RIAA's Tenenbaum Verdict Cut From $675k To $67.5k 253
NewYorkCountryLawyer writes "In SONY BMG Music Entertainment v. Tenenbaum, the Court has reduced the jury's award from $675,000, or $22,500 per infringed work, to $67,500, or $2,250 per infringed work, on due process grounds, holding that the jury's award was unconstitutionally excessive. In a 64-page decision (PDF), District Judge Nancy Gertner ruled that the Gore, Campbell, and Williams line of cases was applicable to determining the constitutionality of statutory damages awards, that statutory damages must bear a reasonable relationship to the actual damages, and that the usual statutory damages award in even more egregious commercial cases is from 2 to 6 times the actual damages. However, after concluding that the actual damages in this case were ~ $1 per infringed work, she entered a judgment for 2,250 times that amount. Go figure."
That $2,250 per infringed work figure should look familiar from Jammie Thomas-Rassett's reduced damages judgment — $54,000 for 24 songs.
What difference does it make? (Score:5, Insightful)
Isn't that still way more then most people can reasonably pay and completely disproportionate to the actual damages caused? He'll probably still have to declare bankruptcy.
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It's more than most people have liquid but it's certainly not more than most people can reasonably pay. After all, most adults have a house, a car, and if necissary wages for the next 10 years. It's not like they expect you to write out a check the day after the trial is over. Yes, it's still wildly disproportionate, but at least it I am mentally capable of imagining it is an amount the people who wrote the law might have expected; something that I can't say about the original award.
Re:What difference does it make? (Score:5, Insightful)
It's more than most people have liquid but it's certainly not more than most people can reasonably pay. After all, most adults have a house, a car, and if necissary wages for the next 10 years.
So, you are saying that because someone is capable of selling their house and car to pay $67,000 for sharing 24 songs, that it is a reasonable expectation?
It's not like they expect you to write out a check the day after the trial is over.
Are you sure about that? Most companies I have ever seen (ones far less evil than the RIAA) expect, on determination of a judgment amount, that you will do exactly that or they take other measures to collect said judgment - all while adding exorbitant interest and fees (legal, collection and otherwise) to the amount. As a matter of fact, such practices were part of the reason for the Homestead law in Florida (and similar ones elsewhere) because such "collection" activities often included going after such personal property as one's house and car.
Yes, it's still wildly disproportionate, but at least it I am mentally capable of imagining it is an amount the people who wrote the law might have expected; something that I can't say about the original award.
Well, I am sure that the people who lobbied for and/or sponsored those penalties as defined in the law (the RIAA and MPAA and their members) definitely imagined and hoped for such amounts - and obviously more (based on the original judgment amount) when they pushed for this. I suspect that those who wrote the law went in to it fully expecting such amounts as well, fully knowing what the **AA's expectations were on the matter. That has nothing to do with whether either judgment fits the "crime" though. So... I guess I concede that point to you. ;-)
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So, you are saying that because someone is capable of selling their house and car to pay $67,000 for sharing 24 songs, that it is a reasonable expectation?
You're abusing what the parent said, a person can "reasonably pay" that sum without making unreasonable assumptions like winning the lottery, that doesn't say anything about whether it's a reasonable penalty or not. If it was $675k then any normal person can just declare bankruptcy right away, they'd never manage to pay it back.
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So, you are saying that because someone is capable of selling their house and car to pay $67,000 for sharing 24 songs, that it is a reasonable expectation?
You're abusing what the parent said, a person can "reasonably pay" that sum without making unreasonable assumptions like winning the lottery, that doesn't say anything about whether it's a reasonable penalty or not. If it was $675k then any normal person can just declare bankruptcy right away, they'd never manage to pay it back.
Wrong, I am not in any way abusing that. If selling one's house is the way to "reasonably pay" such a fine, then explain what is reasonable about it?
And wrong on the second part as well - you cannot escape a *legal* judgment by declaring bankruptcy. This isn't a debt. It's a court ordered judgment for violating a civil law.
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> And wrong on the second part as well - you cannot escape a *legal* judgment by declaring bankruptcy. This isn't a debt. It's a court ordered judgment for violating a civil law.
You are dead wrong about this: http://www.ehow.com/facts_5689609_can-bankruptcy-after-court-judgment_.html [ehow.com]
Relevant snippet:
The general rule is that bankruptcy discharges all judgments. However, bankruptcy does not discharge judgments for family support obligations, government-imposed fines or penalties, or taxes.
---linuxrocks123
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But your cite includes this:
5. If you broke a law and were ordered by the court to pay a fine or penalty, your financial obligation will not be discharged in bankruptcy.
Doesn't that mean that judgments on behalf of the RIAA, since they're based on "a fine for breaking a law", would NOT be discharged via bankruptcy??
Regardless, half an average mortgage is hardly reasonable as a penalty for what amounts to digitally shoplifting 2 or 3 CDs. If you were to shoplift the real thing, your penalty would be nowhere
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No, because the RIAA's suit is civil, not criminal. If a district attorney charged you and found you guilty of criminal copyright infringement, then the debt would not be dischargeable. However, that would be a completely different situation: the standard of proof would be "beyond reasonable doubt" instead of "preponderance of evidence", the statute has a few additional requirements (can't remember what they are right now), and district attorneys generally can't be arsed to sue random people from the Inte
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Again, the law does not specify the difference. It simply states:
11 USC 523 Exceptions to Discharge...
(a)(19)(B)(iii) any court or administrative order for any damages, fine, penalty, citation, restitutionary payment, disgorgement payment, attorney fee, cost, or other payment owed by the debtor.
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> And wrong on the second part as well - you cannot escape a *legal* judgment by declaring bankruptcy. This isn't a debt. It's a court ordered judgment for violating a civil law.
You are dead wrong about this: http://www.ehow.com/facts_5689609_can-bankruptcy-after-court-judgment_.html [ehow.com]
Relevant snippet: The general rule is that bankruptcy discharges all judgments. However, bankruptcy does not discharge judgments for family support obligations, government-imposed fines or penalties, or taxes.
---linuxrocks123
Ah... I see.
Oh, wait, I dont - because even the section that YOU pointed out says YOU are wrong and I am correct (see bolded). Perhaps you should read THIS section, which goes into more detail (ie: the actual LAW regarding it):
11 USC 523 Exceptions to Discharge...
(a)(19)(B)(iii) any court or administrative order for any damages, fine, penalty, citation, restitutionary payment, disgorgement payment, attorney fee, cost, or other payment owed by the debtor.
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I'm wondering when these penalties will become conflated with civil asset forfeiture, allowing the offended agency to simply grab anything of yours that they deem to have "committed an offense" or that might "be at risk". I think this is coming (it is already here in some other venues).
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> it's certainly not more than most people can reasonably pay
Perhaps most people in your social circle could pay that, but not most people in America.
Median income is around $50K/year.
The average amount of "disposable income" that is saved lately varies between -2% and +2%.
Paying off $7K/year would require 14% of the median income. I suppose one can survive on that, if one cuts back on luxuries like clothes, meat, and gasoline. And pirates their music.
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The usual rule of thumb is that you can manage 3x your income in debt, and I found that the average US private debt was $55k. Add $67k on top, and you're not cutting luxuries, you're bargain shopping for necessities and get clothes from the salvation army.
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Why is "inconvenient" in quotes? I never used that word, nor did parent.
But I would argue that a penalty of 3 months in prison for copying $24 worth of songs is bat-shit insane.
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I could literally walk in a store and steal a $24 item in front of a cop and get no jail time and walk away with a $100 fine.
Re:What difference does it make? (Score:5, Interesting)
I would argue against the 3 month sentence, as i can drive home drunk, physically endangering hundreds of people and get far less than that for a first time offense.Maximum penalty for a first time offender with no aggravating factors, with no priors, is 30 days and/or $1000, and goes up to 3000 and 1 year for two+ aggravating factors, in the state of Minnesota[1]. So yes, sharing 24 songs a few hundred times, for no commercial gain, seems to me to be less of an issue than driving with a
So yes, a basicly harmless act(at most a few hundred dollars of losses, counting the cost of each album shared* number of times shared to a unique computer), is getting someone a 67.5K fine, but no jail time, and no community service. You would need to pay back around 7k a year to pay it off, with interest, in ten years.
Not stating that drunk driving is good, to be honest I think the penalties aren't harsh enough, but then if you take away a license to drive in the USA you really have no other option. Go us not wanting to pay for anything that someone else might use.
[1] http://dwi-minnesota.com/mn-penalties.html
[2]http://dwi-minnesota.com/mandatoryminimum.html
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> Don't steal the fucking music in the first place
Interesting point. But good luck convincing the RIAA - I doubt they'll ever stop stealing and fucking musicians.
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Last time I saw the numbers I think the median net worth of a Swedish citizen was around $1000. This is because while they do have a car and a house they're both bought with borrowed money leaving them with very little ability to achieve liquidity and why wouldn't they expect you to write out a check the day after the trial is over?
Re:What difference does it make? (Score:4, Insightful)
No, the lawmakers established a range of $350 - $250,000 per song, depending on the circumstances of the infringement. I refuse to believe that they intended for the top end of that spectrum to be applied to situations such as these. While this was clearly not the most innocent type of infringement (something like burning a mix CD would qualify in my mind (not that I agree that it should be against the law, only that according to the law that is infringement and if it must be punished should be punished with the smallest award legally applicable)). At the same time it is far from the most heinous infringement (something like a major bootlegging operation selling thousands of copies at a profit).
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A mix CD is *NOT* infringement. That's an obvious case of Fair Use.
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A mix CD is *NOT* infringement. That's an obvious case of Fair Use.
Copyright law disagrees with you. "Fair use" would be a CD on which you record your own one hour blog about the evolution of rock music from 1960 to 2010 and add a few ten second samples to clarify the points that you are making. A mix CD containing _complete_ songs or large parts of songs is definitely not "Fair use".
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If you own all the original CDs or AACs that the mix cd was created from, that is fair use..... or at least it should be.
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"Giving the mix CD to someone else - not so OK."
Not exactly true. Copyright law is aimed at commercial enterprise. For me to create, then GIVE AWAY a CD, or a dozen CD's, isn't exactly a commercial endeavor. Only if I CHARGE for distributing those CD's do I begin to infringe upon anyone's exclusive right to make money from their songs.
And, that is precisely WHY there is a sliding scale of penalties involved. Any infringement trial should be working hard to determine the motivation for the "distribution"
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Making a mix tape (or CD) and giving it to a friend gratis, is still copyright infringement, but I believe it's only a civil matter at that point. Tanenbaum was sued in civil court, (the RIAA's mentions 10 jurors in their response to the ruling). It's only when you start charging money when it becomes criminal (and the federal government attacks y
Re:What difference does it make? (Score:5, Insightful)
Not really. The lawmakers established a fine of $250,000 per song. They'd probably be disappointed to see it reduced to just over $2000
I doubt it. When the law was written, it was written to cover commercial infringement, as at that time there was no technology that would have allowed for the wide-spread non-commercial infringement that is commonplace today.
The law really needs to be rewritten to differentiate between the two, with reasonable (if any) penalties for P2P type infringement. However, given the current influence of the media corporations with government, maybe we should leave well enough alone...
Re:What difference does it make? (Score:5, Insightful)
Yes, that's a very important point to remember. The laws were written to discourage commercial pirates. If they made and sold 10,000 illegal copies of a CD, they made 10,000x as much money as if they only sold one. The more copies they could sell, the more they would benefit. So a fine like $250,000 per song made sense to discourage them.
But on the same token, it makes absolutely no sense to apply that fine to personal copyright infringement. By definition, the personal infringer is only interested in one copy. S/he cannot benefit from making nor providing more than one copy (indeed, as many filesharing networks have found out, the incentive to leave the network as soon as they've gotten their one copy gives rise to "leechers"). So just fining them for the one illegal copy is disincentive enough. Figure $25 for a CD, treble damages for willful infringement, and a little extra for the copyright holder's and government's time and effort, and you're in the $100-$200 range per CD.
This gets into another aspect of this whole thing which is just wrong. The *AA are essentially double-dipping. When they bring a file-sharer to trial, they bemoan how the lone person made the song available to thousands of other people, and so the fine should reflect all those copies. But if that's their reasoning, then the moment they get a judgment for $54,000 against one person, that should indemnify all the people who got files from her from further prosecution. After all, by the *AA's own argument, the fine she's paying is for all those copies, not just hers. So the defendant(s) has been punished and fined, and the *AA recompensed for those thousands of copies and made whole. But no, they go right on filing lawsuits against all those other people.
Either haul one person to court and make them pay these huge fines, and indemnify the rest of the people from prosecution for that infringement. Or try each person in court for their single infringement. You cannot have it both ways and fine every single person for his/her infringement plus the infringement of every other filesharer, and do the same for every other filesharer. Much like if you file suit against a commercial pirate, the people who bought CDs from that pirate are not liable for infringement.
US Constitution Amendment 8 (Score:2)
I think the US Constitution would not let one person pay for all the others. "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."
Even if we disregard the "excessive fines" part, if just one person is punished that would certainly be an "unusual" pun
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Re:What difference does it make? (Score:5, Insightful)
Isn't that still way more then most people can reasonably pay and completely disproportionate to the actual damages caused? He'll probably still have to declare bankruptcy.
While completely disproportionate to actual damages, that is easily within a payable range (though not all at once).
It's less than a house, and there are people who can afford two of those. If they make him do monthly installments over 6 years he should be able to pull it off.
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Ouch, I was just answering the question. I wasn't siding with them or anything.
Re:What difference does it make? (Score:4, Interesting)
Is this the new standard for corporate extortion? "It's completely disproportionate, but if he's willing to give up his life and future he can pay it".
It's bad enough that the system in the US (and most western countries) has become a simple matter of re-distributing wealth from the working class to the ownership class, but this is simply economic terrorism. Create a penalty that is so disproportionate that it frightens anyone who might consider not giving money to the corporation. Make it so that people are afraid to post their own original work to YouTube because the RIAA is likely to send a C&D letter "just in case". Send C&D letters when people use Creative Commons to make sure they learn who's boss. Make everyone pay and pay until they're willing to open their wallets, just to be left alone. Have the corporate media repeat the notion that anyone who believes in the public domain, anyone who might consider alternatives to old-fashioned copyrights is labeled a "pirate" or "anti-copyright radical".
Make public libraries emblematic of "big government" and "socialism" so that municipalities who withdraw funding for those libraries seem patriotic. Equate regulation of business with tyranny.
The new corporatism is much, much more dangerous to our society than terrorism.
destructive justice (Score:2)
This "justice" doesn't accomplish anything. The courts really should consider whether a particular verdict will strengthen society, and this one most emphatically does not. This verdict, if it stands, will only break an ordinary citizen who did nothing heinous, or even really naughty. It won't stop piracy, and it won't help the industry. It makes the government look bad, and increases suspicions of corruption and cronyism.
This copying is something anyone could have done without thinking anything of it
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The new corporatism is much, much more dangerous to our society than terrorism.
Not only that, but one could make the argument that it breeds actual terrorism. As we have learned in the middle east, if you ruin enough peoples lives eventually some of them will decide to come and TAKE yours.
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My first house was $65,000, 3 bedrooms, 1,200 square feet, nicely finished.
My current house was $55,000, 5 bedrooms, 2,200 square feet, not quite done yet.
Perhaps you live somewhere that housing expenses (and median income) is greater, but I would not have been able to pay either of them off in six years.
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>>>completely disproportionate to the actual damages caused
It appears the judge determined actual damages to be $2250 / 6 == $375 per song (minimum). Maybe she's taking into account prosecution costs (lawyers, security specialists to track the downloader, programmers, et cetera)
.
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It's a 750 dollar minimum with, as I recall, a few criteria that can allow for triple damages, such as willfull infringement.
So really, that is, by law, the miminum he could have been hit for.
Ultimately, if the RIAA decides to go back on the "sue-em-all" bandwagon, they'll just start raising the number of songs. Instead of going after someone for 24 songs, they'll instead go after them for 100 songs.
Re:What difference does it make? (Score:5, Informative)
It's a 750 dollar minimum with, as I recall, a few criteria that can allow for triple damages, such as willfull infringement.
The lower bound is the same - $750 - regardless of whether the infringement was willful or not. However, the upper bound changes from $30k to $150k in the case of willful infringement.
However, it's interesting to read the actual reasoning by which the judge arrived to the given figure (which is $750 x 3). Seriously, RTFA!
For the reasons I discuss below, I reduce the jury’s award to $2,250 per infringed work, three times the statutory minimum, for a total award of $67,500. Significantly, this amount is more than I might have awarded in my independent judgment. But the task of determining the appropriate damages award in this case fell to the jury, not the Court. I have merely reduced the award to the greatest amount that the constitution will permit given the facts of this case.
There is no question that this reduced award is still severe, even harsh. It not only adequately compensates the plaintiffs for the relatively minor harm that Tenenbaum caused them; it sends a strong message that those who exploit peer-to-peer networks to unlawfully download and distribute copyrighted works run the risk of incurring substantial damages awards. Tenenbaum’s behavior, after all, was hardly exemplary. The jury found that he not only violated the law, but did so willfully.
Reducing the jury’s $675,000 award, however, also sends another no less important message: The Due Process Clause does not merely protect large corporations, like BMW and State Farm, from grossly excessive punitive awards. It also protects ordinary people like Joel Tenenbaum.
In other words, she started from the figure provided by the jury, and then tried to reduce it as much as possible. She seems to be doing this specifically by looking at numerous other cases in which punitive damages were awarded to arrive at the reasonable absolute figure, as well as a reasonable ratio of punitive amount to compensation for the plaintiff:
Notice of section 504(c)’s extraordinarily broad statutory damages ranges, standing alone, does not in any meaningful sense constitute “fair notice” of the liability that an individual might face for file-sharing. In a case of willful infringement such as this one, the maximum damages per infringed work -- $150,000 -- are 200 times greater than the statutory minimum of $750. Since the jury found that Tenenbaum willfully infringed thirty copyrights, its award could have ranged from a low of $22,500 to a high of $4,500,000. For anyone who is not a multi-millionaire, such “notice” is hardly more illuminating than the notice that BMW and State Farm had that their fraudulent conduct might lead to the imposition of a punitive damages award ranging from $0 to infinity.
Since section 504(c) failed to provide Tenenbaum with fair notice of the liability he could incur for filesharing, it is imperative that I review other copyright cases to determine whether the jury’s $675,000 award here fell within a discernible pattern of awards of which Tenenbaum could have taken note, or was instead an unforeseeable outlier. ...
I conclude that an award of $2,250 per song, three times the statutory minimum, is the outer limit of what a jury could reasonably (and constitutionally) impose in this case
Then the explanation as to why the 3x multiplier over the minimal amount of $750: ... there is a long tradition in the law of allowing treble damages for willful misconduct. ... Given the record before me, I conclude that the most reasoned approach is to reduce the jury’s award to three times the statutory minimum. Although this decision will not be entirely satisfactory to some, it at least has the virtue of finding some basis in the long history of courts and legislators sancti
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>>>Didn't you even read the SUMMARY, for crying out loud?
I did read the summary but apparently you did not. Quote: "District Judge Nancy Gertner ruled that the usual statutory damages award in even more egregious commercial cases is from 2 to 6 times the actual damages." So since she awarded 2250 per song, she must be figuring the per song cost is 2250/2 == $1125 actual damages. Or 2250/6 == $375 actual damages. The latter makes more sense
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He won't be declaring bankrupcy (Score:4, Informative)
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Assuming he can find a job:
"Hello. I'm a lawyer, studied for 6 years inc ollege plus law school, and oh yeah I have a court record that forces me to pay $70,000."
"Ummmm.... that's... interesting. Well we'll go through the rest of this daylong interview since you're here, but to be honest I've already wrote Reject on your resume."
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You are Ernie Wise AICMFP.
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Actually there's probably only so much the jury could do as well, given that Tenenbaum not only admitted to years of copyright infringement, but a
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One thing to keep in mind: The RIAA cannot afford to keep trying these cases if they keep getting such paltry sums. The lawyers alone are expecting to earn more than that.
[disclaimer: I am aware of microbreweries, TVM] (Score:3, Funny)
If you live in the US, the toner not only contains 100x more alcohol but tastes 100x better.
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Still worth 2250/movie?
For the record around 1/3 of my music collection is from an ex girlfriends collection that I ripped. Some of which I actually bought and paid for and gave to her, where she then let me rip the CD later. Others of it is from offi
Car analogy (Score:3, Interesting)
Yes, I see that -- unconstitutional -- message. In essence, what the statutory limit says is that, if I get caught I have to pay for all those who weren't caught.
It's like if the highway patrol said, "we will only catch one in a million speeder, but he will have to pay for all the million speede
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So (Score:5, Insightful)
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Right, so your problem isn't that Obama is a dictator. Your problem is that YOU aren't the dictator.
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Yep, so ruined gulf fishing for years, clean up costs, loss of taxes paid on that oil(if they don't need to pay taxes on it), some extra in there for hardship(remember there are family incomes riding on it being cleaned up right and quickly), some more for any loss of marine life(it has a worth), some huge number if something goes extinct because of the spill. Yep looks near the worth of BP. They wouldn't be in this
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Should the company survive it's just more proof that the Libertarian model of letting everyone run wild and the market decide things is fundamentally flawed.
Under the anarchic model (let's face it, that's what libertarians really want; a system of anarchy where they can create their own feudal societies) someone or some group would take up the task of assassinating BP executives, destroying their equipment, et cetera. But under THIS model such a thing is illegal and will get you in a whole lot of trouble. Of course, it wouldn't really solve anything. Instead of civil war there would be corporate war. But libertarians never seem to realize that they are anarchis
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How many Americans back and support milking BP for everything they have? 90%?
Probably only 90% in the south. Not everyone cares about the gulf. I've only seen it once, and while it sure is a bad thing happening, real human evil is happening a lot closer to my home. BP's evil was carelessness. I doubt they were scheming in their boardroom: "I've got the perfect plan. We'll blow up a deep sea oil rig and cover the gulf in oil. Muahahaha! All hail Big Oil!" My city's got cops happy to beat people for breathing, drug dealers happy to shoot kids because they were good target prac
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go figure? (Score:5, Informative)
Go figure.
Or read the opinion, which will obviate the need for figuring. She explains her justification for the damages figure (3 times the statutory minimum) quite thoroughly. She also points out that, like Thomas in the Jammie Thomas-Rasset case, the defendant willfully violated the law then lied under oath to try to escape it, which seems to inform her decision that some sort of serious punishment is justified.
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Come on, 2250 times the actual damages for copying music. Here the court (and the law I might add) is out of balance. The law should treat each case on merits and what damages there actually were, having the punishment fit the crime. Our system of justice is not supose to treat people as examples, without regard to what the effect of the judgement is going to be on the individual, the punishment to the individual needs to fit the crime, Here it does not. Corporate profits have trumped our laws and our p
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Re:go figure? (Score:5, Interesting)
2250 times what exactly? The price of an mp3 or the value of unlimited international distribution rights?
There was no evidence of an actual "distribution" with in the meaning of the Copyright Act, let alone of him acting as a dispenser of "unlimited international distribution rights".
Re:go figure? (Score:4, Interesting)
Come on, 2250 times the actual damages for copying music. Here the court (and the law I might add) is out of balance. The law should treat each case on merits and what damages there actually were, having the punishment fit the crime. Our system of justice is not supose to treat people as examples, without regard to what the effect of the judgement is going to be on the individual, the punishment to the individual needs to fit the crime, Here it does not. Corporate profits have trumped our laws and our politics. We need a change.
I don't think this result was consistent with existing law. The judge conceded that under existing law a copyright infringement statutory damages claim should not exceed 2 to 6 times the actual damages. Had she applied that principle to her overly generous appraisal of the actual damages as being $1 per infringed work, and had she decided to "throw the book" at Mr. Tenenbaum and award 6 times the actual damages, the total judgment would be $180.
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No, the constitution outlaws amounts that are, in the exact wording [cornell.edu], "excessive". Pick any dictionary [google.com] to know what "excessive" means.
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But isn't the ruling about calculating statutory rather than actual damages?
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Triple damages ($3 per song) plus legal fees. I'm sure the legal fees alone are enough to make anyone think twice.
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>>>the defendant willfully violated the law then lied under oath to try to escape it
When did this happen? If the actual damages are $1 or $2 per song, and the statutory minimum is $750, then I would have assigned that. If 4-6 times is the norm in civil cases, then paying 325-700 times the actual damages would already be punishment enough for perjury
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Or read the opinion, which will obviate the need for figuring. She explains her justification for the damages figure (3 times the statutory minimum) quite thoroughly
When statutory damages are 750 times actual damages, the statutory damages are clearly unconstitutional. There's no explaining that.
If the defendant provably lied under oath, prosecute them for perjury. Tacking damages onto another judgment is wrong.
Re:go figure? (Score:5, Insightful)
When statutory damages are 750 times actual damages, the statutory damages are clearly unconstitutional. There's no explaining that.
No there is no explaining it. The decision never makes a rational transition to its conclusion.
1.Law: statutory damages should be 2 to 6 times actual damage
2.Actual damage found to be $1
3. ??????????
4. $2,250 profits for RIAA.
I for one welcome the administration of justice by our corporatist overlords.
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Actually, I think the logic is quite plain. From page 38:
The plain language of 17 U.S.C. 504(c) authorized the jury's award in this
case. I must give effect to this clear statutory language, at least to the extent that the jury's
award does not run afoul of the Due Process Clause. See Caminetti v. United States, 242 U.S.
470, 485, 490 (1917) ("[I]f [a statute's language] is plain, and if the law is within the
constitutional authority of the lawmaking body which passed it, the sole function of the courts is
to enforce it according to its terms," unless doing so would "lead[] to absurd or wholly
impracticable consequences.").
The other part is in the conclusion on page 54:
Chief Judge Davis notes, there is a long tradition in the law of allowing treble damages for
willful misconduct.
Basically the damages was reduced to the lowest possible limit without saying the statute itself is unconstitutional, just that parts of the range are unconstitutional given the case. If you look at the case law cited, it almost exclusively deals with cases where the damages have been wide open, and the jury returned crazy damages but that's on the jury's hands. If you go below $750, then it's the law its
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I mentioned above that I think this sort of judgment is headed in the direction of becoming a form of civil asset forfeiture (with all the abuses and corruption inherent therein), and that we can expect it to become blatantly so in the future. Your thoughts?
Re:go figure? (Score:4, Informative)
That's why I said informed, not based. While you are correct that perjury is generally a criminal matter separate from the case in chief, it is not necessarily completely disconnected. For example, perjury can be grounds for dismissing an action. Here, she seemed to interpret his failure to tell the truth under oath (I'm not saying he actually did, just her conclusion was that he did) goes to the willfulness of his misconduct, and willfulness is definitely a factor in damages here.
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But the judge can take things like remorse, admittance of guilt, hiding/destroying evidence, etc into account when sentencing. Sounds to me like that is exactly what she did here.
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I would disagree. Perjury, like contempt of court, is a criminal matter entirely separate from the primary (or whatever the sharkspeak word is) case.
Perhaps you should read the opinion as the grandparent post suggests. The judge needed to determine if the awarded amount was unconstitutionally high. This involved determining what amount would be constitutional. In determining that, the judge had to consider how reprehensible the actions of Tenenbaum was. His lying under oath was one of the things that weighed against him in determining the reprehensibility of his actions. It's very clearly laid out in the opinion.
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It's a separate charge, in that the judge can have the defendant charged with perjury and made to pay for that even if he wins the original case.
But perjury is moot here. The judge isn't charging anyone with perjury. She is merely saying that lying about the crime makes the punishment worse when there is discretion about the punishment. You get slack when you're (a) naive about your crime and (b) remorseful about it, not when you're (c) fully aware you're breaking the law and (d) willing to waste the cou
Infinite Resources (Score:5, Insightful)
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The real problem here is that computer data (here referring to song files) is the only truly infinite resource that has ever existed on the planet. A digital copy of a CD could be copied an infinite number of times without any loss of quality. How do you regulate that?
Forget regulating it. Abuse it. Copy some data so many times that you owe the RIAA a Googolplex times the total value of the world's money. Prove the point that data has little to no value on its own by the absurdity of the scenario.
Ob (Score:2)
O Tenenbaum, o Tenenbaum,
Reduce the dam-a-ges we pay!
O Tenenbaum, o Tenebaum,
Reduce them further ev'ry day!
As exponential they decayrz,
We download emmpeethrees and wayrz.[1]
Though lawyers bill and AA's whine -
Go shove it where the sun don't shine!
[1] yeah, this is bad, though Rush got away with worse.
If you don't like it, you can substitute:
Reduce our liabilatee
- though it's not really libertee [2]
[2] And if you don't like that, you can fuck off.
When UMG is sued limit is 2x; when suing 2250x (Score:5, Insightful)
But when it is suing some kid for copyright infringement, it's allowed to collect 2250x actual damages.*
Doesn't sound like equal justice to me.
* Even Judge Gertner's $1 actual damages figure is wildly overstated. 70 cents lost revenue minus 35 cents saved expenses = lost profit of 35 cents, IF you wanted to assume that every unuathorized download represents a lost sale, which it certainly does not. Most likely the real actual damages is 5 or 10 cents on an mp3 download.
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Even Judge Gertner's $1 actual damages figure is wildly overstated. 70 cents lost revenue minus 35 cents saved expenses = lost profit of 35 cents, IF you wanted to assume that every unuathorized download represents a lost sale, which it certainly does not. Most likely the real actual damages is 5 or 10 cents on an mp3 download.
You could make an argument that this could actually be several times higher, given the uploading done by many peer-to-peer applications. If you even upload a small bit to another person, they can then upload it to some more -- averaging this out over the entire lifespan of a torrent could enable a few more people to download it. Meaning, I dunno, maybe $5 tops per song, unless you seeded to a real high ratio.
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It's gratifying that someone as useful as yourself has come to a similar sort of calculation
Please keep up the good work!
Penalty less than iTunes? (Score:3, Interesting)
Currently, I pay NZ$1.50 per iTunes song.
At its worst exchange rate a couple years back it was NZ$2.12 per song(I didnt purchase many at that time).
If I had taken these songs instead, extradited to the US, fined, I would have to pay, lets see....US$340. Potentially less than the legitimate purchase price.
PS: I take no moral stand, I work, have limited time outside work hours, and take the shortest path for various things even if it means paying.
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They do. They routinely screw aspiring artists as much as possible on their first record contract or two. It is the reason you frequently notice successful artists spinning of their own production company, having been burned, they know it is the only way that they get to keep a little of the money they earn instead of handing it over to someone else.
Re:Dont pirate music, simple as that. (Score:5, Insightful)
Why is everyone bitching that the guy got in trouble for downloading free music. I was taught "don't do the crime if you cant do the time." These guys broke the law and committed a felony. They are lucky they are not going to prison. I would gladly pay $60k and keep my ass out of the prison shower room.
I think the complaint is the disproportionate punishment for the crime. He apparently downloaded 30 songs, which is about 3 CDs worth... if he'd walked into a CD store and stolen three CDs with no previous criminal record, do you really think he'd be fined $67,000 or sent to jail?
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The decision seems to say that $2,250 is 3 times the "statutory minimum" of $750.
If 3 times the statutory minimum is 2 thousand times the actual damages, then the statute is clearly unconstitutional. What logic could justify that?
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If 3 times the statutory minimum is 2 thousand times the actual damages, then the statute is clearly unconstitutional. What logic could justify that?
None.
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the statute is clearly unconstitutional
You missed the whole point of the post you're replying to, didn't you?
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If 3 times the statutory minimum is 2 thousand times the actual damages, then the statute is clearly unconstitutional. What logic could justify that?
The logic in the opinion that you didn't read.
Re:Amateur Lawyers (Score:5, Funny)
You quoted from the summary. The summary was written by NewYorkCountryLawyer, who is (if I remember correctly) an actual lawyer.
Unfortunately, you are right about that. I probably should have been a computer programmer, but I was a little intimidated by those tall machines with whirring wheels and punch cards, which they had in those days.
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So, Mister County Lawyer, explain to us why statutory minimum damages are unconstitutional, and why every judge in the country seems painfully unaware of the fact?
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Thinking that a whole profession is BS (not sure I disagree about the economists!) is not quite the same thing. I'm not talking about people who think the law is BS (plenty of those) I'm talking about people who believe in the law, but suffer from the illusion that their casual reading puts them on a par with somebody who's spent years studying the subject.
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How can this lawyer prove that a friend or someone didn't break into my house and use my computer to download something illegal?
Seems like you could use the same defense on ch
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How can a lawyer prove that I was the one the downloaded the songs beyond reasonable doubt?
Because reasonable doubt is not required for civil cases. In civil cases it is a preponderance of evidence. The lower standard of proof is because there is no jail time involved.
So, they only need show that you operate the wifi, and you're the person who primarily uses it. Thus, the most reasonable assumption is that it was your download.
Done and done.
Seriously, if you think you have some creative way to avoid the law, seriously... SERIOUSLY, talk to a lawyer about it, and they'll explain to you exactly