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?

[Shakrai]

What are the consequences for Mr. Tenenbaum? Can't get a credit card for a few years?

Few years? I had a secured credit card the day after my discharge and an unsecured one four months later. I'm now four years from my bankruptcy and have 50% of my annual salary in unsecured revolving tradelines (i.e: credit cards) and can get the same interest rates as anyone else.

Re:bankrupt then what?

[Shakrai]

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

I've never heard stupidity described as strategic. The kid relies on a bunch of law students to draft up a dubious defense relying on fair use, then admits to committing the action that the Plaintiff alleges caused them a financial loss. I don't think I would approach a civil action in the same manner......

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]

Go fuck yourself and your condescending superior attitude. My bankruptcy was mainly incurred by medical problems. You ever need to have emergency surgery without medical insurance? Give it a try sometime and let me know how it works out for you.

I attempted to settle my debts for years before I filed bankruptcy only to find that while I was unable to pay them they had increased nearly 400% from the amount I originally borrowed. It's amazing how quickly debt can pile up when they your APR goes up to 34.99% and they keep piling on late/over-the-limit/because-we-can fees every month.

But that's not the end of it. Once you are unable to make payments to your original creditors they eventually give up and sell your debt to a junk debt buyer. This entity buys your debt for pennies on the dollar and then attempts to collect 200-400% of the original amount owed. They keep 100% of what they collect. The people from whom you actually borrowed the money don't see a dime.

I have no regrets about filing bankruptcy. It wasn't a hard choice to pick between paying back people I never borrowed money from and moving on with my life.

Re:bankrupt then what?

[Anonymous Coward]

Umm, who the hell would know what a "tradeline" is? Just say credit limit; problem solved.

No reason for an "Umm."

Re:bankrupt then what?

[dgatwood]

Then I think you missed one:

willful and malicious injury by the debtor to another entity or to the property of another entity;

I see no reason that file sharing would not easily meet that criteria, particularly if you are so anti-corporation that you try to claim a fair use defense because you are only distributing fragments of a file....

Re:bankrupt then what?

[arthurpaliden]

You must be an American, pity you do not have national health insurance program. Sure you may have to wait a bit for elective and non-emergency surgery but at least you don't get bankrupted having emergency surgery. (yes there are a few exceptions, some people die waiting, talking about the vast majority here)

Re:bankrupt then what?

[Achromatic1978]

I'd rather have our bankruptcy process and a free market medical system than have yet another intrusion of Government into my life. "Buy this coverage or we'll fine you. Lose weight or we'll fine you. Don't eat that big mac that we've slapped a sin-tax or we'll fine you." I have choices right now. I'm doubtful that anything that comes out of Washington is going to increase the number of choices I have. History suggests the opposite.

FUD. FUD FUD FUD. Speaking as someone living in America now, having lived most of my life in Australia under nationalized health, and the UK under same, and making my living from the health insurance industry here, the system here is a travesty.

You do NOT get fined for being overweight. You don't get fined for being unhealthy. "I'm not going to let the government decide my health care! Instead, I'm going to praise the land of the free because my health insurer chooses to deny me cancer coverage because I forgot to mention I had appendicitis 20 years ago." "Instead of a government bureaucrat (and very rare is this the case), I'll happily let a HMO accountant with no medical training whatsoever decide what medical coverage I am entitled to!"

Instead, I get to pay $500 a month for health coverage, plus high deductibles, high out of pocket expenses, have no coverage for the things my wife and I desire. In Australia I paid 1% of my income as a tax, or 1.5% when my income hit 45,000 a year. Alternatively, I could opt in for private coverage, and pay as much or as little as I liked, and not have that tax.

"But I don't want to pay because you're unhealthy" - right, because when someone goes into an ER now because they have a cold, and walk out without paying the bill, who do you think eats the cost? Hint: an overnight stay in hospital doesn't really cost $10,000+. For bonus points: pay cash at your chiro for a $45/hour session. Pay through insurance and have them bill $150 for the same session. Think your insurance carrier is making that much on your premiums being invested that they're covering their costs, plus this? Nope, you're paying.

America is the ONLY country in the first world that doesn't have nationalized health care. Why is it you mainly hear about all this supposed dissatisfaction all over the world with their supposedly horrible health care from US news, not the BBC, or AP, or Reuters, or any other news agency actually in these countries? Instead, we pay twice as much per capita for health care than other first world countries, and have substantially worse than average first world metrics on everything from infant mortality, to life expectancy, to diabetes, to heart disease, to cancer. Yet for all this, there are people who continue to trumpet that everything is A-OK here, and that it's the best way to be.

Jobs would be envious of this RDF.

Re:bankrupt then what?

[IICV]

... So instead of having the government choose your healthcare, you prefer to have your job choose your healthcare? Instead of joining a plan that must care for everyone no matter what, you prefer to join a plan that can drop people whenever it chooses? Instead of having one open health care interoperability standard, you prefer to have every single healthcare provider roll their own? Then you can have the current American healthcare system, where most group coverage purchasers are too small to demand proper care for their employees, where health insurance plans will routinely deny first and even second requests just because they can, where the overhead of interoperating with so many different health care providers raises medical fees through the roof if you're paying out of pocket. How exactly is what we have right now better in any way whatsoever than any alternative? Hell, Singapore even shows that having no health care insurance at all can work out better than the piece of crap we have now.

Re:bankrupt then what?

[jhoger]

Hey buddy, what do you call it when my premiums go up because *you* decided you could go without insurance?

It shifts the costs to everyone else. Is that fair? Is that the conservative way? Don't pay your fair share, and then when you get sick, screw your creditor (the hospital) and pass the costs along to the rest of society. Real nice.

The system is actually more efficient if the government administrates that. At least I will have the peace of mind that, along the way, if you made enough to pay in, you did, because you had to pay tax.

Re:bankrupt then what?

[anagama]

I'm not terribly hip to publicly funded healthcare, but the fact is, it could hardly be run worse than it is now. A private for-profit sprawling bureaucracy is even LESS efficient that a public not-for-profit sprawling bureaucracy. Anyone who thinks the private insurance industry is anything but the most byzantine bureaucracy imaginable is not paying attention. What I fear most however, is a law that forces subsidization of the insurance industry without a public not-for-profit option, because the fact is, the insurance industry has the lobbying power. I fully expect to get totally raped by a Congress who only hears dollar signs (in multiples of 10,000)

For a pretty awful example, and one that scared me as I'm self-employed and buy my own insurance, many people in my situation get denied coverage based on some ridiculously technical reading of their answers to the questions asked when you sign up for coverage. For example, there is an egregious example of a woman whose policy was canceled when she sought authorization for treatment for virulent type of breast cancer. The reason? She forgot to mention she had been treated for acne, her doctor misrecorded her condition, and even after the doctor called Blue Cross to clear up the matter, they wouldn't budge.

http://www.cnn.com/2009/POLITICS/06/19/begala.health.care/index.html
http://www.thisamericanlife.org/Radio_Episode.aspx?episode=386 (about 33 minutes into the episode)

So we have a private insurance industry that will take your money and provide nothing in return. Even at the horrible DMV, you will eventually get your license, and they certainly don't try to murder you on a technicality. The notion that the free market is doing a good job at healthcare is simply not well founded in reality, and in fact it is doing SO badly, I think even the government would struggle to fail as epically as the private insurance industry.

In the end, if I can get the same crappy coverage I have now, for less cost and without the worry that I forgot to say I had the measles when I was 6 thus causing my entire policy to be canceled as a result (this is just robbery of premiums), I'd go for it. I just don't expect Congress to actually deliver something like that. They'll just force me to get robbed.

Re:bankrupt then what?

[Anonymous Coward]

Sorry, but I'm sick of the Government trying to protect me from myself.

So am I. Luckily here in Australia our politicians are people too; So while they might get riled up about porn on the internet, they're not going to tax anyone any time soon just for being fat (hint: maybe google image some of our politicians?)

Could you opt out of coverage entirely? If not then the Government has taken away your freedom of choice at gunpoint.

No need for hyperbole, hardly anything is done here at gunpoint.

I'm sorry but there isn't any argument you can make that's going to convince me that we need a Government-run health care system. I don't like Government. Government exists for one reason: To deprive individuals of the freedom of choice.

And that's exactly why a slight smile appears on my face every time I have the pleasure of reading Americans discuss a national healthcare system. Your government might exist purely to deprive its citizens of freedoms, our governments exist for very different reasons. And the freedom to not have a healthcare system is hardly a freedom, but then again I don't miss the freedoms to drive without a seatbelt or to off myself.

Re:bankrupt then what?

[zerocool^]

America is the ONLY country in the first world that doesn't have nationalized health care.

The funny thing is, we DO have nationalized health care. 66% of the cost of health care in this country is paid for by medicaid, medicare, or federal government health care plans.

I DO NOT understand why people are so against nationalized health care here. It's already here. They play it up to be some sort of slippery slope, a plague that will infest every part of our lives and culture. Let me clue you in: the system is ALREADY IN PLACE, and the only people who benefit from the way things are now are the insurance and pharmaceutical companies.

~X

someone just

[Anonymous Coward]

bomb the damn HQ of the riaa already, where are the terrorists when you need them? fuck them

Re:someone just

[jerep]

Dont you know, terrorists never existed in the first place, its just a scam to scare people.

I am still in favor of bombing the RIAA though.

What is the point of jury trial?

[iamacat]

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.

Re:What is the point of jury trial?

[Chyeld]

He had a jury trial, he also admitted to doing what he was accused of doing. In a criminal trial that's pleading guilty. Why would they waste time at that point arguing over a point that has already been conceded.

"Your honor, I did it! I admit it."

"That's for a jury to decide son..."

Re:What is the point of jury trial?

[PylonHead]

The judge's role is to decide issues of law, and the jurors' duty is to decide issues of fact.

In this case, both sides agreed that he violated copyright and that he was liable for it. The only issue that then remained was whether he did it "willfully" or not. The jury got to determine this, which determined what his liability was.

He basically walked into court and said, Yes, everything they're saying is true. What sort of result were you expecting?

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:What is the point of jury trial?

[anagama]

Jury trials are a right in most civil and criminal cases (lets not start talking about small claims court or other specialized areas). When you file a suit, you have the option of asking for a jury trial if you pay an extra fee. If either party requests a jury, then you get a jury. Only when _neither_ party requests a jury, do you have a bench trial.

Where you are getting confused is that a judge can eliminate issues for a jury if no reasonable juror could come to anything but one conclusion based on the facts. That has nothing to do with consultation outside the jury or with it. To put this into a car analogy, suppose you rear-end someone who was legally stopped a stop light. During trial you admit that you were texting with one hand, sipping a big gulp with the other, hollering at a friend in the back seat, and not looking at the road at all. No reasonable juror would think that you were NOT negligent, thus a Judge could summarily decide that you were negligent in the accident. This gives the jury fewer questions and helps speed along the process of coming to a verdict, for example, on the issue of damages.

Re:What is the point of jury trial?

[DragonWriter]

He had a jury trial, he also admitted to doing what he was accused of doing. In a criminal trial that's pleading guilty.

No, its not. In both a criminal trial and a civil trial there are pleadings, and they are distinct from testimony given at trial. What he did was answer an improper question asked of him as a witness (since the question was one of law not of fact) in a way which was harmful, which is not at all the same as pleading guilty in a criminal case.

Re:What is the point of jury trial?

[Chyeld]

What he said

"This is me. I'm here to answer," said Tenenbaum. "I used the computer. I uploaded and downloaded music. This is how it is. I did it," he testified before a packed courtroom, whose spectators included an all-star cast of Harvard Law School copyright scholars: Lawrence Lessig, John Palfrey, and Jonathan Zittrain.

"Are you admitting liability for all 30 sound recordings" on which the record labels brought suit, asked the plaintiffs' attorney Tim Reynolds.

"Yes," said Tenenbaum.

Tenenbaum then admitted that he "lied" in his written discovery responses, the ones in which he denied responsibility.

"Why did you lie at that point?" asked Tenenbaum's attorney, Harvard Law School professor Charles Nesson. "It was kind of something I rushed through," responded Tenenbaum. "It's what seemed the best response to give." At the time he gave the admittedly false discovery responses, Tenenbaum testified that he was being advised by his mother Judith, a family law attorney who works for the Commonwealth of Massachusetts.

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.

Re:What is the point of jury trial?

[commodore64_love]

>>> the fact is that at least 3 juries have listened to these cases and felt like the defendants ought to pay a substantial fine

Actually it's only 2. In this current case the *judge* declared the guy guilty, not the jury.

Also 2 juries declaring guilt doesn't mean much. Statistically out of every 100 trials, you'll only get 2.5 juries to nullify the conviction and release the defendent. Of course in more egregious cases like the Prohibition-era cases, that number will rise as high as 40 nullifications per hundred. We'll just have to wait until we hit 100 RIAA trials to see how "the people" feel about this law.

I'm hoping for 10%.

Re:What is the point of jury trial?

[commodore64_love]

That's like saying there's no right to vote. It's just an accidental by-product of having a representative legislature.

Actually in both cases, the jury and the vote, it's about the principle that all power comes from the citizens, and these methods provide a "check and balance" to rein-in an over-reaching government.

Why was it improper?

[PotatoFarmer]

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

For those of us who aren't lawyers, why was it improper?

Re:Why was it improper?

[alain94040]

IANAL, but I'm guessing that "liability" is a legal term, so if you ask a non-lawyer a legal question (do you admit liability), then the answer is meaningless. Think of it as hearsay for experts: if you don't know about a topic, you shouldn't be allowed to comment on the record on that topic. Does the guy understand the legal ramifications of what liability means? I don't.

Now, I must say that I'm not impressed with his defense. Anyone can comment on who the defense lawyer was and whether they did a good job? It just doesn't sound great to admit on the stand to being fully, completely guilty. Criminals tend to get away with a lot of stuff, but not this guy.

Re:Why was it improper?

[Shakrai]

It's amazing what you can find when you RTFA. From NYCL's site:

[Ed. note. The judge's ruling is erroneous. The question : "are you admitting liability" is a legal question, not a factual question, which Mr. Tenenbaum was not qualified to answer. For the Court to base its decision on that is wrong. -R.B.]

Re:Why was it improper?

[Jane Q. Public]

That aside, technically (despite what you will hear to the contrary from judges and prosecutors) it is the jury's job to judge the law as well as guilt:

Fully Informed Jury Association

I am not a lawyer either, but given information at the above link, and the clear history of our legal system, I believe it is improper for a judge to instruct a jury to find one way or another. As someone else pointed out above: if that is proper, what is the point of having a jury in the first place?

Re:Why was it improper?

[DragonWriter]

IANAL, but I'm guessing that "liability" is a legal term, so if you ask a non-lawyer a legal question (do you admit liability), then the answer is meaningless.

The real issues is that witnesses (even expert witnesses, and even if they are lawyers) in a case testify only to matters of fact (there are times when someone's opinion, particularly a past opinion, on a matter of law may be a relevant fact, whether or not they are a lawyer, but that's different than testifying on the point of law itself.)

Re:Why was it improper?

[indytx]

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

For those of us who aren't lawyers, why was it improper?

It wasn't improper. FTFA, Tenenbaum admitted his liability during direct examination from the RIAA's attorney. This wasn't a criminal trial, it was civil, and he testified to his own liability. When you admit to the elements of the cause of action, the only thing left is damages. End of story. What a dumbass. I mean, what the f--- was the jury supposed to do? Reward him for admitting under oath that, earlier, he lied under oath and lied on his discovery responses? Please. Juries HAMMER people who get caught lying. There is no more GOTCHA litigation in civil trials in the U.S.A. You're supposed to tell the truth to discovery questions, even if the answers hurt your case. If you don't tell the truth you get hammered. If your lawyer lets you get away with it, he can lose his meal ticket. It's that simple. He lied, and he got popped for it.

On the bright side, at least he can to ditch the "superstar" legal team for someone out of the "bankruptcy attorneys" section in the yellow pages. Hopefully that case will go more smoothly.

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.

Re:Is this the year of clowns?

[st0rmshad0w]

Its the RIAA, I'm certain they'd accept the child, they have to feed their lawyers after all you know.

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

[Shakrai]

Not much, assuming you have paid your bills in a timely manner and maintain a low amount of debt. Why would a creditor want to ditch someone with an 8 year history of timely payments?

Your credit score can actually drop a little bit at the 10 year mark when the bankruptcy comes off (7 years for Chapter 13s) but that's a side effect of the way the score model works. Fair Issac (the FICO people) has "scorecards" where they score you against similar people. In a group of people that have filed bankruptcy you might look pretty good. Once that bankruptcy goes away then you are scored against people who haven't filed and may look better or worse when compared against them.

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

[ari_j]

It's not usually a crime to ignore a civil summons. It's just a really, really bad idea. The most likely outcome is judgment by default being taken against you, a short hearing on damages being held where the plaintiff tells the judge how much the damages are and you are not around to say otherwise, and judgment being entered for those damages. The next thing that happens is an execution on your property. You'll be entitled to certain exemptions, depending on your jurisdiction, but you'll likely have little left and your wages will be garnished for the next 10 or 20 years.

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

[Shakrai]

Judgments can be executed against personal property in most (probably all) American jurisdictions.

Most personal property up to a certain dollar value is exempt from seizure. The remaining personal property generally isn't worth seizing. Yeah, they can theoretically come into your house and seize your couch and second TV. Tell me, what does a used TV generally fetch at auction? Hint: Not enough to make it worth their while.

Having a substantial portion of your wages garnished for 20 years is also hardly a laughing matter.

Actually wage garnishment is a joke in most instances. They can't garnish your wages if they don't know where you work. You aren't obligated to help them find out where you work. 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.

There's also at least four states that don't allow civil wage garnishment. Texas, North Carolina, South Carolina and Pennsylvania. Yet other states have extremely broad exemptions in other areas. Flordia for example has an unlimited homestead exemption. You could own a ten million dollar house and your creditors can't touch it. Why do you think OJ Simpson moved there after he lost the civil suit?

The bottom line is that if you know what you are doing you can avoid paying a civil judgment indefinitely. They aren't worth the paper they are printed on.

Re:Yes what people need to remember

[clarkkent09]

I suspect that RIAA knows that you will never pay and doesn't care. Their interest in this thing is to get huge judgments that will scare the shit out of the most normal people who do not in fact want to go bankrupt because of downloading a few songs.

Disingenuous summary

[Grond]

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.

Re:Disingenuous summary

[CajunArson]

All excellent points. One other thing is that if the defendant's counsel (Nesson or otherwise) never objected to that question and did not properly preserve the objection for appeal, it might not be an appealable issue even if the question was improper.

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.

Here's the best part of the Ars article...

[CajunArson]

The Tenenbaum litigation was dominated by the larger-than-life personality of Tenenbaum's counsel, Harvard Law School professor [Charles Nesson], who infuriated the plaintiffs, and at times Judge Nancy Gertner, with his unusual litigation tactics. These included making audio recordings of the attorneys and the court, and then posting the results to his blog, and publicizing internal discussions with potential expert witnesses about legal strategy. A sanctions motion against Nesson for his recording practices remains pending.

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.

Depends on how you did in the intervening years

[Sycraft-fu]

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.

Re:America's last great industry...

[Jane Q. Public]

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.

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....

Misery Machine

[headkase]

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?

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.