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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."
How many times have I heard about a be-all end-all case where the RIAA/MPAA/etc has lost, been laughed by a judge, had a precedent set against them, etc.?
They'll continue to sue.
Nothing will stop them.
"I don't recall anything in the Constitution protecting an individual's right to" infringe copyright.
There, fixed that for you.
"A person is smart. People are dumb, panicky dangerous animals and you know it." - K
I'm not an attorney, but somehow this doesn't seem like it's gonna fly. The law was not codified as criminal, and thusly lies the fatal flaw in TFA.
Congress has many times passed laws which were punitive without being criminal. For example, the Fair Debt Collection Practices Act (FDCPA) has punitive statutory damages in it.
I just don't think the argument will eventually hold much water, wish it held enough to float a battleship, but alas, I don't think so.
Beer is proof that God loves us and wants us to be happy.
Current copyright practice violates every amendment..
1. Used to quash free speech.
2. We need a violent overthrow of the RIAA.
3. The Sony root kit is like billeting soldiers on their war on copying in my house.
4. They have no respect for my privacy and all their searches are unreasonable.
5. They'd like you to believe that doing normal things with their products makes you a criminal.
6. There's no due process in civil cases.
7. The right to a jury trial in a civil matter is pointless, seeing as the judge instructs the jury to uphold the law even though the law is stupid and everyone knows it.
8. Oh, that's what the article is about, excessive stupidity.
9. like, say, the right to use my copy machines to copy whatever the fuck I want.
10. redundant much?
11. The TRIPS agreement and the Berne Convention are examples.
12. Lobbying undermines.
13. Without freedom to copy, we're all slaves.
14. Lobbying.
15. Criminal copyright infringement convictions (wtf? When did that happen?) means you can't vote.
16. No property tax for copyright?
17. Lobbying.
18. You have to be drunk to understand copyright law.
19. umm... err.. Lobbying, yeah.
20.Lobbying.
21.See 18.
22.Lobbying.
23.Lobbying.
24.Lobbying.
25.Lobbying.
26.Lobbying.
27.Did I mention Lobbying?
How we know is more important than what we know.
I have had to deal with the civil/criminal distinction as it arises in cases involving contempt. Civil contempt must be remedial; if it is not remedial it is punitive; if it punitive, then the accused gets the full panoply of criminal due process.
On the other hand, common-law punitive damages do not offend due process. But punitive damages are usually imposed by juries, based on individualized determinations, and limited by discretion. The copyright provisions are not individualized and provide for no discretion.
Treble damages have also been held not to violate due process.
This is a very interesting argument!