Eighth Amendment and copyright trolls

Posted: June 29, 2011 by SJD in Digital freedom, General
Tags: , , , , , ,

Ever since Mr. Sperlein rudely trespassed my life, I couldn’t help thinking about the reasons why this type of extortion business flourishes these days. I came to an obvious conclusion, though it took some time to articulate it.

Disproportionality of punishment is the major reason for abusing the law.

Imagine that the fine for failing to turn on your car’s headlights during rain is $1,000 or so, and the city allows police officers to pocket 50% of the collected fine. Abuse is waiting to happen.

Eighth Amendment to the US Constitution is mostly known for prohibiting cruel and unusual punishments, but it also specifically addresses “excessive fines”:

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”


Deterrence is a powerful mechanism
of sustaining respect to the Law

$150,000 maximum fine for sharing one movie is hugely excessive and disproportionate. The threat to impose such a huge fine is the main weapon of mass fear in copyright troll cases. This weapon makes the entire extortion scheme lucrative. A $2,000 ransom is still disproportionate, but being flabbergasted by a six-figure number, victims of extortion are more willing to pay this relatively small ransom (which is even less than the cost of defense – another predatory property of this scam).

I don’t know what the Congress had in mind when it put this number into the law. I’m refusing to believe that a teenager obtaining a porno movie via a p2p network was the main target. Most likely, commercial-scale infringement was the reason. It would be nice to read debates preceding signing of this law, but I don’t know where to find them (if it is possible at all).

If this is the case, why blame the law itself and not the abusers who pervert its spirit? In my opinion, any law should be written in a way that addresses this concern, i.e. a law’s wording should be sharp and clear, not vague.

I also refuse to understand why an “unwillful” infringement bears the maximum fine of $30,000. A $30,000 fine is still capable of ruining a life, and for what? For a violation that one was not even willing to do?

You may argue that huge fines are necessary to deter piracy. But pulling a random person from millions and ruining his life cannot justify this goal, understandable yet questionable. Selective enforcement can be reasonable in a couple of abuse-proof cases, like busting speeders, but selective enforcement married with unreasonable fines in inherently unjust, immoral and abuse-prone. And this type of “justice” is exactly what we witness.

Justifying enormous fines for unwillful infringement by the need to relieve plaintiff’s damages is also plain wrong based on the same disproportional punishment/selective prosecution combination.

Imagine that some group of youngsters picnic on a private property without permission. They destroy beautiful grass and damage the trees. Let’s assume they know what they do (willful violation). The property owner has a natural right to demand relief so he could repair the damages caused by the trespassers. Now, I’m one of many who happen to pass by and accept an invitation for a beer with strangers having absolutely no idea that I’m trespassing. Is it still fair to pick me out of many others and demand tens of thousands dollars to replant grass I stood on for 5 minutes without realizing it was illegal?

In our particular case, actual damages to copyright holders are far from being proven, so modify my analogy by removing the damage inflicted to grass and trees, thus leaving only trespassing as an unlawful act…

Recently I had a discussion with a guy who argued that laws that are not enforced cause huge damage to the judicial system. I agreed with him to some extent: I think that there is some damage albeit rather insignificant. Requiring 100% enforcement is based on a wrong premise that every citizen is a potential criminal. I believe, maybe naively, that the majority of people don’t break laws not because of fear but because of respect to others. A mere warning in a case when a good citizen breaks a minor law is more than enough to sustain a healthy society… Anyway, we can argue about a mouse for hours, while there is an elephant in the room: the existence of laws that violate the spirit of the Eighth Amendment is far more damaging to the society than ignoring minor violations. The existence of such laws erodes the belief in fairness of the system and causes wide-spread abuses.

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Comments
  1. Victim101 says:

    These scumbag trolls need to suck it. They are a bunch of rich f*cks trying to get richer off of people, just because the companies they represent are to f’n stupid to learn how to do business in the new real world.

    • Agreed totally. These companies like the RIAA and MPAA members need to realize that the ‘pirates’ are some of their damned best customers!
      They buy more media than most in the United States do by far.

  2. John Doe says:

    Thank you for your post. It got me to do some reading on this subject and I agree with you on how the Trolls are abusing the law for financial gains. This law was not designed to go against the “little people,” only those businesses who infringe on copyright holders. For all who read this, please note I’m not a lawyer. Note: I do have a criminal justice degree and have previously worked with and alongside lawyers on various issues. Please take everything I say with some doubt and find out for yourself.

    Even with my background, my first reading of my Troll letter was scary. I wasn’t scared because I did anything wrong, I just have seen innocent people can get screwed over by the system – it isn’t perfect. Then combine that with a lessened burden of proof requirement for civil cases and the nature of the Trolls – your stomach starts to turn. No wonder paying out $2-3K sounds like a bargain to some people!

    You are right in calling it a weapon of mass fear. Even though the letter does basically break down the maximum statutory penalties of $30K and $150K, plus attorney fees; it certainly doesn’t tell the scam recipients that the minimum fine could be as little as $750.00 or $200.00. Must have slipped their mind…… Oh, the Troll also forgot to mention this fine could be applied to a group of infringers and not to each one (for a single work).

    The key point of the letter is to tell YOU the following: YOU did it. There is NO excuse for YOU doing this. PAY UP or YOU will be sorry. PAY it now and make it FAST. Also fine print …. YOU CAN NOT tell anyone about the settlement (Hides Troll activity – Trolls don’t like the light.)
    Everyone – time to get a little smarter on the law. Again I’m no lawyer, but just think on the following subject matter. If I don’t grasp the complexity of the law or misunderstand a point, please tell me and everyone who reads this.

    The link is to US Code Title 17, Chapter 5 (Copyright Infringement and Remedies) http://www.copyright.gov/title17/92chap5.html This is the remedy section the Trolls are focusing on. The other remedy option is called “Actual Damages and Costs.”

    Title 17 USC, Chapter 5
    “(c) Statutory Damages. —

    (1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work.”

    Now if we are talking “Willful” infringement, the court can award statutory damages up to $150K. But please note for this, the copyright owner has the burden of proof that the infringement occurred and the accused did it. Again, IP address does not equal the offender without proof. Then THE COURT makes the determination if it was “Willful.” Willful means the accused did it will the full intent and knowledge that the action was wrong. If the court finds the accused was not aware of the activity (or truly thought that it wasn’t infringement – determined by the judge), the fine could be reduced to no less than $200.00.

    Now this may sound like if you didn’t know the activity was going on, you can still be liable. Wait a bit. Remember this is the penalty phase, not the decision phase. The jury has to first determine guilt or innocence.

    I sometime have serious doubts of how a jury will act, but most juries will not convict a person for activity they did not do OR had no knowledge of it occurring under their jurisdiction (your network) – regardless of how the law was written. As most jury members do not know how manager their own home computer networks (beyond setting it up in the beginning), I believe It would be hard for a jury to convict someone (like them) for what an unauthorized person did on their network without their knowledge.

    Willful Infringement

    “(2) In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000. In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200. The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the infringer was: (i) an employee or agent of a nonprofit educational institution, library, or archives acting within the scope of his or her employment who, or such institution, library, or archives itself, which infringed by reproducing the work in copies or phonorecords; or (ii) a public broadcasting entity which or a person who, as a regular part of the nonprofit activities of a public broadcasting entity (as defined in subsection (g) of section 118) infringed by performing a published nondramatic literary work or by reproducing a transmission program embodying a performance of such a work.”

    To “Join” or “Not to Join”

    Here is an interesting idea to kick around. If a Troll eventually goes after and wins one against a single person in court , I would suggest that the fine as described in “(c) Statutory Damages,” (see above) should be applied to all the does that were listed in the initial case. Even if the troll only uses the initial mass John Doe case to gain ISP subscriber information (then drops the case to file singularly), they have already provided sworn/affirmed statements to their belief that the cases are joined – due to everyone sharing the file in question via a torrent system. Now no court is going to fine anyone that hasn’t been convicted (the Does that didn’t settle and were not listed as defendants), but it does show the court that the Trolls are not acting in good faith when they file these mass John Doe suits. They are abusing the court to go on these “Fishing Trips,” to obtain your name/address from the ISPs. They then send out the settlement letters and start working the telephones to further scary people into paying.

    I think this would also give anyone convicted of this a good issue to raise on appeal. Remember the fine is “an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally,”

    Joint and severally liable (More legal mumbo Jumbo) –

    Here is some interesting bit on the “for which any two or more infringers are liable jointly and severally,” portion.

    Taken from the Cornell University Law School Web Page – http://topics.law.cornell.edu/wex/joint_and_several_liability

    When two or more parties are jointly and severally liable for a tortious act, each party is independently liable for the full extent of the injuries stemming from the tortious act. Thus, if a plaintiff wins a money judgment against the parties collectively, the plaintiff may collect the full value of the judgment from any one of them. That party may then seek contribution from the other wrong-doers.

    For example suppose that A, B, and C negligently injure V. V successfully sues A, B, and C, for $1,000,000. If the court used a joint and several liability system, V could demand that A pay V the full $1,000,000. A could them demand contribution from B and C. However, if B or C could not pay, A would be stuck paying the full $1,000,000.

    Now since the Trolls have been claiming all of the John Does are joined (All shared a specific file via a torrent), wouldn’t that mean the fine should be a joint one???? I don’t think the trolls want that, as majority of the Does probably don’t have the money to pay any large scale fine, or the ability to go after the other does to make it up the difference.

    I don’t know of anyone using this agreement against the Troll’s behavior, but I hope my words start some thinking on the matter. 

    Last Point –

    Much of what I have brought up is only valid if the PERSON (not necessarily the IP owner) is found guilty of the act. Last bit of advice to those who are just finding out about this the hard way – Don’t feed the Trolls. It only keeps them going. I haven’t fed them and my life hasn’t gone to hell. Please note that the Trolls are big and probably would mind trying to make an example of someone going against them. Take precautions and protect yourself and get the word out to all your friends and associates. They could be next.

  3. Anonymous says:

    Received an accusatory extortion letter with a settlement from Ira Siegel. Should I ignore it? He apparently has my name and address.

  4. [...] See also Eighth Amendment and copyright trolls; Mike Masnick’s Techdirt post Do The Statutory Damages Rates For Copyright Infringement [...]

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  6. [...] the copyright law’s maximum statutory awards are unconstitutionally high when considered against individuals — $30,000 or even $150,000 (if infringement is [...]

  7. [...] Amendment attorney. The problem is that his hubris prevented him from mastering bigger numbers, Eight in [...]

  8. […] judges see the root of the problem. While they cannot rule against the law, no matter how unfair that law is, they have a lot of leverage to call out trolls’ scummy strategies. Like this: […]

  9. […] issue is the amount of settlements collected for a particular copyrighted work. No matter how draconian and Kafkaesque statutory fees are, they cannot pile up indefinitely, and a rights holder can only collect one per […]

  10. […] specifically those that don’t let us make easy money. We are above such laws. But if a law allows us to easily extract, Mafioso-style, undeserved money from hardworking families, such law is […]

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