Tenenbaum To SCOTUS: Let's Get This Debate Rolling 114
NewYorkCountryLawyer writes "Joel Tenenbaum has filed a reply brief in support of his petition for certiorari to the U.S. Supreme Court, in SONY BMG Music Entertainment v. Tenenbaum, trying to get the Court to take on the thorny issue of copyright statutory damages in the age of mp3 files and micropayments."
Re:So NYCL... (Score:5, Insightful)
And if I wound-up losing and owing $1.5 million (two songs infringed upon), I'd consider that a life sentence.
No no, you see there's a generous cap on maximum damages so you'd only owe $300k, to get as much as $1.5 million you must be a big time infringer sharing at least 10 files or a little less than an album.
Re:Failure to comprehend (Score:5, Insightful)
Re:Oh NYCL (Score:4, Insightful)
Re:Failure to comprehend (Score:5, Insightful)
The argument put forth by Mr. T is that those are fair punishments if the infringer is a business, and that's when those laws were drafted. They didn't think that an individual would be on the business end of commercial copyright theft. (Which by definition they cannot be, since they aren't a commercial entity)
The problem with that argument is that the copyright act was updated 14 years ago, with provisions included specifically to address copyright infringement in the internet era - the Digital Millennium Copyright Act. So, any argument that the copyright act is simply too out of date and they never considered file sharing is doomed at the outset.
So Mr. T's argument is: come on, now it's $1 a song for an MP3. It's cruel and unusual punishment (thus the constitutionality of it) to subject someone to a lifetime of indebtured service for stealing something that's worth $1. If he stole 500 pies and then burned down the bakery with five people inside, he'd be out of prison in 10 years. For taking a photo of those pies and putting them up on his website so other people could see what those pies looked like, he's being put to financial death.
And unfortunately, that argument misses half of the infringement. You're right, Mr. T could have downloaded a track for $1. But he also was uploading copies... How much is a distribution license? Do you think that Apple, for example, pays a single dollar, once, in exchange for getting to distribute millions of copies of the latest pop song? Heck no... Distribution licenses are usually based on royalty percentages with established distributors, or flat fees (potentially plus a lower royalty) for unestablished distributors where the royalties may be questionable. If Mr. T approached Capitol Records and said "I'd like a license to distribute ten thousand copies of this song," do you think they would say "sure, that'll be $1", or would they more likely say something like, "sure, that'll be $100,000"?
For example, Michael Jackson bought the distribution rights to a bunch of Beatles songs - specifically, 4,000 songs at $47.5 million, or about $12k per song... Much more than $1.
So, any argument that Mr. T's damages should be only $1 is also doomed to fail.
Fortunately, there's another argument, but it's one that only a judge or an amici would raise since neither Tenenbaum nor the RIAA would like it (which may be an indicator that it's correct)... Specifically, it has to do with the "willful" infringement standard which expands the damage range from $750-30,000 per work to "up to $150,000". The RIAA has argued in the past that "willful" means "known or should have known the song was copyrighted" (which is why they slap a copyright label on everything)... but that effectively removes the regular damage range, and it also disregards some of the specific legislative history of the act and congressional reports. However, no defendant - including Tenenbaum - has ever tried to argue that, no, they should only be liable for up to $30k, because that's still way too high for them. They're too busy arguing the doomed "it should only be $1," so they miss this point: the "willful" standard was intended to be a "malicious" infringement standard, for either commercial profit or to commercially destroy the publisher by giving away their works.
And this is actually quite important... juries select damages near the geometric mean of a range, unless there's egregious behavior that pisses them off. If you give a jury an instruction that they should find damages between $750-150000, they'll end up picking something in the $30k-40k range. If you tell them they should find damages between $750-30000, they'll end up picking something in the $7k-10k range. It's pure psychology - if you go from $750 to $1500, you've doubled the fee... but if you go from $149250 to $150000, you've barely changed it, even though it's the same difference. So, juries pick round numbers, a