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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.
Test your net with Netalyzr
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.
latino female
What's a latino female? Is that a codename for hispanic shemales?
Is the only answer. Throw them all out.
---- Booth was a patriot ----
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.
I reckon RIAA and those persuaded by their arguments will continue to try to tighten their grip as much as they can wherever they can. Whether or not Sotomayor will decide in ways that favour RIAA or not is something I hesitate to speculate about. However if people want their government representatives and judges to understand their reservations about RIAA's way of doing business they have to continue to speak up; not only to protest but also to try and find solutions to the situation we are at now.
What should be the principles behind music and movie distribution? I for one would hope for something that those purchasing and creating such material would both find acceptable. Though it is hard for me to say what that would be. At the moment what we have are many reacting to what they see as negative trends, and some saying so in well argued ways, but as long as RIAA can claim even an inch of legitimate concern for the artists and their rights they will continue to resist reforms they cant adequately, in their eyes, influence.
The Long Now Foundation
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
I'm just waiting for Sotomayor's Paris Hilton style homemade porn video to be released. I hope that long forgotten boyfriend held onto that tape they made that one rather forgetful night.
Rantings, indeed.
To wit:
Are you aware of Sotomayor's dissent in which she defended the 1st amendment rights of a white NYPD employee when he was fired for having sent blatantly racist and anti-Semitic replies in response to charity requests he received in the mail?
That she ruled against the plaintiff in 80% of race discrimination cases?
That in her famous speech she also said stuff like:
The horror!
I am so sick of people taking one fragment of a speech or one ruling and rushing to judgment based on their own biases and agendas. Take a deep breath. Read Ricci. Read the Pappas dissent. Then let us know what you think.
Simple Unexpected Concrete Credible Emotional Stories
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.
The folks at TechnicallyLegal (disclaimer, I'm a writer and podcaster there) wrote up a post as to why her decision in the copyright case will have little bearing on the outcome of the RIAA cases. And why her reasoning there isn't really indicitive of what her reasoning may be in those cases.
http://www.technicallylegal.org/de-fud-sotomayors-stance-on-copyright-infringement/
Modular Redundancy--Because 4 out of 5 Nodes agree
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.
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.
It is not "legislating from the bench" to declare a damages award, authorized by a statute, to be unconstitutional. The fundamental law of the United States is its constitution. When a statute violates the constitution, the judge has to say so. That is not legislating, that is applying the law. The US Supreme Court has said that "punitive awards" which are unreasonably disproportionate to the actual damages are unconstitutional.
Ray Beckerman +5 Insightful
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.
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.
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.
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.