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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.
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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?
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.
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.
Kinda puts the $1.9M Thomas-Harris has to cough up in a strange perspective. There seems to be no rhyme or reason yet to how these get awarded.
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.
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.
Not so. First, copyright law has been around for a long time. What the RIAA has been attempting to do is extend copyrights far beyond any intent of its original foundations.
Copyright was never intended to give the copyright owner complete and full rights as though it were a piece of tangible property. The intent of copyright was to give the holder temporary rights to an original work, in order to give artists, writers, and other creators incentive to create... as opposed to simply letting all original works automatically be in the public domain. This incentive to create was (as is clearly stated in the law) intended to benefit the public, because after that temporary period was up, the work reverted to the public domain.
The period of copyright was originally much shorter: about the same as a patent... and if it is reasonable for a patent, it is also reasonable for copyright, for exactly the same reasons: it allows the creator to make money, while also benefiting the public.
The period is longer now because copyright holders (mainly large corporations) lobbied Congress to make it so, in order to profit from it more. It is now up to the life of the creator, plus 50 or 70 years or so... I forget exactly. Now, tell me: how does that benefit the public (the whole original purpose of copyrights)? Someone can write a book, and someone who was born the same year might never live to see it in the public domain! That does not fit very well into my definition of "temporary"!
I should also point out that letting original works and inventions automatically be in the public domain from the beginning has been tried in other countries, and guess what? You end up with a society that on the whole does not create, and does not innovate. (Think, "Soviet Union" during its heyday.)
The desire to work for one's own gain is powerful.
On the other hand, when works never (or almost never) revert to public domain, then you end up with a stratified society, in which the public does not benefit from creativity and innovation... exactly the opposite of what copyright law was intended to establish.
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.
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
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.
Gah. I hate it when I give a reasoned reply to somebody, then they get modded down so it looks like I am talking to air.
I guess the lesson there is: "Don't feed the trolls."
OR, just quote the relevant parts of the post you are responding to.
I should also point out that letting original works and inventions automatically be in the public domain from the beginning has been tried in other countries, and guess what? You end up with a society that on the whole does not create, and does not innovate. (Think, "Soviet Union" during its heyday.)
They also didn't have the internet - a nearly frictionless vehicle for distribution of original works and money, although we could stand lose even more friction on the money part.
When information is power, privacy is freedom.
If you were familiar with some of the trials and suits of the early 20th century, you might change that tune. (No pun intended.)
At that time, copyright did not specifically cover recordings of any kind... whether rolls for player pianos, or the new Edison recordings.
The writers of music (the aged John Philip Sousa made sure to make a lot of showings of his famous face on this side), were arguing that they should receive royalties for these "recordings". The "recording industry" (makers of player piano rolls and Edison-type recordings), argued that the writers already made plenty of money from royalties on their sheet music, recordings did not cost the writers anything, and that the recordings, in effect, amounted to "free advertising" for said sheet music... and indeed, once a recording became popular, sales of the sheet music did go up, often dramatically.
In effect, the makers of recorded music were making EXACTLY the same arguments that downloaders of music are making today. There is not a whit of difference, except that back then, their motive was profit, and you cannot fairly say that about the vast majority of downloaders. But of course, now that it is mainly the recording industry (generally more even than the artists) that are on the profit-making end of things, they have turned 180 degrees and are suing their more-modern counterparts for shitloads of money. Just as Sony -- winners of the "Betamax decision" in court -- now take exactly the opposite stand now they they are content providers.
They are a bunch of f**ing greedy hypocrites, and I have no sympathy whatsoever.
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.
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?
(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.
All you seem to see in my statements are the arguments you want to see, even if that is not what I stated at all. Please show me where I stated that copyright was the only solution,
If you don't believe that, then why did you bring up the entire bit about "if there were no incentive to create?" In a discussion about copyright WHY would you bring up such a HUGE red herring as assuming that there would ever be no incentive to create unless you didn't believe it to be a red herring at all? For all your ranting on being called out, I see absolutely no justification for centering your post on that argument.
Couple that with your total misdirection of claiming that some digital publishers are profitable the frictionless nature digital distribution BY EVERYONE ELSE of the same content is somehow irrelevant when said profit is in fact due to two wholly unrelated characteristics - convenience and copyright enforcement. The first being a potential business model and the second being a buggy whip. I expect now you will conflate the artificial scarcity of copyright enforcement with the natural scarcity of piano rolls.
When information is power, privacy is freedom.