I think that the problem that I was trying to point out is that this is not a constitutional question. I think that the damages in the Copyright Act are perfectly acceptable from a constitutional standpoint. But again, I don't think they are ethically reasonable and should be changed quickly.
When I look at Ms. Thomas' behavior, I only see a fool. A fool sacrificing him/herself does not good to a cause. General Custer was not a hero or courageous; he was an idiot that got all of his men and himself killed. There was no honor in that. I think she is doing the same thing, and I think that her counsel, especially Kiwi, has put this idea in her head that she can change the whole system.
So adri, no I wouldn't do the same thing as her because there's no reason to throw myself in front of that bus. It just won't do any good. The only "win" that I can see coming out of this is a reform in the Copyright Act, but that won't help her at all -- she still broke the current version.
In my previous post, I forgot to discuss why I think that there is no constitutional argument against the verdict. The primary case that would be used to assert that the verdict was unconstitutionally high was BMW of North America v. Gore (1996). Gore bought a car that he later found out had been repainted, which decreased the value of the car. BMW's policy was that if the the repair cost 3% of the value, then it would still sell the car as "new." State court awarded him $2000 for the loss in value and $4M in punitive damages. Supremes eventually got the case and ruled that the punitive damage was too high.
They established three guidelines to determine if a punitive damage was too high.
1. The degree of reprehensibility of the defendantâ(TM)s conduct;
2. the ratio to the compensatory damages awarded (actual or potential harm inflicted on the plaintiff); and
3. Comparison of the punitive damages award and civil or criminal penalties that could be imposed for comparable misconduct.
However, they did rule that damages could be very high if it was "necessary to deter future conduct."
In State Farm v. Campbell (2003), SCOTUS clarified the Gore ruling further with the =10x punitive award rule.
I don't think that these cases apply to Ms. Thomas because:
1) It's not a punitive award. It's statutory. the problem with punitive awards is that they are inconsistent and are not strongly codified.
2) It is certainly in line with guideline #3. Criminal copyright prosecution is exceedingly rare, but the penalties are scary: up to $250,000 and/or 5 years in prison per offense. The statutory damages are in line with that.
3) Guideline #2 is a non-issue because statutory damages are allowed because actual damages are too difficult to determine. There is no way to show how many copies were made, etc., so the statutory damages must be used (although I personally wish there was a better method to determine damages).
4) I think that guideline #1 is the most important one, and I think it's why the jury really took her to the cleaners. I'm not totally sure about the hard drive, but it's certainly arguable that she may have tried to destroy it. She lied about having it replaced through the first depositions. She perjured herself in both depositions and in front of the court. Her actions were reprehensible (I mean her behavior. I don't think the infringement is really that big of a deal).
I feel bad about this case, but not for her. I feel for her kids and family; what she did was not fair to them. She has acted stupidly and got burned. I really don't want to say this, but I think it needs to be said. It's going to sound wrong, but just think about it for a second. I sort of feel bad for the RIAA. They are really stuck in a hard place. The organization's livelihood (which is just a bunch of people who have families of their own) depends on the revenue from sound recordings. If people are "using" those recordings, without compensating them, that's just not right. What are they supposed to do, give up? Property rights are one of the cornerstones of civilization. They are trying to defend their rights. Not once during either trial did they ask for certain damages; not once did they suggest that higher damages be awarded. They were just as shocked as the defense and everyone following the trial. Right after the trial, the RIAA's head spokeswoman, Cara Duckworth, said that they had been and still were willing to settle for far less than the court verdict. Honestly what could they do different? Put yourself in their shoes. If a sizable amount of your work was essentially being "stolen" from you, what would you do? I think it would be incredibly disingenuous to say that you wouldn't seek to get some sort of compensation or at least try to dissuade people from acting similarly in the future.
That went on far longer than I wanted it to. I feel dirty now, but I think it legitimately needs to be said. All too often I think people on this site get too caught up in the "free" culture (I'm not talking about open source. I talking more "gimme" or looting-esque. I'm a big fan of opensource). That everything should be provided on the terms that I want, and if they aren't and I know some technological way to get them on my terms, then it's ok.
Just think about it. Ducks.