RIAA Awarded $675,000 In Tenenbaum Trial 492
NewYorkCountryLawyer writes "The jury awarded the record company plaintiffs $675,000 in the Boston trial defended by Prof. Charles Nesson, SONY BMG Music Entertainment v. Tenenbaum. I was not surprised, since exactly none of the central issues ever even came up in this trial. The judge had instructed the jurors that Mr. Tenenbaum was liable, and that their only task was to come up with a verdict that was more than $22,500 and less than $4.5 million. According to the judge, her reason for doing so was that, when on the stand, the defendant was asked if he admitted liability, and he said 'yes.' The lawyers among you will know that that was a totally improper question, and that the Court should not have even allowed it, much less based her holding upon the answer to it."
bankrupt then what? (Score:5, Interesting)
A good example of the justice system at work for your average citizen... So really, what happens next? The guy files for bankruptcy. The RIAA doesn't get any money (not that they really intend to get significant income from those cases). What are the consequences for Mr. Tenenbaum? Can't get a credit card for a few years? Needs to get a job? I'm really curious as to what the true consequences will be.
--
fantasy camp for iPhone developers [fairsoftware.net]
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Yes what people need to remember (Score:5, Interesting)
Is your credit is, in fact, NOT ruined after a bankruptcy. Why? Because you can't file again for a number of years. Thus lenders don't have to worry about you using bankruptcy to just walk on your debts. That doesn't mean your credit is grand, but it isn't worthless. Companies will lend to you since they know you don't have that as a way out.
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Interesting... I wonder what happens as you approach the 8 year mark... when you can file for bankruptcy again.
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Depends on how you did in the intervening years (Score:4, Informative)
At that point, the bankruptcy falls off your credit report. So more or less what they look at is your history during that time. All inactive accounts slide off your report after an amount of time, and all bad information. You can look it up as to what goes off when. However if over the 8 years you maintained proper credit usage, you'd have good credit. If you dug yourself in to a deep hole, you'd have crap credit again.
Credit isn't a permanent state. It is intended to be a risk assessment off of your usage history. However it only goes back so far. IF you defaulted on a credit card when you were 20, nobody will know at 40. It isn't held against you for life.
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It's not entirely ruined, but you certainly won't be making any big ticket purchases (ie cars or homes) without getting the highest interest rate they can stick you with. At that point, your history shows that you are not a good risk for high amounts like that.
Re:Yes what people need to remember (Score:5, Interesting)
I think if RIAA ever sues me, I'm not even going to bother defending myself.
- I'll just ignore the extortion letter demanding $500 or else.
- Ignore the summons to court.
- Not bother showing up.
- Just wait for a verdict.
And then I'll have a good laugh about the whole thing, because no way would I pay a 1 or 2 million dollar fine. I'll declare bankruptcy, and then use the verdict as an opportunity to show how evil the record companies are.
- "Look what our country has become? A place where a person has to pay 2 million dollars because he heard 30 streamed songs off the net. Who's next? Your neighbor? Your self? Your child? This is tyranny pure and simple, not liberty." - except from the book, Corporate Slavery - The New Plantation
Re:Yes what people need to remember (Score:4, Insightful)
Re:Yes what people need to remember (Score:4, Informative)
Re:Yes what people need to remember (Score:4, Interesting)
I don't own any real property (land). And a 2 million dollar judgement is unpayable. I'd be dead before I pay-off even a quarter that amount. That's why I'd laugh at the absurdity, and invite everyone else to laugh along with me.
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>>>"should people be allowed to steal music?"
It's not theft. It's making a copy in violation of a *temporary* licene granted to the creator. Once the license expires, then the item is public domain, and copying is no longer a violation. The real question should be - "The Constitution says copyright was created to benefit society. How does society benefit from handing-down million-dollar judgements on hundreds of citizens?"
IMHO it's time to rethink the purpose of exclusive copy licensing, which
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Try applying for a home loan and see how far you get. While you may be able to get some amount, you likely won't be able to get anything significant and you won't be able to get a nice low rate.
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You meant that's your credit limit right?
Re:bankrupt then what? (Score:5, Informative)
Re:bankrupt then what? (Score:5, Informative)
FUD. FUD FUD FUD. Speaking as someone living in America now, having lived most of my life in Australia under nationalized health, and the UK under same, and making my living from the health insurance industry here, the system here is a travesty.
You do NOT get fined for being overweight. You don't get fined for being unhealthy. "I'm not going to let the government decide my health care! Instead, I'm going to praise the land of the free because my health insurer chooses to deny me cancer coverage because I forgot to mention I had appendicitis 20 years ago." "Instead of a government bureaucrat (and very rare is this the case), I'll happily let a HMO accountant with no medical training whatsoever decide what medical coverage I am entitled to!"
Instead, I get to pay $500 a month for health coverage, plus high deductibles, high out of pocket expenses, have no coverage for the things my wife and I desire. In Australia I paid 1% of my income as a tax, or 1.5% when my income hit 45,000 a year. Alternatively, I could opt in for private coverage, and pay as much or as little as I liked, and not have that tax.
"But I don't want to pay because you're unhealthy" - right, because when someone goes into an ER now because they have a cold, and walk out without paying the bill, who do you think eats the cost? Hint: an overnight stay in hospital doesn't really cost $10,000+. For bonus points: pay cash at your chiro for a $45/hour session. Pay through insurance and have them bill $150 for the same session. Think your insurance carrier is making that much on your premiums being invested that they're covering their costs, plus this? Nope, you're paying.
America is the ONLY country in the first world that doesn't have nationalized health care. Why is it you mainly hear about all this supposed dissatisfaction all over the world with their supposedly horrible health care from US news, not the BBC, or AP, or Reuters, or any other news agency actually in these countries? Instead, we pay twice as much per capita for health care than other first world countries, and have substantially worse than average first world metrics on everything from infant mortality, to life expectancy, to diabetes, to heart disease, to cancer. Yet for all this, there are people who continue to trumpet that everything is A-OK here, and that it's the best way to be.
Jobs would be envious of this RDF.
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You do NOT get fined for being overweight. You don't get fined for being unhealthy.
However you DO get fined for not buying government approved coverage. Massachusetts, the only US state to try socialized medicine does exactly that. They've also discovered that the system doesn't work - i.e. cost overruns for the program have been enormous since day one.
America is the ONLY country in the first world that doesn't have nationalized health care. Why is it you mainly hear about all this supposed dissatisfaction all over the world with their supposedly horrible health care from US news, not the BBC, or AP, or Reuters, or any other news agency actually in these countries?
http://news.bbc.co.uk/2/hi/health/249938.stm [bbc.co.uk]
http://news.bbc.co.uk/2/hi/programmes/politics_show/7103648.stm [bbc.co.uk]
http://news.bbc.co.uk/2/hi/health/8091427.stm [bbc.co.uk]
http://news.bbc.co.uk/2/hi/health/7579422.stm [bbc.co.uk]
http://news.bbc.co.uk/2/hi/health/7030304 [bbc.co.uk]
Re:bankrupt then what? (Score:5, Insightful)
America is the ONLY country in the first world that doesn't have nationalized health care.
The funny thing is, we DO have nationalized health care. 66% of the cost of health care in this country is paid for by medicaid, medicare, or federal government health care plans.
I DO NOT understand why people are so against nationalized health care here. It's already here. They play it up to be some sort of slippery slope, a plague that will infest every part of our lives and culture. Let me clue you in: the system is ALREADY IN PLACE, and the only people who benefit from the way things are now are the insurance and pharmaceutical companies.
~X
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But nationalizing health care isn't the only way to address the problems you brought up, and tends to introduce some of its own problems (as anything else would) such as very long waiting lists for whatever is deemed "elective" surgery (i.e. being treated for something that's not immediately killing you).
One reform I would love to see in the US is to regulate doctors prices. I've had the opposite experience from what you had regarding pricing. To me it seems like big insurance companies get really good pric
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I was, as an anecdote, admitted to an ER in Australia, after showing up at 3am on a Saturda
Re:bankrupt then what? (Score:4, Informative)
Sorry, but I'm sick of the Government trying to protect me from myself.
So am I. Luckily here in Australia our politicians are people too; So while they might get riled up about porn on the internet, they're not going to tax anyone any time soon just for being fat (hint: maybe google image some of our politicians?)
Could you opt out of coverage entirely? If not then the Government has taken away your freedom of choice at gunpoint.
No need for hyperbole, hardly anything is done here at gunpoint.
I'm sorry but there isn't any argument you can make that's going to convince me that we need a Government-run health care system. I don't like Government. Government exists for one reason: To deprive individuals of the freedom of choice.
And that's exactly why a slight smile appears on my face every time I have the pleasure of reading Americans discuss a national healthcare system. Your government might exist purely to deprive its citizens of freedoms, our governments exist for very different reasons. And the freedom to not have a healthcare system is hardly a freedom, but then again I don't miss the freedoms to drive without a seatbelt or to off myself.
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Government exists for one reason: To deprive individuals of the freedom of choice.
Quick, call the doctor, we've got a galloping case of polarization disorder.
Actually, governments exist because societies without governments are ungovernable.
Paul Collier on the "bottom billion" [ted.com]
Paul Collier argues that most nations which experience a natural resource windfall experience a few great years, then end up worse off than before.
The countries where this doesn't happen are countries like Canada, which has a complex system of checks and balances. The "instant democracies" which have the
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And if you were living in your dumb-ass libertarian paradise, you'd be in debtors prison now.
Re:bankrupt then what? (Score:5, Insightful)
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If I don't like the plan(s) offered by my employer I can try to buy one on my own or get a different job.
Lucky you. Not everyone is so lucky.
My health insurance can't drop me whenever it chooses. If yours can then find a different job or plan.
Not possible for vast numbers of people.
All insurance companies do that.
Maybe in America. Here in a more sane country, my wife and I have probably made insurance claims for various things (theft, car accidents, medical treatment, cancelled travel) totalling
someone paid for it (Score:3, Interesting)
This "i don't want to be forced" is a virtual problem...you/we are FORCED already.
People paid for your treatment that you defaulted, one way or the other (its not that the doctor went hungry or the hospital also went bankrupt) its paid by contingency funds that we people who contribute into...one way or another...the physicists amongst us will agree you donot invent things out of nothing...conservation laws work.
Its like people say google is free ....no its not ..its financed by ads which is paid by us b
Re:bankrupt then what? (Score:5, Insightful)
Hey buddy, what do you call it when my premiums go up because *you* decided you could go without insurance?
It shifts the costs to everyone else. Is that fair? Is that the conservative way? Don't pay your fair share, and then when you get sick, screw your creditor (the hospital) and pass the costs along to the rest of society. Real nice.
The system is actually more efficient if the government administrates that. At least I will have the peace of mind that, along the way, if you made enough to pay in, you did, because you had to pay tax.
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Re:bankrupt then what? (Score:5, Insightful)
For a pretty awful example, and one that scared me as I'm self-employed and buy my own insurance, many people in my situation get denied coverage based on some ridiculously technical reading of their answers to the questions asked when you sign up for coverage. For example, there is an egregious example of a woman whose policy was canceled when she sought authorization for treatment for virulent type of breast cancer. The reason? She forgot to mention she had been treated for acne, her doctor misrecorded her condition, and even after the doctor called Blue Cross to clear up the matter, they wouldn't budge.
So we have a private insurance industry that will take your money and provide nothing in return. Even at the horrible DMV, you will eventually get your license, and they certainly don't try to murder you on a technicality. The notion that the free market is doing a good job at healthcare is simply not well founded in reality, and in fact it is doing SO badly, I think even the government would struggle to fail as epically as the private insurance industry.
In the end, if I can get the same crappy coverage I have now, for less cost and without the worry that I forgot to say I had the measles when I was 6 thus causing my entire policy to be canceled as a result (this is just robbery of premiums), I'd go for it. I just don't expect Congress to actually deliver something like that. They'll just force me to get robbed.
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Misery Machine (Score:4, Insightful)
Let's cut straight to the chase: I get the impression that Americans are rabid individualists. They do not want a socialized health system tell them that they are not worth saving because others have higher priorities. They believe that an individual relying completely on themselves is responsible for their own well being. Socialized health care on the other hand understands that humanity has a dignity and if you are unjustly disadvantaged then you can still get treatment according to fairness with everyone else. Myself in particular: I have schizophrenia. I take $20CDN worth of medication for it every day. I cannot afford this medicine. My government subsidizes me based on individual need. If I was in the US I'd be living on the street talking to the birds. So, the conundrum for the US style of care is: what if you are incapable of caring for your self?
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If major corporations like AIG or General Motors can file bankruptcy, why can't we?
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Re:bankrupt then what? (Score:4, Insightful)
Umm, who the hell would know what a "tradeline" is? Just say credit limit; problem solved.
No reason for an "Umm."
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Re:bankrupt then what? (Score:5, Interesting)
They submitted fair use as a defense with the likely understanding that it would be rejected. This is Nesson's ticket to appeal.
My guess is that Nesson knows he can't get precedent set at the district court level. MGM v. Grokster made it to the Supreme Court, and I think Nesson wants to take this one to the Supremes. Tennenbaum didn't have a chance with the current interpretation of the law (basically "copyright infringement is bad, mmmkay?"), so he's trying to shake things up.
That's just my interpretation. The other possibility is that he's simply an idiot, but it's already established that he's a very smart guy.
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He could have chosen not to testify to begin with, you know.
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>>>Using the phrase "merely downloading" is dangerously misleading, as he was not merely downloading them.
I notice you failed to explain what else he was doing, such that you think he deserves a life sentence. Care to elaborate?
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"Did you do it?"
"Yes."
Whoever was defending him was clearly off the ball letting that one fly past.
I had a cop try that once. I had been (falsely I might add) arrested. Out on bail. After two weeks they found no evidence so when I reported back the good Detective said I was free to go. Then he said:
"So, you're free and go home. So now you're free, tell me, did you do it?"
Clearly criminals aren't very bright if that question is even worth asking.
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Re:bankrupt then what? (Score:4, Insightful)
Then I think you missed one:
I see no reason that file sharing would not easily meet that criteria, particularly if you are so anti-corporation that you try to claim a fair use defense because you are only distributing fragments of a file....
someone just (Score:3, Insightful)
bomb the damn HQ of the riaa already, where are the terrorists when you need them? fuck them
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where are the terrorists when you need them?
Representing Plaintiffs and Defendants, of course!
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bomb the damn HQ of the riaa already, where are the terrorists when you need them? fuck them
And here I was thinking the RIAA were the terrorists.
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I see the attempt at humor but I'm going to spoil it anyway. For many, the difference between being a terrorist or "something else" is in who and how the term is defined. But the last people to be called terrorists are the ones who have the most influence over government and the writing and enforcement of its laws.
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Dont you know, terrorists never existed in the first place, its just a scam to scare people.
I am still in favor of bombing the RIAA though.
What is the point of jury trial? (Score:4, Insightful)
If the judge gets to decide the verdict (unless it's a not guilty verdict in a criminal case)? Why not let the judge consult with whomever he/she wants rather than the 12 jurors in this case? If jury trials are not necessary in civil cases, mandate judge trials. At least outrageous fines will become rare. But don't create a farce hidden by an appearance of a right to a jury trial.
Re:What is the point of jury trial? (Score:4, Insightful)
He had a jury trial, he also admitted to doing what he was accused of doing. In a criminal trial that's pleading guilty. Why would they waste time at that point arguing over a point that has already been conceded.
"Your honor, I did it! I admit it."
"That's for a jury to decide son..."
Re:What is the point of jury trial? (Score:5, Informative)
No, its not. In both a criminal trial and a civil trial there are pleadings, and they are distinct from testimony given at trial. What he did was answer an improper question asked of him as a witness (since the question was one of law not of fact) in a way which was harmful, which is not at all the same as pleading guilty in a criminal case.
Re:What is the point of jury trial? (Score:4, Interesting)
And yet, his team wasn't. Was it?
More importantly, this wasn't a random "Judge up and decides the point on their own inititive" event, it was a response to a motion from the RIAA lawyers, which appearently wasn't opposed by HIS lawyers.
Regardless of anything else that is happening in this case, getting upset over the Judge doing this is pointless, appearently his lawyers didn't think it was worth fighting and they were actually in the room.
Re:What is the point of jury trial? (Score:5, Insightful)
The judge's role is to decide issues of law, and the jurors' duty is to decide issues of fact.
In this case, both sides agreed that he violated copyright and that he was liable for it. The only issue that then remained was whether he did it "willfully" or not. The jury got to determine this, which determined what his liability was.
He basically walked into court and said, Yes, everything they're saying is true. What sort of result were you expecting?
Re:What is the point of jury trial? (Score:5, Interesting)
Re:What is the point of jury trial? (Score:4, Informative)
What he said [arstechnica.com]
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Ok, I actually bothered to RTFA, and I agree. It does look a little sketchy.
Re:What is the point of jury trial? (Score:5, Informative)
Where you are getting confused is that a judge can eliminate issues for a jury if no reasonable juror could come to anything but one conclusion based on the facts. That has nothing to do with consultation outside the jury or with it. To put this into a car analogy, suppose you rear-end someone who was legally stopped a stop light. During trial you admit that you were texting with one hand, sipping a big gulp with the other, hollering at a friend in the back seat, and not looking at the road at all. No reasonable juror would think that you were NOT negligent, thus a Judge could summarily decide that you were negligent in the accident. This gives the jury fewer questions and helps speed along the process of coming to a verdict, for example, on the issue of damages.
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>>>a judge can eliminate issues for a jury if no reasonable juror could come to anything but one conclusion based on the facts.
That really sucks.
A judge should not be able to do that, because a jury could decide that the person is guilty, but the law is unjust, and simply nullify the conviction. That's one of the reasons the jury trial was invented - to weaken the power of the State by giving the People an opportunity to "void" wrongful arrests. It's somewhat similar to what the U.S. Supreme Cour
Re:What is the point of jury trial? (Score:4, Insightful)
>>> the fact is that at least 3 juries have listened to these cases and felt like the defendants ought to pay a substantial fine
Actually it's only 2. In this current case the *judge* declared the guy guilty, not the jury.
Also 2 juries declaring guilt doesn't mean much. Statistically out of every 100 trials, you'll only get 2.5 juries to nullify the conviction and release the defendent. Of course in more egregious cases like the Prohibition-era cases, that number will rise as high as 40 nullifications per hundred. We'll just have to wait until we hit 100 RIAA trials to see how "the people" feel about this law.
I'm hoping for 10%.
Re:What is the point of jury trial? (Score:4, Insightful)
That's like saying there's no right to vote. It's just an accidental by-product of having a representative legislature.
Actually in both cases, the jury and the vote, it's about the principle that all power comes from the citizens, and these methods provide a "check and balance" to rein-in an over-reaching government.
Why was it improper? (Score:4, Insightful)
For those of us who aren't lawyers, why was it improper?
Re:Why was it improper? (Score:5, Insightful)
IANAL, but I'm guessing that "liability" is a legal term, so if you ask a non-lawyer a legal question (do you admit liability), then the answer is meaningless. Think of it as hearsay for experts: if you don't know about a topic, you shouldn't be allowed to comment on the record on that topic. Does the guy understand the legal ramifications of what liability means? I don't.
Now, I must say that I'm not impressed with his defense. Anyone can comment on who the defense lawyer was and whether they did a good job? It just doesn't sound great to admit on the stand to being fully, completely guilty. Criminals tend to get away with a lot of stuff, but not this guy.
Re:Why was it improper? (Score:5, Informative)
Fully Informed Jury Association [fija.org]
I am not a lawyer either, but given information at the above link, and the clear history of our legal system, I believe it is improper for a judge to instruct a jury to find one way or another. As someone else pointed out above: if that is proper, what is the point of having a jury in the first place?
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"It is presumed, that juries are the best judges of facts; it is, on the other hand, presumed that courts are the best judges of law. But still both objects are within your power of decision... you have a right to take it upon yourselves to judge of both, and to determine the law as well as the fact in controversy". -- Chief
Re:Why was it improper? (Score:4, Informative)
The real issues is that witnesses (even expert witnesses, and even if they are lawyers) in a case testify only to matters of fact (there are times when someone's opinion, particularly a past opinion, on a matter of law may be a relevant fact, whether or not they are a lawyer, but that's different than testifying on the point of law itself.)
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[Ed. note. The judge's ruling is erroneous. The question : "are you admitting liability" is a legal question, not a factual question, which Mr. Tenenbaum was not qualified to answer. For the Court to base its decision on that is wrong. -R.B.]
It's not clear that the question actually meant 'are you admitting legal liability to the charges listed in the complaint.' It could also have meant 'are you admitting that you were liable (i.e. responsible) for the downloading of the files?' That is, "were you the on
Re:Why was it improper? (Score:4, Insightful)
For those of us who aren't lawyers, why was it improper?
It wasn't improper. FTFA, Tenenbaum admitted his liability during direct examination from the RIAA's attorney. This wasn't a criminal trial, it was civil, and he testified to his own liability. When you admit to the elements of the cause of action, the only thing left is damages. End of story. What a dumbass. I mean, what the f--- was the jury supposed to do? Reward him for admitting under oath that, earlier, he lied under oath and lied on his discovery responses? Please. Juries HAMMER people who get caught lying. There is no more GOTCHA litigation in civil trials in the U.S.A. You're supposed to tell the truth to discovery questions, even if the answers hurt your case. If you don't tell the truth you get hammered. If your lawyer lets you get away with it, he can lose his meal ticket. It's that simple. He lied, and he got popped for it.
On the bright side, at least he can to ditch the "superstar" legal team for someone out of the "bankruptcy attorneys" section in the yellow pages. Hopefully that case will go more smoothly.
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The lawyers among you will know that that was a totally improper question, and that the Court should not have even allowed it, much less based her holding upon the answer to it
For those of us who aren't lawyers, why was it improper?
It was a legal question, not a fact question.
Is this the year of clowns? (Score:4, Interesting)
How many RIAA/Copyright related lawsuits this year have started off with a hopeful - "Yeah! Damnit! We are taking this one all the way and are going to stick it to the MAN! Fuck him! Fuck the MAN Baby!" only to result in a circus and a horrible verdict for the defendant?
Damn that's depressing, and this one was the one I was actually hoping the guy running the show had some sort of fucking clue/hidden plan that he was going to spring out at the end.
I mean, yes, I'm not particularly fond of the idea of willfull copyright infringement, but I thought at least this would come out to forcing the RIAA to cut out some of their crap.
Re:Is this the year of clowns? (Score:5, Interesting)
How many RIAA/Copyright related lawsuits this year have started off with a hopeful - "Yeah! Damnit! We are taking this one all the way and are going to stick it to the MAN! Fuck him! Fuck the MAN Baby!" only to result in a circus and a horrible verdict for the defendant?
Damn that's depressing, and this one was the one I was actually hoping the guy running the show had some sort of fucking clue/hidden plan that he was going to spring out at the end.
I mean, yes, I'm not particularly fond of the idea of willfull copyright infringement, but I thought at least this would come out to forcing the RIAA to cut out some of their crap.
Because the Plaintiffs can pick and choose the cases they bring to court. Why, out of thousands of potential defendants, would you go to court against the one that can destroy your approach?
They don't bring to court someone WE would like to see. In my case, I only download music that I have already purchased a physical copy of, so their case would be a much harder sell.
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I don't pirate music, but I've been considering firing up a VM, having it randomly download one RIAA-copyrighted song per day in a p2p program with uploading enabled, and waiting for my "pay up or get sued" letter.... just so I can use all the defenses these people should be using.
Of course, I have a 4-month-old baby, so I don't think I should risk owing that much money.
Re:Is this the year of clowns? (Score:5, Funny)
Its the RIAA, I'm certain they'd accept the child, they have to feed their lawyers after all you know.
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That's the problem.
Everyone uses the "I have a family to support so I can't afford to stand to my principles" idea.
That's why nothing good ever happens.
I don't have a family yet, if ever, so I can't say what I'd do in this situation though.
To go Orellian(sp) I am thinking that the people, are the proles?, are doing tasks to help Big Brother is that they have families to support so that need a job.
The family takes presedence(sp) over the bad job.
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Firstly, it more and more appears, that who ever has the most money can buy the verdict they want, secondly, everybody, up to and including the Judge herself, seem to be ignoring the law as it is written and making it up as they go along.
Finally, damages in the million dollar range when the actual loss in considerably less than $100, who needs to work and actually produce things when you can
Disingenuous summary (Score:5, Informative)
The lawyers among you will know that that was a totally improper question, and that the Court should not have even allowed it, much less based her holding upon the answer to it.
The linked article doesn't give a complete transcript of the questions and answers, so I can't speak to whether the question was 'totally improper,' but as Ray Beckerman (aka NewYorkCountryLawyer) should know, it was the job of Mr. Nesson, not the judge, to object to improper questions. Furthermore, Mr. Tenenbaum was almost certainly deposed prior to trial, and Mr. Nesson would know what questions were likely to come up.
Finally, the offending question is presumably "Are you admitting liability for all 30 sound recordings?" Under FRE 704(a) [cornell.edu], an opinion as to an ultimate issue to be decided by the trier of fact is admissible (with the exception given in FRE 704(b), which does not apply here).
Lay opinion evidence is limited by FRE 701, which requires that the opinion "(a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702." Crucially, the question was not "Are you liable?" it was "are you admitting liability?" The former might possibly be objectionable, the latter is almost certainly not. In any case, Mr. Nesson did not object and so the point is largely moot.
The only reasons to disregard Mr. Tenenbaum's admission would be if the judge believed he was either lying or mistaken. He had no reason to lie, and since the other evidence makes a strong case that he was in fact liable, his admission fits with that.
In any event, Mr. Nesson's strategy has always been to admit liability but argue that the damages are unconstitutional or otherwise impermissible. He has been very clear about this in his public discussion of this and related cases.
Finally, I'll just add that the right against self-incrimination applies only to criminal cases and has no application here.
Re:Disingenuous summary (Score:5, Insightful)
All excellent points. One other thing is that if the defendant's counsel (Nesson or otherwise) never objected to that question and did not properly preserve the objection for appeal, it might not be an appealable issue even if the question was improper.
Re:Disingenuous summary (Score:5, Interesting)
Thank you.
Ray Beckerman's summary is disingenuous, which is a shame. Instead of focusing on meaningless small issues in the trial, the overall issues of the case and the posture of the plaintiffs and defendants should be focused on.
I remember an article on ArsTechnica about Nesson getting in on the act. "Oh no, here comes Harvard professors â" the RIAA must be quaking in its boots!"
The sad reality is that Nesson and his crew did just about the job you'd expect from a law clinic â" average, if not below.
That's not to say law school clinics don't provide valuable legal aid, or that they can't have a great case here or there, but it is far from the norm.
Here, you have a professor (Nesson) who has likely not had much courtroom experience over the last many years trying to guide law students who have had little to no courtroom experience in how to defend a complicated, specialized case involving copyright infringement.
The antics of the defense were not those of a principled, strong defense plan. Then again, as the above poster mentioned, it seems the idea was to lay out a possible case for a constitutional challenge to statutory damages.
Besides, the idea that Harvard has some special magic that will win the day does not play out in the real world. The special magic of Harvard isn't trial outcomes, it's networking and job options for alumni.
Nevertheless, maybe the appeal on statutory damages will go through and do some good in the end.
I just feel bad for Tenenbaum.
Here's the best part of the Ars article... (Score:3, Insightful)
Moral of the story: Just because some crazy-ass professor has "Harvard" next to his name does not mean he is going to magically get you off. Hell, from the looks of this case this Nesson guy should probably be brought up on sanctions for trying to turn this trial into a circus for his own fantasy-version of fair use. An attorney representing a client is supposed to act in the client's best interest, and not in the best-interest of his political cause. From what I've seen of this Nesson guy, his argument that P2P of complete copyrighted works constitutes "fair use" is completely ridiculous.. just see the four factors reiterated in Acuff-Rose case: There's no transformative use at all, these are all commercial works not some political diatribe, and the guy was distributing complete copyright works online. About his only defense is that he wasn't charging for the works, but that factor alone is never going to win. Oh, I'm sure this new "fair use" theory is popular with other faculty at Harvard and in some bizzaro academic enclaves, but in the real world it was a great way to get his client screwed over. Not that Nesson cares, it will just make for publishing fodder he can push out to a hapless law review that's more wowed by his "Harvard" credentials than by his complete lack of legal reasoning.
Oh, and pending my passage of the bar exam I finished two days ago, yes I will be a lawyer. I also went to a school with a much better copyright curriculum than whatever these jokers at Harvard are pushing.
An ill precedent. (Score:2)
This bodes bad weather indeed. If money is what sustains the flesh, we have here a case of cannibalism.
(Somewhere, a barman in a life-jacket pours Scotch for a passenger while the cruiser sinks..)
Give it up, NYCL (Score:3, Interesting)
It's clear that the game is rigged. Here, with the defenses all tossed out before the case even got to the jury. Worldwide, as the Pirate Bay trial with the judge being the next best thing to a card-carrying member of the copyright cartel. All your presence does is legitimize the system by making it look like something other than the RIAA and its allies steamrolling over those without the resources (including paid-off legislators and fellow-traveler judges) to fight them.
I move for a bad court thingy (Score:4, Interesting)
Lionel Hutz: And so, ladies and gentleman of the jury I rest my case.
Judge: Hmmm. Mr. Hutz, do you know that you're not wearing any pants?
Hutz: DAAAA!! I move for a bad court thingy.
Judge: You mean a mistrial?
Hutz: Right!! That's why you're the judge and I'm the law-talking guy.
Judge: You mean the lawyer?
Hutz: Right.
I am not a litigator, so I really never go to court. It being a novelty to me, I had a fun time watching the trial this week, and seeing how an infringement trial goes outside of what I've read in books. However, I noticed what I thought was a significant mistake in the jury instructions as the judge and the two sides were working them out today. I predicted that this could cause the jury to err in a particular way, and looking at the award, I think it may have actually happened.
The plaintiff suggested that the jury should award damages based on the number of infringements. The judge felt that this was acceptable, and the defense did not counter with an alternative. When the instructions were finally given to the jury, they included language to this effect. The problem with this is that the law -- 17 USC 504(c)(1) -- specifies that statutory damages are awarded per work infringed, not per infringement. That is to say, if you were on trial for distributing one copyrighted sound recording to one million people, that would only count against you one time, not one million times. But if you were on trial for distributing two different sound recordings once each, that would be two counts against you.
I feared that due to the flawed language in the instructions the jury might believe that even if they were to award the minimum of $750 per count (in this case there are 30 counts), they might take notice of the fact that the defendant infringed when he downloaded, and infringed again when he uploaded, and therefore might double their award, thinking that each type of infringement counted separately for computing damages. Or worse, they might multiply their figure more, if they thought he uploaded a lot.
Well, the figure that they came up with after deliberating was $675,000. The minimum award in this case would have been $750 per work times 30 works, or $22,500. Multiply $22,500 by 30, and you get the amount actually awarded. It is possible that the jury meant to award the minimum damages, but due to the incorrect instructions, multiplied to account for multiple acts of uploading that they believed occurred.
Or they might have just felt that 30 times the minimum was a just figure, and they understood the instructions just fine. Not having seen reports (if there are any, or are ever going to be any) from the jurors as to what their logic was when deliberating, I don't know.
But the doubt, it seems to me, could be grounds for a mistrial. This is of course entirely unrelated to the constitutionality issue that has been discussed at length. On both issues, I will be very interested to see what happens. And since an appeal is likely, and any appeal will go to the First Circuit, I will probably get to see that myself as well.
Lessons Learned (Score:3, Insightful)
(a) If you get caught by the RIAA, settle quick.
(b) Don't be a dummy and keep ripping copyrighted material after you're caught.
(c) If you're too stupid to settle quick, DON'T engage show--off lawyers who won't try to settle your case for the lowest possible amount. Engage lawyers tuned in with a sense of reality.
(d) Talk strategy with a bankruptcy lawyer very early on in the process.
(e) Don't listen to any of the whackos who keep railing about how (boo-hoo) unfair the copyright law is. Your predicament DEMANDS a pragmatic approach--devoid of political or emotional overtones or undertones.
In the Army, I was taught the practical response when exposed to a nuclear attack. It seems appropriate here:
(1) Bend over;
(2) Put you head between your legs; and
(3) Kiss your ass goodbye.
Re: (Score:3, Insightful)
Kinda puts the $1.9M Thomas-Harris has to cough up in a strange perspective. There seems to be no rhyme or reason yet to how these get awarded.
Re: (Score:2)
Re:America's last great industry... (Score:4, Insightful)
Copyright was never intended to give the copyright owner complete and full rights as though it were a piece of tangible property. The intent of copyright was to give the holder temporary rights to an original work, in order to give artists, writers, and other creators incentive to create... as opposed to simply letting all original works automatically be in the public domain. This incentive to create was (as is clearly stated in the law) intended to benefit the public, because after that temporary period was up, the work reverted to the public domain.
The period of copyright was originally much shorter: about the same as a patent... and if it is reasonable for a patent, it is also reasonable for copyright, for exactly the same reasons: it allows the creator to make money, while also benefiting the public.
The period is longer now because copyright holders (mainly large corporations) lobbied Congress to make it so, in order to profit from it more. It is now up to the life of the creator, plus 50 or 70 years or so... I forget exactly. Now, tell me: how does that benefit the public (the whole original purpose of copyrights)? Someone can write a book, and someone who was born the same year might never live to see it in the public domain! That does not fit very well into my definition of "temporary"!
I should also point out that letting original works and inventions automatically be in the public domain from the beginning has been tried in other countries, and guess what? You end up with a society that on the whole does not create, and does not innovate. (Think, "Soviet Union" during its heyday.)
The desire to work for one's own gain is powerful.
On the other hand, when works never (or almost never) revert to public domain, then you end up with a stratified society, in which the public does not benefit from creativity and innovation... exactly the opposite of what copyright law was intended to establish.
Re: (Score:2)
I guess the lesson there is: "Don't feed the trolls."
Re: (Score:3, Insightful)
Gah. I hate it when I give a reasoned reply to somebody, then they get modded down so it looks like I am talking to air.
I guess the lesson there is: "Don't feed the trolls."
OR, just quote the relevant parts of the post you are responding to.
I should also point out that letting original works and inventions automatically be in the public domain from the beginning has been tried in other countries, and guess what? You end up with a society that on the whole does not create, and does not innovate. (Think, "Soviet Union" during its heyday.)
They also didn't have the internet - a nearly frictionless vehicle for distribution of original works and money, although we could stand lose even more friction on the money part.
Re: (Score:3, Informative)
At that time, copyright did not specifically cover recordings of any kind... whether rolls for player pianos, or the new Edison recordings.
The writers of music (the aged John Philip Sousa made sure to make a lot of showings of his famous face on this side), were arguing that they should receive royalties for these "recordings". The "recording industry" (makers of player piano