Tenenbaum's Final Brief — $675K Award Too High 525
NewYorkCountryLawyer writes "The final brief (PDF) filed by the defendant Joel Tenenbaum in SONY BMG Music Entertainment v. Tenenbaum seems to put the final nail in the coffin on the RIAA's argument that 'statutory damages' up to $150,000 can be awarded where the record company's lost profit is in the neighborhood of 35 cents. Not only do Tenenbaum's lawyers accurately describe the applicable caselaw and scholarship, something neither the RIAA nor the Department of Justice did in their briefs, but they point out to the Court that the US Court of Appeals for the First Circuit — the appeals court controlling this matter — has itself ruled that statutory damages awards are reviewable for due process considerations under the guidelines of State Farm v. Campbell and BMW v. Gore. The brief is consistent with the amicus curiae brief filed in the case last year by the Free Software Foundation."
Fees (Score:5, Interesting)
Re: (Score:3, Insightful)
If he doesn't get awarded fees, there would hopefully be thousands willing to pitch in to reimburse him for the precedent he bought us.
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If he doesn't get awarded fees, there would hopefully be thousands willing to pitch in to reimburse him for the precedent he bought us.
I'd Paypal that for a dollar.
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Re:Fees (Score:5, Insightful)
One, and only one, of the following is true:
1. Anyone with reason to be sympathetic to Tenenbaum and his legal cause is by definition a pirate.
2. You're an idiot.
Re:Fees (Score:5, Insightful)
AND they are tired of getting screwed up the ass by dishonest corporations that refuse to offer a basic "satisfaction guaranteed" warranty. Hell even the chocolate bar companies offer that warranty ("If you are dissatisfied with your Snickers, return it for full refund.").
I grew tired of throwing-away my money on shitty CDs or boring movies, so now I try before I buy. If it's good I'll buy it to support the artists/engineers, but otherwise no.
Re:Fees (Score:4, Funny)
Re:Fees (Score:4, Insightful)
Who gives a crap about other people's opinions? Reviewers are notorious for trashing anything that's popular, or being bought off, and I wouldn't trust most of the mouth-breathers on the internet to tell me honestly if they were human. As for asking my friends, we have wildly divergent taste in music, so that's not an option either.
Re:Fees (Score:4, Insightful)
Gee, if only there was a way to purchase favourable opinions so that people will go and buy whatever crud I've produced. Nah, that'll never work.
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Many states require they take back a new car for a full refund for some period (3 days, 5 days, 7 days), and there are also laws protecting mail-order purchases because you often don't get a full idea of what the item is before you get it in your hand.
What states are those. I've never heard of that. Usually once the car leaves the lot the vehicle depreciates by a significant percent. Once you leave the lot the dealership can no longer market the vehicle as new (if the transaction is on a used car I'm not sure what the instant depreciation is).
Re:Fees (Score:4, Informative)
Texas
http://www.avvo.com/legal-answers/is-there-a-3-day-cooling-off-period-after-a-car-ha-5545.html [avvo.com]
THERE IS NO 3 DAY CHANCE TO GET OUT OF A CAR PURCHASE IN TEXAS
http://www.weblocator.com/attorney/ca/law/c05.html [weblocator.com]
California
Finally, consumers should be aware that the three-day "cooling off" period that allows a buyer to cancel a contract within three days does not apply to the purchase of new or used cars. Because the contract cannot be canceled under this consumer protection provision, a buyer should exercise caution before signing any contract for the purchase of a used car.
However... if it is not a car... and at your home... and worth over $25...
http://www.ftc.gov/bcp/edu/pubs/consumer/products/pro03.shtm [ftc.gov]
If you buy something at a store and later change your mind, you may not be able to return the merchandise. But if you buy an item in your home or at a location that is not the seller's permanent place of business, you may have the option. The Federal Trade Commission's (FTC's) Cooling-Off Rule gives you three days to cancel purchases of $25 or more. Under the Cooling-Off Rule, your right to cancel for a full refund extends until midnight of the third business day after the sale.
The Cooling-Off Rule applies to sales at the buyer's home, workplace or dormitory, or at facilities rented by the seller on a temporary or short-term basis, such as hotel or motel rooms, convention centers, fairgrounds and restaurants. The Cooling-Off Rule applies even when you invite the salesperson to make a presentation in your home.
Under the Cooling-Off Rule, the salesperson must tell you about your cancellation rights at the time of sale. The salesperson also must give you two copies of a cancellation form (one to keep and one to send) and a copy of your contract or receipt. The contract or receipt should be dated, show the name and address of the seller, and explain your right to cancel. The contract or receipt must be in the same language that's used in the sales presentation.
(lists of various exceptions).
Re:Fees (Score:5, Informative)
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Woah, hold up, when did that become a requirement. In no way do I support the methods that the RIAA and their ilk use their lawyers but "satisfaction guaranteed" is a nice slogan but it's never been a necessity of sale. You can return your car if you don't like it but you won't get what you paid for it back.
The difference when buying a car you get to have a look at it, generally a drive around in it. You get to make your choice of satisfaction prior to making the purchase. So you in fact get BETTER than a money refund. If you don't like it, you don't buy it.
If I had the choice of listening to an album before making a purchase, there would be a lot of music I wouldn't have bought over time. Yes, a lot of music stores have that, but if you wander up with 10 cd's that are interesting, the chances of listening
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The difference when buying a car you get to have a look at it, generally a drive around in it. You get to make your choice of satisfaction prior to making the purchase. So you in fact get BETTER than a money refund. If you don't like it, you don't buy it. If I had the choice of listening to an album before making a purchase, there would be a lot of music I wouldn't have bought over time.
Quoted For Truth.
Also I wanted to add, like you, I've wasted a lot of money on junk CDs or junk DVDs. I have tapes/discs laying around collecting dust that, if I had been able to hear them FIRST before buying, I never would have bought them. And of course taking them back to the store does no good, because there's no "satisfaction guaranteed or money back" warranty like virtually all other products have.
Now that the internet is fast enough to transfer this stuff, I throw away virtually no money. I can
Re:Fees (Score:5, Interesting)
It's an interesting conundrum. The product that you're buying is the physical disc, but the value that it has to you is in the data stored on the disc. However, you can't really estimate that value without inspecting it, and you can't inspect it until you've completed the transaction.
Most other people who build a business model around getting people to buy a pig in a poke get called scam artists.
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So what? The viability of the entertainment industry is unimportant compared to the rights of customers! If the entertainment industry cannot make a profit within the bounds of Fair Use and the Uniform Commmercial Code, then it deserves to die!
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Pirates don't steal things because they're making some kind of political statement.
While that might have been true back in the day of CD ripping, it's certainly not true when it comes to draconian DRM for games.
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It's amazing how many trials, hearings, lawyers, and documentation is required before anyone official is willing to consider that this might be unjust. Does not the Constitution forbid "cruel and unusual" punishment? This punishment is grossly excessive and therefore cruel. How many proceedings does it take to realize what any idiot can discern?
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That's the sort of thing that's regarded as cruel. Since the penalties are a rar
Re:Fees (Score:5, Informative)
That's how the justice system works. Cruel and unusual punishment doesn't really apply AFAIK. It doesn't matter whether a judgment is excessive or not when considering that prohibition. It's more aimed at cases like people accused of torture can't themselves face being abused as a part of the punishment. People that are found guilty of being slum lords can't themselves generally be forced to live in maggot infested cesspools. That's the sort of thing that's regarded as cruel. Since the penalties are a rarity, they might get away with arguing that it's unusual, however the lack of a substantial number of cases where people were tried in that sense may or may not hurt.
If financially ruining the life of someone who has done little or no real harm to anyone is not "cruel" then the definition of "cruel" needs to be amended. There's a reason we don't fine people ten million dollars for jaywalking, because it would be excessive and far out of proportion to the act that is being punished. There's something clearly and plainly wrong with punishing copyright infringers more severely than many con artists and violent criminals who do real harm to real people, as opposed to little or no harm to corporations. All the clever explanations in the universe don't change that. In fact any explanation designed to excuse this behavior is also wrong.
All this bullshit does is drive the behavior (filesharing) further underground and erode whatever respect people still have for the law, which may not be much after witnessing things like the War on (some) Drugs and "free speech zones".
Re:Fees (Score:5, Insightful)
Also even if said person is not financially ruined, it would take that citizen the rest of his life to earn the money to pay-back the cash fine. In effect it's a life sentence to slavery for RIAA, simply because the person didn't legally buy ~$30 worth of songs. That IS excessive.
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Ah, but you're making a mistake. It may be cruel and unusual, but it is not punishment. Therefore, the eighth amendment does not apply. ;)
Scalia made a similar argument against the unconstitutionality of torture. It was brilliant! And someone should probably reword the eighth amendment...
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It doesn't need to be reworded. People who interpret things stop need to be twisting around. The 10 bill of Rights all block the government from taking certain actions. It's in effect when the government is in effect.
Som
Re:Fees (Score:5, Interesting)
It doesn't need to be reworded. People who interpret things stop need to be twisting around.
The US constitution is the old legacy program that receives the occasional update to fix compatibility issues, but that hasn't received a security update for ages. The program can't be replaced, because lots of other software depends on it, most of the users are comfortable with it and would raise hell if anyone touched their precious program, and it is actually a decent functional program. The problem is that there are lots of exploits available that can cause the system it runs on to become unstable.
Heck, look no further than your own post. You are trying to exploit the vagueness yourself by providing your own interpretation of the constitution that fits your viewpoint.
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>>>Scalia made a similar argument against the unconstitutionality of torture. It was brilliant! And someone should probably reword the eighth amendment...
""To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim
Re:Fees (Score:5, Interesting)
Isn't the "cruel and unusual" thing for criminal cases? Since these are civil cases I don't believe there is any "cruel and unusual" clause.
When I read the Constitution it does not make any such exceptions. Nowhere does it say "oh, except for civil torts."
Now that might still be used as a clever way to maneuver around something the Constitution clearly forbids. For example, the "free speech zones" I mentioned. Have you heard of them? Yeah, the weasel "logic" (sorry to insult weasels this way) is that the First Amendment guarantees that citizens have free political speech, that "Congress shall make no law" restricting this. However, the First Amendment does not specify where this right applies, so they can tell you that you may only exercise your free speech rights within a designated zone. Of course this zone is located someplace where you can be easily ignored and your protests cannot easily be heard.
Tyrants just love tricks like this. Any reasonable person would say that the Constitution is the highest law of the land, and does not specify where in the USA it applies because it applies everywhere in the USA. But that's not very useful for a tyrant. Likewise, noting that the Constitution does not say that the prohibition against "cruel and unusual punishment" is limited to criminal courts only is also not very useful for a tyrant.
Re:Fees (Score:5, Insightful)
If this was me, I'd do the same thing as Tenenbaum. Fuck it, you're already looking at bankruptcy, why not burn everything you have in the off chance that you take them with you?
"From Hell's heart I stab at thee /
For hate's sake, I spit my last breath at thee."
Re:Fees (Score:4, Insightful)
Re:Fees (Score:5, Informative)
Thomas case (Score:2, Insightful)
Will this affect the thomas appeal?
How legal briefs work (Score:5, Insightful)
Judge:"That's nice, any who, back to what I was saying..."
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Anyway, end rant. Mod me down as Flamebait and all t
Re:How legal briefs work (Score:5, Insightful)
Re:How legal briefs work (Score:4, Interesting)
You are welcome to take the first two and provide your own interpretation.
Sure I can be an armchair quarterback lawyer as well as anybody, But if my interpretations are more in line with the court than the guy who can say IAAL - despite following up with "but this is not legal advice" - then usually something is not right. Not that I expect a lawyer to be an oracle of how it'll turn out, but sometimes strong personal opinion can cloud your professional judgment, that is hardly limited to lawyers.
I think NYCL is a bit too fond of telling slashdot of how the law should be and how it should work, not so much practical reality. The practical reality is that a great number of people, be it in the legal system, in Congress or on the jury is sold on the idea of pirates like some kind of economic terrorist and about as popular. When people see a nail they'd like to strike down, they try very hard interpreting the law to be the hammer they need. Sometimes they take the absurdity too far like DVD-Jon that was charged with breaking into his own property and the OINK operator charged with conspiracy to defraud, but it bends quite far by design. This is to avoid people finding say some way to kill someone without being found guilty of murder, it doesn't really matter if they die at your hand or by a hit man or by some implicit act like cutting their brakes or by trapping them in a pit and the inaction of letting them starve to death.
The downside is that they'll also go very far in nailing you for something you think you did. Face it, when you're sitting there on the defense bench and trying to point at wifi stealers and trojans and errors in logging and aliens from outer space, you don't have any other suspect to point at. They aren't going to route themselves into a corner where the standards of evidence are so high no one will get convicted. They're not going to set damages of 35c/pop that are so low as to not discourage anyone at all. They're going lash out at you and viciously, because you're the one sitting in front of them right now. The judges have to in some fashion stay within the constitutional limits and the letter of the law, but they aren't a second guessing of Congress. For example, in this case [wikipedia.org] the Supreme Court found that life with possibility of parole for three counts of fraud totalling 230$ was not "cruel and unusual".
They have made very many similar remarks that fines are largely a matter for the legislature, from United States v. Bajakajian:
The first, which we have emphasized in our cases interpreting the Cruel and Unusual Punishments Clause, is that judgments about the appropriate punishment for an offense belong in the first instance to the legislature. See, e.g., Solem v. Helm, 463 U.S. 277, 290 (1983) (Reviewing courts should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes); see also Gore v. United States, 357 U.S. 386, 393 (1958) (Whatever views may be entertained regarding severity of punishment, these are peculiarly questions of legislative policy).
So one judge said 54,000$ is maximum, but when all is said and done that might not stand because it overrides an explicit limit set in copyright law. To be honest, I find life in prison for 230$ worth of fraud to be more disproportionate than 1.92M$ for sharing 24 songs. And that one is legal, so if the greater absurdity can stand so can the lesser. That is the IANAL interpretation at least...
Re:How legal briefs work (Score:5, Informative)
I think NYCL is a bit too fond of telling slashdot of how the law should be and how it should work, not so much practical reality.
Well I'm a lawyer. I have to work with what the law is. I have written elsewhere, in the ABA Judges Journal, about the unfairness of the way these cases work out in practical reality, due to the economic imbalance between the litigants. But when I bring that type of issue up here, I get accused of 'playing violins'.
Here I'm dealing with readers who are largely (a) very intelligent, (b) educated, (c) interested in hard news and substance rather than "human interest", and (d) intensely interested in copyright law as it bears upon digitalization, software, and the internet. So I try to confine myself to discussing (a) the legal events and (b) the legal issues to the extent I can comment on them without disclosing thoughts I haven't yet disclosed in publicly filed litigation documents.
You don't need yet another voice here griping about the RIAA's improper influence on Congress, and even on the Department of Justice. I'm aware of those things, but have nothing special to say about them.
And most importantly, the life of a lawyer is all about "practical reality". My practical reality is the given facts, and the given law. I do the best I can in that world.
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And I got shot down by a commissioner for attempting to file a motion in a case where I were not the plaintiff, even though the filings for the forms stated that I was the plaintiff, but since the title of the case was "In RE: Alice vs Bob", and my name was neither Alice nor Bob, and she couldn't be concerned with looking down the page to where it says "The plaintiff is: snowgirl", and the signature of the other commissioner granting the action, and the stamp marking it as certified and official...
Sometimes
Re:How legal briefs work (Score:5, Informative)
In the cases I've been involved in the only "activists" have been the RIAA lawyers, making arguments that have no basis in existing law. You have never seen me do that, in my court papers, or here.
Re:How legal briefs work (Score:4, Insightful)
Aye, you're alright Ray.
Dunno if things work in New York as they do in Scotland, but if you ever get bored of pure law, you'd be a damned good (senator? congressman?) politician. Here, you'd be great as an MSP (Member of the Scottish Parliament), actually writing and voting on the law rather than just arguing for its correct and speedy application.
I don't mean that in the "you're really good at arguing" way, or the "you'd be great at getting in amongst them" way, but in the "you seem to have a genuine care and respect for the principles of justice" kinda way. The kinda guy that looks up and sees Justitia on the roof of the court, and it means something to them. In other words, the sort of person I want writing the laws, someone I know won't be corrupted by power or lured by powerful companies.
That said, I'd imagine you're happy where you are and have no wish to delve into the murky underworld of politics. We are all lessened by that.
Re:How legal briefs work (Score:5, Interesting)
What's the alternative? "Courts reaffirm the validity of industry pillaging of your rights"? That's a more likely prediction, but Ray Beckerman makes predictions on what he believes to be the proper reading of laws (and past rulings). He talks about how it should be, and how he hopes things will turn out.
Judges don't always agree with him. Sometimes they aren't as familiar with the facts as he is, other times they may just interpret something differently (or rule that something doesn't apply). NYCL is still a great contributor to Slashdot.
Do we have other lawyers who monitor Nerd-Worthy cases the way Mr. Beckerman does? Do they bother to submit to Slashdot? (I don't know.)
Re:How legal briefs work (Score:4, Insightful)
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NYCL has tried to put this kind of spin on these cases several times before - misrepresent the issue a
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You may not like NYCL or agree what he says, but he's posting facts based on law, and you're posting what you pull out of your posterior.
I can't imagine anyone not liking me. At least anyone who doesn't know me.
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You know how whenever Fox News is mentioned, a common response is "How can people watch that? It's just telling conservatives what they want to hear?"
Look, we all want the RIAA to die an awful, fiery death. But deluding ourselves about the chances of a given case is not going to hel
Re:How legal briefs work (Score:5, Interesting)
1. The first prediction was that the constitutional defense would succeed once the issue has ripened. Don't you get it that the issue has just ripened. Whether my prediction will be fulfilled hasn't yet been determined.
2. Your second link relates to the fair use defense. I have never at any time expressed any opinion on the fair use defense in this case or made any prediction about it.
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You're either a moron or an RIAA lawyer.
I'm sorry.. but no. Not acceptable behavior. I'm willing to listen to reasoned debate over the facts, but when you come out of the gate with an ad hominem attack and accuse someone who disagrees with you to be a shill for your opponent, you seriously undermine your credibility and come off as exactly the "biased legal reporter" you've just been accused of being.
I expected better of you and am disappointed.
Re:How legal briefs work (Score:4, Interesting)
Re:How legal briefs work (Score:5, Insightful)
In the first link you provided, the only prediction I see relates to statutory damages. NYCL says that there are facts that could lead a court to find fair use in the context of a p2p environment, but there's no prediction with respect to that. The statement that there are fact patterns such that court could find fair use in a p2p situation is still true.
I can't find a comment by NYCL in the second link. If one is there, can you show me where it is?
NYCL is providing links and updates to potentially important IP cases. He's also "biased" in the sense that he has an opinion, but he wears it on his sleeve so I'm not sure where your anger comes from. If you want to be angry you can also say "the court probably won't care about the amicus briefs", or "the court won't care about the scholarship", or "linking to an 'Ed. Note: the law and scholarship agree' comment is lazy and lame and unpersuasive', but, although all of that would be true in a sense, this is /. and not a law weblog.
99% of the people here have an opinion on the outcome they want and will criticize the courts if that outcome is not reached no matter what is a reasonable interpretation of the law and precedent. /. is a machine that gets fed and, at least with respect to law, is not a place you're going to fund much honest discourse on the current state of IP law. What you will find is discourse on how IP law should be changed -- but those arguments are, no matter what they pretend to be, about statutory changes rather than informed arguments regarding textual analysis of actual law and precedent.
NYCL is feeding information to the machine with his own opinion injected in the summary. He has the advantage of having an educated opinion, whether or not he's correct about the eventual outcome in any particular case. That's like 10 jillion times better than people will ever see reading Cory Doctorow. So I'm happy he exists and posts here. (IAAL, and I am an IP lawyer)
Re:How legal briefs work (Score:5, Interesting)
I am not seeing this. In the first link you provided, the only prediction I see relates to statutory damages. NYCL says that there are facts that could lead a court to find fair use in the context of a p2p environment, but there's no prediction with respect to that. The statement that there are fact patterns such that court could find fair use in a p2p situation is still true. I can't find a comment by NYCL in the second link. If one is there, can you show me where it is? NYCL is providing links and updates to potentially important IP cases. He's also "biased" in the sense that he has an opinion, but he wears it on his sleeve so I'm not sure where your anger comes from. If you want to be angry you can also say "the court probably won't care about the amicus briefs", or "the court won't care about the scholarship", or "linking to an 'Ed. Note: the law and scholarship agree' comment is lazy and lame and unpersuasive', but, although all of that would be true in a sense, this is /. and not a law weblog.
99% of the people here have an opinion on the outcome they want and will criticize the courts if that outcome is not reached no matter what is a reasonable interpretation of the law and precedent. /. is a machine that gets fed and, at least with respect to law, is not a place you're going to fund much honest discourse on the current state of IP law. What you will find is discourse on how IP law should be changed -- but those arguments are, no matter what they pretend to be, about statutory changes rather than informed arguments regarding textual analysis of actual law and precedent.
NYCL is feeding information to the machine with his own opinion injected in the summary. He has the advantage of having an educated opinion, whether or not he's correct about the eventual outcome in any particular case. That's like 10 jillion times better than people will ever see reading Cory Doctorow. So I'm happy he exists and posts here. (IAAL, and I am an IP lawyer)
Thank you for your kind words, nudicle.
So far the only RIAA case in which the merits of the due process issue has been judicially determined is UMG v. Lindor, which held that it is a colorable defense, and rejected the RIAA's contention that it is not.
And as you correctly observe, all I have ever said about fair use in these cases is that based upon the hundreds of factual scenarios I have encountered, there are some p2p filesharing behaviors which would clearly qualify as a fair use, some which would clearly not, and some which would occupy a gray area. In fact I publicly criticized the Tenenbaum legal defense for not drawing any of those distinctions.
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Why does it have to be either or? It could well be both.
Re:How legal briefs work (Score:5, Informative)
Interestingly, Judge Gertner in the Tenenbaum trial is quite pro-little guy. Take a look at most of her decisions, and she really tries to help defendants.
That is a ridiculous assessment. Judge Gertner has been the best friend the RIAA has had in the US to date. She consolidated all of the hundreds of Massachusetts cases under her watch, and she's never ruled in favor of a defendant. She's upheld every subpoena, and entered every judgment, and signed every ex parte order that's been presented to her by the RIAA over a 7 year period, except for a few fine distinctions on minor procedural issues during the past year and a half. I'm convinced you are just a dishonest person and I wish you'd STFU rather than keep on trying to mislead the nonlawyers here.
Re:How legal briefs work (Score:4, Informative)
So what? (Score:2)
If the judge actually bothers to read it, he can still disregard it and rule in favor of the RIAA.
441,000 times for statutory damages precedent! (Score:2)
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Maybe every court should use this as a precedent. Four hundred forty one thousand times the actual damages should be the statutory award. That makes total sense.
That is surely one way to bring the legal system to its knees; everyone and their mom will sue for damages, no matter how slight, every time there are any damages, because it will be worth it to sue even if you're only out a buck. Anarchy, here we come.
Re:441,000 times for statutory damages precedent! (Score:4, Interesting)
Maybe every court should use this as a precedent. Four hundred forty one thousand times the actual damages should be the statutory award. That makes total sense.
Under copyright law, plaintiffs don't have to prove actual damages if they opt for statutory damages. And they didn't. OTOH, the defendant can show evidence of actual damages to mitigate or reduce the statutory damages. But Tenenbaum didn't. That's why his constitutional argument, relying on an alleged $.30 per song, fails at the outset - he never presented any evidence that that was the actual damages.
I'm still holding my breath (Score:2)
It seems to me that every time it looks like somebody has the RIAA staring down the barrel of a metaphorical shotgun, they somehow manage to find a friendly judge, or some implausible artifact of the legal system gets in the way.
I truly hope that this time justice prevails, and the RIAA loses its main means of intimidating guilty pleas out of the poor and vulnerable.
Re:I'm still holding my breath (Score:5, Interesting)
And? (Score:3, Insightful)
The fact that the defendant has made an argument isn't news. Anyone can make an argument, and the amicus curiae system even allows strangers like me to submit an argument on this case to the court. When the judge decides in favor of one party or the other, that's going to be the significant event. I would give some latitude if this were a pivotal Supreme Court case, but so far it's just a filesharing trial.
Re:And? (Score:5, Interesting)
The fact that the defendant has made an argument isn't news.
I beg to differ, especially in this case. This was the first time that either of the parties directly confronted the central issue. If you look at the table of authorities you'll see that most of the cases and other authorities that were cited were never cited by either side in any prior brief, and that the discussion of Gore and Campbell is likewise totally new. Also the revelation that the 1st Circuit has already applied Gore & Campbell to statutory damages is crucial. It means.... Judge Gertner will be doing likewise.
I.e., bye bye RIAA damages theory.
Nicely Written Brief (Score:5, Interesting)
I especially like this side note:
"For additional absurdity, imagine further that the Industry actually got
judgments of $18 million in damages from roughly 30,000 teenagers, which is
approximately the number of lawsuits they filed against consumers until the end of 2008.
That would mean they had outstanding judgments for $540 billion dollars - or more than
the total revenue the recording industry can expect to earn in about 50 years at its current
size of $11 billion per year."
And yet, in view of so many incomprehensible RIAA decisions to date, it's hard to be hopeful.
RIAA version (Score:2)
I especially like this side note:
"For additional absurdity, imagine further that the Industry actually got
judgments of $18 million in damages from roughly 30,000 teenagers, which is
approximately the number of lawsuits they filed against consumers until the end of 2008.
That would mean they had outstanding judgments for $540 billion dollars - or more than
the total revenue the recording industry can expect to earn in about 50 years at its current
size of $11 billion per year."
And yet, in view of so many incomprehensible RIAA decisions to date, it's hard to be hopeful.
RIAA version: "Additional $11 billion lost to piracy each year".
Re:Nicely Written Brief (Score:5, Insightful)
Looting removes physical goods, this is just breaking of a monopoly. Considering that this monopoly has now been extended so often perhaps piracy is the morally correct thing to do.
I do not participate in these activities, but I can see the rationale. I cannot however seen any relation between infringing on a government granted monopoly and the taking of actual goods.
Re: (Score:3, Insightful)
Since you stole your goods, this is not equal basis.
If I make chairs and sell them and you invent a machine that duplicates chairs and give them away, you owe me nothing.
Stealing requires taking of physical goods, thus depriving the original owner of them. The original owner still has them, they might just not be worth as much as he likes.
NewYorkCountryLawyer is dishonest (Score:2, Interesting)
NewYorkCountryLawyer insists that "damages" don't include the money lost through OTHER people downloading that the plaintiff offered up for sharing. He thinks that damages should only count the original download. Unfortunately
* This contradicts existing case law
* It contradicts what the text of the law actually says
* It contradicts how judges have interpreted the law
I think he's doing us all a disservice by sticking his hands in his ears and shouting "la la la". There are interesting arguments to be made, a
Re:NewYorkCountryLawyer is dishonest (Score:5, Interesting)
Re: (Score:2, Insightful)
You're failing to take into account how peer-to-peer works: most people have a share ratio of about 1:1. On average, any one person can only be held accountable for distributing one copy of something they seed.
It only requires one distribution to be liable for infringement of the distribution right. And Tenenbaum admitted under oath that he distributed. Thus, distribution was proved, and there was a directed verdict that Tenenbaum both copied and distributed the copyrighted works. Now, he's trying to go back on that and claim that he only copied the works - hence the damages of $1 per copy. That disregards his admitted distribution.
Moral: don't admit to anything, particularly infringement.
Re: (Score:3, Insightful)
He could hit 1:1 or 100:1 ratio with peer-to-peer and never actually distribute the file in full (if he has a flaky connection). So, does the ONE distribution cover this? Or is it more like distribution full or in part...?
He admitted under oath that he distributed. He said effectively, "I, Andrew Tenenbaum, distributed at least one complete copy without authorization." That's all that needs to be said - it fully proves that he illegally distributed one copy. Any question about seeding is irrelevant. Also, he was doing this via Gnutella, not bittorrent (and Gnutella didn't support bittorrent back then), so MediaSentry could prove that the entire file they downloaded came from his IP.
Re:NewYorkCountryLawyer is dishonest (Score:4, Interesting)
How the hell do they get 150,000 out of 1 act of distribution?
Really wondering here, I fail to understand how that seemed like a fair punishment to the folks making the law.
Seems like setting speeding tickets at $1000 per mile over the posted limit.
I think this is the best argument - the folks who made the law didn't intend $150k to be applied to dopes like Tenenbaum, just the $30k range. The definition of willfulness the RIAA is using is wrong. But no defendant has argued it, instead trying to claim that they only caused 30 cents in damages.
Re: (Score:3, Insightful)
$30k still seems like too much. Now your talking about $100 per mile over. Still not fair, to make a man a slave for a year of his life over such a petty crime.
Maybe $300, that is 300 times the value of 1 song, maybe even $3k. You know something normally found as a fine.
Yeah, but it's not a fine - fines go to the state. This is compensatory damages for the distribution right.
Anyways, $30k would be the upper end. By my calculations (looking at how damages were probably calculated in both this case and the two Thomas verdicts), I believe damages would work out to be between $8k and $11k per song, and possibly even less in aggregate.
Re: (Score:3, Insightful)
But they serve the same purpose to punish the offender.
$8k may be right in terms of likeness to other cases, but still points out that he would have been better off stealing from a store. Which is not really the message we should be sending.
Re: (Score:3, Insightful)
Yeah, but it's not a fine - fines go to the state. This is compensatory damages for the distribution right.
It looks the same from the defendant's point of view, its still $30k out of his wallet.
And why is this distribution right worth $30k?
Say he distributes it to 1 person, and they distribute it to 1000 people, what sense does it make for him to be responsible for 1001 redistributions? The music is readily available through traditional distribution methods, the second person could just as easily have distributed his 1000 copies from a CD bought in a shop, the ONLY copy made which didn't generate a sale and is d
Re: (Score:3, Insightful)
But they serve the same purpose to punish the offender.
$8k may be right in terms of likeness to other cases, but still points out that he would have been better off stealing from a store. Which is not really the message we should be sending.
Why? Steal from a store, the store loses the retail cost of one CD... and is recouped by insurance.
Infringe the distribution right, and the producer has to significantly increase the licensing cost to recoup their costs, such that CDs go up in price by much more than one penny.
No, maybe it is the message we should be sending - if you're going to be cheap, just steal the CD, rather than destroying the exclusionary copyright.
Look at it this way, too - distribution rights are international in scope... Steal
Re:NewYorkCountryLawyer is dishonest (Score:5, Insightful)
And why is this distribution right worth $30k?
Say he distributes it to 1 person, and they distribute it to 1000 people, what sense does it make for him to be responsible for 1001 redistributions?
Say you have an exclusive monopoly on something - say you create a new Mona Lisa, or discover a new way to make jet fuel out of water. You can charge whatever the market will bear for your painting or fuel because you have a natural monopoly.
Now say someone sneaks in and makes a copy of your painting, or steals your exclusive formula, and they give it away for free. Now, you can't charge anything, because any potential customer will just get it for free. Poof - your hard work is gone. It doesn't matter whether 100 people make jet fuel from water or 1 million people do - you can't make anything from your invention, even if it cost you a million dollars to research and develop, because anyone can get the information for free.
The first distribution destroys the exclusivity, and most of the value is in the exclusivity. Therefore, the first unlicensed distribution destroys most of the value of the property.
To put it in terms of your exclusive distribution right view:
If I upload a copy of your music to someone else, I've deprived you of 1 sale, but I've done no more damage to your ability to further distribute your track than you're doing to yourself by selling it to anyone who'll buy.
... provided that my potential customer will only purchase from me. But when I'm charging $1 for the song and you're giving it away for free, why would they go to me?
If it were some sort of unreleased track then I would be denying you your exclusivity in being able to distribute the track, and if I were to be the source of that getting onto X filesharing network then I would be doing you a lot of damage, but once you start selling it to all and sundry, I'm only costing you the lost sale for the people I distribute it to. Unless you want to get into some really messy argument about the second person not having had the opportunity to distribute it if they hadn't got it for free.
Sure, any person along the chain could have been the one to upload it for free to the net... But you did it, and I can prove you did it. Therefore, you're responsible. The statute doesn't require that the plaintiff find the sole uploader or original uploader... any infringer is liable. Basically, the defense "but it was already online, so when I distributed it, I wasn't causing additional harm" may sound good but isn't supported by the statute, and any judge who accepted it would be reversed immediately.
Re: (Score:3, Interesting)
By that logic they could offer it to itunes for $1 trillion, and since Apple will say no that is a $1 trillion loss due to piracy. Nevermind there could be a whole host of other reasons why Apple may not want to fork over the $1 trillion.
Not to mention that this seems to make him liable for all acts of distribution of that song. Is he liable for the actions of others?
Can I now distribute this song, and say that he already did the damage so my distribution has no damage?
Re: (Score:3, Interesting)
You're failing to take into account how peer-to-peer works: most people have a share ratio of about 1:1. On average, any one person can only be held accountable for distributing one copy of something they seed.
Shhhhh. The RIAA doesn't want people (especially judges) to know that. If you say something like that here, word might get out.
Re: (Score:3, Insightful)
I agree. That's the interesting discussion that we SHOULD be having. In particular,
(1) The courts say "We don't know how many people downloaded it so we'll pick an arbitrary number in the THOUSANDS when we calculate damages". That reasoning needs to be challenged.
(2) The courts say "Distributing just a part of the song counts just as bad as distributing the whole of it". That reasoning needs to be challenged.
I'd really like to have a legal advocate on the technie's side who can make these arguments. These a
Re: (Score:3, Insightful)
Three people rob a bank: one gives the teller the note, one disables the security camera, and one drives the getaway car. Which one is going to be charged with bank robbery? All three, and they are not each going to get 1/3 of the sentence. In fact, since they acted together, each one may receive MORE of a sentence than if he had acted alone.
As much as people like to pretend otherwise, courts are not stupid. Seeing through bullshit is pretty much what a judge does. Trying to reduce your culpability by
Re: (Score:3, Insightful)
Three people coordinate to rob a bank. They make off with $100k. They each get charged for stealing $100k.
In RIAA-land, they each get charged with stealing TEN TRILLION DOLLARS (picture Dr Evil with pinkie raised to mouth here).
> As much as people like to pretend otherwise, courts are not stupid. Seeing through bullshit is pretty much what a judge does. Trying to reduce your culpability by saying you only committed part of the infringement is not going to fly.
And what lawyers do is throw the biggest clou
Re: (Score:3, Interesting)
Re: (Score:3, Interesting)
Please show me in his post where he says that damages should only count for the original download. You seem to be putting words in his mouth.
Re:NewYorkCountryLawyer is dishonest (Score:5, Informative)
Please show me in his post where he says that damages should only count for the original download. You seem to be putting words in his mouth.
"record company's lost profit is in the neighborhood of 35 cents"
That statement can only be true if you're talking about the original download. Distribution rights are far more expensive.
Re: (Score:3, Insightful)
Reproduction rights are expensive too, but it doesn't make sense to consider the damages from unauthorized reproduction of one copy to be equivalent to the cost of a license to reproduce some large number of copies. If he distributed one copy, the actual damages are at most the price of one copy.
Re:NewYorkCountryLawyer is dishonest (Score:5, Insightful)
So how has radio not yet put them out of business?
Re: (Score:3, Informative)
Two things:
1. You have, I hope, noticed how radios always cut off part of the song at the beginning or the end? This is precisely to make it less attractive for people to simply record songs off the air.
2. Radio stations either pay huge royalties (IIRC from what someone in the business told me, this can be several thousand US$ per track - please note, this was from at least 10-20 years ago, and I would imagine licensing costs have gone up since) OR they play exactly the tracks the labels want them to play,
Re: (Score:3, Insightful)
Say we have a community of 100 users: if one person shares a song and everyone else downloads it, then under your theory, the uploader is responsible not only for the damages resulting from his own use, but the damage resulting from everyone else using the song: that is 100 * P, where P is the amount of damage caused by a single use.
If two people share the song, isn't each responsible for half of the total damage? The amount of damage is constant: only the allocation differs. If four people share that song,
Re:NewYorkCountryLawyer is dishonest (Score:5, Interesting)
Come on. You think that every single time that one user downloads a song from another user on a P2P network means a sale was lost? At best, these users either have no intention of buying music, or they don't believe the music is worth what they're being asked to pay. Sidestepping the issue of whether or not their actions are morally or legally correct for a moment, these users STILL have no intention of ever buying music. These lawsuits are simply a means for the recording industry to wring outrageous profits from a demographic of the population who they wouldn't be able to make money from otherwise, under the guise of a law that was enacted when printing presses were the technological boogeymen du jour. The argument that the unknown, indeterminable, unquantifiable amount of music that Tenenbaum actually "distributed" impacted RIAA sales in any significant way (much less than to the tune of $675K) is total lunacy...
Well, in the only case in which I am aware of the issue having come up, the judge agreed with you -- not with them. USA v. Dove [blogspot.com] held that it is absurd to argue that each unauthorized download represents a lost sale.
Re: (Score:3, Interesting)
By that logic they could offer it to itunes for $1 trillion, and since Apple will say no that is a $1 trillion loss due to piracy. Nevermind there could be a whole host of other reasons why Apple may not want to fork over the $1 trillion.
Well worth the read (Score:2)
Tenenbaum did an excellent job. The research behind this is significant. The brief is well worth reading, in its entirety.
The trolls are out tonight in force (Score:3, Interesting)
The trolls are really out in force tonight, on this one. They'll be eating everyone of their nonsensical words when Judge Gertner renders her decision.
Distribution (Score:5, Informative)
The distribution right in 17 USC 106(3) [cornell.edu] requires:
-that it be by a sale, or other transfer of ownership, or by a rental, lease, or lending, AND
-that it be to the public.
Re:Distribution (Score:5, Insightful)
NYCL, don't be a coward. Address my arguments
You're the coward hiding behind the cloak of anonymity and refusing to disclose your true identity, and what the axe is that you have to grind. Your motivations are quite suspect. You have some gall to call me a coward.
If you had any knowledge of the law you would know that Joel Tenenbaum doesn't tell the Court what the law is. The Court determines what the law is, and doesn't ask a 20-something non-lawyer who's a witness and party in a case what he thinks the law is and whether he thinks he violated it. And the law in this case is a statute that was enacted by Congress and signed by the President, which describes what a "distribution" is. And as you well know there was no evidence of the components of a violation of the 17 USC 106(3) distribution right. The testimony of a 20-something young adult that he "distributed" something is legally meaningless.
Re: (Score:3, Interesting)
NYCL, don't be a coward. Address my arguments
You're the coward hiding behind the cloak of anonymity and refusing to disclose your true identity
My email is public and as you know, I have personally emailed you and identified myself fully.
, and what the axe is that you have to grind. Your motivations are quite suspect. You have some gall to call me a coward.
I'm a law student, and I previously wrote a forthcoming review article on statutory damages for copyright infringement. I approached you for comment on it, and you said:
I never doubted that willful copyright infringement requires intent. I'm not aware of the precise issue you describe having been briefed, but I can't rely on my memory in such matters.
And yet now you claim up and down that I'm a shill and a troll.
If you had any knowledge of the law you would know that Joel Tenenbaum doesn't tell the Court what the law is. The Court determines what the law is, and doesn't ask a 20-something non-lawyer who's a witness and party in a case what he thinks the law is and whether he thinks he violated it.
So you're saying that defendants can't ever confess unless they're lawyers? That's a novel perspective and I look forward to your future articles on the subject.
And the law in this case is a statute that was enacted by Congress and signed by the President, which describes what a "distribution" is. And as you well know there was no evidence of the components of a violation of the 17 USC 106(3) distribution right. The testimony of a 20-something young adult that he "distributed" something is legally meaningless.
Since when is an adverse
Re:Distribution (Score:5, Informative)
I would note that if someone says "I did this then that then this", and if pressed if they committed distribution said "I don't know what that is, and that's for the court to decide", then they've not admitted distribution;
Sometimes, slimy prosecutors will try and get defendants to admit their guilt by asking them questions they lack the legal competency to understand. To me, the word "distribute" means to spread something around, make it accessible to others". To a lawyer it has a set statutory meaning, confessing to which means you have committed a crime (or a civil infringement; means something different in US law to Scots law I imagine). For a lawyer to get some Joe on the stand and make him say "distribution" when they're not fully aware of that difference is disingenuous.
Maybe he wants to play Thaetetus to your Socrates? (Score:3, Interesting)
> What is your angle?
Hard to tell, Ray. But if he's Thaetetus, does that make you Socrates [wikipedia.org]? :]
Seriously, though, there are about a zillion Dan Roses out there. Mostly he appears to spend his time making random legal comments on Slashdot among a handful of others. Seems like he *might* be at UNC School of Law [unc.edu]. The email has an extra dot, but I think Gmail ignores those. If that's true, he's part of the Lambda Law Students Association (a legal association for homosexuals), which doesn't really explain
Re: (Score:3, Informative)
If you have read through the whole thread up to the time of your post here and still failed to see how Theaetetus is trolling and NYCL is merely calling him out on it, then all I can really say is I feel sorry for you. You must get trolled a lot, because it's not even that subtle here any more.
Additionally, here are a few more things I've observed, and my impressions of reading between the lines on them.
Fact 1. Theaetetus claims to have personally contacted NYCL in private, prior to all this, and at that time revealing his true identity, amongst other things.
Fact 2. By all appearances, NYCL freely admits who he actually is on these forums, and allows us all to see what his intentions are. He has also never given reason to doubt his honesty. He states his positions, and when people twist them around and put words in his mouth, he sets them straight.
Fact 3. Theaetetus, while claiming to have revealed his identity to NYCL, does none of that on the forums here. We have no clue who he may actually be. For all we know, he actually *could* be a genuine shill, paid by the RIAA.
Based on these facts, here are my impressions:
NYCL is actually being generous by not revealing Theatetus's true identity here, and trying to forewarn us as honestly and politely as possible, in letting us know who the troll is. He knows who Theatetus actually is (in Theaetetus' own words) so he should know whether or not he's actually a troll. Furthermore, Theaetetus doesn't even bother to deny that he's a troll or a shill, and tries to deflect it by name-calling against NYCL. (A coward? Really? Need I say more?)
For the record, let me say:
1. I haven't a clue who Theaetetus is.
2. I can neither confirm nor deny that he contacted me by email. I've received thousands of emails over the past 5 years from people I don't know about the RIAA cases. Some of the emails identify the person, some don't. Maybe he did contact me and reveal his identity, and maybe he didn't. If someone were to contact me today, and state that he is the real Theatetus on Slashdot, how would I know?
A bit disappointing (Score:3, Interesting)
I was disappointed to see that Tenenbaum did not include another, more solid ground for having the damages award looked over. During the case, the plaintiff's attorneys proposed a jury instruction to the effect that the statutory damages should be calculated per infringement. The judge agreed, and that was how the jury was ultimately instructed. However, the statute is very specific that statutory infringements are calculated per work, not per infringement. Given that the final award was an even multiple -- a nice, round number, in fact -- of the minimum that could be awarded, there is a possibility that the jury meant to award the minimum, but then mistakenly multiplied the award by the number of times the works were infringed.
I, and at least one other person in the gallery at the trial were very surprised that the plaintiffs proposed that instruction, and that the defendant didn't object to it. Well, not too surprised; the defense attorneys didn't seem very good at this. But you'd think they would have brought it up by now.
Oh well.
Re: (Score:2)
The idea is similar to how an avalanche starts, IMO. You don't lay the blame for a huge avalanche on an unstable ridge of snow if it's halfway down the mountain when the avalanche started at the top.
You can't even really say the avalanche would have been any less destructive if that ridge was a gentle slope instead.
Re:Only initial seeders liable? (Score:5, Insightful)
Just my 2c.
Re:Only initial seeders liable? (Score:5, Insightful)
I think I don't buy the black and white argument, but the logic does strongly bias towards teh first seeder. Quite literally, to borrow from Will Smith, "If you don't start nothin', there won't be nothin'!" No seeders, no sharing, no infringements.
Obviously the sharers have a piece of the liability too, since if they didn't request and didn't hang around the seeders wouldn't be sharing with anyone. But that is much that same as the drug dealer and the drug user problem, or looking for who started and participated in a bar brawl. They are in a symbiotic relationship, but the "offenses" of each party are somewhat different.
To put a number on it, I'd say the relationship is a declining harmonic progression, with the seeder carrying weight 1, and each successive participant in the torrent carrying weight 1/n. The millionth guy, Tenenbaum, may be the straw that broke the RIAA's back, but his actual contribution is near meaningless.