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Tenenbaum's Final Brief — $675K Award Too High 525

Posted by timothy
from the can't-sell-my-organs-for-that-these-days dept.
NewYorkCountryLawyer writes "The final brief (PDF) filed by the defendant Joel Tenenbaum in SONY BMG Music Entertainment v. Tenenbaum seems to put the final nail in the coffin on the RIAA's argument that 'statutory damages' up to $150,000 can be awarded where the record company's lost profit is in the neighborhood of 35 cents. Not only do Tenenbaum's lawyers accurately describe the applicable caselaw and scholarship, something neither the RIAA nor the Department of Justice did in their briefs, but they point out to the Court that the US Court of Appeals for the First Circuit — the appeals court controlling this matter — has itself ruled that statutory damages awards are reviewable for due process considerations under the guidelines of State Farm v. Campbell and BMW v. Gore. The brief is consistent with the amicus curiae brief filed in the case last year by the Free Software Foundation."
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Tenenbaum's Final Brief — $675K Award Too High

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  • Re:Fees (Score:3, Informative)

    by hedwards (940851) on Thursday February 18, 2010 @08:15PM (#31193490)
    That's how the justice system works. Cruel and unusual punishment doesn't really apply AFAIK. It doesn't matter whether a judgment is excessive or not when considering that prohibition. It's more aimed at cases like people accused of torture can't themselves face being abused as a part of the punishment. People that are found guilty of being slum lords can't themselves generally be forced to live in maggot infested cesspools.

    That's the sort of thing that's regarded as cruel. Since the penalties are a rarity, they might get away with arguing that it's unusual, however the lack of a substantial number of cases where people were tried in that sense may or may not hurt.
  • Re:Fees (Score:5, Informative)

    by Anonymous Coward on Thursday February 18, 2010 @08:33PM (#31193692)

    That's how the justice system works. Cruel and unusual punishment doesn't really apply AFAIK. It doesn't matter whether a judgment is excessive or not when considering that prohibition. It's more aimed at cases like people accused of torture can't themselves face being abused as a part of the punishment. People that are found guilty of being slum lords can't themselves generally be forced to live in maggot infested cesspools. That's the sort of thing that's regarded as cruel. Since the penalties are a rarity, they might get away with arguing that it's unusual, however the lack of a substantial number of cases where people were tried in that sense may or may not hurt.

    If financially ruining the life of someone who has done little or no real harm to anyone is not "cruel" then the definition of "cruel" needs to be amended. There's a reason we don't fine people ten million dollars for jaywalking, because it would be excessive and far out of proportion to the act that is being punished. There's something clearly and plainly wrong with punishing copyright infringers more severely than many con artists and violent criminals who do real harm to real people, as opposed to little or no harm to corporations. All the clever explanations in the universe don't change that. In fact any explanation designed to excuse this behavior is also wrong.

    All this bullshit does is drive the behavior (filesharing) further underground and erode whatever respect people still have for the law, which may not be much after witnessing things like the War on (some) Drugs and "free speech zones".

  • Re:Fees (Score:1, Informative)

    by Anonymous Coward on Thursday February 18, 2010 @08:58PM (#31193906)
    Isn't the "cruel and unusual" thing for criminal cases? Since these are civil cases I don't believe there is any "cruel and unusual" clause.
  • Please show me in his post where he says that damages should only count for the original download. You seem to be putting words in his mouth.

    "record company's lost profit is in the neighborhood of 35 cents"

    That statement can only be true if you're talking about the original download. Distribution rights are far more expensive.

  • Re:Fees (Score:3, Informative)

    by GigaplexNZ (1233886) on Thursday February 18, 2010 @09:42PM (#31194292)

    Pirates don't steal things because they're making some kind of political statement.

    While that might have been true back in the day of CD ripping, it's certainly not true when it comes to draconian DRM for games.

  • Re:Fees (Score:1, Informative)

    by commodore64_love (1445365) on Thursday February 18, 2010 @09:52PM (#31194406) Journal

    >>> "From Hell's heart I stab at thee
    >>> "For hate's sake, I spit my last breath at thee."

    And with my sharpshooter I have your RIAA office in my sights.
    Are you sure you don't want to drop the case Mr. RIAA employee? (click)

  • Distribution (Score:5, Informative)

    by NewYorkCountryLawyer (912032) * <rayNO@SPAMbeckermanlegal.com> on Thursday February 18, 2010 @10:01PM (#31194508) Homepage Journal
    Since the "distribution troll" is working this thread, I'll make this statement once:

    The distribution right in 17 USC 106(3) [cornell.edu] requires:
    -that it be by a sale, or other transfer of ownership, or by a rental, lease, or lending, AND
    -that it be to the public.
  • Re:Fees (Score:3, Informative)

    by AK Marc (707885) on Thursday February 18, 2010 @11:36PM (#31195344)
    Many states require they take back a new car for a full refund for some period (3 days, 5 days, 7 days), and there are also laws protecting mail-order purchases because you often don't get a full idea of what the item is before you get it in your hand.
  • Re:Fees (Score:5, Informative)

    by bws111 (1216812) on Friday February 19, 2010 @12:08AM (#31195538)
    The states with 3-day rules that I am familiar with do not allow you to return the car within three days. They allow you to cancel the sale within three days, but you don't get the car until that period is up. The rule is not there in case you don't like the car, the rule is there to protect you from high-pressure sales tactics causing you to buy something you really don't want.
  • Re:Fees (Score:5, Informative)

    by blackraven14250 (902843) * on Friday February 19, 2010 @12:09AM (#31195550)
    They'll weep if the precedent is now set closer to 35 cents a song and not $150,000.....
  • Re:Fees (Score:4, Informative)

    by Maxo-Texas (864189) on Friday February 19, 2010 @01:43AM (#31195984)

    Texas
    http://www.avvo.com/legal-answers/is-there-a-3-day-cooling-off-period-after-a-car-ha-5545.html [avvo.com]
    THERE IS NO 3 DAY CHANCE TO GET OUT OF A CAR PURCHASE IN TEXAS

    http://www.weblocator.com/attorney/ca/law/c05.html [weblocator.com]
    California
    Finally, consumers should be aware that the three-day "cooling off" period that allows a buyer to cancel a contract within three days does not apply to the purchase of new or used cars. Because the contract cannot be canceled under this consumer protection provision, a buyer should exercise caution before signing any contract for the purchase of a used car.

    However... if it is not a car... and at your home... and worth over $25...

    http://www.ftc.gov/bcp/edu/pubs/consumer/products/pro03.shtm [ftc.gov]
    If you buy something at a store and later change your mind, you may not be able to return the merchandise. But if you buy an item in your home or at a location that is not the seller's permanent place of business, you may have the option. The Federal Trade Commission's (FTC's) Cooling-Off Rule gives you three days to cancel purchases of $25 or more. Under the Cooling-Off Rule, your right to cancel for a full refund extends until midnight of the third business day after the sale.

    The Cooling-Off Rule applies to sales at the buyer's home, workplace or dormitory, or at facilities rented by the seller on a temporary or short-term basis, such as hotel or motel rooms, convention centers, fairgrounds and restaurants. The Cooling-Off Rule applies even when you invite the salesperson to make a presentation in your home.

    Under the Cooling-Off Rule, the salesperson must tell you about your cancellation rights at the time of sale. The salesperson also must give you two copies of a cancellation form (one to keep and one to send) and a copy of your contract or receipt. The contract or receipt should be dated, show the name and address of the seller, and explain your right to cancel. The contract or receipt must be in the same language that's used in the sales presentation.

    (lists of various exceptions).

  • by NewYorkCountryLawyer (912032) * <rayNO@SPAMbeckermanlegal.com> on Friday February 19, 2010 @02:10AM (#31196080) Homepage Journal

    Interestingly, Judge Gertner in the Tenenbaum trial is quite pro-little guy. Take a look at most of her decisions, and she really tries to help defendants.

    That is a ridiculous assessment. Judge Gertner has been the best friend the RIAA has had in the US to date. She consolidated all of the hundreds of Massachusetts cases under her watch, and she's never ruled in favor of a defendant. She's upheld every subpoena, and entered every judgment, and signed every ex parte order that's been presented to her by the RIAA over a 7 year period, except for a few fine distinctions on minor procedural issues during the past year and a half. I'm convinced you are just a dishonest person and I wish you'd STFU rather than keep on trying to mislead the nonlawyers here.

  • by NewYorkCountryLawyer (912032) * <rayNO@SPAMbeckermanlegal.com> on Friday February 19, 2010 @02:34AM (#31196186) Homepage Journal

    I think NYCL is a bit too fond of telling slashdot of how the law should be and how it should work, not so much practical reality.

    Well I'm a lawyer. I have to work with what the law is. I have written elsewhere, in the ABA Judges Journal, about the unfairness of the way these cases work out in practical reality, due to the economic imbalance between the litigants. But when I bring that type of issue up here, I get accused of 'playing violins'.

    Here I'm dealing with readers who are largely (a) very intelligent, (b) educated, (c) interested in hard news and substance rather than "human interest", and (d) intensely interested in copyright law as it bears upon digitalization, software, and the internet. So I try to confine myself to discussing (a) the legal events and (b) the legal issues to the extent I can comment on them without disclosing thoughts I haven't yet disclosed in publicly filed litigation documents.

    You don't need yet another voice here griping about the RIAA's improper influence on Congress, and even on the Department of Justice. I'm aware of those things, but have nothing special to say about them.

    And most importantly, the life of a lawyer is all about "practical reality". My practical reality is the given facts, and the given law. I do the best I can in that world.

  • by NewYorkCountryLawyer (912032) * <rayNO@SPAMbeckermanlegal.com> on Friday February 19, 2010 @02:37AM (#31196204) Homepage Journal
    And as to 'how the law should be'.... you've never heard that from me. I have never ever discussed that publicly. That's for Lawrence Lessig, and Charles Nesson, and other academics. As a litigator I take the law that is. No more and no less.

    In the cases I've been involved in the only "activists" have been the RIAA lawyers, making arguments that have no basis in existing law. You have never seen me do that, in my court papers, or here.
  • by NewYorkCountryLawyer (912032) * <rayNO@SPAMbeckermanlegal.com> on Friday February 19, 2010 @02:39AM (#31196210) Homepage Journal
    You demonstrated again that you are a liar because you truncated my statement. Why did you leave out the part that began "except". You are a shameful liar. I am not responding further. Slashdot readers are intelligent enough to see through your game.
  • by Endo13 (1000782) on Friday February 19, 2010 @03:09AM (#31196340)

    Two things:

    1. You have, I hope, noticed how radios always cut off part of the song at the beginning or the end? This is precisely to make it less attractive for people to simply record songs off the air.

    2. Radio stations either pay huge royalties (IIRC from what someone in the business told me, this can be several thousand US$ per track - please note, this was from at least 10-20 years ago, and I would imagine licensing costs have gone up since) OR they play exactly the tracks the labels want them to play, and nothing more, thereby serving as advertising for the "latest and greatest" works the labels want to promote.

  • Re:Distribution (Score:5, Informative)

    by Wizard Drongo (712526) <wizard_drongo AT yahoo DOT co DOT uk> on Friday February 19, 2010 @05:38AM (#31197042)

    I would note that if someone says "I did this then that then this", and if pressed if they committed distribution said "I don't know what that is, and that's for the court to decide", then they've not admitted distribution;
    Sometimes, slimy prosecutors will try and get defendants to admit their guilt by asking them questions they lack the legal competency to understand. To me, the word "distribute" means to spread something around, make it accessible to others". To a lawyer it has a set statutory meaning, confessing to which means you have committed a crime (or a civil infringement; means something different in US law to Scots law I imagine). For a lawyer to get some Joe on the stand and make him say "distribution" when they're not fully aware of that difference is disingenuous.

  • Re:Distribution (Score:3, Informative)

    by NewYorkCountryLawyer (912032) * <rayNO@SPAMbeckermanlegal.com> on Friday February 19, 2010 @04:39PM (#31203716) Homepage Journal

    If you have read through the whole thread up to the time of your post here and still failed to see how Theaetetus is trolling and NYCL is merely calling him out on it, then all I can really say is I feel sorry for you. You must get trolled a lot, because it's not even that subtle here any more.
    Additionally, here are a few more things I've observed, and my impressions of reading between the lines on them.
    Fact 1. Theaetetus claims to have personally contacted NYCL in private, prior to all this, and at that time revealing his true identity, amongst other things.
    Fact 2. By all appearances, NYCL freely admits who he actually is on these forums, and allows us all to see what his intentions are. He has also never given reason to doubt his honesty. He states his positions, and when people twist them around and put words in his mouth, he sets them straight.
    Fact 3. Theaetetus, while claiming to have revealed his identity to NYCL, does none of that on the forums here. We have no clue who he may actually be. For all we know, he actually *could* be a genuine shill, paid by the RIAA.
    Based on these facts, here are my impressions:
    NYCL is actually being generous by not revealing Theatetus's true identity here, and trying to forewarn us as honestly and politely as possible, in letting us know who the troll is. He knows who Theatetus actually is (in Theaetetus' own words) so he should know whether or not he's actually a troll. Furthermore, Theaetetus doesn't even bother to deny that he's a troll or a shill, and tries to deflect it by name-calling against NYCL. (A coward? Really? Need I say more?)

    For the record, let me say:
    1. I haven't a clue who Theaetetus is.
    2. I can neither confirm nor deny that he contacted me by email. I've received thousands of emails over the past 5 years from people I don't know about the RIAA cases. Some of the emails identify the person, some don't. Maybe he did contact me and reveal his identity, and maybe he didn't. If someone were to contact me today, and state that he is the real Theatetus on Slashdot, how would I know?

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