Constitutionality of RIAA Damages Challenged 360
NewYorkCountryLawyer writes "In SONY BMG Music Entertainment v. Tenenbaum, the defendant has filed a motion for new trial, attacking, among other things, the constitutionality of the jury's $675,000 award as being violative of due process. In his 32-page brief (PDF), Tenenbaum argues that the award exceeded constitutional due process standards, both under the Court's 1919 decision in St. Louis Railway v. Williams, as well as under its more recent authorities State Farm v. Campbell and BMW v. Gore. Defendant also argues that the Court's application of fair use doctrine was incorrect, that statutory damages should not be imposed against music consumers, and that the Court erred in a key evidentiary ruling."
Interesting! (Score:2, Informative)
A link to an old slashdot article, and 2 links to legal documents - one of which is 32-pages long!
Now THAT makes for some interesting reading... well, this is definitely one time that I will RTFA!
Argument != Ruling (Score:2, Informative)
It really shouldn't be news that someone is making an argument in their case. Anyone can make an argument - that doesn't mean it's right. And the standards on due process for damages are pretty wishy-washy. So, while I'm not saying this wouldn't be good news if it were ultimately upheld, it's not really news that someone is bringing it up. 99% of all class actions are arguments made by plaintiffs' lawyers that are garbage, which never go anywhere.
Re:What's the legal limit? (Score:2, Informative)
Since the cost per song is $.99, then it would be roughly $1.00 per song...
Since the downloader didn't share the files intentionally (software developers ought to make the default NOT share), and the fact that there is ZERO evidence that the files shared were actually downloaded, and since we know that "making available" isn't an offense (otherwise the RIAA would have to sue itself out of existence as there would be no pirating without them producing the content in the first place), then it would $.99 per song MAXIMUM fine...
Re:Good luck on that one (Score:5, Informative)
Re:still flogging this old dead horse? (Score:3, Informative)
If the punishment for breaking the law is unconstitutional (cruel and unusual, excessive fines, etc) then no, you shouldn't just deal with it. In fact, levying such fines is illegal, and those pushing for them should grow up and deal with it.
Re:What's the legal limit? (Score:4, Informative)
What is really neat is the presumption of willfullness under section 3 when the violator "knowingly provided or knowingly caused to be provided materially false contact information to a domain name registrar, domain name registry, or other domain name registration authority in registering, maintaining, or renewing a domain name used in connection with the infringement."
Re:Thanks slashdot (Score:4, Informative)
it takes two different cases to get two circuits finding the opposite of one another. When that happens, the Supreme Court *MUST* hear the case(s) to resolve the discrepancy. It is one of only a few things that can force the Supreme Court to hear a case. Other cases are heard at the court's discretion from among those appealed after decision at the circuit level. Thus do constitutional lawyers decide who makes a good test case. The goal is to find a client with circumstances that will get the circuit to rule differently than another circuit, even if it's on a tangential aspect of the case. It's like hacking a bit.
Re:still flogging this old dead horse? (Score:5, Informative)
Re:If the fees are high to discourage people... (Score:4, Informative)
Seriously if downloading one song can have you paying out, for example, $10,000 then surely speeding which can result in death should have a fine of $100,000 at the very least.
Please don't give any legislators new ideas. My last spedding ticket for 10 over cost me $300. I expect that to rise by the next time I get a ticket already.
In all seriousness though, I have thought about the law in the terms you mention often and have been surprised. For instance, I remember the first time I saw a sign that said $1,000 for littering (I live in California). At first I thought nothing of this until I later saw a sign, in the same town, that said $271 fine for running a red light at a busy intersection. Now, This was years ago so the numbers have probably changed but I remember being shocked at this discrepancy. Running a red, which could cost other drivers significantly (as in multiple thousands of dollars of damage as well as potential death) had a lower fine than throwing my straw wrapper out my window which, at worst, could what...kill a bird that was to stupid to tell paper from food and choked on it? Welcome to modern America, where the law doesn't make sense and nobody seems to give a damn. =)
Re:still flogging this old dead horse? (Score:4, Informative)
RIAA/MPAA's classic settlement offer is whatever-you-have plus a dollar
Bull. Their settlement offer is almost always a few thousand dollars, tops.
Re:Thanks slashdot (Score:2, Informative)
IANAL and IANAAmerican, but it baffles me that plaintiffs don't have to prove actual damages. It seems that they not only don't have to substantiate the amount of damage,
Consider this example: Mal Icious, the dastardly copyright infringer makes counterfeit Prada bags and sells them on the streets of Manhattan for cash. He never files a tax return, though he rakes in a hundred thousand dollars a year. Prada catches him, buys a bag to prove that he infringed their copyrighted design, and sues...
Under your theory, they can collect a hundred bucks for their one provable instance of being actually damaged, while Mal gets away free by virtue of destroying (or not keeping) all of his sales records.
That's why plaintiffs don't have to prove actual damages, if they opt for statutory damages. OTOH, if they can prove damages that are much higher than the statutory damage limit, they go that route - see Apple v. Psystar, for example.
they don't even have to prove there is any damage in the first place.
Not quite - they still have to prove that there was infringement, such as that one counterfeit bag I mentioned. The damage is that the infringer trespassed on the plaintiff's right to copy and right to distribute.
Wouldn't it be fair to have them produce statistics that say that music that is pirated more is sold less? Or to have them produce say five witnesses who testify that they didn't buy a song because Tenenbaum uploaded it?
No, because Congress intentionally made it so that plaintiffs don't have to jump through hoops in that way. They do have to prove the guy infringed... it's then his burden to prove that there were no damages, which could then result in the jury awarding the minimum damages - a slap on the wrist, essentially. Neither Tenenbaum nor Thomas ever did that, though... they just claimed that the plaintiff has to prove damages, and when the plaintiff didn't, they claim that any amount of damages is therefore unreasonable. That's not in the statute, and it has lost every time.
Re:What's the legal limit? (Score:5, Informative)
Ray.....was it right to suggest those limits to the jury?
No in my opinion it was error. There was no basis for allowing anything above the $750 per infringed work minimum, and only the judge rather than the jury could have awarded less, so there was nothing for the jury to decide.
Re:still flogging this old dead horse? (Score:5, Informative)
Sure, he should pay a fine. One in the order of, say, $675, not $675000.
Under Supreme Court guidelines, it should have been more along the line of $30 or $40.
Re:Thanks slashdot (Score:5, Informative)
To the best of my recollection (NYCL, a little help?), the constitutionality of the damages has never been challenged.
Only one such motion has been made, in Minnesota, in Capitol Records v. Thomas. That motion is pending. This motion also makes arguments the other one had not made, and makes the due process argument a bit more clearly than the other one had, IMHO.
Re:Thanks slashdot (Score:4, Informative)
Re:Argument != Ruling (Score:5, Informative)
The 'making available' argument was aired in the Thomas case (although her counsel didn't bother to bring the precedents to court) and the jury instructions were that making available was sufficient to found liability
The judge in the Thomas case reversed himself on that, realizing that "making available" was NOT sufficient to find distribution. Slight detail you seem to have overlooked.
Re:Thanks slashdot (Score:1, Informative)
Point of Information (http://en.wikipedia.org/wiki/Point_of_information) regarding previous post:
Point of Order - A point of order is a matter raised during consideration of a motion concerning the rules of parliamentary procedure. (http://en.wikipedia.org/wiki/Point_of_order)
Re:Good luck on that one (Score:4, Informative)
They obviously need to read RFC2119 then...
For those too lazy to look that up... it's the RFC that defines phrases such as "SHALL [NOT]" (as in "implementations SHALL NOT do X").
Re:Thanks slashdot (Score:5, Informative)
When that happens, the Supreme Court *MUST* hear the case(s) to resolve the discrepancy. It is one of only a few things that can force the Supreme Court to hear a case.
No, it isn't mandatory that they resolve the circuit split. It is often convenient when they do, but it is not mandatory.
Re:still flogging this old dead horse? (Score:5, Informative)
"Indie" is what "alternative" was in the '90's. Both originally meant homegrown music from independent "mom and pop" record labels until the major labels realize how "cool" it is to be different, then they hijack those phrases and apply them to their mass-produced crap.
I guess the only honest way to say it is "Music of non-RIAA/ASCAP artists".
Re:Calculating potential actual damages (Score:4, Informative)
The damages are not awarded at $1/song, nor are the damages punitive. Rather, the damages in this case are statutory.
The damages are award as per USC 17 504(c)(2), under which, if "the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000." And, that is per infringement.
Perhaps you should actually learn about copyright law before making statements about it.
Comment removed (Score:4, Informative)
Re:Good luck on that one (Score:3, Informative)
I'd like to know how, when I search for "scatterbrain", which songs with that name are copyrighted, copylefted, or public domain? There are hundreds of songs with that name, all completely different. How is a downloader supposed to know whether or not he's infringing?
Re:Let me be the second! (Score:2, Informative)
I do vote. And unless the guy is REALLY well known to me I don't vote Democrat or Republican anymore. I look for the third party candidates and research and vote for them instead.
We got into this mess by voting Democrat or Republican. It's time for real change. Not a TV spot telling us about change.
Comment removed (Score:3, Informative)