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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."
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
bomb the damn HQ of the riaa already, where are the terrorists when you need them? fuck them
If the judge gets to decide the verdict (unless it's a not guilty verdict in a criminal case)? Why not let the judge consult with whomever he/she wants rather than the 12 jurors in this case? If jury trials are not necessary in civil cases, mandate judge trials. At least outrageous fines will become rare. But don't create a farce hidden by an appearance of a right to a jury trial.
For those of us who aren't lawyers, why was it improper?
... and artists everywhere REJOICE, knowing that the RIAA has expended countless billable hours to smite one of the 18923789738945345 file sharing individuals of the world.
Furthermore, these artists know that they'll all be getting their share of this $675,000 in a rapid and straightforward manner, because the recording industry has never, ever, f****d over the artists before.
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.
Isn't there something in the US constitution about the punishment being proportional to the crime? $675K is just as absurd as $675M or $675B. They should have just given him the chair, that would've shown those pesky pirates not to fuck with the record companies.
$675000? Lol.
Oh, wait. You're serious. Let me laugh even harder. HAHAHAHAHAHAHAHAHAHAHA!!!
What was this guys defense? It sounds like he took it all the way to court, only to admit to everything he was accused of. Was he even trying to win? or just martyr himself?
Hmm... that must have been a real big torrent, this guy downloaded, because I haven't seen music worth any money for years.
Anyone got a link to the file(s) he downloaded? Now I'm curious!
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.
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.
The linked article doesn't give a complete transcript of the questions and answers, so I can't speak to whether the question was 'totally improper,' but as Ray Beckerman (aka NewYorkCountryLawyer) should know, it was the job of Mr. Nesson, not the judge, to object to improper questions. Furthermore, Mr. Tenenbaum was almost certainly deposed prior to trial, and Mr. Nesson would know what questions were likely to come up.
Finally, the offending question is presumably "Are you admitting liability for all 30 sound recordings?" Under FRE 704(a), an opinion as to an ultimate issue to be decided by the trier of fact is admissible (with the exception given in FRE 704(b), which does not apply here).
Lay opinion evidence is limited by FRE 701, which requires that the opinion "(a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702." Crucially, the question was not "Are you liable?" it was "are you admitting liability?" The former might possibly be objectionable, the latter is almost certainly not. In any case, Mr. Nesson did not object and so the point is largely moot.
The only reasons to disregard Mr. Tenenbaum's admission would be if the judge believed he was either lying or mistaken. He had no reason to lie, and since the other evidence makes a strong case that he was in fact liable, his admission fits with that.
In any event, Mr. Nesson's strategy has always been to admit liability but argue that the damages are unconstitutional or otherwise impermissible. He has been very clear about this in his public discussion of this and related cases.
Finally, I'll just add that the right against self-incrimination applies only to criminal cases and has no application here.
...I fail to see the reason for the outrage against the "MAFIAA" as it's known around here, at least among American citizens. 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...social programs and services such as police and schools and roads and the military and all those other good things. When you download songs without paying, it's indefensible stealing. Call it what you will, argue until you are blue in the face that "copyright infringement" is not technically "theft", but the bottom line is that this is a real business that makes real money and supports the economy.
Moral of the story: Just because some crazy-ass professor has "Harvard" next to his name does not mean he is going to magically get you off. Hell, from the looks of this case this Nesson guy should probably be brought up on sanctions for trying to turn this trial into a circus for his own fantasy-version of fair use. An attorney representing a client is supposed to act in the client's best interest, and not in the best-interest of his political cause. From what I've seen of this Nesson guy, his argument that P2P of complete copyrighted works constitutes "fair use" is completely ridiculous.. just see the four factors reiterated in Acuff-Rose case: There's no transformative use at all, these are all commercial works not some political diatribe, and the guy was distributing complete copyright works online. About his only defense is that he wasn't charging for the works, but that factor alone is never going to win. Oh, I'm sure this new "fair use" theory is popular with other faculty at Harvard and in some bizzaro academic enclaves, but in the real world it was a great way to get his client screwed over. Not that Nesson cares, it will just make for publishing fodder he can push out to a hapless law review that's more wowed by his "Harvard" credentials than by his complete lack of legal reasoning.
Oh, and pending my passage of the bar exam I finished two days ago, yes I will be a lawyer. I also went to a school with a much better copyright curriculum than whatever these jokers at Harvard are pushing.
AntiFA: An abbreviation for Anti First Amendment.
I want to see Free Software Foundation paying that bill since FSF assumed an unusual defense of Mr. Tenenbaum.
FSF are lamers! Free software isn't everywhere, in fact... Free Software would not have to exist!
FSF is a shame for the free software community and must disappear ASAP
It's clear that now the RIAA can make people pay for copyright infringement and will have an important victory under their belt to back up future litigation in persuit of damages. Whether or not the defendant can pay is irrelevant, there's a court-order backing up the verdict. I don't think RIAA will lose sleep over never collecting $650k, it's the principle. in one fell swoop they have legally consumed an individual. Salami slicing now has a pricetag and it has a poster child.
At that point, the bankruptcy falls off your credit report. So more or less what they look at is your history during that time. All inactive accounts slide off your report after an amount of time, and all bad information. You can look it up as to what goes off when. However if over the 8 years you maintained proper credit usage, you'd have good credit. If you dug yourself in to a deep hole, you'd have crap credit again.
Credit isn't a permanent state. It is intended to be a risk assessment off of your usage history. However it only goes back so far. IF you defaulted on a credit card when you were 20, nobody will know at 40. It isn't held against you for life.
http://www.youtube.com/watch?v=mhBpI13dxkI
Joel Tenenbaum was a teenager at the time of his conviction, accused of downloading 7 songs from a file sharing network.
This bodes bad weather indeed. If money is what sustains the flesh, we have here a case of cannibalism.
(Somewhere, a barman in a life-jacket pours Scotch for a passenger while the cruiser sinks..)
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.
bomb the damn HQ of the riaa already, where are the freedom fighters when you need them? fuck them
Never admit to being liable.
---- Booth was a patriot ----
Fifth Amendment?
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 ...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....
pay for ads...now if we had a tax to finance google and no ads people will shout "OMG its a tax
Someone at Ars pointed out that at $750 per song, the minimum award is 750 * 30 = 22.5k.
The jury multiplied the 22.5k * 30 to get $675K.
Were the judge's instructions misunderstood as "22.5k PER SONG"??
Juries are also supposed to try the law itself too. Although this is rarely done today, the right of jury nullification is a long standing tradition.
Fully Informed Jury Association:
http://fija.org/
Libertas in infinitum
>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.
The inherent vice of capitalism is the unequal sharing of blessings. The inherent virtue of socialism is the equal sharing of misery. - Winston Churchill.
Let's cut straight to the chase: I get the impression that Americans are rabid individualists. They do not want a socialized health system tell them that they are not worth saving because others have higher priorities. They believe that an individual relying completely on themselves is responsible for their own well being. Socialized health care on the other hand understands that humanity has a dignity and if you are unjustly disadvantaged then you can still get treatment according to fairness with everyone else. Myself in particular: I have schizophrenia. I take $20CDN worth of medication for it every day. I cannot afford this medicine. My government subsidizes me based on individual need. If I was in the US I'd be living on the street talking to the birds. So, the conundrum for the US style of care is: what if you are incapable of caring for your self?
Shh.
That's the basic problem in this case: the defendant was in fact making and distributing copies of copyrighted works without authorization, and doing so well outside the bounds of any fair use. Copying works you already own for your own use is (or should be) fair use. Giving the occasional copy to a friend, maybe. But handing out copies in wholesale quantities to anybody who stops by your booth to ask (which is what P2P file sharing involves)? Not even. The lawyers know it, the judge knows it, the defendant knows it, and the average person knows it. And frankly I agree with the law on that point. Whether it's a book or an MP3, the author for a certain period gets to be the sole source for it. I don't agree with certain of the details, but in this case none of those areas were implicated. The only defense Joel Tenenbaum might have raised is "I had a geek set it up for me for my own use, I had no idea it was sharing those files with the world.". And even that's hurt by the fact that much of his library wasn't his own, wasn't anything he'd paid for. I've noticed that judges are like DMs: they don't like players who use technicalities to get away with breaking the rules, and they tend to find ways to use those same technicalities to make it so the players don't get away with it.
If the RIAA comes knocking, ask yourself three questions: "Am I downloading copyrighted songs without paying for them?", "Am I sharing copyrighted songs with the world?", and "Do I know full well I'm doing this?". If the answers to all three are "Yes.", then suck it up and pay the settlement. You can delay the inevitable, but they are going to win.
If all the music on your computer's rips of CDs, tapes etc. you own and you've only used P2P software for legal material, have a geek check your system. Even if you didn't intend to, if you use the software it may have started sharing more than you intended. If it turns out that's the case, don't try to hide it. It just makes you look guilty. Preserve the evidence (so the RIAA can't use the appearance of hiding something against you), shut down the sharing, and prepare the "I honestly didn't know it was happening." defense. It may not save you completely, but if you're otherwise clean it's likely to get the judge leaning in your favor.
If it turns out you've no illegal material on your systems and demonstrably weren't sharing anything out, then and only then do you haul out the big guns and go for a showdown with the RIAA.
Eh! slashdot; how many I owe you for "working offline" your copyrighted pages???
IANAL, but AFAIK the 5th says you cannot be *forced* to testify against yourself. If you do so voluntarily, you have nobody to blame but yourself - and no recourse. So if you plan to plead the 5th, you need to do it right off the bat.
Seriously... I do not download tracks and I do not use any P2P clients. I simply listen to whatever I can find on the TV, radio, or on sites like youtube (streaming to me .. but not me downloading it). Perhaps I am not as much of a music lover as other ppl are. But this type of attitude from the industry makes me so p@#* off, that I feel even less inclined to buy a CD now than I ever felt. At least before, I could see myself buying one as a gift to someone else as I have done in the past. There is no way I will be buying a CD/DVD anytime soon now. Don't you guys feel the same way?
As I mentioned elsewhere, Nesson's strategy has always been to give up on liability and argue that the damages are either unconstitutional or otherwise impermissible
Liability for what? Everybody, including the Judge, seems to have forgotten that there were 2 theories of liability, 1 for violation of the reproduction right, 1 for violation of the distribution right. While there may have been sufficient evidence to support infringement of the reproduction right, there was not evidence to support "distribution".
Additionally there appear to have been other important issues which were overlooked such as chronology, evidentiary admissibility of technical material, admissibility of extraneous matter, the lack of verification of most of the sound recordings, absence of evidence of dissemination of copies "to the public", absence of evidence of a 'sale, other transfer of ownership, or rental, lease, or lending', and possibly how many "works" there were.
Ray Beckerman +5 Insightful
Bullshit legalized extortion. Ridiculous judgment, loaded juries and complicit judges. Money talks, rationals suffer. Quite the greeting for nascent technology. Greet rationality and vestigilize the RIAA.
Thought I'd add a little footnote to this.
In all likelihood, the monetary damages recently awarded by juries in both Jammie Thomas and Tenenbaum trial far, far dwarf the amounts that the record labels
actually spent and advanced to the artists and producers when originally acquiring the rights to the master recordings of those very songs that were being shared.
It would be interesting to compare the average damage paid for stealing something tangible (how many times the value of the object?) versus these obscene amounts for
something of which there is an infinite supply, and the copying of which truly caused very little harm (and which most times the labels themselves bought so cheaply).
Maybe the defense's tactic is to force the issue of disproportionate damage to the crime committed, hoping that one of these cases will ultimately need to go to the Supreme Court ??
Historically, such excesses have never been good press for those who while they may morally be 'right', overstate the harm caused, and therefore the size of the punishment meted out.
Lest we forget, similar punitive practices were the ultimate catalysts for some famous past tea parties in the very same town's harbor where this trial is taking place today.... how fitting!!
Z.
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.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
You chat with Joel and make a friendly teasing joke about the novelty t-shirt he's wearing and he just kind of freezes up. He's a geek. He doesn't handle even light, joking confrontation well. God knows what he'd do in the hot seat. Still, isn't this what prep is for?
Need I say more?
If you give away digital copies for free, does that count as "other transfer of ownership"? I'm assuming it can't be sale/rental/lease because no money changes hands, and I'm assuming it's not lending since there is no expectation that it will be returned.
I am not American, but isn't there something called "Cruel and unusual punishment"?
Is it just a coincidence that 675,000 == 22,500 * 30 == 750 * 30 * 30? or was it a mistake, or was it intentional?
If we assume that the judge told them that the minimum penalty per song was $750, and there were 30 songs infringed, bringing us to minimum damages of $22,500... what happened next:
a) they coincidentally decided to punish him by awarding 30x the minimum judgment -- a nice round number (bigger than 10 but less than 50)
b) or they misunderstood the judge's instructions -- they thought that $22,500 was the minimum per song, and so actually awarded the minimum they thought possible -- 30 * 22,500 = $675,000
c) or lastly, they intentionally chose that since he pirated n=30 songs, they would punish him at n^2 * 750... In other words, they chose to punish him exponentially in relation to his crime(s).
As far as I see it, if it's a) that seems a rather arbitrary number, and arbitrarily wide range of punishment for a simple act which harms no one. If it was b) then this sounds like some kind of mistrial or jury reboot.. and if it was c) well... exponential damages sounds like cruel and unusual punishment to me. How does $675,000 fit the crime?
Hooray! This is another victory for artist's rights. I hope Tenenbaum pays & suffers the rest of his life.
It's a victory for property rights. Enforced by a jury no less. An artist or author has a right to bread and butter and not just slave wages. If it takes only a few pirates paying a larger cost, that is justice. An artist should be able to set the price for their product.
Look at every country that trashes property rights. POVERTY for all.
If you covet others, they will covet you. It's simple math. If you don't want the product at that price, don't buy it and certainly do not defraud the original artist.
A few people stealing is manageable. But illegal distribution is un-manageable and creates poor quality media. Pirates suck!
May Tenebaum be haunted for years. Property rights work! and they work quite well. Don't trespass on my lawn, thank you. Go find your own property.
Expect the quality of media to rise some, because prices can be set, not just quantity.
Score & Karma: SASA: Slashdot Approval Seekers Anonymous
(a) If you get caught by the RIAA, settle quick.
(b) Don't be a dummy and keep ripping copyrighted material after you're caught.
(c) If you're too stupid to settle quick, DON'T engage show--off lawyers who won't try to settle your case for the lowest possible amount. Engage lawyers tuned in with a sense of reality.
(d) Talk strategy with a bankruptcy lawyer very early on in the process.
(e) Don't listen to any of the whackos who keep railing about how (boo-hoo) unfair the copyright law is. Your predicament DEMANDS a pragmatic approach--devoid of political or emotional overtones or undertones.
In the Army, I was taught the practical response when exposed to a nuclear attack. It seems appropriate here:
(1) Bend over;
(2) Put you head between your legs; and
(3) Kiss your ass goodbye.
The current western legal system has become a joke. You really can't achieve anything in the lower courts except to act as the most basic pursuader. So if the other side is already 99% convinced then the lower courts can tip the balance but for real cases, they are worthless. The judges are all incompetent. It would like getting your medical diagnoses from a highschool biology class. Biology class is to seperate the plumbers from the doctors and even those that pass won't be any good until AFTER they been through med-school and some years of practice.
Judges are tried and tested in the lower courts and most never make it. Relying on them to rule fairly or even sanely is an excersise in futility.
Rather use it as a test bed, get to see what your opponent has to show and then build you next defence based on that.
Really, every serious case is appealed. Even if a judge ruled in your favour it is worthless, because the other side would just appeal.
MMO Quests are like orgasms:
You may solo them, I prefer them in a group.
If you buy through iTunes then you support the idea that a digitially distributed song should cost not only the same as if it was pressed on a CD with all the logistics costs involved but that said songs should never land in the discount bin.
Really, iTunes is NOT freedom, it is enslavement of a kind the media companies would only drool about if there dreams didn't go so far as that EVERY song must be rented and paid for each variation (mp3 player, home stereo, ring tone) and for each performance (ring tone can be heard by dozens, so you should pay for that).
MMO Quests are like orgasms:
You may solo them, I prefer them in a group.
bomb the damn HQ of the riaa already, where are the terrorists when you need them? fuck them
Pursuing agendas which however perverted have a somewhat larger dimension than the geek's right to a free media fix.
Why anyone would mod up an incitement to murder is beyond me.
It reinforces the most dangerous and self-destructive stereotypes of the geek mind and culture.
Second Amendment ?
Count me as one more person who, after this farce, will do everything I can to never give the RIAA record companies another dime of my money. I'll buy independent music, listen for free on the radio, or simply do without. I can live a good life without their music, and they ought to be scared by that thought.
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
In a completely free market, only the healthy get insurance. A healthcare system is about solidarity, e.g. between those that have the luck of not having some gene mutating into a cancerous one and the relatively small group that isn't that lucky.
Maybe they were hoping for jury nullification.
Or "The license for this music DVD..." or "This software is licensed not sold...".
How about that.
No license was transferred so nothing that you pay for when you buy a digital music track, DVD or software is passed on when filesharing.
Therefore nothing was transferred as ownership.
How does supermarket provides cheaper food than local store?
Power of negotiation. They buy a lot of the stuff that producer has to sell. If a supermarket don't buy your product, they will buy someone else and their market share will increase and yours drop. If a little shop tried to make you reduce your price, you would just ignore him.
Same with health care. If the government decide that one drug is too expensive while the next one which has similar effect is cheaper, they can decide to push the prescription of the cheaper one. especially if they agree to reduce their price even more. Even if the first company offer better holiday package for doctors, the price of prescription will diminish.
Why do you think drug in the US are so much more expensive than in Europe?
Health insurance is easy for people in good health. Unfortunately, not everybody is so lucky.
He may never pay but his life was disrupted by being forced to defend himself. Now he will have to go through the hoops of bankruptcy and all the crap that goes along with it.
If you mental midgets think that is worth it then I hope you continue to steal property you didn't create and I hope you also get prosecuted. Then get forced into bankruptcy while being a slave to the bureaucracy and your lawyers fees. I'm sure you will enjoy every minute of it.
Eventually copyright holders are going to win this war. And this generation of leeches will be just a bad memory. Copyrights and the revenue they generate are the incentives for creative people to create. Take those incentives away and you stifle innovation. That is a huge reason why generation x and y have total crap for music. Why work hard on something when you won't make any money and clueless slugs are going to steal it?
You are right, this is about creating an atmosphere of fear. One suspects that it has been successful. I have to wonder if the RIAA realize that most people want nothing whatsoever to do with those they fear Could their success in creating fear have contributed to the decline in purchasing? [The vastly increased crappiness of their products is a whole 'nother story]
If you want your life to be different, live it differently.
It seems odd that everybody is screaming unfairness because of the amount of the settlement, but almost nobody is taking a cold, hard look at the defendant's actions during the trial.
Frankly, he got off EASY. For what he did, he's lucky he isn't in jail.
On the stand, Tenenbaum admitted that up until that part of the questioning, he had willfully lied under oath, with little excuse other than "It's what seemed the best response to give." That's perjury, and under American law, it is a felony offense that carries with it a jail sentence of up to five years. And there's a reason for that.
A trial is supposed to be the administration of justice, which in ideal circumstances is fair and balanced. But for justice to be administered, it must be based on truth. By lying throughout most of the trial, Tenenbaum made a mockery of the trial, and prevented the court from being fair and just. At least he admitted it before the trial was over, but he still ensured that for months the jury's consideration was based on false information.
Judges and juries don't like being lied to. So, yes, the defendant has been ordered to pay $675,000 USD in damages. But, he doesn't have a felony on his record, and he's not going to be spending up to five years behind bars. He'll be able to declare bankruptcy and get on with his life.
Considering the alternatives for willful perjury, that's getting off really damn easy. And frankly, after his conduct, I have no sympathy for him whatsoever.
Robert B. Marks
Author, Demonsbane in Diablo Archive
I would question whether he did admit liability. The quote:
is a horrible question akin to "have you stopped beating your 30 wives?" One can easily intend to answer the numerical quantity without considering the issue of liability.
-HobophobE
Nothing laughs forever.
Statistically out of every 100 trials, you'll only get 2.5 juries to nullify the conviction and release the defendent.
In a civil case, there is no "conviction," only a decision for the plaintiff or the defendant.
You can't claim there has been "nullification" until you have shown that no "reasonable" jury could have found for the defendant.
You have no source for your statistics. You've made no distinction between the state and federal courts, civil and criminal law.
There were states that went "dry" before Prohibition and states that remained dry after Prohibition. Salt Lake is not Chicago.
Broadband is not universal. You might just discover that 40% of the jury pool is standing in line with the peons at Blockbuster.
You can talk all you want to about the fact that 5 files were uploaded to MediaSentry, bottom line is that plaintiffs never proved a "distribution" occurred within the meaning of the Copyright Act, and never proved that more than 5 of the files were actually reproduced. Moreover, it appears that they failed to prove the requisite elements for entitlement to statutory damages. So what you should have had was a judgment in favor of plaintiffs for approximately $1.65.
Next round is the constitutionality of the award under due process analysis. You can bet that Judge Gertner will reduce the verdict on that ground, but not enough to bring it anywhere near $1.65, which is all she should have allowed were she carefully applying applicable law.
Highly regrettable that the litigants' attorneys and the Court all failed to stay grounded.
Ray Beckerman +5 Insightful
I am an attorney, but this is not legal advise. If you need that, pay an attorney licensed in your jurisdiction.
Actually wage garnishment is a joke in most instances. They can't garnish your wages if they don't know where you work.
So far, so good.
You aren't obligated to help them find out where you work.
Welcome to the real world.
Judgment will be followed by a judgment debtor's examination, at which you will answer under oath questions about your assets, and where you work.
Don't answer, or lie, and there's a cell waiting for you for contempt.
Dodging a judgment, while doable, is non-trivial.
That's problem number one for them. Problem number two is that a civil judgment is generally last in the priority list for wage garnishment. Child support, alimony and taxes come ahead of it -- and if they exceed a certain percentage of your income (garnishments are generally limited to 10-15% depending on state) then there's nothing left for the civil judgment to garnish.
Yes, that means those with child support arrearages and back taxes don't have additional consequences.
BTW, 25%, not 10-15%, is the typical wages cap.
There's also at least four states that don't allow civil wage garnishment. Texas, North Carolina, South Carolina and Pennsylvania.
At least for certain items, including taxes, PA allows garnishment of wages without the inconvenience to the creditor of obtaining a judgment.
hawk, esq
I am an attorney, but this is not legal advice. Pay for it if you need it.
I've always been amazed at the post-bankruptcy flood of credit offers. But then, you're years from filing again.
However, it is *not* clear that the debt would be discharged in bankruptcy. Debts for "intentionally caused harm" are not discharged, and given the specific intent involved in file-sharing, it is at least arguably covered. The issue hasn't been litigated yet, and I can see it coming down either way . . .
hawk
I am a Canadian retired lawyer and judge. I am appalled by the Alice in Wonderland nature of US copyright and related laws and penalties [blame for this must be laid at the feet of the criminally negligent legislators and bureaucrats who created, then passed, the legislation] and the attitude of the courts in these cases. I know that most legislators accept bills from the bureaucrats or whoever prepares them and pass them into law without, in most cases, reading them or understanding them. This law is a good example of the personal harm that can be done by such negligence. I say criminal negligence because if it has resulted from negligence, it is such a high level of negligence as to come so close to the deliberate doing of harm as to be indistinguishable from deliberate intent. If the law didn't come into existence because of negligence, then it reveals an even greater evil. There is no doubt in my mind that the penalties revealed by this and similar cases are so disproportionate to the harm done that the laws and the policies behind them are much more evil than the acts they are punishing people for.
Incredibly the defendant's Harvard Law School "legal team" is now taking up a collection to raise money to PAY the RIAA.
Ray Beckerman +5 Insightful
american legal system. have more money ? spend more money, and either outsue everyone or convince the 'jury' that you are right, despite having a knife with a blood on your hands, and youre off the hook.
inverse also applies. sue jesus, provide bullshit evidence and even withhold evidence saying that it would 'damage your trade secrets' and just convince the jury that he is actually son of satan, and you win.
excuse me but this is total bullshit. and happens only in america. you have to ditch that jury system and move to a system that requires hard cold evidence for anything to happen.
Read radical news here
> 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.
So the undiscussed issues, proof, and so on, don't matter since she said, "I Did It"?
I can't argue the propriety of the question or answer, but that's another issue. If it's Ok to do so, I can't see why there's anything wrong.
The only objection would be about the question and answer itself and whether that's valid. Anything else (in this particular case) is, at this point, sophistry at best.
(-1: Post disagrees with my already-settled worldview) is not a valid mod option.