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RIAA Litigation May Be Unconstitutional
dtjohnson writes "A Harvard law school professor has submitted arguments on behalf of
Joel Tenenbaum in RIAA v. Tenenbaum in which Professor Charles
Nesson claims that the underlying law that the RIAA uses is actually a
criminal, rather than civil, statute and is therefore
unconstitutional. According to this article, 'Nesson
charges that the federal law is essentially a criminal statute
in that it seeks to punish violators with minimum statutory penalties
far in excess of actual damages. The market value of a song is 99 cents
on iTunes; of seven songs, $6.93. Yet the statutory damages are a
minimum of $750 per song, escalating to as much as $150,000 per song
for infringement "committed willfully."' If the law is a criminal
statute, Neeson then claims that it violates the 5th
and 8th
amendments and is therefore unconstitutional. Litigation will
take a while but this may be the end for RIAA litigation, at least
until they can persuade
Congress to pass a new law."
Quote from TFA:
" The law, Neeson writes, is âoewholly analagousâ to a law that provides the following regime for speeders: (1) a $750 fine for every mile over the speed limit, escalating to $150,000 per mile if the speeder knew he was speeding; (2) the fines are not publicized and few drivers know they exist; (3) enforcement not by the government but by a private police force that keeps the fines for itself and:
that has no political accountability, that can pursue any defendant it chooses at its own whim, that can accept or reject payoffs in exchange for not prosecuting the tickets, and that pockets for itself all payoffs and fines. Imagine that a significant percentage of these fines were never contested, regardless of whether they had merit, because the individuals being fined have limited financial resources and little idea of whether they can prevail in front of an objective judicial body. "
I be dead if the police troops act like RIAA does.
They'll continue to sue.
Nothing will stop them.
The DoJ or Supreme Court certainly could.
Why aren't any racketeering/trustbusting laws coming into play here? The actions of the RIAA/MPAA are increasingly resembling those of a band of criminals.
-- If you try to fail and succeed, which have you done? - Uli's moose
This is of no real importance, but the "suddenoutbreakofcommonsense" has struck me as often being misapplied for a while. Here it is especially flagrant.
First of all "sudden." This doesn't seem very sudden, the prof doesn't appear to have suddenly thought "Oh crap! We've been going about this all wrong!" and published it on his blog. This seems like something that was more considered.
Outbreak: It sounds like it's just one guy suggesting this interpretation. For it to be an outbreak, there would have to be other constitutional scholars jumping on board, right? There are plenty of slashdotters who are going to be jumping on board, but that's not really "catching" the "maybe the RIAA is wrong" bug, that's just adding to the long list of reasons we already had.
This isn't common sense, this is an interpretation of constitutional law, something that doesn't work much by common sense, especially not in recent history.
A real case the tag could have been applied was when everyone started realizing that when we have a misfortune, like getting sick, it might not be because God is punishing us for something we did. That's an outbreak of common sense. This is more properly tagged "aguyhasanothergoodreasontheRIAAsucks."
Take that for what it's worth (about half a penny, probably.)
Why aren't any racketeering/trustbusting laws coming into play here? The actions of the RIAA/MPAA are increasingly resembling those of a band of criminals.
As are the actions of a good chunk of our congressmen.
I don't recall anything in the Constitution protecting an individual's right to steal.
I know I'm feeding the troll, but anyway. You can apply criminal penalties in a criminal trial, but you can not apply criminal penalties in a civil trial. Otherwise you could simply do an end-run around the whole constitution without due process, right to an attorney, "beyond a reasonable doubt" and all that. If RIAA/MPAA want to treat people as criminals that should be punished, this is simply asking for the same protection of the law as a person accused of stealing or any other crime has. If they want civil compensation for damages, then it should reasonably reflect actual losses. The RIAA/MPAA want to have their cake and eat it too, they want a minimal burden of proof and a "whoever gets caught, shares the damages" that has no precedent in neither criminal nor civil law. If I was found guilty of stealing a $100 item, my punishment should be the same whether they lose $500 or $500,000/year to shoplifting and whether they catch 10% or 90% of the shoplifters. Last I got a speeding ticket I got it based on how fast I drove, not how fast everyone else drives on the same road. Imagine you were caught for littering - almost noone gets caught for littering - and they fined you $1,000,000 to cover the cleanup from everyone else. Does that even remotely make sense in your world?
Live today, because you never know what tomorrow brings
Civil suits are based on actual damages and you must prove actual damages before you can even proceed with a civil case in most cases. There can be a punitive component, but it's used primarily for cases where the defendent was willfully negligent, and, like the actual damages, is up to the jury to decide). The plaintiff in a civil trial also does not have the same procedures available to them for the purposes of evidence gathering. Generally the FBI will not prosecute a warrant to gather evidence for a civil trial.
Criminal cases on the other hand involve the violation of law, impose government mandated fines, and often involve forced search and siezure for the purposes of evidence gathering. Actual damages are unimportant in a criminal trial and do not have to be proven.
As far as I can see the RIAA lawsuits look a heck of a lot more like the second than the first. About the only difference between an RIAA lawsuit and a real criminal trial is that the defendent in a RIAA lawsuit has fewer rights and once the jury has decided guilt they decide the punishment rather than a judge.
So from this analysis(and from TFA) it appears very much that the RIAA is criminally prosecuting people without giving them any of the rights associated with a criminal trial(proof beyond a reasonable doubt, ethical requirements for investigators, double jeopardy, and a free lawyer facing a prosecutor instead of a whole team of viscious land sharks.
If this is indeed the case, and I'm certainly beginning to believe it is, then it's not only a travesty of justice, but decidedly unconstitutional.
Theft is where you, without permission, obtain something while depriving the legal owner of it. In the days of absurd DRM, this can be possible, as making a copy may deprive the legal owner of their copy. In any reasonable sense, theft should not apply to copyright infringement... and the RIAA strikes again.
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Yes. My personal copyright-violating collection of music currently contains 2418 tracks. Under the RIAA's theory of damage calculations, if they win a copyright-infringement case against me, the minimum damages are $1,813,500; the maximum is $362,700,000. Based on a price of $0.99 per track, the actual damages are $2393.82.
Big difference.
That may be the best opening line for a novel in the English language.
Rule of Slashdot #0: You and people like you are not representative of the larger population. - A.C.
I don't think statutory damages are supposed to be punitive. Punitive damages are something extra that you sue for, in addition to being made whole.
Right. The contention here is that the statutory damages in question, $750 per song, are so large as to be punitive.
The importance is the clarification of "like", in the instance of a duck test like can be very exact or very loose.
You can for instance look at a duck, say "it looks exactly like a duck, quacks exactly like a duck and swims exactly like a duck, so I as someone knowledgeable in the area can say without a dna test that it's a duck".
One of its common uses(aside from Duck Typing in certain computer languages), and the one I was using it in, is to show that technical differences don't matter. If a policeman breaks into your home and kills your family outside the scope of the law then the fact that he's a policeman doesn't matter. He broke into your home like a murderer, and killed someone like a murderer so for the purposes of the crime he is a murderer. Despite the fact that, as he's a policeman, he's allowed to carry a gun and allowed to use it in certain circumstance, the fact that he's a policeman, even if he was in uniform at the time, doesn't matter. He meets the important criteria of being a murderer (broke into someone's house and killed them), and so he is a murderer.
For the purposes of my example, the way the RIAA treats copyright violation(even to the extent that they actually say it's a crime) meets the important criteria for the treatment of a criminal offense. They can claim that it's a civil action, and do, but in nearly every imporant respect it's not. Hence the duck argument.
You can certainly be facetious with the duck argument (something along the lines of, it's got a skeleton like a duck, so it must be a duck), but there are always certain aspects which define something, and if something has those aspects then you can say with fair probability that it is a form of that thing.
For your specific example, if I say that I saw a duck, and it's a coot, but for the purposes of my story it doesn't matter that it's a coot not a duck, then for all intents and purposes it's a duck.