I may as well use it.

Please sign and share: <http://wh.gov/dZCl>

