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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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  • Fees (Score:5, Interesting)

    by biryokumaru (822262) * <biryokumaru@gmail.com> on Thursday February 18, 2010 @08:02PM (#31193358)
    I certainly hope in the end Tenenbaum gets awarded fees, or this'll just be a gain for society at Tenenbaum's expense.
  • Re:Fees (Score:3, Interesting)

    by Anonymous Coward on Thursday February 18, 2010 @08:10PM (#31193444)

    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

    It's amazing how many trials, hearings, lawyers, and documentation is required before anyone official is willing to consider that this might be unjust. Does not the Constitution forbid "cruel and unusual" punishment? This punishment is grossly excessive and therefore cruel. How many proceedings does it take to realize what any idiot can discern?

  • by Anomalyx (1731404) on Thursday February 18, 2010 @08:17PM (#31193514)
    What we need is a non-metaphorical shotgun. Or a non-crappy justice system. Preferably the latter, because we sure don't have it now
  • Nicely Written Brief (Score:5, Interesting)

    by notaspy (457709) <imnotaspy@yahoCOFFEEo.com minus caffeine> on Thursday February 18, 2010 @08:27PM (#31193638)

    I especially like this side note:
    "For additional absurdity, imagine further that the Industry actually got
    judgments of $18 million in damages from roughly 30,000 teenagers, which is
    approximately the number of lawsuits they filed against consumers until the end of 2008.
    That would mean they had outstanding judgments for $540 billion dollars - or more than
    the total revenue the recording industry can expect to earn in about 50 years at its current
    size of $11 billion per year."

    And yet, in view of so many incomprehensible RIAA decisions to date, it's hard to be hopeful.

  • by gknoy (899301) <gknoy@anaLISPsaz ... m minus language> on Thursday February 18, 2010 @08:32PM (#31193680)

    What's the alternative? "Courts reaffirm the validity of industry pillaging of your rights"? That's a more likely prediction, but Ray Beckerman makes predictions on what he believes to be the proper reading of laws (and past rulings). He talks about how it should be, and how he hopes things will turn out.

    Judges don't always agree with him. Sometimes they aren't as familiar with the facts as he is, other times they may just interpret something differently (or rule that something doesn't apply). NYCL is still a great contributor to Slashdot.

    Do we have other lawyers who monitor Nerd-Worthy cases the way Mr. Beckerman does? Do they bother to submit to Slashdot? (I don't know.)

  • Maybe every court should use this as a precedent. Four hundred forty one thousand times the actual damages should be the statutory award. That makes total sense.

    That is surely one way to bring the legal system to its knees; everyone and their mom will sue for damages, no matter how slight, every time there are any damages, because it will be worth it to sue even if you're only out a buck. Anarchy, here we come.

  • by ljw1004 (764174) on Thursday February 18, 2010 @08:36PM (#31193714)

    NewYorkCountryLawyer insists that "damages" don't include the money lost through OTHER people downloading that the plaintiff offered up for sharing. He thinks that damages should only count the original download. Unfortunately

    * This contradicts existing case law
    * It contradicts what the text of the law actually says
    * It contradicts how judges have interpreted the law

    I think he's doing us all a disservice by sticking his hands in his ears and shouting "la la la". There are interesting arguments to be made, and he's not making them.

  • by Secshunayt (976978) on Thursday February 18, 2010 @08:50PM (#31193850)
    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.
  • by ahabswhale (1189519) on Thursday February 18, 2010 @08:57PM (#31193894)

    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.

  • by Mad Leper (670146) on Thursday February 18, 2010 @09:15PM (#31194064)

    How about the defendant is an idiot, the defence lawyers are fools and the judges don't care for grandstanding morons trying to turn a clear cut case of copyright infringement into a reboot of the Rosa Parks case.

    Bit I like you thinking, sounds much more exciting.

  • Re:Fees (Score:5, Interesting)

    by Anonymous Coward on Thursday February 18, 2010 @09:23PM (#31194130)

    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.

    When I read the Constitution it does not make any such exceptions. Nowhere does it say "oh, except for civil torts."

    Now that might still be used as a clever way to maneuver around something the Constitution clearly forbids. For example, the "free speech zones" I mentioned. Have you heard of them? Yeah, the weasel "logic" (sorry to insult weasels this way) is that the First Amendment guarantees that citizens have free political speech, that "Congress shall make no law" restricting this. However, the First Amendment does not specify where this right applies, so they can tell you that you may only exercise your free speech rights within a designated zone. Of course this zone is located someplace where you can be easily ignored and your protests cannot easily be heard.

    Tyrants just love tricks like this. Any reasonable person would say that the Constitution is the highest law of the land, and does not specify where in the USA it applies because it applies everywhere in the USA. But that's not very useful for a tyrant. Likewise, noting that the Constitution does not say that the prohibition against "cruel and unusual punishment" is limited to criminal courts only is also not very useful for a tyrant.

  • Re:And? (Score:5, Interesting)

    by NewYorkCountryLawyer (912032) * <ray@be[ ]rmanlegal.com ['cke' in gap]> on Thursday February 18, 2010 @09:35PM (#31194236) Homepage Journal

    The fact that the defendant has made an argument isn't news.

    I beg to differ, especially in this case. This was the first time that either of the parties directly confronted the central issue. If you look at the table of authorities you'll see that most of the cases and other authorities that were cited were never cited by either side in any prior brief, and that the discussion of Gore and Campbell is likewise totally new. Also the revelation that the 1st Circuit has already applied Gore & Campbell to statutory damages is crucial. It means.... Judge Gertner will be doing likewise.

    I.e., bye bye RIAA damages theory.

  • You're either a moron or an RIAA lawyer.

    1. The first prediction was that the constitutional defense would succeed once the issue has ripened. Don't you get it that the issue has just ripened. Whether my prediction will be fulfilled hasn't yet been determined.

    2. Your second link relates to the fair use defense. I have never at any time expressed any opinion on the fair use defense in this case or made any prediction about it.
  • Maybe every court should use this as a precedent. Four hundred forty one thousand times the actual damages should be the statutory award. That makes total sense.

    Under copyright law, plaintiffs don't have to prove actual damages if they opt for statutory damages. And they didn't. OTOH, the defendant can show evidence of actual damages to mitigate or reduce the statutory damages. But Tenenbaum didn't. That's why his constitutional argument, relying on an alleged $.30 per song, fails at the outset - he never presented any evidence that that was the actual damages.

  • 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.

    Shhhhh. The RIAA doesn't want people (especially judges) to know that. If you say something like that here, word might get out.

  • Come on. You think that every single time that one user downloads a song from another user on a P2P network means a sale was lost? At best, these users either have no intention of buying music, or they don't believe the music is worth what they're being asked to pay. Sidestepping the issue of whether or not their actions are morally or legally correct for a moment, these users STILL have no intention of ever buying music. These lawsuits are simply a means for the recording industry to wring outrageous profits from a demographic of the population who they wouldn't be able to make money from otherwise, under the guise of a law that was enacted when printing presses were the technological boogeymen du jour. The argument that the unknown, indeterminable, unquantifiable amount of music that Tenenbaum actually "distributed" impacted RIAA sales in any significant way (much less than to the tune of $675K) is total lunacy...

    Well, in the only case in which I am aware of the issue having come up, the judge agreed with you -- not with them. USA v. Dove [blogspot.com] held that it is absurd to argue that each unauthorized download represents a lost sale.

  • I know even my friends on Slashdot don't like it when I say this, but...

    The trolls are really out in force tonight, on this one. They'll be eating everyone of their nonsensical words when Judge Gertner renders her decision.
  • by commodore64_love (1445365) on Thursday February 18, 2010 @09:56PM (#31194466) Journal

    If his share ratio was like most people, it was probably less than 1..... which means he never uploaded a whole song. He uploaded, say, 0.7 of a song which would be unplayable and therefore no harm done.

  • When someone states that I made 2 incorrect predictions, and then cites to 2 links which have no relation to what he was saying... that is dishonesty. I'm so sorry I 'disappointed' you, but whatever gave you the idea that I am kind and patient to liars, bullies, and thieves?
  • by h4rr4r (612664) on Thursday February 18, 2010 @09:58PM (#31194480)

    By that logic they could offer it to itunes for $1 trillion, and since Apple will say no that is a $1 trillion loss due to piracy. Nevermind there could be a whole host of other reasons why Apple may not want to fork over the $1 trillion.

  • 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.

    What makes you say that?

    Say the RIAA has a new single, and they want to license it to retailers such as H&M or the iTunes Music Store. They go to them and say "we'll grant you a license to distribute this song in your store for 20% of your proceeds, with a minimum of $50k per year, for the next five years," and the other side says, "why the fark should I do that, it's available free on the Gnutella network. Sure, we'd have some sales, but if people can get it free, they'll just do that. We won't make that $50k back, so no. Make it $1k per year, and you've got a deal."

    That's $49k per year in lost profits for the RIAA for that song, due to the loss of value of the distribution right caused by the infringer.

  • by h4rr4r (612664) on Thursday February 18, 2010 @10:14PM (#31194638)

    By that logic they could offer it to itunes for $1 trillion, and since Apple will say no that is a $1 trillion loss due to piracy. Nevermind there could be a whole host of other reasons why Apple may not want to fork over the $1 trillion.

    Not to mention that this seems to make him liable for all acts of distribution of that song. Is he liable for the actions of others?

    Can I now distribute this song, and say that he already did the damage so my distribution has no damage?

  • How the hell do they get 150,000 out of 1 act of distribution?

    Really wondering here, I fail to understand how that seemed like a fair punishment to the folks making the law.

    Seems like setting speeding tickets at $1000 per mile over the posted limit.

    I think this is the best argument - the folks who made the law didn't intend $150k to be applied to dopes like Tenenbaum, just the $30k range. The definition of willfulness the RIAA is using is wrong. But no defendant has argued it, instead trying to claim that they only caused 30 cents in damages.

  • by sys.stdout.write (1551563) on Thursday February 18, 2010 @10:58PM (#31195040)
    Admittedly, I'm only a third-year law student, so I don't claim to have the knowledge and wisdom of someone with decades of experience. That being said, dishonestly is a lot easier to allege than it is to demonstrate, sir.

    You know how whenever Fox News is mentioned, a common response is "How can people watch that? It's just telling conservatives what they want to hear?"

    Look, we all want the RIAA to die an awful, fiery death. But deluding ourselves about the chances of a given case is not going to help the situation.

    In fact, one might even call it "completely dishonest."
  • Re:Fees (Score:3, Interesting)

    by spirit of reason (989882) on Thursday February 18, 2010 @11:15PM (#31195176)

    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...

  • Re:Fees (Score:5, Interesting)

    by Anonymous Cowpat (788193) on Thursday February 18, 2010 @11:32PM (#31195298) Journal

    It's an interesting conundrum. The product that you're buying is the physical disc, but the value that it has to you is in the data stored on the disc. However, you can't really estimate that value without inspecting it, and you can't inspect it until you've completed the transaction.

    Most other people who build a business model around getting people to buy a pig in a poke get called scam artists.

  • Re:Fees (Score:3, Interesting)

    by WCguru42 (1268530) on Thursday February 18, 2010 @11:45PM (#31195392)

    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.

    What states are those. I've never heard of that. Usually once the car leaves the lot the vehicle depreciates by a significant percent. Once you leave the lot the dealership can no longer market the vehicle as new (if the transaction is on a used car I'm not sure what the instant depreciation is).

  • A bit disappointing (Score:3, Interesting)

    by cpt kangarooski (3773) on Thursday February 18, 2010 @11:58PM (#31195484) Homepage

    I was disappointed to see that Tenenbaum did not include another, more solid ground for having the damages award looked over. During the case, the plaintiff's attorneys proposed a jury instruction to the effect that the statutory damages should be calculated per infringement. The judge agreed, and that was how the jury was ultimately instructed. However, the statute is very specific that statutory infringements are calculated per work, not per infringement. Given that the final award was an even multiple -- a nice, round number, in fact -- of the minimum that could be awarded, there is a possibility that the jury meant to award the minimum, but then mistakenly multiplied the award by the number of times the works were infringed.

    I, and at least one other person in the gallery at the trial were very surprised that the plaintiffs proposed that instruction, and that the defendant didn't object to it. Well, not too surprised; the defense attorneys didn't seem very good at this. But you'd think they would have brought it up by now.

    Oh well.

  • Re:Fees (Score:3, Interesting)

    by Fluffeh (1273756) on Friday February 19, 2010 @12:53AM (#31195792)

    Woah, hold up, when did that become a requirement. In no way do I support the methods that the RIAA and their ilk use their lawyers but "satisfaction guaranteed" is a nice slogan but it's never been a necessity of sale. You can return your car if you don't like it but you won't get what you paid for it back.

    The difference when buying a car you get to have a look at it, generally a drive around in it. You get to make your choice of satisfaction prior to making the purchase. So you in fact get BETTER than a money refund. If you don't like it, you don't buy it.

    If I had the choice of listening to an album before making a purchase, there would be a lot of music I wouldn't have bought over time. Yes, a lot of music stores have that, but if you wander up with 10 cd's that are interesting, the chances of listening to all those is rather slim indeed.

  • by Theaetetus (590071) <<theaetetus.slashdot> <at> <gmail.com>> on Friday February 19, 2010 @01:24AM (#31195916) Homepage Journal

    I was disappointed to see that Tenenbaum did not include another, more solid ground for having the damages award looked over. During the case, the plaintiff's attorneys proposed a jury instruction to the effect that the statutory damages should be calculated per infringement. The judge agreed, and that was how the jury was ultimately instructed. However, the statute is very specific that statutory infringements are calculated per work, not per infringement.

    No - the special verdict form had damages per work, not per infringement, in accordance with the statute.

    Given that the final award was an even multiple -- a nice, round number, in fact -- of the minimum that could be awarded, there is a possibility that the jury meant to award the minimum, but then mistakenly multiplied the award by the number of times the works were infringed.

    I think that's wishful thinking. The special verdict form required them to write the amount of damages for each work - they had to write "$22,500" 30 times. So to say that they ended up intending only to award $22,500 is a bit of a stretch.

    That said....

    I, and at least one other person in the gallery at the trial were very surprised that the plaintiffs proposed that instruction, and that the defendant didn't object to it. Well, not too surprised; the defense attorneys didn't seem very good at this. But you'd think they would have brought it up by now.

    Oh well.

    Agreed. I think the jury instruction was wrong, but specifically on the definition of "willfulness". The RIAA defined it as "any intentional action", while Neeson defined it as "more than mere knowledge," a really vague hand-wavy definition. I think there's both congressional record, statutory, and case history precedent for interpreting willfulness as "malicious" or "fraudulent", and I don't think Tenenbaum counted as either. The jury should have been considering damages between $750 and $30k, and would likely have awarded something significantly lower.

  • Re:Distribution (Score:2, Interesting)

    by evilWurst (96042) on Friday February 19, 2010 @01:32AM (#31195948) Journal

    Hi, I'm not NYCL, but clicking your name I see nothing but "distribution trolling". 23 posts to be exact, which is all slashdot will show me of anyone's comments.

    You're a troll. Happy?

  • 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)

    Thank you for your kind words, nudicle.

    So far the only RIAA case in which the merits of the due process issue has been judicially determined is UMG v. Lindor, which held that it is a colorable defense, and rejected the RIAA's contention that it is not.

    And as you correctly observe, all I have ever said about fair use in these cases is that based upon the hundreds of factual scenarios I have encountered, there are some p2p filesharing behaviors which would clearly qualify as a fair use, some which would clearly not, and some which would occupy a gray area. In fact I publicly criticized the Tenenbaum legal defense for not drawing any of those distinctions.

  • by Kjella (173770) on Friday February 19, 2010 @02:18AM (#31196118) Homepage

    You are welcome to take the first two and provide your own interpretation.

    Sure I can be an armchair quarterback lawyer as well as anybody, But if my interpretations are more in line with the court than the guy who can say IAAL - despite following up with "but this is not legal advice" - then usually something is not right. Not that I expect a lawyer to be an oracle of how it'll turn out, but sometimes strong personal opinion can cloud your professional judgment, that is hardly limited to lawyers.

    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. The practical reality is that a great number of people, be it in the legal system, in Congress or on the jury is sold on the idea of pirates like some kind of economic terrorist and about as popular. When people see a nail they'd like to strike down, they try very hard interpreting the law to be the hammer they need. Sometimes they take the absurdity too far like DVD-Jon that was charged with breaking into his own property and the OINK operator charged with conspiracy to defraud, but it bends quite far by design. This is to avoid people finding say some way to kill someone without being found guilty of murder, it doesn't really matter if they die at your hand or by a hit man or by some implicit act like cutting their brakes or by trapping them in a pit and the inaction of letting them starve to death.

    The downside is that they'll also go very far in nailing you for something you think you did. Face it, when you're sitting there on the defense bench and trying to point at wifi stealers and trojans and errors in logging and aliens from outer space, you don't have any other suspect to point at. They aren't going to route themselves into a corner where the standards of evidence are so high no one will get convicted. They're not going to set damages of 35c/pop that are so low as to not discourage anyone at all. They're going lash out at you and viciously, because you're the one sitting in front of them right now. The judges have to in some fashion stay within the constitutional limits and the letter of the law, but they aren't a second guessing of Congress. For example, in this case [wikipedia.org] the Supreme Court found that life with possibility of parole for three counts of fraud totalling 230$ was not "cruel and unusual".

    They have made very many similar remarks that fines are largely a matter for the legislature, from United States v. Bajakajian:

    The first, which we have emphasized in our cases interpreting the Cruel and Unusual Punishments Clause, is that judgments about the appropriate punishment for an offense belong in the first instance to the legislature. See, e.g., Solem v. Helm, 463 U.S. 277, 290 (1983) (Reviewing courts should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes); see also Gore v. United States, 357 U.S. 386, 393 (1958) (Whatever views may be entertained regarding severity of punishment, these are peculiarly questions of legislative policy).

    So one judge said 54,000$ is maximum, but when all is said and done that might not stand because it overrides an explicit limit set in copyright law. To be honest, I find life in prison for 230$ worth of fraud to be more disproportionate than 1.92M$ for sharing 24 songs. And that one is legal, so if the greater absurdity can stand so can the lesser. That is the IANAL interpretation at least...

  • Re:Distribution (Score:3, Interesting)

    by Theaetetus (590071) <<theaetetus.slashdot> <at> <gmail.com>> on Friday February 19, 2010 @02:33AM (#31196184) 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

    My email is public and as you know, I have personally emailed you and identified myself fully.

    , and what the axe is that you have to grind. Your motivations are quite suspect. You have some gall to call me a coward.

    I'm a law student, and I previously wrote a forthcoming review article on statutory damages for copyright infringement. I approached you for comment on it, and you said:

    I never doubted that willful copyright infringement requires intent. I'm not aware of the precise issue you describe having been briefed, but I can't rely on my memory in such matters.

    And yet now you claim up and down that I'm a shill and a troll.

    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.

    So you're saying that defendants can't ever confess unless they're lawyers? That's a novel perspective and I look forward to your future articles on the subject.

    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.

    Since when is an adverse party-admission "legally meaningless"? Furthermore, Tenenbaum's briefs have all been affirmative defenses - "I did it, BUT it wasn't infringement because [it was fair use/it's unconstitutional/etc.]" Are you suggesting that those briefs, conceding liability, were in violation of Rule 11?

  • by Xenographic (557057) on Friday February 19, 2010 @02:59AM (#31196302) Homepage Journal

    > What is your angle?

    Hard to tell, Ray. But if he's Thaetetus, does that make you Socrates [wikipedia.org]? :]

    Seriously, though, there are about a zillion Dan Roses out there. Mostly he appears to spend his time making random legal comments on Slashdot among a handful of others. Seems like he *might* be at UNC School of Law [unc.edu]. The email has an extra dot, but I think Gmail ignores those. If that's true, he's part of the Lambda Law Students Association (a legal association for homosexuals), which doesn't really explain his interest in the RIAA & copyrights. That said, Google is giving some very strange results [yuku.com], so who knows?

    That said, this exchange [arstechnica.com] was pretty ugly for Tenenbaum. I assume it's what he's talking about. Of course, I see nothing in there admitting specifically to violating the distribution right. And I don't have a court transcript, either, which I trust more than random internet reports about the case.

    I say that because there are other things out there like this story [blogspot.com] which claims that "Harvard Law School Professor Charles Nesson has conceded in a letter to the US Department of Justice that his client, accused peer-to-peer infringer Joel Tenenbaum, "downloaded music for [his] own enjoyment."" which points to this letter [beckermanlegal.com] on your website. The problem is that I've read the letter three times and I can't find that "quote" in it anywhere, unless they got it by cutting out the phrase "is alleged to have," which would make their quote the same kind of dishonesty that led to $312,000 in sanctions [law.com] recently.

  • by BountyX (1227176) on Friday February 19, 2010 @03:20AM (#31196392)
    It does fly sometimes. I was charged with going 90 in a 65. My GPS unit indicated that my speed at the time was 74 not the reported 90 (I was clocked from the sky). I presented my case in court which, technically, incriminated me for speeding. The judge accepted my data and my fine was reduced from $368.00 to a mere $128.00. Only committing part of a crime can make a difference in court.
  • Re:Fees (Score:5, Interesting)

    by Wildclaw (15718) on Friday February 19, 2010 @08:02AM (#31197790)

    It doesn't need to be reworded. People who interpret things stop need to be twisting around.

    The US constitution is the old legacy program that receives the occasional update to fix compatibility issues, but that hasn't received a security update for ages. The program can't be replaced, because lots of other software depends on it, most of the users are comfortable with it and would raise hell if anyone touched their precious program, and it is actually a decent functional program. The problem is that there are lots of exploits available that can cause the system it runs on to become unstable.

    Heck, look no further than your own post. You are trying to exploit the vagueness yourself by providing your own interpretation of the constitution that fits your viewpoint.

  • Re:Fees (Score:3, Interesting)

    by commodore64_love (1445365) on Friday February 19, 2010 @08:06AM (#31197826) Journal

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

    ""To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots." - Thomas Jefferson, 1820

    Jefferson went on to say it should be the STATES (in addition to the supreme court) that declares laws constitutional or unconstitutional (nullified). I agree with him which is why I wrote this:

    The "Protect the 9th and 10th Amendments" Act. ----- Proposed Amendment XXVIII. ----- Section 1. After a Bill has become Law, if one-half of the States declare the Law to be "unconstitutional" it shall be null and void. It shall be as if the Law never existed. ----- Section 2. This article shall be inoperative, unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths* of the several States by the date January 1, 2050. *[This is called a Constitutional majority in legal parlance.]

    With our current system, you first have to wait until some government arrests you for a crime (for example: owning a gun in Washington DC). Then you have to file in court to defend yourself against this unconstitutional law. In most cases you'll lose, but if you're lucky it can rise to the level of the United States' government court who may or may not declare it unconstitutional.

    That process took ~30 years to overturn D.C.'s unconstitutional banning of guns. With my proposed amendment, there'd be no need to wait. You (and your neighbors) could collectively instruct the State Legislature to declare the law "unconstitutional". Once 25 other legislatures have done the same, then the U.S. law would be voided.

    My proposed amendment would simplify the process, shorten the time that an unconstitutional law sits on the books (2-3 years, not 30), and most-importantly, not require citizens to sit in jail or waste time in the courtroom.

  • Re:Fees (Score:3, Interesting)

    by commodore64_love (1445365) on Friday February 19, 2010 @08:37AM (#31197996) Journal

    The difference when buying a car you get to have a look at it, generally a drive around in it. You get to make your choice of satisfaction prior to making the purchase. So you in fact get BETTER than a money refund. If you don't like it, you don't buy it. If I had the choice of listening to an album before making a purchase, there would be a lot of music I wouldn't have bought over time.

    Quoted For Truth.

    Also I wanted to add, like you, I've wasted a lot of money on junk CDs or junk DVDs. I have tapes/discs laying around collecting dust that, if I had been able to hear them FIRST before buying, I never would have bought them. And of course taking them back to the store does no good, because there's no "satisfaction guaranteed or money back" warranty like virtually all other products have.

    Now that the internet is fast enough to transfer this stuff, I throw away virtually no money. I can hear or watch the product first before I buy it. That's how it should be:

    - Let the customer try a product before throwing away his/her money
    -or-
    - Don't let the customer try a product, but be able to return it if they don't like it (like a candybar or other food products)

  • by snowgirl (978879) on Friday February 19, 2010 @11:45AM (#31199854) Journal

    And I got shot down by a commissioner for attempting to file a motion in a case where I were not the plaintiff, even though the filings for the forms stated that I was the plaintiff, but since the title of the case was "In RE: Alice vs Bob", and my name was neither Alice nor Bob, and she couldn't be concerned with looking down the page to where it says "The plaintiff is: snowgirl", and the signature of the other commissioner granting the action, and the stamp marking it as certified and official...

    Sometimes as "practical" as the law is, a judge can misinterpret the facts of the case and just blindly bulldoze through with their shit... and in my case, when they're beginning to threaten you with practicing law without a license, you just sit down and shut up...

    I'm sure you've been in similar "unwinnable" situations before in your career, but you still go out with your best argument, and take losing like who you are.

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