Court Says Fair Use May Hold In Some RIAA Cases 145
Posted
by
timothy
from the generosity-knows-no-bounds dept.
from the generosity-knows-no-bounds dept.
NewYorkCountryLawyer writes "In SONY BMG Music Entertainment v. Tenenbaum, the Boston RIAA case in which the defendant, represented by Charles Nesson of Harvard Law School, admitted liability at his trial, the Court has entered judgment in favor of the RIAA for the monetary award of $625,000 fixed by the jury. However, the Court left open the questions of whether the amount is excessive, and whether attorneys fees and/or sanctions should be awarded, and has scheduled further briefing of those issues. The Court granted the RIAA much, but not all, of the injunctive relief it requested. In an unusual step, the Court issued a 38-page decision (PDF) explaining in some detail the Court's views of the Fair Use defense in the context of cases like this, and indicating that there are some factual scenarios — not applicable in this particular case — in which it might have concluded that the claims were barred by Fair Use. E.g. it declined to rule out the possibility that creation of mp3 files exclusively for space-shifting purposes from audio CDs a defendant had previously purchased might constitute fair use."
Mostly the court said the defense sucked (Score:5, Insightful)
Mostly the court said the defense sucked and they WOULD have been receptive to such fair use tactics but the defense didn't help them out there.
http://arstechnica.com/tech-policy/news/2009/12/how-team-tenenbaum-missed-a-chance-to-shape-p2p-fair-use-law.ars [arstechnica.com]
This isn't something that applies to all future cases.
since when is space shifting from CD not fair use? (Score:5, Insightful)
I was under the impression that space shifting from CD to "mp3" was already settled as fair use. What goes?
Re:Sounds like the Court got it right. (Score:3, Insightful)
I don't see how this is a good thing, making file sharing and fair use synonymous.
The Court, deeply concerned by the rash of file-sharing lawsuits, the
imbalance of resources between the parties, and the upheaval of norms of behavior brought on
by the internet, did everything in its power to permit Tenenbaum to make his best case for fair
use. Over the record companies’ strenuous objection, the Court allowed the fair use defense to
be added at the eleventh hour.
Making a small clip of a copyrighted work so the work could be discussed is one thing, but at the last minute when you are loosing to cry "fair use" looks disparate and only makes fair use a future target.
Re:I didn't know they could do that (Score:5, Insightful)
Re:since when is space shifting from CD not fair u (Score:3, Insightful)
Exactly. But now it "might constitute fair use" ... and in a year or so it will be "unlikely to constitute", etc. Progress!
Re:Mostly the court said the defense sucked (Score:3, Insightful)
The court also shows a certain naivete: "Whether the widespread, unlimited file sharing that the record suggests he engaged in benefits the public more than our current copyright protections is a balance to be struck by Congress, not this Court,"
As we have come to understand, copyright law is written by lobbyist organizations and entered into as treaties. 'Congress' or 'public benefit' basically does not figure into the equation.
Re:Mostly the court said the defense sucked (Score:4, Insightful)
That may be, but I'm guessing that you'd still rather the elected legislature (whether you see them as responsive or not) make these sorts of laws than the judiciary. Would you have really been happier if the courts had said "this is really an issue for the legislature but we don't trust them so we're going to make up new laws from the bench"?
That holding would be either instantly struck down by a higher court, or would mean the end of representative democracy in the US.
Re:I didn't know they could do that (Score:4, Insightful)
Re:Damages should be limited by law (Score:1, Insightful)
How sure are you that Intel needs government enforcement to protect their products?
They operate the most sophisticated factories in the world, producing some of the most complicated objects in existence, I'm not real sure they need to worry about some guy in his garage trivially duplicating their chips. Not to mention that they consistently offer a certain level of quality.
Re:Damages should be limited by law (Score:1, Insightful)
Suing poor people doesn't make financial sense, so the only real way to keep them in line is to put them in jail. But there's a threshold. So a poor person is free to perform essentially any sue-able offense as long as it wouldn't land them in jail. This applies to a lesser extent for college kids who are paper poor (in actual debt usually) but have rich futures. And, of course, they actually care about their record if they ever need to bow to a corporate overlord.
Re:I didn't know they could do that (Score:5, Insightful)
It may wind up being the RIAA that's going to "need an appeal".
That would be good news indeed, can you expound on that a little?
Liability is a foregone conclusion, since Mr. Tenenbaum formally "admitted liability" at the trial. But damages are not. If the Court follows traditional copyright law principles, it will hold that there was no evidence in the record from which any statutory damages award beyond $750 per infringed work is permissible, thus limiting the award to a maximum of $18,000 under copyright law. And if the Court then follows traditional constitutional principles, it will hold that any recovery beyond $1.40 per infringed work (or total of $33.60) is unconstitutional. If the RIAA obtains a monetary damages award of $33.60 I would expect Mr. Tenenbaum to refrain from appealing, and I would expect the RIAA to be the one to file an appeal.
I think the RIAA's argument that statutory damages need not be constitutionally limited to the price of the songs is a good one, and the argument that statutory damages in excess of proven damages are unconstitutional is a bad one. Congress expressly allowed statutory damages as an alternative to actual damages to cover situations where proof of actual damages was too vague or speculative. That applies here, and certainly includes a claim that the only damages were $1.40 per song due to Tenenbaum not purchasing them. He was uploading them too - his violation of copyright wasn't just making a single copy for his own use, but rather distributing them to others. Thus, the damages would include $1.40 for every he uploaded each song to, and everyone they then uploaded the song to. That's going to be much higher than a total of $33.60. How much higher? We don't know - it's too speculative to say, which is why Congress put in the statutory damage provisions.
Additionally, your argument that the court should limit them to $750 per work is unsupported. The statutory range of $750-30k per work is a question of fact for the jury. The judge can't overrule that within the range without evidence of clear error - he could limit the decision if it was at the $150k/work willful level, for example, or he could limit it to $200/work for innocent infringement (he can't, actually, in this case, on these facts), but he can't say "the range is right, but I'm using the lower limit". There's simply no basis for it.
No, the best argument is one that they apparently failed to raise - the jury was presented with an instruction, number 110, that willful infringement requires only knowledge or reckless disregard of the copyright, and thus damages up to $150k per work are available, thus leading the jury to pick the $18,000 figure. The RIAA briefed in support of this instruction, and I can't find a copy of the opposition brief or the ruling, but the final jury instruction was exactly what the RIAA wanted. I believe it's incorrect as a matter of law, because their interpretation expressly removes the $750-30k range of damages from ever being able to be applied. Instead, it would be $200, or $150k, but that's not what Congress said. They're misreading and misapplying both the case law and the statute.
Incidentally, I was the one who sent you an email a month ago, discussing a paper I'm writing and asking if anyone had argued this point. I haven't found anything yet. Paper's about half done and will be done before January 4th. Any interest in reviewing it and potentially filing an Amicus Brief?
Re:I didn't know they could do that (Score:4, Insightful)
"Does jaywalking justify the death penalty?" "Does walking 10 extra metres make you life so unbearable that you can't continue?"
Re:Damages should be limited by law (Score:2, Insightful)
Ha! I can see you agree in stronger copyright laws than I do, but only marginally.
Personally I believe there should be much stronger copyright laws with reasonable fair use provision for a much shorter but reasonable time period. This is the only logical conclusion I can come to. Honestly unless you are a commodity laborer, Your value to your company is the creativity and intelligence you put in your job. Trust me, if your company could steal similar creative and intelligent work for free they wouldn't be paying you. Since I contribute my works in exchange for cash, I feel like if I consume works, I should pay cash.
I do agree that the labels have a strangle hold and are abusing the system, but I choose not to cheat the system, but not to support the labels.
Re:Mostly the court said the defense sucked (Score:4, Insightful)
"legislating from the bench" is actually what a common law legal system is all about.
If you're talking about a civil law system then by all means you'd be correct.
Anyone who thinks that judges don't "legislate from the bench", please study these following landmark cases:
Roe v. Wade
Marbury v. Madison
Brown v. Board of Education
etc...
These binding precedents have just as much legal force coming from the pen of a judge as they would have coming from the pen of a congress critter.
Re:I didn't know they could do that (Score:3, Insightful)
Because of the scale of the internet your sharing could approach $625,000 of lost revenue.
Bullshit. Let's assume the average CD costs 20 dollars. That'd mean you caused the loss of 31,250 CDs' worth of revenue. At an estimated 50 megs per CD, that'd amount to 1.5 TB of data. At 5 megabits per second upstream, you'd have to share non-stop for a full month to accrue that much data. Now, I overestimated both the price of a single CD, and the typical upstream bandwidth available for a domestic user, and underestimated the size of a CD in MP3 format. Assuming a more typical 1 mbit upstream, we're up to 5 months. On top of that make it 15 dollars per CD (which is still high), over six and a half months. If a CD takes up 75 megs (my own personal collection averages at 73.3 megs per album), the grand total is that you'd have to share non-stop, at full speed, for 10 whole months.
Now, if you want to argue that the 625,000 can and should include punitive damages, I personally disagree (outside of commercial piracy), but it's an opinion I'm willing to accept. But lost revenue is a battle you simply can't win.
Re:I didn't know they could do that (Score:3, Insightful)
Re:I didn't know they could do that (Score:1, Insightful)
I believe that the RIAA lawyers made some comment about something as little as ripping CDs as being piracy in the case. I don't think the ruling was intended to tell you what you can or can't do as much as a caution to RIAA on what they cannot, would not, or shouldn't be able get away with.
Re:I didn't know they could do that (Score:1, Insightful)
As someone else will probably point out if they hadn't already done so, the problem with your (this) argument is that statutory damages can only be seen as punitive. Now here is the problem, the standards of trial is different for criminal verses civil trials and when the government issues punishment by statute, then the more strict criminal standards need to apply.
Now before we get too far into this, it should be noted that it's entirely different if a jury of your peers decide that your conduct warrants punishment in excess of actual damages compared to the government mandating punishment. But in a civil trial, you only need a preponderance of evidence- that is to say, make it appear that the person is likely guilty of the act. In a criminal trial, you need to prove beyond a reasonable doubt.
Let's assume that there is a $1000 dollar fine and no jail time for littering. Now lets explore the difference between criminal and civil. Suppose you were standing somewhere on private property not of your own (you had a right or ability to be there though so trespass isn't an issue). Lets also assume that your eating your lunch which happens to be a baloney and cheese sandwich with some chips and a pickle that you packed in a brown bag from home. You laid the wrappings and bag on the ground with a small rock as weight so they didn't blow away while you ate the food. Now a cop comes along while your still eating and issues a citation for littering because you turned you back to it while standing there. You go to court, show explain the rock was there to contain everything, what you were doing, and the intention of picking it up and disposing of it properly after you finished eating. In a criminal trial, it would be hard to show that you were littering beyond a reasonable doubt because people often set this food wrappings and containers down while they eat.
Now suppose congress passed a law allowing the land owners to punish litterers by suing them for statutory damages of $1000 per incident (the same as the criminal statute). Ok, still with me? Well, I'm the land owner and I witnessed you doing the same as above. I sue you and tell the jury that you walked away from the trash left on the ground. You attempt to explain that you only went 5 foot away to get a drink from the fountain while you were still eating your punch but I insist that you had no intention or returning to pick the food wrappings and containers up. I pull in a witness that claims to have seen you litter in the past and now by a preponderance of the evidence, the government through me has successfully punished you when the criminal law couldn't.
If the value of damages truly cannot be determined, then a jury can reasonable estimate them, if your conduct was so egregious that simple damages wouldn't compensate the victim, then a jury can reasonable add to it. But when the government intends to punish someone, then that person has a right to due process and a right to the same strict standards that apply in every other case of the government wanting to punish someone. Moving it to a civil trial does nothing but sidestep the constitutional protections that every citizen enjoys and should be entitled to. Remember, the constitution protects us from the government, there is no reason why that protection should be relaxed in any situation.
I hope I have reduced the argument enough to make it completely clear.