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."
someone just (Score:3, Insightful)
bomb the damn HQ of the riaa already, where are the terrorists when you need them? fuck them
What is the point of jury trial? (Score:4, Insightful)
If the judge gets to decide the verdict (unless it's a not guilty verdict in a criminal case)? Why not let the judge consult with whomever he/she wants rather than the 12 jurors in this case? If jury trials are not necessary in civil cases, mandate judge trials. At least outrageous fines will become rare. But don't create a farce hidden by an appearance of a right to a jury trial.
Why was it improper? (Score:4, Insightful)
For those of us who aren't lawyers, why was it improper?
Re:bankrupt then what? (Score:5, Insightful)
I can't help but think there's some strategic reason for his actions that will become clearer upon appeal.
I've never heard stupidity described as strategic. The kid relies on a bunch of law students to draft up a dubious defense relying on fair use, then admits to committing the action that the Plaintiff alleges caused them a financial loss. I don't think I would approach a civil action in the same manner......
Re:someone just (Score:3, Insightful)
where are the terrorists when you need them?
Representing Plaintiffs and Defendants, of course!
Re:Why was it improper? (Score:5, Insightful)
IANAL, but I'm guessing that "liability" is a legal term, so if you ask a non-lawyer a legal question (do you admit liability), then the answer is meaningless. Think of it as hearsay for experts: if you don't know about a topic, you shouldn't be allowed to comment on the record on that topic. Does the guy understand the legal ramifications of what liability means? I don't.
Now, I must say that I'm not impressed with his defense. Anyone can comment on who the defense lawyer was and whether they did a good job? It just doesn't sound great to admit on the stand to being fully, completely guilty. Criminals tend to get away with a lot of stuff, but not this guy.
Re:What is the point of jury trial? (Score:4, Insightful)
He had a jury trial, he also admitted to doing what he was accused of doing. In a criminal trial that's pleading guilty. Why would they waste time at that point arguing over a point that has already been conceded.
"Your honor, I did it! I admit it."
"That's for a jury to decide son..."
Re:What is the point of jury trial? (Score:5, Insightful)
The judge's role is to decide issues of law, and the jurors' duty is to decide issues of fact.
In this case, both sides agreed that he violated copyright and that he was liable for it. The only issue that then remained was whether he did it "willfully" or not. The jury got to determine this, which determined what his liability was.
He basically walked into court and said, Yes, everything they're saying is true. What sort of result were you expecting?
Re:Yes what people need to remember (Score:3, Insightful)
Interesting... I wonder what happens as you approach the 8 year mark... when you can file for bankruptcy again.
Re:proportionality (Score:3, Insightful)
Kinda puts the $1.9M Thomas-Harris has to cough up in a strange perspective. There seems to be no rhyme or reason yet to how these get awarded.
Re:someone just (Score:3, Insightful)
Dont you know, terrorists never existed in the first place, its just a scam to scare people.
I am still in favor of bombing the RIAA though.
Here's the best part of the Ars article... (Score:3, Insightful)
Moral of the story: Just because some crazy-ass professor has "Harvard" next to his name does not mean he is going to magically get you off. Hell, from the looks of this case this Nesson guy should probably be brought up on sanctions for trying to turn this trial into a circus for his own fantasy-version of fair use. An attorney representing a client is supposed to act in the client's best interest, and not in the best-interest of his political cause. From what I've seen of this Nesson guy, his argument that P2P of complete copyrighted works constitutes "fair use" is completely ridiculous.. just see the four factors reiterated in Acuff-Rose case: There's no transformative use at all, these are all commercial works not some political diatribe, and the guy was distributing complete copyright works online. About his only defense is that he wasn't charging for the works, but that factor alone is never going to win. Oh, I'm sure this new "fair use" theory is popular with other faculty at Harvard and in some bizzaro academic enclaves, but in the real world it was a great way to get his client screwed over. Not that Nesson cares, it will just make for publishing fodder he can push out to a hapless law review that's more wowed by his "Harvard" credentials than by his complete lack of legal reasoning.
Oh, and pending my passage of the bar exam I finished two days ago, yes I will be a lawyer. I also went to a school with a much better copyright curriculum than whatever these jokers at Harvard are pushing.
Re:Why was it improper? (Score:4, Insightful)
For those of us who aren't lawyers, why was it improper?
It wasn't improper. FTFA, Tenenbaum admitted his liability during direct examination from the RIAA's attorney. This wasn't a criminal trial, it was civil, and he testified to his own liability. When you admit to the elements of the cause of action, the only thing left is damages. End of story. What a dumbass. I mean, what the f--- was the jury supposed to do? Reward him for admitting under oath that, earlier, he lied under oath and lied on his discovery responses? Please. Juries HAMMER people who get caught lying. There is no more GOTCHA litigation in civil trials in the U.S.A. You're supposed to tell the truth to discovery questions, even if the answers hurt your case. If you don't tell the truth you get hammered. If your lawyer lets you get away with it, he can lose his meal ticket. It's that simple. He lied, and he got popped for it.
On the bright side, at least he can to ditch the "superstar" legal team for someone out of the "bankruptcy attorneys" section in the yellow pages. Hopefully that case will go more smoothly.
Re:Disingenuous summary (Score:5, Insightful)
All excellent points. One other thing is that if the defendant's counsel (Nesson or otherwise) never objected to that question and did not properly preserve the objection for appeal, it might not be an appealable issue even if the question was improper.
Re:bankrupt then what? (Score:4, Insightful)
Umm, who the hell would know what a "tradeline" is? Just say credit limit; problem solved.
No reason for an "Umm."
Re:bankrupt then what? (Score:4, Insightful)
Then I think you missed one:
I see no reason that file sharing would not easily meet that criteria, particularly if you are so anti-corporation that you try to claim a fair use defense because you are only distributing fragments of a file....
Re:America's last great industry... (Score:4, Insightful)
Copyright was never intended to give the copyright owner complete and full rights as though it were a piece of tangible property. The intent of copyright was to give the holder temporary rights to an original work, in order to give artists, writers, and other creators incentive to create... as opposed to simply letting all original works automatically be in the public domain. This incentive to create was (as is clearly stated in the law) intended to benefit the public, because after that temporary period was up, the work reverted to the public domain.
The period of copyright was originally much shorter: about the same as a patent... and if it is reasonable for a patent, it is also reasonable for copyright, for exactly the same reasons: it allows the creator to make money, while also benefiting the public.
The period is longer now because copyright holders (mainly large corporations) lobbied Congress to make it so, in order to profit from it more. It is now up to the life of the creator, plus 50 or 70 years or so... I forget exactly. Now, tell me: how does that benefit the public (the whole original purpose of copyrights)? Someone can write a book, and someone who was born the same year might never live to see it in the public domain! That does not fit very well into my definition of "temporary"!
I should also point out that letting original works and inventions automatically be in the public domain from the beginning has been tried in other countries, and guess what? You end up with a society that on the whole does not create, and does not innovate. (Think, "Soviet Union" during its heyday.)
The desire to work for one's own gain is powerful.
On the other hand, when works never (or almost never) revert to public domain, then you end up with a stratified society, in which the public does not benefit from creativity and innovation... exactly the opposite of what copyright law was intended to establish.
Re:Is this the year of clowns? (Score:3, Insightful)
That's the problem.
Everyone uses the "I have a family to support so I can't afford to stand to my principles" idea.
That's why nothing good ever happens.
I don't have a family yet, if ever, so I can't say what I'd do in this situation though.
To go Orellian(sp) I am thinking that the people, are the proles?, are doing tasks to help Big Brother is that they have families to support so that need a job.
The family takes presedence(sp) over the bad job.
Re:Is this the year of clowns? (Score:2, Insightful)
Firstly, it more and more appears, that who ever has the most money can buy the verdict they want, secondly, everybody, up to and including the Judge herself, seem to be ignoring the law as it is written and making it up as they go along.
Finally, damages in the million dollar range when the actual loss in considerably less than $100, who needs to work and actually produce things when you can sue people?
And this is for something I'm guessing maybe 1 in 5 of the American population have done - maybe the simple solution would for everyone in the USA just to declare bankruptcy now and give all their money to the lawers, it would save a lot of time and tedious court cases.
Re:bankrupt then what? (Score:5, Insightful)
Re:Yes what people need to remember (Score:2, Insightful)
- Ignore the summons to court.
Unfortunately, that's a crime even if you didn't already commit one.
Re:bankrupt then what? (Score:5, Insightful)
Hey buddy, what do you call it when my premiums go up because *you* decided you could go without insurance?
It shifts the costs to everyone else. Is that fair? Is that the conservative way? Don't pay your fair share, and then when you get sick, screw your creditor (the hospital) and pass the costs along to the rest of society. Real nice.
The system is actually more efficient if the government administrates that. At least I will have the peace of mind that, along the way, if you made enough to pay in, you did, because you had to pay tax.
Re:bankrupt then what? (Score:5, Insightful)
For a pretty awful example, and one that scared me as I'm self-employed and buy my own insurance, many people in my situation get denied coverage based on some ridiculously technical reading of their answers to the questions asked when you sign up for coverage. For example, there is an egregious example of a woman whose policy was canceled when she sought authorization for treatment for virulent type of breast cancer. The reason? She forgot to mention she had been treated for acne, her doctor misrecorded her condition, and even after the doctor called Blue Cross to clear up the matter, they wouldn't budge.
So we have a private insurance industry that will take your money and provide nothing in return. Even at the horrible DMV, you will eventually get your license, and they certainly don't try to murder you on a technicality. The notion that the free market is doing a good job at healthcare is simply not well founded in reality, and in fact it is doing SO badly, I think even the government would struggle to fail as epically as the private insurance industry.
In the end, if I can get the same crappy coverage I have now, for less cost and without the worry that I forgot to say I had the measles when I was 6 thus causing my entire policy to be canceled as a result (this is just robbery of premiums), I'd go for it. I just don't expect Congress to actually deliver something like that. They'll just force me to get robbed.
Re:bankrupt then what? (Score:3, Insightful)
And if you were living in your dumb-ass libertarian paradise, you'd be in debtors prison now.
Re:bankrupt then what? (Score:3, Insightful)
It shifts the costs to everyone else. Is that fair? Is that the conservative way? Don't pay your fair share, and then when you get sick, screw your creditor (the hospital) and pass the costs along to the rest of society. Real nice.
No, the Conservative way would be for the hospital to have the choice to refuse to treat you if you can't pay. No business should be forced to service a non-paying customer. I would have no problem with this.
Hey buddy, what do you call it when my premiums go up because *you* decided you could go without insurance?
So are you also going to tell me what I can eat (no big macs I presume?) and what recreational chemicals I can enjoy (no nicotine or booze?) because those can increase your costs as well? What about hobbies? Going to tell me that I can't engage in skydiving or bungee jumping because of the increased risk of injury? Where does it end?
Re:bankrupt then what? (Score:3, Insightful)
>>>Using the phrase "merely downloading" is dangerously misleading, as he was not merely downloading them.
I notice you failed to explain what else he was doing, such that you think he deserves a life sentence. Care to elaborate?
Re:bankrupt then what? (Score:1, Insightful)
Our healthcare may not be nationalized but it is NOT free market. There are two huge distorting factors.
1) Health insurance is an untaxed benefit if provided by the employer. It IS taxed if purchased by an individual. Employers provide healthcare as a benefit when they are able. Many of those without employer provided health coverage go without. This distortion creates a system where the consumer is insulated from the price of their individual healthcare decisions. For most with insurance they just care about the premium, co-pay, and deductible but NOT the actual cost of treatment. Why? They aren't paying for it (as an individual).
2) Distortion number 2 is the real kicker... Medicare/Medicaid. Uncle Sam is offering tens of trillions of dollars of health care [dallasfed.org] in the coming decades. The beneficiaries of this largesse have no personal vested interest in controlling the cost of care. The providers have a MASSIVE (I don't think overstatement is possible when talking about tens of trillions) incentive to capture as big a slice of the Medicare/Medicaid pie as possible. How? Charge more and provide less.
The United States might be a standout in offering non-nationalized health care. However, the outrageous cost and sub-standard care are already covered with gov't's fingerprints. I wonder what would happen to costs and quality of care if patients actually paid for their own health care?
Re:What is the point of jury trial? (Score:4, Insightful)
>>> the fact is that at least 3 juries have listened to these cases and felt like the defendants ought to pay a substantial fine
Actually it's only 2. In this current case the *judge* declared the guy guilty, not the jury.
Also 2 juries declaring guilt doesn't mean much. Statistically out of every 100 trials, you'll only get 2.5 juries to nullify the conviction and release the defendent. Of course in more egregious cases like the Prohibition-era cases, that number will rise as high as 40 nullifications per hundred. We'll just have to wait until we hit 100 RIAA trials to see how "the people" feel about this law.
I'm hoping for 10%.
Re:What is the point of jury trial? (Score:4, Insightful)
That's like saying there's no right to vote. It's just an accidental by-product of having a representative legislature.
Actually in both cases, the jury and the vote, it's about the principle that all power comes from the citizens, and these methods provide a "check and balance" to rein-in an over-reaching government.
Re:bankrupt then what? (Score:3, Insightful)
You do NOT get fined for being overweight. You don't get fined for being unhealthy.
However you DO get fined for not buying government approved coverage. Massachusetts, the only US state to try socialized medicine does exactly that. They've also discovered that the system doesn't work - i.e. cost overruns for the program have been enormous since day one.
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?
http://news.bbc.co.uk/2/hi/health/249938.stm [bbc.co.uk]
http://news.bbc.co.uk/2/hi/programmes/politics_show/7103648.stm [bbc.co.uk]
http://news.bbc.co.uk/2/hi/health/8091427.stm [bbc.co.uk]
http://news.bbc.co.uk/2/hi/health/7579422.stm [bbc.co.uk]
http://news.bbc.co.uk/2/hi/health/7030304.stm [bbc.co.uk]
http://news.bbc.co.uk/2/hi/health/1523402.stm [bbc.co.uk]
http://news.bbc.co.uk/2/hi/uk_news/wales/7699582.stm [bbc.co.uk]
http://news.bbc.co.uk/2/hi/uk_news/wales/mid_/7709342.stm [bbc.co.uk]
The problem with health coverage in the US is not a lack of nationalization, it is a lack of putting the responsibility for the cost of the procedures with person receiving the procedures. Thus doctors are encouraged to over-test and prescribe the latest, most expensive drugs since "its free." Nationalization is only going to further divorce that connection and the only logical result is going to be rationing - rationing already happens now with a lot of the private coverage, its only going to get more bureaucratic when the government steps in.
We need to be going in the exact opposite direction - divorce health coverage from employers, open up the market so that people have a broader choice in the coverage they purchase and let the patients take the responsibility for how their healthcare dollars are spent. When there is a direct and immediate correlation between what tests, drugs and procedures a patient receives and what the patient has to pay, then you'll see see costs come down and satisfaction go up. See your own example of how paying cash out of your pocket is so much less costly than using "somebody else's money" of insurance.
Misery Machine (Score:4, Insightful)
Let's cut straight to the chase: I get the impression that Americans are rabid individualists. They do not want a socialized health system tell them that they are not worth saving because others have higher priorities. They believe that an individual relying completely on themselves is responsible for their own well being. Socialized health care on the other hand understands that humanity has a dignity and if you are unjustly disadvantaged then you can still get treatment according to fairness with everyone else. Myself in particular: I have schizophrenia. I take $20CDN worth of medication for it every day. I cannot afford this medicine. My government subsidizes me based on individual need. If I was in the US I'd be living on the street talking to the birds. So, the conundrum for the US style of care is: what if you are incapable of caring for your self?
Re:bankrupt then what? (Score:3, Insightful)
Re:America's last great industry... (Score:3, Insightful)
Gah. I hate it when I give a reasoned reply to somebody, then they get modded down so it looks like I am talking to air.
I guess the lesson there is: "Don't feed the trolls."
OR, just quote the relevant parts of the post you are responding to.
I should also point out that letting original works and inventions automatically be in the public domain from the beginning has been tried in other countries, and guess what? You end up with a society that on the whole does not create, and does not innovate. (Think, "Soviet Union" during its heyday.)
They also didn't have the internet - a nearly frictionless vehicle for distribution of original works and money, although we could stand lose even more friction on the money part.
Re:bankrupt then what? (Score:2, Insightful)
JESUS CHRIST, can we get back to discussing the FUCKING RIAA ARTICLE?
Re:bankrupt then what? (Score:5, Insightful)
America is the ONLY country in the first world that doesn't have nationalized health care.
The funny thing is, we DO have nationalized health care. 66% of the cost of health care in this country is paid for by medicaid, medicare, or federal government health care plans.
I DO NOT understand why people are so against nationalized health care here. It's already here. They play it up to be some sort of slippery slope, a plague that will infest every part of our lives and culture. Let me clue you in: the system is ALREADY IN PLACE, and the only people who benefit from the way things are now are the insurance and pharmaceutical companies.
~X
Re:bankrupt then what? (Score:2, Insightful)
exponential punishment (Score:2, Insightful)
Is it just a coincidence that 675,000 == 22,500 * 30 == 750 * 30 * 30? or was it a mistake, or was it intentional?
If we assume that the judge told them that the minimum penalty per song was $750, and there were 30 songs infringed, bringing us to minimum damages of $22,500... what happened next:
a) they coincidentally decided to punish him by awarding 30x the minimum judgment -- a nice round number (bigger than 10 but less than 50)
b) or they misunderstood the judge's instructions -- they thought that $22,500 was the minimum per song, and so actually awarded the minimum they thought possible -- 30 * 22,500 = $675,000
c) or lastly, they intentionally chose that since he pirated n=30 songs, they would punish him at n^2 * 750... In other words, they chose to punish him exponentially in relation to his crime(s).
As far as I see it, if it's a) that seems a rather arbitrary number, and arbitrarily wide range of punishment for a simple act which harms no one. If it was b) then this sounds like some kind of mistrial or jury reboot.. and if it was c) well... exponential damages sounds like cruel and unusual punishment to me. How does $675,000 fit the crime?
Lessons Learned (Score:3, Insightful)
(a) If you get caught by the RIAA, settle quick.
(b) Don't be a dummy and keep ripping copyrighted material after you're caught.
(c) If you're too stupid to settle quick, DON'T engage show--off lawyers who won't try to settle your case for the lowest possible amount. Engage lawyers tuned in with a sense of reality.
(d) Talk strategy with a bankruptcy lawyer very early on in the process.
(e) Don't listen to any of the whackos who keep railing about how (boo-hoo) unfair the copyright law is. Your predicament DEMANDS a pragmatic approach--devoid of political or emotional overtones or undertones.
In the Army, I was taught the practical response when exposed to a nuclear attack. It seems appropriate here:
(1) Bend over;
(2) Put you head between your legs; and
(3) Kiss your ass goodbye.
Re:Yes what people need to remember (Score:2, Insightful)
Re:Yes what people need to remember (Score:4, Insightful)
Re:America's last great industry... (Score:2, Insightful)
All you seem to see in my statements are the arguments you want to see, even if that is not what I stated at all. Please show me where I stated that copyright was the only solution,
If you don't believe that, then why did you bring up the entire bit about "if there were no incentive to create?" In a discussion about copyright WHY would you bring up such a HUGE red herring as assuming that there would ever be no incentive to create unless you didn't believe it to be a red herring at all? For all your ranting on being called out, I see absolutely no justification for centering your post on that argument.
Couple that with your total misdirection of claiming that some digital publishers are profitable the frictionless nature digital distribution BY EVERYONE ELSE of the same content is somehow irrelevant when said profit is in fact due to two wholly unrelated characteristics - convenience and copyright enforcement. The first being a potential business model and the second being a buggy whip. I expect now you will conflate the artificial scarcity of copyright enforcement with the natural scarcity of piano rolls.