Constitutionality of RIAA Damages Challenged 360
NewYorkCountryLawyer writes "In SONY BMG Music Entertainment v. Tenenbaum, the defendant has filed a motion for new trial, attacking, among other things, the constitutionality of the jury's $675,000 award as being violative of due process. In his 32-page brief (PDF), Tenenbaum argues that the award exceeded constitutional due process standards, both under the Court's 1919 decision in St. Louis Railway v. Williams, as well as under its more recent authorities State Farm v. Campbell and BMW v. Gore. Defendant also argues that the Court's application of fair use doctrine was incorrect, that statutory damages should not be imposed against music consumers, and that the Court erred in a key evidentiary ruling."
Let me be the first to express this sentiment. (Score:2, Funny)
Duh.
Comment removed (Score:4, Informative)
Re:Let me be the second! (Score:4, Insightful)
Well that's really going to help.
Re: (Score:3, Insightful)
I would think it would be more effective to either turn in a blank ballot, or do something like write in Mickey Mouse(*). By simply not voting, the assumption is that people are lazy and/or don't care - by taking the time to vote but not actually filling in a valid ballot shows that this is not case. Look at the current situation, the numbers for "didn't vote" has trumped the winning candidate in any election in recent history, yet nothing seems to be changing because of this. Can you imagine what would
Re: (Score:3, Informative)
Good luck on that one (Score:5, Insightful)
Re:Good luck on that one (Score:5, Interesting)
All I want to know is who maintains the public register of free music? If each of these defendants is paying for damages of a given song for an industry's worth of consumers, then surely that song is now trued-up and effectively public domain. So where's the register of music that's been bought for me so I can collect?
Re:Good luck on that one (Score:5, Funny)
The Pirate Bay dot org.
Re:Good luck on that one (Score:5, Funny)
"Napster's great, you can download all the tracks you were too embarrassed to buy in the shops"
Re: (Score:3, Insightful)
Not quite the same, but the U.S. had a fairly sane copyright registration system before signing on to Berne. It just makes sense that people who care about protecting their works would register and people who don't, won't.
Re: (Score:3, Informative)
I'd like to know how, when I search for "scatterbrain", which songs with that name are copyrighted, copylefted, or public domain? There are hundreds of songs with that name, all completely different. How is a downloader supposed to know whether or not he's infringing?
Re: (Score:2)
These are a bunch of guys who have a hard time understanding "shall make no law" and "shall not be infringed"
Say what? The RIAA may be evil, but I don't think they are trying to either enforce a religion or restrict your access to guns.
Well, not yet, anyway.
Re:Good luck on that one (Score:5, Informative)
Re: (Score:3, Funny)
They obviously need to read RFC2119 then...
Re:Good luck on that one (Score:4, Informative)
They obviously need to read RFC2119 then...
For those too lazy to look that up... it's the RFC that defines phrases such as "SHALL [NOT]" (as in "implementations SHALL NOT do X").
I have gained this from musicology (Score:3, Insightful)
I have gained this from musicology: That I refuse Sony BMG music downloads, that others only avoid from fear of the law.
Interesting! (Score:2, Informative)
A link to an old slashdot article, and 2 links to legal documents - one of which is 32-pages long!
Now THAT makes for some interesting reading... well, this is definitely one time that I will RTFA!
Thanks slashdot (Score:2, Interesting)
Every time a defendant does anything in an RIAA trial, slashdot has to report it? He's already sentenced, it's over. This is just more general bleating about how unfair the award is. There's no reason Tenenbaum would get special treatment.. high damages paid to the RIAA have already held up in court and been denied further appeal..
Re: (Score:3, Interesting)
To the best of my recollection (NYCL, a little help?), the constitutionality of the damages has never been challenged.
And even if it has, in one Circuit, that doesn't mean that it couldn't be challenged in another Circuit. Of course, if two Circuit Courts give different rulings on said topic, then it would almost certainly end up in front of the US Supreme Court.
Re:Thanks slashdot (Score:4, Informative)
it takes two different cases to get two circuits finding the opposite of one another. When that happens, the Supreme Court *MUST* hear the case(s) to resolve the discrepancy. It is one of only a few things that can force the Supreme Court to hear a case. Other cases are heard at the court's discretion from among those appealed after decision at the circuit level. Thus do constitutional lawyers decide who makes a good test case. The goal is to find a client with circumstances that will get the circuit to rule differently than another circuit, even if it's on a tangential aspect of the case. It's like hacking a bit.
Re:Thanks slashdot (Score:5, Informative)
When that happens, the Supreme Court *MUST* hear the case(s) to resolve the discrepancy. It is one of only a few things that can force the Supreme Court to hear a case.
No, it isn't mandatory that they resolve the circuit split. It is often convenient when they do, but it is not mandatory.
Re:Thanks slashdot (Score:5, Informative)
To the best of my recollection (NYCL, a little help?), the constitutionality of the damages has never been challenged.
Only one such motion has been made, in Minnesota, in Capitol Records v. Thomas. That motion is pending. This motion also makes arguments the other one had not made, and makes the due process argument a bit more clearly than the other one had, IMHO.
Re: (Score:3, Interesting)
Re:Thanks slashdot (Score:5, Insightful)
This is the crux of the whole deal as far as I'm concerned.
Face it, this entire RIAA scam is little more than an effort to squeeze the last scraps of wealth from an "industry" that is past it's expiration date.
There is no longer any need for a "recording industry". It's only purpose today is to skim value from the work of other people. What the RIAA is trying to do now is put together some golden parachutes for record company executives. If I skip through the music I've added to my collection in the past several years, the thing that jumps out is that the overwhelming majority of it was purchased directly from the artists. I don't think I've purchased a single bit of music from any of the members of the RIAA since at least 2004. I won't put money into their hands. I've got a few collections of things that I was given by other people that are from big labels, but I wouldn't have bought them anyway. Yes, they've lobbied congress to extend copyrights, but it's going to become harder and harder for them to keep extending copyright beyond the length of a human lifespan. Eventually, the music industry will fade away, just like there are no longer factories making wax cylinder recordings.
So I don't have any records by Lady Gaga (although I have a ringtone of Eric Cartman singing a Lady Gaga song) and I have absolutely nothing in my collection made by any contestant on American Idol. And I don't have anything by any of the made-to-order industry-created phenomena that seem to populate the record charts these days.
It's not that hard to be an avid music fan these days and never, ever put a penny in the pocket of any of the people behind the RIAA.
Re:Thanks slashdot (Score:5, Interesting)
Weird. That really, really does not sound like "innocent until proven guilty" to me... Oh, also, we tend to like the phrase "extraordinary claims require extraordinary proof", but apparently the courts will accept a plaintiff's extraordinary claims, with no proof?
Re:Thanks slashdot (Score:4, Informative)
Re: (Score:2)
This is the first I've seen of:
"II. AT TRIAL THE COURT ERRED BY PREJUDICIALLY REDACTING DEFENDANT’S OFFER OF EVIDENCE SHOWING THAT HE WAS WILLING TO TAKE RESONSIBILITY FOR HIS ACTIONS, ALLOWING IT TO BE TWISTED INTO DEVASTATING IMPEACHMENT OF HIS CHARACTER."
and after seeing the original vs what was entered into evidence, it makes me want to redact a bunch of RIAA member company offers and then take them to small claims court for not following through with their promises.
In other words, some portion of
Re: (Score:2)
Point of order: He was not sentenced to anything, since this was not a criminal trial.
Re: (Score:3, Funny)
You must be a hit at parties.
Or maybe Model UN conferences.
Argument != Ruling (Score:2, Informative)
It really shouldn't be news that someone is making an argument in their case. Anyone can make an argument - that doesn't mean it's right. And the standards on due process for damages are pretty wishy-washy. So, while I'm not saying this wouldn't be good news if it were ultimately upheld, it's not really news that someone is bringing it up. 99% of all class actions are arguments made by plaintiffs' lawyers that are garbage, which never go anywhere.
Re:Argument != Ruling (Score:5, Insightful)
A) It is an area of law that a lot of us care about and
B) Because this is an argument many of us have wished had been made before, but until this time (as far as I know) it hasn't. So we want to pay attention to this case to see how it turns out.
If you don't like the story, you don't have to read it.
Re: (Score:2)
If you don't like the story, you don't have to read it.
Now you tell me... I've got a backlog from 2006!
Re: (Score:2)
this is an argument many of us have wished had been made before, but until this time (as far as I know) it hasn't.
The problem was always one of standing. One does not have standing to make some of these arguments until one is sued in court by the copyright holders. Needless to say, most of us would rather not expose ourselves to massive financial risk simply to have an opportunity to make an argument or to put it more bluntly, the stakes were "too high". However, now that we have a few brave (or desperate) souls who are "stuck in the game" and "willing to make the argument", I agree that it is definitely one that is wo
Re:Argument != Ruling (Score:4, Insightful)
This particular argument is news because A) It is an area of law that a lot of us care about and B) Because this is an argument many of us have wished had been made before, but until this time (as far as I know) it hasn't. So we want to pay attention to this case to see how it turns out. If you don't like the story, you don't have to read it.
The RIAA would not like the world to know about these arguments and defenses. Isn't that reason enough to want to learn about them? :)
Re: (Score:2)
Re:Argument != Ruling (Score:5, Informative)
The 'making available' argument was aired in the Thomas case (although her counsel didn't bother to bring the precedents to court) and the jury instructions were that making available was sufficient to found liability
The judge in the Thomas case reversed himself on that, realizing that "making available" was NOT sufficient to find distribution. Slight detail you seem to have overlooked.
What's the legal limit? (Score:2)
I'd read somewhere that is was capped at $30k per copyright infringement, $150k for distribution of same.
I should think that, if true, the caps are there for rationality and that they're high to discourage infringement - but should never be used as analogous to a sentencing guideline.
Ray, I get the beef (from reading your info) about the judge being wrong in taking the defendant's statement of liability into account - but further, was it right to suggest those limits to the jury, in any case?
Thanks in advan
Re: (Score:2, Informative)
Since the cost per song is $.99, then it would be roughly $1.00 per song...
Since the downloader didn't share the files intentionally (software developers ought to make the default NOT share), and the fact that there is ZERO evidence that the files shared were actually downloaded, and since we know that "making available" isn't an offense (otherwise the RIAA would have to sue itself out of existence as there would be no pirating without them producing the content in the first place), then it would $.99 per s
Re:What's the legal limit? (Score:4, Informative)
What is really neat is the presumption of willfullness under section 3 when the violator "knowingly provided or knowingly caused to be provided materially false contact information to a domain name registrar, domain name registry, or other domain name registration authority in registering, maintaining, or renewing a domain name used in connection with the infringement."
Re: (Score:2)
And so far, they've been holding anybody who makes a copyrighted work available as any downloadable file (over HTTP, FTP, or any flavor of P2P) you're doing so willingly. Nobody's ever been able to prove that they unwillingly installed such file-sharing programs.
Re: (Score:2)
And so far, they've been holding anybody who makes a copyrighted work available as any downloadable file (over HTTP, FTP, or any flavor of P2P) you're doing so willingly. Nobody's ever been able to prove that they unwillingly installed such file-sharing programs.
The method of distribution doesn't matter at all.
unwillingly in this case would refer to, for example, downloading an .mp3 named after a Nine Inch Nails song off of their album that was given away for free, but instead it turns out to be something else like Metallica.
Copyright infringement was committed, however until you listened to the song, you were under the impression that you DID have distribution permissions for that song.
For music sharers, this type of claim would not at all be true, and it would be
Re:What's the legal limit? (Score:5, Informative)
Ray.....was it right to suggest those limits to the jury?
No in my opinion it was error. There was no basis for allowing anything above the $750 per infringed work minimum, and only the judge rather than the jury could have awarded less, so there was nothing for the jury to decide.
How is this news? (Score:2)
Re:How is this news? (Score:4, Interesting)
how is filing a motion newsworthy?
There have been ~40,000 cases; this is only the 2nd time such a motion has been made. The first such motion is pending.
singles sell for 99 cents to $1.50. (Score:3, Insightful)
that's the damages, folks.
Re: (Score:2)
That's the actual damages per download.
Factor in that distributing can lead to many downloads (especially if there is some concept of downstream culpability, and those people all distribute) and one MP3 can easily be downloaded many hundreds or thousands of times, and actual damages can reach those amounts.
Factor in punitive damages, which can be many times higher than actual damages, and the "correct" damages far exceed 99 cents.
Re: (Score:2)
Re: (Score:3, Insightful)
Take your straw-man elsewhere, please.
Shoplifting and copyright infringement are not comparable. If you shoplift a pair of pants, the store cannot sell them to someone else. The store takes a hard loss of the cost they paid to acquire the pants. Making a copy of a music file, by contrast, does not cause any direct damage to someone selling copies of that file, since they still have the undiminished ability to continue selling copies. That is, if you download a copy of Gin and Juice from bittorrent, the "inv
Re: (Score:2)
Exactly. I don't see how that's so hard for people to grasp, but it apparently is. It's also hard to grasp that just because John Doe downloads a song from bittorrent, doesn't mean it's lost revenue; Both because a.) if he didn't get it for free, he might not have bought it at all, and b.) just because he got it for free, doesn't mean he doesn't either own a legal copy himself, or will own a legal copy if he deems it to be worthy of purchase.
People do not NEED to buy every song out there. Someone not doing
Re: (Score:3, Insightful)
If I shoplift a CD, the store is out the price it paid for the CD, and if caught I will have a criminal misdemeanor charge and pay a few hundred dollars.
If I infringe copyright on that same CD nobody loses anything, I have no criminal charges, but I'm liable for hundreds of thousands of dollars.
Logical? Rational? Not to me it isn't.
Re:singles sell for 99 cents to $1.50. (Score:4, Insightful)
If the fees are high to discourage people... (Score:5, Interesting)
Seriously if downloading one song can have you paying out, for example, $10,000 then surely speeding which can result in death should have a fine of $100,000 at the very least.
If the government won't do that because it's ridiculous then I want to know why it's not ridiculous that I can be paying that much for downloading a few songs which are, at best, worth $0.99 each.
Re:If the fees are high to discourage people... (Score:4, Informative)
Seriously if downloading one song can have you paying out, for example, $10,000 then surely speeding which can result in death should have a fine of $100,000 at the very least.
Please don't give any legislators new ideas. My last spedding ticket for 10 over cost me $300. I expect that to rise by the next time I get a ticket already.
In all seriousness though, I have thought about the law in the terms you mention often and have been surprised. For instance, I remember the first time I saw a sign that said $1,000 for littering (I live in California). At first I thought nothing of this until I later saw a sign, in the same town, that said $271 fine for running a red light at a busy intersection. Now, This was years ago so the numbers have probably changed but I remember being shocked at this discrepancy. Running a red, which could cost other drivers significantly (as in multiple thousands of dollars of damage as well as potential death) had a lower fine than throwing my straw wrapper out my window which, at worst, could what...kill a bird that was to stupid to tell paper from food and choked on it? Welcome to modern America, where the law doesn't make sense and nobody seems to give a damn. =)
Re: (Score:2)
If a 10 over cost $300 you were in a workzone or a school zone and you should have been fined twice as much. A first time speeding ticket in a school zone in my state is a class a misdemeanor with a $600+ fine, the second time it triples and the third time there is jail time involved. Workzones are double also but not handled under criminal statues.
There are a reason these fines are high and should be high, speeding in these two locations is much much more likely to result in fatalities and in the case of s
Re: (Score:3, Insightful)
Children don't walk to school any more. There are too many boogiemen on the streets. Sad, but true. How will today's child admonish their children about how tough they had it. They don't even walk to school uphill, in the snow, one way.
don't speed in finland (Score:3, Interesting)
speeding fines in finland are based on percentage of your last tax return
so if you are poor, your speeding fine is a pittance. but if you are the chairman of nokia, its over $100K
http://news.bbc.co.uk/2/hi/europe/1759791.stm [bbc.co.uk]
Re: (Score:2)
While I can get behind what you're saying, the facts you infer do not apply here - the defendant in TFA was supplying the songs, not downloading them.
Re:If the fees are high to discourage people... (Score:5, Insightful)
Speeding tickets are a gold-mine for municipal budgets.
If you have a cash cow, you milk it gently. Not rip the udders clean off.
Re: (Score:3, Insightful)
Enjoying a song without permission = $22,500
Growing a plant without permission = 5 years
Illegally disabling competition in a multibillion dollar market for years = a few days of profit
I think there's an inverse relationship here.
A perversion of law (Score:5, Insightful)
Trying to fight RIAA in the courts is a loosing effort. RIAA pay politicians handsomely, and generally gets the laws they want. If they temporarily loose in court, they just pay to have the laws changed, and than they win. The draconian penalties as well as the never expiring rights RIAA enjoy is an amazing perversion.
The only thing that is worse is that this can happen in a democracy, and few care.
If you argue "well, just pay the $0.99 on iTunes and stop whining" you misunderstand culture fundamentally. Humans as a species copy. From infants looking at their parents to musicians, architects, engineers and philosophers listening to others, we refine and produce. This is the essence of human culture. That companies can monopolize this flow is damaging to the progress of mankind.
Re: (Score:3, Insightful)
We in the modern west have a problem, and I, for one, do not see an easy solution.
It used to be that making copies of creative works was a physical task that was the domain of professionals. As such, enforcing copyrights was relatively easy.
As soon as copyrightable creative works were representable in digital form, and computers became capable of copying them trivially, that changed utterly.
Copyrights exist so that creators of creative works can be given an incentive to create. Their creations, on the whole
Re: (Score:3, Insightful)
It used to be that making copies of creative works was a physical task that was the domain of professionals. As such, enforcing copyrights was relatively easy.
A minor quibble: Making copies using state of the art methods was the domain of professionals. Most people didn't have their own printing press, but if you were literate and had ink, pen, paper, and time, you could still copy a book by hand. Even today, in fact, you could not compete with a CD or DVD factory if you were merely armed with a generic wri
Re: (Score:3, Insightful)
The point is that with no copyright, how is any author ever going to earn any money? As soon as a new book was published, anyone could copy it and sell it without the author getting a penny.
First, I don't recall saying that we should abolish copyrights, although that is a legitimate option. In determining whether to have copyrights, and how much copyright to have, if any, we should look only at the public interest. It is in the public interest to have as many works created and published as possible, and it
Re: (Score:3, Interesting)
Trying to fight RIAA in the courts is a loosing effort.
If the defendant wins the statutory damages argument in court on constitutional grounds then it will not have been wasted effort because it means that the copyright holders would have to get the Constitution amended to specifically allow for LARGE statutory damages for copyright infringement. It requires a super-majority vote in both houses of Congress and a super-majority vote of the states to amend the US Constitution. The RIAA may pay handsomely, but no amount of payola could muster that kind of suppor
It's not about copying (Score:4, Interesting)
The fundamental problem here is not that of copying, but the matter of justice in proportion to the crime.
Suppose, for example, we take the RIAA's argument at face value: Because she's shared these 19 songs, the RIAA companies will never make another sale from them. According to the RIAA, she owes them for the lost profits they would have made.
Even were this the case, the maximum cost of these 19 songs is the cost the RIAA paid to the artists to produce them. Here's a hint: it's not very much. Elton John once said that he could write a song in 15 minutes; even were he to charge a lawyerly-like rate of $500/hour, that would only be a few thousand dollars of labor. Even at the extreme end, this is two band-years worth of labor, which hardly costs the label a few million dollars.
In terms of actual damages, she probably resulted in no lost sales. Even before filesharing, I grew up in an environment where people simply taped songs off the radio, and bought the occasional LP. The type of people downloading from filesharing networks are the kind who wouldn't have bought the song no matter how much they like it. What the RIAA doesn't understand is that with the exception of the upper-middle and upper classes, most of America has become accustomed to getting their music for free, without paying a dime. If they can't get it for free, they just do without. It is almost never a lost sale.
What disturbs me most is that a jury could be convinced to grant a judgement of a few million dollars against her without any actual proof of infringement. They have no idea how many - if any - downloads actually occurred.
Again, It is not just about ripping a CD (Score:3, Interesting)
It is not only ripping a CD. It is the song "Happy birthday", it is "winnie the Pooh", and scientific journals. It is the ink for your printer, and posting your kids latest performance on Youtube. It is the ability to bring a guitar to amateur nights in the local pub, and play music you like.
U2's Bono wants to implement a Chinese style control of the net globally, so you may not have seen anything yet.
I think artists should be paid well, and maybe have, as the law originally gave, a 14 year copyright. Now i
Summary + questions from a non-lawyer (Score:3, Interesting)
IANAL. I did skim part of the brief.
The brief states that between the time Napster came out and iTunes came out, there was no ability for consumers to obtain music legally via download, and that posed a lack of choice for "Digital Natives" who wanted to obtain music that way. The court recognized that period as an "interregnum period" during which I presume (again IANAL) that no one can be successfully prosecuted for copyright infringement for downloading. However because iTunes was encrypted from 2003-2007, the brief argues that the interregnum period should be extended until some time in 2007, when encryption-free digital music was available.
The two main arguments for that are 1) publishers released DRM-free music on CD, so they partially contributed to the proliferation of the recordings on P2P networks and must have been aware of it by 2004, yet continued to sell and promote CDs. (This seems awfully tenuous to me...the publishers were still trying to sell music, and by that point the digital market hadn't quite gotten to the saturation point where they could stop selling CDs, and CDs require DRM-free music), and 2) The brief cites a prior case in which a court recognized that care taken by the plaintiff to "protect" their IP made a fair use defense fail, and that had the plaintiffs failed to protect the IP, fair use defense might have worked. In this case, the brief argues that the plaintiffs did not take enough "care" of their IP because they released them DRM-free on CD, and so fair use defense might work. (To me that seems to be arguing a hypothesis - that the court in the prior case would have ruled differently if the plaintiff had acted differently - rather than arguing a precedent on an actual ruling. Also, the CD format requires DRM-free music, so I'm not sure what sort of choice the publishers had there short of breaking everyone's existing CD players. Digital being a newer format allows for new things like DRM.)
Re:still flogging this old dead horse? (Score:5, Insightful)
Sure, he should pay a fine.
One in the order of, say, $675, not $675000.
Re: (Score:3, Interesting)
He offered $500 to Sony, to my knowledge, and they turned him down and have now succeeded in the big bucks.
Re: (Score:3, Funny)
He offered $500 to Sony, to my knowledge, and they turned him down and have now succeeded in the big bucks.
Sony needed much more to offset the cost of developing and marketing all their proprietary formats... ATRAC, MiniDiscs, and MemorySticks all took a lot of effort you know.
Re:still flogging this old dead horse? (Score:5, Informative)
Sure, he should pay a fine. One in the order of, say, $675, not $675000.
Under Supreme Court guidelines, it should have been more along the line of $30 or $40.
Re: (Score:3, Funny)
Wooden Nickelback?
Re:still flogging this old dead horse? (Score:5, Informative)
"Indie" is what "alternative" was in the '90's. Both originally meant homegrown music from independent "mom and pop" record labels until the major labels realize how "cool" it is to be different, then they hijack those phrases and apply them to their mass-produced crap.
I guess the only honest way to say it is "Music of non-RIAA/ASCAP artists".
Re:still flogging this old dead horse? (Score:4, Insightful)
Grow up and pay the $675,000 fine for sharing 30 songs?
Re:still flogging this old dead horse? (Score:5, Insightful)
Personally, I think people should pay the artists for their work, they should pay the recording industry for their work, and if the music isn't worth 99 cents to them, they shouldn't get the music. But we as a society shouldn't destroy someone financially just for downloading a few songs. The punishment should match the crime, which in this case was small.
Re: (Score:2)
RIAA/MPAA's classic settlement offer is whatever-you-have plus a dollar. Their intent is to cause a "I lost everything, don't do what I did!" example.
Re:still flogging this old dead horse? (Score:4, Informative)
RIAA/MPAA's classic settlement offer is whatever-you-have plus a dollar
Bull. Their settlement offer is almost always a few thousand dollars, tops.
Re: (Score:3, Funny)
RIAA/MPAA's classic settlement offer is whatever-you-have plus a dollar
Bull. Their settlement offer is almost always a few thousand dollars, tops.
Wait, they sued someone who could afford that? When did this happen?
Re:still flogging this old dead horse? (Score:5, Informative)
Re: (Score:2)
Re:still flogging this old dead horse? (Score:5, Insightful)
Personally, I think people should pay the artists for their work, they should pay the recording industry for their work, and if the music isn't worth 99 cents to them, they shouldn't get the music.
So let me begin with: Opinion Alert! The following post is pure speculation and opinion, but done with the utmost sincerity!
I agree with your point, but I'd like to note something that I believe to be true, namely that the only reason we can pay 99 cents for a movie is due to an industry adaptation that has been motivated in a large part by that very piracy. Prior to digital piracy pioneers like Napster, getting a single good song was not really an option. You had to buy an entire pricey CD. Downloading music legally also wasn't an option; you had to go to a store. The music industry created and funded the marketing, hype, publicity, content, and talent necessary to successfully Make Us Want Something, then failed to provide it at any reasonable price.
It is my belief that piracy is many things, among them a consumer movement in reaction to an unnaturally-imbalanced industry. Pirated music has, over the last fifteen years, frequently been a better product than that produced by the music industry. It was downloadable, accessible, and lacked both DRM and license management shenanigans [wikipedia.org]. It was a pure and simple solution to an otherwise unsolvable problem: a consumer movement!
Now, that doesn't make it right or ethical, but it doesn't make it evil either. The recording industry dragged their heels and did their very best (as they still are) to hinder the simple and fair distribution of their product, when that was exactly what consumers wanted. In response, consumers resorted to illegal activity, and most are better off for it.
The Napster of the past is what recording industries should have established years prior. A very significant impetus behind the current state of consumer-oriented legal music sharing like iTunes was (and is) perceived losses due to the piracy front. And look what we have now ... split albums, downloadable content, DRM-free songs ... It's done its share of good and then some. Piracy is forcing a hand that is using its own entrenched power to remain still, and the world is better for it.
Many people out there have pirated a significant share of music, and bought a significant amount as well. As legal avenues open (Amazon MP3 is great!), their usage of piracy has definitely declined. Nobody feels good about depriving someone of their just due, but it isn't always a bad thing to do so. Sometimes an illegal act is the only counterweight that one can provide.
Re: (Score:3, Insightful)
In a digital age, exactly what is the work of the "recording industry"?
It should be re-named the "collection industry" because all they do is collect money from the work of others.
Re: (Score:3, Informative)
If the punishment for breaking the law is unconstitutional (cruel and unusual, excessive fines, etc) then no, you shouldn't just deal with it. In fact, levying such fines is illegal, and those pushing for them should grow up and deal with it.
Re: (Score:2)
That's the argument being made translated into slash-speak... let's see if that holds water.
Re:still flogging this old dead horse? (Score:5, Insightful)
grow up and pay the fine when you get caught for actually knowingly breaking the law. How about that for a radical idea?
When I speed the fine is $350, when I let a parking meter run out the fine is $30. Were I to get into a fight and punch someone (misdemeanor assault) I'd face 2 weeks in jail and and $500 fine. Were I to steal a car I'd be facing maybe 1 year in jail, but in all likelihood would serve at most a couple months as a first time offender.
These are all reasonable punishments.
We're I to torrent my favorite artists discography (uploading it in the process, and thereby infringing copyright on several tracks), I would be fined... $675,000. Say what now? That's more than my house, cars, and everything in them are worth altogether. LOTS more. How is that reasonable?
I have fuck all sympathy for those who not only pirate music instead, but when they get caught red handed they act like they are being persecuted.
They ARE being persecuted. They commited a non-violent crime, for neglible personal benefit (they gain a few songs which can legally be obtained by borrowing a friends CD, recording them off a radio, or purchased for under a buck each), and which caused no real measurable harm to the copyright owner (at most the infringment in this act deprived them of a few hundred dollars due to lost sales... and that's highly debateable).
So sure I can see it being on par with shoplifting or something... a moderate fine 10 to 100 times in excess of the value of the items infringed to deter people from doing it seems reasonable. A few hundred to a few thousand dollars... sure no problem.
After all its pretty petty offense against society.
Fining them an amount that's greater than the value of their house, cars, and all their possessions seems a bit over the top for downloading a few albums.
Would you also support law that made loitering is a life sentence in maximum security prison? Making a rolling stop instead of coming to a complete stop is punished with hanging?
Why EXACTLY do you support bankrupting an entire family over p2p sharing a Britney Spears album?
Re:still flogging this old dead horse? (Score:5, Insightful)
We should also point out the degree of culpability the consumer actually should be considered to have.
1) Did they create the method by which the music was ripped? No, this is done with available tools for which the cost of entry is negligible or zero, and which has no particularly greater barriers to entry than installing a new text editor.
2) Did they create the method for distribution of the music? No, they neither had any hand in the creation of bittorrent, nor were they hosting a tracker nor otherwise going out of their way to create new infrastructure to ease the distribution. Again, the barrier to entry to gaining access to this method is no higher than downloading any other software.
3) Did they create or do they maintain or manage the media (read: the internet) on which the distribution is taking place? No, they are using someone else's network, which for various reasons isn't well monitored and arguably should not be.
4) Did they create any other tool at all or in any way invest more than trivial effort? No, they did not, in fact what effort was needed to create this system was fairly distributed across a number of other people, and virtually none of the offenders--whether they have been prosecuted yet or not--had any hand in it at all.
I'm not being silly. The effort anyone puts into downloading a torrent--legal or not--is insignificantly small. To try my first slashdot car analogy, if driving with the windows down and the AC on was illegal, they'd be asking the judge to revoke your license, impound your car, repossess your house, and send your kids to child services, even though it just takes the flick of a couple switches to do it, and there are reasons why you'd want to, and all the cars are shipped capable of doing so.
If the record companies don't want us to create so many digital copies, maybe they shouldn't be using technology they know can be copied, and they should just hold more concerts and go back to vinyl or something.
Re:still flogging this old dead horse? (Score:4, Insightful)
Somehow when its time for the CRIA/RIAA to pay up in Canada I doubt they will want to use the same mathematics.
Say all the copyright fans do recognize that those copyrights are government monopolies granted from society for the benefit of society, right? There is no self evident natural right to not have your stuff copied.
Re:still flogging this old dead horse? (Score:5, Insightful)
...the old "he asked for his day in court therefore he should be tortured to death" argument.
Desiring to exercise your legal rights should never be a cause for a punishment. Otherwise then they aren't rights at all.
While you are at it why bother with lawyers and demand letters? Just let the record companies hire armed thugs and ransack people's houses.
Re:still flogging this old dead horse? (Score:4, Insightful)
So what is the punishment for exceeding constitutional limits on the punishment meted out?
You see, that's the problem here. Many other punishments have been ruled unconstitutional for being excessive, including fines and jail time all out of proportion. It's blatantly obvious to most people that millions of dollars for sharing music is excessive.
Let's suppose the appeal wins the day and the fine is declared excessive. Do you think any of the RIAA executives are going to be punished for all the previously collected fines? Do you think that's fair? Do you think they perhaps ought to grow up and pay the fine for actually getting caught?
Re:still flogging this old dead horse? (Score:4, Insightful)
In my non-lawyer opinion, if awards were overturned in the Gore and Campbell cases under this rationale, there is a far stronger argument to be made here. The behavior of both BMW of NA (was selling slightly repaired cars as "new") and State Farm (had a secret internal scheme to cap payouts) could more reasonably be asserted as reprehensible than that of a music downloader. From a "ratio" standpoint, if you consider the actual damage from illegally downloading a song to be 99 cents as the parent implies, then for the 31 songs involved here, the ratio of punitive to actual is over 20000 to 1, far more than the 1000 to 1 in Gore and 145 to 1 in Campbell. And those were of course awards meant to have punitive effect on gigantic corporations, not to destroy the finances of a single private citizen. From a "comparable misconduct" standard, the $675,000 award is not in the same universe as the penalties for petty larceny if Mr. Tenenbaum had merely shoplifted physical copies of the same music.
Re: (Score:2)
Just in case no one has heard the "Pay the 2 Bucks" skit it goes something like this:
A guy spits on the sidewalk and a cop sees it. He ge
Re: (Score:3, Funny)
Much.
Re:still flogging this old dead horse? (Score:4, Interesting)
It'll be a pirated copy.
Sure it would, but I'd feel fully justified in buying/owning/viewing it as there is no legitimate way for me (in the US) to purchase a copy.
The courts agree too. For example, Am. Geophysical Union v. Texaco, Inc., 60 F.3d 913, 931 (2d Cir. 1994) ("If the work is 'out of print' and unavailable for purchase through normal channels, the user may have more justification for reproducing it").
http://www.digitalmedialawyerblog.com/2009/12/sony_bmg_v_tenenbaum_judge_pro.html/ [digitalmed...erblog.com]
THIS VIDEO WILL BE FLAGGED (Score:4, Interesting)
IANAL. IANYourL either. This is not legal advice. ETC.
That's OK. I understand that Internet pseudo-advice is just for having an idea of the legal landscape before hiring a lawyer. A lot of people who respond to Ask Slashdot with "ask a lawyer" fail to understand that the question is really "what should I know to make the most of the first consultation?".
Once you have the video, you can do that to it (under current case law) without permission provided said video is sufficiently original.
That doesn't necessarily stop hosting providers from being complicit in a copyright owner's copyfraud. In May 2009, for instance, YouTube took down a video criticizing The Tetris Company and one of its licensees [youtube.com] significantly longer than the DMCA maximum 14 business days after I filed the counter-notice.
What constitutes "sufficiently original" is... variable.
Which underscores the importance of having a good errors and omissions insurance policy to back up your fair use in case of crap like Three Boys Music v. Bolton or Rowling v. RDR Books. The trouble is that it's often cost prohibitive for individuals to get such insurance.
Re: (Score:3, Insightful)
And there is a difference between sharing mp3 files and pirating.
Re: (Score:3, Interesting)
My point was that sharing is infringing only under very specific circumstances, and simply downloading may not be infringing at all. The RIAA and its supporters very often conveniently forget phrases such as except for fair use, without permission, unless in the public domain, etc. They twist the language to convince everyone that no content can be experienced without their blessing.
Re: (Score:3, Interesting)
I knew I'd find it if I looked hard enough...
RIAA ispnotice [riaa.com]
Music is protected by copyright. The unauthorized downloading or uploading of music is actionable as copyright infringement, even if not done for profit.
Where in copyright law does it say that downloading is illegal? My friggin' radio downloads music from the air for pete's sake.
Re:Obligatory... (Score:5, Insightful)
Thats what an appeal is. You list a large number of things you think the judge did wrong, and ask a higher court to overrule them. This is everyday stuff here.
Re: (Score:3, Insightful)
Essentially, your argument applied in Canada, was used in Canada, and the people won at the Supreme Court. [cnet.com] As a result, downloading files for personal use is largely legal in Canada. Uploading of files is still a grey area.
Then some artists pointed out that the Canadian music industry hasn't been properly paying royalties on some of the CDs it has been selling. In fact, they have been selling CDs without a proper contract in place at all. As such, a bunch of the large Canadian record companies are on t
Re:Calculating potential actual damages (Score:4, Informative)
The damages are not awarded at $1/song, nor are the damages punitive. Rather, the damages in this case are statutory.
The damages are award as per USC 17 504(c)(2), under which, if "the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000." And, that is per infringement.
Perhaps you should actually learn about copyright law before making statements about it.