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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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  • wholly analogous (Score:5, Insightful)

    by Anonymous Coward on Wednesday October 29, 2008 @06:11PM (#25561903)

    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:It Never Ends (Score:5, Insightful)

    by moosesocks ( 264553 ) on Wednesday October 29, 2008 @06:33PM (#25562199) Homepage

    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.

  • by philspear ( 1142299 ) on Wednesday October 29, 2008 @06:37PM (#25562237)

    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.)

  • From The Brief (Score:3, Insightful)

    by TechForensics ( 944258 ) on Wednesday October 29, 2008 @07:13PM (#25562643) Homepage Journal
    I had tears in my eyes when I finished reading this:

    The RIAA intimidates and steamrolls accused infringers into settling before they have their day in court and before the courts can weigh the merits of their defenses. The inherent dangers in allowing a single interest group, desperate in the face of technological change, led by a voracious, cohesive, extraordinarily well-funded and deeply experienced legal team doing battle with pro se defendants, armed with a statute written by them and lobbied and quietly passed through a compliant congress, to march defendants through the federal courts to make examples out of them should lead this Court to say "stop."

  • Re:It Never Ends (Score:5, Insightful)

    by pak9rabid ( 1011935 ) on Wednesday October 29, 2008 @07:18PM (#25562715)

    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.

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

    by AshtangiMan ( 684031 ) on Wednesday October 29, 2008 @07:27PM (#25562803)
    I agree. And one of the big problems we in the US face is that IIRC back in the 50s or so corporations were granted person status in terms of the constitution. That should be undone.
  • by Endo13 ( 1000782 ) on Wednesday October 29, 2008 @07:55PM (#25563135)

    As has been pointed out before in the comments here, with a direct P2P network, 1 upload = 1 download. If the average user downloads a song no more than 3 times, then the average user on that P2P network also uploads the song 3 times. We're not talking about one person hosting his music collection on a website for all to download. Those kinds of things have been shut down about as fast as they went up for years now. True, not everyone hosts everything they download, and some host it longer than others, but if you've ever been part of a private bit-torrent site you've seen that even the biggest uploaders have no more than a 50-1 ratio, and that's including 'free leech' things. So at the very most you can expect the extreme file sharer to have 'illegally distributed' those items up to 50 times.

  • Re:Hmmmm (Score:5, Insightful)

    by Kjella ( 173770 ) on Wednesday October 29, 2008 @08:06PM (#25563243) Homepage

    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?

  • by Eskarel ( 565631 ) on Wednesday October 29, 2008 @08:09PM (#25563277)
    I think it's more a case of "if it looks like a duck, walks like a duck, and quacks like a duck, it's a duck" than actual case law.

    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.

  • by Killer Orca ( 1373645 ) on Wednesday October 29, 2008 @08:25PM (#25563471)
    I'll take my chances and vote for "That One".
  • Re:Hmmmm (Score:3, Insightful)

    by T Murphy ( 1054674 ) on Wednesday October 29, 2008 @09:04PM (#25563839) Journal
    Theft is where you, without permission, obtain something while depriving the legal owner of it. In the days of absurd DRM, this can be possible, as making a copy may deprive the legal owner of their copy. In any reasonable sense, theft should not apply to copyright infringement... and the RIAA strikes again.
  • by Anonymous Coward on Wednesday October 29, 2008 @09:10PM (#25563905)

    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?

    Yes. My personal copyright-violating collection of music currently contains 2418 tracks. Under the RIAA's theory of damage calculations, if they win a copyright-infringement case against me, the minimum damages are $1,813,500; the maximum is $362,700,000. Based on a price of $0.99 per track, the actual damages are $2393.82.

    Big difference.

  • Re:in other news (Score:5, Insightful)

    by m.ducharme ( 1082683 ) on Wednesday October 29, 2008 @09:21PM (#25563987)

    That may be the best opening line for a novel in the English language.

  • by zerofoo ( 262795 ) on Wednesday October 29, 2008 @10:42PM (#25564631)

    I see too many comments here equating the damages to the number of times the song was shared. This equation is flawed at best.

    How many people would have bought the item if they did not download it? The number is somewhere between none and all, but where exactly is it?

    If an item is shared 10,000 times, are there really 10,000 instances of "damage" - or lost revenue? Worse yet for this argument; if a file-sharer is exposed to something new and then decides to purchase the song, or attend a concert, the activity has a beneficial result.

    The entire problem with the RIAA and the law is that there is no reasonable way to estimate damages when NON-COMMERCIAL copyright infringement exists.


  • by ethergear ( 1130483 ) on Thursday October 30, 2008 @12:07AM (#25565157)

    I don't think statutory damages are supposed to be punitive. Punitive damages are something extra that you sue for, in addition to being made whole.

    Right. The contention here is that the statutory damages in question, $750 per song, are so large as to be punitive.

  • by Eskarel ( 565631 ) on Thursday October 30, 2008 @12:57AM (#25565411)
    It's a very old test in the US and UK. The wikipedia if you're interested. []

    The importance is the clarification of "like", in the instance of a duck test like can be very exact or very loose.

    You can for instance look at a duck, say "it looks exactly like a duck, quacks exactly like a duck and swims exactly like a duck, so I as someone knowledgeable in the area can say without a dna test that it's a duck".

    One of its common uses(aside from Duck Typing in certain computer languages), and the one I was using it in, is to show that technical differences don't matter. If a policeman breaks into your home and kills your family outside the scope of the law then the fact that he's a policeman doesn't matter. He broke into your home like a murderer, and killed someone like a murderer so for the purposes of the crime he is a murderer. Despite the fact that, as he's a policeman, he's allowed to carry a gun and allowed to use it in certain circumstance, the fact that he's a policeman, even if he was in uniform at the time, doesn't matter. He meets the important criteria of being a murderer (broke into someone's house and killed them), and so he is a murderer.

    For the purposes of my example, the way the RIAA treats copyright violation(even to the extent that they actually say it's a crime) meets the important criteria for the treatment of a criminal offense. They can claim that it's a civil action, and do, but in nearly every imporant respect it's not. Hence the duck argument.

    You can certainly be facetious with the duck argument (something along the lines of, it's got a skeleton like a duck, so it must be a duck), but there are always certain aspects which define something, and if something has those aspects then you can say with fair probability that it is a form of that thing.

    For your specific example, if I say that I saw a duck, and it's a coot, but for the purposes of my story it doesn't matter that it's a coot not a duck, then for all intents and purposes it's a duck.

  • by Endo13 ( 1000782 ) on Thursday October 30, 2008 @01:02AM (#25565449)

    If the RIAA were going purely after the groups who do the initial rip and upload, you would have a point and there wouldn't be any controversy here. Everyone knows they deserve some fines for that. But that's not the case. The RIAA has been going after anyone they can get the hands on who 'presumably' helped upload the files. Some of the accused have been people who don't even own a computer and have never used the internet.

  • by Kumiorava ( 95318 ) on Thursday October 30, 2008 @03:33AM (#25566093)

    There is also more reasonable example to figure out that the compensation RIAA is asking cannot be constitutional.

    Imagine 100 file sharers who share 100 songs among themselves using P2P program. All of these songs are pirated and RIAA starts catching them one by one. In each trial RIAA gets $750 per song due to the distribution of the songs. After all 100 file sharers have been tried and fines paid RIAA would have received $750 * 100 users * 100 songs = $7.5M.

    Then imagine what is the cost of supplying that group of people original copies of the songs. 100 songs costs about $100 and multiply that with the 100 users and the actual losses are in range of $10000. Payout was exactly 750:1, which can be deemed excessive by any standard. P2P "market" is essentially same kind of closed loop, the scale is just bigger.

  • by Anonymous Coward on Thursday October 30, 2008 @03:35AM (#25566101)

    The point of civil litigation is to make the injured party whole. The point of criminal law is to punish. If the statutory penalties so clearly and egregiously outweigh the damages (and they are outrageously high)then the intent seem to be to fine wrong doers rather than to repay the copryright holders for their losses. In other civil cases, pure speculation is not enough to prove damages. This way this "civil" statute works is to empower the RIAA with government-like powers to punish in a way that seems like criminal law, only without any accountability. I for one think the RIAA an the like have been made too much like a quasi-governmental body dictation the law as it sees fit and should be treated just like any other special interest lobby.

    Anyway, if it walks like a duck , and quacks like a duck, it aint a fricking goldfish.

  • Re:Yeah, I agree. (Score:3, Insightful)

    by sumdumass ( 711423 ) on Thursday October 30, 2008 @04:35AM (#25566337) Journal

    What I can't understand is why it's taken this long for somebody high profile to say this. Or has it? Hasn't Lessig raised this point? And if not, why not? How about all those other legal folks who have been fighting this? Seems to that we're missing something here since everything in TFA seemed entirely obvious to me and everybody I talked about this with from the time that the legislation was proposed.

    Lessig isn't all that great of a legal mind. Sure, he is definably qualified, but this is the difference between a public defender and Johnnie Cochran. This isn't an attempt to denigrate anything about any legal mind that is common around here, it is just an acknolegment that some are better then other.

    Another reason is that we have just recently had rullings in RIAA actions against Thomas(I don't know the actual court docket name.) in which is reduced the settlement because of excessive claims. It's sort of like having to make the cake before you can eat it.

    What makes this news? Is is something new in his analysis? Doesn't look that way.

    The use of the fifth amendment along with the 8th. This charge is more comprehensive and supportive. It also makes the distinction that under the current structure, the government is obligated to bring suit instead of the aggrieved party. It actually attacks the construct of the laws being used.

    This is a fun chance for ranting and all but why should we care?

    I guess the biggest reason why we should care is because if Professor Charles Neeson is actually right, it both invites a new law from congress as well as destroys older cases (ex post facto) in which they will have to be completely droped if a rulling support this guys position. Now, it is commonly accepted for a law to give more freedoms after the fact but never for a law which takes them away. If he is right and a court supports his position, then anyone, even if their case if over, can challenge the premise of the case and see action in their favor. If congress changes the law, there is a good chance that anyone taken to task under the old law would be walking free and clear because of the structure of the law might make it unenforceable.

  • by DeanFox ( 729620 ) * <> on Thursday October 30, 2008 @07:53AM (#25567289)

    and the amendment applies whether it's criminal or civil. What am I missing here?

    What you're missing is the 'So What?'. A lot of things are unconstitutional. The first that comes to mind is drug forfeiture. If I'm driving down the highway and get stopped and have what the officer considers too much money he takes it. I forfeit all my money unless I can prove it's not drug related. If they steal up to 20-30 thousand it's essentially gone due to the high cost of attorneys fees to get it back.

    Then there's the stop in the first place. I've watched the television show COPS and heard an officer remark 'He has a cracked windshield that gives us probable cause'. I've witnessed searches that were far from reasonable.

    How about drug laws themselves. In the old days they knew it took an amendment to outlaw a substance and passed prohibition. Today all it takes is an administrator in a department agency to classify a substance as schedule 1.

    How about plea bargaining where you get 3 years if you plead guilty or 30 years minimum if exercise your right to trial. Sounds like coercion or even blackmail to me.

    The list is endless. Our constitution is so watered down we don't even recognize when another law is passed exceeding it's limits. Which is likely to be the attitude of the judge. My bet is he/she won't even see it.


  • by indifferent children ( 842621 ) on Thursday October 30, 2008 @08:31AM (#25567487)
    Well, no. They are about rights to property in general.

    Well, no. They are about encouraging people to keep on creating, by helping them to reap some benefit. The U.S. Constitution clearly says why Congress is allowed to create copyright laws: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;"

    These are not property rights at all. We (the People) grant copyright and patent holders a limited-term monopoly, because it is in our (collective) best interest (in theory).

  • by Anonymous Coward on Thursday October 30, 2008 @11:23AM (#25570001)

    You're not going to get anywhere with that thinking. Look at the opponent in his best light, and you get "laws against copyright infringement are about promoting the progress of the useful arts and sciences." Then attack the laws by showing they are working against their ostensible purposes.

    When you do that, the radical copyright changes that started happening about a decade ago (DMCA and the Sonny Bono extension) crumble almost instantly, and software patents start to look extremely iffy. The basic idea of copyright holds up (in my opinion) but a lot of details get questionable. Basically, almost every change to copyright law starts to look like a bad idea. This is a good thing.

    If you just say "corporate profit" no one will listen to you, and then on top of that, you're even wrong. Some copyright laws, like DMCA, work against corporate profit and are costing the people who originally bought the laws, quite a but more money that they are saving them.

  • Re:It Never Ends (Score:3, Insightful)

    by jc42 ( 318812 ) on Thursday October 30, 2008 @11:43AM (#25570333) Homepage Journal

    One of my favorite Mark Twain quotes is "There is no distinctly native American criminal class except Congress."

    Of course, it can be difficult to prosecute criminals who are in charge of writing the laws and determining the pay of judges.

  • by ReedYoung ( 1282222 ) on Thursday October 30, 2008 @12:33PM (#25571181) Homepage Journal
    The RIAA/MPAA are recovering damages they have not proven they have suffered. How is this even a question? As I said the last time we discussed the RIAA:

    What "loss of revenue"? Document the loss of revenue, or throw out the cases. Granted, copyright is violated with not-for-profit file sharing, but without proven [the standard of guilt according to the supreme laws of the land, remember] loss of revenue, the only equitable punishment, meaning fitting the crime, is to confiscate the copies and nothing more. Because in cases that the copies are shared without payment, no loss of revenue is apparent, and can only be ascertained by speculation -- of various levels of sophistication, but ultimately it can be no more than speculation -- and that is traditionally not admissible as evidence. Is it admissible as argument? Reasonable suspicion? If so, then also and equally, as counterargument and as reasonable doubt, respectively.

    Disclaimer: I'm not very interested in this subject and thus not especially well-read in it, but occasionally I feel motivated to donate my $0.02 to a discussion, for basically the same reason people watch Jerry Springer I guess, just the absurd, yet presumed "real" spectacle of it.

    I most often see [notice] the question of lost revenue in file sharing cases discussed as mitigating the criminals' intent, as in something for the judge to consider in assigning a lighter or harsher sentence, but not factored into the determination of guilt or innocence. But I think the absence of exchange of money absolves the mischief-makers of any financially quantifiable crime, not because of their inferred "good intentions" or absence of malice, but simply and amorally, because the assumption of lost revenue is unproven, thus legally invalid according to the assumption of innocence until proven guilty in the United States.

    No, a downloaded file is not as good as the original. Some mp3s are "as good" -- for purposes of background noise, but not hi-fi or audiophile intense enjoyment of a real work of art -- as the original. But even when sound quality alone is not important enough for the downloader to purchase the copyrighted work on its originally intended format, the suitability of an mp3 is not reliably comparable to a CD. The unwanted insertion or removal of 2-second pauses between tracks on an album comes to mind, a much more noticeable defect to the casual listener than "quality" differences in mp3s or compressed video. Also, dedicated fans, defined as willing to pay retail CD mark-ups, generally want the liner notes, the high-quality photos and/or artwork, etc., available only on the original. Downloaders are not, generally, the same people as purchasers of the same work. So, no, it is not reasonable to assume that each file downloaded represents a lost sale, of either an album or single or anything, nor even that a consistent ratio of downloads to one lost sale, exists. Any such ratio would differ according to the particular work [genre, live performance vs. studio recording, etc.] and the average quality standards of the audience.

    For the reason of the differences I described above, I purchase any music or video I expect to be worthy of my time, basically because I value the one or more hours that I might otherwise spend learning something, too valuable to waste on the chance of copying errors. I've seen software being written, so I don't trust my music to software. Despite having no files in my personal collection subject to the DMCA, music and software copyright litigation is a blatant waste of the judicial system which I'm taxed to perpetuate. The cost/benefit analysis is a matter of public record, and does not support the business case for the corporations to initiate litigation. Only the lawyers are gaining from this. So, as they're already running the businesses [into the ground, btw] let ^H^H^H make them write the code and the lyrics, too, for Pete's sake. Right now, they are looting economic value, meaning acquiring loot without providing anything of value, to anybody.

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