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RIAA Awarded $675,000 In Tenenbaum Trial 492

Posted by Soulskill
from the songs-apparently-cost-as-much-as-cars dept.
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."
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RIAA Awarded $675,000 In Tenenbaum Trial

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  • bankrupt then what? (Score:5, Interesting)

    by alain94040 (785132) * on Friday July 31, 2009 @07:08PM (#28903555) Homepage

    A good example of the justice system at work for your average citizen... So really, what happens next? The guy files for bankruptcy. The RIAA doesn't get any money (not that they really intend to get significant income from those cases). What are the consequences for Mr. Tenenbaum? Can't get a credit card for a few years? Needs to get a job? I'm really curious as to what the true consequences will be.

    --
    fantasy camp for iPhone developers [fairsoftware.net]

    • by Shakrai (717556) on Friday July 31, 2009 @07:12PM (#28903613) Journal

      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.

      • by Sycraft-fu (314770) on Friday July 31, 2009 @07:29PM (#28903783)

        Is your credit is, in fact, NOT ruined after a bankruptcy. Why? Because you can't file again for a number of years. Thus lenders don't have to worry about you using bankruptcy to just walk on your debts. That doesn't mean your credit is grand, but it isn't worthless. Companies will lend to you since they know you don't have that as a way out.

        • Re: (Score:3, Insightful)

          by PylonHead (61401)

          Interesting... I wonder what happens as you approach the 8 year mark... when you can file for bankruptcy again.

          • by Shakrai (717556) on Friday July 31, 2009 @07:57PM (#28904051) Journal

            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.

          • by Sycraft-fu (314770) on Friday July 31, 2009 @07:57PM (#28904057)

            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.

        • by L0rdJedi (65690)

          It's not entirely ruined, but you certainly won't be making any big ticket purchases (ie cars or homes) without getting the highest interest rate they can stick you with. At that point, your history shows that you are not a good risk for high amounts like that.

        • by commodore64_love (1445365) on Friday July 31, 2009 @08:19PM (#28904249) Journal

          I think if RIAA ever sues me, I'm not even going to bother defending myself.

          - I'll just ignore the extortion letter demanding $500 or else.
          - Ignore the summons to court.
          - Not bother showing up.
          - Just wait for a verdict.

          And then I'll have a good laugh about the whole thing, because no way would I pay a 1 or 2 million dollar fine. I'll declare bankruptcy, and then use the verdict as an opportunity to show how evil the record companies are.

          - "Look what our country has become? A place where a person has to pay 2 million dollars because he heard 30 streamed songs off the net. Who's next? Your neighbor? Your self? Your child? This is tyranny pure and simple, not liberty." - except from the book, Corporate Slavery - The New Plantation

          • by clarkkent09 (1104833) * on Saturday August 01, 2009 @03:49AM (#28906941)
            I suspect that RIAA knows that you will never pay and doesn't care. Their interest in this thing is to get huge judgments that will scare the shit out of the most normal people who do not in fact want to go bankrupt because of downloading a few songs.
      • by L0rdJedi (65690)

        Try applying for a home loan and see how far you get. While you may be able to get some amount, you likely won't be able to get anything significant and you won't be able to get a nice low rate.

        • by Shakrai (717556)

          Try applying for a home loan and see how far you get. While you may be able to get some amount, you likely won't be able to get anything significant and you won't be able to get a nice low rate.

          Somebody didn't tell my mortgage broker that, because I was approved earlier this year for a 30 year mortgage at 4.75% I've also qualified for 0% automobile financing since my bankruptcy. My main credit card from my local credit union is at 7.9% (not that I ever have a balance on it, mind you).

          BK really isn't the hurdle that it used to be. There are some lenders (Amex, Wells Fargo, Citi) that will refuse to deal with you but there's plenty of other people on the national level (not to mention local) wil

    • Re: (Score:3, Interesting)

      by drdanny_orig (585847) *
      I can't help but think there's some strategic reason for his actions that will become clearer upon appeal.
      • by Shakrai (717556) on Friday July 31, 2009 @07:17PM (#28903673) Journal

        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......

        • by shark72 (702619) on Friday July 31, 2009 @07:38PM (#28903875)

          They submitted fair use as a defense with the likely understanding that it would be rejected. This is Nesson's ticket to appeal.

          My guess is that Nesson knows he can't get precedent set at the district court level. MGM v. Grokster made it to the Supreme Court, and I think Nesson wants to take this one to the Supremes. Tennenbaum didn't have a chance with the current interpretation of the law (basically "copyright infringement is bad, mmmkay?"), so he's trying to shake things up.

          That's just my interpretation. The other possibility is that he's simply an idiot, but it's already established that he's a very smart guy.

          • Well he didn't have much of a choice, right? When you're on the stand you can't sit there and squirm and say "I don't wanna answer that." If his attorney doesn't object, he has to answer. But he probably thought that there's no way the judge would allow that to be put on record, and he was wrong. Doesn't matter anyway, it'll give him an appeal.
            • Well he didn't have much of a choice, right? When you're on the stand you can't sit there and squirm and say "I don't wanna answer that."

              He could have chosen not to testify to begin with, you know.

    • "Did you do it?"
      "Yes."

      Whoever was defending him was clearly off the ball letting that one fly past.

      I had a cop try that once. I had been (falsely I might add) arrested. Out on bail. After two weeks they found no evidence so when I reported back the good Detective said I was free to go. Then he said:

      "So, you're free and go home. So now you're free, tell me, did you do it?"

      Clearly criminals aren't very bright if that question is even worth asking.

  • someone just (Score:3, Insightful)

    by Anonymous Coward on Friday July 31, 2009 @07:12PM (#28903609)

    bomb the damn HQ of the riaa already, where are the terrorists when you need them? fuck them

    • Re: (Score:3, Insightful)

      where are the terrorists when you need them?

      Representing Plaintiffs and Defendants, of course!

    • bomb the damn HQ of the riaa already, where are the terrorists when you need them? fuck them

      And here I was thinking the RIAA were the terrorists.

      • by erroneus (253617)

        I see the attempt at humor but I'm going to spoil it anyway. For many, the difference between being a terrorist or "something else" is in who and how the term is defined. But the last people to be called terrorists are the ones who have the most influence over government and the writing and enforcement of its laws.

    • Re: (Score:3, Insightful)

      by jerep (794296)

      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.

  • by iamacat (583406) on Friday July 31, 2009 @07:15PM (#28903651)

    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.

    • by Chyeld (713439) <chyeld AT gmail DOT com> on Friday July 31, 2009 @07:27PM (#28903765)

      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..."

      • by DragonWriter (970822) on Friday July 31, 2009 @07:42PM (#28903919)

        He had a jury trial, he also admitted to doing what he was accused of doing. In a criminal trial that's pleading guilty.

        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.

    • by PylonHead (61401) on Friday July 31, 2009 @07:29PM (#28903781) Homepage Journal

      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?

      • by Jane Q. Public (1010737) on Friday July 31, 2009 @07:34PM (#28903835)
        No, he admitted "liability", not "guilt". Those are two very different things. As NYCL pointed out, liability is a question of law that the defendant is not qualified to judge.
        • by Chyeld (713439) <chyeld AT gmail DOT com> on Friday July 31, 2009 @07:48PM (#28903965)

          What he said [arstechnica.com]

          "This is me. I'm here to answer," said Tenenbaum. "I used the computer. I uploaded and downloaded music. This is how it is. I did it," he testified before a packed courtroom, whose spectators included an all-star cast of Harvard Law School copyright scholars: Lawrence Lessig, John Palfrey, and Jonathan Zittrain.

          "Are you admitting liability for all 30 sound recordings" on which the record labels brought suit, asked the plaintiffs' attorney Tim Reynolds.

          "Yes," said Tenenbaum.

          Tenenbaum then admitted that he "lied" in his written discovery responses, the ones in which he denied responsibility.

          "Why did you lie at that point?" asked Tenenbaum's attorney, Harvard Law School professor Charles Nesson. "It was kind of something I rushed through," responded Tenenbaum. "It's what seemed the best response to give." At the time he gave the admittedly false discovery responses, Tenenbaum testified that he was being advised by his mother Judith, a family law attorney who works for the Commonwealth of Massachusetts.

        • by PylonHead (61401)

          Ok, I actually bothered to RTFA, and I agree. It does look a little sketchy.

    • Jury trials are a right in most civil and criminal cases (lets not start talking about small claims court or other specialized areas). When you file a suit, you have the option of asking for a jury trial if you pay an extra fee. If either party requests a jury, then you get a jury. Only when _neither_ party requests a jury, do you have a bench trial.

      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.
      • >>>a judge can eliminate issues for a jury if no reasonable juror could come to anything but one conclusion based on the facts.

        That really sucks.

        A judge should not be able to do that, because a jury could decide that the person is guilty, but the law is unjust, and simply nullify the conviction. That's one of the reasons the jury trial was invented - to weaken the power of the State by giving the People an opportunity to "void" wrongful arrests. It's somewhat similar to what the U.S. Supreme Cour

  • by PotatoFarmer (1250696) on Friday July 31, 2009 @07:16PM (#28903663)

    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?

    • by alain94040 (785132) * on Friday July 31, 2009 @07:19PM (#28903689) Homepage

      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.

      • by Jane Q. Public (1010737) on Friday July 31, 2009 @07:31PM (#28903795)
        That aside, technically (despite what you will hear to the contrary from judges and prosecutors) it is the jury's job to judge the law as well as guilt:

        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?
        • Re: (Score:3, Funny)

          Weird. How in the world did that get modded "troll"? I guess I will never understand some people.
      • by DragonWriter (970822) on Friday July 31, 2009 @07:46PM (#28903955)

        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.

        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.)

    • by Shakrai (717556) on Friday July 31, 2009 @07:22PM (#28903719) Journal

      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.]

      • by Grond (15515)

        [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.]

        It's not clear that the question actually meant 'are you admitting legal liability to the charges listed in the complaint.' It could also have meant 'are you admitting that you were liable (i.e. responsible) for the downloading of the files?' That is, "were you the on

    • by indytx (825419) on Friday July 31, 2009 @07:47PM (#28903957)

      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 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.

      • I wonder if he has grounds for appeal on the grounds of incompetent representation. From what I've read, it sounds like his legal team was giving him advice ranging between crazy and just plane stupid.
    • Re: (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.

  • by Chyeld (713439) <chyeld AT gmail DOT com> on Friday July 31, 2009 @07:23PM (#28903721)

    How many RIAA/Copyright related lawsuits this year have started off with a hopeful - "Yeah! Damnit! We are taking this one all the way and are going to stick it to the MAN! Fuck him! Fuck the MAN Baby!" only to result in a circus and a horrible verdict for the defendant?

    Damn that's depressing, and this one was the one I was actually hoping the guy running the show had some sort of fucking clue/hidden plan that he was going to spring out at the end.

    I mean, yes, I'm not particularly fond of the idea of willfull copyright infringement, but I thought at least this would come out to forcing the RIAA to cut out some of their crap.

    • by IndustrialComplex (975015) on Friday July 31, 2009 @07:32PM (#28903809)

      How many RIAA/Copyright related lawsuits this year have started off with a hopeful - "Yeah! Damnit! We are taking this one all the way and are going to stick it to the MAN! Fuck him! Fuck the MAN Baby!" only to result in a circus and a horrible verdict for the defendant?

      Damn that's depressing, and this one was the one I was actually hoping the guy running the show had some sort of fucking clue/hidden plan that he was going to spring out at the end.

      I mean, yes, I'm not particularly fond of the idea of willfull copyright infringement, but I thought at least this would come out to forcing the RIAA to cut out some of their crap.

      Because the Plaintiffs can pick and choose the cases they bring to court. Why, out of thousands of potential defendants, would you go to court against the one that can destroy your approach?

      They don't bring to court someone WE would like to see. In my case, I only download music that I have already purchased a physical copy of, so their case would be a much harder sell.

      • Your case would be a much harder sell anyway. Think about it: they can no longer use MediaSentry, or MediaSentry's methods, for collecting information. That has already been pretty much shot down. They may have slightly different means, but they all suffer from some of the same weaknesses. Also, courts have been getting harder and harder on RIAA's pretrial strategies, such as coercing settlements, and ex parte discovery.
    • I don't pirate music, but I've been considering firing up a VM, having it randomly download one RIAA-copyrighted song per day in a p2p program with uploading enabled, and waiting for my "pay up or get sued" letter.... just so I can use all the defenses these people should be using.

      Of course, I have a 4-month-old baby, so I don't think I should risk owing that much money.

      • by st0rmshad0w (412661) on Friday July 31, 2009 @07:56PM (#28904033)

        Its the RIAA, I'm certain they'd accept the child, they have to feed their lawyers after all you know.

      • Re: (Score:3, Insightful)

        by slothman32 (629113) *

        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: (Score:2, Insightful)

      by tebee (1280900)
      I can't help feeling, that , in the eyes of the rest of the world, US "justice" has just become more of a joke.

      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
  • Disingenuous summary (Score:5, Informative)

    by Grond (15515) on Friday July 31, 2009 @07:36PM (#28903859) Homepage

    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.

    • by CajunArson (465943) on Friday July 31, 2009 @07:52PM (#28904001) Journal

      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.

    • by pacergh (882705) on Friday July 31, 2009 @07:56PM (#28904047)

      Thank you.

      Ray Beckerman's summary is disingenuous, which is a shame. Instead of focusing on meaningless small issues in the trial, the overall issues of the case and the posture of the plaintiffs and defendants should be focused on.

      I remember an article on ArsTechnica about Nesson getting in on the act. "Oh no, here comes Harvard professors â" the RIAA must be quaking in its boots!"

      The sad reality is that Nesson and his crew did just about the job you'd expect from a law clinic â" average, if not below.

      That's not to say law school clinics don't provide valuable legal aid, or that they can't have a great case here or there, but it is far from the norm.

      Here, you have a professor (Nesson) who has likely not had much courtroom experience over the last many years trying to guide law students who have had little to no courtroom experience in how to defend a complicated, specialized case involving copyright infringement.

      The antics of the defense were not those of a principled, strong defense plan. Then again, as the above poster mentioned, it seems the idea was to lay out a possible case for a constitutional challenge to statutory damages.

      Besides, the idea that Harvard has some special magic that will win the day does not play out in the real world. The special magic of Harvard isn't trial outcomes, it's networking and job options for alumni.

      Nevertheless, maybe the appeal on statutory damages will go through and do some good in the end.

      I just feel bad for Tenenbaum.

  • by CajunArson (465943) on Friday July 31, 2009 @07:46PM (#28903953) Journal

    The Tenenbaum litigation was dominated by the larger-than-life personality of Tenenbaum's counsel, Harvard Law School professor [Charles Nesson], who infuriated the plaintiffs, and at times Judge Nancy Gertner, with his unusual litigation tactics. These included making audio recordings of the attorneys and the court, and then posting the results to his blog, and publicizing internal discussions with potential expert witnesses about legal strategy. A sanctions motion against Nesson for his recording practices remains pending.

    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.

  • Joel Tenenbaum was a teenager at the time of his conviction, accused of downloading 7 songs [harvard.edu] from a file sharing network.

    This bodes bad weather indeed. If money is what sustains the flesh, we have here a case of cannibalism.

    (Somewhere, a barman in a life-jacket pours Scotch for a passenger while the cruiser sinks..)
  • Give it up, NYCL (Score:3, Interesting)

    by russotto (537200) on Friday July 31, 2009 @08:22PM (#28904267) Journal

    It's clear that the game is rigged. Here, with the defenses all tossed out before the case even got to the jury. Worldwide, as the Pirate Bay trial with the judge being the next best thing to a card-carrying member of the copyright cartel. All your presence does is legitimize the system by making it look like something other than the RIAA and its allies steamrolling over those without the resources (including paid-off legislators and fellow-traveler judges) to fight them.

  • by cpt kangarooski (3773) on Friday July 31, 2009 @11:53PM (#28905729) Homepage

    Lionel Hutz: And so, ladies and gentleman of the jury I rest my case.
    Judge: Hmmm. Mr. Hutz, do you know that you're not wearing any pants?
    Hutz: DAAAA!! I move for a bad court thingy.
    Judge: You mean a mistrial?
    Hutz: Right!! That's why you're the judge and I'm the law-talking guy.
    Judge: You mean the lawyer?
    Hutz: Right.

    I am not a litigator, so I really never go to court. It being a novelty to me, I had a fun time watching the trial this week, and seeing how an infringement trial goes outside of what I've read in books. However, I noticed what I thought was a significant mistake in the jury instructions as the judge and the two sides were working them out today. I predicted that this could cause the jury to err in a particular way, and looking at the award, I think it may have actually happened.

    The plaintiff suggested that the jury should award damages based on the number of infringements. The judge felt that this was acceptable, and the defense did not counter with an alternative. When the instructions were finally given to the jury, they included language to this effect. The problem with this is that the law -- 17 USC 504(c)(1) -- specifies that statutory damages are awarded per work infringed, not per infringement. That is to say, if you were on trial for distributing one copyrighted sound recording to one million people, that would only count against you one time, not one million times. But if you were on trial for distributing two different sound recordings once each, that would be two counts against you.

    I feared that due to the flawed language in the instructions the jury might believe that even if they were to award the minimum of $750 per count (in this case there are 30 counts), they might take notice of the fact that the defendant infringed when he downloaded, and infringed again when he uploaded, and therefore might double their award, thinking that each type of infringement counted separately for computing damages. Or worse, they might multiply their figure more, if they thought he uploaded a lot.

    Well, the figure that they came up with after deliberating was $675,000. The minimum award in this case would have been $750 per work times 30 works, or $22,500. Multiply $22,500 by 30, and you get the amount actually awarded. It is possible that the jury meant to award the minimum damages, but due to the incorrect instructions, multiplied to account for multiple acts of uploading that they believed occurred.

    Or they might have just felt that 30 times the minimum was a just figure, and they understood the instructions just fine. Not having seen reports (if there are any, or are ever going to be any) from the jurors as to what their logic was when deliberating, I don't know.

    But the doubt, it seems to me, could be grounds for a mistrial. This is of course entirely unrelated to the constitutionality issue that has been discussed at length. On both issues, I will be very interested to see what happens. And since an appeal is likely, and any appeal will go to the First Circuit, I will probably get to see that myself as well.

  • Lessons Learned (Score:3, Insightful)

    by MarkvW (1037596) on Saturday August 01, 2009 @01:45AM (#28906347)

    (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.

HEAD CRASH!! FILES LOST!! Details at 11.

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