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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.
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 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
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.