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RIAA Litigation May Be Unconstitutional

timothy posted more than 5 years ago | from the what-about-ritchie-chaz-and-margot? dept.

The Courts 281

dtjohnson writes "A Harvard law school professor has submitted arguments on behalf of Joel Tenenbaum in RIAA v. Tenenbaum in which Professor Charles Nesson claims that the underlying law that the RIAA uses is actually a criminal, rather than civil, statute and is therefore unconstitutional. According to this article, 'Nesson charges that the federal law is essentially a criminal statute in that it seeks to punish violators with minimum statutory penalties far in excess of actual damages. The market value of a song is 99 cents on iTunes; of seven songs, $6.93. Yet the statutory damages are a minimum of $750 per song, escalating to as much as $150,000 per song for infringement "committed willfully."' If the law is a criminal statute, Neeson then claims that it violates the 5th and 8th amendments and is therefore unconstitutional. Litigation will take a while but this may be the end for RIAA litigation, at least until they can persuade Congress to pass a new law."

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wholly analogous (5, Insightful)

Anonymous Coward | more than 5 years ago | (#25561903)

Quote from TFA:
" The law, Neeson writes, is âoewholly analagousâ to a law that provides the following regime for speeders: (1) a $750 fine for every mile over the speed limit, escalating to $150,000 per mile if the speeder knew he was speeding; (2) the fines are not publicized and few drivers know they exist; (3) enforcement not by the government but by a private police force that keeps the fines for itself and:

        that has no political accountability, that can pursue any defendant it chooses at its own whim, that can accept or reject payoffs in exchange for not prosecuting the tickets, and that pockets for itself all payoffs and fines. Imagine that a significant percentage of these fines were never contested, regardless of whether they had merit, because the individuals being fined have limited financial resources and little idea of whether they can prevail in front of an objective judicial body. "

I be dead if the police troops act like RIAA does.

Re:wholly analogous (5, Funny)

HasselhoffThePaladin (1191269) | more than 5 years ago | (#25562159)

A car analogy? Really? Well, I guess it works.

With fines like that I-294 can be toll free (4, Funny)

Joe The Dragon (967727) | more than 5 years ago | (#25562225)

With fines like that I-294 can be toll free as well the rest of the IL toll way system.

Re:With fines like that I-294 can be toll free (0)

Anonymous Coward | more than 5 years ago | (#25562315)

actually, with fines like that poor guys would always drive 5mph below the speed limit, and the rich guys drive around like the highway belong to their grandpa's. (*wink* *wink* at the tax policies)

also, a moral dilemma occurs when a person ferrying his/her dying pet/spouse to the hospital contemplates whether to save the $150,000 or let their pet/spouse die slowly due to blood loss/whatever's causing them to die.

Re:wholly analogous (3, Funny)

Anonymous Coward | more than 5 years ago | (#25562409)

A first post with a car analogy, AND by someone who actually RTFA. I think we have a kind of record here.

Doesn't have a leg to stand on (1, Interesting)

Anonymous Coward | more than 5 years ago | (#25562645)

IANAL, and I hate what the RIAA has been up to, but this is stupid. How many legs does a dog have, if you call a tail a leg? Four! You can't simply call this law a criminal statute and make it so. It's civil.

Besides, I can't take any of this seriously until NYCL comments.

in other news (1)

pxlmusic (1147117) | more than 5 years ago | (#25561905)

the sky may be blue, water may be wet, etc.

Re:in other news (5, Funny)

SpeedyDX (1014595) | more than 5 years ago | (#25561941)

the sky may be blue, water may be wet, etc.

Well, it really depends on where you are. Didn't you watch the Olympics in Beijing? The sky there was gre... ... OH, you were being sarcastic. Heh. Clever.

Re:in other news (1)

pxlmusic (1147117) | more than 5 years ago | (#25561963)

yeah, besides...everyone knows the skies over Beijing are red.

duh.

Re:in other news (1)

HTH NE1 (675604) | more than 5 years ago | (#25562175)

"What color is the sky in your world?"
"It depends on the time of day or night and the prevailing weather conditions. Doesn't yours?"

Re:in other news (1)

Valdrax (32670) | more than 5 years ago | (#25563159)

Well, it really depends on where you are. Didn't you watch the Olympics in Beijing? The sky there was gre... ...

Not after NBC gets a hold of it!

Goatse (-1, Offtopic)

Anonymous Coward | more than 5 years ago | (#25561915)

Would anyone like a nice cup of Goatse [goatse.cz] ?

Re:Goatse (1)

Endo13 (1000782) | more than 5 years ago | (#25561975)

Only if it comes with Natalie Portman, naked and petri...

Hmm... nope, not even then.

Re:Goatse (-1, Troll)

Anonymous Coward | more than 5 years ago | (#25562117)

The world looks mighty good to me
'Cause Goatse Holes are all I see
Whatever it is I think I see
Becomes a Goatse Hole to me

Goatse Hole how I love your rectumy view
Goatse Hole I think I'm in love with you

Whatever it is I think I see
Becomes a Goatse Hole to me

(69 in the place to be
Hey yo, 'Ski! What we came to see?
Cotton candy, sweetie, go,
Let me see the Goatse Hole!)

Re:Goatse (0)

Anonymous Coward | more than 5 years ago | (#25562941)

domain registration expired lolstix

Just wait... (-1, Redundant)

collinstocks (1295204) | more than 5 years ago | (#25561943)

...until the RIAA gets an amendment added to the constitution with regard to copyright law.

This is actually very good news, as I doubt that they have that much power in the government. On the other hand, though, IANAC (I am not a congresscritter) so I don't know how much influence RIAA has.

Oh, and unless I took too long writing this post, FIRST POST!!!

Re:Just wait... (-1, Offtopic)

Anonymous Coward | more than 5 years ago | (#25561965)

You took to long. More like 4th post.

Bleh (-1, Offtopic)

collinstocks (1295204) | more than 5 years ago | (#25561983)

I took too long :(

Re:Bleh (-1, Offtopic)

Anonymous Coward | more than 5 years ago | (#25562477)

This is just not your day.

Re:Just wait... (1)

kmahan (80459) | more than 5 years ago | (#25562615)

With the economy the way it is our representatives in congress need to earn a living! So clearly the RIAA can score big since they've got deep pockets.

Re:Just wait... (1)

onecheapgeek (964280) | more than 5 years ago | (#25562901)

Do you really think 2/3 of the states would ratify such an amendment? Especially since some, if not all, states require public vote on such amendments? Or do you just have no clue what it takes to amend the Constitution?

Re:Just wait... (0, Troll)

ijakings (982830) | more than 5 years ago | (#25563057)

Who says you need to amend it?

The bush administration has just trampled all over it, dont need it to be re written if its already been raped.

Re:Just wait... (0)

Anonymous Coward | more than 5 years ago | (#25563171)

Do you really think 2/3 of the states would ratify such an amendment? [...] Or do you just have no clue what it takes to amend the Constitution?

Ironically, it takes 3/4 of the states to amend the constitution. Its in poor form to mock someone for not knowing when you don't know yourself...

Unconstitutional (0)

Anonymous Coward | more than 5 years ago | (#25561947)

It breaks the 2nd amendment

Re:Unconstitutional (-1, Offtopic)

Miseph (979059) | more than 5 years ago | (#25562861)

Isn't that the one about false idols?

It's OK, because when our first president Jesus returns to throw out all of the activist judges and greedy liberals and establishes his constitutionally promised Kingdom of Democracy we can finally live in peace and cooperation and help those in need. That's why you should vote for John McCain, the first and only candidate to ever have faith in God, and if you don't then Jesus will hate you forever and you'll go to hell with the abortionists and queers. And remember, God wants you to be wealthy, because only rich people can get into heaven; it says so in the Bible.

The sad part is that I'm sure there are people out there who don't think any of that is completely ridiculous, let alone that it's all outright lies.

well shit... (0)

Anonymous Coward | more than 5 years ago | (#25561951)

you dont say?

Hmmmm (-1, Troll)

Anonymous Coward | more than 5 years ago | (#25561961)

I don't recall anything in the Constitution protecting an individual's right to steal.

Re:Hmmmm (0, Offtopic)

Gizzmonic (412910) | more than 5 years ago | (#25562019)

Yeah, me neither. Of course, I was pretty baked when I saw it. I think it had Mel Gibson in it, and like, there was a chase scene where he yelled "Give me back my son!" That was a pretty good movie, if I'm thinking of the same one.

Re:Hmmmm (5, Interesting)

ArhcAngel (247594) | more than 5 years ago | (#25562029)

"I don't recall anything in the Constitution protecting an individual's right to" infringe copyright.

There, fixed that for you.

Re:Hmmmm (-1, Offtopic)

Anonymous Coward | more than 5 years ago | (#25562153)

You stole the whole damned country from us, you colonial kike cunts.

Re:Hmmmm (5, Informative)

rohan972 (880586) | more than 5 years ago | (#25562203)

Even ignoring your "copyright violation=theft" troll:

Amendment 5: ...nor be deprived of life, liberty, or property, without due process of law;
Settlement of these suits is commonly depriving people of their property without due process of law, not on the basis of any guilt by the cost of defending yourself in a lawsuit against a large corporation.

Amendment 8: Excessive bail shall not be required nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Neither one of these require that copyright infringement cannot be dealt with at law, simply that the current law and process being applied doesn't meet the necessary standard.

Oh, and the copying=theft thing? If that was so, why did they not simply report them to the police so they could be charged with theft? I issue this challenge to all who claim copying=theft. Provide me with a copy of your work with an indemnity from any lawsuit for copying except in the case that I am convicted of stealing the work. I'll copy it in a way you can prove, but non-commercially, then you report me to the police for theft. Once that fails, you shut up.

Re:Hmmmm (0)

Anonymous Coward | more than 5 years ago | (#25562653)

Copyright infringement is not theft because the definition of theft includes "depriving the owner" of what you stole.

Copying your CD - not theft, taking it from you by force and running away with it - theft.

Hope that helps.

police != law (0)

Anonymous Coward | more than 5 years ago | (#25563157)

Oh, and the copying=theft thing? If that was so, why did they not simply report them to the police so they could be charged with theft? I issue this challenge to all who claim copying=theft. Provide me with a copy of your work with an indemnity from any lawsuit for copying except in the case that I am convicted of stealing the work. I'll copy it in a way you can prove, but non-commercially, then you report me to the police for theft. Once that fails, you shut up.

It's hard to get police to do their job, especially on any white collar crime. And I'm not just talking theft of a 99c song, but even billion dollar white collar crimes. So while you may be right, the police argument is a specious one in this day and age (if not always).

Police != law (enforcement) (1)

occam (20826) | more than 5 years ago | (#25563167)

Oh, and the copying=theft thing? If that was so, why did they not simply report them to the police so they could be charged with theft? I issue this challenge to all who claim copying=theft. Provide me with a copy of your work with an indemnity from any lawsuit for copying except in the case that I am convicted of stealing the work. I'll copy it in a way you can prove, but non-commercially, then you report me to the police for theft. Once that fails, you shut up.

It's hard to get police to enforce the law, especially on white collar crime. And not just about 99c theft, but also billion dollar crimes. So you may be right in your theory, but the police argument is specious.

Re:Hmmmm (1)

torstenvl (769732) | more than 5 years ago | (#25562233)

Copyright infringement is not theft, by any reasonable and pertinent definition of the word.

Re:Hmmmm (5, Informative)

Eskarel (565631) | more than 5 years ago | (#25563095)

It doesn't. What it does is protect an individuals rights when being prosecuted for a crime.

Copyright Infringement in the United States is treated like a crime, the FBI will sieze your assets, you're faced with damages which are largely punative, and you're in violation of a criminal statute.

If you stole a CD from a store or a record executive's car you'd get a trial with a public defender(and a public prosecutor not a team of rabid dishonest RIAA lawyers), there's almost no evidenciary requirements, and the burden of proof is much lower. The kinds of proof which the RIAA currently uses to essentially convict people (yeah it doesn't go on your criminal record but 7 years of bankruptcy or a half a quarter of a million dollar fine is just as life wrecking) would barely be enough to get a warrant in a criminal case, and if a prosecutor tried the stunts they do they'd be thrown out of office.

The article of the author isn't saying that copyright infringement is legal, they're saying that prosecuting it in the manner which it is currently prosecuted is unconstitutional. Either make the fines for copyright infringement reasonable and based on damages with no minimum for fines and a requirement to separate out actual damages from punative damages so the juries know what they're doing to people the way they do in every other civil case, or allow defendents their rights as people being prosecuted under the criminal code.

Light on details. (4, Interesting)

BitterOak (537666) | more than 5 years ago | (#25561987)

I read the article, but it is rather light on details. Does anyone know if there is any case law or statute which holds that civil penalties can be considered criminal by virtue of the amount of the penalty? The argument seems to be that because the statutory damages are so huge that by that very fact the law becomes criminal rather than civil. What precisely is the basis for that conclusion? Is there any precedent for that reasoning?

Re:Light on details. (5, Informative)

technobabblingfool (1133901) | more than 5 years ago | (#25562205)

Does anyone know if there is any case law or statute which holds that civil penalties can be considered criminal by virtue of the amount of the penalty?

In a criminal statute, the common feature is a severe punishment for failure to comply. The punishments can include imprisonment, execution, fines, etc. In a civil statute, one party seeks compensation for 'damages' that have been incurred at the hands of the other party. The argument is that the law that the RIAA uses has such severe penalties that are so far beyond the 'damages' that the law itself is really a criminal statute seeking to punish the wrongdoer for failing to comply rather than awarding damages to the injured party.

Re:Light on details. (5, Informative)

BitterOak (537666) | more than 5 years ago | (#25562769)

In a civil statute, one party seeks compensation for 'damages' that have been incurred at the hands of the other party. The argument is that the law that the RIAA uses has such severe penalties that are so far beyond the 'damages' that the law itself is really a criminal statute seeking to punish the wrongdoer for failing to comply rather than awarding damages to the injured party.

Actually, civil judgements can include punitive damages as well as actual damages, and punitive damages, by their very definition are in excess of the amount of injury suffered by the plaintiff. The idea is to serve as a deterrent to others who might engage in similar conduct. I was asking if there is any precedent in case law for classifying civil cases as criminal cases based solely on the amount of damages assessed. In other words, is this idea just some new theory that this law professor cooked up, or is there case law to back it up?

Re:Light on details. (3, Interesting)

absoluteflatness (913952) | more than 5 years ago | (#25562911)

Even though this tactic seems pretty unlikely to succeed, the issue that's being pointed out seems to be that the statutory damages are so high.

Punitive damages can be sky-high, but I don't think that the RIAA generally seeks them.

Re:Light on details. (4, Informative)

Bazzargh (39195) | more than 5 years ago | (#25562873)

The motion itself has this:

As stated by the Supreme Court in Int'l Union v. Bagwell, 512 U.S.
821 (1994), distinguishing criminal from civil contempt, a
"flat, unconditional fine" totaling even as little as $50.00
announced after a finding of contempt is criminal if the
contemnor has no subsequent opportunity to reduce or avoid the
fine." Id., at 829.

Thats the only precedent they site in support of this part of the argument
  - there's a heck of a lot more to support their argument that the RIAA
are abusing the courts. But this one claim seems pretty thin.

However that case was about civil versus criminal /contempt/ fines,
and pretty much all the cases citing it seem to be about contempt [google.com] .
IANAL, but it looks like even this precedent might be a bit of a reach.
Good luck to them though :)

Re:Light on details. (2, Interesting)

taustin (171655) | more than 5 years ago | (#25563043)

I don't recall any details, but there is a SCOTUS ruling that civil forfeiture laws (in this case, seizing several hundred thousand dollars for violating import laws requiring the declaration of money) were, in fact, criminal penalties, and thus subject to the constitutional restrictions on excessive fines.

It Never Ends (5, Interesting)

sexconker (1179573) | more than 5 years ago | (#25562005)

How many times have I heard about a be-all end-all case where the RIAA/MPAA/etc has lost, been laughed by a judge, had a precedent set against them, etc.?

They'll continue to sue.

Nothing will stop them.

Re:It Never Ends (1)

Finallyjoined!!! (1158431) | more than 5 years ago | (#25562163)

Quite right, the tossers are fighting for their very lives. They'll only stop when their wedge runs out.

Unlimited coke & whores is a mighty fine motivator.

Re:It Never Ends (5, Insightful)

moosesocks (264553) | more than 5 years ago | (#25562199)

They'll continue to sue.

Nothing will stop them.

The DoJ or Supreme Court certainly could.

Why aren't any racketeering/trustbusting laws coming into play here? The actions of the RIAA/MPAA are increasingly resembling those of a band of criminals.

Re:It Never Ends (5, Insightful)

pak9rabid (1011935) | more than 5 years ago | (#25562715)

Why aren't any racketeering/trustbusting laws coming into play here? The actions of the RIAA/MPAA are increasingly resembling those of a band of criminals.

As are the actions of a good chunk of our congressmen.

Re:It Never Ends (1, Funny)

Anonymous Coward | more than 5 years ago | (#25562849)

Why aren't any racketeering/trustbusting laws coming into play here?

Ever heard of lobbying [wikipedia.org] ?

suddenoutbreakofcommonsense (0)

Anonymous Coward | more than 5 years ago | (#25562009)

tagged

A trivial semantic rant (5, Insightful)

philspear (1142299) | more than 5 years ago | (#25562237)

This is of no real importance, but the "suddenoutbreakofcommonsense" has struck me as often being misapplied for a while. Here it is especially flagrant.

First of all "sudden." This doesn't seem very sudden, the prof doesn't appear to have suddenly thought "Oh crap! We've been going about this all wrong!" and published it on his blog. This seems like something that was more considered.

Outbreak: It sounds like it's just one guy suggesting this interpretation. For it to be an outbreak, there would have to be other constitutional scholars jumping on board, right? There are plenty of slashdotters who are going to be jumping on board, but that's not really "catching" the "maybe the RIAA is wrong" bug, that's just adding to the long list of reasons we already had.

This isn't common sense, this is an interpretation of constitutional law, something that doesn't work much by common sense, especially not in recent history.

A real case the tag could have been applied was when everyone started realizing that when we have a misfortune, like getting sick, it might not be because God is punishing us for something we did. That's an outbreak of common sense. This is more properly tagged "aguyhasanothergoodreasontheRIAAsucks."

Take that for what it's worth (about half a penny, probably.)

No Attorney (5, Interesting)

arizwebfoot (1228544) | more than 5 years ago | (#25562057)

I'm not an attorney, but somehow this doesn't seem like it's gonna fly. The law was not codified as criminal, and thusly lies the fatal flaw in TFA.
Congress has many times passed laws which were punitive without being criminal. For example, the Fair Debt Collection Practices Act (FDCPA) has punitive statutory damages in it.

I just don't think the argument will eventually hold much water, wish it held enough to float a battleship, but alas, I don't think so.

Re:No Attorney (2, Interesting)

MarkvW (1037596) | more than 5 years ago | (#25562443)

The labeling matters not a bit. The criminal/civil distinction turns entirely on matters of substance, not form. This is noncontroversial.

Re:No Attorney (0)

Anonymous Coward | more than 5 years ago | (#25562743)

Except that what the constitution says isn't much paid attention to these days. Congress already believes it can change reality merely be slapping a different label on it.

Re:No Attorney (1)

Cracked Pottery (947450) | more than 5 years ago | (#25562727)

IANAL, but it seems to me that the standard of proof for criminal penalties is reasonable doubt, for civil penalties it is preponderance of evidence. That is the distinction that appears to be made.

Agreed (0)

Traze (1167415) | more than 5 years ago | (#25562111)

This SHOULD be criminal. If it is against the law, it's criminal. Also, if it is NOT criminal, the "fines" or reward for damages should reflect what the company/artist lost. Seeing as how the lack of $1-$10,000 isn't really effecting them, it should be cost. Just my 2 cents.

Re:Agreed (0)

Anonymous Coward | more than 5 years ago | (#25562449)

Your penultimate sentence makes no sense whatsoever.

AFFECTING. ffs.

"Against the law" vs. "Criminal" (4, Informative)

DragonWriter (970822) | more than 5 years ago | (#25562595)

If it is against the law, it's criminal.

That's not true at all. Torts and breaches of contract are "against the law" without being criminal. As are all kinds of action by the federal government which exceed its Constitutional authority. If it is criminal, it is against the law, but the converse is not true.

It doesn't matter (1)

martinw89 (1229324) | more than 5 years ago | (#25562129)

I've heard that Joel Tenenbaum has stomach cancer so this won't matter. He's dying. Well, he's not dying. Except that he's dying.

Which Joel Tenenbaum? (1)

Mathinker (909784) | more than 5 years ago | (#25562291)

The one that RIAA is suing is pretty young [harvard.edu] .

Re:Which Joel Tenenbaum? (1)

martinw89 (1229324) | more than 5 years ago | (#25562417)

That was in reference to the Royal Tenenbaums, which is also where the department gag comes from.

unconstitutional "convienience" (1)

ITEric (1392795) | more than 5 years ago | (#25562137)

While I, too, am a little fuzzy on why this would effectively classify as a criminal law, I certainly hope the RIAA is finally put in its place. I'm afraid the constitutionality issue will not help, though. It seems to me that the Supreme Court usually decides what outcome it wants and then applies whatever backward, convoluted logic it can to justify their position (assuming they don't just refuse to hear the case). The speeding analogy was really good though, wasn't it?

Great News (1)

areusche (1297613) | more than 5 years ago | (#25562147)

I knew this was eventually going to come to an end. I wasn't sure, but I'm happy that now I can safely know that this organization can just be quiet.

My question however is Ray Beckerman. I haven't been reading or seeing his comments as of late. Is he doing well? The last I heard of him was a Slashdot article saying he was hushed against blogging on a case.

Re:Great News (2, Informative)

TechForensics (944258) | more than 5 years ago | (#25562817)

You may have heard the media interests sued Beckerman directly in an attempt to silence him. That suit may be taking some of his time.

Re:Great News (1)

Wiseleo (15092) | more than 5 years ago | (#25562851)

You can stay in touch with Ray at http://recordingindustryvspeople.blogspot.com/ [blogspot.com]

I see recent posts referencing Slashdot, so it's probably business as usual.

Re:Great News (1)

moderatorrater (1095745) | more than 5 years ago | (#25562899)

http://yro.slashdot.org/~NewYorkCountryLawyer/ [slashdot.org]

He was all over the story about a judge telling the RIAA not to bankrupt people. I'm guessing that, unless he submitted the story, he doesn't pay too close attention to it. I doubt he's all that interested in the latest fibre optic wire being able to include silicon.

Ya don't say.. (5, Interesting)

QuantumG (50515) | more than 5 years ago | (#25562151)

Current copyright practice violates every amendment..

1. [findlaw.com] Used to quash free speech.
2. [findlaw.com] We need a violent overthrow of the RIAA.
3. [findlaw.com] The Sony root kit is like billeting soldiers on their war on copying in my house.
4. [findlaw.com] They have no respect for my privacy and all their searches are unreasonable.
5. [findlaw.com] They'd like you to believe that doing normal things with their products makes you a criminal.
6. [findlaw.com] There's no due process in civil cases.
7. [findlaw.com] The right to a jury trial in a civil matter is pointless, seeing as the judge instructs the jury to uphold the law even though the law is stupid and everyone knows it.
8. [findlaw.com] Oh, that's what the article is about, excessive stupidity.
9. [findlaw.com] like, say, the right to use my copy machines to copy whatever the fuck I want.
10. [findlaw.com] redundant much?
11. [findlaw.com] The TRIPS agreement and the Berne Convention are examples.
12. [findlaw.com] Lobbying undermines.
13. [findlaw.com] Without freedom to copy, we're all slaves.
14. [findlaw.com] Lobbying.
15. [findlaw.com] Criminal copyright infringement convictions (wtf? When did that happen?) means you can't vote.
16. [findlaw.com] No property tax for copyright?
17. [findlaw.com] Lobbying.
18. [findlaw.com] You have to be drunk to understand copyright law.
19. [findlaw.com] umm... err.. Lobbying, yeah.
20. [findlaw.com] Lobbying.
21. [findlaw.com] See 18.
22. [findlaw.com] Lobbying.
23. [findlaw.com] Lobbying.
24. [findlaw.com] Lobbying.
25. [findlaw.com] Lobbying.
26. [findlaw.com] Lobbying.
27. [findlaw.com] Did I mention Lobbying?

Re:Ya don't say.. (0)

Anonymous Coward | more than 5 years ago | (#25562457)

You have to be drunk to understand copyright law.

I thought you were joking until I saw you were modded Interesting. Most of those examples are quite a stretch.

Re:Ya don't say.. (1)

QuantumG (50515) | more than 5 years ago | (#25562481)

Hint: I don't mod myself.

I was joking.

NESSON (5, Informative)

torstenvl (769732) | more than 5 years ago | (#25562165)

His name is Charles Nesson, not Charles Neeson.

I would know. He's my professor.

Re:NESSON (1)

Brain Damaged Bogan (1006835) | more than 5 years ago | (#25563163)

his name is Robert Paulson

The other side (2, Interesting)

dracocat (554744) | more than 5 years ago | (#25562193)

While I hope they succeed in eliminating this law for good, there is another side to this.

I think that congress is within its rights to set specific damages to things that are hard to place a value on. The OP says that damages should be 99 cents per song. How many people did that person share the song with? Does an average user share the song 1000 times?

I think another analogy would be that of the Do Not Call registry. There is a specifc dollar amount that you can claim as damages. This is because it is hard to place a value on the time and annoyance the average person was caused by the phone call. So they place a set amount on it.

Again, hope they suceed, but it isn't as cut and dry as we would all like to think.

Re:The other side (1, Interesting)

Anonymous Coward | more than 5 years ago | (#25562297)

I believe Congress is only within their right to protect the CITIZENS and not CORPORATIONS. I see nothing in the Constitution that speaks of rights for corporations but I do see many things that speak of the rights of the people.

Re:The other side (2, Insightful)

AshtangiMan (684031) | more than 5 years ago | (#25562803)

I agree. And one of the big problems we in the US face is that IIRC back in the 50s or so corporations were granted person status in terms of the constitution. That should be undone.

Re:The other side (2, Informative)

MadUndergrad (950779) | more than 5 years ago | (#25562349)

The OP says that damages should be 99 cents per song. How many people did that person share the song with? Does an average user share the song 1000 times?

If the average user shares song X 1000 times, then the average user downloads song X 1000 times. Who the hell downloads a given song 1000 times? Most/all p2p is not streaming. They'd download it several times, tops. The average user thus only shares a given song maybe 2 or three times. Without proof to the contrary, that is what has to be assumed.

Re:The other side (1)

dracocat (554744) | more than 5 years ago | (#25562405)

Good point. Although I wonder what the average leach to uploader ratio is. How many people have installed a p2p client and have no idea how to open a port on their little router at their house to enable uploading?

Re:The other side (1, Informative)

Anonymous Coward | more than 5 years ago | (#25562503)

Correct me if I'm wrong, but I think the average seed/leech ratio is by definition going to be 1. (for every upload, there will be a corresponding download).

Re:The other side (0)

Anonymous Coward | more than 5 years ago | (#25562947)

Obviously you know nothing of BitTorrent.

Do check it, though. And all of the other major clients. Your point hasn't been relevant for almost a decade.

Re:The other side (1)

HTH NE1 (675604) | more than 5 years ago | (#25562573)

If the average user shares song X 1000 times, then the average user downloads song X 1000 times. Who the hell downloads a given song 1000 times?

That doesn't make sense. More like if the average user shares song X 1000 times, then the average user has an average of 1000 friends. So who the hell has a thousand friends? More like the artist has a thousand fans who like song X and download music. And they're still not likely to all download from one person.

Re:The other side (1)

moxley (895517) | more than 5 years ago | (#25562717)

I'd say nothing can be assumed when it comes to penalizing people for acts which no officer has witnessed and plantiffs cannot prove definitely occured (other than the copy which they themselves downloaded, which should be some form of entrapment), especially when you are talking about the sort of severe penalties they are.

The problem here is that the way technology is trending (towards openness, decentralization) is heading opposite of the direction governments and laws are heading (towards more laws, repressive laws, loss of freedom and rights for the average citizen).

I see a confrontation coming, and this copyright issue provides one window to it - between this and the constant "cyberterrorism" scare being foisted upon the public they will lead the people towards more government control online, definitive ID online, etc - and that's fucked IMO.

Uh, no, your math sucks. (1)

raehl (609729) | more than 5 years ago | (#25563133)

You conclusion is only valid if:

- Users share/upload the same number of songs they download
- Only one song exists.

If there, were, for example, 1,000 different songs, each user could share/upload one song 1,000 times, and each user could download each of the 1,000 songs once.

Not to mention that most users download more songs than they upload/share. So you could have one user upload/share a song 1,000 times, and have 1,000 users who downloaded the song once but didn't upload/share crap.

Missing some details... (5, Informative)

randalotto (1206870) | more than 5 years ago | (#25562209)

For one, the guy's name is Nesson, not Neeson. Also, he is both incredibly brilliant, (one of the very few people to graduate summa cum laude from Harvard Law School,) and incredibly eccentric. He's the sort of guy who will give final exams in Second Life or let people create an original Youtube video instead of the traditional test. Here's his class's page about this whole issue: http://blogs.law.harvard.edu/cyberone/riaa/ [harvard.edu]

Re: incredibly brilliant eccentric FTW! (1)

TaoPhoenix (980487) | more than 5 years ago | (#25562867)

Good. We need more of those on the consumers' side. And maybe a gamer or two. We're all kinda saying that their crusade has to fall, but we haven't seen the shut-down proof yet. Something irrefutable and easy.

Kinda like:
(RIAA vs. Joseph Helviticus Schmoe, Esq.)
Counsel for the defense:
"Your honor, so we established these penalties per infringement, right?"
"Yes"
"Okay, So the 3,828 400 GB hard drives from Plaintiff which each have 27,000 infringing are in violation, right? Please ask Plaintiff to pay first. Now, seven seconds later, please begin bankrupty proceedings." ::Crickets::

The argument merits consideration. (5, Interesting)

MarkvW (1037596) | more than 5 years ago | (#25562219)

I have had to deal with the civil/criminal distinction as it arises in cases involving contempt. Civil contempt must be remedial; if it is not remedial it is punitive; if it punitive, then the accused gets the full panoply of criminal due process.

On the other hand, common-law punitive damages do not offend due process. But punitive damages are usually imposed by juries, based on individualized determinations, and limited by discretion. The copyright provisions are not individualized and provide for no discretion.

Treble damages have also been held not to violate due process.

This is a very interesting argument!

Persuading Congress (1, Informative)

sjames (1099) | more than 5 years ago | (#25562259)

If this leads where it SHOULD, it will take more than persuading Congress to get this hole in their plans patched. The theoretical new law would either have to provide for more like the actual value ($0.99) or treble damages if willful ($2.97).

Anything else would be a HUGE uphill battle to amend the Constitution and would require buying off 3/4 of the state legislatures. Unlike typical Congressional bribery, they would have to pay enough for each legislator to retire to another country since such a move would be at least the end of their political career and quite possibly leave them nowhere safe to live in the U.S.

People get a bit more picky about crooked legislators when they start messing with the Constitution directly.

Re:Persuading Congress (1)

ArtemaOne (1300025) | more than 5 years ago | (#25562719)

They would have to leave the country? This country is full of lazy people. Watch out law-makers, I'll blog if you do that!

Re:Persuading Congress (1)

taustin (171655) | more than 5 years ago | (#25562963)

Actually, what the *AA would need to do is what they are doing now: lobby Congress to make pretty much all copyright infringement criminal, with a federal law enforcement bureaucracy (copyright czar) to enforce and prosecute. This has been the IP's goal for some time, as it removes the cost of enforcement from the "victim" and places it on the public. Which is to say, they not only want to put you in prison for playing your own CD for your friends on your own stereo without a performance license, they want to force you to pay for your own prosecution with your taxes.

Re:Persuading Congress (0)

Anonymous Coward | more than 5 years ago | (#25562967)

If this leads where it SHOULD, it will take more than persuading Congress to get this hole in their plans patched. The theoretical new law would either have to provide for more like the actual value ($0.99) or treble damages if willful ($2.97).

Anything else would be a HUGE uphill battle to amend the Constitution

Or you could end-run the whole issue and pass a law declaring P2P copyright infringement to be a criminal rather than civil matter.

Of course, that would require the Government, rather than the copyright holders, to bring the prosecution. This probably require instituting some sort of "Copyright Czar" at the Federal level to coordinate things. Of course, we all know that will never happen [slashdot.org] .

Why The RIAA Charges so much (0)

Anonymous Coward | more than 5 years ago | (#25562365)

I think the RIAA's reasoning for charging so much is based on the principle that the user shares the song with an infinite number of other users. I am not advocating for the RIAA, I am just pointing out the blurb above did not contain why the RIAA charged so much. Plus, the position filed with the court uses the speeding analogy, which I think is wholly flawed.

This does not change the fact that what the RIAA is doing is wrong. And, it is probably unconstitutional as well.

Re:Why The RIAA Charges so much (1)

TechForensics (944258) | more than 5 years ago | (#25562785)

I think the RIAA's reasoning for charging so much is based on the principle that the user shares the song with an infinite number of other users.

This thinking amounts to an unreasonable aggregation of statutory damages which Professor Neeson likens, in this case, to a criminal penalty, improperly used to empower the media industry.

Let's stop talking about the RIAA-- it is Sony, Warner, Universal / BMG, etc. that deserve our vengeance for the nightmare they have wrought, falsely, in the Law's name.

Until They Can Persuade Congress... (1)

CodeBuster (516420) | more than 5 years ago | (#25562433)

Well, that shouldn't take too long given the propensity of previous Congresses, controlled by whichever party, to extend copyright, increase statutory damages, and generally do just about anything that the MAFIAA asks them to do. The only hope for consumers is that constitutional challenges to the existing copyright laws, probably brought within the context of the ongoing file sharing lawsuits (the Boston judge named in this [slashdot.org] story discussed previously on Slashdot has allowed at least one defendant to amend his answer to the lawsuit to include constitutional claims, so these constitution issues will come up if the RIAA continues its litigation campaign), lead to the Supreme Court striking down some of the more onerous restrictions and punishments.

probably won't fly, but good luck (2, Interesting)

azakem (924479) | more than 5 years ago | (#25562483)

This is an interesting argument, but there are other statutes which impose minimum damages, and these have generally been upheld.

However, given the size of the damages here and the funds of the average defendant, perhaps the Court will find Congress has overstepped its bounds. I wouldn't count on it though, if this were to somehow succeed at trial and percolate up to the Supreme Court, the "pro-business" members of the bench would likely get a majority for reversal.

Be careful what you ask for (4, Interesting)

westlake (615356) | more than 5 years ago | (#25562521)

The market value of a song is 99 cents on iTunes
.

But that song does not come with a license to redistribute.

You cannot, without consequences, and as a charitable gesture, simply burn 10,000 copies and airdrop them onto a city park.

Assume for the moment that a download could be tagged to its ultimate source - meaning you.

Assume for the moment that traffic in that file could be monitored or estimated in a way that would be persuasive to a civil judge and jury.

Where expert testimony is generally admissible and the burden of proof on the plaintiff is slight.

The files you uploaded have been out there for months. Do you really, really want the damages to be assessed at 99 cents a track?

As compensatory damages - which are generally unlimited?

Re:Be careful what you ask for (1)

azakem (924479) | more than 5 years ago | (#25562713)

I believe the statute only sets minimum damages for willful infringement, not maximum damages. So, if the plaintiffs were able to collect this type of data and present it in court they would already be doing so. Granted, if the statutory minimums were eliminated, there would be more incentive to develop a means to track how many times a file has been distributed.

Re:Be careful what you ask for (2, Insightful)

Endo13 (1000782) | more than 5 years ago | (#25563135)

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

From The Brief (2, Insightful)

TechForensics (944258) | more than 5 years ago | (#25562643)

I had tears in my eyes when I finished reading this:

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

I hate that I'm about to say this... (1)

Enderandrew (866215) | more than 5 years ago | (#25562787)

...but in defense of the law, the RIAA, and the concept here, the person isn't just making a personal copy. If they commit copyright infringement, the theory is that they're distributing and enabling a chain of other people to receive copies.

That being said, $150,000 is ridiculous and the RIAA is evil.

Re:I hate that I'm about to say this... (1)

mewshi_nya (1394329) | more than 5 years ago | (#25562971)

You cannot be held accountable for the actions of others.

Re:I hate that I'm about to say this... (1)

Enderandrew (866215) | more than 5 years ago | (#25563103)

If I were to wear and eye-patch and download something from a P2P network, I am not committing infringement by downloading. The person who distributed the copy has committed the violation for making a copy to distribute to me.

The distributor is not accountable for my action, but rather for their action of distribution.

That is how the law works, not my interpretation of right and wrong.

There are some interesting precedents occuring while the MPAA/RIAA are losing "making available" cases which almost go completely against my previous statement. Those rulings suggesting sharing the file isn't a violating unless you prove someone downloaded it from you. Yet, in theory, I'd say attempting to share/distribute would be infringement, even if you can't prove that people took you up on it.

That being said, I think penalties should all be minimal unless you can prove that specific damages occurred. When the Ang Lee's Hulk came out in 2003, the box office was far below industry expectations. Part of that might have been a disappointing movie, but word of mouth can only affect opening weekend so much. Usually word of mouth affects the second week of release. However, the movie leaked on P2P networks a full week before release. They count contend piracy caused tens of millions of dollars in lost revenue. They can't just make up numbers like the MPAA/RIAA like to, but industry experts not working for the MPAA and RIAA did speculate on box office numbers. You could attempt to use those in a case.

Nullification by jury (1)

bluefoxlucid (723572) | more than 5 years ago | (#25562835)

At core his defenses and counterclaim raise a profoundly conceptual question: Is the law just the grind of a statutory machine to be carried out by judge and jury as cogs in the machine, or do judge and jury claim the right and duty and power of constitution and conscience to do justice?

The jury can decide the law sucks and needs to die, and command such. We allow a jury to preside over civil and criminal cases because it allows a random assortment of ordinary people to make judgment on the law. The people have spoken, the law sucks, remove it, end of story.

obama supports the riaa (-1, Troll)

Anonymous Coward | more than 5 years ago | (#25562927)

and he also supports fucking white women and making white men suck on his dick as restitution for slavery. if you're white you are guilty in his eyes and he'll make sure you know if for his term in office.

2008. the first election won by playing the race card.

get use to it white boy. there will be no social programs for you.

Does it matter whether it's criminal for the 8th? (4, Interesting)

91degrees (207121) | more than 5 years ago | (#25563019)

"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

Sounds to me that this is an excessive fine and the amendment applies whether it's criminal or civil. What am I missing here?
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