How can you say this? Clearly it matters very much, it's the whole purpose of having a range of penalties, is it not? If just violating a law is the only prerequisite for her punishment why is there a minimum and maximum penalty in the first place instead of a fixed value?
Given how file sharing services usually work, requiring the entire song to be shared at the same time to qualify as infringement would make infringement impossible to prove. Such services almost never upload entire songs at one time, it is usually fragments from multiple sources which are then reassembled at the receiving end. Trying to prove that any individual uploaded fragments which could be reassembled into the full song is a task beyond impossible - and it could be programmed around, simply by having the program randomly select a fragment of the song that is never uploaded. The missing fragment could be obtained from other users whose program chose a different fragment to never upload.
The usual "fair use" exceptions for short clips simply don't apply when the only intent of the clips is to allow others access to the work without permission or compensation.
Putting aside any question of certainty over her guilt, what factors do you feel should affect a jury's decision here? For me it should be an evaluation of what it would take to prevent a repeat of the offense and an assessment of the RIAA's losses and legal fees. I just don't see why you're treating the absurd figure they produced as a foregone conclusion.
I don't believe I have ever said it was justified, or that I expect it to stand; if fact quite the opposite. I am assuming either the judge will reduce the amount in the final ruling or that the case will be settled, as the RIAA has repeatedly offered to do.
The factors involved are the nature of the work, the purpose of the infringement, number of offenses, and damages caused. In this particular case, the jury was also acting on the perceived character of the defendant (willing to shuffle blame onto her kids and/or boyfriend, the hard drive that got mysteriously destroyed shortly after she was informed of the pending suit, various inconsistencies in her story, etc). My personal choice for judgement would have been maybe $10k, with at least a portion of the RIAA legal fees, which would far exceed that $10k.
The problem with the case for me is that somehow a group of peers delivered an amount so absurdly punitive and impossible to pay. The whole reason why we have peers instead of a council of magnates and CEOs on these juries in the first place is to increase the odds of punishment which fits the crime, is it not? The jury's absurd lack of empathy and comprehension of the file sharing systems and music industry is just staggering here.
The original intent of the jury of peers was to insure that evidence used to convict someone be of a reasonable nature to convince a person's neighbors that the person actually was guilty - at the time, the odds of you personally knowing jury members was quite high. It also helped insure that individual prejudice by the judge would no tbe the deciding factor in cases. Then again, that was also back when the law code was quite simple and mostly illiterate farmers could have the relevant laws explained to them easily. The more I see of the jury system the more I am convinced that this system screws over more people than it helps. People's fates are all too often decided by people who pay more attention to CSI than the law. Usually that works in the defendant's favor, but apparently not in this case.
It pretty much sums up all of my misgivings about the whole thing and fills in an important detail: Vivendi (the actual plaintiff) offered to settle for $3,000-$5000 before ever going to court, which is way more reasonable.
I knew they had offered several times to settle, but never saw a number.
