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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: (Score:3, Insightful)

      by Anonymous Coward

      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.

      • Re: (Score:3, Insightful)

        by negRo_slim (636783)

        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 mhajicek (1582795)
        I'd pitch in for that.
    • Re: (Score:3, Interesting)

      by Anonymous Coward

      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?

      • Re: (Score:3, Informative)

        by hedwards (940851)
        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 rar
        • 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: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.

          • Re: (Score:3, Interesting)

            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: (Score:3, Insightful)

              by rolfwind (528248)

              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.

              Som

              • 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: (Score:3, Interesting)

              >>>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

    • 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."

  • Thomas case (Score:2, Insightful)

    by Anonymous Coward

    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..."
  • If the judge actually bothers to read it, he can still disregard it and rule in favor of the RIAA.

  • 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.
    • Re: (Score:3, Interesting)

      by drinkypoo (153816)

      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.

    • 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.

  • It seems to me that every time it looks like somebody has the RIAA staring down the barrel of a metaphorical shotgun, they somehow manage to find a friendly judge, or some implausible artifact of the legal system gets in the way.

    I truly hope that this time justice prevails, and the RIAA loses its main means of intimidating guilty pleas out of the poor and vulnerable.

  • 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:And? (Score:5, Interesting)

      by NewYorkCountryLawyer (912032) * <[ray] [at] [beckermanlegal.com]> 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.

  • Nicely Written Brief (Score:5, Interesting)

    by notaspy (457709) <imnotaspy@NOSPaM.yahoo.com> 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.

    • 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.

      RIAA version: "Additional $11 billion lost to piracy each year".

  • 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, a

    • 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.
      • Re: (Score:2, Insightful)

        by Theaetetus (590071)

        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.

      • Re: (Score:3, Interesting)

        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.

      • Re: (Score:3, Insightful)

        by ljw1004 (764174)

        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 a

        • Re: (Score:3, Insightful)

          by bws111 (1216812)

          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

          • Re: (Score:3, Insightful)

            by evilWurst (96042)

            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 clou

          • Re: (Score:3, Interesting)

            by BountyX (1227176)
            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: (Score:3, Interesting)

      by ahabswhale (1189519)

      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.

      • 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: (Score:3, Insightful)

          by russotto (537200)

          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.

    • Re: (Score:3, Insightful)

      by QuoteMstr (55051)

      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,

  • Tenenbaum did an excellent job. The research behind this is significant. The brief is well worth reading, in its entirety.

  • 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.
  • Distribution (Score:5, Informative)

    by NewYorkCountryLawyer (912032) * <[ray] [at] [beckermanlegal.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.
  • 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.

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