RIAA Awarded $675,000 In Tenenbaum Trial 492
NewYorkCountryLawyer writes "The jury awarded the record company plaintiffs $675,000 in the Boston trial defended by Prof. Charles Nesson, SONY BMG Music Entertainment v. Tenenbaum. I was not surprised, since exactly none of the central issues ever even came up in this trial. The judge had instructed the jurors that Mr. Tenenbaum was liable, and that their only task was to come up with a verdict that was more than $22,500 and less than $4.5 million. According to the judge, her reason for doing so was that, when on the stand, the defendant was asked if he admitted liability, and he said 'yes.' The lawyers among you will know that that was a totally improper question, and that the Court should not have even allowed it, much less based her holding upon the answer to it."
Re:bankrupt then what? (Score:5, Informative)
What are the consequences for Mr. Tenenbaum? Can't get a credit card for a few years?
Few years? I had a secured credit card the day after my discharge and an unsecured one four months later. I'm now four years from my bankruptcy and have 50% of my annual salary in unsecured revolving tradelines (i.e: credit cards) and can get the same interest rates as anyone else.
Re:Why was it improper? (Score:5, Informative)
It's amazing what you can find when you RTFA. From NYCL's site:
[Ed. note. The judge's ruling is erroneous. The question : "are you admitting liability" is a legal question, not a factual question, which Mr. Tenenbaum was not qualified to answer. For the Court to base its decision on that is wrong. -R.B.]
Re:Why was it improper? (Score:5, Informative)
Fully Informed Jury Association [fija.org]
I am not a lawyer either, but given information at the above link, and the clear history of our legal system, I believe it is improper for a judge to instruct a jury to find one way or another. As someone else pointed out above: if that is proper, what is the point of having a jury in the first place?
Disingenuous summary (Score:5, Informative)
The lawyers among you will know that that was a totally improper question, and that the Court should not have even allowed it, much less based her holding upon the answer to it.
The linked article doesn't give a complete transcript of the questions and answers, so I can't speak to whether the question was 'totally improper,' but as Ray Beckerman (aka NewYorkCountryLawyer) should know, it was the job of Mr. Nesson, not the judge, to object to improper questions. Furthermore, Mr. Tenenbaum was almost certainly deposed prior to trial, and Mr. Nesson would know what questions were likely to come up.
Finally, the offending question is presumably "Are you admitting liability for all 30 sound recordings?" Under FRE 704(a) [cornell.edu], an opinion as to an ultimate issue to be decided by the trier of fact is admissible (with the exception given in FRE 704(b), which does not apply here).
Lay opinion evidence is limited by FRE 701, which requires that the opinion "(a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702." Crucially, the question was not "Are you liable?" it was "are you admitting liability?" The former might possibly be objectionable, the latter is almost certainly not. In any case, Mr. Nesson did not object and so the point is largely moot.
The only reasons to disregard Mr. Tenenbaum's admission would be if the judge believed he was either lying or mistaken. He had no reason to lie, and since the other evidence makes a strong case that he was in fact liable, his admission fits with that.
In any event, Mr. Nesson's strategy has always been to admit liability but argue that the damages are unconstitutional or otherwise impermissible. He has been very clear about this in his public discussion of this and related cases.
Finally, I'll just add that the right against self-incrimination applies only to criminal cases and has no application here.
Re:What is the point of jury trial? (Score:5, Informative)
Where you are getting confused is that a judge can eliminate issues for a jury if no reasonable juror could come to anything but one conclusion based on the facts. That has nothing to do with consultation outside the jury or with it. To put this into a car analogy, suppose you rear-end someone who was legally stopped a stop light. During trial you admit that you were texting with one hand, sipping a big gulp with the other, hollering at a friend in the back seat, and not looking at the road at all. No reasonable juror would think that you were NOT negligent, thus a Judge could summarily decide that you were negligent in the accident. This gives the jury fewer questions and helps speed along the process of coming to a verdict, for example, on the issue of damages.
Re:What is the point of jury trial? (Score:5, Informative)
No, its not. In both a criminal trial and a civil trial there are pleadings, and they are distinct from testimony given at trial. What he did was answer an improper question asked of him as a witness (since the question was one of law not of fact) in a way which was harmful, which is not at all the same as pleading guilty in a criminal case.
Re:bankrupt then what? (Score:5, Informative)
Go fuck yourself and your condescending superior attitude. My bankruptcy was mainly incurred by medical problems. You ever need to have emergency surgery without medical insurance? Give it a try sometime and let me know how it works out for you.
I attempted to settle my debts for years before I filed bankruptcy only to find that while I was unable to pay them they had increased nearly 400% from the amount I originally borrowed. It's amazing how quickly debt can pile up when they your APR goes up to 34.99% and they keep piling on late/over-the-limit/because-we-can fees every month.
But that's not the end of it. Once you are unable to make payments to your original creditors they eventually give up and sell your debt to a junk debt buyer. This entity buys your debt for pennies on the dollar and then attempts to collect 200-400% of the original amount owed. They keep 100% of what they collect. The people from whom you actually borrowed the money don't see a dime.
I have no regrets about filing bankruptcy. It wasn't a hard choice to pick between paying back people I never borrowed money from and moving on with my life.
Re:Why was it improper? (Score:4, Informative)
The real issues is that witnesses (even expert witnesses, and even if they are lawyers) in a case testify only to matters of fact (there are times when someone's opinion, particularly a past opinion, on a matter of law may be a relevant fact, whether or not they are a lawyer, but that's different than testifying on the point of law itself.)
Re:What is the point of jury trial? (Score:4, Informative)
What he said [arstechnica.com]
Re:bankrupt then what? (Score:3, Informative)
So is your plan to file bankruptcy again? I hope you have a strategy for dealing with those credit card bills because that's a bad situation.
Umm, tradeline != debt. My combined credit limit on all (3) of my credit cards is about 50% of my annual salary. My actual debt non-existent as I don't carry a balance on my credit cards and paid off my car/student loans a long time ago.
Re:Yes what people need to remember (Score:5, Informative)
Not much, assuming you have paid your bills in a timely manner and maintain a low amount of debt. Why would a creditor want to ditch someone with an 8 year history of timely payments?
Your credit score can actually drop a little bit at the 10 year mark when the bankruptcy comes off (7 years for Chapter 13s) but that's a side effect of the way the score model works. Fair Issac (the FICO people) has "scorecards" where they score you against similar people. In a group of people that have filed bankruptcy you might look pretty good. Once that bankruptcy goes away then you are scored against people who haven't filed and may look better or worse when compared against them.
Depends on how you did in the intervening years (Score:4, Informative)
At that point, the bankruptcy falls off your credit report. So more or less what they look at is your history during that time. All inactive accounts slide off your report after an amount of time, and all bad information. You can look it up as to what goes off when. However if over the 8 years you maintained proper credit usage, you'd have good credit. If you dug yourself in to a deep hole, you'd have crap credit again.
Credit isn't a permanent state. It is intended to be a risk assessment off of your usage history. However it only goes back so far. IF you defaulted on a credit card when you were 20, nobody will know at 40. It isn't held against you for life.
Re:bankrupt then what? (Score:5, Informative)
Re:bankrupt then what? (Score:5, Informative)
FUD. FUD FUD FUD. Speaking as someone living in America now, having lived most of my life in Australia under nationalized health, and the UK under same, and making my living from the health insurance industry here, the system here is a travesty.
You do NOT get fined for being overweight. You don't get fined for being unhealthy. "I'm not going to let the government decide my health care! Instead, I'm going to praise the land of the free because my health insurer chooses to deny me cancer coverage because I forgot to mention I had appendicitis 20 years ago." "Instead of a government bureaucrat (and very rare is this the case), I'll happily let a HMO accountant with no medical training whatsoever decide what medical coverage I am entitled to!"
Instead, I get to pay $500 a month for health coverage, plus high deductibles, high out of pocket expenses, have no coverage for the things my wife and I desire. In Australia I paid 1% of my income as a tax, or 1.5% when my income hit 45,000 a year. Alternatively, I could opt in for private coverage, and pay as much or as little as I liked, and not have that tax.
"But I don't want to pay because you're unhealthy" - right, because when someone goes into an ER now because they have a cold, and walk out without paying the bill, who do you think eats the cost? Hint: an overnight stay in hospital doesn't really cost $10,000+. For bonus points: pay cash at your chiro for a $45/hour session. Pay through insurance and have them bill $150 for the same session. Think your insurance carrier is making that much on your premiums being invested that they're covering their costs, plus this? Nope, you're paying.
America is the ONLY country in the first world that doesn't have nationalized health care. Why is it you mainly hear about all this supposed dissatisfaction all over the world with their supposedly horrible health care from US news, not the BBC, or AP, or Reuters, or any other news agency actually in these countries? Instead, we pay twice as much per capita for health care than other first world countries, and have substantially worse than average first world metrics on everything from infant mortality, to life expectancy, to diabetes, to heart disease, to cancer. Yet for all this, there are people who continue to trumpet that everything is A-OK here, and that it's the best way to be.
Jobs would be envious of this RDF.
Re:bankrupt then what? (Score:4, Informative)
Sorry, but I'm sick of the Government trying to protect me from myself.
So am I. Luckily here in Australia our politicians are people too; So while they might get riled up about porn on the internet, they're not going to tax anyone any time soon just for being fat (hint: maybe google image some of our politicians?)
Could you opt out of coverage entirely? If not then the Government has taken away your freedom of choice at gunpoint.
No need for hyperbole, hardly anything is done here at gunpoint.
I'm sorry but there isn't any argument you can make that's going to convince me that we need a Government-run health care system. I don't like Government. Government exists for one reason: To deprive individuals of the freedom of choice.
And that's exactly why a slight smile appears on my face every time I have the pleasure of reading Americans discuss a national healthcare system. Your government might exist purely to deprive its citizens of freedoms, our governments exist for very different reasons. And the freedom to not have a healthcare system is hardly a freedom, but then again I don't miss the freedoms to drive without a seatbelt or to off myself.
Re:Yes what people need to remember (Score:4, Informative)
Re:America's last great industry... (Score:3, Informative)
At that time, copyright did not specifically cover recordings of any kind... whether rolls for player pianos, or the new Edison recordings.
The writers of music (the aged John Philip Sousa made sure to make a lot of showings of his famous face on this side), were arguing that they should receive royalties for these "recordings". The "recording industry" (makers of player piano rolls and Edison-type recordings), argued that the writers already made plenty of money from royalties on their sheet music, recordings did not cost the writers anything, and that the recordings, in effect, amounted to "free advertising" for said sheet music... and indeed, once a recording became popular, sales of the sheet music did go up, often dramatically.
In effect, the makers of recorded music were making EXACTLY the same arguments that downloaders of music are making today. There is not a whit of difference, except that back then, their motive was profit, and you cannot fairly say that about the vast majority of downloaders. But of course, now that it is mainly the recording industry (generally more even than the artists) that are on the profit-making end of things, they have turned 180 degrees and are suing their more-modern counterparts for shitloads of money. Just as Sony -- winners of the "Betamax decision" in court -- now take exactly the opposite stand now they they are content providers.
They are a bunch of f**ing greedy hypocrites, and I have no sympathy whatsoever.
Re:Why was it improper? (Score:3, Informative)
The lawyers among you will know that that was a totally improper question, and that the Court should not have even allowed it, much less based her holding upon the answer to it
For those of us who aren't lawyers, why was it improper?
It was a legal question, not a fact question.
Re:Yes what people need to remember (Score:5, Informative)
Judgments can be executed against personal property in most (probably all) American jurisdictions.
Most personal property up to a certain dollar value is exempt from seizure. The remaining personal property generally isn't worth seizing. Yeah, they can theoretically come into your house and seize your couch and second TV. Tell me, what does a used TV generally fetch at auction? Hint: Not enough to make it worth their while.
Having a substantial portion of your wages garnished for 20 years is also hardly a laughing matter.
Actually wage garnishment is a joke in most instances. They can't garnish your wages if they don't know where you work. You aren't obligated to help them find out where you work. That's problem number one for them. Problem number two is that a civil judgment is generally last in the priority list for wage garnishment. Child support, alimony and taxes come ahead of it -- and if they exceed a certain percentage of your income (garnishments are generally limited to 10-15% depending on state) then there's nothing left for the civil judgment to garnish.
There's also at least four states that don't allow civil wage garnishment. Texas, North Carolina, South Carolina and Pennsylvania. Yet other states have extremely broad exemptions in other areas. Flordia for example has an unlimited homestead exemption. You could own a ten million dollar house and your creditors can't touch it. Why do you think OJ Simpson moved there after he lost the civil suit?
The bottom line is that if you know what you are doing you can avoid paying a civil judgment indefinitely. They aren't worth the paper they are printed on.
Re:bankrupt then what? (Score:3, Informative)
I was, as an anecdote, admitted to an ER in Australia, after showing up at 3am on a Saturday morning. Despite the waiting area being full, I was seen by a doctor within an hour and a half with my issue (which was a severe bout of seronegative arthritis in my foot. I was given analgesics and seen by the ER residents, at 7am I was moved to a ward, and at 9am the consultant rheumatologist was examining me. Over the course of nine days, I had X-rays, an MRI, aspirations, steroids, etc, and physical therapy. Upon discharge I was given painkillers, NSAIDs and steroids, and a bill for $18 for TV rental.
In Australia, an MBBS (Bachelor of Medicine and Surgery) is a five year undergrad degree.
Great that you pointed out the 'out of network' costs. To me this is a cartel in action, preferential bundling of a customer base for medical care is boredline unethical. Insurance, as practised in the US, has very little to do with the "pure" principle of evaluating a risk and offering insurance against that risk. If you have a condition, change plans (and there's no material difference, both plans cover that condition), there should be no 'pre-existing condition' - the populace's propensity for that condition has not changed, but yet the insurer is allowed to deny you coverage. It's this bastardized model of amortized and aggregated payment plans for healthcare.
Medical equipment is another interesting area. Doctors are being advised (by who?) to invest in diagnostics. MRI scanners, and the like. $600,000 for an MRI machine, that can run diagnostics that can be billed at around $1800 for an hour procedure. Nice ROI there... Somewhat unsurprisingly, doctors who have such an investment are 3 1/2 times more likely to refer you for an MRI.
Re:Why was it improper? (Score:3, Informative)
"It is presumed, that juries are the best judges of facts; it is, on the other hand, presumed that courts are the best judges of law. But still both objects are within your power of decision... you have a right to take it upon yourselves to judge of both, and to determine the law as well as the fact in controversy". -- Chief U.S. Justice John Jay, State of Georgia v. Brailsford, 1794
Lest you think that is an isolated case, try these:
"[the jury] has an unreviewable and irreversible power... to acquit in disregard of the instructions on the law given by the trial judge." -- U.S. Court of Appeals, US vs Dougherty, 473 F 2d 1113, 1139 (1972)
"We recognize, as appellants urge, the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge, and contrary to the evidence. This is a power that must exist as long as we adhere to the general verdict in criminal cases, for the courts cannot search the minds of the jurors to find the basis upon which they judge. If the jury feels that the law under which the defendant is accused, is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic of passion, the jury has the power to acquit, and the courts must abide by that decision." -- U.S. Court of Appeals, District of Maryland, US vs Moylan, 417 F 2d 1002, 1006 (1969)
Most of this is not a quote, but it is clear in the decision: a trial judge absolutely cannot direct a verdict in favor of the State or set aside a jury's verdict of not guilty, "no matter how overwhelming the evidence." Any violation of this rule is automatically reversible error without regard to the evidence of guilt. -- Sullivan v. Louisiana, 508 U.S. 275, 277, (1993)
A jury's "discretionary exercises of leniency are final and unreviewable." -- McCleskey v. Kemp, 481 U.S. 279, 311 (1987)
I could keep on posting citations all day, if I wished to spend the time.
The fault is not mine. The problem here is not that it is a "fanatic viewpoint", but rather that this is Slashdot, and readers (perhaps including you?) tend to dispute anything that does not "sound right", and with very few exceptions fail to bother to do their own research in order to actually verify or refute anything.