Obama Administration Sides With Music Industry In Seeking To Uphold Draconian Award Against Minnesota Mother For Sharing Songs

PresObamaWe have previously discussed how President Obama has repeatedly yielded to the “copyright hawks” who have steadily increased the penalties for copyright and trademark violations, including criminal penalties. Despite the abuse of average citizens by thuggish law firms and prosecutors, the Obama Administration continues to support draconian measures against citizens. Even after the abuse and death of Aaron Swartz by the Justice Department, the Obama Administration has decided to double down in a case of a young mother in Northern Minnesota who was hit with grotesque penalties for simply sharing 24 songs. She was told to pay $222,000 — over 100 times the actual damages for the songs. The Obama Administration has intervened before the Supreme Court to ask for it to allow the penalty to stand as lawful and correct.

The Administration has joined these companies in pummeling Jammie Thomas-Rasset for sharing music through the peer-to-peer network Kazaa. She has been fighting for years and put through two trials. Huge awards were thrown out by the court but the industry continued to make her an example by ruining her. Last year, the Eighth Circuit Court of Appeals upheld the $222,000 award. Rather than agree that such penalties are outrageous and seek the protection of average citizens in the courts or in Congress, the Obama Administration has done precisely what is demanded by industry lobbyists and lawyers.

What is striking is that these damages are not treated as punitive but statutory damages. The Supreme Court has previously struck down the awarding of punitive damages to citizens suing companies as unconstitutional. These cases like Gore v. BMW involved punitive damages greater than a 10 to 1 ratio to compensatory damages. They were found to run afoul of due process. In the Gore decision, the court wrote that “the most important indicium of the reasonableness of a punitive damages award is the degree of reprehensibility of the defendant’s conduct.” Gore, 517 U.S. at 575, 116 S.Ct. at 1599. “This principle reflects the accepted view that some wrongs are more blameworthy than others.” Id.

The Obama Administration clearly does not believe that standard applies to people like Thomas-Rasset or Swartz. It precisely sided with the companies in the case and said the award was not excessive. While judges have decried these penalties as absurd, the White House continues to argue for the penalties to be enforced. The question is whether this Supreme Court will feel as much sympathy toward individual citizens in statutory penalty cases as did has repeatedly for companies in punitive damage cases.

The Obama Administration argued that awards can be disproportionate but that this is not such an award. It felt that the case really speaks to the poor company lawyers and shareholders who are put at an unfair disadvantage by citizens like Thomas-Rasset: “The public interest cannot be realized if the inherent difficulty of proving actual damages leaves the copyright holder without an effective remedy for infringement.” Without an effective remedy? The portrayal of these companies as helpless victims is a bit much . . . but not too much for the White House.

Source: Rolling Stone

42 thoughts on “Obama Administration Sides With Music Industry In Seeking To Uphold Draconian Award Against Minnesota Mother For Sharing Songs

  1. I agree with Jamie Thomas’s lawyers, that this is a case of the music industry using the legal system to prop up a failing business model.

    Also relevant in this particular case is the fact that the music industry hired unlicensed private investigators to illegally download music to prove that illegal file sharing had taken place.

    Part of the problem with prosecuting these cases — specifically as relates to peer-to-peer networks — is that it is difficult to prove that illegal file sharing has taken place, quite apart from whether or not files are available for download. That is, making files available is not the same as illegally copying or re-distributing them.

    This is why the industry is so keen on DRM — it seeks to prevent copying, and thus, illegal re-distribution, at the source, though this also prevents people from “owning” their “purchases” and hinders criticism, re-use of certain materials in an academic ccontext, and certain artistic practices as well.

    “The cloud” is marketed as convenient, but by ensuring that nobody “owns” their own stuff — and by requiring that anybody who wants to access “their” data purchase internet access indefinitely — the result is to turn everybody into the digitial equivalents of teneant farmers.

  2. Talk about inappropriate. Huge companies do egregious harm and get fined a few weeks income or profit. How about using that same measure for private citizens, you know, the real heart and blood citizens.

  3. @bettykath

    The abuse of these large companies is agregious.

    Microsoft was fined around $2 billion for operating in open violation of EU trade laws for a decade.

    Because nobody goes to jail, there’s no incentive to obey the law.

    The cost just gets treated like any other business expense — advertising, marketing, etc. — on the road to market domination.

    An important facet about modern industrial capitalism that often gets overlooked is that the whole point of an economic competition is to put your competitor out of business. Industry doesn’t compete. Structurally, industry does not in the least bit resemble a “lemonade stand” type capitalist enterprise.

  4. Raff,

    Good question….

    Obama…. Here to uphold your rights….. Yeah…. Baby…. Common to grips with it Austin powers…..

  5. I see at Wikipedia that Ms. Thomas-Rasset turned down settlement offers of $25,000 which is $7,000 more than the statutory minimum penalty.

    The copyright laws may need reform, but this case is not about someone who copied (meaning stole) for her own use, but rather someone who distributed the stolen work to others. What should the penalty be for someone who takes a work of art (as defined in copyright law) and puts in on a computer site where others may then make unlimited copies of that work? Or a movie that cost $100 million to produce? What if I take a book that you wrote and make photocopies? Or I scan it and give it away free?

  6. “In its 26-page brief to District Judge Michael Davis – who is presiding over the appeal case -, US Federal Justice Department has said that the verdict passed against Minnesota grandmother Jammie Thomas-Rasset was “not excessive.””

    “Justifying the reason behind seconding the verdict passed against Jammie Thomas-Rasset, the brief from the Justice Department said: “Congress took into account the need to deter the millions of users of new media from infringing copyrights in an environment where many violators believe that they will go unnoticed.”

    Now I don’t know what “The Justice Department”, or Eric Holder, believes regarding this specific case. While under the “Justice Department” rubric each individual regional Deputy Attorney General prosecutes the cases in their own area without a great degree of Washington oversight. So the use of “Justice Department” policy may or may not be an overstatement. The paragraphs above are quoted from the article linked above. Their use of “Justice Department” is a generic one that may or may not reflect the administrations views on this particular case. That point needed clarification, not in the sense that I’m defending the Administration, but in the sense of trying to understand what is going on here.

    Now copyright enforcement should never be the province of government. It is a civil issue and should remain such. However, in our current situation where we have government by lobbyist, many laws get passed that have no relationship to the public good. Obviously the statute cited in the article that calls for Federal intervention is the result of lobbying and money. If there is indeed an effort by this administration to stringently enforce that ill-starred law then they should be held to account. We need more facts though to determine this. The Deputy Attorney Generals around the country have wide latitude to enforce the laws as they see fit. Many are still holdovers from the Bush Administration. I other cases the supervision that is necessary from the Justice Department on down is lax and the usual prosecutorial excesses continue. Holder has been a bad Attorney General, but it is hard to determine if his ineffectiveness arises from incorrect ideology, or from administrative inability. Perhaps a combination of both. Whether in fact though this reflects the conscious policy of the entire Obama Administration, or a reflection of poor supervision, is still a moot point.

    Part of the difficulty of fighting these extreme examples of governmental overreach into what should be civil law issues, is that the corporate media is the source of major publicity and this government intrusion is advantageous to their own copyright claims.

  7. As for those who are so concerned about “stealing” an artists work without compensation I would reference them them to the “Grateful Dead’s” and other musical artists long term policies. The “Dead” have always allowed their fans to record their music without penalty. I wish that I had the money that this group has had and is making still after Jerry Garcia’s death. These enforcement of copyrights are the work of corporate greed, mixed with misunderstanding of the avenues of profit that have opened up via the internet and the computer age. There is money to be made, if only they would look past the old business model.

  8. The fact is that the Internet has ensured the rightful curtailment of the reach of intellectual “property”. The longer governments insist on supporting the music industry’s outmoded bullying behaviour, the more foolish they look.

  9. I did some work for recording industry attorneys going after Napster kids. They liked to focus on universities and they are sharks. The fact that Obama is in bed w/ these people says a lot.

  10. I agree that it’s stealing an artist’s work. Because it’s possible and convenient to steal an artist’s work doesn’t make it okay. Having been a musician, I have no sympathy for these thieves. This is how an artist is paid. It used to be that a songwriter, for instance, would get a couple pennies from each record sold, but folks don’t buy records. Sites like iTunes sell music for $1 which leaves nothing for the writer, performer, publisher, etc. If there’s no money to be made, talented people won’t participate and we get the likes of Justin Beiber to represent music. Mike Spinelli made the point that the Grateful Dead allowed free taping of their shows. That was true, but only AFTER they became famous and had made a good bit of money from their record sales and concerts.

  11. As I understand it, the Grateful Dead zealously protects its trademarks and will not turn a blind eye to unlicensed goods being sold.

  12. http://beforeitsnews.com/alternative/2013/02/lapd-vs-christopher-dorner-case-file-leaked-proves-lapd-have-been-lying-about-entire-thing-2561274.html?currentSplittedPage=0


    Dorner thread is dead, as he may be. But it remains as a monument to the LAPD and other PDs in the area.

    See the photo shown at above link of him in combat fatigues standing next to and being clapped on the back by a LAPD chief. Who was the prime meat they were recruiting? Dorner apparently. The photo is most often run with the chief clipped away (media obedience?)

    As a last point, check his rank insignia (in black) on Dorner’s lapels of his fatigues. He was Captain, and not the piece of icing the LAPD stood beside for a photo op staged by them. Do you think he went around after his discharge in fatigues?

    Wise up folks, Dorner was screwed and tattoed. And he broke bad.

    As said before, for the inside story on the LAPD, read Choir Boys by Wambaugh a 14 year vet from the LAPD, He had planned to do 20, but his conscience got in the way of Wambaugh. Published 1975 but fresh as a donut today. Read it and laugh and weep.

  13. Mahtso, the Dead were protecting themselves from being ripped off by big businesses or others who sought to make a LOT of money off of them. They did NOT go after the kid on the block who printed up his own T-shirts to gvie out to his friends for cost or for free. BIG difference! Too bad you cannot see it.

  14. I’m back again, using Obama as my purpose.

    In this newly seen video (thanks to the original poster) Obama is examined as to two roles: Is he an unwitting accomplish to banksters, or is he just part of the Washington that see to big to fail AND too big to prosecute.


    The revolving door between the FEC and Wall Street lawyers representing these banksters is given an airing, whereas in WASH;DC it is business as usual when folks rotate between employee to regulator and back again.

    Under Bush, Tabbi says that individuals were prosecuted. Now they aren’t!.
    Prosecutors (accdg to AG official) must take into the account the effects on the nation and its economy of such a prosecution.
    He got the door for that boo-boo.

    It is so easy to see when these guys lie. They blink, break the visual contact with the interviewer, dropped their voice volume, stutter, mumble, etc etc. I feel like a polygraph and want to scream STOP LIAR!

  15. SOTU from Cspan coverage. 2013

    “the greatest ´nation of earth, can not do its business, by drifting from one manufactured crisis to another”…..(paraphrased), ref. Obama SOTU 2013

    On a tangent it was fascinating in the full coverage to see him work the line of first row greeters, he cut one pol dead after a glance, and went to another two rows back.
    Hope he was well oiled in. So many cheek kisses. He is white, in skin hue.

    Now we will monitor if it is business as usual. the big thrust as usual, and watch the details of the edicts and the laws enacted. Someone here did an excellent exposé on “No child left behind” or some such program.

    The devil is in the details. And it is not he that makes the details, although some of his people do. But he chooses his cabinet. Damn his bankster loving hide. Put a stop to the revolving door by executive directive, why don’t you Prez.

    You all know: business men, leaders of men, military, bureaucrats, that the people under you can “kill” all that you want to achieve.

    Weeding out that opposition is impossible**. as his program’s failure to de-classify more documents has ground to a stop and demonstrates my point..

    Thank you, Mr President.

    **Only citizens can be weeded out. But that we know.

  16. Indigo Jones:

    “This is why the industry is so keen on DRM — it seeks to prevent copying, and thus, illegal re-distribution, at the source, though this also prevents people from “owning” their “purchases” and hinders criticism, re-use of certain materials in an academic ccontext, and certain artistic practices as well.”

    “The cloud” is marketed as convenient, but by ensuring that nobody “owns” their own stuff — and by requiring that anybody who wants to access “their” data purchase internet access indefinitely — the result is to turn everybody into the digitial equivalents of teneant farmers.”

    You’re absolutely right. There is something on the horizon though that goes much farther, UltraViolet. It’s a practice which allows one to buy/rent content and share it among a group of listed devices and persons for a fixed number of times and at a fixed price. One can buy a DVD of a movie stored on a cloud, get a hard copy of it for added fees (currently) or make a copy of it (currently) for yourself and then view it and share it. Notice all of hose ad for cable TV that allow you to play the content on up to x number of DVR devices? Sounds good, no?

    There is currently no prohibition against signatories to this new entertainment system from changing their terms of service to up prices or restrict options after the first iteration of the contract nor from dropping services like acquiring or making a personal copy, nor from charging whatever they choose for each play after the initial terms regrading time has expired or if one wants to change ones list of devices or the designated share list.

    I see this as the new business model. At some time in the future all commercially produced media will be marketed in this way (Movies, music, books, periodicals, etc. and the consumer will be the lessor. I doubt that making a copy will fall by the wayside pretty quickly after a certain level of market saturation has been achieved.

    The FAC is revelatory and the model is in play.

    UltraViolet FAQ:

  17. Mahtso: “I see at Wikipedia that Ms. Thomas-Rasset turned down settlement offers of $25,000 which is $7,000 more than the statutory minimum penalty.”

    These prosecutions are the commercial equivalent of the criminal law ‘plea bargain’ and all but a handful of cases are settled for payments of a few thousand dollars a song. If you don’t take the deal you end up (possibly)in jail and certainly bankrupt. Big media doesn’t even have to search out violators, law firms that act as copyright vultures ferret them out and bring suit independently and/or tip off the relevant corporation and everybody makes money. That’s what my reading reveals anyway. It’s a big business.

  18. I am the guy that the Dogpac calls The Dog Biscuit Guy. I try to maintain their communication system. They call it the Dogalogue Machine. These dogs are really a lot smarter than you might know from their comments on this blog. They try to dumb down things when talking to humans. I try to encourage them to speak their real minds but they prefer to keep things quaint and dog-like. HumpinDog for example was a human in a prior life and was a medical doctor. itchinBayDog was a talk show host on some tv channel in Minneapolis in her prior life. So please dont think of them as a bunch of dogs. Well, they are dogs. But please realize that they are intelligent and see things from a different perspective. The Dogalogue Machine is undergoing some repair. You have a respite from dog talk. Or bark. For awhile. Woof.

  19. The gov’t is not a party to this dispute and should stay out of it. In my book they have as much standing to be involved as getting between two sisters disputing a probate issue. None.

    And yes, the recording indistry in my opinion acts like a bunch of thugs. Maybe if they actually went out and found talented singers they might make some money.

    Then again, about the gov’t it seems they care less and less about the rights of the individual.

  20. LottaKatz.

    When i was in college, the number one most hated place on campus was the school bookstore. The bookstore was run by some contracting agent and the prices for books was outrageous, one of the books I had was $90 (1986 prices) When you made $3.40 an hour it was awful. When they bought back used books they gave rock bottom prices and charged about 75% of what a new book cost

    Anyway the students were so angered they formed their own bookstore for used books. Several students also got together and bought 1 book between themselves and photocopied every page with each person making a copy for himself to use in his own study of a book that he legally owned as a partial owner. They considered it legal because they felt that fair use allowed a person to copy a book they own for the purposes of their own study.

    I wonder if the same thing can be done for music. If a music CD cost 20 dollars and 2000 persons contributed 1 cent to purchase the CD and each person then made a copy of this for themselves it could be considered fair use.

  21. While I think the financial penalties of this particular case are exorbitant, I also have little sympathy for Jammie Thomas-Rasset. Here’s why:

    My current digital audio workstation (DAW) cost a whopping $300.00. The one before that cost $12,000.00, and the one before that cost $52,000.00, and that one replaced about $650,000.00 worth of gear (all purchase costs). So what’s the problem?

    Add it up.

    This is not even talking about quality instruments, (somewhere around $126,000.00 at today’s prices if I’m in a good mood), microphones, (jeez, I have two mics I could sell at the drop of a hat for $12,000.00 apiece, not to mention the many “less valuable” ones), microphone preamps/compressors, etc., (gosh, probably $24,000.00 sitting there).

    And then silly things like quality patchbays, racks to hold everything, interconnect (wire — wired properly — and quality connectors and patch cords), power amps, speakers (not your mom’s) so all this great calibrated stuff works when you want it to — and after all that a few rooms where it makes sense to house and use this “stuff.”

    Allowing and even encouraging fans to make live recordings of performances, like the Dead did — and that’s all the Dead did — or even more recently Dave Matthews, is not the same thing as ripping CDs and making it available to the world.

    Yes, I know that Jammie Thomas-Rasset didn’t rip the CDs she is accused of distributing, but that it’s the Kazaa distribution that is the issue. Splitting hairs is never a pretty thing.

    There is no doubt that the established top-bottom feeders in the music industry are holding onto a failing business model — this is readily apparent.

    However, “consumers” have little regard for the expense of time — as spent in recording/mixing/mastering, and I won’t mention learning how to write, play, and produce proficiently — nor the financial cost of creating something (see above) that even with excellent DAWs so cheap that pulling it all together is not a casual pursuit.

    Digital Rights Management (DRM) is a dead end. Sony learned this years ago with their rootkit in attempting to control copying to other devices within ones physical control. May DRM crash and burn, which it is.

    Until then, one can buy a head of lettuce in North Dakota in February cheaper than buying a song — what a burden of choice for the consumer.

  22. You can always trust Obama to stand up for the little guy, not. Big corporations use the courts to destroy people but people can’t even get a hearing when a big corporation defrauds them, steals their pension or poisons them with a dangerous drug. Perverted justice.

  23. Darren, There is suposed to be a new label from the FBI: “The label will replace the old variety of labels already shown in most of the media products and will also be significantly more visible on the product cover. The new warning says “The unauthorized reproduction or distribution of this copyrighted work is illegal. Criminal copyright infringement, including infringement without monetary gain, is investigated by the FBI and is punishable by up to five years in federal prison and a fine of $250,000.” ”


    This may replace the old, long statement or may just be a supplemental label for the covers. The info regarding reproduction and distribution being illegal is the same as the old language though, the monetary gain statement is new.

    I think the “unauthorized reproduction or distribution” language would have tripped you up regarding the shared purchase scheme. No copyright holder or licensed manufacturer is going to authorize reproduction and distribution of their property based on a shared purchase arrangement. I give you props for creativity though; innovative thinking is what makes this nation great. :-)

    I went looking for a schoolbook recently and was astounded at the price of it both in hard copy and digital form. There was a digital lease price also but it was outrageous as well. Things sure haven’t changed on the textbook front in the last 40-odd years.

  24. Obviously the narrower the field of discussion, the more data and info we get. For me it is better reading than a listing of precedents.

    But then people are different.

    EBK, wow the moolah that you have. Hope you recovered 75 cents on the dollar in selling the older generations.

    AWS sounds interesting. All you need for a solist is a sound-dampened room and by punching some buttons you can add Carnegie Hall or your choice of ´recording”environments. Just have to coordinate the different music instrument channels. Etc, etc etc. And there is a built in Wizard which will act producent in different styles, etc.

  25. President Obama….Man of the People….Establishment People….Rich People….Corporate People…. The rest of you people may be excused. You are of no further use.

  26. ID,

    “EBK, wow the moolah that you have. Hope you recovered 75 cents on the dollar in selling the older generations.”

    Your tense is wrong, it should be “had,” not, “have.” Recovered very little, but I’m a bad businessman as I loved the process much more than the counting. The value of instruments, mics, and such don’t reflect what I paid, but unexpected (and crazy) appreciation over the last four decades. I couldn’t touch any of this gear today.

    “AWS sounds interesting. All you need for a solist is a sound-dampened room and by punching some buttons you can add Carnegie Hall or your choice of ´recording”environments. Just have to coordinate the different music instrument channels. Etc, etc etc. And there is a built in Wizard which will act producent in different styles, etc.”

    Wow, that’s all one needs, just some AWS, button punching, and coordination of music instrument channels? I’ll definitely have to check that out.

    But hey, when 2,000 people think it would be interesting to pool $0.01 apiece, buy a CD, make 2,000 copies and call it “fair-use,” why should I?


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