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."
I didn't know they could do that (Score:3, Interesting)
I didn't think a court could render an opinion if it's not on the case before it. If a future case involving "space shifting" comes before the court, will they look to this ruling as precedence, or will it be treated more like an amicus curiae brief?
Re:since when is space shifting from CD not fair u (Score:4, Interesting)
The question of if you have the CD but rather than ripping it, you download an already ripped mp3.
Re:I didn't know they could do that (Score:5, Interesting)
Problem now is, how does Tenenbaum get an appeal?
Well he doesn't need an appeal. The real question -- the excessiveness of the verdict under (a) copyright law and (b) constitutional law -- hasn't been decided yet. The judge had earlier indicated she would be getting to that only after judgment had been entered, and a motion to set aside the judgment had been made. She has scheduled that for a January 4th deadline, with the RIAA getting 14 days from the making of such a motion to respond.
It may wind up being the RIAA that's going to "need an appeal".
Damages should be limited by law (Score:3, Interesting)
It should be illegal to award damages higher than a certain percentage of the net worth of the losing party.
It's insane that any individual can be expected to pay $625,000 unless they are wealthy.
The ability for the defendant to pay should be considered when damages are decided. Our legal system is so seriously screwed up.
Format shifting is *probably* already legal...... (Score:3, Interesting)
In the USA:
Unless I am greatly mistaken...in prior court cases, it was accepted on precedent that format shifting for personal use was already covered under fair-use.
Additionally, although their are some issues regarding the definition of "digital audio recording device", making a copy of a digital audio CD for private non-commercial use using a "digital audio recording device" (computers are specifically NOT covered under this) is EXEMPT from prosecution or litigation under the 1992 Audio Home Recording Act. Under the terms of the act, the industry specifically gave up all rights to litigation and or fines imperpetuity for any non-commercial analog copying and/or approved digital audio device.
Audio CD recorders and DAT recorders are specifically addressed by this and are approved devices. An audio CD recorder or standalone DVD recorder capable of ripping direct to MP3 would almost definitely be covered as well (e.g. I have a DVD DVR with an internal hard drive that has the capability to buffer a CD to it's internal hard drive and then reburn it to a new CD after transcoding it into MP3 format). As long as any audio device complies with the SCMS (Serial Copy Management System) and refuses to make copies of 2nd generation material (i.e. copies of copies) then the device is legal.
The real question is whether or not making a copy of a CD (an approved device) to an MP3 player (also almost certainly an approved device) by using a PC (a non-approved device) for the ripping/transfer is still covered. Based on past legal cases and statements agreed to by the RIAA during Senate hearings on the matter, this should be legitimate -- but it has never been ruled on directly in court.
The interesting thing about the 1992 AHRA, is that, while it is still illegal to do so, there is no legal PENALTY for making copies of an copyrighted audio CD using a standalone audio-CD recorder -- even if you are making dozens of copies and giving them to all your friends and family members. If I wanted to make 1000 copies of an audio CD and then hand them out on the street corner for the heck of it, the strongest thing they can do to you legally is ask you to cease and desist. This only applies to non-copyprotected audio CD's -- if they have copy protection on them then the DMCA comes into effect (which is an entirely different mess).
A very interesting question in the law would be on the following device -- of which one does exist but was never publicly released:
1) A standalone CD-Audio/DVD Recorder/DVR unit with network capability capable of ripping to MP3. This unit *was* an approved CD-Audio Recorder and was legal for making audio cd copies.
2) This unit fully complies with SCMS and flags any recorded MP3's with the copyright flag and will refuse to reburn second generation copies or copies that did not originate on the unit that have the copyright flag set.
3) This unit was network capable -- although the released design was originally intended for sharing DVR material to other similar players within the same household.
4) As a network capable device with a hard drive, in an unreleased version a Gnutella network client was implemented on the device. This allowed sharing of MP3's ripped onto the device and allowed downloading MP3's off of the internet.
5) In compliance with SCMS, the unit would not burn to CD any downloaded MP3 with the Copyright flag set. Any downloaded file without the Copyright flag set could be burned with impugnity (under the 1992 AHRA players are required to copy media without the copyright flag freely -- the burden of having this flag set correctly was specifically forced outside of the player).
Basically, under current law, this device would probably have been a considered completely un-litigatable network file sharing device. Unfortunately, the base device itself is no longer produced and the "interesting" version was considered too much of a lawsuit magnet to even attempt releasing.
Re:I didn't know they could do that (Score:3, Interesting)
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?
Re:Sounds like the Court got it right. (Score:2, Interesting)
Downloading whatever you feel like just to list on your ipod is completely legal in the US. UPLOADING the copywritten files is illegal and infringement of copyrights. This is a very important difference that the RIAA doesn't want you to realize.
Re:I didn't know they could do that (Score:3, Interesting)
Just keep in mind that, while NYCL has a great deal of knowledge on these subjects, his opinions have been proven to be very optimistic in the past...
Re:since when is space shifting from CD not fair u (Score:3, Interesting)
If that were found to be valid precedent, then that would mean that it was legal to download a copy of a DVD that you currently own from a foreign torrent site? I assume that you wouldn't be violating the DMCA's circumvention clause...
Re:Damages should be limited by law (Score:2, Interesting)
How sure are you that Intel needs government enforcement to protect their products?
>
Yes they absolutely do! Trust me the difference between the cost Intel pays for each chip and what you pay is padded with a huge profit and initial investment recoup cost. Copying the design wouldn't be very difficult. There are many methods. Electron Microscope to reverse engineer, paying an insider to give you trade secrets, stealing key employees with intimate knowledge of design. Even if they were 6 months behind technology wise, an x86 compatible computer that ran at 75% of Intel speed for $50-100 would crush Intel's market
Because of the current system, you almost never see Big Corporations subvert the Copyright system because they know they will get sued out of existence. Why worry about the guy in the garage? For the most point it has been ignored, however, the internet has made it so that the guy in a garage can do a lot of damage with little resources. However this doesn't mean we can throw out the copyright system, we just have to start enforcing it equally on everyone.
Re:since when is space shifting from CD not fair u (Score:4, Interesting)
As other's have mentioned, the first question is it fair use to download an mp3 of a cd/song that you have already purchased?
But, there's yet a further step, where time-shifting is allowed in the TV/video world for recording on a VCR. I presume that same shifting is permitted for recording off of the radio. Therefore, are you allowed to download/posses an mp3 of a song that you heard on the radio?
There's a slippery slope that I don't think we should say anyone can download content that's been played on some radio station at some point, but a lawyer would have a difficult time claiming that you hadn't already heard a collection of top-40 songs. And this also wouldn't excuse someone that turns around and shares the content with others.
Re:I didn't know they could do that (Score:5, Interesting)
IANAL, as I will doubtless demonstrate, but I'm curious about some of the legal principles here.
Statutory damages as an alternative to actual damages makes sense, but is there any legal expectation that the statutory damages will be roughly proportional to the actual damages?
Yes, and no. In the copyright acts of 1790 through 1976, Congress talked about statutory damages as non-punitive - i.e. roughly proportional to the actual damages. However, in the 1976 Act and the more recent amendments and acts including the DMCA, Congress talked about the deterrent effect, particularly where software, music, and movies can be copied with a click of a button.
Under the current law, the damages are supposed to be roughly proportional - a best estimate, if you will - but also have deterrent effect, meaning they can be higher.
Add to this a crucial point which Ray and Tenenbaum's attorneys disregard in discussing damage levels as being $1.40 per work: under copyright, damages include not just the cost to the infringer of a license, but the lost profits to the copyright owner. This is explicit, even going back to the original 1790 Act - damages include not just the infringer's profits (which may be zero, as here where Tenenbaum isn't charging for copies), but also the lost sales to the owner due to the work now being widely distributed royalty-free. In the 1790 Act, statutory damages were one dollar per page - that's way more than the cost, particularly back when the entire book may cost only a few dollars.
Assuming treble damages, the minimum damages of $750 imply that a reasonable low guess to the damages from downloading one song and uploading in the process would be $250, or $75 if we go to the ten-times limit the Supreme Court said they'd almost certainly not allow.
Treble damages aren't actually an issue. There's no explicit provision for them in the copyright act.
One important thing to note when considering the lower limit of $750 - that's "per work". So, if you make a single copy of a song, it's $750. If you upload that copy to 10 people, it's still only $750. If that copy ends up downloaded by tens of thousands of people... it's still $750. That's what the statutory damage levels are trying to do - the copyright owner doesn't have to run around and find every single person that downloaded a song or bought a copy of your illegally-reprinted book. Instead, we can just assume you made a number of copies causing about that much in damages. If you didn't, the plaintiff gets a small windfall - but if you did, the defendant is relieved of a much higher liability.
It seems to me that these damages are intended as straight punishment, since they're way out of line with any halfway reasonable estimate of damages multiplied by any acceptable multiplier. In that case, I'd be a lot more comfortable with them if they were treated as part of criminal law, with such protections as "no reasonable doubt" rather than "preponderance of the evidence".
See my discussion above - they're not actually that far out of line. As for criminal law, the copyright act does actually have a criminal provision... and this is what the RIAA is misreading:
17 USC 506 makes it a misdemeanor (meaning up to a year in jail) for willfully infringing a copyright for purposes of commercial or private financial gain; or by "making it available on a computer network". Sounds a bit familiar, huh?
Specifically, the statutory damage provisions include $200 for "innocent infringement", $750-30,000 normally, and "up to $150,000 per work for willful infringement". Now, the RIAA defined "willful" as essentially "anything not innocent", which makes that middle $750-30k range useless. And unbelievably, Tenenbaum never argued that one, or at least not well.
My argument (and the paper I'm drafting) is that the jury shouldn't have been asked to come up with a per-work damage amount of "up to $150k", but rather that they should have been presented with the $750-30k range... They likely wouldn't have picked 18k then, but something lower, which would have been more reasonable.
Re:Damages should be limited by law (Score:3, Interesting)
Which allows you to violate copyrights to your heart's content as long as you use a frontman with a net worth of zero.
Which isn't terribly hard to do, really.