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RIAA Litigation May Be Unconstitutional 281

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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RIAA Litigation May Be Unconstitutional

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  • NESSON (Score:5, Informative)

    by torstenvl ( 769732 ) on Wednesday October 29, 2008 @06:32PM (#25562165)

    His name is Charles Nesson, not Charles Neeson.

    I would know. He's my professor.

  • Re:Hmmmm (Score:5, Informative)

    by rohan972 ( 880586 ) on Wednesday October 29, 2008 @06:33PM (#25562203)
    Even ignoring your "copyright violation=theft" troll:

    Amendment 5: ...nor be deprived of life, liberty, or property, without due process of law;
    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.
  • Re:Light on details. (Score:5, Informative)

    by technobabblingfool ( 1133901 ) on Wednesday October 29, 2008 @06:34PM (#25562205)
    Does anyone know if there is any case law or statute which holds that civil penalties can be considered criminal by virtue of the amount of the penalty?

    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.
  • by randalotto ( 1206870 ) on Wednesday October 29, 2008 @06:34PM (#25562209)
    For one, the guy's name is Nesson, not Neeson. Also, he is both incredibly brilliant, (one of the very few people to graduate summa cum laude from Harvard Law School,) and incredibly eccentric. He's the sort of guy who will give final exams in Second Life or let people create an original Youtube video instead of the traditional test. Here's his class's page about this whole issue: []
  • Persuading Congress (Score:2, Informative)

    by sjames ( 1099 ) on Wednesday October 29, 2008 @06:39PM (#25562259) Homepage Journal

    If this leads where it SHOULD, it will take more than persuading Congress to get this hole in their plans patched. The theoretical new law would either have to provide for more like the actual value ($0.99) or treble damages if willful ($2.97).

    Anything else would be a HUGE uphill battle to amend the Constitution and would require buying off 3/4 of the state legislatures. Unlike typical Congressional bribery, they would have to pay enough for each legislator to retire to another country since such a move would be at least the end of their political career and quite possibly leave them nowhere safe to live in the U.S.

    People get a bit more picky about crooked legislators when they start messing with the Constitution directly.

  • Re:The other side (Score:3, Informative)

    by MadUndergrad ( 950779 ) on Wednesday October 29, 2008 @06:46PM (#25562349)

    The OP says that damages should be 99 cents per song. How many people did that person share the song with? Does an average user share the song 1000 times?

    If the average user shares song X 1000 times, then the average user downloads song X 1000 times. Who the hell downloads a given song 1000 times? Most/all p2p is not streaming. They'd download it several times, tops. The average user thus only shares a given song maybe 2 or three times. Without proof to the contrary, that is what has to be assumed.

  • Re:The other side (Score:1, Informative)

    by Anonymous Coward on Wednesday October 29, 2008 @07:01PM (#25562503)

    Correct me if I'm wrong, but I think the average seed/leech ratio is by definition going to be 1. (for every upload, there will be a corresponding download).

  • by DragonWriter ( 970822 ) on Wednesday October 29, 2008 @07:10PM (#25562595)

    If it is against the law, it's criminal.

    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.

  • Re:Light on details. (Score:5, Informative)

    by BitterOak ( 537666 ) on Wednesday October 29, 2008 @07:24PM (#25562769)

    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?

  • Re:Great News (Score:3, Informative)

    by TechForensics ( 944258 ) on Wednesday October 29, 2008 @07:28PM (#25562817) Homepage Journal
    You may have heard the media interests sued Beckerman directly in an attempt to silence him. That suit may be taking some of his time.
  • Re:Light on details. (Score:5, Informative)

    by Bazzargh ( 39195 ) on Wednesday October 29, 2008 @07:32PM (#25562873)

    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 [].
    IANAL, but it looks like even this precedent might be a bit of a reach.
    Good luck to them though :)

  • Re:Hmmmm (Score:5, Informative)

    by Eskarel ( 565631 ) on Wednesday October 29, 2008 @07:52PM (#25563095)
    It doesn't. What it does is protect an individuals rights when being prosecuted for a crime.

    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.

  • Re:Light on details. (Score:5, Informative)

    by Kjella ( 173770 ) on Wednesday October 29, 2008 @08:30PM (#25563517) Homepage

    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?

    Well, according to Wikipedia:

    In response to judges and juries which award high punitive damages verdicts, the Supreme Court of the United States has made several decisions which limit awards of punitive damages through the due process of law clauses of the Fifth and Fourteenth Amendments to the United States Constitution. In a number of cases, the Court has indicated that a 4:1 ratio between punitive and compensatory damages is broad enough to lead to a finding of constitutional impropriety, and that any ratio of 10:1 or higher is almost certainly unconstitutional.

    And there seems to be the most relevant case here:,_Inc._v._Gore []

    The majority decision there (and it's a 5-4 decision so a close call anyway) is much less clear:

    In Haslip we concluded that even though a punitive damages award of "more than 4 times the amount of compensatory damages," might be "close to the line," it did not "cross the line into the area of constitutional impropriety." TXO, following dicta in Haslip, refined this analysis by confirming that the proper inquiry is "`whether there is a reasonable relationship between the punitive damage award and the harm likely to result from the defendant's conduct as well as the harm that actually has occurred.'". Thus, in upholding the $10 million award in TXO, we relied on the difference between that figure and the harm to the victim that would have ensued if the tortious plan had succeeded. That difference suggested that the relevant ratio was not more than 10 to 1.

    The $2 million in punitive damages awarded to Dr. Gore by the Alabama Supreme Court is 500 times the amount of his actual harm as determined by the jury. Moreover, there is no suggestion that Dr. Gore or any other BMW purchaser was threatened with any additional potential harm by BMW's nondisclosure policy. The disparity in this case is thus dramatically greater than those considered in Haslip and TXO.

    Of course, we have consistently rejected the notion that the constitutional line is marked by a simple mathematical formula, even one that compares actual and potential damages to the punitive award. Indeed, low awards of compensatory damages may properly support a higher ratio than high compensatory awards, if, for example, a particularly egregious act has resulted in only a small amount of economic damages. A higher ratio may also be justified in cases in which the injury is hard to detect or the monetary value of noneconomic harm might have been difficult to determine. It is appropriate, therefore, to reiterate our rejection of a categorical approach. Once again, "we return to what we said... in Haslip: `We need not, and indeed we cannot, draw a mathematical bright line between the constitutionally acceptable and the constitutionally unacceptable that would fit every case. We can say, however, that [a] general concer[n] of reasonableness... properly enter[s] into the constitutional calculus.'". In most cases, the ratio will be within a constitutionally acceptable range, and remittitur will not be justified on this basis. When the ratio is a breathtaking 500 to 1, however, the award must surely "raise a suspicious judicial eyebrow.".

    In short, the court has rejected 500:1 before, said 10:1 is ok but left itself a wide playing field. The court could easily hold that for $5 noone would able able to seek compensation so much, much higher ratios are acceptable. And between 1996 and now, they may even reject the idea of touching punitative damages at all. It's not a lost case either but it's definately way in the gray.

  • Re:wholly analogous (Score:4, Informative)

    by tmosley ( 996283 ) on Wednesday October 29, 2008 @09:06PM (#25563867)
    Don't forget that they can prosecute those who never even owned a car [], much less sped on a freeway.
  • Re:No Attorney (Score:2, Informative)

    by Wowlapalooza ( 1339989 ) on Wednesday October 29, 2008 @09:52PM (#25564273)

    IANAL either, but in KENNEDY V. MENDOZA-MARTINEZ, 372 U. S. 144 (1963), the Supreme Court enumerated several tests that it had used in the past to determine whether a statutory punishment is "punitive" or not, and if it's punitive, the procedural safeguards associated with "criminal" actions are constitutionally required:

    "The punitive nature of the sanction here is evident under the tests traditionally applied to determine whether an Act of Congress is penal or regulatory in character, even though in other cases this problem has been extremely difficult and elusive of solution. Whether the sanction involves an affirmative disability or restraint, [Footnote 22] whether it has historically been regarded as a punishment, [Footnote 23] whether it comes into play only on a finding of scienter, [Footnote 24] whether its operation will promote the traditional aims of punishment -- retribution and deterrence, [Footnote 25] whether the behavior to which it applies is already a crime, [Footnote 26] whether an alternative purpose to which it may rationally be connected is assignable for it, [Footnote 27] and whether it appears excessive in relation to the alternative purpose assigned [Footnote 28] are all relevant to the inquiry, and may often point in differing directions."

    Note that in that particular case, it was ruled that stripping someone of their U.S. citizenship was considered sufficiently "penal" that procedural safeguards were required.

    In a later case, however (UNITED STATES v. WARD, 448 U.S. 242 (1980)), the Court ruled that a "civil penalty" resulting from a minor infraction of federal environmental laws did not trigger Fifth Amendment protections, so there seems to be no clear precedent here.

  • Re:in other news (Score:3, Informative)

    by m.ducharme ( 1082683 ) on Wednesday October 29, 2008 @11:34PM (#25564943)

    I didn't realise Neuromancer was the sixth book in the trilogy.

  • Re:It Never Ends (Score:2, Informative)

    by Frozentech ( 890974 ) on Wednesday October 29, 2008 @11:44PM (#25565005)

    The DoJ or Supreme Court certainly could.

    That's not going to happen during an Obama administration, with Hilary Rosen as the new 'Copyright Czar', though, is it? If anything RIAA/MPAA will be the new "Big Oil".

A quarrel is quickly settled when deserted by one party; there is no battle unless there be two. -- Seneca