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Tenenbaum's Final Brief — $675K Award Too High

timothy posted more than 4 years ago | from the can't-sell-my-organs-for-that-these-days dept.

The Courts 525

NewYorkCountryLawyer writes "The final brief (PDF) filed by the defendant Joel Tenenbaum in SONY BMG Music Entertainment v. Tenenbaum seems to put the final nail in the coffin on the RIAA's argument that 'statutory damages' up to $150,000 can be awarded where the record company's lost profit is in the neighborhood of 35 cents. Not only do Tenenbaum's lawyers accurately describe the applicable caselaw and scholarship, something neither the RIAA nor the Department of Justice did in their briefs, but they point out to the Court that the US Court of Appeals for the First Circuit — the appeals court controlling this matter — has itself ruled that statutory damages awards are reviewable for due process considerations under the guidelines of State Farm v. Campbell and BMW v. Gore. The brief is consistent with the amicus curiae brief filed in the case last year by the Free Software Foundation."

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525 comments

Fees (5, Interesting)

biryokumaru (822262) | more than 4 years ago | (#31193358)

I certainly hope in the end Tenenbaum gets awarded fees, or this'll just be a gain for society at Tenenbaum's expense.

Re:Fees (3, Insightful)

Anonymous Coward | more than 4 years ago | (#31193422)

If he doesn't get awarded fees, there would hopefully be thousands willing to pitch in to reimburse him for the precedent he bought us.

Re:Fees (2, Insightful)

negRo_slim (636783) | more than 4 years ago | (#31193982)

If he doesn't get awarded fees, there would hopefully be thousands willing to pitch in to reimburse him for the precedent he bought us.

I'd Paypal that for a dollar.

Re:Fees (1)

mhajicek (1582795) | more than 4 years ago | (#31194054)

I'd pitch in for that.

Re:Fees (-1, Troll)

Mad Leper (670146) | more than 4 years ago | (#31194100)

Holy Crap, that's the funniest thing I've read today. You don't actually believe that the pirate community would give up a single penny to support this do you?

Re:Fees (5, Insightful)

Anonymous Coward | more than 4 years ago | (#31194168)

If [Tenenbaum] doesn't get awarded fees, there would hopefully be thousands willing to pitch in to reimburse him for the precedent he bought us.

Holy Crap, that's the funniest thing I've read today. You don't actually believe that the pirate community would give up a single penny to support this do you?

One, and only one, of the following is true:
1. Anyone with reason to be sympathetic to Tenenbaum and his legal cause is by definition a pirate.
2. You're an idiot.

Re:Fees (0, Troll)

joaommp (685612) | more than 4 years ago | (#31194228)

I wish I had mod points for you. Couldn't have put it better myself.

Re:Fees (0, Flamebait)

binarylarry (1338699) | more than 4 years ago | (#31194234)

No, he's right.

Pirates don't steal things because they're making some kind of political statement.

They steal stuff because they don't want to pay for it and it's easy with little chance of getting caught.

Re:Fees (5, Insightful)

commodore64_love (1445365) | more than 4 years ago | (#31194290)

AND they are tired of getting screwed up the ass by dishonest corporations that refuse to offer a basic "satisfaction guaranteed" warranty. Hell even the chocolate bar companies offer that warranty ("If you are dissatisfied with your Snickers, return it for full refund.").

I grew tired of throwing-away my money on shitty CDs or boring movies, so now I try before I buy. If it's good I'll buy it to support the artists/engineers, but otherwise no.

Re:Fees (2, Informative)

GigaplexNZ (1233886) | more than 4 years ago | (#31194292)

Pirates don't steal things because they're making some kind of political statement.

While that might have been true back in the day of CD ripping, it's certainly not true when it comes to draconian DRM for games.

Re:Fees (3, Interesting)

Anonymous Coward | more than 4 years ago | (#31193444)

RIAA's argument that 'statutory damages' up to $150,000 can be awarded where the record company's lost profit is in the neighborhood of 35 cents

It's amazing how many trials, hearings, lawyers, and documentation is required before anyone official is willing to consider that this might be unjust. Does not the Constitution forbid "cruel and unusual" punishment? This punishment is grossly excessive and therefore cruel. How many proceedings does it take to realize what any idiot can discern?

Re:Fees (2, Informative)

hedwards (940851) | more than 4 years ago | (#31193490)

That's how the justice system works. Cruel and unusual punishment doesn't really apply AFAIK. It doesn't matter whether a judgment is excessive or not when considering that prohibition. It's more aimed at cases like people accused of torture can't themselves face being abused as a part of the punishment. People that are found guilty of being slum lords can't themselves generally be forced to live in maggot infested cesspools.

That's the sort of thing that's regarded as cruel. Since the penalties are a rarity, they might get away with arguing that it's unusual, however the lack of a substantial number of cases where people were tried in that sense may or may not hurt.

Re:Fees (5, Informative)

Anonymous Coward | more than 4 years ago | (#31193692)

That's how the justice system works. Cruel and unusual punishment doesn't really apply AFAIK. It doesn't matter whether a judgment is excessive or not when considering that prohibition. It's more aimed at cases like people accused of torture can't themselves face being abused as a part of the punishment. People that are found guilty of being slum lords can't themselves generally be forced to live in maggot infested cesspools. That's the sort of thing that's regarded as cruel. Since the penalties are a rarity, they might get away with arguing that it's unusual, however the lack of a substantial number of cases where people were tried in that sense may or may not hurt.

If financially ruining the life of someone who has done little or no real harm to anyone is not "cruel" then the definition of "cruel" needs to be amended. There's a reason we don't fine people ten million dollars for jaywalking, because it would be excessive and far out of proportion to the act that is being punished. There's something clearly and plainly wrong with punishing copyright infringers more severely than many con artists and violent criminals who do real harm to real people, as opposed to little or no harm to corporations. All the clever explanations in the universe don't change that. In fact any explanation designed to excuse this behavior is also wrong.

All this bullshit does is drive the behavior (filesharing) further underground and erode whatever respect people still have for the law, which may not be much after witnessing things like the War on (some) Drugs and "free speech zones".

Re:Fees (1, Informative)

Anonymous Coward | more than 4 years ago | (#31193906)

Isn't the "cruel and unusual" thing for criminal cases? Since these are civil cases I don't believe there is any "cruel and unusual" clause.

Re:Fees (5, Interesting)

Anonymous Coward | more than 4 years ago | (#31194130)

Isn't the "cruel and unusual" thing for criminal cases? Since these are civil cases I don't believe there is any "cruel and unusual" clause.

When I read the Constitution it does not make any such exceptions. Nowhere does it say "oh, except for civil torts."

Now that might still be used as a clever way to maneuver around something the Constitution clearly forbids. For example, the "free speech zones" I mentioned. Have you heard of them? Yeah, the weasel "logic" (sorry to insult weasels this way) is that the First Amendment guarantees that citizens have free political speech, that "Congress shall make no law" restricting this. However, the First Amendment does not specify where this right applies, so they can tell you that you may only exercise your free speech rights within a designated zone. Of course this zone is located someplace where you can be easily ignored and your protests cannot easily be heard.

Tyrants just love tricks like this. Any reasonable person would say that the Constitution is the highest law of the land, and does not specify where in the USA it applies because it applies everywhere in the USA. But that's not very useful for a tyrant. Likewise, noting that the Constitution does not say that the prohibition against "cruel and unusual punishment" is limited to criminal courts only is also not very useful for a tyrant.

Re:Fees (5, Insightful)

commodore64_love (1445365) | more than 4 years ago | (#31194370)

Also even if said person is not financially ruined, it would take that citizen the rest of his life to earn the money to pay-back the cash fine. In effect it's a life sentence to slavery for RIAA, simply because the person didn't legally buy ~$30 worth of songs. That IS excessive.

Re:Fees (1)

jonadab (583620) | more than 4 years ago | (#31194184)

> This punishment is grossly excessive and therefore cruel.

Yes, but is it cruel AND unusual, or is it in fact cruel and commonplace, something they've been doing to people for a good while now?

(However, I think it ought to qualify as an "excessive fine", though IANAL.)

Re:Fees (-1, Flamebait)

commodore64_love (1445365) | more than 4 years ago | (#31194328)

>>>How many proceedings does it take to realize what any idiot can discern?

It's too bad the guy with the airplane did not bomb the RIAA headquarters instead. (Yes I think these people are tyrants and deserve to die - just like what happened to Mussolini, King Louis of France and Emperor Nero.)

Re:Fees (4, Insightful)

Beardo the Bearded (321478) | more than 4 years ago | (#31193524)

If this was me, I'd do the same thing as Tenenbaum. Fuck it, you're already looking at bankruptcy, why not burn everything you have in the off chance that you take them with you?

"From Hell's heart I stab at thee /
For hate's sake, I spit my last breath at thee."

Re:Fees (1, Funny)

Anonymous Coward | more than 4 years ago | (#31193984)

Khaaaaaaaaaaaaaaaan!

Re:Fees (3, Insightful)

arielCo (995647) | more than 4 years ago | (#31194280)

Yes, that'll teach them! They're going to weep all the way from the courthouse to their next case, with their shiny new precedent as their only consolation.

Re:Fees (1, Informative)

commodore64_love (1445365) | more than 4 years ago | (#31194406)

>>> "From Hell's heart I stab at thee
>>> "For hate's sake, I spit my last breath at thee."

And with my sharpshooter I have your RIAA office in my sights.
Are you sure you don't want to drop the case Mr. RIAA employee? (click)

Re:Fees (0)

Anonymous Coward | more than 4 years ago | (#31193624)

His fees should be billed at minimum wage, after all that is the legal minimum.

Re:Fees (1)

LifesABeach (234436) | more than 4 years ago | (#31194096)

I was thinking that if Sony, and BMG get 35 cents for one song in damages, then the stamped by the public to buy music from Sony, and BMG would obliterate RIAA. Maybe by lossing this case law, that maybe Sony, and BMG have found a market worthy embracing? At this point, give what ever money Tenenbaum's attorneys want, just give it to them, so that they don't try to collect royalties on this concept.

Thomas case (2, Insightful)

Anonymous Coward | more than 4 years ago | (#31193402)

Will this affect the thomas appeal?

How legal briefs work (4, Insightful)

TinBromide (921574) | more than 4 years ago | (#31193418)

Lawyer: "I Have created this airtight and brilliant brief! It is Irrefutable and right! All of society will benefit from my genius! I am sure to win Lawyer of the year for this awesome brief!"

Judge:"That's nice, any who, back to what I was saying..."

Re:How legal briefs work (0, Troll)

sys.stdout.write (1551563) | more than 4 years ago | (#31193592)

Thank you for calling him out on this.

Considering that virtually every single one of NewYorkCountryLawyer's predictions [slashdot.org] has been wrong [slashdot.org] , at some point Slashdot should just admit that it needs a less biased legal reporter.

Re:How legal briefs work (2, Insightful)

sys.stdout.write (1551563) | more than 4 years ago | (#31193670)

Re-reading this, it sounds like I have an axe to grind. This isn't really the case, it just bothers me that we keep getting into this cycle:
  • Everyone is told that some legal theory is the best thing since sliced bread, and the RIAA and DoJ are shaking in their boots
  • Three months later the court rules for the RIAA and we all post angry comments about the justice system works, but nobody ever brings up the fact that we were totally mislead three months ago

Anyway, end rant. Mod me down as Flamebait and all that.

Re:How legal briefs work (4, Interesting)

gknoy (899301) | more than 4 years ago | (#31193680)

What's the alternative? "Courts reaffirm the validity of industry pillaging of your rights"? That's a more likely prediction, but Ray Beckerman makes predictions on what he believes to be the proper reading of laws (and past rulings). He talks about how it should be, and how he hopes things will turn out.

Judges don't always agree with him. Sometimes they aren't as familiar with the facts as he is, other times they may just interpret something differently (or rule that something doesn't apply). NYCL is still a great contributor to Slashdot.

Do we have other lawyers who monitor Nerd-Worthy cases the way Mr. Beckerman does? Do they bother to submit to Slashdot? (I don't know.)

Re:How legal briefs work (3, Insightful)

sys.stdout.write (1551563) | more than 4 years ago | (#31193744)

The alternative is writing articles entitled "Defendants submit a very persuasive brief to the court detailing why the RIAA is wrong" instead of making these outlandish predictions about this being the "nail in the coffin," which is going to be proven false in three months.

Re:How legal briefs work (0, Flamebait)

NewYorkCountryLawyer (912032) | more than 4 years ago | (#31194302)

What's the alternative? "Courts reaffirm the validity of industry pillaging of your rights"? That's a more likely prediction, but Ray Beckerman makes predictions on what he believes to be the proper reading of laws (and past rulings). He talks about how it should be, and how he hopes things will turn out. Judges don't always agree with him. Sometimes they aren't as familiar with the facts as he is, other times they may just interpret something differently (or rule that something doesn't apply). NYCL is still a great contributor to Slashdot. Do we have other lawyers who monitor Nerd-Worthy cases the way Mr. Beckerman does? Do they bother to submit to Slashdot? (I don't know.)

The poster to whom you're responding is a pure troll. His comment was completely dishonest.

Re:How legal briefs work (5, Interesting)

NewYorkCountryLawyer (912032) | more than 4 years ago | (#31194260)

You're either a moron or an RIAA lawyer.

1. The first prediction was that the constitutional defense would succeed once the issue has ripened. Don't you get it that the issue has just ripened. Whether my prediction will be fulfilled hasn't yet been determined.

2. Your second link relates to the fair use defense. I have never at any time expressed any opinion on the fair use defense in this case or made any prediction about it.

Re:How legal briefs work (3, Insightful)

ShinmaWa (449201) | more than 4 years ago | (#31194434)

You're either a moron or an RIAA lawyer.

I'm sorry.. but no. Not acceptable behavior. I'm willing to listen to reasoned debate over the facts, but when you come out of the gate with an ad hominem attack and accuse someone who disagrees with you to be a shill for your opponent, you seriously undermine your credibility and come off as exactly the "biased legal reporter" you've just been accused of being.

I expected better of you and am disappointed.

Re:How legal briefs work (4, Interesting)

NewYorkCountryLawyer (912032) | more than 4 years ago | (#31194478)

When someone states that I made 2 incorrect predictions, and then cites to 2 links which have no relation to what he was saying... that is dishonesty. I'm so sorry I 'disappointed' you, but whatever gave you the idea that I am kind and patient to liars, bullies, and thieves?

Re:How legal briefs work (0, Flamebait)

ShinmaWa (449201) | more than 4 years ago | (#31194560)

that is dishonesty

Do not attribute to malice what might be more easily attributed to being mistaken.

but whatever gave you the idea that I am kind and patient to liars, bullies, and thieves?

Nothing at all. However, to assume that someone who has a different reading of the situation is a "liar" is not exactly the paragon of intellectual honesty either. Please stop being a self-righteous dick if you want us to take you seriously.

Thank you.

Re:How legal briefs work (2, Insightful)

h4rr4r (612664) | more than 4 years ago | (#31194536)

Why does it have to be either or? It could well be both.

Re:How legal briefs work (1)

dancingmad (128588) | more than 4 years ago | (#31194226)

I'm in law school and I know this to be a fact. While well reasoned briefs can help a lawyer win a case, if the judge has a set agenda (for whatever reason; classism or wanting to follow precedent, or wanting to break from precedent) no amount of caselaw yoga is going to make you win.

So what? (1)

Hatta (162192) | more than 4 years ago | (#31193424)

If the judge actually bothers to read it, he can still disregard it and rule in favor of the RIAA.

441,000 times for statutory damages precedent! (1)

mykos (1627575) | more than 4 years ago | (#31193462)

Maybe every court should use this as a precedent. Four hundred forty one thousand times the actual damages should be the statutory award. That makes total sense.

Re:441,000 times for statutory damages precedent! (2, Interesting)

drinkypoo (153816) | more than 4 years ago | (#31193688)

Maybe every court should use this as a precedent. Four hundred forty one thousand times the actual damages should be the statutory award. That makes total sense.

That is surely one way to bring the legal system to its knees; everyone and their mom will sue for damages, no matter how slight, every time there are any damages, because it will be worth it to sue even if you're only out a buck. Anarchy, here we come.

Re:441,000 times for statutory damages precedent! (1)

mhajicek (1582795) | more than 4 years ago | (#31194074)

And the lawyers will be rolling in dough at everyone else's expense.

Re:441,000 times for statutory damages precedent! (3, Interesting)

Theaetetus (590071) | more than 4 years ago | (#31194298)

Maybe every court should use this as a precedent. Four hundred forty one thousand times the actual damages should be the statutory award. That makes total sense.

Under copyright law, plaintiffs don't have to prove actual damages if they opt for statutory damages. And they didn't. OTOH, the defendant can show evidence of actual damages to mitigate or reduce the statutory damages. But Tenenbaum didn't. That's why his constitutional argument, relying on an alleged $.30 per song, fails at the outset - he never presented any evidence that that was the actual damages.

I'm still holding my breath (1)

hyades1 (1149581) | more than 4 years ago | (#31193468)

It seems to me that every time it looks like somebody has the RIAA staring down the barrel of a metaphorical shotgun, they somehow manage to find a friendly judge, or some implausible artifact of the legal system gets in the way.

I truly hope that this time justice prevails, and the RIAA loses its main means of intimidating guilty pleas out of the poor and vulnerable.

Re:I'm still holding my breath (5, Interesting)

Anomalyx (1731404) | more than 4 years ago | (#31193514)

What we need is a non-metaphorical shotgun. Or a non-crappy justice system. Preferably the latter, because we sure don't have it now

Re:I'm still holding my breath (2, Interesting)

Mad Leper (670146) | more than 4 years ago | (#31194064)

How about the defendant is an idiot, the defence lawyers are fools and the judges don't care for grandstanding morons trying to turn a clear cut case of copyright infringement into a reboot of the Rosa Parks case.

Bit I like you thinking, sounds much more exciting.

Re:I'm still holding my breath (1)

mhajicek (1582795) | more than 4 years ago | (#31194088)

That's because they hired Wolfram and Hart.

Only initial seeders liable? (1)

RIAAShill (1599481) | more than 4 years ago | (#31193498)

[P]laintiffs say, by including these songs in his share folder, Tenenbaum distributed them to millions of people, causing the record companies "incalculable" damages. This is completely false hyperbole. Not a single person who downloaded these songs using Kazaa would have been impeded from obtaining them had Tenenbaum blocked access to his share folder. Tenenbaum was not a seeder of any of these songs. Whatever damage was caused by the distribution of these thirty immensely popular songs on the peer-to-peer networks was caused by the initial seeders . . .

Will the courts really buy this argument? Does it really matter whether one rips a track from a CD and shares it on a P2P network instead of downloaded an existing track from a P2P network before re-sharing the track? Is a CD ripper-and-sharer so much more culpable than an MP3 downloader-and-re-sharer that all of the blame for downstream economic harm should be pegged to the CD ripper-and-sharer?

Re:Only initial seeders liable? (1)

The MAZZTer (911996) | more than 4 years ago | (#31193574)

The idea is similar to how an avalanche starts, IMO. You don't lay the blame for a huge avalanche on an unstable ridge of snow if it's halfway down the mountain when the avalanche started at the top.

You can't even really say the avalanche would have been any less destructive if that ridge was a gentle slope instead.

Re:Only initial seeders liable? (1)

RIAAShill (1599481) | more than 4 years ago | (#31193900)

The idea is similar to how an avalanche starts, IMO. You don't lay the blame for a huge avalanche on an unstable ridge of snow if it's halfway down the mountain when the avalanche started at the top.

You can't even really say the avalanche would have been any less destructive if that ridge was a gentle slope instead.

I'm not sure that comparing file sharers (who have free will and can be held liable for their actions) with ridges (which are features of the landscape that can't really be held liable for anything). But, if you really want to discuss the idea in terms of avalanches, consider an alternative metaphor (although it has plenty of its own flaws).

The initial seeder threw a snowball down the mountain. It started small, but it got bigger as it went down. A house at the bottom of the mountain gets hit by the resulting avalanche, causing significant damage to the house. No one knows who threw the snowball that started the avalanche, so it's pretty much impossible to hold that person fully liable.

However, halfway down the mountain there used to be a forest. Had the forest been there, then the avalanche would have come to a halt (or at least been slowed down), which would have reduced or eliminated the damage to the house.

Because of the risk of damage from avalanches, it is illegal to cut down trees from the forest. However, a lot of people cut down trees anyway. The home owner found one of the people who had been cutting down the trees and argues that the tree cutter should be responsible for a significant portion of the damage caused by the avalanche.

Does it make sense to say that the tree cutter is not liable to the home owner at all for the damage caused by the avalanche, simply because the tree cutter did not throw the snowball and was part of a mob of other tree cutters?

Re:Only initial seeders liable? (0)

Anonymous Coward | more than 4 years ago | (#31194486)

The problem with this analogy is the snowball did less than ten dollars in damage, so in the end it hit the mail box and knocked off the cover or something. Then the person who cutdown the tree ended up paying hundreds of thousands of dollars to replace it. Which any idiot can see is completely assbackwards and shows just how corrupt our judicial system has become.

Re:Only initial seeders liable? (5, Insightful)

pookemon (909195) | more than 4 years ago | (#31193956)

I'm intersted in knowing how RIAA know that he distributed the songs to "millions of people". And what was his share ratio on these songs? Eg. If his share ratio on these songs were 1,000,000 then it could be said that he's passed those songs onto a million people. If it were 1.5 then it can be said that he passed it on to 1 person and half of it onto another person (and then there'd need to be discussion as to how much was lost by passing half an MP3 onto someone).

Just my 2c.

Re:Only initial seeders liable? (1)

NewYorkCountryLawyer (912032) | more than 4 years ago | (#31194356)

I'm intersted in knowing how RIAA know that he distributed the songs to "millions of people". And what was his share ratio on these songs? Eg. If his share ratio on these songs were 1,000,000 then it could be said that he's passed those songs onto a million people. If it were 1.5 then it can be said that he passed it on to 1 person and half of it onto another person (and then there'd need to be discussion as to how much was lost by passing half an MP3 onto someone).

Just my 2c.

Well it was a lot more "c" than I've ever seen from the RIAA lawyers (or their friends in the DOJ).

Re:Only initial seeders liable? (2, Interesting)

commodore64_love (1445365) | more than 4 years ago | (#31194466)

If his share ratio was like most people, it was probably less than 1..... which means he never uploaded a whole song. He uploaded, say, 0.7 of a song which would be unplayable and therefore no harm done.

Re:Only initial seeders liable? (4, Insightful)

Tiger4 (840741) | more than 4 years ago | (#31194044)

I think I don't buy the black and white argument, but the logic does strongly bias towards teh first seeder. Quite literally, to borrow from Will Smith, "If you don't start nothin', there won't be nothin'!" No seeders, no sharing, no infringements.

Obviously the sharers have a piece of the liability too, since if they didn't request and didn't hang around the seeders wouldn't be sharing with anyone. But that is much that same as the drug dealer and the drug user problem, or looking for who started and participated in a bar brawl. They are in a symbiotic relationship, but the "offenses" of each party are somewhat different.

To put a number on it, I'd say the relationship is a declining harmonic progression, with the seeder carrying weight 1, and each successive participant in the torrent carrying weight 1/n. The millionth guy, Tenenbaum, may be the straw that broke the RIAA's back, but his actual contribution is near meaningless.

Re:Only initial seeders liable? (0)

Anonymous Coward | more than 4 years ago | (#31194192)

Let's talk in terms of marijuana. If you are the distribution source of marijuana, you will get a harsher punishment than that of the user of marijuana who shares with his "peers" (with regard to amount). P.S. We need more seeders!

Re:Only initial seeders liable? (1)

russotto (537200) | more than 4 years ago | (#31194492)

Is a CD ripper-and-sharer so much more culpable than an MP3 downloader-and-re-sharer that all of the blame for downstream economic harm should be pegged to the CD ripper-and-sharer?

They'll just make it joint-and-several -- that is, everyone in the swarm is 100% liable for every download.

Never underestimate the amount of injustice the courts can dish out.

And? (2, Insightful)

selven (1556643) | more than 4 years ago | (#31193522)

The fact that the defendant has made an argument isn't news. Anyone can make an argument, and the amicus curiae system even allows strangers like me to submit an argument on this case to the court. When the judge decides in favor of one party or the other, that's going to be the significant event. I would give some latitude if this were a pivotal Supreme Court case, but so far it's just a filesharing trial.

Re:And? (-1, Troll)

timmarhy (659436) | more than 4 years ago | (#31193898)

it's new on slashdrone, because these fuckwits have nothing better to post.

Re:And? (0)

Anonymous Coward | more than 4 years ago | (#31193988)

Looking at both you guys submissions i'd say you fucktwits are exactly helping the cause of shitty articles to read around here.

Re:And? (4, Interesting)

NewYorkCountryLawyer (912032) | more than 4 years ago | (#31194236)

The fact that the defendant has made an argument isn't news.

I beg to differ, especially in this case. This was the first time that either of the parties directly confronted the central issue. If you look at the table of authorities you'll see that most of the cases and other authorities that were cited were never cited by either side in any prior brief, and that the discussion of Gore and Campbell is likewise totally new. Also the revelation that the 1st Circuit has already applied Gore & Campbell to statutory damages is crucial. It means.... Judge Gertner will be doing likewise.

I.e., bye bye RIAA damages theory.

Nicely Written Brief (5, Interesting)

notaspy (457709) | more than 4 years ago | (#31193638)

I especially like this side note:
"For additional absurdity, imagine further that the Industry actually got
judgments of $18 million in damages from roughly 30,000 teenagers, which is
approximately the number of lawsuits they filed against consumers until the end of 2008.
That would mean they had outstanding judgments for $540 billion dollars - or more than
the total revenue the recording industry can expect to earn in about 50 years at its current
size of $11 billion per year."

And yet, in view of so many incomprehensible RIAA decisions to date, it's hard to be hopeful.

RIAA version (1)

syousef (465911) | more than 4 years ago | (#31194018)

I especially like this side note:
"For additional absurdity, imagine further that the Industry actually got
judgments of $18 million in damages from roughly 30,000 teenagers, which is
approximately the number of lawsuits they filed against consumers until the end of 2008.
That would mean they had outstanding judgments for $540 billion dollars - or more than
the total revenue the recording industry can expect to earn in about 50 years at its current
size of $11 billion per year."

And yet, in view of so many incomprehensible RIAA decisions to date, it's hard to be hopeful.

RIAA version: "Additional $11 billion lost to piracy each year".

Re:Nicely Written Brief (0, Funny)

Anonymous Coward | more than 4 years ago | (#31194082)

The high levels of deterrents are in place to deter, not to punish. Which is why the RIAA has been offering very reasonable settlements in the order of a few thousand dollars, which even most college students can borrow from their parents until they become productive members of society. And that's really the point here, the RIAA are producing content, employing people and building economic bridges around the world. Kids like Tenenbaum are tearing down those bridges and why? For a few free tracks.

People have got to stop thinking of file sharing, torrents and sharing networks as a free for all. Imagine how useful all of this sharing infrastructure would be if the RIAA hadn't been forced by circumstance to try to stop it?

It's this rampant sharing which is taring the internet a new one. Very soon, political leaders will have the tools to control free speech, an industry group funding their lobbying for the tools and a completely valid excuse to implement them. Why? Because Joel wanted to listen to the latest music industry rubbish without paying. Just throw the book at him already, he's guilty and should not be revered.

Re:Nicely Written Brief (1, Troll)

Tiger4 (840741) | more than 4 years ago | (#31194208)

People just can't get past the notion that if something is easy and convenient, and makes life cheaper or better for them, they must have some kind of right to it. Even if it sucks the life and earnings out of the rightful owner of the thing. Even if the rightful owner is an evil, vicious old coot with a bad business model and overpriced products sold in musty old stores. None of that changes the fact that copyright violation by file sharing is pretty much like looting. Someone, maybe not you but someone, broke into the store, and now all the goods are available. You steal the product and destroy the business for your own benefit, happy in the relative anonymity of the crowd.

But people just can't see themselves as being wrong in doing it, because they benefit, and that *can't* be wrong, can it?

Re:Nicely Written Brief (4, Insightful)

h4rr4r (612664) | more than 4 years ago | (#31194334)

Looting removes physical goods, this is just breaking of a monopoly. Considering that this monopoly has now been extended so often perhaps piracy is the morally correct thing to do.

I do not participate in these activities, but I can see the rationale. I cannot however seen any relation between infringing on a government granted monopoly and the taking of actual goods.

Re:Nicely Written Brief (1)

h4rr4r (612664) | more than 4 years ago | (#31194568)

A few thousand is a reasonable offer?
Seems like a thousand times the damages is a bit much to me.

NewYorkCountryLawyer is dishonest (2, Interesting)

ljw1004 (764174) | more than 4 years ago | (#31193714)

NewYorkCountryLawyer insists that "damages" don't include the money lost through OTHER people downloading that the plaintiff offered up for sharing. He thinks that damages should only count the original download. Unfortunately

* This contradicts existing case law
* It contradicts what the text of the law actually says
* It contradicts how judges have interpreted the law

I think he's doing us all a disservice by sticking his hands in his ears and shouting "la la la". There are interesting arguments to be made, and he's not making them.

Re:NewYorkCountryLawyer is dishonest (0, Troll)

Theaetetus (590071) | more than 4 years ago | (#31193738)

There are interesting arguments to be made, and he's not making them.

... and when we do make them, he calls us "shills" and "trolls," refuses to respond, and gets snippy if we call him "Ray" rather than "Mister Beckerman," leaving name-calling his sole domain.

Re:NewYorkCountryLawyer is dishonest (5, Interesting)

Secshunayt (976978) | more than 4 years ago | (#31193850)

You're failing to take into account how peer-to-peer works: most people have a share ratio of about 1:1. On average, any one person can only be held accountable for distributing one copy of something they seed.

Re:NewYorkCountryLawyer is dishonest (2, Insightful)

Theaetetus (590071) | more than 4 years ago | (#31193920)

You're failing to take into account how peer-to-peer works: most people have a share ratio of about 1:1. On average, any one person can only be held accountable for distributing one copy of something they seed.

It only requires one distribution to be liable for infringement of the distribution right. And Tenenbaum admitted under oath that he distributed. Thus, distribution was proved, and there was a directed verdict that Tenenbaum both copied and distributed the copyrighted works. Now, he's trying to go back on that and claim that he only copied the works - hence the damages of $1 per copy. That disregards his admitted distribution.

Moral: don't admit to anything, particularly infringement.

Re:NewYorkCountryLawyer is dishonest (1)

douglasdoughty (1611343) | more than 4 years ago | (#31194268)

He could hit 1:1 or 100:1 ratio with peer-to-peer and never actually distribute the file in full (if he has a flaky connection). So, does the ONE distribution cover this? Or is it more like distribution full or in part...?

Re:NewYorkCountryLawyer is dishonest (2, Insightful)

Theaetetus (590071) | more than 4 years ago | (#31194474)

He could hit 1:1 or 100:1 ratio with peer-to-peer and never actually distribute the file in full (if he has a flaky connection). So, does the ONE distribution cover this? Or is it more like distribution full or in part...?

He admitted under oath that he distributed. He said effectively, "I, Andrew Tenenbaum, distributed at least one complete copy without authorization." That's all that needs to be said - it fully proves that he illegally distributed one copy. Any question about seeding is irrelevant. Also, he was doing this via Gnutella, not bittorrent (and Gnutella didn't support bittorrent back then), so MediaSentry could prove that the entire file they downloaded came from his IP.

Re:NewYorkCountryLawyer is dishonest (1)

h4rr4r (612664) | more than 4 years ago | (#31194604)

How the hell do they get 150,000 out of 1 act of distribution?

Really wondering here, I fail to understand how that seemed like a fair punishment to the folks making the law.

Seems like setting speeding tickets at $1000 per mile over the posted limit.

Re:NewYorkCountryLawyer is dishonest (1)

h4rr4r (612664) | more than 4 years ago | (#31194362)

So then real damages are what $6?
That would be triple damages for his one copy and the one other copy he made if his share ration was 1:1.

Re:NewYorkCountryLawyer is dishonest (1)

Theaetetus (590071) | more than 4 years ago | (#31194482)

So then real damages are what $6? That would be triple damages for his one copy and the one other copy he made if his share ration was 1:1.

Nope, much higher. He admitted distributing the copy.

Say the RIAA has a new single, and they want to license it to retailers such as H&M or the iTunes Music Store. They go to them and say "we'll grant you a license to distribute this song in your store for 20% of your proceeds, with a minimum of $50k per year, for the next five years," and the other side says, "why the fark should I do that, it's available free on the Gnutella network. Sure, we'd have some sales, but if people can get it free, they'll just do that. We won't make that $50k back, so no. Make it $1k per year, and you've got a deal."

That's $49k per year in lost profits for the RIAA for that song, due to the loss of value of the distribution right caused by the infringer.

Re:NewYorkCountryLawyer is dishonest (2, Interesting)

NewYorkCountryLawyer (912032) | more than 4 years ago | (#31194326)

You're failing to take into account how peer-to-peer works: most people have a share ratio of about 1:1. On average, any one person can only be held accountable for distributing one copy of something they seed.

Shhhhh. The RIAA doesn't want people (especially judges) to know that. If you say something like that here, word might get out.

Re:NewYorkCountryLawyer is dishonest (0)

Anonymous Coward | more than 4 years ago | (#31194468)

on that thought then the RIAA should have rounded up all of the seeds (for a popular song that can be hundreds of thousands) and make them all liable for the damages. on that thought, $150 k of damages for 150 k of people would be a dollar a person. makes alot more sense. trying to pin the whole swarm on one person is like making a small time kneebreaker responsible for the collective misdeeds of the entire mafia.

but the RIAA doesn't want real justice, they want a witch hunt

Re:NewYorkCountryLawyer is dishonest (2, Insightful)

ljw1004 (764174) | more than 4 years ago | (#31194534)

I agree. That's the interesting discussion that we SHOULD be having. In particular,

(1) The courts say "We don't know how many people downloaded it so we'll pick an arbitrary number in the THOUSANDS when we calculate damages". That reasoning needs to be challenged.

(2) The courts say "Distributing just a part of the song counts just as bad as distributing the whole of it". That reasoning needs to be challenged.

I'd really like to have a legal advocate on the technie's side who can make these arguments. These are BAD precedents that the courts are setting and which need to fought.

(NewYorkCountryLawyer's fight that "Tannenbaum didn't even distribute" is counter-productive.)

Re:NewYorkCountryLawyer is dishonest (2, Interesting)

ahabswhale (1189519) | more than 4 years ago | (#31193894)

Please show me in his post where he says that damages should only count for the original download. You seem to be putting words in his mouth.

Re:NewYorkCountryLawyer is dishonest (4, Informative)

Theaetetus (590071) | more than 4 years ago | (#31194030)

Please show me in his post where he says that damages should only count for the original download. You seem to be putting words in his mouth.

"record company's lost profit is in the neighborhood of 35 cents"

That statement can only be true if you're talking about the original download. Distribution rights are far more expensive.

Re:NewYorkCountryLawyer is dishonest (2, Insightful)

russotto (537200) | more than 4 years ago | (#31194526)

That statement can only be true if you're talking about the original download. Distribution rights are far more expensive.

Reproduction rights are expensive too, but it doesn't make sense to consider the damages from unauthorized reproduction of one copy to be equivalent to the cost of a license to reproduce some large number of copies. If he distributed one copy, the actual damages are at most the price of one copy.

Re:NewYorkCountryLawyer is dishonest (1, Interesting)

Theaetetus (590071) | more than 4 years ago | (#31194596)

That statement can only be true if you're talking about the original download. Distribution rights are far more expensive.

Reproduction rights are expensive too, but it doesn't make sense to consider the damages from unauthorized reproduction of one copy to be equivalent to the cost of a license to reproduce some large number of copies. If he distributed one copy, the actual damages are at most the price of one copy.

What makes you say that?

Say the RIAA has a new single, and they want to license it to retailers such as H&M or the iTunes Music Store. They go to them and say "we'll grant you a license to distribute this song in your store for 20% of your proceeds, with a minimum of $50k per year, for the next five years," and the other side says, "why the fark should I do that, it's available free on the Gnutella network. Sure, we'd have some sales, but if people can get it free, they'll just do that. We won't make that $50k back, so no. Make it $1k per year, and you've got a deal."

That's $49k per year in lost profits for the RIAA for that song, due to the loss of value of the distribution right caused by the infringer.

Re:NewYorkCountryLawyer is dishonest (1)

evanbd (210358) | more than 4 years ago | (#31194602)

Please show me in his post where he says that damages should only count for the original download. You seem to be putting words in his mouth.

"record company's lost profit is in the neighborhood of 35 cents"

That statement can only be true if you're talking about the original download. Distribution rights are far more expensive.

Well, the record company didn't lose the distribution rights, so those aren't damanges.

I can see how reasonable actual (not statuary) damages would include the song the downloader didn't pay for, along with all uploaded copies of the song not paid for. That's a bit of double counting, but not outside the scope of reasonable — it counts all damages that the defendant was involved in as completely the defendant's fault, which is normal.

Re:NewYorkCountryLawyer is dishonest (1)

MindCheese (592005) | more than 4 years ago | (#31194162)

Come on. You think that every single time that one user downloads a song from another user on a P2P network means a sale was lost?

At best, these users either have no intention of buying music, or they don't believe the music is worth what they're being asked to pay. Sidestepping the issue of whether or not their actions are morally or legally correct for a moment, these users STILL have no intention of ever buying music. These lawsuits are simply a means for the recording industry to wring outrageous profits from a demographic of the population who they wouldn't be able to make money from otherwise, under the guise of a law that was enacted when printing presses were the technological boogeymen du jour.

The argument that the unknown, indeterminable, unquantifiable amount of music that Tenenbaum actually "distributed" impacted RIAA sales in any significant way (much less than to the tune of $675K) is total lunacy, case law be damned.

Re:NewYorkCountryLawyer is dishonest (-1, Redundant)

Theaetetus (590071) | more than 4 years ago | (#31194238)

The argument that the unknown, indeterminable, unquantifiable amount of music that Tenenbaum actually "distributed" impacted RIAA sales in any significant way (much less than to the tune of $675K) is total lunacy, case law be damned.

Not necessarily... Say the RIAA has a new single, and they want to license it to retailers such as H&M or the iTunes Music Store. They go to them and say "we'll grant you a license to distribute this song in your store for 20% of your proceeds, with a minimum of $50k per year, for the next five years," and the other side says, "why the fark should I do that, it's available free on the Gnutella network. Sure, we'd have some sales, but if people can get it free, they'll just do that. We won't make that $50k back, so no. Make it $1k per year, and you've got a deal."

That's $49k per year in lost profits for the RIAA for that song, due to the loss of value of the distribution right caused by the infringer.

Re:NewYorkCountryLawyer is dishonest (2, Interesting)

h4rr4r (612664) | more than 4 years ago | (#31194480)

By that logic they could offer it to itunes for $1 trillion, and since Apple will say no that is a $1 trillion loss due to piracy. Nevermind there could be a whole host of other reasons why Apple may not want to fork over the $1 trillion.

Re:NewYorkCountryLawyer is dishonest (1)

Theaetetus (590071) | more than 4 years ago | (#31194574)

By that logic they could offer it to itunes for $1 trillion, and since Apple will say no that is a $1 trillion loss due to piracy. Nevermind there could be a whole host of other reasons why Apple may not want to fork over the $1 trillion.

No, the court could say "gee, really? $1 trillion? Yeah, I'm not stupid. You're lying and here's some Rule 11 sanctions for making a false filing."

They can go by market rates, and there's a lot of data available on the market rate for a distribution license for a song - nonexclusive licenses, exclusive licenses, licenses in certain formats, geographic licenses, singles, albums, etc. Tons, and years worth. Very easy to determine the market range. Hell, Michael Jackson bought the exclusive distribution rights to 4,000 Beatles songs a few years back for $47.5 million - that's about $11k per song.

Re:NewYorkCountryLawyer is dishonest (1)

zappepcs (820751) | more than 4 years ago | (#31194378)

Absolutely right. There is no reasonable estimation, never mind recorded volume of distribution. It in fact could be zero. Since the chances are as likely to have been zero as to have been 150,000, there is no reason to rule to the benefit of the RIAA. That is sort of like handing out a jay-walking ticket that carries a fine of 150000 times normal in case the offender has jaywalked in the past but did not get caught. Argument about the actual damages are moot, there is no way to show what the number of downloads or distributions actually is, hence, one copy is all that can be proved... or about 35 cents per song.

Re:NewYorkCountryLawyer is dishonest (4, Interesting)

NewYorkCountryLawyer (912032) | more than 4 years ago | (#31194402)

Come on. You think that every single time that one user downloads a song from another user on a P2P network means a sale was lost? At best, these users either have no intention of buying music, or they don't believe the music is worth what they're being asked to pay. Sidestepping the issue of whether or not their actions are morally or legally correct for a moment, these users STILL have no intention of ever buying music. These lawsuits are simply a means for the recording industry to wring outrageous profits from a demographic of the population who they wouldn't be able to make money from otherwise, under the guise of a law that was enacted when printing presses were the technological boogeymen du jour. The argument that the unknown, indeterminable, unquantifiable amount of music that Tenenbaum actually "distributed" impacted RIAA sales in any significant way (much less than to the tune of $675K) is total lunacy...

Well, in the only case in which I am aware of the issue having come up, the judge agreed with you -- not with them. USA v. Dove [blogspot.com] held that it is absurd to argue that each unauthorized download represents a lost sale.

Re:NewYorkCountryLawyer is dishonest (-1, Flamebait)

Theaetetus (590071) | more than 4 years ago | (#31194416)

Come on. You think that every single time that one user downloads a song from another user on a P2P network means a sale was lost? At best, these users either have no intention of buying music, or they don't believe the music is worth what they're being asked to pay. Sidestepping the issue of whether or not their actions are morally or legally correct for a moment, these users STILL have no intention of ever buying music. These lawsuits are simply a means for the recording industry to wring outrageous profits from a demographic of the population who they wouldn't be able to make money from otherwise, under the guise of a law that was enacted when printing presses were the technological boogeymen du jour. The argument that the unknown, indeterminable, unquantifiable amount of music that Tenenbaum actually "distributed" impacted RIAA sales in any significant way (much less than to the tune of $675K) is total lunacy...

Well, in the only case in which I am aware of the issue having come up, the judge agreed with you -- not with them. USA v. Dove [blogspot.com] held that it is absurd to argue that each unauthorized download represents a lost sale.

But what about the lost value of the licensing right? Say the RIAA has a new single, and they want to license it to retailers such as H&M or the iTunes Music Store. They go to them and say "we'll grant you a license to distribute this song in your store for 20% of your proceeds, with a minimum of $50k per year, for the next five years," and the other side says, "why the fark should I do that, it's available free on the Gnutella network. Sure, we'd have some sales, but if people can get it free, they'll just do that. We won't make that $50k back, so no. Make it $1k per year, and you've got a deal."

That's $49k per year in lost profits for the RIAA for that song, due to the loss of value of the distribution right caused by the infringer. That's completely separate from arguing that each unauthorized download represents a lost sale.

Re:NewYorkCountryLawyer is dishonest (1)

Theaetetus (590071) | more than 4 years ago | (#31194428)

Come on. You think that every single time that one user downloads a song from another user on a P2P network means a sale was lost? At best, these users either have no intention of buying music, or they don't believe the music is worth what they're being asked to pay. Sidestepping the issue of whether or not their actions are morally or legally correct for a moment, these users STILL have no intention of ever buying music. These lawsuits are simply a means for the recording industry to wring outrageous profits from a demographic of the population who they wouldn't be able to make money from otherwise, under the guise of a law that was enacted when printing presses were the technological boogeymen du jour. The argument that the unknown, indeterminable, unquantifiable amount of music that Tenenbaum actually "distributed" impacted RIAA sales in any significant way (much less than to the tune of $675K) is total lunacy...

Well, in the only case in which I am aware of the issue having come up, the judge agreed with you -- not with them. USA v. Dove [blogspot.com] held that it is absurd to argue that each unauthorized download represents a lost sale.

But what about the lost value of the licensing right? Say the RIAA has a new single, and they want to license it to retailers such as H&M or the iTunes Music Store. They go to them and say "we'll grant you a license to distribute this song in your store for 20% of your proceeds, with a minimum of $50k per year, for the next five years," and the other side says, "why the fark should I do that, it's available free on the Gnutella network. Sure, we'd have some sales, but if people can get it free, they'll just do that. We won't make that $50k back, so no. Make it $1k per year, and you've got a deal."

That's $49k per year in lost profits for the RIAA for that song, due to the loss of value of the distribution right caused by the infringer. That's completely separate from arguing that each unauthorized download represents a lost sale.

Obviously that should be "lost value of the licensing[period]" - the right involved is the distribution right.

Re:NewYorkCountryLawyer is dishonest (0)

Anonymous Coward | more than 4 years ago | (#31194496)

Perhaps, however should he be held accountable for the actions of thousands of others? Of which was never proven that others copied from him it is assumed though. The only thing admitted to was that he copied the junk of the net. All other arguments at this point are mute.

Their real argument (at least at this point) is 22k per song 'fair' and doesnt go against the constitution? This is about all they can argue at this point. They seem to have a bit of case law (which caries a good deal of weight, and they list out) in their favor. At this point they are not arguing whether *HE* distributed anything he admitted to that. They are arguing is 650k a cruel and usual? A 1000:1 damages (which is the minimum being argued for) or the 32000:1 that was awarded is not excessive. The typical ruling even for commercial infringement is 3-8:1 not the crazy amounts being bandied about here. The rest of the argument is about how if allowed to stand how they could literally stop making music and just sue people to make money. Not exactly a 'promote the Progress of Science and useful Arts'.

http://www.usconstitution.net/const.html#Am8 [usconstitution.net]

The thing most people do not realize is there is 4 things on trial at every trial; the defendant, the plaintiff, and the law itself, and the judges. At this point in the trial stage the law and the judge are on trial. Is the law wrong, did the judge rule wrong according to the law, or by following the law the judge do something wrong. These are the points that the defendant is bringing up. They are good arguments.

My family has asked me about this sort of thing being a computer dork. I told them it is basically like he shoplifted 24 cds and then is going to spend 20 years in jail for it.

I swear people are so lazy when it comes to jury duty. The citizens on that jury should be bitch slapped for awarding that. If it had been me on that jury I would have done the min 750x24 with a note saying it should be much less but by law we are only allowed to do this. This is really a case of petty theft. Literally a mountain out of a mole hill.

Re:NewYorkCountryLawyer is dishonest (1)

Hurricane78 (562437) | more than 4 years ago | (#31194624)

So? Then the existing case law, the text of the law, and the interpretation by the judges is wrong!

You know: Argumentum ad populum [wikipedia.org] . Just because a lot of people are saying it, doesn’t mean it is right.

shut the fuck up (0)

Anonymous Coward | more than 4 years ago | (#31193770)

it doesn't mean jack shit until the court rules on it.

Mynet (-1, Offtopic)

Anonymous Coward | more than 4 years ago | (#31193844)

MyNet [irchat.org]

Well worth the read (1)

bzzfzz (1542813) | more than 4 years ago | (#31193908)

Tenenbaum did an excellent job. The research behind this is significant. The brief is well worth reading, in its entirety.

Great argument (1)

AdamD1 (221690) | more than 4 years ago | (#31194366)

This reply is one of the most clearly-worded criticisms of the RIAA's prosecution, and I wish it could be applied to all the other cases which have gone before and are still before the courts.

I think it's crucial that they specifically talk about the fact that this individual did not profit from the sharing of this handful of files, and that it is unlikely that he, on his own, was singularly responsible for the sharing of those files to specifically "millions" of people, directly leading to "billions of dollars of lost revenues".

I wrote an article recently about "RIAA Math [brainrub.com] ", researching just what kind of activity an individual would have to engage in to share a small number of files enough times, consistently, with zero failure or network downtime to make this kind of punitive or statutory damage claim worthy of being awarded. I used the pending damages case regarding Jammie Thomas-Rasset, which has been posted here many times. (Short answer: for the $1.92 million they claim she is on the hook for, she'd have to share all of the infringing copies for 444 days straight, no downtime, sharing to a grand total of nearly 58,000 individuals, and that's assuming that every single person actually downloaded the entire song.)

They key piece is that this guy was not personally profiting from this. He downloaded them for personal use. Even if we assume he burned copies for a handful of his friends, that is still not a "profit" engine, and even if it were, those profits would never amount to what the RIAA is claiming.

I'm intrigued to see the outcome of this, much as I am with the Thomas-Rasset case.

ad
(Former Music Industry Employee And Pundit)

The trolls are out tonight in force (2, Interesting)

NewYorkCountryLawyer (912032) | more than 4 years ago | (#31194446)

I know even my friends on Slashdot don't like it when I say this, but...

The trolls are really out in force tonight, on this one. They'll be eating everyone of their nonsensical words when Judge Gertner renders her decision.

Distribution (4, Informative)

NewYorkCountryLawyer (912032) | more than 4 years ago | (#31194508)

Since the "distribution troll" is working this thread, I'll make this statement once:

The distribution right in 17 USC 106(3) [cornell.edu] requires:
-that it be by a sale, or other transfer of ownership, or by a rental, lease, or lending, AND
-that it be to the public.

There is NO lost profit. NONE whatsoever. (0, Troll)

Hurricane78 (562437) | more than 4 years ago | (#31194532)

Because digital data reproduction does not cost money. And you can not take it away too.
The 35 cents are a lie too! You can not sell the digital data itself.

You can sell the service which results in digital data, though. But when you created it, and passed it over to someone, he now can do what it what he wants. Just as when you tell someone your name. Gone and out of control.

Their business model is based on faulty logic resulting in using bitspace objects as if they were meatspace ones. Those are two realms with radically different laws/rules (of physics).

So not only the damages that can be awarded are ZERO, but the media companies are engaged in active fraud of selling physically not existing things.

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