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."
Thanks slashdot (Score:2, Interesting)
Every time a defendant does anything in an RIAA trial, slashdot has to report it? He's already sentenced, it's over. This is just more general bleating about how unfair the award is. There's no reason Tenenbaum would get special treatment.. high damages paid to the RIAA have already held up in court and been denied further appeal..
Re:Good luck on that one (Score:5, Interesting)
All I want to know is who maintains the public register of free music? If each of these defendants is paying for damages of a given song for an industry's worth of consumers, then surely that song is now trued-up and effectively public domain. So where's the register of music that's been bought for me so I can collect?
Re:Thanks slashdot (Score:3, Interesting)
To the best of my recollection (NYCL, a little help?), the constitutionality of the damages has never been challenged.
And even if it has, in one Circuit, that doesn't mean that it couldn't be challenged in another Circuit. Of course, if two Circuit Courts give different rulings on said topic, then it would almost certainly end up in front of the US Supreme Court.
If the fees are high to discourage people... (Score:5, Interesting)
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.
If the government won't do that because it's ridiculous then I want to know why it's not ridiculous that I can be paying that much for downloading a few songs which are, at best, worth $0.99 each.
Re:still flogging this old dead horse? (Score:3, Interesting)
He offered $500 to Sony, to my knowledge, and they turned him down and have now succeeded in the big bucks.
Re:Thanks slashdot (Score:3, Interesting)
Summary + questions from a non-lawyer (Score:3, Interesting)
IANAL. I did skim part of the brief.
The brief states that between the time Napster came out and iTunes came out, there was no ability for consumers to obtain music legally via download, and that posed a lack of choice for "Digital Natives" who wanted to obtain music that way. The court recognized that period as an "interregnum period" during which I presume (again IANAL) that no one can be successfully prosecuted for copyright infringement for downloading. However because iTunes was encrypted from 2003-2007, the brief argues that the interregnum period should be extended until some time in 2007, when encryption-free digital music was available.
The two main arguments for that are 1) publishers released DRM-free music on CD, so they partially contributed to the proliferation of the recordings on P2P networks and must have been aware of it by 2004, yet continued to sell and promote CDs. (This seems awfully tenuous to me...the publishers were still trying to sell music, and by that point the digital market hadn't quite gotten to the saturation point where they could stop selling CDs, and CDs require DRM-free music), and 2) The brief cites a prior case in which a court recognized that care taken by the plaintiff to "protect" their IP made a fair use defense fail, and that had the plaintiffs failed to protect the IP, fair use defense might have worked. In this case, the brief argues that the plaintiffs did not take enough "care" of their IP because they released them DRM-free on CD, and so fair use defense might work. (To me that seems to be arguing a hypothesis - that the court in the prior case would have ruled differently if the plaintiff had acted differently - rather than arguing a precedent on an actual ruling. Also, the CD format requires DRM-free music, so I'm not sure what sort of choice the publishers had there short of breaking everyone's existing CD players. Digital being a newer format allows for new things like DRM.)
Again, It is not just about ripping a CD (Score:3, Interesting)
It is not only ripping a CD. It is the song "Happy birthday", it is "winnie the Pooh", and scientific journals. It is the ink for your printer, and posting your kids latest performance on Youtube. It is the ability to bring a guitar to amateur nights in the local pub, and play music you like.
U2's Bono wants to implement a Chinese style control of the net globally, so you may not have seen anything yet.
I think artists should be paid well, and maybe have, as the law originally gave, a 14 year copyright. Now it is over 100 years. Anyway, if you as an artist don't want to share, just don't sell CD's or put it on the net.
Re:still flogging this old dead horse? (Score:1, Interesting)
Situation: Company takes code from GPL project, creates a proprietary version of the software, distributes the binary without distributing source. ... making themselves right with the license
Resolution: After lawsuit, company distributes with source code
Situation: Somebody uploads a copy of music they weren't authorized to copy.
Resolution: After lawsuit, the person is made to purchase a license for all the music they uploaded.
I think that seems reasonable.
Re:How is this news? (Score:4, Interesting)
how is filing a motion newsworthy?
There have been ~40,000 cases; this is only the 2nd time such a motion has been made. The first such motion is pending.
Re:A perversion of law (Score:3, Interesting)
Trying to fight RIAA in the courts is a loosing effort.
If the defendant wins the statutory damages argument in court on constitutional grounds then it will not have been wasted effort because it means that the copyright holders would have to get the Constitution amended to specifically allow for LARGE statutory damages for copyright infringement. It requires a super-majority vote in both houses of Congress and a super-majority vote of the states to amend the US Constitution. The RIAA may pay handsomely, but no amount of payola could muster that kind of support. In any case, I don't believe that the RIAA will be able to completely outmaneuver the courts via the legislature; logic and reason will prevail in the end (although it might take a while yet).
Re:still flogging this old dead horse? (Score:2, Interesting)
Wait a minute.. You propose that releasing source code and buying a license from a monopoly are two punishments on the exact same level?
I'll tell you what, since you obviously (and I'll get a jury to agree) infringed on my copyright of the number #30649052, you need to buy Windows Server 2008 DataCenter licenses for all of your home computers, and all of your friends, relatives, etc. Oh, and you don't actually get to keep any of that software you just bought. Does that sound fair?
Re:still flogging this old dead horse? (Score:4, Interesting)
It'll be a pirated copy.
Sure it would, but I'd feel fully justified in buying/owning/viewing it as there is no legitimate way for me (in the US) to purchase a copy.
The courts agree too. For example, Am. Geophysical Union v. Texaco, Inc., 60 F.3d 913, 931 (2d Cir. 1994) ("If the work is 'out of print' and unavailable for purchase through normal channels, the user may have more justification for reproducing it").
http://www.digitalmedialawyerblog.com/2009/12/sony_bmg_v_tenenbaum_judge_pro.html/ [digitalmed...erblog.com]
Re:Thanks slashdot (Score:5, Interesting)
Weird. That really, really does not sound like "innocent until proven guilty" to me... Oh, also, we tend to like the phrase "extraordinary claims require extraordinary proof", but apparently the courts will accept a plaintiff's extraordinary claims, with no proof?
THIS VIDEO WILL BE FLAGGED (Score:4, Interesting)
IANAL. IANYourL either. This is not legal advice. ETC.
That's OK. I understand that Internet pseudo-advice is just for having an idea of the legal landscape before hiring a lawyer. A lot of people who respond to Ask Slashdot with "ask a lawyer" fail to understand that the question is really "what should I know to make the most of the first consultation?".
Once you have the video, you can do that to it (under current case law) without permission provided said video is sufficiently original.
That doesn't necessarily stop hosting providers from being complicit in a copyright owner's copyfraud. In May 2009, for instance, YouTube took down a video criticizing The Tetris Company and one of its licensees [youtube.com] significantly longer than the DMCA maximum 14 business days after I filed the counter-notice.
What constitutes "sufficiently original" is... variable.
Which underscores the importance of having a good errors and omissions insurance policy to back up your fair use in case of crap like Three Boys Music v. Bolton or Rowling v. RDR Books. The trouble is that it's often cost prohibitive for individuals to get such insurance.
It's not about copying (Score:4, Interesting)
The fundamental problem here is not that of copying, but the matter of justice in proportion to the crime.
Suppose, for example, we take the RIAA's argument at face value: Because she's shared these 19 songs, the RIAA companies will never make another sale from them. According to the RIAA, she owes them for the lost profits they would have made.
Even were this the case, the maximum cost of these 19 songs is the cost the RIAA paid to the artists to produce them. Here's a hint: it's not very much. Elton John once said that he could write a song in 15 minutes; even were he to charge a lawyerly-like rate of $500/hour, that would only be a few thousand dollars of labor. Even at the extreme end, this is two band-years worth of labor, which hardly costs the label a few million dollars.
In terms of actual damages, she probably resulted in no lost sales. Even before filesharing, I grew up in an environment where people simply taped songs off the radio, and bought the occasional LP. The type of people downloading from filesharing networks are the kind who wouldn't have bought the song no matter how much they like it. What the RIAA doesn't understand is that with the exception of the upper-middle and upper classes, most of America has become accustomed to getting their music for free, without paying a dime. If they can't get it for free, they just do without. It is almost never a lost sale.
What disturbs me most is that a jury could be convinced to grant a judgement of a few million dollars against her without any actual proof of infringement. They have no idea how many - if any - downloads actually occurred.
Re:still flogging this old dead horse? (Score:3, Interesting)
My point was that sharing is infringing only under very specific circumstances, and simply downloading may not be infringing at all. The RIAA and its supporters very often conveniently forget phrases such as except for fair use, without permission, unless in the public domain, etc. They twist the language to convince everyone that no content can be experienced without their blessing.
Re:still flogging this old dead horse? (Score:3, Interesting)
I knew I'd find it if I looked hard enough...
RIAA ispnotice [riaa.com]
Music is protected by copyright. The unauthorized downloading or uploading of music is actionable as copyright infringement, even if not done for profit.
Where in copyright law does it say that downloading is illegal? My friggin' radio downloads music from the air for pete's sake.
don't speed in finland (Score:3, Interesting)
speeding fines in finland are based on percentage of your last tax return
so if you are poor, your speeding fine is a pittance. but if you are the chairman of nokia, its over $100K
http://news.bbc.co.uk/2/hi/europe/1759791.stm [bbc.co.uk]