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Constitutionality of RIAA Damages Challenged

ScuttleMonkey posted more than 4 years ago | from the too-bad-common-sense-and-the-law-don't-mix dept.

The Courts 360

NewYorkCountryLawyer writes "In SONY BMG Music Entertainment v. Tenenbaum, the defendant has filed a motion for new trial, attacking, among other things, the constitutionality of the jury's $675,000 award as being violative of due process. In his 32-page brief (PDF), Tenenbaum argues that the award exceeded constitutional due process standards, both under the Court's 1919 decision in St. Louis Railway v. Williams, as well as under its more recent authorities State Farm v. Campbell and BMW v. Gore. Defendant also argues that the Court's application of fair use doctrine was incorrect, that statutory damages should not be imposed against music consumers, and that the Court erred in a key evidentiary ruling."

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Let me be the first to express this sentiment. (2, Funny)

Anonymous Coward | more than 4 years ago | (#30647764)

Duh.

Let me be the second! (0, Redundant)

jornak (1377831) | more than 4 years ago | (#30647812)

Duh

Re:Let me be the second! (0, Offtopic)

Chees0rz (1194661) | more than 4 years ago | (#30647968)

C-C-C-Combo Breaker BREAKER before this gets carried away

Re:Let me be the second! (-1, Troll)

Anonymous Coward | more than 4 years ago | (#30648020)

The best way to do that: NIGGERS!

Good luck on that one (5, Insightful)

larry bagina (561269) | more than 4 years ago | (#30647808)

These are a bunch of guys who have a hard time understanding "shall make no law" and "shall not be infringed"

Re:Good luck on that one (5, Interesting)

Anonymous Coward | more than 4 years ago | (#30647894)

All I want to know is who maintains the public register of free music? If each of these defendants is paying for damages of a given song for an industry's worth of consumers, then surely that song is now trued-up and effectively public domain. So where's the register of music that's been bought for me so I can collect?

Re:Good luck on that one (4, Funny)

PopeRatzo (965947) | more than 4 years ago | (#30648750)

So where's the register of music that's been bought for me so I can collect?

The Pirate Bay dot org.

Re:Good luck on that one (4, Funny)

hack slash (1064002) | more than 4 years ago | (#30649040)

I'll always remember the quote of a fellow IRCer back when Napster was like a free version of iTunes:

"Napster's great, you can download all the tracks you were too embarrassed to buy in the shops"

Re:Good luck on that one (2, Insightful)

EzInKy (115248) | more than 4 years ago | (#30648988)

Not quite the same, but the U.S. had a fairly sane copyright registration system before signing on to Berne. It just makes sense that people who care about protecting their works would register and people who don't, won't.

Re:Good luck on that one (1)

sunderland56 (621843) | more than 4 years ago | (#30647982)

These are a bunch of guys who have a hard time understanding "shall make no law" and "shall not be infringed"

Say what? The RIAA may be evil, but I don't think they are trying to either enforce a religion or restrict your access to guns.

Well, not yet, anyway.

Re:Good luck on that one (4, Informative)

donaggie03 (769758) | more than 4 years ago | (#30648024)

I think GP was talking about they judges. They can't understand basic phrases like "shall not" so they allow grossly unconstitutional laws to remain in effect instead of striking them down. Of course, there's always some asinine reasoning of why such and such is an exception to constitutional limitations, but they are usually BS reasons.

Re:Good luck on that one (2, Funny)

dotwaffle (610149) | more than 4 years ago | (#30648224)

They obviously need to read RFC2119 then...

Re:Good luck on that one (1)

wintermute1974 (596184) | more than 4 years ago | (#30648956)

If anyone is truly interested in this, then they should google "Billion Dollar Charlie" who is the MIT Professor running the show here.

Also, there's a good interview on the Podcast "Search Engine" with Charles. You're clever enough. I'll let you find it.

Obligatory... (0)

Anonymous Coward | more than 4 years ago | (#30647822)

This will be viewed as the proverbial "Turd in the punch-bowl". From what I have been able to infer from reading about these various cases, it is NEVER good to tell the judge that he did something W.. Wr... Wrro..... "WRONG"... (props to the Fonz). I do hope this and the other cases are viewed properly and have all the due backlash inferred,(complete refusal to purchase RIAA material, boycotting, picketing etc. etc. etc.).

Re:Obligatory... (4, Insightful)

AuMatar (183847) | more than 4 years ago | (#30647976)

Thats what an appeal is. You list a large number of things you think the judge did wrong, and ask a higher court to overrule them. This is everyday stuff here.

Re:Obligatory... (1)

gmhowell (26755) | more than 4 years ago | (#30648718)

Until you prevail, return to the lower court, and the judge finds some more devious way to rip your nuts off. This is everyday stuff here.

Re:Obligatory... (0, Offtopic)

ClosedSource (238333) | more than 4 years ago | (#30648894)

Are you talking about MS and Judge Jackson?

still flogging this old dead horse? (-1, Flamebait)

Anonymous Coward | more than 4 years ago | (#30647830)

Life is so easy for those people like me who go to itunes and pay a huge scary 99 cents when we buy a song we like.
I have fuck all sympathy for those who not only pirate music instead, but when they get caught red handed they act like they are being persecuted.

grow up and pay the fine when you get caught for actually knowingly breaking the law. How about that for a radical idea?

Re:still flogging this old dead horse? (4, Insightful)

moz25 (262020) | more than 4 years ago | (#30647888)

Sure, he should pay a fine.

One in the order of, say, $675, not $675000.

Re:still flogging this old dead horse? (2, Interesting)

Monkeedude1212 (1560403) | more than 4 years ago | (#30648190)

He offered $500 to Sony, to my knowledge, and they turned him down and have now succeeded in the big bucks.

Re:still flogging this old dead horse? (3, Insightful)

selven (1556643) | more than 4 years ago | (#30647892)

Grow up and pay the $675,000 fine for sharing 30 songs?

Re:still flogging this old dead horse? (1)

spiffydudex (1458363) | more than 4 years ago | (#30647940)

There is a difference between fair use and pirating.

Re:still flogging this old dead horse? (1)

sbeckstead (555647) | more than 4 years ago | (#30648326)

And the judge just told you what that is. Fair use is an affirmative defense against a copyright suit. But it's never given that what you are doing is fair use. There is no such thing as fair use in the actual copyright law ,only in preceding case law. I'm with the guy that says "Pay the 2 bucks" (which is a very funny skit that reminds me so much of this case).

Just in case no one has heard the "Pay the 2 Bucks" skit it goes something like this:
A guy spits on the sidewalk and a cop sees it. He gets a ticket. He's taking to his lawyer and the lawyer says, don't pay it I can get you off. They go to court and it goes completely wrong, the poor guy is thrown in jail. He tells his lawyer next time he sees him to "Pay the 2 bucks". But his lawyer says I can get you out of this just wait. Two days later the guy hears them building a gallows outside his window and he tells his lawyer, boy that guy must have really screwed up huh? and the lawyer says, no that's for you, the guy says in a panic, "Pay the 2 bucks!" but his lawyers laughs it off and says never mind that I can get you out of this...At the pearly gates, the guy spits on the sidewalk and he gets a ticket from a passing angel cop, the guy behind him says, here I'm a lawyer I can get you out of that! but the Guy says OH no you don't that's how I got here. I'm paying the 2 bucks this time!
It was much funnier when it was done by Sid Caesar.

Re:still flogging this old dead horse? (2, Funny)

PopeRatzo (965947) | more than 4 years ago | (#30648818)

It was much funnier when it was done by Sid Caesar.

Much.

Re:still flogging this old dead horse? (1)

Theaetetus (590071) | more than 4 years ago | (#30648520)

There is a difference between fair use and pirating.

Yeah. This wasn't fair use. They lost on that one, even though Tenenbaum tried to create a whole new definition of what fair use was that was basically "it's not fair!" Makes you really wonder about the quality of Harvard Law School's IP department...

Re:still flogging this old dead horse? (2, Insightful)

PopeRatzo (965947) | more than 4 years ago | (#30648790)

There is a difference between fair use and pirating.

And there is a difference between sharing mp3 files and pirating.

Re:still flogging this old dead horse? (0)

Anonymous Coward | more than 4 years ago | (#30647952)

well 750k is kind of a lot. The whole 'making available to lots of people' isn't really premeditated anymore (like it was before the internet) so completely ruining someone isn't the right answer. Though I hope you sleep well at night, knowing YOUR MUSIC WONT WORK IN xx YEARS HAH.

Re:still flogging this old dead horse? (5, Insightful)

phantomfive (622387) | more than 4 years ago | (#30648002)

It's not the fact that a 'pirate' got punished that is at issue here, it's the fact that the penalty is so large it will probably push the defendant into bankruptcy; it is a penalty significantly larger than the damages suffered by the record companies, and perhaps most importantly, it is a penalty that was designed to punish an entirely different class of pirates (commercial pirates who manufacture and widely distribute copies of music for a nice profit. In that case the profit motive is large, so the deterring punishment should also be large).

Personally, I think people should pay the artists for their work, they should pay the recording industry for their work, and if the music isn't worth 99 cents to them, they shouldn't get the music. But we as a society shouldn't destroy someone financially just for downloading a few songs. The punishment should match the crime, which in this case was small.

Re:still flogging this old dead horse? (1)

LostCluster (625375) | more than 4 years ago | (#30648136)

RIAA/MPAA's classic settlement offer is whatever-you-have plus a dollar. Their intent is to cause a "I lost everything, don't do what I did!" example.

Re:still flogging this old dead horse? (3, Informative)

harlows_monkeys (106428) | more than 4 years ago | (#30648734)

RIAA/MPAA's classic settlement offer is whatever-you-have plus a dollar

Bull. Their settlement offer is almost always a few thousand dollars, tops.

Re:still flogging this old dead horse? (5, Informative)

Delwin (599872) | more than 4 years ago | (#30648234)

Except that punitive damages is one of the select few things you cannot get rid of in bankruptcy. that means that unless this person is well above the median income they will never pay this off in their lifetime and no matter how good a job they get they will be living in poverty for the rest of their life.

Re:still flogging this old dead horse? (1)

sbeckstead (555647) | more than 4 years ago | (#30648384)

Last I heard a punishment was supposed to hurt. But it should also fit the crime. Just because it bankrupts someone doesn't mean it was too big. Right now a $5000 fine could bankrupt me, so the actual size doesn't really matter that much. But yeah when you wiggle on the hook enough it makes the punishment that much harder to take I guess.

Re:still flogging this old dead horse? (4, Insightful)

Jahava (946858) | more than 4 years ago | (#30648550)

Personally, I think people should pay the artists for their work, they should pay the recording industry for their work, and if the music isn't worth 99 cents to them, they shouldn't get the music.

So let me begin with: Opinion Alert! The following post is pure speculation and opinion, but done with the utmost sincerity!

I agree with your point, but I'd like to note something that I believe to be true, namely that the only reason we can pay 99 cents for a movie is due to an industry adaptation that has been motivated in a large part by that very piracy. Prior to digital piracy pioneers like Napster, getting a single good song was not really an option. You had to buy an entire pricey CD. Downloading music legally also wasn't an option; you had to go to a store. The music industry created and funded the marketing, hype, publicity, content, and talent necessary to successfully Make Us Want Something, then failed to provide it at any reasonable price.

It is my belief that piracy is many things, among them a consumer movement in reaction to an unnaturally-imbalanced industry. Pirated music has, over the last fifteen years, frequently been a better product than that produced by the music industry. It was downloadable, accessible, and lacked both DRM and license management shenanigans [wikipedia.org] . It was a pure and simple solution to an otherwise unsolvable problem: a consumer movement!

Now, that doesn't make it right or ethical, but it doesn't make it evil either. The recording industry dragged their heels and did their very best (as they still are) to hinder the simple and fair distribution of their product, when that was exactly what consumers wanted. In response, consumers resorted to illegal activity, and most are better off for it.

The Napster of the past is what recording industries should have established years prior. A very significant impetus behind the current state of consumer-oriented legal music sharing like iTunes was (and is) perceived losses due to the piracy front. And look what we have now ... split albums, downloadable content, DRM-free songs ... It's done its share of good and then some. Piracy is forcing a hand that is using its own entrenched power to remain still, and the world is better for it.

Many people out there have pirated a significant share of music, and bought a significant amount as well. As legal avenues open (Amazon MP3 is great!), their usage of piracy has definitely declined. Nobody feels good about depriving someone of their just due, but it isn't always a bad thing to do so. Sometimes an illegal act is the only counterweight that one can provide.

Re:still flogging this old dead horse? (1)

Theaetetus (590071) | more than 4 years ago | (#30648634)

It's not the fact that a 'pirate' got punished that is at issue here, it's the fact that the penalty is so large it will probably push the defendant into bankruptcy; it is a penalty significantly larger than the damages suffered by the record companies, and perhaps most importantly, it is a penalty that was designed to punish an entirely different class of pirates (commercial pirates who manufacture and widely distribute copies of music for a nice profit. In that case the profit motive is large, so the deterring punishment should also be large).

Partially yes, and partially no. First, it's not necessarily "significantly larger" than the damages suffered by the record companies, because the damages weren't just 99 cents per track - maybe for his downloading, which infringed the right to copy, but not for his uploading, which infringed the right to distribute. 99 cents on iTunes doesn't buy you a license for unlimited duplication distribution, and no one can seriously argue it does.

That said, as you note, the damages were significantly larger than the RIAA should have gotten, because the jury didn't have a proper instruction on the definition of willfulness - which is required for the $150k limit. But, it's not just commercial pirates who are working for profit - Tenenbaum tried that argument, but it had no support in case law or the statute, even if it appeals to our sense of justice.

Rather, the true definition of willfulness is that the infringer acted maliciously or with fraudulent intent. This does cover the commercial pirates, but it also covers the malicious monopolist who willingly forgoes profit in order to crush his competition by widely distributing their copyrighted works. It also protects for-profit infringers who weren't malicious or fraudulent, but had a reasonable belief that their infringement was protected by fair use. The "commercial for profit" definition would reverse these last two - punish the well-meaning-but-wrong commercial infringer, and protect the Snidely Whiplash-mustache-twirler evildoer.

There's also support for the "malicious or with fraudulent intent" definition through the history of the copyright act, as well as the federal patent and trademark acts.

Basically, Tenenbaum should have faced $750-30k per song, not $750-150k per song.

Re:still flogging this old dead horse? (1)

phantomfive (622387) | more than 4 years ago | (#30649006)

But, it's not just commercial pirates who are working for profit - Tenenbaum tried that argument, but it had no support in case law or the statute, even if it appeals to our sense of justice.

The laws were made before even Napster was created. The people creating the laws didn't have file-sharing in mind when they were made, they were thinking of commercial piracy. Whether they actually cover file-sharing or not is more a matter of historical luck (or bad luck) than any sort of well-thought response to this particular issue. Our current copyright law wasn't designed to cover file-sharing.

Basically, Tenenbaum should have faced $750-30k per song, not $750-150k per song.

Legally, that's probably true. Realistically, it's probably a little harsh, since it's something probably 99% of us have done. We don't like to punish people too harshly for things that everyone does, even in cases when we know it's something we shouldn't do.

Re:still flogging this old dead horse? (1)

PopeRatzo (965947) | more than 4 years ago | (#30649014)

but not for his uploading, which infringed the right to distribute

Was there any evidence offered in this case that anyone's "right to distribute" was infringed because there were songs in this guy's "shared" folder? I get the feeling that there are a lot of logical leaps that have to be made before the preponderance of evidence shows that anyone actually received any songs from this particular guy.

Re:still flogging this old dead horse? (2, Insightful)

PopeRatzo (965947) | more than 4 years ago | (#30648868)

they should pay the recording industry for their work

In a digital age, exactly what is the work of the "recording industry"?

It should be re-named the "collection industry" because all they do is collect money from the work of others.

Re:still flogging this old dead horse? (1)

i_ate_god (899684) | more than 4 years ago | (#30649122)

they should pay the recording industry for their work

In a digital age, exactly what is the work of the "recording industry"?

It should be re-named the "collection industry" because all they do is collect money from the work of others.

Distribution costs don't negate production costs. It still costs lots of money to produce an album, whether you distribute it on CD or MP3.

I don't agree with the music industry, but as a musician, I do get pissed off when some people think production is cheap or free. It's not. It takes time, effort, and lots of up front costs. Just because it costs $100/month to distribute them online, it probably cost tens of thousands to produce it, and that's not including the cost of personal instruments.

Re:still flogging this old dead horse? (2, Informative)

Hatta (162192) | more than 4 years ago | (#30648070)

If the punishment for breaking the law is unconstitutional (cruel and unusual, excessive fines, etc) then no, you shouldn't just deal with it. In fact, levying such fines is illegal, and those pushing for them should grow up and deal with it.

Re:still flogging this old dead horse? (1)

LostCluster (625375) | more than 4 years ago | (#30648160)

That's the argument being made translated into slash-speak... let's see if that holds water.

Re:still flogging this old dead horse? (-1, Offtopic)

Anonymous Coward | more than 4 years ago | (#30648200)

Been nailed for speeding or running red lights recently, have we?

Re:still flogging this old dead horse? (5, Insightful)

vux984 (928602) | more than 4 years ago | (#30648208)

grow up and pay the fine when you get caught for actually knowingly breaking the law. How about that for a radical idea?

When I speed the fine is $350, when I let a parking meter run out the fine is $30. Were I to get into a fight and punch someone (misdemeanor assault) I'd face 2 weeks in jail and and $500 fine. Were I to steal a car I'd be facing maybe 1 year in jail, but in all likelihood would serve at most a couple months as a first time offender.

These are all reasonable punishments.

We're I to torrent my favorite artists discography (uploading it in the process, and thereby infringing copyright on several tracks), I would be fined... $675,000. Say what now? That's more than my house, cars, and everything in them are worth altogether. LOTS more. How is that reasonable?

I have fuck all sympathy for those who not only pirate music instead, but when they get caught red handed they act like they are being persecuted.

They ARE being persecuted. They commited a non-violent crime, for neglible personal benefit (they gain a few songs which can legally be obtained by borrowing a friends CD, recording them off a radio, or purchased for under a buck each), and which caused no real measurable harm to the copyright owner (at most the infringment in this act deprived them of a few hundred dollars due to lost sales... and that's highly debateable).

So sure I can see it being on par with shoplifting or something... a moderate fine 10 to 100 times in excess of the value of the items infringed to deter people from doing it seems reasonable. A few hundred to a few thousand dollars... sure no problem.

After all its pretty petty offense against society.

Fining them an amount that's greater than the value of their house, cars, and all their possessions seems a bit over the top for downloading a few albums.

Would you also support law that made loitering is a life sentence in maximum security prison? Making a rolling stop instead of coming to a complete stop is punished with hanging?

Why EXACTLY do you support bankrupting an entire family over p2p sharing a Britney Spears album?

Re:still flogging this old dead horse? (0)

Anonymous Coward | more than 4 years ago | (#30648782)

I think that the more pertinent question is: why are we in the position where we have to debate the severity of this punishment?

It's my belief that the punishment is so absurd compared to the offense not because the lawmakers have been lobbied into believing that the music industry suffers a loss, but into the perception that it undermines the very tenets of the capitalist religion. Scarcity must be seen to be maintained lest the "consumer" no longer be held captive.

Re:still flogging this old dead horse? (0)

Anonymous Coward | more than 4 years ago | (#30648796)

A few hundred to a few thousand dollars... sure no problem.

I'm sure the very first settlement offer was for a few thousand dollars. Tenembaum made a choice to roll the dice and put it in the hands of a jury.

(I'm not GP, I'm just avoiding a -1 disagree mod)

Re:still flogging this old dead horse? (1, Funny)

Anonymous Coward | more than 4 years ago | (#30648880)

sharing a Britney Spears album

This really isn't helping your argument about the punishment being too harsh.

Re:still flogging this old dead horse? (1, Interesting)

Anonymous Coward | more than 4 years ago | (#30649052)

Situation: Company takes code from GPL project, creates a proprietary version of the software, distributes the binary without distributing source.
Resolution: After lawsuit, company distributes with source code ... making themselves right with the license

Situation: Somebody uploads a copy of music they weren't authorized to copy.
Resolution: After lawsuit, the person is made to purchase a license for all the music they uploaded.

I think that seems reasonable.

Re:still flogging this old dead horse? (3, Insightful)

A nonymous Coward (7548) | more than 4 years ago | (#30648554)

So what is the punishment for exceeding constitutional limits on the punishment meted out?

You see, that's the problem here. Many other punishments have been ruled unconstitutional for being excessive, including fines and jail time all out of proportion. It's blatantly obvious to most people that millions of dollars for sharing music is excessive.

Let's suppose the appeal wins the day and the fine is declared excessive. Do you think any of the RIAA executives are going to be punished for all the previously collected fines? Do you think that's fair? Do you think they perhaps ought to grow up and pay the fine for actually getting caught?

Re:still flogging this old dead horse? (3, Insightful)

reverseengineer (580922) | more than 4 years ago | (#30648908)

The argument involved in bringing up the court cases cited in the summary is that the damage award involved in this RIAA case is unconstitutional, as it violates part of the Fourteenth Amendment: "nor shall any State deprive any person of life, liberty, or property, without due process of law;". The decision for BMW of North America, Inc. v. Gore laid out a set of guideposts for whether punitive damage awards are in violation of this clause:
  1. The degree of reprehensibility of the defendant's conduct
  2. the ratio to the compensatory damages awarded (actual or potential harm inflicted on the plaintiff)
  3. Comparison of the punitive damages award and civil or criminal penalties that could be imposed for comparable misconduct.

In my non-lawyer opinion, if awards were overturned in the Gore and Campbell cases under this rationale, there is a far stronger argument to be made here. The behavior of both BMW of NA (was selling slightly repaired cars as "new") and State Farm (had a secret internal scheme to cap payouts) could more reasonably be asserted as reprehensible than that of a music downloader. From a "ratio" standpoint, if you consider the actual damage from illegally downloading a song to be 99 cents as the parent implies, then for the 31 songs involved here, the ratio of punitive to actual is over 20000 to 1, far more than the 1000 to 1 in Gore and 145 to 1 in Campbell. And those were of course awards meant to have punitive effect on gigantic corporations, not to destroy the finances of a single private citizen. From a "comparable misconduct" standard, the $675,000 award is not in the same universe as the penalties for petty larceny if Mr. Tenenbaum had merely shoplifted physical copies of the same music.

I have gained this from musicology (2, Insightful)

sakdoctor (1087155) | more than 4 years ago | (#30647836)

I have gained this from musicology: That I refuse Sony BMG music downloads, that others only avoid from fear of the law.

Interesting! (1, Informative)

BigHungryJoe (737554) | more than 4 years ago | (#30647850)

A link to an old slashdot article, and 2 links to legal documents - one of which is 32-pages long!

Now THAT makes for some interesting reading... well, this is definitely one time that I will RTFA!

Re:Interesting! (1)

amnezick (1253408) | more than 4 years ago | (#30647896)

not to mention the summary is in legalese .. pfah

Thanks slashdot (1, Interesting)

Brian Gordon (987471) | more than 4 years ago | (#30647858)

Every time a defendant does anything in an RIAA trial, slashdot has to report it? He's already sentenced, it's over. This is just more general bleating about how unfair the award is. There's no reason Tenenbaum would get special treatment.. high damages paid to the RIAA have already held up in court and been denied further appeal..

Re:Thanks slashdot (2, Interesting)

NecroPuppy (222648) | more than 4 years ago | (#30647922)

To the best of my recollection (NYCL, a little help?), the constitutionality of the damages has never been challenged.

And even if it has, in one Circuit, that doesn't mean that it couldn't be challenged in another Circuit. Of course, if two Circuit Courts give different rulings on said topic, then it would almost certainly end up in front of the US Supreme Court.

Re:Thanks slashdot (0, Troll)

sexconker (1179573) | more than 4 years ago | (#30648060)

Of course, if two Circuit Courts give different rulings on said topic, then it would almost certainly end up in front of the US Supreme Court.

The Supreme Court takes on as few cases as possible. Because they're lazy and don't want to expose their corruptions, or, at the very best, they don't want to be seen as "rocking the boat".

Supreme Court Justices should not be appointed for life by the President. They should be elected by popular vote to a term of 10 years. Oh, and NO CAMPAIGNING OR PARTY AFFILIATION AT ALL should be allowed.

People wishing to vote on the matter would have to (assume gasping positions!) look up the candidate's prior rulings and think for themselves.

Re:Thanks slashdot (1)

conspirator57 (1123519) | more than 4 years ago | (#30648210)

because your say-so will keep such a popular election process apolitical... i think not.

Re:Thanks slashdot (4, Informative)

conspirator57 (1123519) | more than 4 years ago | (#30648114)

it takes two different cases to get two circuits finding the opposite of one another. When that happens, the Supreme Court *MUST* hear the case(s) to resolve the discrepancy. It is one of only a few things that can force the Supreme Court to hear a case. Other cases are heard at the court's discretion from among those appealed after decision at the circuit level. Thus do constitutional lawyers decide who makes a good test case. The goal is to find a client with circumstances that will get the circuit to rule differently than another circuit, even if it's on a tangential aspect of the case. It's like hacking a bit.

Re:Thanks slashdot (1)

Theaetetus (590071) | more than 4 years ago | (#30648408)

To the best of my recollection (NYCL, a little help?), the constitutionality of the damages has never been challenged.

And even if it has, in one Circuit, that doesn't mean that it couldn't be challenged in another Circuit. Of course, if two Circuit Courts give different rulings on said topic, then it would almost certainly end up in front of the US Supreme Court.

Nope... Tenenbaum challenged the constitutionality of statutory damages earlier in this trial, and the DoJ even filed a brief on it. However, Tenenbaum was raising the unconstitutionality argument way too late ("the eve of trial", in the judge's words), so it was just a big pile of fail. But, that's why she gave leave for post-trial motions after the fact.

That said, it's a losing argument. Essentially, Tenenbaum is claiming that statutory damages must be in line with actual damages, and that actual damages are about 99 cents per song. There are three problems with this line of reasoning:
1. Yes, the statutory damage provisions were intended to be compensatory, rather than punitive... at the middle "ordinary" tier of damages. Tenenbaum was found to "willfully" infringe, and Congress intended the $150k upper limit to be punitive.
2. The plaintiffs don't have to prove actual damages - rather, statutory damages are available in those cases where the actual damages may be too impossible to prove. Again, Congress added this in expressly to get at counterfeiters who don't keep sales records, or keep fraudulent records.
3. And finally, the 99 cent/song damage would be fine if Tenenbaum just downloaded the songs, engaging only in infringement of the right to copy... But Tenenbaum also uploaded the songs to a wide market, engaging in infringement of the right to distribute. 99 cents might buy you a copy of a song on the iTMS, but it doesn't buy you a license to distribute it to anyone you want. Again, Congress was expressly intending to apply damages to the distribution right when they wrote the act. In the senate reports, they even discuss illegal distribution, and they changed the original wording of "$x per copy" to "$x per work", knowing that the exact number of copies may be unable to be proved.

Re:Thanks slashdot (2, Interesting)

RichardDeVries (961583) | more than 4 years ago | (#30648640)

IANAL and IANAAmerican, but it baffles me that plaintiffs don't have to prove actual damages. It seems that they not only don't have to substantiate the amount of damage, they don't even have to prove there is any damage in the first place. Wouldn't it be fair to have them produce statistics that say that music that is pirated more is sold less? Or to have them produce say five witnesses who testify that they didn't buy a song because Tenenbaum uploaded it?

Re:Thanks slashdot (2, Informative)

Theaetetus (590071) | more than 4 years ago | (#30648802)

IANAL and IANAAmerican, but it baffles me that plaintiffs don't have to prove actual damages. It seems that they not only don't have to substantiate the amount of damage,

Consider this example: Mal Icious, the dastardly copyright infringer makes counterfeit Prada bags and sells them on the streets of Manhattan for cash. He never files a tax return, though he rakes in a hundred thousand dollars a year. Prada catches him, buys a bag to prove that he infringed their copyrighted design, and sues...
Under your theory, they can collect a hundred bucks for their one provable instance of being actually damaged, while Mal gets away free by virtue of destroying (or not keeping) all of his sales records.

That's why plaintiffs don't have to prove actual damages, if they opt for statutory damages. OTOH, if they can prove damages that are much higher than the statutory damage limit, they go that route - see Apple v. Psystar, for example.

they don't even have to prove there is any damage in the first place.

Not quite - they still have to prove that there was infringement, such as that one counterfeit bag I mentioned. The damage is that the infringer trespassed on the plaintiff's right to copy and right to distribute.

Wouldn't it be fair to have them produce statistics that say that music that is pirated more is sold less? Or to have them produce say five witnesses who testify that they didn't buy a song because Tenenbaum uploaded it?

No, because Congress intentionally made it so that plaintiffs don't have to jump through hoops in that way. They do have to prove the guy infringed... it's then his burden to prove that there were no damages, which could then result in the jury awarding the minimum damages - a slap on the wrist, essentially. Neither Tenenbaum nor Thomas ever did that, though... they just claimed that the plaintiff has to prove damages, and when the plaintiff didn't, they claim that any amount of damages is therefore unreasonable. That's not in the statute, and it has lost every time.

Re:Thanks slashdot (1)

RichardDeVries (961583) | more than 4 years ago | (#30649140)

Thanks for your reply!

Your Prada analogy is helpful, yet I'd like to clarify that I wasn't proposing that plaintiffs should find all buyers of counterfeit Prada's, just a few. I was suggesting that the plaintiff should at least prove that downloads affect sales in a direct and strictly negative way. It seems to me that this could be more easily done in the counterfeiting case.

So the burden's on the defendant; he or she has to prove that the damages suffered by the plaintiff are not the amount the latter claims. What if the defendant were to claim there were no damages? It's notoriously hard to prove something doesn't exist (teapots in orbit, yeti's etc.).

As a side note, I've heard a few things from a reliable source about Turkish bag counterfeiters that made me smile: first, some of them make bags that are of better quality than Prada and Gucci. Second, they sometimes find that some type of bag doesn't sell to well. They then change the design and they sell better. It amuses me to think that these counterfeiters successfully improve designer's designs and, moreover, that their customers are buying bags that are obviously fake to a connaisseur. They just don't care, they want a cheap bag with the right label on it. Third, it is rumored that Gucci on occasion implements the changes made by counterfeiters, but of that my source wasn't sure.

Re:Thanks slashdot (1)

GryMor (88799) | more than 4 years ago | (#30648284)

This is the first I've seen of:

"II. AT TRIAL THE COURT ERRED BY PREJUDICIALLY REDACTING DEFENDANT’S OFFER OF EVIDENCE SHOWING THAT HE WAS WILLING TO TAKE RESONSIBILITY FOR HIS ACTIONS, ALLOWING IT TO BE TWISTED INTO DEVASTATING IMPEACHMENT OF HIS CHARACTER."

and after seeing the original vs what was entered into evidence, it makes me want to redact a bunch of RIAA member company offers and then take them to small claims court for not following through with their promises.

In other words, some portion of the article is in fact news.

Re:Thanks slashdot (1)

nsayer (86181) | more than 4 years ago | (#30648416)

Point of order: He was not sentenced to anything, since this was not a criminal trial.

Argument != Ruling (1, Informative)

ezberry (411384) | more than 4 years ago | (#30647860)

It really shouldn't be news that someone is making an argument in their case. Anyone can make an argument - that doesn't mean it's right. And the standards on due process for damages are pretty wishy-washy. So, while I'm not saying this wouldn't be good news if it were ultimately upheld, it's not really news that someone is bringing it up. 99% of all class actions are arguments made by plaintiffs' lawyers that are garbage, which never go anywhere.

Re:Argument != Ruling (4, Insightful)

phantomfive (622387) | more than 4 years ago | (#30648048)

This particular argument is news because

A) It is an area of law that a lot of us care about and
B) Because this is an argument many of us have wished had been made before, but until this time (as far as I know) it hasn't. So we want to pay attention to this case to see how it turns out.

If you don't like the story, you don't have to read it.

Re:Argument != Ruling (0, Offtopic)

Godji (957148) | more than 4 years ago | (#30648198)

What's so funny about the parent? Mod it Insightful, you insensitive clods!

Re:Argument != Ruling (1)

Abstrackt (609015) | more than 4 years ago | (#30648404)

If you don't like the story, you don't have to read it.

Now you tell me... I've got a backlog from 2006!

Re:Argument != Ruling (1)

CodeBuster (516420) | more than 4 years ago | (#30648576)

this is an argument many of us have wished had been made before, but until this time (as far as I know) it hasn't.

The problem was always one of standing. One does not have standing to make some of these arguments until one is sued in court by the copyright holders. Needless to say, most of us would rather not expose ourselves to massive financial risk simply to have an opportunity to make an argument or to put it more bluntly, the stakes were "too high". However, now that we have a few brave (or desperate) souls who are "stuck in the game" and "willing to make the argument", I agree that it is definitely one that is worth making. I have long been suspicious of why the copyright industry stopped filing new infringement cases in their spamigation [wikipedia.org] campaign, but I think now that it has something to due with the constitutional argument over statutory damages, which forms the bedrock of the copyright industry (i.e. their nuclear financial deterrent). The fact that new cases have not been filed seems to indicate that the copyright industry now fears winning a battle (i.e. against an individual infringer) but losing the war (i.e. losing the protection of LARGE statutory damage awards on Constitutional grounds). Indeed, the unconstitutional statutory damages argument appears to be fairly strong or at least meritorious and that is what the copyright industry fears most; a few thousand lawsuits and PR scare tactics are not worth betting the house (or at least that is what their actions say). After all, if they really believed that the statutory damages argument was without merit then why stop filing new spamigation cases? Actions speak louder than words in this case.

Re:Argument != Ruling (1)

LostCluster (625375) | more than 4 years ago | (#30648098)

Yeah, but NewYorkCountyLawyer seems to have a "right of way" to go straight to the homepage based on past contributions. That user provides "play by play" of the cases where somebody dares challenge the RIAA, as the result is either "Somebody else lost on this so don't bother!" or "RIAA loses again! New argument to use against them is..."

Re:Argument != Ruling (0)

Anonymous Coward | more than 4 years ago | (#30648740)

Those who support Joel Tenenbaum and Jammie Thomas are picking the wrong poster-children. Each of these defendants quite obviously infringed copyright in that they quite obviously downloaded music without paying for it. NYCL has espoused each of their causes, in each case trotting out a number of rubbish arguments as to why the cases against them should be dismissed. Each time, the RIAA has won. Each time NYCL has whinged about incompetent counsel (twice in Thomas' case).

When there is a genuine case of mistaken ID, then will be the time to rally round. So far, the RIAA has brought two cases to trial. Each time, the RIAA has won. Rightly, on the evidence as given in the Thomas transcript and admittedly in the Tenenbaum case.

The 'making available' argument was aired in the Thomas case (although her counsel didn't bother to bring the precedents to court) and the jury instructions were that making available was sufficient to found liability. If that were seriously in dispute, I would have expected to see a summary judgment or pre-trial motion to clarify that issue. I suspect that the 'making available' argument is perfectly good law. Of interest is that it is a head of copyright infringment in the UK, on which US law is to some extent based.

In short, Tenenbaum infringed, he admitted he infringed. This is not a case where we should feel sorry for the Defendant. And for those who say 'copyright law is wrong boo hoo hoo': TOUGH. That is the law. You break it, you pay for it.

Re:Argument != Ruling (1)

gmhowell (26755) | more than 4 years ago | (#30648954)

And for those who say 'copyright law is wrong boo hoo hoo': TOUGH. That is the law. You break it, you pay for it.

Or, you break it, you pay for it, and you attack the law in court and public opinion to get it changed. See: Martin Luther King.

What's the legal limit? (1)

earlymon (1116185) | more than 4 years ago | (#30647876)

I'd read somewhere that is was capped at $30k per copyright infringement, $150k for distribution of same.

I should think that, if true, the caps are there for rationality and that they're high to discourage infringement - but should never be used as analogous to a sentencing guideline.

Ray, I get the beef (from reading your info) about the judge being wrong in taking the defendant's statement of liability into account - but further, was it right to suggest those limits to the jury, in any case?

Thanks in advance for answering (and only if my question makes sense or is worthy).

Re:What's the legal limit? (2, Informative)

Anonymous Coward | more than 4 years ago | (#30648018)

Since the cost per song is $.99, then it would be roughly $1.00 per song...

Since the downloader didn't share the files intentionally (software developers ought to make the default NOT share), and the fact that there is ZERO evidence that the files shared were actually downloaded, and since we know that "making available" isn't an offense (otherwise the RIAA would have to sue itself out of existence as there would be no pirating without them producing the content in the first place), then it would $.99 per song MAXIMUM fine...

Re:What's the legal limit? (1)

gmhowell (26755) | more than 4 years ago | (#30648838)

This is why slashdot sucks. So many people who hate the RIAA that they won't give them their due. Kneejerk defense of criminal behaviour. If you knew anything at all, you'd know that some songs on iTMS cost $1.29, so the fine would NOT be $.99 MAX per song but $1.29 MAX per song. If that extra 30 cents is gonna kill you, maybe you oughta steal a loaf of bread instead of stealing from the poor, beleaguered record companies.

Re:What's the legal limit? (3, Informative)

greensoap (566467) | more than 4 years ago | (#30648084)

According to 17 U.S.C. 504 (http://www.copyright.gov/title17/92chap5.html [copyright.gov] ), the minimum is $750 per work infringed while $30,000 is the max. However, if the infringement is willfully committed it jumps to $150,000 but if the infringement is committed "innocently" (naively might be a better word) then it drops to $200.

What is really neat is the presumption of willfullness under section 3 when the violator "knowingly provided or knowingly caused to be provided materially false contact information to a domain name registrar, domain name registry, or other domain name registration authority in registering, maintaining, or renewing a domain name used in connection with the infringement."

Re:What's the legal limit? (1)

LostCluster (625375) | more than 4 years ago | (#30648196)

And so far, they've been holding anybody who makes a copyrighted work available as any downloadable file (over HTTP, FTP, or any flavor of P2P) you're doing so willingly. Nobody's ever been able to prove that they unwillingly installed such file-sharing programs.

Re:What's the legal limit? (1)

dissy (172727) | more than 4 years ago | (#30648504)

And so far, they've been holding anybody who makes a copyrighted work available as any downloadable file (over HTTP, FTP, or any flavor of P2P) you're doing so willingly. Nobody's ever been able to prove that they unwillingly installed such file-sharing programs.

The method of distribution doesn't matter at all.

unwillingly in this case would refer to, for example, downloading an .mp3 named after a Nine Inch Nails song off of their album that was given away for free, but instead it turns out to be something else like Metallica.

Copyright infringement was committed, however until you listened to the song, you were under the impression that you DID have distribution permissions for that song.

For music sharers, this type of claim would not at all be true, and it would be obvious once you see more than one thing being shared (One mistake is possible, two is rare, more than that is not an excusable mistake)

Re:What's the legal limit? (1)

Theaetetus (590071) | more than 4 years ago | (#30648468)

According to 17 U.S.C. 504 (http://www.copyright.gov/title17/92chap5.html [copyright.gov] ), the minimum is $750 per work infringed while $30,000 is the max. However, if the infringement is willfully committed it jumps to $150,000 but if the infringement is committed "innocently" (naively might be a better word) then it drops to $200. What is really neat is the presumption of willfullness under section 3 when the violator "knowingly provided or knowingly caused to be provided materially false contact information to a domain name registrar, domain name registry, or other domain name registration authority in registering, maintaining, or renewing a domain name used in connection with the infringement."

Yeah, that is really neat, and useful, too - notice the important parts "knowingly provided... materially false contact information to a domain name registrar". That's not targeting normal p2p file sharers, but people who set up a commercial website to sell copyrighted works under a false name so that they can't be caught. This is fraudulent and malicious behavior, and exactly the sort of thing we want to slap down with punitive damages.

What has never been argued, however, is that the $150k level should be for this sort of egregious, fraudulent and malicious behavior - i.e. that that is the definition of "willful", rather than the RIAA's definition of "anyone who has ever seen a copyright notice or one of our 'you wouldn't steal a car' advertisements". Thomas didn't challenge it, and Tenenbaum offered up a definition of "we know it when we see it" without any real argument, which is why it failed before it even got off the ground. The proper level of damages that should have been presented to the jury was $750-$30k, not $750-$150k, and that should be a reversable error.

Re:What's the legal limit? (4, Informative)

NewYorkCountryLawyer (912032) | more than 4 years ago | (#30649152)

Ray.....was it right to suggest those limits to the jury?

No in my opinion it was error. There was no basis for allowing anything above the $750 per infringed work minimum, and only the judge rather than the jury could have awarded less, so there was nothing for the jury to decide.

How is this news? (1)

PhxBlue (562201) | more than 4 years ago | (#30647878)

I'm glad that the Slashdot editors are adamently in support of something that IMO needs to be supported, but how is filing a motion newsworthy in any way? Now, if the court agrees to the motion, that'd be different ... wake me up then. Otherwise, let people publish this sort of "news" to PRNewsWire and their ilk.

singles sell for 99 cents to $1.50. (2, Insightful)

swschrad (312009) | more than 4 years ago | (#30648030)

that's the damages, folks.

Re:singles sell for 99 cents to $1.50. (1)

Actually, I do RTFA (1058596) | more than 4 years ago | (#30648174)

That's the actual damages per download.

Factor in that distributing can lead to many downloads (especially if there is some concept of downstream culpability, and those people all distribute) and one MP3 can easily be downloaded many hundreds or thousands of times, and actual damages can reach those amounts.

Factor in punitive damages, which can be many times higher than actual damages, and the "correct" damages far exceed 99 cents.

Re:singles sell for 99 cents to $1.50. (1)

Locke2005 (849178) | more than 4 years ago | (#30648516)

Downloading an MP3 has exactly the same possibility of redistribution as purchasing a CD... so should CDs cost $100,000, as someone might buy one and redistribute the content 10,000 times? For downloading a song, even with treble damages, we're talking $90 maximum penalty for 30 songs. The RIAAs strategy seems to rely on people confusing downloading with uploading; the mere fact that I am downloading a song does not prove any intent by me to redistribute said content. Uploading content, on the other hand, does imply intent to redistribute. Torrents are a gray area; many people may not understand that while they are downloading it, the bittorent software is also making small pieces of the file available for others to download. But traditionally, "small pieces" has been considered fair use. It's analogous to arresting somebody for grand theft because they are the 100,000th person to steal a penny from the penny jar -- they haven't stolen $1000, they've only stolen $0.01!

Re:singles sell for 99 cents to $1.50. (-1, Troll)

Anonymous Coward | more than 4 years ago | (#30648192)

So you think I should be allowed to shoplift and if I get caught I should only pay the cost of what I've taken? That beats shopping!

Re:singles sell for 99 cents to $1.50. (2, Insightful)

nsayer (86181) | more than 4 years ago | (#30648502)

Take your straw-man elsewhere, please.

Shoplifting and copyright infringement are not comparable. If you shoplift a pair of pants, the store cannot sell them to someone else. The store takes a hard loss of the cost they paid to acquire the pants. Making a copy of a music file, by contrast, does not cause any direct damage to someone selling copies of that file, since they still have the undiminished ability to continue selling copies. That is, if you download a copy of Gin and Juice from bittorrent, the "inventory" in the iTunes music store of that track does not magically decrement.

Re:singles sell for 99 cents to $1.50. (1)

theJML (911853) | more than 4 years ago | (#30648652)

Exactly. I don't see how that's so hard for people to grasp, but it apparently is. It's also hard to grasp that just because John Doe downloads a song from bittorrent, doesn't mean it's lost revenue; Both because a.) if he didn't get it for free, he might not have bought it at all, and b.) just because he got it for free, doesn't mean he doesn't either own a legal copy himself, or will own a legal copy if he deems it to be worthy of purchase.

People do not NEED to buy every song out there. Someone not doing so doesn't necessarily constitute lost profits.

Re:singles sell for 99 cents to $1.50. (1)

Theaetetus (590071) | more than 4 years ago | (#30648484)

that's the damages, folks.

So, you buy a song on iTunes for 99 cents. You think you just bought a license for unlimited distribution, even though the copyright owner expressly refused to sell you one at that price? Why don't you believe in the freedom of contract and the free market?

If the fees are high to discourage people... (4, Interesting)

thetoadwarrior (1268702) | more than 4 years ago | (#30648072)

Shouldn't the fine for everything be exceptionally high?

Seriously if downloading one song can have you paying out, for example, $10,000 then surely speeding which can result in death should have a fine of $100,000 at the very least.

If the government won't do that because it's ridiculous then I want to know why it's not ridiculous that I can be paying that much for downloading a few songs which are, at best, worth $0.99 each.

Re:If the fees are high to discourage people... (3, Informative)

BJ_Covert_Action (1499847) | more than 4 years ago | (#30648464)

Seriously if downloading one song can have you paying out, for example, $10,000 then surely speeding which can result in death should have a fine of $100,000 at the very least.

Please don't give any legislators new ideas. My last spedding ticket for 10 over cost me $300. I expect that to rise by the next time I get a ticket already.

In all seriousness though, I have thought about the law in the terms you mention often and have been surprised. For instance, I remember the first time I saw a sign that said $1,000 for littering (I live in California). At first I thought nothing of this until I later saw a sign, in the same town, that said $271 fine for running a red light at a busy intersection. Now, This was years ago so the numbers have probably changed but I remember being shocked at this discrepancy. Running a red, which could cost other drivers significantly (as in multiple thousands of dollars of damage as well as potential death) had a lower fine than throwing my straw wrapper out my window which, at worst, could what...kill a bird that was to stupid to tell paper from food and choked on it? Welcome to modern America, where the law doesn't make sense and nobody seems to give a damn. =)

Re:If the fees are high to discourage people... (1)

rahvin112 (446269) | more than 4 years ago | (#30648592)

If a 10 over cost $300 you were in a workzone or a school zone and you should have been fined twice as much. A first time speeding ticket in a school zone in my state is a class a misdemeanor with a $600+ fine, the second time it triples and the third time there is jail time involved. Workzones are double also but not handled under criminal statues.

There are a reason these fines are high and should be high, speeding in these two locations is much much more likely to result in fatalities and in the case of school zones the deaths of small children doing nothing more dangerous than walking to school.

Re:If the fees are high to discourage people... (0, Troll)

gmhowell (26755) | more than 4 years ago | (#30649022)

If a 10 over cost $300 you were in a workzone or a school zone and you should have been fined twice as much.

And you state this based on what expertise in the law of 50 states and countless territories? (Or, heaven forbid, foreign countries.)

Re:If the fees are high to discourage people... (1)

nsayer (86181) | more than 4 years ago | (#30648538)

While I can get behind what you're saying, the facts you infer do not apply here - the defendant in TFA was supplying the songs, not downloading them.

A perversion of law (4, Insightful)

viking80 (697716) | more than 4 years ago | (#30648212)

Trying to fight RIAA in the courts is a loosing effort. RIAA pay politicians handsomely, and generally gets the laws they want. If they temporarily loose in court, they just pay to have the laws changed, and than they win. The draconian penalties as well as the never expiring rights RIAA enjoy is an amazing perversion.

The only thing that is worse is that this can happen in a democracy, and few care.

If you argue "well, just pay the $0.99 on iTunes and stop whining" you misunderstand culture fundamentally. Humans as a species copy. From infants looking at their parents to musicians, architects, engineers and philosophers listening to others, we refine and produce. This is the essence of human culture. That companies can monopolize this flow is damaging to the progress of mankind.

Parent post c (0)

Anonymous Coward | more than 4 years ago | (#30648438)

You must be on crack.

"Humans as a species copy" and "damaging to the progress of mankind" are puerile justifications for this behavior. Not being allowed to rip a CD is going to cause the collapse of civilization exactly how?

People download and distribute music out of greed or convenience. That has nothing to do with the development of Mankind. There are no pre-wired instincts to copy music, movies or art.

I am not in favor of this ridiculous penalty even though the defendant completely screwed up during the trial and offended practically everyone. This law is another example of how the Senate and Congress of the US are purchased by Sony, Disney, Monsanto and others. That's the real issue here...

The middle class is increasingly in chains due to this model and it's only going to get worse.

Again, It is not just about ripping a CD (2, Interesting)

viking80 (697716) | more than 4 years ago | (#30648792)

It is not only ripping a CD. It is the song "Happy birthday", it is "winnie the Pooh", and scientific journals. It is the ink for your printer, and posting your kids latest performance on Youtube. It is the ability to bring a guitar to amateur nights in the local pub, and play music you like.

U2's Bono wants to implement a Chinese style control of the net globally, so you may not have seen anything yet.

I think artists should be paid well, and maybe have, as the law originally gave, a 14 year copyright. Now it is over 100 years. Anyway, if you as an artist don't want to share, just don't sell CD's or put it on the net.

Re:A perversion of law (2, Insightful)

nsayer (86181) | more than 4 years ago | (#30648804)

We in the modern west have a problem, and I, for one, do not see an easy solution.

It used to be that making copies of creative works was a physical task that was the domain of professionals. As such, enforcing copyrights was relatively easy.

As soon as copyrightable creative works were representable in digital form, and computers became capable of copying them trivially, that changed utterly.

Copyrights exist so that creators of creative works can be given an incentive to create. Their creations, on the whole, enrich society. That's the basic copyright bargain: You write good books and we, as a society, will insure that you can make a living doing it. Of course, another part of the bargain is that your monopoly is for a limited time - that it will eventually fall into the public domain. Congress, in its wisdom, has been eroding that on a regular basis, but that's a whole different discussion.

In an era where digital representations of copyrightable works can be freely copied (DRM doesn't count - breaking the DRM is largely equivalent to scanning in and OCRing a book - something you have to do once, but then the work is disencumbered), however, the idea of being able to police the copying so that authors of creative works can be fairly compensated becomes impossible.

Notice that I said fairly compensated. That means that consumers of creative works (readers of books, listeners of music, watchers of movies and TV shows) pay commensurate with their consumption, and authors get paid commensurate with the relative rates of consumption.

DRM is an attempt to retain control over content copying. Alas (for the ??AA), it is the exact equivalent of an ostrich attempting to control predation by burying its head in the sand.

The Copyright system no longer functions properly because conditions in the world have changed irrevocably. I don't have an answer as to how to fix it. Nobody does, because if they did, things would be different.

Re:A perversion of law (0)

Anonymous Coward | more than 4 years ago | (#30649078)

Because people who create music shouldn't be rewarded? I think you fundamentally misunderstand progress...

The cover sheet (0)

Anonymous Coward | more than 4 years ago | (#30648274)

On the cover sheet I see at least two obvious mistakes: a phone number with an extra digit, and the name of the law firm is misspelled. I'm sorry, but this smacks of sloppiness. If I were the judge reading this brief, I would be on my guard for other mistakes, including legal ones.

Levy's on blank media in the US (and elsewhere) .. (1)

yossie (93792) | more than 4 years ago | (#30648558)

So, apparently there is a levy on blank media in place in various countries, to the tune of 3% (according to wikipedia) in the US. Assuming this is true, and specifically in the US, is it constitutional to charge someone a tax to cover the costs of piracy and then also be able to take them to court for being pirates?! Isn't that double jeopardy? I haven't seen this defense used in any of the cases I've followed and, in fact, it may be based on incorrect understanding of the law (not a lawyer here.)

Summary + questions from a non-lawyer (2, Interesting)

AcidPenguin9873 (911493) | more than 4 years ago | (#30648768)

IANAL. I did skim part of the brief.

The brief states that between the time Napster came out and iTunes came out, there was no ability for consumers to obtain music legally via download, and that posed a lack of choice for "Digital Natives" who wanted to obtain music that way. The court recognized that period as an "interregnum period" during which I presume (again IANAL) that no one can be successfully prosecuted for copyright infringement for downloading. However because iTunes was encrypted from 2003-2007, the brief argues that the interregnum period should be extended until some time in 2007, when encryption-free digital music was available.

The two main arguments for that are 1) publishers released DRM-free music on CD, so they partially contributed to the proliferation of the recordings on P2P networks and must have been aware of it by 2004, yet continued to sell and promote CDs. (This seems awfully tenuous to me...the publishers were still trying to sell music, and by that point the digital market hadn't quite gotten to the saturation point where they could stop selling CDs, and CDs require DRM-free music), and 2) The brief cites a prior case in which a court recognized that care taken by the plaintiff to "protect" their IP made a fair use defense fail, and that had the plaintiffs failed to protect the IP, fair use defense might have worked. In this case, the brief argues that the plaintiffs did not take enough "care" of their IP because they released them DRM-free on CD, and so fair use defense might work. (To me that seems to be arguing a hypothesis - that the court in the prior case would have ruled differently if the plaintiff had acted differently - rather than arguing a precedent on an actual ruling. Also, the CD format requires DRM-free music, so I'm not sure what sort of choice the publishers had there short of breaking everyone's existing CD players. Digital being a newer format allows for new things like DRM.)

Why are so many lawyers so stupid (1)

rudy_wayne (414635) | more than 4 years ago | (#30648866)

"defendant has filed a motion for new trial, attacking, among other things, the constitutionality of the jury's $675,000 award"

Yeah. Good luck with that.

Just like Jammie Thomas before him, Mr. Tenebaum decided to admit that he broke the law and fight a battle based on the the idea that the law is wrong. We saw how well that worked out for both of them. Now, I happen to agree that the law is wrong and that the actual damages suffered by the entire record indusry as a result of "file sharing" is close to zero. However, the chances of convincing the courts that the law is wrong is also somewhere between none and zero.

Ms Thomas, Mr. Tenebaum and their respective attorneys suffer from the same problem. They thought they were going to out-smart the prosecution. Dazzle them with their brilliance and logic. Hit them with a constutional argument that can't be rebutted. And they ran smack into the brick wall of reality.

The sad unfortunate reality is that judges and juries are technologically illiterate. They are easily swayed by words such as "hacker" and "piracy", easily convinced that anyone using a computer may be up to no good and and they are easily convinced that the fine honest upstanding folks of the RIAA are being robbed by evil file-sharers.

It is unfortunate, but the only defense for these cases is DENY DENY DENY. Admit nothing. Deny everything. The RIAA is in error. The information provided by the ISP is wrong or forged by the RIAA. Force them to provide concrete proof of everything. "Innocent until proven guilty" is meaningless if you freely admit that you did exactly that they say you did.

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