"The blogosphere is humming Friday with reports a federal judge is refusing to require the nation's first peer-to-peer admin convicted by a jury of criminal copyright infringement to pay tens of thousands of dollars in restitution to the Recording Industry Association of America.

As a public service, we thought it was paramount to point out that the ruling is unrelated to the RIAA's file sharing litigation campaign that has ensnared 30,000 individuals and is allegedly winding down.

The decision still means that, under the Copyright Act, individual file sharers sued by the RIAA face up to $150,000 in damages for each purloined music track and a minimum of $750.

The case making the rounds on the blogosphere Friday is about a federal judge taking exception to the RIAA's position that each pilfered download in a criminal copyright prosecution amounts to a monetary loss equal to the retail cost of the download.

"Although it is true that someone who copies a digital version of a sound recording has little incentive to purchase the recording though legitimate means, it does not necessarily follow that the downloader would have made a legitimate purchase if the recording had not been available for free," U.S. District Judge James Jones of Virginia ruled (.pdf) in denying the RIAA's motion to force convicted Elite Torrents admin Daniel Dove to pay tens of thousands of dollars in restitution.

It's a position the courts often recognized when it comes to restitution for software as well.

In September, Judge Jones sent Dove to the slammer for 18 months � probably restitution enough for running a site that allowed thousands of users to trade copyrighted software, music and pre-release movies.

So let's be clear. Dove was convicted as a criminal copyright offender. The RIAA's litigation amounts to civil lawsuits, where the only thing at stake is monetary damages, not civil liberties.

Remember, a federal jury ordered Jammie Thomas to pay $22,000 for each of the 24 songs she was found liable of infringing in the nation's only RIAA file sharing case to go to trial. A juror said some jurors wanted to ding her the maximum $150,000 per track when they were deliberating the civil trial.

And judges appear unwilling to accept arguments that the Copyright Act's damages provision is unconstitutionally excessive.

"The factors that go into the calculation of restitution are different than the ones that go into the calculation of statutory damages in civil cases," said Fred von Lohmann, a staff attorney with the Electronic Frontier Foundation.

There are three ways one might become a U.S. criminal copyright offender � even though the federal government rarely prosecutes such criminal offenses.

A criminal copyright offender is one who is pirating for commercial purposes; one who distributes pre-release material, or somebody who distributes more than $1,000 worth of copyrighted works over a 180-day period without the copyright holder's permission, von Lohmann said."

Source: Wired

Since no copyrighted files are actually shared on torrent sites, how did they get away with jailing him for copyright offences?

Likely due to "vicarious infringement" or knowingly harboring infringing material for data transfer.

"peer-to-peer admin"

There has to be a profit angle in there somewhere. That's what makes it criminal.

What I see as interesting is the article's attempt to impose an odd perspective.

The judge says that a download does not equate with "a monetary loss equal to the retail cost of the download." The article is going, "Yeah, but that was a criminal case. The RIAA files civil cases."

It seems to me that the real point is that the judge was willing to send this guy to the slammer for a year and a half, but looked at the RIAA's "damages" and said, "What is this? A joke?"

They can do that in civil court, too.

"Since no copyrighted files are actually shared on torrent sites, how did they get away with jailing him for copyright offences?"

Good question. Unfortunatly, the judge and jurors in this case were clueless about what a torrent file is, and what it is not.

Big surprise right? People in a position of power not having the first clue over what it is they are ruling over.

Essentially a torrent site is like a search engine. It doesn't contain any actual data of the files. Only pointers to where the data could be acquired.

It's an important disctiction to anyone with an IQ say outside the 2 digit range.

Alas, the RIAA prays on the age and ignorance of those in power. They bribe.. er, pay well, bribe (cough) well too

"There has to be a profit angle in there somewhere. That's what makes it criminal."

How can it be criminal? Elitetorrents didn't host any infringing content. They made money the same way google does. Via advertisers.

" How can it be criminal? Elitetorrents didn't host any infringing content. They made money the same way google does. Via advertisers. "

Yup, it always escapes notice that the same
torrents can be found with a simple Google
search.

No one sues Google though.

Strange.

( not really )