Slashdot Mirror
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.
the sky may be blue, water may be wet, etc.
"If for any reason you're not satisfied with our service, I hate you."
Would anyone like a nice cup of Goatse?
...until the RIAA gets an amendment added to the constitution with regard to copyright law.
This is actually very good news, as I doubt that they have that much power in the government. On the other hand, though, IANAC (I am not a congresscritter) so I don't know how much influence RIAA has.
Oh, and unless I took too long writing this post, FIRST POST!!!
It breaks the 2nd amendment
you dont say?
I don't recall anything in the Constitution protecting an individual's right to steal.
I took too long :(
I read the article, but it is rather light on details. Does anyone know if there is any case law or statute which holds that civil penalties can be considered criminal by virtue of the amount of the penalty? The argument seems to be that because the statutory damages are so huge that by that very fact the law becomes criminal rather than civil. What precisely is the basis for that conclusion? Is there any precedent for that reasoning?
If I can be modded down for being a troll, can I be modded up for being an orc, or a balrog?
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.
tagged
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.
This SHOULD be criminal. If it is against the law, it's criminal. Also, if it is NOT criminal, the "fines" or reward for damages should reflect what the company/artist lost. Seeing as how the lack of $1-$10,000 isn't really effecting them, it should be cost. Just my 2 cents.
I've heard that Joel Tenenbaum has stomach cancer so this won't matter. He's dying. Well, he's not dying. Except that he's dying.
While I, too, am a little fuzzy on why this would effectively classify as a criminal law, I certainly hope the RIAA is finally put in its place. I'm afraid the constitutionality issue will not help, though. It seems to me that the Supreme Court usually decides what outcome it wants and then applies whatever backward, convoluted logic it can to justify their position (assuming they don't just refuse to hear the case). The speeding analogy was really good though, wasn't it?
The most exciting phrase to hear in science, the one that heralds new discoveries, is not 'Eureka!' but 'That's funny...
I knew this was eventually going to come to an end. I wasn't sure, but I'm happy that now I can safely know that this organization can just be quiet.
My question however is Ray Beckerman. I haven't been reading or seeing his comments as of late. Is he doing well? The last I heard of him was a Slashdot article saying he was hushed against blogging on a case.
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.
His name is Charles Nesson, not Charles Neeson.
I would know. He's my professor.
While I hope they succeed in eliminating this law for good, there is another side to this.
I think that congress is within its rights to set specific damages to things that are hard to place a value on. The OP says that damages should be 99 cents per song. How many people did that person share the song with? Does an average user share the song 1000 times?
I think another analogy would be that of the Do Not Call registry. There is a specifc dollar amount that you can claim as damages. This is because it is hard to place a value on the time and annoyance the average person was caused by the phone call. So they place a set amount on it.
Again, hope they suceed, but it isn't as cut and dry as we would all like to think.
For one, the guy's name is Nesson, not Neeson. Also, he is both incredibly brilliant, (one of the very few people to graduate summa cum laude from Harvard Law School,) and incredibly eccentric. He's the sort of guy who will give final exams in Second Life or let people create an original Youtube video instead of the traditional test. Here's his class's page about this whole issue: http://blogs.law.harvard.edu/cyberone/riaa/
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!
With fines like that I-294 can be toll free as well the rest of the IL toll way system.
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.)
If this leads where it SHOULD, it will take more than persuading Congress to get this hole in their plans patched. The theoretical new law would either have to provide for more like the actual value ($0.99) or treble damages if willful ($2.97).
Anything else would be a HUGE uphill battle to amend the Constitution and would require buying off 3/4 of the state legislatures. Unlike typical Congressional bribery, they would have to pay enough for each legislator to retire to another country since such a move would be at least the end of their political career and quite possibly leave them nowhere safe to live in the U.S.
People get a bit more picky about crooked legislators when they start messing with the Constitution directly.
The one that RIAA is suing is pretty young.
I think the RIAA's reasoning for charging so much is based on the principle that the user shares the song with an infinite number of other users. I am not advocating for the RIAA, I am just pointing out the blurb above did not contain why the RIAA charged so much. Plus, the position filed with the court uses the speeding analogy, which I think is wholly flawed.
This does not change the fact that what the RIAA is doing is wrong. And, it is probably unconstitutional as well.
Well, that shouldn't take too long given the propensity of previous Congresses, controlled by whichever party, to extend copyright, increase statutory damages, and generally do just about anything that the MAFIAA asks them to do. The only hope for consumers is that constitutional challenges to the existing copyright laws, probably brought within the context of the ongoing file sharing lawsuits (the Boston judge named in this story discussed previously on Slashdot has allowed at least one defendant to amend his answer to the lawsuit to include constitutional claims, so these constitution issues will come up if the RIAA continues its litigation campaign), lead to the Supreme Court striking down some of the more onerous restrictions and punishments.
This is an interesting argument, but there are other statutes which impose minimum damages, and these have generally been upheld.
However, given the size of the damages here and the funds of the average defendant, perhaps the Court will find Congress has overstepped its bounds. I wouldn't count on it though, if this were to somehow succeed at trial and percolate up to the Supreme Court, the "pro-business" members of the bench would likely get a majority for reversal.
.
But that song does not come with a license to redistribute.
You cannot, without consequences, and as a charitable gesture, simply burn 10,000 copies and airdrop them onto a city park.
Assume for the moment that a download could be tagged to its ultimate source - meaning you.
Assume for the moment that traffic in that file could be monitored or estimated in a way that would be persuasive to a civil judge and jury.
Where expert testimony is generally admissible and the burden of proof on the plaintiff is slight.
The files you uploaded have been out there for months. Do you really, really want the damages to be assessed at 99 cents a track?
As compensatory damages - which are generally unlimited?
That's not true at all. Torts and breaches of contract are "against the law" without being criminal. As are all kinds of action by the federal government which exceed its Constitutional authority. If it is criminal, it is against the law, but the converse is not true.
The RIAA intimidates and steamrolls accused infringers into settling before they have their day in court and before the courts can weigh the merits of their defenses. The inherent dangers in allowing a single interest group, desperate in the face of technological change, led by a voracious, cohesive, extraordinarily well-funded and deeply experienced legal team doing battle with pro se defendants, armed with a statute written by them and lobbied and quietly passed through a compliant congress, to march defendants through the federal courts to make examples out of them should lead this Court to say "stop."
Those are my principles, and if you don't like them... well, I have others.
IANAL, and I hate what the RIAA has been up to, but this is stupid. How many legs does a dog have, if you call a tail a leg? Four! You can't simply call this law a criminal statute and make it so. It's civil.
Besides, I can't take any of this seriously until NYCL comments.
...but in defense of the law, the RIAA, and the concept here, the person isn't just making a personal copy. If they commit copyright infringement, the theory is that they're distributing and enabling a chain of other people to receive copies.
That being said, $150,000 is ridiculous and the RIAA is evil.
http://blindscribblings.com - Tasty pop-culture in conceptual fashion.
At core his defenses and counterclaim raise a profoundly conceptual question: Is the law just the grind of a statutory machine to be carried out by judge and jury as cogs in the machine, or do judge and jury claim the right and duty and power of constitution and conscience to do justice?
The jury can decide the law sucks and needs to die, and command such. We allow a jury to preside over civil and criminal cases because it allows a random assortment of ordinary people to make judgment on the law. The people have spoken, the law sucks, remove it, end of story.
Support my political activism on Patreon.
Good. We need more of those on the consumers' side. And maybe a gamer or two. We're all kinda saying that their crusade has to fall, but we haven't seen the shut-down proof yet. Something irrefutable and easy.
Kinda like: ::Crickets::
(RIAA vs. Joseph Helviticus Schmoe, Esq.)
Counsel for the defense:
"Your honor, so we established these penalties per infringement, right?"
"Yes"
"Okay, So the 3,828 400 GB hard drives from Plaintiff which each have 27,000 infringing are in violation, right? Please ask Plaintiff to pay first. Now, seven seconds later, please begin bankrupty proceedings."
My first Journal Entry ever, in 8 years! http://slashdot.org/journal/365947/aphelion-scifi-fantasy-horror-poetry-webzine
and he also supports fucking white women and making white men suck on his dick as restitution for slavery. if you're white you are guilty in his eyes and he'll make sure you know if for his term in office.
2008. the first election won by playing the race card.
get use to it white boy. there will be no social programs for you.
"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."
Sounds to me that this is an excessive fine and the amendment applies whether it's criminal or civil. What am I missing here?
You conclusion is only valid if:
- Users share/upload the same number of songs they download
- Only one song exists.
If there, were, for example, 1,000 different songs, each user could share/upload one song 1,000 times, and each user could download each of the 1,000 songs once.
Not to mention that most users download more songs than they upload/share. So you could have one user upload/share a song 1,000 times, and have 1,000 users who downloaded the song once but didn't upload/share crap.
paintball
Oh, and the copying=theft thing? If that was so, why did they not simply report them to the police so they could be charged with theft? I issue this challenge to all who claim copying=theft. Provide me with a copy of your work with an indemnity from any lawsuit for copying except in the case that I am convicted of stealing the work. I'll copy it in a way you can prove, but non-commercially, then you report me to the police for theft. Once that fails, you shut up.
It's hard to get police to do their job, especially on any white collar crime. And I'm not just talking theft of a 99c song, but even billion dollar white collar crimes. So while you may be right, the police argument is a specious one in this day and age (if not always).
Oh, and the copying=theft thing? If that was so, why did they not simply report them to the police so they could be charged with theft? I issue this challenge to all who claim copying=theft. Provide me with a copy of your work with an indemnity from any lawsuit for copying except in the case that I am convicted of stealing the work. I'll copy it in a way you can prove, but non-commercially, then you report me to the police for theft. Once that fails, you shut up.
It's hard to get police to enforce the law, especially on white collar crime. And not just about 99c theft, but also billion dollar crimes. So you may be right in your theory, but the police argument is specious.
'Cause you just won one.
If the average user shares song X 1000 times, then the average user downloads song X 1000 times. Who the hell downloads a given song 1000 times?
Why are you assuming that the average user shares a song with only one person?
If it's for-profit but free, you're not the customer -- you're the product (e.g., the Slashdot Beta's "audience").
Yup, except there are federal laws that come in to play if you reach a threshold, which is why i think they go for such ludicrous amounts.
But the point will all be moot soon anyway, as they are slowly buying the laws they need to shift it from civil to criminal.
---- Booth was a patriot ----
It's true, nothing that anybody might ever consider "stupid" could possibly be a law. The very idea!
Idjit.
It's all about the information. And what we do with it.
What I can't understand is why it's taken this long for somebody high profile to say this. Or has it? Hasn't Lessig raised this point? And if not, why not? How about all those other legal folks who have been fighting this? Seems to that we're missing something here since everything in TFA seemed entirely obvious to me and everybody I talked about this with from the time that the legislation was proposed.
What makes this news? Is is something new in his analysis? Doesn't look that way.
Is it something about his having more of an ability to get it addressed? And if so, something more concrete that "he's a lawyer at Harvard" is needed.
Is this case an unusually good one to make a stand on, and if so why?
This is a fun chance for ranting and all but why should we care?
It's all about the information. And what we do with it.
I see too many comments here equating the damages to the number of times the song was shared. This equation is flawed at best.
How many people would have bought the item if they did not download it? The number is somewhere between none and all, but where exactly is it?
If an item is shared 10,000 times, are there really 10,000 instances of "damage" - or lost revenue? Worse yet for this argument; if a file-sharer is exposed to something new and then decides to purchase the song, or attend a concert, the activity has a beneficial result.
The entire problem with the RIAA and the law is that there is no reasonable way to estimate damages when NON-COMMERCIAL copyright infringement exists.
-ted
The sky above the port was the color of television, tuned to a dead channel.
In other words, a deep, rich blue, right? Most newer TVs seem to show something between #0000AA and #0000FF when they can't sync to an incoming signal.
Lobbyists. Add laws. Add incredible fines for almost no damage. Add "rock stars" giving testimony in court. End result : The government is using taxpayer funding to assist in the prosecution of it's population.
The court system, and in some cases, the police, are acting on behalf of the RIAA against the citizenry; a citizenry with it's rights stripped, extorted, and robbed, with little or no recourse.
This is a criminal conspiracy. The RIAA offices should be raided tomorrow; all assets seized, and compensation made to all the people harmed in these lawsuits.
Additionally, a letter of apology, signed by both the Speaker of the House, and the President, should be written to all of the victims.
What the RIAA has done, in collusion with the US Government, against the citizenry, is a heinous crime. They should be punished dearly for it; all the legislators voting "Aye" on related legal formulae should be investigated for conspiracy and violation of the public trust.
I think 1. the constitution places a limit on what the government can do to/with citizens, so this doesn't apply to what two private parties can get from each other in civil court, and 2. punishments are for crimes, and this is a civil matter.
Computers are useless. They can only give you answers.
-- Pablo Picasso
... as Congress pulls an emergency session out of its ass after a few of its key members find themselves with large campaign contributions.
You've never read a Heinlein novel.
Help stamp out iliturcy.
This throws up a very interesting question: if this analysis stands, what happens to the people who have already been "convicted"? What can they do? Class action? Against who?
Insert
I thought that at least part of the argument (for users of bit torrent anyway) was that as well as downloading you are distributing and so any damages sought were for both the damage to the record companies & artists and the damage to the distributer and the retailer.
Will be caught and assumed to be uploaders too, so will be sued as if all the 1000 others got the track off them.
So even at $1 per song, that's a fine total of $1,000,000 from prosecution.
At $150,000..!
1. the constitution places a limit on what the government can do to/with citizens, so this doesn't apply to what two private parties can get from each other in civil court,
I disagree with this point (will concede point #2 ). The civil court is part of the government. The law that they're suing under must be constitutional.
No suprise here. But since when have their scare/sue/bribe tactics been constitutional?
and the amendment applies whether it's criminal or civil. What am I missing here?
What you're missing is the 'So What?'. A lot of things are unconstitutional. The first that comes to mind is drug forfeiture. If I'm driving down the highway and get stopped and have what the officer considers too much money he takes it. I forfeit all my money unless I can prove it's not drug related. If they steal up to 20-30 thousand it's essentially gone due to the high cost of attorneys fees to get it back.
Then there's the stop in the first place. I've watched the television show COPS and heard an officer remark 'He has a cracked windshield that gives us probable cause'. I've witnessed searches that were far from reasonable.
How about drug laws themselves. In the old days they knew it took an amendment to outlaw a substance and passed prohibition. Today all it takes is an administrator in a department agency to classify a substance as schedule 1.
How about plea bargaining where you get 3 years if you plead guilty or 30 years minimum if exercise your right to trial. Sounds like coercion or even blackmail to me.
The list is endless. Our constitution is so watered down we don't even recognize when another law is passed exceeding it's limits. Which is likely to be the attitude of the judge. My bet is he/she won't even see it.
-[d]-
The RIAA/MPAA are recovering damages they have not proven they have suffered. How is this even a question? As I said the last time we discussed the RIAA:
What "loss of revenue"? Document the loss of revenue, or throw out the cases. Granted, copyright is violated with not-for-profit file sharing, but without proven [the standard of guilt according to the supreme laws of the land, remember] loss of revenue, the only equitable punishment, meaning fitting the crime, is to confiscate the copies and nothing more. Because in cases that the copies are shared without payment, no loss of revenue is apparent, and can only be ascertained by speculation -- of various levels of sophistication, but ultimately it can be no more than speculation -- and that is traditionally not admissible as evidence. Is it admissible as argument? Reasonable suspicion? If so, then also and equally, as counterargument and as reasonable doubt, respectively.
Disclaimer: I'm not very interested in this subject and thus not especially well-read in it, but occasionally I feel motivated to donate my $0.02 to a discussion, for basically the same reason people watch Jerry Springer I guess, just the absurd, yet presumed "real" spectacle of it.
I most often see [notice] the question of lost revenue in file sharing cases discussed as mitigating the criminals' intent, as in something for the judge to consider in assigning a lighter or harsher sentence, but not factored into the determination of guilt or innocence. But I think the absence of exchange of money absolves the mischief-makers of any financially quantifiable crime, not because of their inferred "good intentions" or absence of malice, but simply and amorally, because the assumption of lost revenue is unproven, thus legally invalid according to the assumption of innocence until proven guilty in the United States.
No, a downloaded file is not as good as the original. Some mp3s are "as good" -- for purposes of background noise, but not hi-fi or audiophile intense enjoyment of a real work of art -- as the original. But even when sound quality alone is not important enough for the downloader to purchase the copyrighted work on its originally intended format, the suitability of an mp3 is not reliably comparable to a CD. The unwanted insertion or removal of 2-second pauses between tracks on an album comes to mind, a much more noticeable defect to the casual listener than "quality" differences in mp3s or compressed video. Also, dedicated fans, defined as willing to pay retail CD mark-ups, generally want the liner notes, the high-quality photos and/or artwork, etc., available only on the original. Downloaders are not, generally, the same people as purchasers of the same work. So, no, it is not reasonable to assume that each file downloaded represents a lost sale, of either an album or single or anything, nor even that a consistent ratio of downloads to one lost sale, exists. Any such ratio would differ according to the particular work [genre, live performance vs. studio recording, etc.] and the average quality standards of the audience.
For the reason of the differences I described above, I purchase any music or video I expect to be worthy of my time, basically because I value the one or more hours that I might otherwise spend learning something, too valuable to waste on the chance of copying errors. I've seen software being written, so I don't trust my music to software. Despite having no files in my personal collection subject to the DMCA, music and software copyright litigation is a blatant waste of the judicial system which I'm taxed to perpetuate. The cost/benefit analysis is a matter of public record, and does not support the business case for the corporations to initiate litigation. Only the lawyers are gaining from this. So, as they're already running the businesses [into the ground, btw] let ^H^H^H make them write the code and the lyrics, too, for Pete's sake. Right now, they are looting economic value, meaning acquiring loot without providing anything of value, to anybody.
"I can't imagine how things could get any worse!" (some guy) "That could just be failure of imaginatioÂn on your p
The spectacular Coronado Bridge that connects San Diego to Coronado Island used to charge a toll. Now there are big signs before and on the bridge itself, saying, "We don't collect a toll any more! Please, do not stop, and do not pay us!"
The Burlington Skyway also stopped collecting tolls once the (re)construction was paid for. (I'm referring to the twinning of the bridge.)
404555974007725459910684486621289147856453481154 in hex is "You sank my Battleship?"
[GPG key in journal]
Polar-bear children living on melting ice are more important.
Where. will. they. go. when. the. ice. melts? There is not enough land to holds them allz!
Minor correction:
Let's say you cap your client at an upload rate of 32 Kbps. If you have a popular, 4 MB, MP3 file on your system, you can upload a full copy roughly every 2 minutes. In a single day, that's over 700 copies of the file uploaded.
That should be one file every 16 minutes, and about 90 copies per day. Forgot the Kbps v. KBps distinction when doing the math.
If it's for-profit but free, you're not the customer -- you're the product (e.g., the Slashdot Beta's "audience").
The whole point of the civil process is to quantify the damage and calculate an appropriate settlement based on that damage.
The whole thing goes out the window when you cannot reliably figure out how much damage was caused.
It is the court's duty to establish reasonable punishment/compensation within the bounds of the law. If we couldn't quantify damages for other cases people might spend a lifetime in prison for speeding or shoplifting.
Quantifying damages or wrongdoing is essential to the legal process - and it can't be reliably or uniformly done with non-commercial file sharing.
-ted
If it fails, it'll fail on the meaning of the word "fine", which is (I think) a reserved word in the law.