Re: Joos Sue White Woman $1.9 million for downloading 24 mp3 files

Spender wrote:
On Mon, 22 Jun 2009 16:50:04 -0700, "DGDevin"
<dgdevin@xxxxxxxxxxxxxxx> wrote:

Did they show that anyone but them ever downloaded those files? And
their position has been that just having such files where others can
access them is by itself copyright violation, that they don't have
to prove anyone took advantage of them being there. That might
indeed be the law, but that takes me back to my point that the law
has mutated in response to the industry's lobbying, it is out of
balance.

It's kind of like a flea market. If you are standing there with a
table full of bootleg videos, no one has to prove how many you sold.
You are guilty by virtue of offering them for sale.

It isn't like that at all. A closer analogy would be having a table at a
flea market offering to sell pirated recordings but with no actual copies
being there much less changing hands. Again I have to ask, did the
plaintiff demonstrate that any copies other than their own test downloads
ever happened?

Bad example. The law permits you to backup copies.

Actually the industry disputes that:
http://www.washingtonpost.com/wp-dyn/content/article/2007/12/28/AR2007122800693.html

The industry is full of it on that count. There is no way they would
ever win on the issue in court either. Not with Apple and other MP3
player manufacturers fighting them also.

But that is part of what I'm saying, the industry has been pushing the
judicial and legislative boundaries everywhere they can, and spending a
fortune to do so. Just because they are winning this time doesn't mean it's
because sound legal principles are on their side. They always claim they're
in the right, even when that is a ridiculous claim and the courts slap them
down. They're still trying to get around the SCOTUS '84 Betamax ruling,
they tried to keep the first MP3 players off the market in exactly the same
way as they did with the Betamax.

The DVD X-Copy case was botched because they didn't have the
resources to fight it properly. They also ran into the government
saying that breaking the encryption was a violation of the law.
Ridiculous of course.

Sure, but they still lost just as this woman is losing. Losing doesn't mean
you were in the wrong, it maybe means you were just outgunned in court.
BTW, I think this woman was violating copyright and deserved to be slapped
for it, but not to the tune of hundreds of thousands (or millions) of
dollars.

But if you are found with such materials, and also 1000's of copies
of commercial albums. You are obviously sunk.

Exactly, *with* copies of commercial albums. So where, pray tell,
are the thousands of copies in the case we're discussing? 'Cause if
they never showed that there were copies (other than their own) then
where is the copyright violation?

The only one they needed was the agent of the RIAA downloading a
single copy. That proved intent to distribute since there was no
arrangement needed to get the file - they were freely offered to all
takers.

Exactly, and that takes me back to their lobbying has resulted in the law
being re-written to suit the industry, with a low standard of proof and
insanely high penalties. I'm not arguing that they aren't winning, I'm
saying it's because their lobbyists got what they wanted from Congress.

decades. The industry being given the right to force ISPs to give
up info on subscribers just by applying to a court clerk rather than
making a reasonable case before a judge was sure new, do you
seriously believe otherwise?

What is so new? If you file a case you have the right to subpoena
evidence.

Are you joking? Without going before a judge, without offering grounds for
the subpoena, without the object of the subpoena being able to respond?

There was something new enough about this that Supreme Court said this
provision of the DMCA was over the line, the key apparently being that no
judge was involved in the process. Various copyright holders have demanded
personal info on people they claim are violating copyright *with no
supporting evidence,* others have demanded ISPs disconnect thousands of
customers again purely on the say-do of the copyright holders. One Member
of Congress who got involved described it as a "shotgun" approach, i.e.
scatter enough lead around and maybe you'll hit your target. I don't know
about you, but I think demanding information on people is something a judge
should have to sign off on, it shouldn't just require a rubber stamp from a
court clerk. However the industry got the law changed in that regard, it
took the SC to roll it back. Geez, look at all the cases where the RIAA
screwed up and served papers on the wrong person, why should anyone be
subjected to that because the DMCA gave the industry a free hunting license
with no judicial oversight? Would you be amused to spend thousands of bucks
on a lawyer because of the RIAA's sloppiness?

http://www.out-law.com/page-4973

"A district court ruled in favour of the industry in January 2002, but in
December last year the decision was reversed when the District of Columbia
Circuit Court of Appeals ruled that the RIAA could not force ISPs to reveal
the identities of file-sharers on the basis of the DMCA subpoenas.

As a result the RIAA has had to change its means of identifying
file-sharers, adopting instead the more traditional method of filing "John
Doe" lawsuits. Since December, therefore, the RIAA has still been able to
sue file-sharers â?" 5,441 of them to date, according to reports â?" but now
has to obtain court-approved subpoenas, which can then be served on ISPs.

The change in tactic means that file-sharers are able to challenge the
subpoenas before their identities are revealed.

The US Supreme Court has now effectively upheld the Appeal Court ruling with
its decision yesterday not to hear the RIAA's appeal."


The giant penalties are also not traditional, they are clearly
meant not to restore lost revenues to the copyright holder but to
punish the violator and discourage others. A $2million fine over
two dozen songs? Get real.

Of course they are meant for punishment. What would be the point
otherwise? And as I said, if the woman wasn't such an incredibly
pathetic human being, the jury may not have socked her with that huge
judgment.

It's an absurd amount of money, and everyone knows she's never going to pay
it, she cannot possibly pay it. Juries do lots of stupid things, consider
how many years O.J. Simpson walked around a free man. Just because a jury
decided to do something doesn't make it right, sometimes it doesn't even
make it legal.


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