Comment by tptacek | Hacker News Reader

Comment by tptacek | Hacker News Reader

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.]

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 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.

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.

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.

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.

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.

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.

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.

>>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?

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.

>>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?

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.

Damages from intentional torts might not be dischargeable either.

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.

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.

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