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RIAA Litigation May Be Unconstitutional
Posted by
timothy
on Wed Oct 29, 2008 06:05 PM
from the what-about-ritchie-chaz-and-margot? dept.
from the what-about-ritchie-chaz-and-margot? dept.
dtjohnson writes "A Harvard law school professor has submitted arguments on behalf of
Joel Tenenbaum in RIAA v. Tenenbaum in which Professor Charles
Nesson claims that the underlying law that the RIAA uses is actually a
criminal, rather than civil, statute and is therefore
unconstitutional. According to this article, 'Nesson
charges that the federal law is essentially a criminal statute
in that it seeks to punish violators with minimum statutory penalties
far in excess of actual damages. The market value of a song is 99 cents
on iTunes; of seven songs, $6.93. Yet the statutory damages are a
minimum of $750 per song, escalating to as much as $150,000 per song
for infringement "committed willfully."' If the law is a criminal
statute, Neeson then claims that it violates the 5th
and 8th
amendments and is therefore unconstitutional. Litigation will
take a while but this may be the end for RIAA litigation, at least
until they can persuade
Congress to pass a new law."
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wholly analogous (Score:5, Insightful)
Quote from TFA:
" The law, Neeson writes, is âoewholly analagousâ to a law that provides the following regime for speeders: (1) a $750 fine for every mile over the speed limit, escalating to $150,000 per mile if the speeder knew he was speeding; (2) the fines are not publicized and few drivers know they exist; (3) enforcement not by the government but by a private police force that keeps the fines for itself and:
that has no political accountability, that can pursue any defendant it chooses at its own whim, that can accept or reject payoffs in exchange for not prosecuting the tickets, and that pockets for itself all payoffs and fines. Imagine that a significant percentage of these fines were never contested, regardless of whether they had merit, because the individuals being fined have limited financial resources and little idea of whether they can prevail in front of an objective judicial body. "
I be dead if the police troops act like RIAA does.
Re:wholly analogous (Score:5, Funny)
Parent
With fines like that I-294 can be toll free (Score:5, Funny)
With fines like that I-294 can be toll free as well the rest of the IL toll way system.
Parent
Light on details. (Score:5, Interesting)
Re:Light on details. (Score:5, Informative)
In a criminal statute, the common feature is a severe punishment for failure to comply. The punishments can include imprisonment, execution, fines, etc. In a civil statute, one party seeks compensation for 'damages' that have been incurred at the hands of the other party. The argument is that the law that the RIAA uses has such severe penalties that are so far beyond the 'damages' that the law itself is really a criminal statute seeking to punish the wrongdoer for failing to comply rather than awarding damages to the injured party.
Parent
Re:Light on details. (Score:5, Informative)
In a civil statute, one party seeks compensation for 'damages' that have been incurred at the hands of the other party. The argument is that the law that the RIAA uses has such severe penalties that are so far beyond the 'damages' that the law itself is really a criminal statute seeking to punish the wrongdoer for failing to comply rather than awarding damages to the injured party.
Actually, civil judgements can include punitive damages as well as actual damages, and punitive damages, by their very definition are in excess of the amount of injury suffered by the plaintiff. The idea is to serve as a deterrent to others who might engage in similar conduct. I was asking if there is any precedent in case law for classifying civil cases as criminal cases based solely on the amount of damages assessed. In other words, is this idea just some new theory that this law professor cooked up, or is there case law to back it up?
Parent
Re:Light on details. (Score:5, Informative)
The motion itself has this:
As stated by the Supreme Court in Int'l Union v. Bagwell, 512 U.S.
821 (1994), distinguishing criminal from civil contempt, a
"flat, unconditional fine" totaling even as little as $50.00
announced after a finding of contempt is criminal if the
contemnor has no subsequent opportunity to reduce or avoid the
fine." Id., at 829.
Thats the only precedent they site in support of this part of the argument
- there's a heck of a lot more to support their argument that the RIAA
are abusing the courts. But this one claim seems pretty thin.
However that case was about civil versus criminal /contempt/ fines, :)
and pretty much all the cases citing it seem to be about contempt [google.com].
IANAL, but it looks like even this precedent might be a bit of a reach.
Good luck to them though
Parent
Re:Light on details. (Score:5, Insightful)
Civil suits are based on actual damages and you must prove actual damages before you can even proceed with a civil case in most cases. There can be a punitive component, but it's used primarily for cases where the defendent was willfully negligent, and, like the actual damages, is up to the jury to decide). The plaintiff in a civil trial also does not have the same procedures available to them for the purposes of evidence gathering. Generally the FBI will not prosecute a warrant to gather evidence for a civil trial.
Criminal cases on the other hand involve the violation of law, impose government mandated fines, and often involve forced search and siezure for the purposes of evidence gathering. Actual damages are unimportant in a criminal trial and do not have to be proven.
As far as I can see the RIAA lawsuits look a heck of a lot more like the second than the first. About the only difference between an RIAA lawsuit and a real criminal trial is that the defendent in a RIAA lawsuit has fewer rights and once the jury has decided guilt they decide the punishment rather than a judge.
So from this analysis(and from TFA) it appears very much that the RIAA is criminally prosecuting people without giving them any of the rights associated with a criminal trial(proof beyond a reasonable doubt, ethical requirements for investigators, double jeopardy, and a free lawyer facing a prosecutor instead of a whole team of viscious land sharks.
If this is indeed the case, and I'm certainly beginning to believe it is, then it's not only a travesty of justice, but decidedly unconstitutional.
Parent
It Never Ends (Score:5, Interesting)
How many times have I heard about a be-all end-all case where the RIAA/MPAA/etc has lost, been laughed by a judge, had a precedent set against them, etc.?
They'll continue to sue.
Nothing will stop them.
Re:It Never Ends (Score:5, Insightful)
They'll continue to sue.
Nothing will stop them.
The DoJ or Supreme Court certainly could.
Why aren't any racketeering/trustbusting laws coming into play here? The actions of the RIAA/MPAA are increasingly resembling those of a band of criminals.
Parent
Re:It Never Ends (Score:5, Insightful)
Why aren't any racketeering/trustbusting laws coming into play here? The actions of the RIAA/MPAA are increasingly resembling those of a band of criminals.
As are the actions of a good chunk of our congressmen.
Parent
No Attorney (Score:5, Interesting)
Congress has many times passed laws which were punitive without being criminal. For example, the Fair Debt Collection Practices Act (FDCPA) has punitive statutory damages in it.
I just don't think the argument will eventually hold much water, wish it held enough to float a battleship, but alas, I don't think so.
Ya don't say.. (Score:5, Interesting)
Current copyright practice violates every amendment..
1. [findlaw.com] Used to quash free speech.
2. [findlaw.com] We need a violent overthrow of the RIAA.
3. [findlaw.com] The Sony root kit is like billeting soldiers on their war on copying in my house.
4. [findlaw.com] They have no respect for my privacy and all their searches are unreasonable.
5. [findlaw.com] They'd like you to believe that doing normal things with their products makes you a criminal.
6. [findlaw.com] There's no due process in civil cases.
7. [findlaw.com] The right to a jury trial in a civil matter is pointless, seeing as the judge instructs the jury to uphold the law even though the law is stupid and everyone knows it.
8. [findlaw.com] Oh, that's what the article is about, excessive stupidity.
9. [findlaw.com] like, say, the right to use my copy machines to copy whatever the fuck I want.
10. [findlaw.com] redundant much?
11. [findlaw.com] The TRIPS agreement and the Berne Convention are examples.
12. [findlaw.com] Lobbying undermines.
13. [findlaw.com] Without freedom to copy, we're all slaves.
14. [findlaw.com] Lobbying.
15. [findlaw.com] Criminal copyright infringement convictions (wtf? When did that happen?) means you can't vote.
16. [findlaw.com] No property tax for copyright?
17. [findlaw.com] Lobbying.
18. [findlaw.com] You have to be drunk to understand copyright law.
19. [findlaw.com] umm... err.. Lobbying, yeah.
20. [findlaw.com]Lobbying.
21. [findlaw.com]See 18.
22. [findlaw.com]Lobbying.
23. [findlaw.com]Lobbying.
24. [findlaw.com]Lobbying.
25. [findlaw.com]Lobbying.
26. [findlaw.com]Lobbying.
27. [findlaw.com]Did I mention Lobbying?
NESSON (Score:5, Informative)
His name is Charles Nesson, not Charles Neeson.
I would know. He's my professor.
Missing some details... (Score:5, Informative)
The argument merits consideration. (Score:5, Interesting)
I have had to deal with the civil/criminal distinction as it arises in cases involving contempt. Civil contempt must be remedial; if it is not remedial it is punitive; if it punitive, then the accused gets the full panoply of criminal due process.
On the other hand, common-law punitive damages do not offend due process. But punitive damages are usually imposed by juries, based on individualized determinations, and limited by discretion. The copyright provisions are not individualized and provide for no discretion.
Treble damages have also been held not to violate due process.
This is a very interesting argument!
Be careful what you ask for (Score:5, Interesting)
.
But that song does not come with a license to redistribute.
You cannot, without consequences, and as a charitable gesture, simply burn 10,000 copies and airdrop them onto a city park.
Assume for the moment that a download could be tagged to its ultimate source - meaning you.
Assume for the moment that traffic in that file could be monitored or estimated in a way that would be persuasive to a civil judge and jury.
Where expert testimony is generally admissible and the burden of proof on the plaintiff is slight.
The files you uploaded have been out there for months. Do you really, really want the damages to be assessed at 99 cents a track?
As compensatory damages - which are generally unlimited?
Re:in other news (Score:5, Funny)
Well, it really depends on where you are. Didn't you watch the Olympics in Beijing? The sky there was gre... ... OH, you were being sarcastic. Heh. Clever.
Parent
Re:in other news (Score:5, Interesting)
Parent
Re:Hmmmm (Score:5, Interesting)
"I don't recall anything in the Constitution protecting an individual's right to" infringe copyright.
There, fixed that for you.
Parent
Re:Hmmmm (Score:5, Informative)
Amendment 5:
Settlement of these suits is commonly depriving people of their property without due process of law, not on the basis of any guilt by the cost of defending yourself in a lawsuit against a large corporation.
Amendment 8: Excessive bail shall not be required nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Neither one of these require that copyright infringement cannot be dealt with at law, simply that the current law and process being applied doesn't meet the necessary standard.
Oh, and the copying=theft thing? If that was so, why did they not simply report them to the police so they could be charged with theft? I issue this challenge to all who claim copying=theft. Provide me with a copy of your work with an indemnity from any lawsuit for copying except in the case that I am convicted of stealing the work. I'll copy it in a way you can prove, but non-commercially, then you report me to the police for theft. Once that fails, you shut up.
Parent
Re:Hmmmm (Score:5, Informative)
Copyright Infringement in the United States is treated like a crime, the FBI will sieze your assets, you're faced with damages which are largely punative, and you're in violation of a criminal statute.
If you stole a CD from a store or a record executive's car you'd get a trial with a public defender(and a public prosecutor not a team of rabid dishonest RIAA lawyers), there's almost no evidenciary requirements, and the burden of proof is much lower. The kinds of proof which the RIAA currently uses to essentially convict people (yeah it doesn't go on your criminal record but 7 years of bankruptcy or a half a quarter of a million dollar fine is just as life wrecking) would barely be enough to get a warrant in a criminal case, and if a prosecutor tried the stunts they do they'd be thrown out of office.
The article of the author isn't saying that copyright infringement is legal, they're saying that prosecuting it in the manner which it is currently prosecuted is unconstitutional. Either make the fines for copyright infringement reasonable and based on damages with no minimum for fines and a requirement to separate out actual damages from punative damages so the juries know what they're doing to people the way they do in every other civil case, or allow defendents their rights as people being prosecuted under the criminal code.
Parent
Re:Hmmmm (Score:5, Insightful)
I don't recall anything in the Constitution protecting an individual's right to steal.
I know I'm feeding the troll, but anyway. You can apply criminal penalties in a criminal trial, but you can not apply criminal penalties in a civil trial. Otherwise you could simply do an end-run around the whole constitution without due process, right to an attorney, "beyond a reasonable doubt" and all that. If RIAA/MPAA want to treat people as criminals that should be punished, this is simply asking for the same protection of the law as a person accused of stealing or any other crime has. If they want civil compensation for damages, then it should reasonably reflect actual losses. The RIAA/MPAA want to have their cake and eat it too, they want a minimal burden of proof and a "whoever gets caught, shares the damages" that has no precedent in neither criminal nor civil law. If I was found guilty of stealing a $100 item, my punishment should be the same whether they lose $500 or $500,000/year to shoplifting and whether they catch 10% or 90% of the shoplifters. Last I got a speeding ticket I got it based on how fast I drove, not how fast everyone else drives on the same road. Imagine you were caught for littering - almost noone gets caught for littering - and they fined you $1,000,000 to cover the cleanup from everyone else. Does that even remotely make sense in your world?
Parent
A trivial semantic rant (Score:5, Insightful)
This is of no real importance, but the "suddenoutbreakofcommonsense" has struck me as often being misapplied for a while. Here it is especially flagrant.
First of all "sudden." This doesn't seem very sudden, the prof doesn't appear to have suddenly thought "Oh crap! We've been going about this all wrong!" and published it on his blog. This seems like something that was more considered.
Outbreak: It sounds like it's just one guy suggesting this interpretation. For it to be an outbreak, there would have to be other constitutional scholars jumping on board, right? There are plenty of slashdotters who are going to be jumping on board, but that's not really "catching" the "maybe the RIAA is wrong" bug, that's just adding to the long list of reasons we already had.
This isn't common sense, this is an interpretation of constitutional law, something that doesn't work much by common sense, especially not in recent history.
A real case the tag could have been applied was when everyone started realizing that when we have a misfortune, like getting sick, it might not be because God is punishing us for something we did. That's an outbreak of common sense. This is more properly tagged "aguyhasanothergoodreasontheRIAAsucks."
Take that for what it's worth (about half a penny, probably.)
Parent
"Against the law" vs. "Criminal" (Score:5, Informative)
That's not true at all. Torts and breaches of contract are "against the law" without being criminal. As are all kinds of action by the federal government which exceed its Constitutional authority. If it is criminal, it is against the law, but the converse is not true.
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