Obama administration defends $222,000 file-sharing verdict(arstechnica.com)
arstechnica.com
Obama administration defends $222,000 file-sharing verdict
http://arstechnica.com/tech-policy/2013/02/obama-administration-defends-222000-file-sharing-verdict/
10 comments
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.
The statutory minimums don't really adhere to that principle which is unfortunate.
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.
For whatever it's worth, the RIAA offered --- on two very separate occasions --- to settle for actual damages.
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.
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.
tzs's comments boil down to "she could have settled for less, it's the court's fault the fines are so high".
AS tzs points out, the fines were created with no intention of punishing individuals without a commercial incentive. Applying the law as-is isn't justice, as obviously a lot of people feel.
The fact she could have gotten off with less doesn't change the feeling people have that it's wrong, regardless of the legal standing.
AS tzs points out, the fines were created with no intention of punishing individuals without a commercial incentive. Applying the law as-is isn't justice, as obviously a lot of people feel.
The fact she could have gotten off with less doesn't change the feeling people have that it's wrong, regardless of the legal standing.
You know, I would love for this to be one of those rare occasions when I can get behind the prevailing sentiment on HN, because $220,000 for noncommercial music piracy sounds as crazy to me as it does to you.
But then I remember that Thomas-Rasset lied under oath, so clumsily that her own expert witness wound up testifying against her at trial. And despite that, despite losing the trial so badly that jurors were interviewed as flat out calling her a "liar", she was again offered the same actual-damages $5000 settlement. And instead of just accepting that, she forced everyone back to court a second time. And then a third time. And then to a federal appeals court. And now to the Supreme Court.
But then I remember that Thomas-Rasset lied under oath, so clumsily that her own expert witness wound up testifying against her at trial. And despite that, despite losing the trial so badly that jurors were interviewed as flat out calling her a "liar", she was again offered the same actual-damages $5000 settlement. And instead of just accepting that, she forced everyone back to court a second time. And then a third time. And then to a federal appeals court. And now to the Supreme Court.
Yea, she screwed up big time and it certainly makes me unsympathetic to her, and she should be charged for perjury and deal with that fallout. It's probably a bad personal risk tradeoff for her to go to trial again.
But it doesn't change the fact that it's still a shakedown scheme. The fact there were offers might change what we think of her personally, but shouldn't change the sense of justice.
It's similar to someone being extorted, and we say "What an idiot; he refused to pay $5 protection, now he has a broken knee". It's still unjust and unfair. Or the folks protecting Aaron Swartz's prosecutors: He could have just plead guilty to a felony and taken a lighter hit.
It seems like your position here is for her to make an efficient, safe, decision, instead of for actual justice, regardless of cost.
But it doesn't change the fact that it's still a shakedown scheme. The fact there were offers might change what we think of her personally, but shouldn't change the sense of justice.
It's similar to someone being extorted, and we say "What an idiot; he refused to pay $5 protection, now he has a broken knee". It's still unjust and unfair. Or the folks protecting Aaron Swartz's prosecutors: He could have just plead guilty to a felony and taken a lighter hit.
It seems like your position here is for her to make an efficient, safe, decision, instead of for actual justice, regardless of cost.
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Sounds great to me. She is basically making them waste a lot of time and money. At this point 200K could as well be a 100 billion. She will never pay. I know it, she knows it, the RIAA know it. Is not like they can throw her in jail for not paying. I'm glad she is making them waste their time and really do hope this goes to the supreme court. RIAA like to play dirty games so I'm OK when somebody plays as dirty as them.
I'm sure they are regretting their bad luck in suing somebody that will just not bend over and take it. Which is probably why they probably offered her the 5K settlement a second time.
Her fighting spirit sets a "bad" example for the rest of us. It may even inspire a lot of us to follow her example and not bend over when the RIAA comes knocking. If that happens then the RIAA is pretty much fucked.
I'm sure they are regretting their bad luck in suing somebody that will just not bend over and take it. Which is probably why they probably offered her the 5K settlement a second time.
Her fighting spirit sets a "bad" example for the rest of us. It may even inspire a lot of us to follow her example and not bend over when the RIAA comes knocking. If that happens then the RIAA is pretty much fucked.
So i guess everyone else whose time and money she is wasting outside of the RIAA is just acceptable collateral damage?
Note that while they won't throw her in jail, it will come out of her paycheck, they'll also make her sell a lot of her assets, etc.
Also, ever hear the expression "bad facts make bad law"?
She is not the case you want in front of the supreme court. It isn't about wasting time/money, it's about whether she's going to end up fucking over a lot of people who actually stood a chance of getting ridiculous verdicts overturned. Given her circumstances, there is a significant chance she will be singled out by the supreme court as an example of when 220k for a verdict is okay. It's hard to predict, but instead of helping others and getting a good legal result, she may end up having wasted some RIAA money and fucked over a lot of people. What a great idea!
In short: You are horrendously short sighted, and courts are not a great place to take our your frustrations on an organization you don't like.
Note that while they won't throw her in jail, it will come out of her paycheck, they'll also make her sell a lot of her assets, etc.
Also, ever hear the expression "bad facts make bad law"?
She is not the case you want in front of the supreme court. It isn't about wasting time/money, it's about whether she's going to end up fucking over a lot of people who actually stood a chance of getting ridiculous verdicts overturned. Given her circumstances, there is a significant chance she will be singled out by the supreme court as an example of when 220k for a verdict is okay. It's hard to predict, but instead of helping others and getting a good legal result, she may end up having wasted some RIAA money and fucked over a lot of people. What a great idea!
In short: You are horrendously short sighted, and courts are not a great place to take our your frustrations on an organization you don't like.
>>So i guess everyone else whose time and money she is wasting outside of the RIAA is just acceptable collateral damage?
Whose time and money? The government. Please, we wasted so much money already on senseless wars and security theater that this argument is silly at this point.
>>Note that while they won't throw her in jail, it will come out of her paycheck, they'll also make her sell a lot of her assets, etc.
One word: bankruptcy
>>It's hard to predict, but instead of helping others and getting a good legal result, she may end up having wasted some RIAA money and fucked over a lot of people. What a great idea!
OK, I'll grant you points on this one. Getting a bad precedent would not be a good idea. Although, note sure if that is even possible in this case so you just sound like you are fear mongering. How are people going to get fucked over? Are you sure you are not just spreading FUD?
Whose time and money? The government. Please, we wasted so much money already on senseless wars and security theater that this argument is silly at this point.
>>Note that while they won't throw her in jail, it will come out of her paycheck, they'll also make her sell a lot of her assets, etc.
One word: bankruptcy
>>It's hard to predict, but instead of helping others and getting a good legal result, she may end up having wasted some RIAA money and fucked over a lot of people. What a great idea!
OK, I'll grant you points on this one. Getting a bad precedent would not be a good idea. Although, note sure if that is even possible in this case so you just sound like you are fear mongering. How are people going to get fucked over? Are you sure you are not just spreading FUD?
You don't actually understand how bankruptcy works, do you?
Not all debts are dischargeable.
Yes i'm sure i'm not spreading FUD. It is entirely possible that the supreme court will take the case. If they made the decision that the ratio of damages like her case was okay, it would fuck over all the other similarly situated people who aren't just lying on the stand.
Yes i'm sure i'm not spreading FUD. It is entirely possible that the supreme court will take the case. If they made the decision that the ratio of damages like her case was okay, it would fuck over all the other similarly situated people who aren't just lying on the stand.
>>You don't actually understand how bankruptcy works, do you? Not all debts are dischargeable.
Read about it and the debts that are not actually dischargeable are student loans (USA). Are there any more? Could you cite an example? In this specific case, would her debt not be dischargeable?
Read about it and the debts that are not actually dischargeable are student loans (USA). Are there any more? Could you cite an example? In this specific case, would her debt not be dischargeable?
there are plenty of debts that are not dischargeable. Here's a short list:
Taxes and tax liens
Student loans
Alimony and child support (domestic support obligations)
Debts obtained through fraud, false pretenses or false representation
Debts you failed to schedule in time to allow creditors to file proofs of claim (unscheduled debts)
Debts for fraud while you were acting in a fiduciary capacity, or for embezzlement or larceny
Debts for willful and malicious injury
Debts for most criminal liability. Debts for fines or penalties to governmental units
Debts for judgments in wrongful death or personal injury lawsuits resulting from motor vehicle, vessel or aircraft accidents while you were intoxicated
Condominium or cooperative association fees or assessments
In her case, willful infringement is "maybe" dischargeable. Probably not, but it's not really come up yet.
Taxes and tax liens
Student loans
Alimony and child support (domestic support obligations)
Debts obtained through fraud, false pretenses or false representation
Debts you failed to schedule in time to allow creditors to file proofs of claim (unscheduled debts)
Debts for fraud while you were acting in a fiduciary capacity, or for embezzlement or larceny
Debts for willful and malicious injury
Debts for most criminal liability. Debts for fines or penalties to governmental units
Debts for judgments in wrongful death or personal injury lawsuits resulting from motor vehicle, vessel or aircraft accidents while you were intoxicated
Condominium or cooperative association fees or assessments
In her case, willful infringement is "maybe" dischargeable. Probably not, but it's not really come up yet.
Off the top of my head, tax debts aren't dischargeable.
The bankruptcy code defines a bunch of things that you can't discharge, including debts you acquired through fraud, through embezzlement, through larceny, or government fines.
The bankruptcy code defines a bunch of things that you can't discharge, including debts you acquired through fraud, through embezzlement, through larceny, or government fines.
Damages from intentional torts might not be dischargeable either.
She's making us waste a lot of time and money, too. How much do you think trials cost? Who do you think pays for them?
It is the RIAA that is wasting our time and money by pursuing these type of cases in the first place. You do know that they could just drop the case. She is doing us a favor by not letting herself be bullied.
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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
It is entirely unsurprising they would react in this way
Government attorneys defend by-the-books application of decades-old federal law. Film at 11.
Government attorneys fail to act on behalf of the people. Film at 11.
Government attorneys fail to act on behalf of the people I favor. Film at 11.
Fixed that for you. :)
Fixed that for you. :)
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.
And you find the idea that the interests of groups of people are disfavored over those of individual people where, exactly, in the Constitution?
Hopefully the 28th Amendment: http://www.wolf-pac.com/the_plan
Pedantically, the US Constitution originally favoured white land owning men. :P
The Constitutional scheme does not involve the DOJ second-guessing Congress. News at 11.
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.
That being said, the DOJ is basically Congress's lawyer. It is obligated to defend Congress's laws from Constitutional challenges.
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-unconsti...
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.
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.
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.
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.
To be fair, you are pretty much limiting the search to "pre internet." My understanding is that the level of visibility into everything has increased more than can really be considered.
Personally, I do not consider this a bad thing.
Personally, I do not consider this a bad thing.
"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.
Hmm. Nothing in there about getting involved in potential supreme court cases.
> 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
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
Read the section labeled "argument" here:
http://www.wired.com/images_blogs/threatlevel/2013/02/12-715...
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.
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.
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.
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.
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.
If I'm your lawyer, and you win, and the other party seeks an appeal to the Supreme Court, that's exactly what I write for you. Because it's not my job to insert my judgment about whether I think the Supreme Court should hear the case, my job is only to argue in favor of the interpretation that lets you win the quickest.
In the context of Constitutional challenges to Congressional laws, the DOJ has the same job. They will first seek to have review denied because that's the quickest way for Congress to win. If review is granted, the Solicitor General, whose office is part of the DOJ, will have to drag his ass to the Supreme Court and argue strenuously in favor of upholding the Constitutionality of Congress's law.
That's just the way the adversarial legal system works.
Also, your Due Process point is way out of bounds. Due Process does not entail the right to Supreme Court review. The Supreme Court could deny the petition for no other reason than "it sounded boring" and there would be no Due Process violation.
In the context of Constitutional challenges to Congressional laws, the DOJ has the same job. They will first seek to have review denied because that's the quickest way for Congress to win. If review is granted, the Solicitor General, whose office is part of the DOJ, will have to drag his ass to the Supreme Court and argue strenuously in favor of upholding the Constitutionality of Congress's law.
That's just the way the adversarial legal system works.
Also, your Due Process point is way out of bounds. Due Process does not entail the right to Supreme Court review. The Supreme Court could deny the petition for no other reason than "it sounded boring" and there would be no Due Process violation.
You didn't answer my question.
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".
What exactly do you mean when you say "due process"? can you explain without using the actual words "due process"?
The DOJ is the government's lawyer. Their job isn't to present balanced analysis of both sides of the government, any more than it's your lawyers job to do that. Their job is to argue strenuously for the interpretation most favorable to their client (in this context, Congress). That's their role in the executive's overall duty to faithfully execute the law.
They're not telling SCOTUS what to do. They're filing a brief with the court. That's what they're supposed to do. When I go to traffic court to contest a ticket, I'm not "telling the judge what to do".
It's called an amicus curiae brief ("friend of the court brief"). In this case, you might consider the friend of the court to be famous, but the supreme court has no obligation to give their filing any more weight than any other.
http://legal-dictionary.thefreedictionary.com/Amicus+brief
http://legal-dictionary.thefreedictionary.com/Amicus+brief
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?
Does anyone care the highest office in the country has been bought?
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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> Disgusting that the executive branch is sticking it's nose into copyright law and the Supreme Court.
The executive branch is involved whether they want to be or not. Since these people were tried under federal law by federal prosecutors, it would be weird for federal prosecutors (employed by the executive branch, remember) to simply stop communicating during the appeals process. It's the expected behavior for them to put a position forward.
The good news is that the Supreme Court is under no obligation to do as the executive asks.
The executive branch is involved whether they want to be or not. Since these people were tried under federal law by federal prosecutors, it would be weird for federal prosecutors (employed by the executive branch, remember) to simply stop communicating during the appeals process. It's the expected behavior for them to put a position forward.
The good news is that the Supreme Court is under no obligation to do as the executive asks.
[deleted](1)
I'm glad for not living in a country with so many cases of legal bullying for small cases of copyright infringement.
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
Please sign and share: http://wh.gov/dZCl
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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.]