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RIAA Litigation May Be Unconstitutional 281

Posted by timothy
from the what-about-ritchie-chaz-and-margot? dept.
dtjohnson writes "A Harvard law school professor has submitted arguments on behalf of Joel Tenenbaum in RIAA v. Tenenbaum in which Professor Charles Nesson claims that the underlying law that the RIAA uses is actually a criminal, rather than civil, statute and is therefore unconstitutional. According to this article, 'Nesson charges that the federal law is essentially a criminal statute in that it seeks to punish violators with minimum statutory penalties far in excess of actual damages. The market value of a song is 99 cents on iTunes; of seven songs, $6.93. Yet the statutory damages are a minimum of $750 per song, escalating to as much as $150,000 per song for infringement "committed willfully."' If the law is a criminal statute, Neeson then claims that it violates the 5th and 8th amendments and is therefore unconstitutional. Litigation will take a while but this may be the end for RIAA litigation, at least until they can persuade Congress to pass a new law."
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RIAA Litigation May Be Unconstitutional

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  • Light on details. (Score:5, Interesting)

    by BitterOak (537666) on Wednesday October 29, 2008 @05:17PM (#25561987)
    I read the article, but it is rather light on details. Does anyone know if there is any case law or statute which holds that civil penalties can be considered criminal by virtue of the amount of the penalty? The argument seems to be that because the statutory damages are so huge that by that very fact the law becomes criminal rather than civil. What precisely is the basis for that conclusion? Is there any precedent for that reasoning?
  • It Never Ends (Score:5, Interesting)

    by sexconker (1179573) on Wednesday October 29, 2008 @05:20PM (#25562005)

    How many times have I heard about a be-all end-all case where the RIAA/MPAA/etc has lost, been laughed by a judge, had a precedent set against them, etc.?

    They'll continue to sue.

    Nothing will stop them.

  • Re:Hmmmm (Score:5, Interesting)

    by ArhcAngel (247594) on Wednesday October 29, 2008 @05:22PM (#25562029)

    "I don't recall anything in the Constitution protecting an individual's right to" infringe copyright.

    There, fixed that for you.

  • No Attorney (Score:5, Interesting)

    by arizwebfoot (1228544) * on Wednesday October 29, 2008 @05:24PM (#25562057)
    I'm not an attorney, but somehow this doesn't seem like it's gonna fly. The law was not codified as criminal, and thusly lies the fatal flaw in TFA.
    Congress has many times passed laws which were punitive without being criminal. For example, the Fair Debt Collection Practices Act (FDCPA) has punitive statutory damages in it.

    I just don't think the argument will eventually hold much water, wish it held enough to float a battleship, but alas, I don't think so.
  • Ya don't say.. (Score:5, Interesting)

    by QuantumG (50515) * <qg@biodome.org> on Wednesday October 29, 2008 @05:31PM (#25562151) Homepage Journal

    Current copyright practice violates every amendment..

    1. [findlaw.com] Used to quash free speech.
    2. [findlaw.com] We need a violent overthrow of the RIAA.
    3. [findlaw.com] The Sony root kit is like billeting soldiers on their war on copying in my house.
    4. [findlaw.com] They have no respect for my privacy and all their searches are unreasonable.
    5. [findlaw.com] They'd like you to believe that doing normal things with their products makes you a criminal.
    6. [findlaw.com] There's no due process in civil cases.
    7. [findlaw.com] The right to a jury trial in a civil matter is pointless, seeing as the judge instructs the jury to uphold the law even though the law is stupid and everyone knows it.
    8. [findlaw.com] Oh, that's what the article is about, excessive stupidity.
    9. [findlaw.com] like, say, the right to use my copy machines to copy whatever the fuck I want.
    10. [findlaw.com] redundant much?
    11. [findlaw.com] The TRIPS agreement and the Berne Convention are examples.
    12. [findlaw.com] Lobbying undermines.
    13. [findlaw.com] Without freedom to copy, we're all slaves.
    14. [findlaw.com] Lobbying.
    15. [findlaw.com] Criminal copyright infringement convictions (wtf? When did that happen?) means you can't vote.
    16. [findlaw.com] No property tax for copyright?
    17. [findlaw.com] Lobbying.
    18. [findlaw.com] You have to be drunk to understand copyright law.
    19. [findlaw.com] umm... err.. Lobbying, yeah.
    20. [findlaw.com]Lobbying.
    21. [findlaw.com]See 18.
    22. [findlaw.com]Lobbying.
    23. [findlaw.com]Lobbying.
    24. [findlaw.com]Lobbying.
    25. [findlaw.com]Lobbying.
    26. [findlaw.com]Lobbying.
    27. [findlaw.com]Did I mention Lobbying?

  • The other side (Score:3, Interesting)

    by dracocat (554744) on Wednesday October 29, 2008 @05:33PM (#25562193)

    While I hope they succeed in eliminating this law for good, there is another side to this.

    I think that congress is within its rights to set specific damages to things that are hard to place a value on. The OP says that damages should be 99 cents per song. How many people did that person share the song with? Does an average user share the song 1000 times?

    I think another analogy would be that of the Do Not Call registry. There is a specifc dollar amount that you can claim as damages. This is because it is hard to place a value on the time and annoyance the average person was caused by the phone call. So they place a set amount on it.

    Again, hope they suceed, but it isn't as cut and dry as we would all like to think.

  • by MarkvW (1037596) on Wednesday October 29, 2008 @05:35PM (#25562219)

    I have had to deal with the civil/criminal distinction as it arises in cases involving contempt. Civil contempt must be remedial; if it is not remedial it is punitive; if it punitive, then the accused gets the full panoply of criminal due process.

    On the other hand, common-law punitive damages do not offend due process. But punitive damages are usually imposed by juries, based on individualized determinations, and limited by discretion. The copyright provisions are not individualized and provide for no discretion.

    Treble damages have also been held not to violate due process.

    This is a very interesting argument!

  • Re:The other side (Score:1, Interesting)

    by Anonymous Coward on Wednesday October 29, 2008 @05:42PM (#25562297)
    I believe Congress is only within their right to protect the CITIZENS and not CORPORATIONS. I see nothing in the Constitution that speaks of rights for corporations but I do see many things that speak of the rights of the people.
  • Re:No Attorney (Score:3, Interesting)

    by MarkvW (1037596) on Wednesday October 29, 2008 @05:54PM (#25562443)

    The labeling matters not a bit. The criminal/civil distinction turns entirely on matters of substance, not form. This is noncontroversial.

  • by azakem (924479) on Wednesday October 29, 2008 @06:00PM (#25562483)
    This is an interesting argument, but there are other statutes which impose minimum damages, and these have generally been upheld.

    However, given the size of the damages here and the funds of the average defendant, perhaps the Court will find Congress has overstepped its bounds. I wouldn't count on it though, if this were to somehow succeed at trial and percolate up to the Supreme Court, the "pro-business" members of the bench would likely get a majority for reversal.
  • by westlake (615356) on Wednesday October 29, 2008 @06:03PM (#25562521)
    The market value of a song is 99 cents on iTunes
    .

    But that song does not come with a license to redistribute.

    You cannot, without consequences, and as a charitable gesture, simply burn 10,000 copies and airdrop them onto a city park.

    Assume for the moment that a download could be tagged to its ultimate source - meaning you.

    Assume for the moment that traffic in that file could be monitored or estimated in a way that would be persuasive to a civil judge and jury.

    Where expert testimony is generally admissible and the burden of proof on the plaintiff is slight.

    The files you uploaded have been out there for months. Do you really, really want the damages to be assessed at 99 cents a track?

    As compensatory damages - which are generally unlimited?

  • by Anonymous Coward on Wednesday October 29, 2008 @06:13PM (#25562645)

    IANAL, and I hate what the RIAA has been up to, but this is stupid. How many legs does a dog have, if you call a tail a leg? Four! You can't simply call this law a criminal statute and make it so. It's civil.

    Besides, I can't take any of this seriously until NYCL comments.

  • Re:Light on details. (Score:4, Interesting)

    by absoluteflatness (913952) <absoluteflatness ... .com minus berry> on Wednesday October 29, 2008 @06:37PM (#25562911)

    Even though this tactic seems pretty unlikely to succeed, the issue that's being pointed out seems to be that the statutory damages are so high.

    Punitive damages can be sky-high, but I don't think that the RIAA generally seeks them.

  • by 91degrees (207121) on Wednesday October 29, 2008 @06:46PM (#25563019) Journal
    "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

    Sounds to me that this is an excessive fine and the amendment applies whether it's criminal or civil. What am I missing here?
  • Re:Light on details. (Score:3, Interesting)

    by taustin (171655) on Wednesday October 29, 2008 @06:48PM (#25563043) Homepage Journal

    I don't recall any details, but there is a SCOTUS ruling that civil forfeiture laws (in this case, seizing several hundred thousand dollars for violating import laws requiring the declaration of money) were, in fact, criminal penalties, and thus subject to the constitutional restrictions on excessive fines.

  • Re:in other news (Score:5, Interesting)

    by TeknoHog (164938) on Wednesday October 29, 2008 @07:08PM (#25563269) Homepage Journal
    The sky above the port was the color of television, tuned to a dead channel.
  • Yeah, I agree. (Score:4, Interesting)

    by RustinHWright (1304191) on Wednesday October 29, 2008 @08:12PM (#25563911) Homepage Journal
    What I can't understand is why it's taken this long for somebody high profile to say this. Or has it? Hasn't Lessig raised this point? And if not, why not? How about all those other legal folks who have been fighting this? Seems to that we're missing something here since everything in TFA seemed entirely obvious to me and everybody I talked about this with from the time that the legislation was proposed.
    What makes this news? Is is something new in his analysis? Doesn't look that way.
    Is it something about his having more of an ability to get it addressed? And if so, something more concrete that "he's a lawyer at Harvard" is needed.
    Is this case an unusually good one to make a stand on, and if so why?

    This is a fun chance for ranting and all but why should we care?
  • Re:Light on details. (Score:3, Interesting)

    by sumdumass (711423) on Thursday October 30, 2008 @04:50AM (#25566701) Journal

    Your right. And the big differences here are that the judge decides the punitive amount based on several things that is discovered during the trial. The current law allows the hugely punitive fines or damages from the get go and doesn't separate the two.

    I guess the distinction is that you can end up with the same results but damages need to be in line with the damages and anything punitive needs the full and complete oversight of a competent judge rather then being built into a right of the law. And when it is built into a right of the law, it becomes a process in which the law attempt to punish someone which makes it a criminal instead of civil case.

    It really makes sense when you think about it. When a law attempt to punish someone, it is a criminal matter. When they attempt to right a wrong, it is a civil matter. When a judge decides that someone wronged someone with a flagrant disregard for the law, he allows punitive damages separate from righting the wrong. And because the burden of proof is drastically different between criminal and civil cases, you can't convoluted them together.

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