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The Courts

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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  • Thomas case (Score:2, Insightful)

    by Anonymous Coward on Thursday February 18, 2010 @08:06PM (#31193402)

    Will this affect the thomas appeal?

  • by TinBromide (921574) on Thursday February 18, 2010 @08:08PM (#31193418)
    Lawyer: "I Have created this airtight and brilliant brief! It is Irrefutable and right! All of society will benefit from my genius! I am sure to win Lawyer of the year for this awesome brief!"

    Judge:"That's nice, any who, back to what I was saying..."
  • Re:Fees (Score:3, Insightful)

    by Anonymous Coward on Thursday February 18, 2010 @08:08PM (#31193422)

    If he doesn't get awarded fees, there would hopefully be thousands willing to pitch in to reimburse him for the precedent he bought us.

  • And? (Score:3, Insightful)

    by selven (1556643) on Thursday February 18, 2010 @08:17PM (#31193522)

    The fact that the defendant has made an argument isn't news. Anyone can make an argument, and the amicus curiae system even allows strangers like me to submit an argument on this case to the court. When the judge decides in favor of one party or the other, that's going to be the significant event. I would give some latitude if this were a pivotal Supreme Court case, but so far it's just a filesharing trial.

  • Re:Fees (Score:5, Insightful)

    by Beardo the Bearded (321478) on Thursday February 18, 2010 @08:17PM (#31193524)

    If this was me, I'd do the same thing as Tenenbaum. Fuck it, you're already looking at bankruptcy, why not burn everything you have in the off chance that you take them with you?

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

  • by sys.stdout.write (1551563) on Thursday February 18, 2010 @08:31PM (#31193670)
    Re-reading this, it sounds like I have an axe to grind. This isn't really the case, it just bothers me that we keep getting into this cycle:
    • Everyone is told that some legal theory is the best thing since sliced bread, and the RIAA and DoJ are shaking in their boots
    • Three months later the court rules for the RIAA and we all post angry comments about the justice system works, but nobody ever brings up the fact that we were totally mislead three months ago

    Anyway, end rant. Mod me down as Flamebait and all that.

  • by sys.stdout.write (1551563) on Thursday February 18, 2010 @08:39PM (#31193744)
    The alternative is writing articles entitled "Defendants submit a very persuasive brief to the court detailing why the RIAA is wrong" instead of making these outlandish predictions about this being the "nail in the coffin," which is going to be proven false in three months.
  • You're failing to take into account how peer-to-peer works: most people have a share ratio of about 1:1. On average, any one person can only be held accountable for distributing one copy of something they seed.

    It only requires one distribution to be liable for infringement of the distribution right. And Tenenbaum admitted under oath that he distributed. Thus, distribution was proved, and there was a directed verdict that Tenenbaum both copied and distributed the copyrighted works. Now, he's trying to go back on that and claim that he only copied the works - hence the damages of $1 per copy. That disregards his admitted distribution.

    Moral: don't admit to anything, particularly infringement.

  • by pookemon (909195) on Thursday February 18, 2010 @09:03PM (#31193956) Homepage
    I'm intersted in knowing how RIAA know that he distributed the songs to "millions of people". And what was his share ratio on these songs? Eg. If his share ratio on these songs were 1,000,000 then it could be said that he's passed those songs onto a million people. If it were 1.5 then it can be said that he passed it on to 1 person and half of it onto another person (and then there'd need to be discussion as to how much was lost by passing half an MP3 onto someone).

    Just my 2c.
  • Re:Fees (Score:3, Insightful)

    by negRo_slim (636783) <mils_oRgen@hotmail.com> on Thursday February 18, 2010 @09:07PM (#31193982)

    If he doesn't get awarded fees, there would hopefully be thousands willing to pitch in to reimburse him for the precedent he bought us.

    I'd Paypal that for a dollar.

  • by Tiger4 (840741) on Thursday February 18, 2010 @09:12PM (#31194044)

    I think I don't buy the black and white argument, but the logic does strongly bias towards teh first seeder. Quite literally, to borrow from Will Smith, "If you don't start nothin', there won't be nothin'!" No seeders, no sharing, no infringements.

    Obviously the sharers have a piece of the liability too, since if they didn't request and didn't hang around the seeders wouldn't be sharing with anyone. But that is much that same as the drug dealer and the drug user problem, or looking for who started and participated in a bar brawl. They are in a symbiotic relationship, but the "offenses" of each party are somewhat different.

    To put a number on it, I'd say the relationship is a declining harmonic progression, with the seeder carrying weight 1, and each successive participant in the torrent carrying weight 1/n. The millionth guy, Tenenbaum, may be the straw that broke the RIAA's back, but his actual contribution is near meaningless.

  • Re:Fees (Score:5, Insightful)

    by Anonymous Coward on Thursday February 18, 2010 @09:28PM (#31194168)

    If [Tenenbaum] doesn't get awarded fees, there would hopefully be thousands willing to pitch in to reimburse him for the precedent he bought us.

    Holy Crap, that's the funniest thing I've read today. You don't actually believe that the pirate community would give up a single penny to support this do you?

    One, and only one, of the following is true:
    1. Anyone with reason to be sympathetic to Tenenbaum and his legal cause is by definition a pirate.
    2. You're an idiot.

  • Re:Fees (Score:4, Insightful)

    by arielCo (995647) on Thursday February 18, 2010 @09:41PM (#31194280)
    Yes, that'll teach them! They're going to weep all the way from the courthouse to their next case, with their shiny new precedent as their only consolation.
  • Re:Fees (Score:5, Insightful)

    by commodore64_love (1445365) on Thursday February 18, 2010 @09:42PM (#31194290) Journal

    AND they are tired of getting screwed up the ass by dishonest corporations that refuse to offer a basic "satisfaction guaranteed" warranty. Hell even the chocolate bar companies offer that warranty ("If you are dissatisfied with your Snickers, return it for full refund.").

    I grew tired of throwing-away my money on shitty CDs or boring movies, so now I try before I buy. If it's good I'll buy it to support the artists/engineers, but otherwise no.

  • by h4rr4r (612664) on Thursday February 18, 2010 @09:46PM (#31194334)

    Looting removes physical goods, this is just breaking of a monopoly. Considering that this monopoly has now been extended so often perhaps piracy is the morally correct thing to do.

    I do not participate in these activities, but I can see the rationale. I cannot however seen any relation between infringing on a government granted monopoly and the taking of actual goods.

  • Re:Fees (Score:5, Insightful)

    by commodore64_love (1445365) on Thursday February 18, 2010 @09:48PM (#31194370) Journal

    Also even if said person is not financially ruined, it would take that citizen the rest of his life to earn the money to pay-back the cash fine. In effect it's a life sentence to slavery for RIAA, simply because the person didn't legally buy ~$30 worth of songs. That IS excessive.

  • by ShinmaWa (449201) on Thursday February 18, 2010 @09:54PM (#31194434)

    You're either a moron or an RIAA lawyer.

    I'm sorry.. but no. Not acceptable behavior. I'm willing to listen to reasoned debate over the facts, but when you come out of the gate with an ad hominem attack and accuse someone who disagrees with you to be a shill for your opponent, you seriously undermine your credibility and come off as exactly the "biased legal reporter" you've just been accused of being.

    I expected better of you and am disappointed.

  • He could hit 1:1 or 100:1 ratio with peer-to-peer and never actually distribute the file in full (if he has a flaky connection). So, does the ONE distribution cover this? Or is it more like distribution full or in part...?

    He admitted under oath that he distributed. He said effectively, "I, Andrew Tenenbaum, distributed at least one complete copy without authorization." That's all that needs to be said - it fully proves that he illegally distributed one copy. Any question about seeding is irrelevant. Also, he was doing this via Gnutella, not bittorrent (and Gnutella didn't support bittorrent back then), so MediaSentry could prove that the entire file they downloaded came from his IP.

  • by russotto (537200) on Thursday February 18, 2010 @10:04PM (#31194526) Journal

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

    Reproduction rights are expensive too, but it doesn't make sense to consider the damages from unauthorized reproduction of one copy to be equivalent to the cost of a license to reproduce some large number of copies. If he distributed one copy, the actual damages are at most the price of one copy.

  • by ljw1004 (764174) on Thursday February 18, 2010 @10:04PM (#31194534)

    I agree. That's the interesting discussion that we SHOULD be having. In particular,

    (1) The courts say "We don't know how many people downloaded it so we'll pick an arbitrary number in the THOUSANDS when we calculate damages". That reasoning needs to be challenged.

    (2) The courts say "Distributing just a part of the song counts just as bad as distributing the whole of it". That reasoning needs to be challenged.

    I'd really like to have a legal advocate on the technie's side who can make these arguments. These are BAD precedents that the courts are setting and which need to fought.

    (NewYorkCountryLawyer's fight that "Tannenbaum didn't even distribute" is counter-productive.)

  • by h4rr4r (612664) on Thursday February 18, 2010 @10:04PM (#31194536)

    Why does it have to be either or? It could well be both.

  • by AshtangiMan (684031) on Thursday February 18, 2010 @10:13PM (#31194634)
    I think the crux of how slanted your view is is nicely summed up by your use of the word mislead. The law is a complex area. What nycl gives us very generously is succinct cogent explanations of the case, the body of law and precident that relates, and an interpretation based on his subjective view. You are welcome to take the first two and provide your own interpretation.
  • by OSPolicy (1154923) on Thursday February 18, 2010 @10:20PM (#31194696) Homepage

    This post is long because the brief is long.

    First, keep in mind that RIAA doesn't write the law. Don't hate RIAA for using laws that Disney and others bought Congresscritters to enact into law. Hate the Congresscritters.

    The first basic argument is that the companies lost nothing because even if Tenenbaum had not shared the music then someone else would have. However, the companies lose sales to illegal downloading. There's a question of how many sales, but no question that there are lost sales. So they suffer loss from one person making downloads available. If only one person made the files available, they could recover their losses by suing that person. Defendant's argument is that because many people do it, the companies cannot recover. That's like saying that if you get beaten up then you can sue your attacker, but if you get lynched by a mob then you have no recourse. The fact that many people are doing it... you know, if you have to read that here to learn it, you can't learn it. Let's move on to the next point.

    From the brief: “[N]umerous courts have held that assessed statutory damages should bear some relation to the actual damages suffered.” When the Supreme Court has spoken, it makes no difference what other courts have said or how numerous they are. The Supremes get the last word. And here's the word: The "excessiveness inquiry appropriately begins with an identification of the state interests that a punitive award is designed to serve." Here, the interest is in deterring people from granting themselves licenses to engage in unlimited and uncompensated distribution of very valuable copyrighted works. Such distribution not only costs the original copyright owner money but the availability of such goods depresses or destroys secondary markets and harms, for example, used CD stores. For these and countless other reasons, the state obviously has a very large interest in deterring the conduct.

    They go on to say that "we do not doubt that Congress has ample authority to enact such a policy for the entire Nation." They note that "evidence that a defendant has repeatedly engaged in prohibited conduct while knowing or suspecting that it was unlawful would provide relevant support for an argument that strong medicine is required to cure the defendant's disrespect for the law." Is there argument that Tenenbaum thought that his conduct was lawful? There is not. There is, in fact, his sworn testimony that he knew that the time that it was illegal.

    Finally, the case that *defendant* cites states, ""While petitioner stresses the shocking disparity between the punitive award and the compensatory award, that shock dissipates when one considers the potential loss to respondents, in terms of reduced or eliminated royalties payments." What is the potential loss from granting a license for unlimited uncompensated distribution of all of those works? Tennenbaum got tagged for $675K and the courts routinely award 4:1 damages, so the relevant question here is whether the potential loss was more or less than $675K / 30 songs / 4:1 damage ratio = $5625/song and the answer is that such a license would clearly cost more. A helluva lot more. A whole helluva lot more. And it wouldn't matter that others also had licenses, it would still cost a helluva lot more. Tennenbaum is getting off dirt cheap.

    Despite defendant's repeated claims that compensatory and punitive damages have similar jurisprudence, defendant's own brief cites State Farm v. Campbell which states, "We recognized ... that in our judicial system compensatory and punitive damages ... serve different purposes." In case you're not a lawyer, let me help you out: it never, ever gets clearer than that for any reason. Defendant's claims that the court should conflate compensatory and punitive damages are totally and unconditionally wrong at best.

    Defeendant argues that even if $5625 is dirt cheap for a license for unlimited distribution of a song worth at least

  • by h4rr4r (612664) on Thursday February 18, 2010 @10:56PM (#31195024)

    Since you stole your goods, this is not equal basis.

    If I make chairs and sell them and you invent a machine that duplicates chairs and give them away, you owe me nothing.

    Stealing requires taking of physical goods, thus depriving the original owner of them. The original owner still has them, they might just not be worth as much as he likes.

  • by h4rr4r (612664) on Thursday February 18, 2010 @11:00PM (#31195058)

    So how has radio not yet put them out of business?

  • by sys.stdout.write (1551563) on Thursday February 18, 2010 @11:03PM (#31195082)
    That's not what I was saying at all; re-read the post.

    The first was a prediction you made, i.e. that fair-use was likely to prevail as a legal theory for file sharing.

    The second was the first of many cases in which fair-use was dismissed as a legal defense.

    Look, it's okay to be wrong. But when you describe something as a "nail in the coffin" even though it clearly isn't, that's when I must take issue.
  • $30k still seems like too much. Now your talking about $100 per mile over. Still not fair, to make a man a slave for a year of his life over such a petty crime.

    Maybe $300, that is 300 times the value of 1 song, maybe even $3k. You know something normally found as a fine.

    Yeah, but it's not a fine - fines go to the state. This is compensatory damages for the distribution right.

    Anyways, $30k would be the upper end. By my calculations (looking at how damages were probably calculated in both this case and the two Thomas verdicts), I believe damages would work out to be between $8k and $11k per song, and possibly even less in aggregate.

  • by bws111 (1216812) on Thursday February 18, 2010 @11:30PM (#31195286)

    Three people rob a bank: one gives the teller the note, one disables the security camera, and one drives the getaway car. Which one is going to be charged with bank robbery? All three, and they are not each going to get 1/3 of the sentence. In fact, since they acted together, each one may receive MORE of a sentence than if he had acted alone.

    As much as people like to pretend otherwise, courts are not stupid. Seeing through bullshit is pretty much what a judge does. Trying to reduce your culpability by saying you only committed part of the infringement is not going to fly.

  • by h4rr4r (612664) on Thursday February 18, 2010 @11:43PM (#31195374)

    But they serve the same purpose to punish the offender.

    $8k may be right in terms of likeness to other cases, but still points out that he would have been better off stealing from a store. Which is not really the message we should be sending.

  • Re:Distribution (Score:2, Insightful)

    by Maow (620678) on Friday February 19, 2010 @12:15AM (#31195588) Journal

    Since the "distribution troll" is working this thread, I'll make this statement once

    Sheesh, Ray, that "troll" has been very thoughtful in his posts about distribution - not trollish at all.

    I read his posts quite carefully after you snarked at him in a previous thread and I thought (IANAL) that he made very good (not implying correct) points about distribution. While IANAL, as a disinterested observer I felt he made very interesting points. I did *not* feel he was pro-RIAA.

    I felt you owed Thaetius(?), the self-proclaimed law student, an apology after that previous thread and I feel you owe him even more after this post.

    Really, I very much appreciate your input to Slashdot, but these troll-accusation posts? Not so much.

    I encourage you to rethink at least the spirit of Thaetius's contributions to the dialogue.

  • by Anonymous Cowpat (788193) on Friday February 19, 2010 @12:23AM (#31195638) Journal

    Yeah, but it's not a fine - fines go to the state. This is compensatory damages for the distribution right.

    It looks the same from the defendant's point of view, its still $30k out of his wallet.

    And why is this distribution right worth $30k?
    Say he distributes it to 1 person, and they distribute it to 1000 people, what sense does it make for him to be responsible for 1001 redistributions? The music is readily available through traditional distribution methods, the second person could just as easily have distributed his 1000 copies from a CD bought in a shop, the ONLY copy made which didn't generate a sale and is directly attributable to the first uploader is that from the first uploader to the second uploader.

    To put it in terms of your exclusive distribution right view:
    If I upload a copy of your music to someone else, I've deprived you of 1 sale, but I've done no more damage to your ability to further distribute your track than you're doing to yourself by selling it to anyone who'll buy. They could then infringe your distribution right for themselves.
    If you're selling a track freely, then nobody who distributes a single copy to someone else is creating any sort of a cascade effect leading to massive distribution infringing on your rights which would otherwise not have occured.

    If it were some sort of unreleased track then I would be denying you your exclusivity in being able to distribute the track, and if I were to be the source of that getting onto X filesharing network then I would be doing you a lot of damage, but once you start selling it to all and sundry, I'm only costing you the lost sale for the people I distribute it to. Unless you want to get into some really messy argument about the second person not having had the opportunity to distribute it if they hadn't got it for free. In any case the standard argument from the labels is that every copy = a lost sale, on the basis that everyone who gets it wanted it and only got it for free because they could and otherwise would have paid. If you want to hold me strictly responsible on a 1:1 basis for every person I upload it to being someone who would otherwise have bought it, then you also have to accept that if I hadn't uploaded it to them, they would have bought it anyway and would, presumably, have felt equally free to distribute it themselves. Thus rendering me not at fault for any subsequent copies distributed by them.

    Depressingly, you'll probably turn out to be right though, because courts aren't really interested in either reason or justice, and because the law is horribly broken.

  • But they serve the same purpose to punish the offender.

    $8k may be right in terms of likeness to other cases, but still points out that he would have been better off stealing from a store. Which is not really the message we should be sending.

    Why? Steal from a store, the store loses the retail cost of one CD... and is recouped by insurance.
    Infringe the distribution right, and the producer has to significantly increase the licensing cost to recoup their costs, such that CDs go up in price by much more than one penny.

    No, maybe it is the message we should be sending - if you're going to be cheap, just steal the CD, rather than destroying the exclusionary copyright.

    Look at it this way, too - distribution rights are international in scope... Steal a CD, and you've affected a local economy. Upload a song, and you've affected the global economy, and under Keynesian economics, you've decreased the flow of money through the system and have impoverished everyone who is part of that global economy.

  • by QuoteMstr (55051) <dan.colascione@gmail.com> on Friday February 19, 2010 @12:42AM (#31195738)

    Say we have a community of 100 users: if one person shares a song and everyone else downloads it, then under your theory, the uploader is responsible not only for the damages resulting from his own use, but the damage resulting from everyone else using the song: that is 100 * P, where P is the amount of damage caused by a single use.

    If two people share the song, isn't each responsible for half of the total damage? The amount of damage is constant: only the allocation differs. If four people share that song, then the total damage should be allocated proportionally.

    Thus, if everyone shares that song, each individual ought to be responsible for damages of P*100 / 100, that is, P again.

    The math doesn't change if we use 'the total size of the internet' instead of P: each person only owes damages for his own use because everyone else contributes to the same pool.

  • And why is this distribution right worth $30k?
    Say he distributes it to 1 person, and they distribute it to 1000 people, what sense does it make for him to be responsible for 1001 redistributions?

    Say you have an exclusive monopoly on something - say you create a new Mona Lisa, or discover a new way to make jet fuel out of water. You can charge whatever the market will bear for your painting or fuel because you have a natural monopoly.
    Now say someone sneaks in and makes a copy of your painting, or steals your exclusive formula, and they give it away for free. Now, you can't charge anything, because any potential customer will just get it for free. Poof - your hard work is gone. It doesn't matter whether 100 people make jet fuel from water or 1 million people do - you can't make anything from your invention, even if it cost you a million dollars to research and develop, because anyone can get the information for free.

    The first distribution destroys the exclusivity, and most of the value is in the exclusivity. Therefore, the first unlicensed distribution destroys most of the value of the property.

    To put it in terms of your exclusive distribution right view:
    If I upload a copy of your music to someone else, I've deprived you of 1 sale, but I've done no more damage to your ability to further distribute your track than you're doing to yourself by selling it to anyone who'll buy.

    ... provided that my potential customer will only purchase from me. But when I'm charging $1 for the song and you're giving it away for free, why would they go to me?

    If it were some sort of unreleased track then I would be denying you your exclusivity in being able to distribute the track, and if I were to be the source of that getting onto X filesharing network then I would be doing you a lot of damage, but once you start selling it to all and sundry, I'm only costing you the lost sale for the people I distribute it to. Unless you want to get into some really messy argument about the second person not having had the opportunity to distribute it if they hadn't got it for free.

    Sure, any person along the chain could have been the one to upload it for free to the net... But you did it, and I can prove you did it. Therefore, you're responsible. The statute doesn't require that the plaintiff find the sole uploader or original uploader... any infringer is liable. Basically, the defense "but it was already online, so when I distributed it, I wasn't causing additional harm" may sound good but isn't supported by the statute, and any judge who accepted it would be reversed immediately.

  • Re:Fees (Score:2, Insightful)

    by Anonymous Coward on Friday February 19, 2010 @01:13AM (#31195868)

    The fact that you reflexively limit the argument at hand to "music" and "cds" is telling. I'd be more concerned about PC games and movies than music. Movies, at the least, you can wait until they hit cheap theatres, or the rental store, usually the same year they're released, or more recently, within 6 months. PC games, though, you've all the same issues as with music or movies, but further compounded.

  • by Anonymous Coward on Friday February 19, 2010 @01:13AM (#31195874)

    We like NYCL because he fights for the side of logic on this issue (outlandish damages are not logical), and he fights against the barely legal mobsters that are the RIAA. That's why we like him.

    Unfortunately he's a lawyer, and being a lawyer, he absolutely cannot be trusted on anything, as his illogical abuse of another person making a logical case here shows. If NYCL happened to be working for the music industry (not that he would), he would regard it as his professional duty to be as much an illogical bastard as the RIAA lawyers are. Anything that advances a lawyer's legal case is fair game. Remember the illogical repetition of the phrase "single mother" in another NYCL case, as if sympathy had any bearing on the logic? That's how the legal game works.

    Lawyers are *trained* to be amoral (not immoral), so that they can defend criminals in full knowledge that they are doing wrong. This makes them suit-wearing arms dealers, playing both sides equally and fostering legal warfare. What you train is what you get.

    And judges come from the same amoral ranks, which is why you can never guess how a case will turn out. What's more, a significant proportion of politicians come from the same pool as well, which is why politicians are untrustworthy bastards by nature and why governments are such a disaster.

    It's good that NYCL is fighting the RIAA, as he's doing an admirable job. Unfortunately, the profession he represents is not worth any admiration whatsoever.

  • Re:Fees (Score:4, Insightful)

    by twidarkling (1537077) on Friday February 19, 2010 @01:16AM (#31195886)

    Who gives a crap about other people's opinions? Reviewers are notorious for trashing anything that's popular, or being bought off, and I wouldn't trust most of the mouth-breathers on the internet to tell me honestly if they were human. As for asking my friends, we have wildly divergent taste in music, so that's not an option either.

  • by nudicle (652327) on Friday February 19, 2010 @01:19AM (#31195902)
    I am not seeing this.

    In the first link you provided, the only prediction I see relates to statutory damages. NYCL says that there are facts that could lead a court to find fair use in the context of a p2p environment, but there's no prediction with respect to that. The statement that there are fact patterns such that court could find fair use in a p2p situation is still true.

    I can't find a comment by NYCL in the second link. If one is there, can you show me where it is?

    NYCL is providing links and updates to potentially important IP cases. He's also "biased" in the sense that he has an opinion, but he wears it on his sleeve so I'm not sure where your anger comes from. If you want to be angry you can also say "the court probably won't care about the amicus briefs", or "the court won't care about the scholarship", or "linking to an 'Ed. Note: the law and scholarship agree' comment is lazy and lame and unpersuasive', but, although all of that would be true in a sense, this is /. and not a law weblog.

    99% of the people here have an opinion on the outcome they want and will criticize the courts if that outcome is not reached no matter what is a reasonable interpretation of the law and precedent. /. is a machine that gets fed and, at least with respect to law, is not a place you're going to fund much honest discourse on the current state of IP law. What you will find is discourse on how IP law should be changed -- but those arguments are, no matter what they pretend to be, about statutory changes rather than informed arguments regarding textual analysis of actual law and precedent.

    NYCL is feeding information to the machine with his own opinion injected in the summary. He has the advantage of having an educated opinion, whether or not he's correct about the eventual outcome in any particular case. That's like 10 jillion times better than people will ever see reading Cory Doctorow. So I'm happy he exists and posts here. (IAAL, and I am an IP lawyer)

  • by evilWurst (96042) on Friday February 19, 2010 @01:29AM (#31195936) Journal

    Three people coordinate to rob a bank. They make off with $100k. They each get charged for stealing $100k.

    In RIAA-land, they each get charged with stealing TEN TRILLION DOLLARS (picture Dr Evil with pinkie raised to mouth here).

    > As much as people like to pretend otherwise, courts are not stupid. Seeing through bullshit is pretty much what a judge does. Trying to reduce your culpability by saying you only committed part of the infringement is not going to fly.

    And what lawyers do is throw the biggest cloud of bullshit they can at the judge in hopes that the judge won't see through all of it. As much as people like to pretend otherwise, courts aren't infallible. They sometimes ARE stupid and it sometimes takes a long time to resolve that. People getting slammed for a few years salary per each song downloaded/uploaded/possessed was incredibly stupid. It got past the bullshit detector. And, you know, on appeal, some courts are agreeing it was stupid and pushing the awards way back down.

  • Re:Fees (Score:3, Insightful)

    by rolfwind (528248) on Friday February 19, 2010 @01:43AM (#31195988)

    Ah, but you're making a mistake. It may be cruel and unusual, but it is not punishment. Therefore, the eighth amendment does not apply. ;)

    Scalia made a similar argument against the unconstitutionality of torture. It was brilliant! And someone should probably reword the eighth amendment...

    It doesn't need to be reworded. People who interpret things stop need to be twisting around. The 10 bill of Rights all block the government from taking certain actions. It's in effect when the government is in effect.

    Some people may point out these are civil trial, but who enforces the findings of the court? Government. Otherwise the judgements would be voluntary and not binding. Therefore, these punishments are unconstitutional.

  • Re:Distribution (Score:5, Insightful)

    by NewYorkCountryLawyer (912032) * <rayNO@SPAMbeckermanlegal.com> on Friday February 19, 2010 @02:24AM (#31196148) Homepage Journal

    NYCL, don't be a coward. Address my arguments

    You're the coward hiding behind the cloak of anonymity and refusing to disclose your true identity, and what the axe is that you have to grind. Your motivations are quite suspect. You have some gall to call me a coward.

    If you had any knowledge of the law you would know that Joel Tenenbaum doesn't tell the Court what the law is. The Court determines what the law is, and doesn't ask a 20-something non-lawyer who's a witness and party in a case what he thinks the law is and whether he thinks he violated it. And the law in this case is a statute that was enacted by Congress and signed by the President, which describes what a "distribution" is. And as you well know there was no evidence of the components of a violation of the 17 USC 106(3) distribution right. The testimony of a 20-something young adult that he "distributed" something is legally meaningless.

  • by Anonymous Coward on Friday February 19, 2010 @02:38AM (#31196208)

    You don't really think that radio stations get to air all of that music for free, do you?

    Hint: Radio stations pay royalties to the rights holder.

  • Re:Fees (Score:4, Insightful)

    by mjwx (966435) on Friday February 19, 2010 @04:11AM (#31196598)

    Gee, if only there were a legal way to get the opinions of others before you bought something. Nah, that'll never happen.

    Gee, if only there was a way to purchase favourable opinions so that people will go and buy whatever crud I've produced. Nah, that'll never work.

  • by Richard_at_work (517087) <<richardprice> <at> <gmail.com>> on Friday February 19, 2010 @05:16AM (#31196922)
    The biggest thing in the NYCL summary that made me roll my eyes was the '35 cents lost profits' statement - the Tannenbaum case was not about him taking songs without paying for them (in which case it would be 35 cents there abouts), it was about him distributing songs, which is a whole different ball game when it comes to potential profits on sales of distribution rights (and is certainly not 35 cents).

    NYCL has tried to put this kind of spin on these cases several times before - misrepresent the issue at hand in order to make the punishment seem excessive (when its perfectly possible to make it seem excessive without the misrepresentation...)
  • by Wizard Drongo (712526) <wizard_drongo.yahoo@co@uk> on Friday February 19, 2010 @05:18AM (#31196936)

    Aye, you're alright Ray.

    Dunno if things work in New York as they do in Scotland, but if you ever get bored of pure law, you'd be a damned good (senator? congressman?) politician. Here, you'd be great as an MSP (Member of the Scottish Parliament), actually writing and voting on the law rather than just arguing for its correct and speedy application.

    I don't mean that in the "you're really good at arguing" way, or the "you'd be great at getting in amongst them" way, but in the "you seem to have a genuine care and respect for the principles of justice" kinda way. The kinda guy that looks up and sees Justitia on the roof of the court, and it means something to them. In other words, the sort of person I want writing the laws, someone I know won't be corrupted by power or lured by powerful companies.

    That said, I'd imagine you're happy where you are and have no wish to delve into the murky underworld of politics. We are all lessened by that.

  • Re:Fees (Score:1, Insightful)

    by Anonymous Coward on Friday February 19, 2010 @10:06AM (#31198638)

    Pirates regularly pay reasonable sums to THOSE WHO DESERVE IT.

  • Re:Fees (Score:3, Insightful)

    by mrchaotica (681592) * on Friday February 19, 2010 @12:40PM (#31200626)

    You're not being "scammed", the entertainment industry just needs to make some profit to be viable.

    So what? The viability of the entertainment industry is unimportant compared to the rights of customers! If the entertainment industry cannot make a profit within the bounds of Fair Use and the Uniform Commmercial Code, then it deserves to die!

You can measure a programmer's perspective by noting his attitude on the continuing viability of FORTRAN. -- Alan Perlis

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