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."

Comments

wholly analogous

[Anonymous Coward]

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.

Re:wholly analogous

[HasselhoffThePaladin]

A car analogy? Really? Well, I guess it works.

Re:wholly analogous

[Anonymous Coward]

A first post with a car analogy, AND by someone who actually RTFA. I think we have a kind of record here.

Re:wholly analogous

[tmosley]

Don't forget that they can prosecute those who never even owned a car, much less sped on a freeway.

Re:wholly analogous

[Maxo-Texas]

Bah, a car analogy is the kind of thing Hitler would have used if he wanted the terrorist to win!

Re:wholly analogous

[indifferent children]

Well, no. They are about rights to property in general.

Well, no. They are about encouraging people to keep on creating, by helping them to reap some benefit. The U.S. Constitution clearly says why Congress is allowed to create copyright laws: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;"

These are not property rights at all. We (the People) grant copyright and patent holders a limited-term monopoly, because it is in our (collective) best interest (in theory).

Re:in other news

[SpeedyDX]

the sky may be blue, water may be wet, etc.

Well, it really depends on where you are. Didn't you watch the Olympics in Beijing? The sky there was gre... ... OH, you were being sarcastic. Heh. Clever.

Light on details.

[BitterOak]

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?

Re:Light on details.

[technobabblingfool]

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?

In a criminal statute, the common feature is a severe punishment for failure to comply. The punishments can include imprisonment, execution, fines, etc. In a civil statute, one party seeks compensation for 'damages' that have been incurred at the hands of the other party. The argument is that the law that the RIAA uses has such severe penalties that are so far beyond the 'damages' that the law itself is really a criminal statute seeking to punish the wrongdoer for failing to comply rather than awarding damages to the injured party.

Re:Light on details.

[BitterOak]

In a civil statute, one party seeks compensation for 'damages' that have been incurred at the hands of the other party. The argument is that the law that the RIAA uses has such severe penalties that are so far beyond the 'damages' that the law itself is really a criminal statute seeking to punish the wrongdoer for failing to comply rather than awarding damages to the injured party.

Actually, civil judgements can include punitive damages as well as actual damages, and punitive damages, by their very definition are in excess of the amount of injury suffered by the plaintiff. The idea is to serve as a deterrent to others who might engage in similar conduct. I was asking if there is any precedent in case law for classifying civil cases as criminal cases based solely on the amount of damages assessed. In other words, is this idea just some new theory that this law professor cooked up, or is there case law to back it up?

Re:Light on details.

[Bazzargh]

The motion itself has this:

As stated by the Supreme Court in Int'l Union v. Bagwell, 512 U.S.
821 (1994), distinguishing criminal from civil contempt, a
"flat, unconditional fine" totaling even as little as $50.00
announced after a finding of contempt is criminal if the
contemnor has no subsequent opportunity to reduce or avoid the
fine." Id., at 829.

Thats the only precedent they site in support of this part of the argument
  - there's a heck of a lot more to support their argument that the RIAA
are abusing the courts. But this one claim seems pretty thin.

However that case was about civil versus criminal /contempt/ fines,
and pretty much all the cases citing it seem to be about contempt.
IANAL, but it looks like even this precedent might be a bit of a reach.
Good luck to them though :)

Re:Light on details.

[absoluteflatness]

Even though this tactic seems pretty unlikely to succeed, the issue that's being pointed out seems to be that the statutory damages are so high.

Punitive damages can be sky-high, but I don't think that the RIAA generally seeks them.

Re:Light on details.

[Eskarel]

I think it's more a case of "if it looks like a duck, walks like a duck, and quacks like a duck, it's a duck" than actual case law.

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.

Re:Light on details.

[Kjella]

In other words, is this idea just some new theory that this law professor cooked up, or is there case law to back it up?

Well, according to Wikipedia:

In response to judges and juries which award high punitive damages verdicts, the Supreme Court of the United States has made several decisions which limit awards of punitive damages through the due process of law clauses of the Fifth and Fourteenth Amendments to the United States Constitution. In a number of cases, the Court has indicated that a 4:1 ratio between punitive and compensatory damages is broad enough to lead to a finding of constitutional impropriety, and that any ratio of 10:1 or higher is almost certainly unconstitutional.

And there seems to be the most relevant case here:
http://en.wikipedia.org/wiki/BMW_of_North_America,_Inc._v._Gore

The majority decision there (and it's a 5-4 decision so a close call anyway) is much less clear:

In Haslip we concluded that even though a punitive damages award of "more than 4 times the amount of compensatory damages," might be "close to the line," it did not "cross the line into the area of constitutional impropriety." TXO, following dicta in Haslip, refined this analysis by confirming that the proper inquiry is "`whether there is a reasonable relationship between the punitive damage award and the harm likely to result from the defendant's conduct as well as the harm that actually has occurred.'". Thus, in upholding the $10 million award in TXO, we relied on the difference between that figure and the harm to the victim that would have ensued if the tortious plan had succeeded. That difference suggested that the relevant ratio was not more than 10 to 1.

The $2 million in punitive damages awarded to Dr. Gore by the Alabama Supreme Court is 500 times the amount of his actual harm as determined by the jury. Moreover, there is no suggestion that Dr. Gore or any other BMW purchaser was threatened with any additional potential harm by BMW's nondisclosure policy. The disparity in this case is thus dramatically greater than those considered in Haslip and TXO.

Of course, we have consistently rejected the notion that the constitutional line is marked by a simple mathematical formula, even one that compares actual and potential damages to the punitive award. Indeed, low awards of compensatory damages may properly support a higher ratio than high compensatory awards, if, for example, a particularly egregious act has resulted in only a small amount of economic damages. A higher ratio may also be justified in cases in which the injury is hard to detect or the monetary value of noneconomic harm might have been difficult to determine. It is appropriate, therefore, to reiterate our rejection of a categorical approach. Once again, "we return to what we said... in Haslip: `We need not, and indeed we cannot, draw a mathematical bright line between the constitutionally acceptable and the constitutionally unacceptable that would fit every case. We can say, however, that [a] general concer[n] of reasonableness... properly enter[s] into the constitutional calculus.'". In most cases, the ratio will be within a constitutionally acceptable range, and remittitur will not be justified on this basis. When the ratio is a breathtaking 500 to 1, however, the award must surely "raise a suspicious judicial eyebrow.".

In short, the court has rejected 500:1 before, said 10:1 is ok but left itself a wide playing field. The court could easily hold that for $5 noone would able able to seek compensation so much, much higher ratios are acceptable. And between 1996 and now, they may even reject the idea of touching punitative damages at all. It's not a lost case either but it's definately way in the gray.

Re:Light on details.

[ethergear]

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.

Re:Light on details.

[Eskarel]

It's a very old test in the US and UK. The wikipedia if you're interested.

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.

It Never Ends

[sexconker]

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.

Re:It Never Ends

[moosesocks]

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.

Re:It Never Ends

[pak9rabid]

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.

Re:Hmmmm

[ArhcAngel]

"I don't recall anything in the Constitution protecting an individual's right to" infringe copyright.

There, fixed that for you.

No Attorney

[arizwebfoot]

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.

Ya don't say..

[QuantumG]

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?

NESSON

[torstenvl]

His name is Charles Nesson, not Charles Neeson.

I would know. He's my professor.

Re:Hmmmm

[rohan972]

Even ignoring your "copyright violation=theft" troll:

Amendment 5: ...nor be deprived of life, liberty, or property, without due process of law;
Settlement of these suits is commonly depriving people of their property without due process of law, not on the basis of any guilt by the cost of defending yourself in a lawsuit against a large corporation.

Amendment 8: Excessive bail shall not be required nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Neither one of these require that copyright infringement cannot be dealt with at law, simply that the current law and process being applied doesn't meet the necessary standard.

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.

Missing some details...

[randalotto]

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/

The argument merits consideration.

[MarkvW]

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

[Joe The Dragon]

With fines like that I-294 can be toll free as well the rest of the IL toll way system.

A trivial semantic rant

[philspear]

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.)

Be careful what you ask for

[westlake]

The market value of a song is 99 cents on iTunes
.

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?

Re:Be careful what you ask for

[Anonymous Coward]

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?

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.

"Against the law" vs. "Criminal"

[DragonWriter]

If it is against the law, it's criminal.

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.

Does it matter whether it's criminal for the 8th?

[91degrees]

"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?

Re:Hmmmm

[Eskarel]

It doesn't. What it does is protect an individuals rights when being prosecuted for a crime.

Copyright Infringement in the United States is treated like a crime, the FBI will sieze your assets, you're faced with damages which are largely punative, and you're in violation of a criminal statute.

If you stole a CD from a store or a record executive's car you'd get a trial with a public defender(and a public prosecutor not a team of rabid dishonest RIAA lawyers), there's almost no evidenciary requirements, and the burden of proof is much lower. The kinds of proof which the RIAA currently uses to essentially convict people (yeah it doesn't go on your criminal record but 7 years of bankruptcy or a half a quarter of a million dollar fine is just as life wrecking) would barely be enough to get a warrant in a criminal case, and if a prosecutor tried the stunts they do they'd be thrown out of office.

The article of the author isn't saying that copyright infringement is legal, they're saying that prosecuting it in the manner which it is currently prosecuted is unconstitutional. Either make the fines for copyright infringement reasonable and based on damages with no minimum for fines and a requirement to separate out actual damages from punative damages so the juries know what they're doing to people the way they do in every other civil case, or allow defendents their rights as people being prosecuted under the criminal code.

Re:Hmmmm

[Kjella]

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?

Re:in other news

[TeknoHog]

The sky above the port was the color of television, tuned to a dead channel.

Re:Hmmmm

[Duncan Blackthorne]

by ArhcAngel (247594)

by ArchAngel (247594)

There, fixed that for you.

Re:Hmmmm

[T Murphy]

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.

Yeah, I agree.

[RustinHWright]

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?

Re:in other news

[m.ducharme]

That may be the best opening line for a novel in the English language.

Re:Just wait...

[Foobar of Borg]

The bush administration has just trampled all over it, dont need it to be re written if its already been raped.

The Constitution wasn't raped. It was *asking* to be fucked. I mean, it was just sitting there with its Articles and Amendments spread out for all to see. How is a president supposed to avoid putting his special pen there?

Re:Blue screen of no signal

[SomeoneGotMyNick]

I'm so embarrassed. My face is all #FF0000.....

You make me #00FF00 with envy that I can't come up with something that witty.

It just keeps me feelin' the #0000FF(s)

At first, I was too afraid to post this. Someone told me I was #FFFF00.

#FF8800 you glad I posted anyway?