RIAA Awarded $675,000 In Tenenbaum Trial

NewYorkCountryLawyer writes "The jury awarded the record company plaintiffs $675,000 in the Boston trial defended by Prof. Charles Nesson, SONY BMG Music Entertainment v. Tenenbaum. I was not surprised, since exactly none of the central issues ever even came up in this trial. The judge had instructed the jurors that Mr. Tenenbaum was liable, and that their only task was to come up with a verdict that was more than $22,500 and less than $4.5 million. According to the judge, her reason for doing so was that, when on the stand, the defendant was asked if he admitted liability, and he said 'yes.' The lawyers among you will know that that was a totally improper question, and that the Court should not have even allowed it, much less based her holding upon the answer to it."

Comments

bankrupt then what?

[alain94040]

A good example of the justice system at work for your average citizen... So really, what happens next? The guy files for bankruptcy. The RIAA doesn't get any money (not that they really intend to get significant income from those cases). What are the consequences for Mr. Tenenbaum? Can't get a credit card for a few years? Needs to get a job? I'm really curious as to what the true consequences will be.

--
fantasy camp for iPhone developers

Re:bankrupt then what?

[drdanny_orig]

I can't help but think there's some strategic reason for his actions that will become clearer upon appeal.

Re:bankrupt then what?

[shark72]

They submitted fair use as a defense with the likely understanding that it would be rejected. This is Nesson's ticket to appeal.

My guess is that Nesson knows he can't get precedent set at the district court level. MGM v. Grokster made it to the Supreme Court, and I think Nesson wants to take this one to the Supremes. Tennenbaum didn't have a chance with the current interpretation of the law (basically "copyright infringement is bad, mmmkay?"), so he's trying to shake things up.

That's just my interpretation. The other possibility is that he's simply an idiot, but it's already established that he's a very smart guy.

Re:bankrupt then what?

[Shakrai]

The question this leaves open is, what if you have to declare bankruptcy (for whatever reason), and after that rack up medical costs for emergency surgery?

Then they get a judgment against you and you spend a few years trying to pay as little as possible on it until you can file again. In most parts of the US they aren't going to be able to seize your home or anything that really matters. If you are smart about structuring your assets and finances they probably won't even be able to get a dime.

Friend of mine had someone attempt to garnish his paycheck over a debt that he allegedly owed. His simple solution was to have his ex-wife take him to court for child support (which he was already paying willingly) and get a garnishment order for it. Child support garnishments take priority over everything else and at the end of the day there wasn't anything left for the collection agency to get.

That's just one example. There's lots of others things you can do as well. How do you think OJ managed to avoid paying his civil judgment for the better part of two decades?

Re:bankrupt then what?

[Shakrai]

Are you seriously saying that the ability to do such things is a desired feature of the U.S. legal system, rather than a bug?

Actually yes, it is a desired feature of the U.S. legal system. If he hadn't done that then they would have garnished his paycheck and he wouldn't have had enough money to support his children. Society has decided that supporting your children is more important than repaying your civil debts.

Re:bankrupt then what?

[stdarg]

But nationalizing health care isn't the only way to address the problems you brought up, and tends to introduce some of its own problems (as anything else would) such as very long waiting lists for whatever is deemed "elective" surgery (i.e. being treated for something that's not immediately killing you).

One reform I would love to see in the US is to regulate doctors prices. I've had the opposite experience from what you had regarding pricing. To me it seems like big insurance companies get really good prices and the uninsured/underinsured get totally screwed. Just the other day I was looking at a maternity option for my health plan (out of curiosity) and it quoted the average retail cost of pregnancy and newborn care at around $20000, and the "in network" cost at around $8000. That is absolutely ridiculous. Doctors need to be regulated to A) publish their prices ahead of time and B) charge EVERYBODY the same amount.

I've heard that you can tell doctors your insurance isn't covering their service and out of their kind hearts they will suddenly slash the bill. Well that hasn't happened for me. I went to the doctor a few times when I didn't have insurance and I never got a significant reduction. One time was to a dermatologist (no reduction at all), another time for an annual physical (skipped some lame "processing fee" for paying with cash instead of check... yay).

Nobody wants to talk about it but doctor salaries are the #1 cost driver in health care. On NPR just a few days ago they were discussing some common myths about health care costs and they cited malpractice insurance/defensive medicine/lawsuits as the most common myth. Despite what people think, all that stuff accounts for less than 1% of health care costs. Drug costs are also relatively minor. Doctor salaries are the big one. How can we limit doctor salaries? We simply need more doctors. Look at the average size of a medical school class compared to the average size of, say, an engineering class. It's pathetic. Doctors are practically operating as a cartel, keeping class sizes small for their own security. So we could dramatically expand the pool of doctors and that would have a huge impact on health care costs, which should be obvious to anyone. Also, US doctors take a LOT longer to graduate than foreign doctors (including most of the first-world nations with nationalized health care you mentioned). For instance, in England doctors don't get a 4 year degree before going to medical school.

By increasing the number of doctors, decreasing their cost of education (in terms of both money and time), and then regulating their advertising and pricing structure to make it more open, we would see a major impact on costs.

The other major cost in health care is apparently medical equipment and the desire by patients to be given the best treatment possible. Seems to me that's not too bad of an area to focus spending on, compared to all the other crap we do.

Re:bankrupt then what?

[OSPolicy]

I'm not a politician, so I don't try to solve every problem with a new government program. I'm a businessman so I try to solve every problem by hiring or contracting with someone to fix it for me. On occasion, I hire the government, but only when I'm ready to hire someone for life because the government will never give back power.

The first step in hiring is to list the requirements for the position. For the health care problem, that seems to be pretty straightforward:
1. Demonstrated ability to effectively administer large medical programs.
2. Demonstrated ability to manage costs in large and complex programs.
3. World-class expert in managing new technology and the myriad changes arising therefrom.
4. Courage to do the right thing in the face of heartbreaking demands by people who need exceptions.

Now we compare that list to the qualifications of the applicants. Let's start with the first applicant, the US government.

As to point #1, I think that Medicare and Medicaid speak for themselves. If you disagree, any of the doctors fleeing the programs will be pleased to speak for them.

As to point #2, they continuously conflate the idea of prices and costs. They force prices of some products down at gunpoint, often to levels unsustainably close to or below costs, without regard to the effect on the rest of the system. It works as well as it does, which it pitifully, for exactly one reason: there are parts of the system that they do not control, hence parts of the system to which they can still push costs without constraint. If they own the whole system, there's no place left to relieve the pressure that they create with misguided policies and the system explodes.

Point #3 hardly needs analysis.

Point #4 needs even less.

Thank you for your application, Uncle Sam. We'll contact you when we find an opening for someone of your skills. In the meantime, we'll keep your application on file. The circular file.

Re:bankrupt then what?

[drsmithy]

If I don't like the plan(s) offered by my employer I can try to buy one on my own or get a different job.

Lucky you. Not everyone is so lucky.

My health insurance can't drop me whenever it chooses. If yours can then find a different job or plan.

Not possible for vast numbers of people.

All insurance companies do that.

Maybe in America. Here in a more sane country, my wife and I have probably made insurance claims for various things (theft, car accidents, medical treatment, cancelled travel) totalling around ten grand over the last 10-15 years and not once have we ever had to do anything more than fill in the requisite forms, perhaps be paid a visit by an assessor, and wait for the money to arrive.

Should we have the Government take over the automobile insurance industry too?

Clearly, if you think it's normal for a routine insurance claim to need threats of legal action just to be paid out, then the system is so broken that someone in a position of power needs to step in and start cracking heads.

That said, there's nothing stopping you from bargaining with your medical provider(s) to get a lower rate.

You mean apart from being ill and them being your only chance to get better ?

I'm sure there are alternatives that are better than what we have now. I just don't think a Government run plan is going to be one of them.

The evidence presented by pretty much every other first world country suggests otherwise. The spend less and they get better value for their money.

Re:bankrupt then what?

[epine]

Government exists for one reason: To deprive individuals of the freedom of choice.

Quick, call the doctor, we've got a galloping case of polarization disorder.

Actually, governments exist because societies without governments are ungovernable.

Paul Collier on the "bottom billion"

Paul Collier argues that most nations which experience a natural resource windfall experience a few great years, then end up worse off than before.

The countries where this doesn't happen are countries like Canada, which has a complex system of checks and balances. The "instant democracies" which have the vote, but none of the other trappings of effective government, aren't so lucky.

One of the reasons this works in Canada is that we accept what the government is there to accomplish, even if we grumble as much as any other nation about the obvious inefficiency in how this transpires.

The growing problems in rich nations with health care delivery runs much deeper than government. Our medical technology has reached the state where the last five years of our life expectancy (in failing health) is capable of consuming most of the wealth generated in our working years.

Most people wish to live as long as possible. Without checks and balances, the logical outcome is that 100% of the GDP is ultimately devoted to life expectancy and medical intervention. We're far from running out of ways to make health care more expensive for incrementally less return.

The way it works in America, as I understand it, is that a lower-middle income wage-slave works their ass off for 40 years, saves up enough money for a modest retirement, soon breaks a hip or experiences some other common medical ailment of the golden years, and is then hustled back to work at Wal-Mart for another decade to pay it off.

Politics in America has always cultivated a large pool of docile and desperate workers. I don't know if this has its root in the slave trade or not. I do know that it remains easy in America to end up out in the cold.

Washington Mutual

How many of the workers spoke up about the clearly ludicrous lending practises? At risk of losing their health coverage? Or some form of power against peon litigation? Not likely.

Historically, a productive economy was seen as a fragile thing, as if the economic miracle might just as easily evaporate. Hence we structure society with many have-nots, on the ground that it keeps the haves hard at the grindstone. We tend to regard innovation as some kind of fleeting accident to be carefully protected. And we create complex systems of law and property around the flowers of human creativity, lest we enjoy ourselves too much, and wind up in coffins we haven't paid for.

It's not clear that the world works this way any more. Innovation might become a surfeit, rather than a paucity, if our mechanisms to protect innovation were less obstreperous. We could have millions of artists rather than thousands of celebrities. The economics of distribution have changed, but our system of thinking hasn't.

One thing is certain, though. We're living on a crowded planet, and we're going to need more cooperation rather than less. This will mean more government rather than less, especially if the people who oppose government fritter their energies banging around in their ideological tin shacks.

My number one wish for better government would be a less bewildering and capricious legal system. My particular nightmare is that the environmental calamity arrives on schedule (fat chance), the technology is there to do something about it, but the lawyers can't work out how to divide the royalties, so the technology is not fully deployed, or too late to matter.

Is this the year of clowns?

[Chyeld]

How many RIAA/Copyright related lawsuits this year have started off with a hopeful - "Yeah! Damnit! We are taking this one all the way and are going to stick it to the MAN! Fuck him! Fuck the MAN Baby!" only to result in a circus and a horrible verdict for the defendant?

Damn that's depressing, and this one was the one I was actually hoping the guy running the show had some sort of fucking clue/hidden plan that he was going to spring out at the end.

I mean, yes, I'm not particularly fond of the idea of willfull copyright infringement, but I thought at least this would come out to forcing the RIAA to cut out some of their crap.

Re:Is this the year of clowns?

[IndustrialComplex]

How many RIAA/Copyright related lawsuits this year have started off with a hopeful - "Yeah! Damnit! We are taking this one all the way and are going to stick it to the MAN! Fuck him! Fuck the MAN Baby!" only to result in a circus and a horrible verdict for the defendant?

Damn that's depressing, and this one was the one I was actually hoping the guy running the show had some sort of fucking clue/hidden plan that he was going to spring out at the end.

I mean, yes, I'm not particularly fond of the idea of willfull copyright infringement, but I thought at least this would come out to forcing the RIAA to cut out some of their crap.

Because the Plaintiffs can pick and choose the cases they bring to court. Why, out of thousands of potential defendants, would you go to court against the one that can destroy your approach?

They don't bring to court someone WE would like to see. In my case, I only download music that I have already purchased a physical copy of, so their case would be a much harder sell.

Yes what people need to remember

[Sycraft-fu]

Is your credit is, in fact, NOT ruined after a bankruptcy. Why? Because you can't file again for a number of years. Thus lenders don't have to worry about you using bankruptcy to just walk on your debts. That doesn't mean your credit is grand, but it isn't worthless. Companies will lend to you since they know you don't have that as a way out.

Re:Yes what people need to remember

[commodore64_love]

I think if RIAA ever sues me, I'm not even going to bother defending myself.

- I'll just ignore the extortion letter demanding $500 or else.
- Ignore the summons to court.
- Not bother showing up.
- Just wait for a verdict.

And then I'll have a good laugh about the whole thing, because no way would I pay a 1 or 2 million dollar fine. I'll declare bankruptcy, and then use the verdict as an opportunity to show how evil the record companies are.

- "Look what our country has become? A place where a person has to pay 2 million dollars because he heard 30 streamed songs off the net. Who's next? Your neighbor? Your self? Your child? This is tyranny pure and simple, not liberty." - except from the book, Corporate Slavery - The New Plantation

Re:Yes what people need to remember

[commodore64_love]

I don't own any real property (land). And a 2 million dollar judgement is unpayable. I'd be dead before I pay-off even a quarter that amount. That's why I'd laugh at the absurdity, and invite everyone else to laugh along with me.

Re:Yes what people need to remember

[ari_j]

In what jurisdiction are you that ignoring a civil summons is a criminal act? Can you point to the statute criminalizing it?

Re:Yes what people need to remember

[commodore64_love]

>>>"should people be allowed to steal music?"

It's not theft. It's making a copy in violation of a *temporary* licene granted to the creator. Once the license expires, then the item is public domain, and copying is no longer a violation. The real question should be - "The Constitution says copyright was created to benefit society. How does society benefit from handing-down million-dollar judgements on hundreds of citizens?"

IMHO it's time to rethink the purpose of exclusive copy licensing, which is to enrich society with new creative output, not to suck the People dry of their lifetime wealth.

Re:What is the point of jury trial?

[Jane Q. Public]

No, he admitted "liability", not "guilt". Those are two very different things. As NYCL pointed out, liability is a question of law that the defendant is not qualified to judge.

Re:proportionality

[Anonymous Coward]

This was a civil case, not a criminal case. Still, even in civil cases the award of damages is not supposed to be excessive.

http://en.wikipedia.org/wiki/Eighth_Amendment_to_the_United_States_Constitution

Before you all head off thinking the award will get reduced on appeal though, recall that the US government intentionally murders people (after trial usually). A $675K fine may seem rather un-excessive to the powers that be.

Re:What is the point of jury trial?

[Anonymous Coward]

The defendant? Not without review and consideration...which was done by the Judge, who said "Yes, this guy admitted liability and I believe he's accurate in his admission, so this is one thing the jury won't have to worry about" .

The same thing happens with guilty pleas. A judge can refuse to accept a guilty plea if not convinced that the admission is truthful, or complete.

Re:Disingenuous summary

[pacergh]

Thank you.

Ray Beckerman's summary is disingenuous, which is a shame. Instead of focusing on meaningless small issues in the trial, the overall issues of the case and the posture of the plaintiffs and defendants should be focused on.

I remember an article on ArsTechnica about Nesson getting in on the act. "Oh no, here comes Harvard professors â" the RIAA must be quaking in its boots!"

The sad reality is that Nesson and his crew did just about the job you'd expect from a law clinic â" average, if not below.

That's not to say law school clinics don't provide valuable legal aid, or that they can't have a great case here or there, but it is far from the norm.

Here, you have a professor (Nesson) who has likely not had much courtroom experience over the last many years trying to guide law students who have had little to no courtroom experience in how to defend a complicated, specialized case involving copyright infringement.

The antics of the defense were not those of a principled, strong defense plan. Then again, as the above poster mentioned, it seems the idea was to lay out a possible case for a constitutional challenge to statutory damages.

Besides, the idea that Harvard has some special magic that will win the day does not play out in the real world. The special magic of Harvard isn't trial outcomes, it's networking and job options for alumni.

Nevertheless, maybe the appeal on statutory damages will go through and do some good in the end.

I just feel bad for Tenenbaum.

Give it up, NYCL

[russotto]

It's clear that the game is rigged. Here, with the defenses all tossed out before the case even got to the jury. Worldwide, as the Pirate Bay trial with the judge being the next best thing to a card-carrying member of the copyright cartel. All your presence does is legitimize the system by making it look like something other than the RIAA and its allies steamrolling over those without the resources (including paid-off legislators and fellow-traveler judges) to fight them.

someone paid for it

[tizan]

This "i don't want to be forced" is a virtual problem...you/we are FORCED already.

People paid for your treatment that you defaulted, one way or the other (its not that the doctor went hungry or the hospital also went bankrupt) its paid by contingency funds that we people who contribute into...one way or another...the physicists amongst us will agree you donot invent things out of nothing...conservation laws work.

Its like people say google is free ....no its not ..its financed by ads which is paid by us because we buy stuff at higher prices for companies to
pay for ads...now if we had a tax to finance google and no ads people will shout "OMG its a tax ...i want free market and free stuff" ...yet it will cheaper than the indirect tax we pay already...because in the process of making ads we finance ad agencies and all kind of intermediates and intermediaries to finance google search engines....

Re:What is the point of jury trial?

[Chyeld]

Even in a criminal trial you could have a defendant yelling "I did it" and the lawyers arguing that he is bonkers.

And yet, his team wasn't. Was it?

More importantly, this wasn't a random "Judge up and decides the point on their own inititive" event, it was a response to a motion from the RIAA lawyers, which appearently wasn't opposed by HIS lawyers.

Regardless of anything else that is happening in this case, getting upset over the Judge doing this is pointless, appearently his lawyers didn't think it was worth fighting and they were actually in the room.

Where's my money?

[MikePlacid]

>These industry groups lobby for strong copyright protections to...guess what...make money! Which does...guess what...increase the tax base! Which leads to...guess what...

Huh? Your reasoning will be correct, if for each song I downloaded for free, my bank balance increased by $1. But it does not! Each month's end there is the same amount in my account: $0 - not matter has I downloaded something or not.

That means: downloading has absolutely no impact on taxes. No social services or programs are damaged by it. Hey, even police are not damaged, bastards.

I move for a bad court thingy

[cpt kangarooski]

Lionel Hutz: And so, ladies and gentleman of the jury I rest my case.
Judge: Hmmm. Mr. Hutz, do you know that you're not wearing any pants?
Hutz: DAAAA!! I move for a bad court thingy.
Judge: You mean a mistrial?
Hutz: Right!! That's why you're the judge and I'm the law-talking guy.
Judge: You mean the lawyer?
Hutz: Right.

I am not a litigator, so I really never go to court. It being a novelty to me, I had a fun time watching the trial this week, and seeing how an infringement trial goes outside of what I've read in books. However, I noticed what I thought was a significant mistake in the jury instructions as the judge and the two sides were working them out today. I predicted that this could cause the jury to err in a particular way, and looking at the award, I think it may have actually happened.

The plaintiff suggested that the jury should award damages based on the number of infringements. The judge felt that this was acceptable, and the defense did not counter with an alternative. When the instructions were finally given to the jury, they included language to this effect. The problem with this is that the law -- 17 USC 504(c)(1) -- specifies that statutory damages are awarded per work infringed, not per infringement. That is to say, if you were on trial for distributing one copyrighted sound recording to one million people, that would only count against you one time, not one million times. But if you were on trial for distributing two different sound recordings once each, that would be two counts against you.

I feared that due to the flawed language in the instructions the jury might believe that even if they were to award the minimum of $750 per count (in this case there are 30 counts), they might take notice of the fact that the defendant infringed when he downloaded, and infringed again when he uploaded, and therefore might double their award, thinking that each type of infringement counted separately for computing damages. Or worse, they might multiply their figure more, if they thought he uploaded a lot.

Well, the figure that they came up with after deliberating was $675,000. The minimum award in this case would have been $750 per work times 30 works, or $22,500. Multiply $22,500 by 30, and you get the amount actually awarded. It is possible that the jury meant to award the minimum damages, but due to the incorrect instructions, multiplied to account for multiple acts of uploading that they believed occurred.

Or they might have just felt that 30 times the minimum was a just figure, and they understood the instructions just fine. Not having seen reports (if there are any, or are ever going to be any) from the jurors as to what their logic was when deliberating, I don't know.

But the doubt, it seems to me, could be grounds for a mistrial. This is of course entirely unrelated to the constitutionality issue that has been discussed at length. On both issues, I will be very interested to see what happens. And since an appeal is likely, and any appeal will go to the First Circuit, I will probably get to see that myself as well.