File sharing, piracy, content theft, etc. are all misnomers to be certain. But on the flip side they all have understood meanings. Some would argue that the comparisons to property aren't as off-target as some might say, Ben Sheffner being on that list (http://copyrightsandcampaigns.blogspot.com/2009/08/patry-vs-sheffner-on-copyright-as.html) but I am of two minds on that one issue.

To be clear though, statutory damages are NOT actual damages. Actual damages can be awarded under copyright law so it is not an attempt to be "compensations for an actual loss". There is definitely an element intended to discourage copyright infringing behavior, otherwise it would be easier to ask forgiveness than seek permission. That is one element. The other is that the amount of actual damages will never be known. Partly because the evidence was destroyed (for whatever reason) but partly due to the nature of P2P.

If we assume she shared on a 1/1 ratio (which seems extremely low considering she allegedly left Kazaa up and running), she shared 24 songs, likely to 24 people. Those people might have shared the songs with 24 others and those with 24 others, With file sharing networks as large as they are, it is impossible to tell how many times they were passed around where Thomas could be considered a contributory infringer. These factor into the damages done but can't be calculated. Furthermore there is no way to know how many of those were missed sales.

These types of "impossible to determine" damages plague copyright law so statutory damages were created. They need to be high enough to definitely cover any actual damages, add a discouraging element and also pay the plaintiff back for time, energy and hardship incurred dealing with the infringement.

In the end, I agree the Thomas verdict was high. She got hit with it because juries have a lot of leeway to work within copyright law, which was designed to deal with a wide range of infringements, and the jury in her trial didn't like or believe her. I think it was an emotional verdict.

I can understand given her defense, but that doesn't justify the outcome.

In this case, there is an obvious difference between a fine intended to discourage, and damages intended to compensate for an actual loss. As it is impossible to meter the actual damages done through copying, statutory damages kicks in.

However – statutory damages is in the media, by politicians and everyone I speak to, regarded as a fine. She stole, therefore she must be punished. When I try to point out these are compensations for an actual loss, people get more fuzzy. If Jammie Thomas seeded at an 1/1 ratio, that means the record companies lost $24 – given that the downloaders were about to buy the CD but downloaded instead (loss incurred), and that noone first downloaded the song and then went out to buy it, go to a concert or buy a T-shirt (benefit accrued). For more on this, see the four kinds of filesharing as outlined by Lawrence Lessig in Free Culture.

In order for the RIAA associates to have actually lost $2 million, and a song cost $1 on iTunes and an MP3 is 5 mb in size, she would have had to have uploaded all the 24 songs 83.000 times, and every one of those can NOT have seeded anything back to anyone (straight download), all about to buy the song but didnt and none of them left any money through another business model.

This stuff is like Hitchhikers Guide Bistromathics – its a kind of math that dont belong on this planet!

In this case, there is an obvious difference between a fine intended to discourage, and damages intended to compensate for an actual loss. As it is impossible to meter the actual damages done through copying, statutory damages kicks in.

However – statutory damages is in the media, by politicians and everyone I speak to, regarded as a fine. She stole, therefore she must be punished. When I try to point out these are compensations for an actual loss, people get more fuzzy. If Jammie Thomas seeded at an 1/1 ratio, that means the record companies lost $24 – given that the downloaders were about to buy the CD but downloaded instead (loss incurred), and that noone first downloaded the song and then went out to buy it, go to a concert or buy a T-shirt (benefit accrued). For more on this, see the four kinds of filesharing as outlined by Lawrence Lessig in Free Culture.

In order for the RIAA associates to have actually lost $2 million, and a song cost $1 on iTunes and an MP3 is 5 mb in size, she would have had to have uploaded all the 24 songs 83.000 times, and every one of those can NOT have seeded anything back to anyone (straight download), all about to buy the song but didnt and none of them left any money through another business model.

This stuff is like Hitchhikers Guide Bistromathics – its a kind of math that dont belong on this planet!

File sharing, piracy, content theft, etc. are all misnomers to be certain. But on the flip side they all have understood meanings. Some would argue that the comparisons to property aren't as off-target as some might say, Ben Sheffner being on that list (http://copyrightsandcampaigns.blogspot.com/2009/08/patry-vs-sheffner-on-copyright-as.html) but I am of two minds on that one issue.

To be clear though, statutory damages are NOT actual damages. Actual damages can be awarded under copyright law so it is not an attempt to be "compensations for an actual loss". There is definitely an element intended to discourage copyright infringing behavior, otherwise it would be easier to ask forgiveness than seek permission. That is one element. The other is that the amount of actual damages will never be known. Partly because the evidence was destroyed (for whatever reason) but partly due to the nature of P2P.

If we assume she shared on a 1/1 ratio (which seems extremely low considering she allegedly left Kazaa up and running), she shared 24 songs, likely to 24 people. Those people might have shared the songs with 24 others and those with 24 others, With file sharing networks as large as they are, it is impossible to tell how many times they were passed around where Thomas could be considered a contributory infringer. These factor into the damages done but can't be calculated. Furthermore there is no way to know how many of those were missed sales.

These types of "impossible to determine" damages plague copyright law so statutory damages were created. They need to be high enough to definitely cover any actual damages, add a discouraging element and also pay the plaintiff back for time, energy and hardship incurred dealing with the infringement.

In the end, I agree the Thomas verdict was high. She got hit with it because juries have a lot of leeway to work within copyright law, which was designed to deal with a wide range of infringements, and the jury in her trial didn't like or believe her. I think it was an emotional verdict.

I can understand given her defense, but that doesn't justify the outcome.