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Sotomayor's Position On Copyright Damages
Too Lazy to Login writes "Wired reports that, based on her previous decisions, Sonia Sotomayor will likely affirm high damages (read: RIAA excessive) in cases where copyright claims are at issue. Good thing I'm not a betting man, because I'd have guessed the exact opposite." We discussed the nominee's cyberlaw record in general last week.
What did you expect given Barack Obama's political philosophy and how he's acted in office?
The case quoted involved businesses who were wilfully infringing, and the decision was that the fines should be punative to act to disuade others.
This may not be true for the RIAA and dealing with individuals, but its probably true when dealing with businesses.
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Wired reports that, based on her previous decisions ...
Huh, that's odd, I only found the article to list one case -- the TopRank suing the host of a tavern in 1996. And the statement she added as:
"A willful infringement, which the magistrate judge found, combined with a willful default, however, warrant an award greater and more significant than one which corresponds so closely to an estimated loss to the plaintiff,"
Are there more decisions I missed? Are we basing our image of this woman off of one action and one statement?
It's not a good indication but it's hardly conclusive. Things have changed with the advent of the internet since then. Here's to hoping, I guess, but I think we're being a bit unfair and too hasty.
My work here is dung.
One more time:
Republicans: Oil and gas
Democrats: Hollywood, the movies and recording industry
_Never_ be surprised at Democratic support for DRM, the RIAA or MPAA.
People who quote Fox news as a source for anything in a serious conversation shouldn't be listened to at all.
Umm... Wut?
The entire point of the RIAA cases* is to increase the risk of file sharing so that it becomes less common. If they only sued for a couple hundred bucks, then no one would care. These cases are all about punitive action and would be worthless without it. If Sotomayor supports punitive infringement suits, she will almost certainly support the RIAA's.
* Certainly part of the RIAA's plan is to also leverage the life-crushing nature of their lawsuits to extort money out of others, but that doesn't change the deterrent 'ideal' of their suits.
First, the case quoted involved willful infringement by a business and other aggravating circumstances. Also, from a strict-construction viewpoint the law does specify the amount of statutory damages so her finding that, if infringement occurred and the claim qualified for statutory damages, damages in the amount defined by the law were to be awarded would hardly be unexpected.
The big question is how she views the whole question of whether infringement occurred. That's the area where the RIAA and MPAA tend to part company with the rest of us. It's pretty clear that mass copying and distribution of unauthorized copies is infringing behavior, whether or not it's done for commercial gain. Note please that making 10,000 copies of a tape and handing them out on the street-corner is a far cry from copying a couple of songs off a tape so your friend can listen to them. To my mind there's three categories: copying that's not infringing period (eg. the copies needed to listen to anything on a computer), copying that's clearly infringing (the aforementioned making copies in bulk for anybody who comes along), and an intermediate range where the copying's technically infringing but so inoffensive that we view it as unreasonable for the owner to complain about it absent some additional problems. Making a copy of a few songs for a friend falls into that third category, it's technically infringing but the general reaction to an owner complaining about just that would be "Jeesh, get a life, dude.". The usual way the courts handle things like this is to award some token amount of damages, like the retail price of the songs copied, and then deny any request for costs by the plaintiff. What I'm interested in is exactly where Judge Sotomayor draws the lines between those three categories.
People who don't understand the concept of making a hyperlink shouldn't... uh... throw rocks. Or something. I really didn't think this joke through to a punchline.
In any case: Sotomayor's Record Could Give Environmentalists Hope, Business Leaders Pause
I find it quite disheartening the number of replies you've gotten trying to explain it away as "strict interpretation of the law" given that it's one of the many cases of hers that were overturned the instant it hit the Supreme Court. So obviously if it was "a strict legal opinion," it was wrong.
Leaving us wondering whether or not she really understands the concept of diminishing returns.
Not true in the slightest (well, maybe the slightest). It is neigh guaranteed that some time in the lifetime of whoever is appointed the Supreme Court will hear a case regarding the excessiveness of damages in a (personal) infringement suit. Their ruling would basically decide if the present statue (regarding damages) is constitutional.
So true, they will not be deciding how much money _you_ have pay. However, they will be deciding something much more important: the minimum and maximum that _anyone_ should have to pay.
I don't see anything in the Top Rank decision which justifies the conclusion the Wired author has drawn. The only decision referred to was Top Rank v. Allerton Lounge, a typical 'bar and tavern' case. In those cases the statutory damages are frequently from 2 to 4 times the actual damages. The Magistrate appears to have awarded statutory damages on a 1:1 ratio. Judge Sotomayor raised the damages, but not wildly to some extreme multiple like what the RIAA looks for. It appears that her award was between 2 and 3 times the actual damages, which is within the usual range.
The RIAA seeks from 2,200 to 450,000 times the actual damages. It is well settled law that statutory damages awards have to bear a reasonable relationship to the actual damages, and in keeping with economic reality. And it is well settled law that excessive disproportion to the actual damages is unconstitutional, as a violation of the due process clause.
There is no reason in the world to think that Judge Sotomayor would consider imposing statutory damages of $750 to $150,000 as against plaintiff's 35-cent loss for the download of a single mp3 file.
In the unlikely event that the RIAA could prove the defendant was a "distributor" -- i.e. someone who disseminated copies to the public by selling them, or by other transfers of ownership, or by rentals, leases, or lending -- then of course the actual damages would be higher than 35 cents. But the RIAA would have to prove its actual damages, and then the court could award statutory damages greater than that sum, but -- under established Supreme Court precedent -- the award would be constitutionally suspect were the ratio greater than single digits.
Ray Beckerman +5 Insightful
The facts are complicated and require thinking, and might result in a conclusion that 1) not what the GP expects to find or, 2) doesn't fit exactly inside of the predetermined possibilities.
This is Slashdot - people are confident in their computer skills and knowledge of sci-fi, which naturally translates into flawless wisdom in relation to all things. Socrates woulda loved this place.
kinda hard to cry oppression when you can pop back a cold one and watch a bunch schmoes battle it out on a cheesy singing contest on hdtv, then fire up the xbox 360 for some video games.. write whatever we want on slashdot... what is it that we were revolting over again? oh, Obama might take my guns away but lucky high powered lasers are getting pretty affordable. why would I want an assault rifle when I can cut a stadium full of people in half from 500 miles away.
This is my sig.
So the reason damages are so high in copyright cases is because there is a statue about it. Normally in civil suits damages are limited to actual damages and then something in the realm of 3x actual for punitive, if warranted. Ok so for copying a CD the maximum you could possible argue in actual damages would be the retail cost of the CD (and that might be questionable since it is a copy, not a theft). That would end up with a total damage range of like $30-60 per CD, and then only if they can get punitive damages.
However copyright law provides for incredibly high statutory damages, we are talking like $100,000 per incident. Thus the RIAA can go after people for tons of money and use it as leverage to force a settlement. The problem with that is that it runs contrary to the 8th amendment.
So this is well an issue the SC could be hearing soon. A defendant could claim that the statutory damages are unconstitutionally high, meaning the law should be struck down.
Yep. But if the law says statutory damages are to be in a certain range and the claim meets the requirements to award statutory damages in lieu of actual damages, which judge is legislating from the bench: the judge who awards damages in the range specified by the law, or the judge who decides that the damages are excessive and reduces the award below what the law specifies?
Eisenhower nominated Earl Warren, a Republican governor of California to the Supreme Court. Warren was a centrist with broad support on both sides of the aisle. Warren led the Supreme Court through a remarkably liberal period. Eisenhower later publicly rued the choice he made. Bush the Elder nominated Souter as a conservative, and got something quite different.
The Court of Appeals judges (like Sotomayor) are bound by existing law and precedent. They never get the opportunity to be the final word on the Constitution. Once they go to the Supreme Court, they have the complete, unobstructed freedom to change--and they often do.
TFA is just speculative nonsense. /. is just putting it out because it starts little flame wars between the piracy lovers and the piracy haters. Aargh, matey.
The problem with this reasoning is that executive orders are not laws. Remember separation of powers. The legislature makes the law, the executive applies the law, and the courts interpret the law. The President has no ability to make law. Executive orders are basically binding policy statements issued to federal agencies. A judge doesn't owe an executive order deference if it conflicts with the statute.
"In our private conversations, Judge Cedarbaum has pointed out to me that seminal decisions in race and sex discrimination cases have come from Supreme Courts composed exclusively of white males. I agree that this is significant but I also choose to emphasize that the people who argued those cases before the Supreme Court which changed the legal landscape ultimately were largely people of color and women. I recall that Justice Thurgood Marshall, Judge Connie Baker Motley, the first black woman appointed to the federal bench, and others of the NAACP argued Brown v. Board of Education. Similarly, Justice Ginsburg, with other women attorneys, was instrumental in advocating and convincing the Court that equality of work required equality in terms and conditions of employment.
Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."
It's easy to mince people's words in order to prove a point.
It's much more difficult to actually listen to the whole thing and receive their message.
Full text: http://www.nytimes.com/2009/05/15/us/politics/15judge.text.html?_r=1&pagewanted=all
For God's sake, just READ once in awhile rather than have things spoon fed to you from the talking heads.
If a white male had said the same thing (with just a few substitutions to make it personally accurate), he would have been excoriated by the press and the very same people that are claiming that this is no big deal.
If you can look at yourself in a mirror and honestly be willing to excuse my hypothetical white male, then I respect your opinion. If you can't, then you're a hypocrite.
Read your own quotes. Alito said that he thought his background would affect his decisions because everyone's background affects their decisions. He didn't claim his background made him superior to another person, as Sotomayor has done.
I'll start this off with the admission that I am a white, conservative, Christian, heterosexual male (some times referred to as "the source of all the world's problems"). When I read this summary I was spurred to go look into Sotamayor's previous rulings and how that might effect her future ones. I have heard the talking heads on both sides (I have a 1 hour drive to work each day and mostly listen to NPR... meh... it's something to listen to) and hadn't come to a conclusion about my opinion of her. I think the Federal Supreme Court is currently the most powerful entity in the USA, all the more so when it's prospective members have been quoted (jokingly or not) saying that policy is made from the bench.
... that transport workers, coal miners, or meat packers would not enjoy" (though wikipedia says there is a citation needed for that quote). There are other rulings listed that I agree with, and some that I don't, but as a whole I find that I generally agree with what I've read about her.
All that being said, I was hesitant to hold a specific opinion on her appointment to the FSC. So I did some research... WIKIPEDIA FTW!!!
It turns out (following the wikipedia links and using Google when they ran out for extra source material) that I... usually agreed with her. She seems to hold strictly to the letter of the law and her interpretations of it seem to be in line with what mine would usually be. She held up a man's rights to say racist, bigoted, ugly things, she dissented in a ruling that upheld a juvenile detention center's right to strip search young girls (convicted of no crime, being held in suspicion of committing no crime), and she upheld the rights of the NFL to set it's own rules for who can play in the league saying "We follow the Supreme Court's lead in declining to 'fashion an antitrust exemption [so as to give] additional advantages to professional football players
She's right, by the way, in saying that experience and culture influence judgment. It would be nice if it didn't but that is just not possible in people's brains. We are not computers. We are living, breathing, feeling, emotional, prejudiced, loving, bigoted, beings. We cannot get around that. To all those who don't like that idea, THE WHOLE PURPOSE OF HAVING 9 PEOPLE ON THE BENCH IS FOR THIS VERY REASON. We cannot trust ONE person to make the final judgment because that person will see an issue through their own clouded perspective. So we add a reasonable amount of others and appoint those who have shown that they push through their cloudy view more than most... and hope for the best.
The system is inherently flawed because it involves people. We put the best people up there and hope that it has as few flaws as possible.
That is not what anyone expected, left or right.
It's fairly close to what I expected, though Obama has indeed surpassed by expectations.
SEriously though, what's he going to do, walk into his office, get his first intelligence briefing, and then decide immediately to change the way the whole intel community works? As someone who worked in Intel for a few years before I couldn't stand working for government bureaucracy anymore, that's utterly laughable. Nobody who has seen actual intel reports thinks that way--left, right, or other.
Look at it this way--if Obama DOES repeal the patriot act, close gitmo, restore whatever freedoms were allegedly lost, make buddy buddy with muslim nations, try to bring Iran, Syria, etc in from the cold, what does he gain (politically)...the adoration of people who already adore him, and the anger of people who are already angry at him.
Now, let's say he does all the above and then there's another 9/11 or similiar attack....he and the entire Democrat party are huge losers.
On the other hand if he puts on a good face and makes some good speeches but leaves the status quo the way it is, probably the only people he's irritated and alienated are the fringe left ... people who would vote for him no matter. (We know what Bush's base of support--the "yellow dogs" if you will...roughly 20%....who stuck with him to the end. How many people will stick with Obama to the end? I'm thinking it's a crapload more than that)
Obama is far to the left of the American electorate. That statement stands on it's own.
If you look at the polls on socialization of health care, nationalization of the banking industry, nationalization of the auto-industry, and blanket support for unions, where Obama lines up and where Americans in general line up are not the same.
I think the assertion that every man and woman should have the same opinion as a white guy to be incredibly racist, myself.
You're just totally buying into identity and race politics, and the sad thing is, you don't even realize it.
WTF does it matter if someone is black, white, latina, male, female etc. Alito made a somewhat simliar (though in my view less offensive) statement during his confirmation hearing about his family's immigrant background, and how that gave him empathy in certain kinds of cases. The difference is he didn't say a wise Italian will come to a better answer...he didn't play the race gender political identity game. Sotomayor did, and that's the difference.
because the method of intimidation favored is to claim the opposing views are only driven by prejudice and paranoia.
Agreed.
Figuring her panel's overturn rate by the Supremes is probably a better indication of why she should not be on the Supreme Court but is fine where she is.
Its lower than the average, actually. And the issue is more complicated than that, since the SCOTUS only reviewed THREE of her thousands of cases. Three does not a valid sample make.
The real problem, she was selected for what she is, not who she is or how she ruled...
I worry about this too. Though WHY she was selected doesn't weigh for or against whether she is qualified or not. I'm guessing its more of her race and gender being a tie breaker, than the sole criteria. No matter how much people reject her, no one can really argue against the fact that she is very intelligent, and has a fair amount of judicial experience. Beyond that, I'm not (nor is the majority of slashdot, your cable news network of choice, or dogmatic righties or lefties) really able to tell her legal worth, not being a lawyer, or judicial wonk.
at least according to the speech the teleprompter provided.
I'm not sure what this has to do with anything. Most official use pre-prepared speaches, actually most experienced public speakers generally use either a pre-written transcript or well organized notes. Extemporaneous speeches are generally a bad thing on anything that matters (as G.W. Bush proved on more than one occasion). So your criticism depends on the technology used to deliver notes to the speaker. If so, then I agree, I prefer paper to teleprompters as well, but then again I'm old fashioned.
Also, just so you know, 90% of political speeches, even by the people you like, are written by someone else. Stupid, but true.
A patriot must always be ready to defend his country against his government. -edward abbey
I can cut a stadium full of people in half from 500 miles away.
I bet not... According to some back of the envelope calculations, there's a vertical divergence of approximately 8 miles (due to the earth's curvature) over a distance of 500 miles. So, even if you were firing said laser from the top of Mt Everest (~5.5 miles tall) your hypothetical stadium would still have to be in a valley over 3 miles deep with nothing of significance between your emitter and it.
Alternately, you'd need to be in an airborne vehicle 8 miles or so above the planet's surface. That's about a mile higher than most commercial jet traffic, so you'd need some serious wings (think fighter jet) to get high enough to hit your target. So, yeah, I bet you can't. 8^)
Note for (other) pedants: I know the parent wasn't being literal, but I thought this looked like a fun problem to work out anyway.
Any plan which depends on a fundamental change in human behavior is doomed from the start.
she said a female latina Judge would come to a better decision (on the basis of her being female and latina) than a white male judge.
And she probably would if that were the only difference between her and a white male judge. Nobody worth their salt is going to claim that you can overcome your background when making a judgment. Further, it's easier to have empathy towards those who are in situations similar to those you've been in. Finally, even George Will will tell you that empathy is an important part of the judicial process.
That said, I don't think that gender or race should be the highest criteria for nominating a supreme court justice. Any form of racial or gender-based discrimination should be eliminated when possible, otherwise we create a group mentality of us vs them. That's why I hate this nomination and will probably hate Obama's nominations from here on out. I don't believe that Obama would nominate a white male for this position regardless of the circumstances, and that's ridiculous.
Good points.
I'm a conservative, and from what I've heard she's awful - but your examples give me a more complete perspective of her record. Hopefully she isn't as bad as she seems when I listen to talk radio.
That said, I'll point out two things:
1 - "I can and do aspire to be greater than the sum total of my experiences but I accept my limitations" This implies she thinks she is incapable of (or at least limited in) rendering decisions apart from her "experiences", presumably those relevant to being a latina woman, given the rest of the speech.
2 - As for taking a fragment of a speech and running with it, sometimes this can be very wrong as you suggest. But sometimes, (and as I believe with her comments) there is no context in which a quote can redeem itself. There is no context that makes it not racist to say that a latina woman would make better judicial decisions than a white male.
If SCOTUS was held accountable to the people, then the Warren Court would have been kicked out after Brown v. Board of Education and Loving v. Virginia.
You ever sung Happy Birthday at a party?
I hope a highly "moral and ethical" self righteous individual such as your self paid the required parties for the privilege of doing so, as that song is still under copyright.
Oh...you didn't. You and your friends STOLE someone elses hard work and used it for your own benefit without paying. Well then you're no better than anyone else so get off your high horse thief.
*Cue the hypocritical legal hand wringing "but-but fair use! Not a *real* public performance!!11" Sorry, tell it to a judge.