Jammie Thomas and RIAA

(Sorry for my bad English.)

The news

It’s not news anymore. The Minnesota court ordered Jammie Thomas to pay RIAA a fine for illegally offering for download in Kazaa copyrighted songs.

The details, however, are interesting. She was accused of sharing 24 songs. Each song was valued by the court of US$ 9,250. Total of $222,000. Right. $222,000 for two CDs of songs worth.

I’m no fan of copyright breaches. If Thomas has illegally distributing these songs, she must pay. However, are this fine, and this trial, just?

Some calculations

A typical CD costs about $12, about a dollar per song. To justify the request of RIAA for suffered losses, each of these songs must have been downloaded from Jammie by 9,250 persons. (Actually, a lot of the shop price is a retailer discount, never less than 20%, and sometimes well over 50%. However, let’s not be picky, and assume that 10,000 downloads per song are enough to justify this fine.)

Things don’t stop here, however. Due to the nature of the P2P software and protocols, the downloads are shared. Even if Jammie is the very source of these songs in Kazaa, and she almost surely is not, only their first downloader would have to download all songs from her. The second one would download half from her and half from the first downloader, etc. So, for the songs to be downloaded 10,000 times from her, their total number of downloads would have to be 10,000 to the power of 2 – 100,000,000. (Again, this is if she was the principal source in Kazaa for those songs. If she was not, much more downloads would be needed.)

Further, even 10,000 downloads, multiplied by a typical MP3 size, eg. 5 MB, would mean 50 gigabytes of traffic for each song. Over 1 terabyte total for the 24. This alone would considerably strain a typical home Internet line, even over a long time. And if it is true that she had over 1700 songs in her Kazaa shared folder, they would be surely downloaded as much, and this would make already about 100 terabytes. This is a traffic larger than that of, say, the largest US banks. Did she really ran a huge mainframe in her flat, or a cluster, and had the appropriate Internet connectivity? I doubt it.

Finally, the maximal amount of downloads of a song in Kazaa is expected to be about the number of the copies of this song that can be found in Kazaa. Maybe a little more, but not much – most P2P downloaders leave the downloaded files in their shared folders, as a solidarity… I searched for the most popular songs in Kazaa, and couldn’t find many that have 10,000 copies there. So, assuming that the 24 songs she shared (I don’t know which ones they were) are among the most popular around, at most square root of about 10,000 could have been downloaded from her – that is, about 100. (Again, if she is the principal source of these in the Kazaa, which she most probably is not.) Which would bring the fine down to $2,400 total.

Unwilling litigators?

Immediately after the trial, a spokesperson of RIAA contended: “We are unwilling litigators.” Is this so? It appears to me that it is not.

For the little I learned about the case, Jammie Thomas was investigated a lot of time, maybe more than an year. During all this time, RIAA and their people knew, or at least strongly suspected that she is infringing their copyright. But… did they asked her if she knows that she is sharing songs, and breaching copyright, during this time? As far as I know, no. Did they warned her to stop doing this? As far as I know, no. Did they moved to stop her in any way, to send her police with a warrant, whatever, during all this time they knew, or strongly suspected her? As far as I know, no.

They just sat down and collected data. And when they had collected enough, they litigated against her, for a hell of money… This does not appear to be done by “unwilling litigators”. It looks much more like “let’s passively encourage her for a long time, in order to litigate then out of her as much as possible”.

A just court would have asked RIAA why they did nothing to stop her, all this time during which they knew. And if they hadn’t a hell good reason for not stopping her (and there is simply no such reason), the court would decided that they are abusing the legal system. If they can take from just one person the total price for 10,000 sales, it appears very convincing that they try to use this to profit. How many sales these songs have in total, for the whole of USA? What business would skip this opportunity?… Consequently, they would get nothing. Jammie maybe deserves to pay something, but they don’t deserve to get it.

No matter if she didn’t knew…

Probably in defense to the previous question, RIAA pretended that this is a type of offense in which it does not matter if the offender does not know about their violation of the law. However, this is an absurd, which can be very easily proven.

Imagine a computer virus that, unbeknownst to you, shares your music to the Net. And if you don’t notice it promptly, RIAA arrives at your door with a gazillion-dollar request. To complicate the things, the virus might be able to download and store on your disk other songs, and share them, too. Writing such a virus is a kid’s task – it’s a miracle that we don’t have already a slew of those. And, what is worse, if its existence is so profitable to RIAA, they might be tempted to “sponsor” its development…

The problem is not whether this virus, if it appears, will be sponsored by RIAA, or not. It is that there is a law that in this case will victimize an innocent person, stating that “it does not matter whether she knew of this, or not”, and will order them to lose their lifetime payments. Such a law is a mockery of justice, and a detriment to the authority of the legal system.

Law and justice

It could be pretended that caught offenders should suffer heavier penalties, in order to discourage the offenses. However, this is true only to a degree. If someone has a third of their paycheck withheld for the rest of their life for passing around two CDs, this is not a “heavier penalty” – this is a travesty of the law. Especially when people typically get smaller fines for causing much greater (and proven up to the last penny) losses. A fundamental principle of the law is that what makes something a law is the fact that it is the same for everyone.

Things don’t end here. RIAA never proved that actually anyone downloaded anything from Thomas. (Except their sleuths, of course.) Yes, they proved that these songs could be downloaded. However, this does not mean that they were actually downloaded, 10,000, 100 or 1 times – respectively, that RIAA suffered any losses at all. Pretending that “she had the software, songs were shared, they could be downloaded all this time, ergo we suffered losses” is as ridiculous as “you are a man, I’m a woman, you have genitals, you could rape me all this time, ergo you raped me”. Another fundamental principle of the law is that the damages awarded should be related to the harm committed – and this harm must be reasonably proven. As we saw above, all harm that can be reasonably proven (and could be technically done), even by a RIAA-supporting person, is smaller by magnitudes.

Unhappily, all this points to the same: at least two fundamental principles of the law were broken by this trial. The court and law were used as, and turned to, a racket instrument. Which means that one should not wonder if the authority of the court and the law starts decreasing quickly (a LOT of people in USA use file-sharing, and would follow this case), and the more time passes, the more they will stand not on the authority of the justice, but on the “authority” of the enforcement agencies.

What now?

This process was neither just nor fair. What we can do about it?

1. Create a fund for the legal defense of Jammie Thomas, and donate something to it. (Especially if you use file sharing. This time RIAA was at her door – tomorrow it might be at yours. Proving that “you potentially eventually maybe possibly could…”…)

She will surely be afraid to contest the court decision, to avoid having to pay further legal costs. This is the message of RIAA: “You can’t stand against us. We have the money, and you don’t. Give us what we want, or we will make you suffer worse.”… Give us our racket, or we will blow up your restaurant… A decent fund for legal defense will enable her to continue the fight. Yes, when a illegal sharer does not pay, RIAA suffers. But when an unjust legal decision is enacted, the entire society suffers.

2. It’s not only the court. It’s RIAA who demanded this unjust payment. Who wants to bankrupt a person for the rest of their life just for passing two CDs around. Tell them your opinion on this greediness of theirs. Do it with your money.

Don’t buy music whose copyright is owned by RIAA. Drown them not in piracy – it makes them appear heroes and victims, which they aren’t. Drown them into oblivion, and bankruptcy – that is what they deserve.

There is enough of great music that is free, or owned by someone else. More than you can listen through the rest of your life. A lot of it will be good for your taste. Seek for it. Find it. Listen it. Promote it to your friends. And, of course, buy it. Pay for it, donate to its authors. Especially to the ones that allow their music to be freely listened to. They deserve it.

3. Don’t choose the music you listen only by your pleasure. Choose it also by the musicians ethics. The sweetest bits are not always the best for your health.

Yes, a musician needs a proper compensation (that is why I think that Jammie Thomas must pay something). But of the money you pay to a RIAA label, only splits from a penny go to the musician, in the average case. The lion share goes to yachts and luxury cars for executives who are good at extorting money from people, but often wouldn’t be able to read a note staff. And, most of all – to lobbying for new, harsher laws on copyright, that would make its centennial duration even longer (there are already attempts to make it eternal), and the punishments for violating it, even unknowingly, harsher than that of Jammie Thomas… Pay, for example, to the online labels that offer free music. Most of them will give the musician 50%, or similar figure, of what you pay. Much better than splits of a penny. These are, who deserve your money. Who deserve to become big and rich, and to attract the multitudes of artisans who would like both to get a decent compensation for their art and to be noble to their admirers.

There are also great talents, or their descendants, who choose greed over nobility. Who lock their art away from anyone who would not pay for it a lot, even if the admirer can’t afford this (not all the world gets salaries like in US). Yes, they are carriers (not creators!) of their talent, but also its jailers. Let them have what they deserve – oblivion. For even a candle in the hand lights the way in the night, while a sun in the prison warms only its warders… They may be great, but none is greater than the humanity. Tell this to them, with your attitude and your money. Support those that produce free art instead. They are who deserve to be rich.

(But… silence! For the greedy artisans will sooner or later realize that free art makes more money. And will come to it, but with greed instead of nobility in their hearts. They will never understand that what opens one to the light, what makes one human, cannot be sold or bought. That exchanging it for money turns it into a fake.)

3 Responses to 'Jammie Thomas and RIAA'

  1. Vlado Georgiev Says:

    IMHO, the request for paying the fine might be dropped by the RIAA very soon. I think that because the US legal system is mainly based on precedents, they needed this case in order to establish the legal precedent and later use it as a weapon if need be.
    And, BTW, it is very easy to declare bankruptcy in the USA – not that this is an acceptable solution and I don’t know if it is that easy if there is a verdict against somebody, but this is not a super threat. I mainly think they needed the publicity and the precedent.

  2. growchie Says:

    Perhaps the fine was not just about file sharing …


    “The lady is certainly unlucky. But is she ill-advised by her attorney Brian Toder – or is she just incredibly stupid? You decide:

    * Jammie Thomas used one hard drive for Kazaa… but sent a different one to the prosecution. Amazingly, they noticed.

    * Thomas’s attorney claimed that her account might have been hijacked by a Wi-Fi hacker hovering outside her window. The prosecution had little trouble disproving this: she wasn’t using Wi-Fi, and they matched her cable modem’s MAC address to the Kazaa traffic.
    * Jammie Thomas carefully covered her tracks – by using the same login name for Kazaa that she uses for all her email, online shopping, and MySpace account.
    The blue-collar jury in Duluth wasn’t impressed by the dissembling, and a juror told WiReD that the fine they imposed reflected her dishonest defence.

    “Her defense sucked… I don’t know what the f*ck she was thinking, to tell you the truth,” said 38-year-old steel worker Michael Hegg.

    Interesting if true.

  3. Григор Says:

    @growchie: This is the third version I hear about what actually happened. And the least credible.

    * How exactly they did noticed that the drive is different? And that she is using ONE hard drive for Kazaa? If they broke into her PC, this is a criminal offence – they couldn’t use the data obtained this way in a court. And if her PC was confiscated and examined, how then she was asked to send its hard drive for a check?

    * How exactly they proved she wasn’t using WiFi? Were they videotaping her room all the time? Nothing less would prove that she neved used one. (Also, having a WiFI router plugged into your home network, and using it for the connection to a Kazaa-loaded notebook, would result in what MAC address found in the Kazaa traffic? Surprise, surprise – that of her cable modem!)

    * How they established that JT used the same login name for her email, online shopping etc? Did they had a warrant for eavesdropping on her email, online shopping etc? If not, how’s that they did it, and the court accepted the data collected?

    * Is this Michael Hegg the same person that confessed in “never having used Internet in his life”? Will someone allow me to sentence a car crash participant, based on my opinion whether his explanation is plausible, if I have never seen a road traffic in my life? And what if I then tell the press that “his defense sucks, I don’t know what he was thinking?”

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