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The Courts Music

Constitutionality of RIAA Damages Challenged 360

Posted by ScuttleMonkey
from the too-bad-common-sense-and-the-law-don't-mix dept.
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."
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Constitutionality of RIAA Damages Challenged

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  • by Anonymous Coward

    Duh.

  • by larry bagina (561269) on Monday January 04, 2010 @07:00PM (#30647808) Journal
    These are a bunch of guys who have a hard time understanding "shall make no law" and "shall not be infringed"
  • by sakdoctor (1087155) on Monday January 04, 2010 @07:02PM (#30647836) Homepage

    I have gained this from musicology: That I refuse Sony BMG music downloads, that others only avoid from fear of the law.

  • Interesting! (Score:2, Informative)

    by BigHungryJoe (737554)

    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!

  • Thanks slashdot (Score:2, Interesting)

    by Brian Gordon (987471)

    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: (Score:3, Interesting)

      by NecroPuppy (222648)

      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.

      • Re:Thanks slashdot (Score:4, Informative)

        by conspirator57 (1123519) on Monday January 04, 2010 @07:26PM (#30648114)

        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.

      • 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.

    • by GryMor (88799)

      This is the first I've seen of:

      "II. AT TRIAL THE COURT ERRED BY PREJUDICIALLY REDACTING DEFENDANT’S OFFER OF EVIDENCE SHOWING THAT HE WAS WILLING TO TAKE RESONSIBILITY FOR HIS ACTIONS, ALLOWING IT TO BE TWISTED INTO DEVASTATING IMPEACHMENT OF HIS CHARACTER."

      and after seeing the original vs what was entered into evidence, it makes me want to redact a bunch of RIAA member company offers and then take them to small claims court for not following through with their promises.

      In other words, some portion of

    • by nsayer (86181)

      Point of order: He was not sentenced to anything, since this was not a criminal trial.

  • Argument != Ruling (Score:2, Informative)

    by ezberry (411384)

    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.

    • by phantomfive (622387) on Monday January 04, 2010 @07:19PM (#30648048) Journal
      This particular argument is news because

      A) It is an area of law that a lot of us care about and
      B) Because this is an argument many of us have wished had been made before, but until this time (as far as I know) it hasn't. So we want to pay attention to this case to see how it turns out.

      If you don't like the story, you don't have to read it.
      • by Abstrackt (609015)

        If you don't like the story, you don't have to read it.

        Now you tell me... I've got a backlog from 2006!

      • this is an argument many of us have wished had been made before, but until this time (as far as I know) it hasn't.

        The problem was always one of standing. One does not have standing to make some of these arguments until one is sued in court by the copyright holders. Needless to say, most of us would rather not expose ourselves to massive financial risk simply to have an opportunity to make an argument or to put it more bluntly, the stakes were "too high". However, now that we have a few brave (or desperate) souls who are "stuck in the game" and "willing to make the argument", I agree that it is definitely one that is wo

      • This particular argument is news because A) It is an area of law that a lot of us care about and B) Because this is an argument many of us have wished had been made before, but until this time (as far as I know) it hasn't. So we want to pay attention to this case to see how it turns out. If you don't like the story, you don't have to read it.

        The RIAA would not like the world to know about these arguments and defenses. Isn't that reason enough to want to learn about them? :)

    • Yeah, but NewYorkCountyLawyer seems to have a "right of way" to go straight to the homepage based on past contributions. That user provides "play by play" of the cases where somebody dares challenge the RIAA, as the result is either "Somebody else lost on this so don't bother!" or "RIAA loses again! New argument to use against them is..."
  • I'd read somewhere that is was capped at $30k per copyright infringement, $150k for distribution of same.

    I should think that, if true, the caps are there for rationality and that they're high to discourage infringement - but should never be used as analogous to a sentencing guideline.

    Ray, I get the beef (from reading your info) about the judge being wrong in taking the defendant's statement of liability into account - but further, was it right to suggest those limits to the jury, in any case?

    Thanks in advan

    • Re: (Score:2, Informative)

      by Anonymous Coward

      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 s

    • by greensoap (566467) on Monday January 04, 2010 @07:24PM (#30648084)
      According to 17 U.S.C. 504 (http://www.copyright.gov/title17/92chap5.html [copyright.gov]), the minimum is $750 per work infringed while $30,000 is the max. However, if the infringement is willfully committed it jumps to $150,000 but if the infringement is committed "innocently" (naively might be a better word) then it drops to $200.

      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."
      • And so far, they've been holding anybody who makes a copyrighted work available as any downloadable file (over HTTP, FTP, or any flavor of P2P) you're doing so willingly. Nobody's ever been able to prove that they unwillingly installed such file-sharing programs.

        • by dissy (172727)

          And so far, they've been holding anybody who makes a copyrighted work available as any downloadable file (over HTTP, FTP, or any flavor of P2P) you're doing so willingly. Nobody's ever been able to prove that they unwillingly installed such file-sharing programs.

          The method of distribution doesn't matter at all.

          unwillingly in this case would refer to, for example, downloading an .mp3 named after a Nine Inch Nails song off of their album that was given away for free, but instead it turns out to be something else like Metallica.

          Copyright infringement was committed, however until you listened to the song, you were under the impression that you DID have distribution permissions for that song.

          For music sharers, this type of claim would not at all be true, and it would be

    • 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.

  • I'm glad that the Slashdot editors are adamently in support of something that IMO needs to be supported, but how is filing a motion newsworthy in any way? Now, if the court agrees to the motion, that'd be different ... wake me up then. Otherwise, let people publish this sort of "news" to PRNewsWire and their ilk.
  • by swschrad (312009) on Monday January 04, 2010 @07:18PM (#30648030) Homepage Journal

    that's the damages, folks.

    • That's the actual damages per download.

      Factor in that distributing can lead to many downloads (especially if there is some concept of downstream culpability, and those people all distribute) and one MP3 can easily be downloaded many hundreds or thousands of times, and actual damages can reach those amounts.

      Factor in punitive damages, which can be many times higher than actual damages, and the "correct" damages far exceed 99 cents.

      • by Locke2005 (849178)
        Downloading an MP3 has exactly the same possibility of redistribution as purchasing a CD... so should CDs cost $100,000, as someone might buy one and redistribute the content 10,000 times? For downloading a song, even with treble damages, we're talking $90 maximum penalty for 30 songs. The RIAAs strategy seems to rely on people confusing downloading with uploading; the mere fact that I am downloading a song does not prove any intent by me to redistribute said content. Uploading content, on the other hand, d
  • by thetoadwarrior (1268702) on Monday January 04, 2010 @07:22PM (#30648072) Homepage
    Shouldn't the fine for everything be exceptionally high?

    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.
    • by BJ_Covert_Action (1499847) on Monday January 04, 2010 @07:54PM (#30648464) Homepage Journal

      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. =)

      • by rahvin112 (446269)

        If a 10 over cost $300 you were in a workzone or a school zone and you should have been fined twice as much. A first time speeding ticket in a school zone in my state is a class a misdemeanor with a $600+ fine, the second time it triples and the third time there is jail time involved. Workzones are double also but not handled under criminal statues.

        There are a reason these fines are high and should be high, speeding in these two locations is much much more likely to result in fatalities and in the case of s

        • Re: (Score:3, Insightful)

          by Joe Mucchiello (1030)

          Children don't walk to school any more. There are too many boogiemen on the streets. Sad, but true. How will today's child admonish their children about how tough they had it. They don't even walk to school uphill, in the snow, one way.

      • 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]

    • by nsayer (86181)

      While I can get behind what you're saying, the facts you infer do not apply here - the defendant in TFA was supplying the songs, not downloading them.

    • by shentino (1139071) on Monday January 04, 2010 @09:11PM (#30649512)

      Speeding tickets are a gold-mine for municipal budgets.

      If you have a cash cow, you milk it gently. Not rip the udders clean off.

    • Re: (Score:3, Insightful)

      by selven (1556643)

      Enjoying a song without permission = $22,500
      Growing a plant without permission = 5 years
      Illegally disabling competition in a multibillion dollar market for years = a few days of profit

      I think there's an inverse relationship here.

  • by viking80 (697716) on Monday January 04, 2010 @07:36PM (#30648212) Journal

    Trying to fight RIAA in the courts is a loosing effort. RIAA pay politicians handsomely, and generally gets the laws they want. If they temporarily loose in court, they just pay to have the laws changed, and than they win. The draconian penalties as well as the never expiring rights RIAA enjoy is an amazing perversion.

    The only thing that is worse is that this can happen in a democracy, and few care.

    If you argue "well, just pay the $0.99 on iTunes and stop whining" you misunderstand culture fundamentally. Humans as a species copy. From infants looking at their parents to musicians, architects, engineers and philosophers listening to others, we refine and produce. This is the essence of human culture. That companies can monopolize this flow is damaging to the progress of mankind.

    • Re: (Score:3, Insightful)

      by nsayer (86181)

      We in the modern west have a problem, and I, for one, do not see an easy solution.

      It used to be that making copies of creative works was a physical task that was the domain of professionals. As such, enforcing copyrights was relatively easy.

      As soon as copyrightable creative works were representable in digital form, and computers became capable of copying them trivially, that changed utterly.

      Copyrights exist so that creators of creative works can be given an incentive to create. Their creations, on the whole

      • Re: (Score:3, Insightful)

        by cpt kangarooski (3773)

        It used to be that making copies of creative works was a physical task that was the domain of professionals. As such, enforcing copyrights was relatively easy.

        A minor quibble: Making copies using state of the art methods was the domain of professionals. Most people didn't have their own printing press, but if you were literate and had ink, pen, paper, and time, you could still copy a book by hand. Even today, in fact, you could not compete with a CD or DVD factory if you were merely armed with a generic wri

    • Re: (Score:3, Interesting)

      by CodeBuster (516420)

      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 suppor

    • by gillbates (106458) on Tuesday January 05, 2010 @12:33AM (#30651206) Homepage Journal

      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.

  • by AcidPenguin9873 (911493) on Monday January 04, 2010 @08:17PM (#30648768)

    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.)

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