MPAA sez, "We shouldn't have to prove infringement took place before collecting $150k per file in damages"

In an amicus brief filed in the Jammie Thomas trial, lawyers for the MPAA argued that it was unreasonable to ask copyright holders to prove that infringement had taken place before awarding them damages of up to $150,000 per file.

"Mandating such proof could thus have the pernicious effect of depriving copyright owners of a practical remedy against massive copyright infringement in many instances," MPAA attorney Marie L. van Uitert wrote Friday to the federal judge overseeing the Jammie Thomas trial.
"It is often very difficult, and in some cases, impossible, to provide such direct proof when confronting modern forms of copyright infringement, whether over P2P networks or otherwise; understandably, copyright infringers typically do not keep records of infringement," van Uitert wrote on behalf of the movie studios, a position shared with the Recording Industry Association of America, which sued Thomas, the single mother of two.

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I write books. My latest is a YA science fiction novel called Homeland (it's the sequel to Little Brother). More books: Rapture of the Nerds (a novel, with Charlie Stross); With a Little Help (short stories); and The Great Big Beautiful Tomorrow (novella and nonfic). I speak all over the place and I tweet and tumble, too.

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jonathan_v

@HOLLYWOODBOB

In reality, the MPAA loses nothing – most of the files downloaded would probably never be purchased.

BUT

I – Proving ‘loss’ is silly. Just because you weren’t immediately adversely affected by a theft doesn’t mean that a theft didn’t take place or was wrong.

II – Fines are 150k for a reason — it’s a deterrent. Everyone knows its a .99Â¢ song… or that by parking in a space after the meter expires you’re costing the city all of 10Â¢ — but the large fine for not playing-by-the-rules is what keeps order.

That said, while I disagree with the entirety of your reasoning, the MPAA is batshit crazy for trying to claim summary judgements without proof. That’s an abomination of the legal system. Their lawyers should be disbarred for being the dumbest most arrogant fucks in the country.
Michael

With amici like these, who needs enemies?
aelfscine

If they were able to get the money without providing proof, at that point all they need to do is figure out how many people a year they can sue without the country getting pissed off enough to do something about it. Once you know that number, make it a quota, and just sue anyone until you reach it.
Anonymous

The recording industry always freaks out over new media. They have had a little tantrum over anything that allows people to record or share their music as far back as the phonograph. The only difference is that this time they seem to have amassed enough influence in order to criminalize pretty much everyone in America under the age of thirty.

Between, insane marijuana laws, anti-piracy legislation and credit card companies sinking their teeth into state educated kids, who all to often are woefully ignorant on the subject with glitzy media hyped materialistic leanings to boot, I would say that it’s safe to assume the privatized prison industry is watering at the mouth.

Seems to be the way we do things for a select few corporate elite in America these days. We reward failed business models by completely screwing the citizens or workers while making sure all the money floats to the top and into the hands of the undeserving captain of the Titanic. Now it appears this tradition of corruption is poised to forever taint the last bastion of free thought and truth for the masses. This is one possibility of course and I do at times need to remind myself that alarmist worst case scenario thinking is at times counter productive, because after all the internet is vast, the loopholes are wide and it’s populace is more powerful, clever and creative than they are given credit for.
Modusoperandi

Takuan “how far is it to extend this to criminalizing neighbors for not keeping written records on their next door neighbor in case they are needed to prove wrong doing?”
June 21, 2008 12:32 PM, Takuan, posted on Boingboing.net (note: subject closed blinds shortly afterwards….obviously has something to hide).

It’s a good thing that I keep tabs on things. It’ll make it easier to denounce my neighbours at the show trial.
Argon

#14: Possibly I’m missing the subtle irony – It’s extremely rare that the RIAA actually goes to trial, because they already are able to “get the money” without providing proof. It’s called settlements.

They seem rather good at it too, figuring out how much they can maximise their revenue, without getting people pissed off enough to fight back and risk a real, costly court case (with the accuser having to provide solid evidence and all this other inconvenient nonsense.)
Baldhead

This would be why you have to be caught in the act of speeding. Or a parking violation. because the law is such that it is not enough to be able to say “I saw that car parked illegally last week”

“We think you probably took it.” Simply does not cut it. And suggesting it should is something that should be reacted to harshly by lawmakers.

If you sieze my files anf find movies that aren’t even released on home versions yet (or for that matter are clearly taped in a theatre) then yeah you got me. otherwise you gotta find more proof, simple as that.
godfathersoul

umm….
what happened to guilty until proven innocent?

isn’t that like, one of our rights or something?

Modern Day witch hunt. If it’s not terrorists, it’s copy right pirates, if it’s not copy right pirates, its….
Shukketsushi

lol they think they’re above the law. you cant reasonably demand money with no proof of wrong doing and expect them to just pay it.
Cory Doctorow

Lulu@3: By this reasoning, anyone who sends mail in an envelope — rather than by world-readable postcard — is also a presumptive criminal. Anyone who wears clothes — rather than walking around naked — is a presumptive concealed-weapons-carrier. And anyone who shreds their confidential documents — rather than filing them carefully — is a presumptive criminal.
foobar

@17

Not in civil court, unfortunately.
Dillo

I’ll look for that demand for payment next time I go to the mailbox. The odds that they’ll just pull my name and address out of their ass is just as good as pulling anybody elses.

Let’s see here…
They’re asking the courts for relief of providing proof of infringement, are asking Congress for Police Powers…I wish I would stop predicting stuff. It keeps coming true.
MAFIAA is right…
subtle_turtle

Funny this should come up now! See, I was cleaning out my attic the other day and I found an old notebook of mine from middle school. I just put news clippings and stuff I found and thought was neat in it. Well, turns out that BoingBoing is just a rip-off of my notebook! To the letter!
And since I no longer have to PROVE this fact, I’ll take my $150k in cash, please! You can send it directly to me. I’ll expect it soon!
Silva

The MPAA boss ran over my cat yesterday. Unfortunately, as he was driving a large SUV, I can’t find any proof my cat even existed.

However, I still demand 5 mil. in compensation.
gollux

What prevents us from rounding up these MPAA lawyers and executives, deciding they are a menace to society, convening a judge panel, summarily sentencing them to death and then carrying out the penalty immediately.

When their dependents and relatives complain and want revenge, we simply spout back their facetious reasons as to why this isn’t necessary. Sounds like it’s fair to me.

They deserve as little due process as they are willing to give to the average citizen. We all know that prosecution in all criminal and civil suits is infallible and no one gets wrongly charged after all.
icky2000

I’m no fan of the RIAA or the MPAA but I think Cory & Wired’s spin on this is disingenuous. At odds here is the “making available” argument which needs to be ruled upon in the courts in a meaningful way. Reducing the MPAA’s argument to “we don’t want to prove anything” is a gross oversimplification. The debate focuses on which act by an individual constitutes infringement. This is a tricky point, enough so that even the District Court Judge made a ruling on it and now is second guessing himself.

So when am I guilty?

1. I install Kazaa on my computer.
-Not yet – Kazaa can be used to download non-infringing works.

2. I create a share folder.
-Not yet – I can put non-infringing stuff in there.

3. I place an infringing movie in the share folder.
-Hmm now?

4. Someone downloads the infringing movie.
-Certainly now – this is clear.

So the debate focuses on whether #3 is enough or we have to wait for #4 to consider me guilty. The difficulty is that I actually play no role in the situation after #3 which places my guilt in the hands of others. That presents a rather tricky legal situation.

Prior to computers, we had similar debates. In prostitution, for instance, it was determined that mere “making available” (advertising, standing on the street corner) was not enough to prosecute a prostitute. But in that situation the prostitute has to continue to participate in the act through its completion. With file sharing, my involvement ceases at #3.

There are very useful arguments against “making available”. It could, for example, establish dangerous precedents such that Google could be held liable for making available links to kiddie porn. Still, reasonable and intelligent people can and do disagree on this issue and we’re better off understanding the arguments in detail instead of engaging in straw-man attacks against those who have an admitted history of unfortunate douchebaggery.
Cory Doctorow

Icky2000, did you actually read the relevant piece of the MPAA’s brief? I quoted the relevant sections above. The reason Wired (and I) characterized the MPAA as saying they don’t want to have to prove wrongdoing is because they said, “WE DON’T WANT TO HAVE TO PROVE WRONGDOING.” That’s not a strawman, it’s a quotation.

Here’s that quote again:

“Mandating such proof could thus have the pernicious effect of depriving copyright owners of a practical remedy against massive copyright infringement in many instances,” MPAA attorney Marie L. van Uitert wrote Friday to the federal judge overseeing the Jammie Thomas trial.

“It is often very difficult, and in some cases, impossible, to provide such direct proof when confronting modern forms of copyright infringement, whether over P2P networks or otherwise; understandably, copyright infringers typically do not keep records of infringement,” van Uitert wrote on behalf of the movie studios, a position shared with the Recording Industry Association of America, which sued Thomas, the single mother of two.
Takuan

I see that word thrown around a lot. I think it is a fighting word.

disÂ·inÂ·genÂ·uÂ·ous Audio Help /ËŒdÉªsÉªnËˆdÊ’É›nyuÉ™s/ Pronunciation Key – Show Spelled Pronunciation[dis-in-jen-yoo-uhs] Pronunciation Key – Show IPA Pronunciation
â€“adjective
lacking in frankness, candor, or sincerity; falsely or hypocritically ingenuous; insincere: Her excuse was rather disingenuous.
[Origin: 1645â€“55; dis-1 + ingenuous]
icky2000

@27 Cory, I did read it. The fact that it is a quote doesn’t mean that it fairly summarizes the entire case or the legal issue being debated. I believe my summary is more fair. You only need to look at some of the comments above to see that your selective quotation has given some the wrong impression.

@28 Takuan, I think you are goofy as heck but you always make me smile. :)
Antinous

Disingenuous is now so controversial that one dictionary has included a ‘usage note’ discussing its changing meaning. For my purposes, making a statement which one ought reasonably know to be false or misleading is disingenuousness. I know that kills most human conversation, but there you are.
ill lich

So we’ve gone from “Innocent until proven guilty” to “Guilty, because we say so, no need to prove anything.”

Nice.
MitchSchaft

#3 LULU, have you lost your freakin’ mind or do you work for them?
Takuan

how far is it to extend this to criminalizing neighbors for not keeping written records on their next door neighbor in case they are needed to prove wrong doing?
Argon

#29 icky2000 – “You only need to look at some of the comments above to see that your selective quotation has given some the wrong impression.”

You’re too vague. Some? Whose comments? My impression (after reading the article no less, as well as the introduction to the brief – not just Cory’s quotation which still would have given me exactly the same impression in any case) is: The recording industry wants to establish, through the example of the Thomas case, that indirect evidence shall suffice to prove the liability of anyone who they accuse of copyright infringement. “Evidence” of the quality and conclusiveness as is described here for example.

Quote “MPAA urges the Court not to impose any requirement of actual distribution [...]” – In other words, they want case law to establish once and for all that the recording industry can – totally legal and successfully – sue to collect the life savings of any laser-printers they choose.
Antinous

In other news related to the erosion of law that has existed since Magna Carta:

The (UK) government has vowed to change the law to allow anonymous witnesses in some court cases after a key Law Lords ruling effectively halted the practice…The ruling quashed the murder conviction of a man who was convicted with the aid of anonymous evidence.

BBC article
tizroc

This does seem a bit coincidental to the release of the University Of Washington release. It appears that the ability of some to obfuscate their trail must be made up by the ability to charge the innocent.

So if you are clever enough to spin your address, or to hide your trail then it becomes to cost effective to prove the guilty party. So we should be able to blame the party we want.

This and the move from the house yesterday just confirms corporate law is becoming the law of the land. Rights are a great thing for the individual as long as they do not infringe on our bottom line, then they have to go.

-Tizroc
Jeffrey McManus

If the court buys this bogus argument, wouldn’t it follow that anyone would be able to use it? In other words, what’s to stop me from asserting that the RIAA has pirated *my* work? It’s not like I have to prove anything, all I have to do is sue them and say they’re guilty.
Marja

#37

You assume that the same laws apply to you as to them. That’s not how our constitutional system works. The 14th Amendment only applies to legal persons. That currently includes corporations, congressmen, mercenaries, and other [i]honestiores[/i], not us [i]humiliores[/i].
Takuan

you can’t get rid of corporations by voting, you haven’t enough money to buy them or bribe them, they are immortal as well as totally amoral, they are too big to out-compete, they own your politicians, they own the police, courts and judges, you can’t kill them (even the CEO and the entire board can be instantly replaced with clones), their physical assets are too widely dispersed for anything but an actual nation’s bombing attack: where are they vulnerable? This is why cyber-rights are so important. Give them up and you really WILL end up as company-owned serfs.
EvilTerran

hmm. Lulu registered to make post #3. I think that just set off my Astroturf Alarm.
kothz

I’d like to take a moment to distill:

“It’s too hard, it’s too hard! Waaaaaah!”

Thanks. :)
Argon

Mmwha? I must have misread this due to my lack of caffeine in the morning. Did they really say what I think those criminal bastard absolutists are saying now?

I think my brain just melted.
lulu

The RIAA is doing many horrible things, and the damages they’re seeking are insane, but they do actually have a reasonable point here.

We’ve run into this with MIT, where they have refused to provide web logs to their users and have destroyed the web logs the institution had kept when there was a concern they would show copyright infringement. (They’ve also frequently failed to comply with take-down notices.) The deliberate lack of record-keeping seems like pretty strong circumstantial evidence, at least when it’s a major institution taking that approach. If you walk into a bank while wearing a ski mask, and the bank vault is robbed around that time, you’re going to look pretty guilty.
HarshLanguage

And by the exact same logic, they can’t prove there was any financial damage to be recouped!
EH

When will we start to see motions for sanctions?
Anonymous

The plaintiff has the burden of proof, if the MPAA/RIAA can not actually prove any copywrite infringement has taken place then any decent judge (local, state or federal) should toss the case out as frivolous.
VICTOR JIMENEZ

So the MPAA says that the can sue any ass to bankruptcy without any proof of copyright infringement because its hard to prove it?
They lack now any money to pay their lawyers so they need the money BEFORE the trial resolution?
Common Law system in the States is wacky indeed…
Burns!

So, when I have to pay the MPAA damages, I’ll just hand them a sack with $150k in it. I think it would be unreasonable for them to ask me to prove that there’s actually any cash in the bag.
Blackbird

I know the burden of proof is lower in civil trials, but jeez…there is STILL a burden of proof. This would mean…you know, having to PROVE something!
oasisob1

Well, obviously, it’s every American’s Patriotic Duty to pay the MPAA $150,000 times whatever number they give you! Clearly, we are all pirates, sailing the seas of the Internets, raping and pillaging the poor artists.
Chevan

#12
>I think they should have to prove that they had substantial damages from said infringement, not simply that infringement took place.
That’s usually why they go after the uploaders, not the downloaders.

There’s way too many people downloading to keep track of. But if they can take out the relatively few people who are uploading the stuff, they can use the download stats (which they do get, from watching torrents) to estimate just how much they might have lost.

That’s also why I never use torrents, because you’re an uploader by design.
Argon

#3 lulu: Okay, this takes care of those who are guilty. What happens to those who are not? No they haven’t any reasonable point whatsoever here.

Point an almight finger at someone and say “YOU look like a witch!”, burn her, and get all her money. Probably based on high-quality circumstantial evidence like this.

Let’s see. Students buy CDs. Students carry their CDs around. Students who carry their CDs around meet other students. Yes that’s pretty strong evidence that they’re “making them available”. Yet, those major institutions deliberately didn’t install cameras in the toilets, even though students can be swapping CDs there! This “deliberate lack of record-keeping” is pretty strong circumstantial evidence, isn’t it?

Well, if the trade associations can demand logs, why can’t they demand toilet cameras next? Of course if we insinuate that someone’s swapping CDs, and you refuse to release the videos because someone’s having sex in the background, you’re guilty by default. Okay, let’s meet halfway and only install cameras in the dormitories for now. It’s not that we from the music industry wouldn’t only want your best (*) and you couldn’t come to a fair compromise with us.

(*) = your money

Right, everybody should be required to keep logs to incriminate themselves, or otherwise they are guilty because we say so. The financial interests of copyright holders cleary are above “innocent until proven guilty”, anyway. We no longer need to distinguish between “pretty guilty” and “guilty” because that’s too difficult. Nah. Shoot them all and let God sort them out.
CHIARAS DAD

I hope the judge won’t give much weight to an argument that can just as easily be made the opposite way. Like this:

“Levying damages in the absence of such proof could thus have the pernicious effect of depriving copyright licensees of a practical defense against massive legal damages in many instances.”

Well of course it would. (And does, it seems.) I’m hopeful the court will see that.
HollywoodBob

This is what I hate about IP law. You don’t have to prove a loss to win your case. I think they should have to prove that they had substantial damages from said infringement, not simply that infringement took place. If I write something and someone steals my work and sells it as their own, I lose my livelihood. What has the MPAA lost? NOTHING! The film makers? A few dollars of revenue. 4-6$ from ticket sales? 5-10$ from DVD sales? OH Nos! They’re will not be able to buy that Island in the Bahama’s now!!!! I just really have a hard time taking them seriously when they’re pissing suing people into bankruptcy for what amounts to, at most, a 15$ revenue loss, per infringement. What is most annoying, it’s not even lost revenue, because the majority of people downloading movies, wouldn’t be paying to see it anyway. But I guess saying “Your Honor, had Miss Jones purchased the content she downloaded we would have made 12$ from that purchase. But since she downloaded it and deemed it not worth purchasing we lost that 12$, and that’s why we’re demanding a summary judgment of $150,000 for her infringement of our copyrighted work.” They be hit in the head with a gavel and laughed out of the courtroom.
AirPillo

I think the most crucial nail in these fools’ coffin is that when they sue for alleged damages, they decide upon an arbitrary number that is, at best, a pipe dream.

If I download a movie, they do not lose the retail value of that movie. They wouldn’t have been paid that much even if I had bought it, they would have recieved a fraction of the cost.

So, when I download a few movies, and the MPAA decides that each movie I download should require me to pay them the price of a cargo container filled with DVD’s, which is orders of magnitude larger than what lost revenue they would have incurred had they lost any revenue in the first place… you have to wonder where the hell those “logic” or “due process” things went, since they seem to have evaporated.

Imagine stealing a candy bar from a store and being sued for the price of a train car full of candy bars, and a court agreeing that yes, this is completely reasonable. Yes, that candy bar was indeed worth $80,000.

Must have been filled with diamonds.