Re-selling DRMed ebooks: Legal or not?

[zerospinboson]

Originally Posted by Harmon

So you must believe that the jury instructions were wrong.

(BTW, I've read something recently that suggests that my supposition that the statutory damages will almost certainly be reduced by the court of appeals may also be wrong. This woman could be dead in the water.)

How is that relevant? Yes, the instructions were wrong, but that's because putting someone through a lawsuit that potentially costs the defendant thousands of dollars just to ensure they won't "share" 2 dozen songs is wrong, something which was in turn made possible because certain idiotic/outdated/Procrustean laws existing. Jury instructions are just an effect (a legally circumscribed one, at that, so nothing went wrong technically)

[HarryT]

Originally Posted by zerospinboson

Yes, the instructions were wrong, but that's because putting someone through a lawsuit that potentially costs the defendant thousands of dollars just to ensure they won't "share" 2 dozen songs is wrong,

Thomas was offered an out-of-court settlement; it was entirely her choice to go to trial, don't forget.

She was not "sharing" two dozen songs but 1,702. The 24 used in the court case were merely a representative sample.

She really was amazingly stupid - eg, claiming that someone might have hijacked her WiFi network when, in fact, she didn't actually have WiFi, and making a clumsy attempt to hide the evidence by changing the hard disk in her PC before submitting it for examination.

[Elfwreck]

Originally Posted by HarryT

Thomas was offered an out-of-court settlement; it was entirely her choice to go to trial, don't forget.

She was not "sharing" two dozen songs but 1,702. The 24 used in the court case were merely a representative sample.

24 is what the conviction is for; 24 is supposedly what the penalties are for. And they're supposed to be for *her* actions; they're not allowed to be "send a message to other people" damages. (Which is, I gather, part of what the challenge will be based on.)

Even at 1700 songs, I'm not seeing two million dollars in damages. If it stands, the RIAA gets what? A bankruptcy notification? Certainly it'll never get paid.

She really was amazingly stupid - eg, claiming that someone might have hijacked her WiFi network when, in fact, she didn't actually have WiFi, and making a clumsy attempt to hide the evidence by changing the hard disk in her PC before submitting it for examination.

Stupid I'll grant. But we don't have statutory penalties for stupid. (Well, at least not specifically and directly.)

[HarryT]

I agree with you that the penalty is grossly disproportionate to the crime. But that's the problem with a legal system in which the jury awards damages, don't you think? In the British legal system the jury simply finds the defendent innocent or guilty - it's the judge who assesses the appropriate level of fine, a system which I think personally is fairer.

[zerospinboson]

Originally Posted by HarryT

Thomas was offered an out-of-court settlement; it was entirely her choice to go to trial, don't forget.

She was not "sharing" two dozen songs but 1,702. The 24 used in the court case were merely a representative sample.

She really was amazingly stupid - eg, claiming that someone might have hijacked her WiFi network when, in fact, she didn't actually have WiFi, and making a clumsy attempt to hide the evidence by changing the hard disk in her PC before submitting it for examination.

Yet how are "out of court settlements" in cases where (strictly speaking) no proof (this is where the difference between "uploading" and "making available" comes in as a magic weasel word) is required (as none is offered beyond the assertion of the RIAA) to get an in-court conviction different from protection money asked for by the Mafia in earlier days?
After all, the costs of going to court are so prohibitive that settling will always be cheaper; whether you're guilty or innocent matters little, and in a legal area where those two things are basically undefined (because there is still no litigation on it)...

[HarryT]

Originally Posted by zerospinboson

Yet how are "out of court settlements" in cases where (strictly speaking) no proof (this is where the difference between "uploading" and "making available" comes in as a magic weasel word) is required (as none is offered beyond the assertion of the RIAA) to get an in-court conviction different from protection money asked for by the Mafia in earlier days?

Because she did offer the stated files for upload in breach of copyright. What is being debated is how much she ought to be fined for doing this, not whether or not she actually did it. Everybody accepts that she did.

Given the fact that she knew that she was guilty, it was her choice to go to trial. She would have been far better off - IMHO - just taking the offer and paying up.

[Harmon]

Originally Posted by HarryT

Given the fact that she knew that she was guilty, it was her choice to go to trial. She would have been far better off - IMHO - just taking the offer and paying up.

It sure does seem like she had poor legal advice, assuming that her lawyers didn't advise her to settle. But remember that the first trial didn't end with a spectacular award, so she probably thought that, worse case scenario, the amount of the award might not be much different.

I don't know anything about the extent to which statutory damages are subject to appellate review. From what little I've read, if this were the first trial, I'd think there's a likelihood that the damage award would be sustained, even if it does seem grossly out of proportion. But since we are dealing with two trials on the same subject matter, and the damage awards are so incredibly different, the court of appeals might not let this last award stand.

[Elfwreck]

Originally Posted by HarryT

Because she did offer the stated files for upload in breach of copyright. What is being debated is how much she ought to be fined for doing this, not whether or not she actually did it. Everybody accepts that she did.

She offered them, but offering something to be copied is not the same as copying it. If I leave a book next to a photocopy machine, I'm not guilty of copyright infringement.

The RIAA claimed it couldn't be required to prove that anyone actually downloaded the files--that arranging for the *possibility* of illegal copies was the same as actually making them.

(I don't, in fact, claim that no copies were made. I just question prosecutions on the grounds of "we proved this crime/tort was possible, therefore the jury should treat it as having happened." Dangerous legal precedent, that.)

[Shaggy]

Originally Posted by HarryT

She was not "sharing" two dozen songs but 1,702. The 24 used in the court case were merely a representative sample.

No, she was allegedly sharing 1,702 songs. Only 24 were used in court, so the other 1678 did not exist. There was no evidence or chance to defend against any charges for the other 1678. You (not surprisingly) seem to be assuming guilt on songs that were never even part of the trial.

She really was amazingly stupid - eg, claiming that someone might have hijacked her WiFi network when, in fact, she didn't actually have WiFi, and making a clumsy attempt to hide the evidence by changing the hard disk in her PC before submitting it for examination.

There's no doubt that she was an idiot and probably committed perjury. However, that does not make her guilty.

[Shaggy]

Originally Posted by HarryT

Because she did offer the stated files for upload in breach of copyright.

Wrong. Offering the files for upload is NOT a breach of copyright in the US. That's the whole "making available" theory that the RIAA tried to get away with in the first trial, and it was thrown out. The plaintiff is supposed to show actual distribution occurred, not just "offering".

[Shaggy]

Originally Posted by Harmon

So you must believe that the jury instructions were wrong.

Yes I do.

In the first trial, the jury instructions said that "making available" was enough to count as distribution. Later, the judge admitted that that instruction was incorrect and ordered a new trial.

In the second trial, the jury instruction just said "distribution", but had no definition what-so-ever from the judge about what qualified as "distribution". During the trial, the plaintiff had absolutely no evidence that any actual distribution occurred.

The second jury found her guilty of undefined "distribution" where the only evidence shown was "making available". In my mind, that means the results of this trial are just as flawed as the first one. She was found guilty of the exact same thing as the first trial, which was already thrown out.

[Shaggy]

Originally Posted by Elfwreck

(I don't, in fact, claim that no copies were made. I just question prosecutions on the grounds of "we proved this crime/tort was possible, therefore the jury should treat it as having happened." Dangerous legal precedent, that.)

Exactly. Nobody has any idea if she really committed copyright infringement. If this trial is allowed to stand though, the RIAA has been given the power to have people found guilty merely by accusation. That potentially lets them go out and blackmail anybody they want. That's extremely dangerous.

I have no idea if Jammie did or did not actually distribute songs. However, in order to be found guilty of breaking copyright law the plaintiff should have to show some evidence that the act actually occurred.

[HarryT]

A jury of her peers decided that, on the balance of probabilities, she did commit willful copyright infringement. That's really all that matters, isn't it?

[kacir]

Originally Posted by Shaggy

That potentially lets them go out and blackmail anybody they want.

They already do that.
Many thousand people settled out of court for something like $5000 a pop.

[Shaggy]

Originally Posted by HarryT

A jury of her peers decided that, on the balance of probabilities, she did commit willful copyright infringement. That's really all that matters, isn't it?

Should a jury be deciding that, when there was absolutely no evidence presented that she did?

It really looks to me like the jury found in favor of the plaintiff because the defendant was an idiot and pissed them off, not because the plaintiff proved their case.