Court Says Fair Use May Hold In Some RIAA Cases

NewYorkCountryLawyer writes "In SONY BMG Music Entertainment v. Tenenbaum, the Boston RIAA case in which the defendant, represented by Charles Nesson of Harvard Law School, admitted liability at his trial, the Court has entered judgment in favor of the RIAA for the monetary award of $625,000 fixed by the jury. However, the Court left open the questions of whether the amount is excessive, and whether attorneys fees and/or sanctions should be awarded, and has scheduled further briefing of those issues. The Court granted the RIAA much, but not all, of the injunctive relief it requested. In an unusual step, the Court issued a 38-page decision (PDF) explaining in some detail the Court's views of the Fair Use defense in the context of cases like this, and indicating that there are some factual scenarios — not applicable in this particular case — in which it might have concluded that the claims were barred by Fair Use. E.g. it declined to rule out the possibility that creation of mp3 files exclusively for space-shifting purposes from audio CDs a defendant had previously purchased might constitute fair use."

Comments

I didn't know they could do that

[plover]

I didn't think a court could render an opinion if it's not on the case before it. If a future case involving "space shifting" comes before the court, will they look to this ruling as precedence, or will it be treated more like an amicus curiae brief?

Re:I didn't know they could do that

[glrotate]

Courts can bloviate all they wish. You're confusing two legal concepts: The case and controversy requirement, and dicta.

A court requires an actual case with actually adverse parties.* This is the case and controversy requirement.

That said, courts can bloviate all they wish. The fancy legal term is dicta. It is not binding on any court, not even the same Court. Sometimes distinguishing between the real opinon and dicta can be tricky.

However, if the Court's reasoning is strong, other parties will incorporate it into their arguments and it will be adopted by other courts making their own decisions.

Re:I didn't know they could do that

[sys.stdout.write]

You are correct in your statement that Article III Section 2 prevents courts from rendering advisory opinions, i.e. judgements on controversies not before the court. However, courts are free to offer opinions in dicta which can guide, but are not binding, to future cases. This is all that this was.

Re:I didn't know they could do that

[gabereiser]

Odds are a judge will look at this ruling as precedence. Most judges do as that's how "law" has evolved. Problem now is, how does Tenenbaum get an appeal?

Re:I didn't know they could do that

[sys.stdout.write]

Here is the Wikipedia entry describing this in more detail.

Re:I didn't know they could do that

[sexybomber]

They typically can't, but it's a question of how it was worded. If they said, "We decline to comment on whether making .mp3 copies for space-shifting constitutes fair use; it may or it may not, we're not going to decide this issue today," then that's fine.

Re:I didn't know they could do that

[pdabbadabba]

The court's thoughts here are what's called "dicta" (as opposed to the "holding"). While a holding is binding precedent, dicta is merely "persuasive". So, if a space shifting case were to come before another court in the same jurisdiction, they would feel some pressure to comport with this court's way of thinking, but could ultimately decide to ignore it of they disagreed.

Re:I didn't know they could do that

[IP_Troll]

You are confusing a number of concepts.

1. Precedence can only be set by a court higher than the court you are presently in. Even the same judge can ignore the way he ruled on an identical case. This judge was essentially outlining all the loop holes that the defense could have used but didn't, essentially outlining every way in which the defense's lawyer failed to make a convincing argument and creating a road map for lawyers who deal with a similar case in the future.

2. Amicus curiae is a brief, submitted to an appellate court, which deals with to a specific issue in a case, tailored to the facts of the present case to persuade the court to rule in favor the the amicus curiae's position. The case today is not an amicus curiae because it was not written to the facts of a case presently being decided by a court, it is about a case that happened in the past.

This case is a good road map for defendant's attorneys to learn what not to do.

Re:I didn't know they could do that

[NewYorkCountryLawyer]

Problem now is, how does Tenenbaum get an appeal?

Well he doesn't need an appeal. The real question -- the excessiveness of the verdict under (a) copyright law and (b) constitutional law -- hasn't been decided yet. The judge had earlier indicated she would be getting to that only after judgment had been entered, and a motion to set aside the judgment had been made. She has scheduled that for a January 4th deadline, with the RIAA getting 14 days from the making of such a motion to respond.

It may wind up being the RIAA that's going to "need an appeal".

Re:I didn't know they could do that

[rantingkitten]

I wish the court would render an opinion against the retarded trend of inventing hip new names for stuff. "Space shifting"? Seriously?

Re:I didn't know they could do that

[gabereiser]

i truely hope so, this case has been jaded from the start.

Re:I didn't know they could do that

[plover]

Thank you. While I knew there had to be something, I didn't know what the legal framework was for handling this kind of stuff.

Re:I didn't know they could do that

[FatdogHaiku]

Definite Maybe.

Re:I didn't know they could do that

[harlows_monkeys]

It's not precedent for at least two reasons. First, district courts are the low courts on the totem pole--there is no one below for them to set precedent for! Second, the court's writings on what might have been are what is called in legal circles "dicta". That's writings by the court that are not part of the actual legal decision or the supporting reasoning. Think of dicta as being the court giving its personal thoughts or opinions.

Re:I didn't know they could do that

[mcgrew]

It may wind up being the RIAA that's going to "need an appeal".

That would be good news indeed, can you expound on that a little?

Re:I didn't know they could do that

[NewYorkCountryLawyer]

It may wind up being the RIAA that's going to "need an appeal".

That would be good news indeed, can you expound on that a little?

Liability is a foregone conclusion, since Mr. Tenenbaum formally "admitted liability" at the trial. But damages are not.

If the Court follows traditional copyright law principles, it will hold that there was no evidence in the record from which any statutory damages award beyond $750 per infringed work is permissible, thus limiting the award to a maximum of $18,000 under copyright law.

And if the Court then follows traditional constitutional principles, it will hold that any recovery beyond $1.40 per infringed work (or total of $33.60) is unconstitutional.

If the RIAA obtains a monetary damages award of $33.60 I would expect Mr. Tenenbaum to refrain from appealing, and I would expect the RIAA to be the one to file an appeal.

Re:I didn't know they could do that

[afidel]

I would say the expressiveness of the fine is obvious on the face, maybe not from a legal perspective but certainly from a moral perspective. I've been working since I was 15 and a half years old, it's likely that I will work till I'm at least 75. In those 60 years of work I've calculated that I will make about $3M in constant dollars, which makes this award about 20% of my lifetime earnings. Does sharing a few songs justify essentially indentured servitude for 12 years?

Re:I didn't know they could do that

[mcgrew]

Wow, that would indeed be good news. Thank you for the explanation!

Re:I didn't know they could do that

[Chees0rz]

However, if the Court's reasoning is strong, other parties will incorporate it into their arguments and it will be adopted by other courts making their own decisions.

"Daddy, why did you speed up so that car couldn't pass you..."

"Well, Son. If he had pulled up behind me to indicate he wanted to pass, instead of just trying to cut around in the right lane without a blinker, and maybe if he didn't have such a bad tint job, or a sideways hat, I would have moved over and let him pass rather than block him in behind a large truck."

Re:I didn't know they could do that

[Anonymous Coward]

Just keep in mind that, while NYCL has a great deal of knowledge on these subjects, his opinions have been proven to be very optimistic in the past...

Re:I didn't know they could do that

[afidel]

*excessiveness of the fine /damn spell checker.

Re:I didn't know they could do that

[Tolkien]

Where've you been? I've missed hearing about the fight for fair use!

Re:I didn't know they could do that

[keithpreston]

Does sharing a few songs justify essentially indentured servitude for 12 years?

Does not sharing those songs, make you life so unbearable that you can't continue?

Re:I didn't know they could do that

[Theaetetus]

It may wind up being the RIAA that's going to "need an appeal".

That would be good news indeed, can you expound on that a little?

Liability is a foregone conclusion, since Mr. Tenenbaum formally "admitted liability" at the trial. But damages are not. If the Court follows traditional copyright law principles, it will hold that there was no evidence in the record from which any statutory damages award beyond $750 per infringed work is permissible, thus limiting the award to a maximum of $18,000 under copyright law. And if the Court then follows traditional constitutional principles, it will hold that any recovery beyond $1.40 per infringed work (or total of $33.60) is unconstitutional. If the RIAA obtains a monetary damages award of $33.60 I would expect Mr. Tenenbaum to refrain from appealing, and I would expect the RIAA to be the one to file an appeal.

I think the RIAA's argument that statutory damages need not be constitutionally limited to the price of the songs is a good one, and the argument that statutory damages in excess of proven damages are unconstitutional is a bad one. Congress expressly allowed statutory damages as an alternative to actual damages to cover situations where proof of actual damages was too vague or speculative. That applies here, and certainly includes a claim that the only damages were $1.40 per song due to Tenenbaum not purchasing them. He was uploading them too - his violation of copyright wasn't just making a single copy for his own use, but rather distributing them to others. Thus, the damages would include $1.40 for every he uploaded each song to, and everyone they then uploaded the song to. That's going to be much higher than a total of $33.60. How much higher? We don't know - it's too speculative to say, which is why Congress put in the statutory damage provisions.

Additionally, your argument that the court should limit them to $750 per work is unsupported. The statutory range of $750-30k per work is a question of fact for the jury. The judge can't overrule that within the range without evidence of clear error - he could limit the decision if it was at the $150k/work willful level, for example, or he could limit it to $200/work for innocent infringement (he can't, actually, in this case, on these facts), but he can't say "the range is right, but I'm using the lower limit". There's simply no basis for it.

No, the best argument is one that they apparently failed to raise - the jury was presented with an instruction, number 110, that willful infringement requires only knowledge or reckless disregard of the copyright, and thus damages up to $150k per work are available, thus leading the jury to pick the $18,000 figure. The RIAA briefed in support of this instruction, and I can't find a copy of the opposition brief or the ruling, but the final jury instruction was exactly what the RIAA wanted. I believe it's incorrect as a matter of law, because their interpretation expressly removes the $750-30k range of damages from ever being able to be applied. Instead, it would be $200, or $150k, but that's not what Congress said. They're misreading and misapplying both the case law and the statute.
Incidentally, I was the one who sent you an email a month ago, discussing a paper I'm writing and asking if anyone had argued this point. I haven't found anything yet. Paper's about half done and will be done before January 4th. Any interest in reviewing it and potentially filing an Amicus Brief?

Re:I didn't know they could do that

[shentino]

There's no such thing as guessing too high on the greed-o-meter.

Re:I didn't know they could do that

[Anonymous Coward]

You sure that's not expensiveness, extensiveness, extortiousness, or incensiveness? :)

Re:I didn't know they could do that

[xouumalperxe]

"Does jaywalking justify the death penalty?" "Does walking 10 extra metres make you life so unbearable that you can't continue?"

Re:I didn't know they could do that

[ral8158]

Of course, there are always exceptions. For example, Jane Roe had already given birth by the time of the ruling in Roe v. Wade, so her case was moot. The Supreme Court made a decision anyway, because it would be difficult to complete a court case during the period of a woman's pregnancy.

Re:I didn't know they could do that

[david_thornley]

IANAL, as I will doubtless demonstrate, but I'm curious about some of the legal principles here.

Statutory damages as an alternative to actual damages makes sense, but is there any legal expectation that the statutory damages will be roughly proportional to the actual damages? Assuming treble damages, the minimum damages of $750 imply that a reasonable low guess to the damages from downloading one song and uploading in the process would be $250, or $75 if we go to the ten-times limit the Supreme Court said they'd almost certainly not allow. Downloading one song, even by an inveterate seeder, is unlikely to lose anywhere near that much sales.

It seems to me that these damages are intended as straight punishment, since they're way out of line with any halfway reasonable estimate of damages multiplied by any acceptable multiplier. In that case, I'd be a lot more comfortable with them if they were treated as part of criminal law, with such protections as "no reasonable doubt" rather than "preponderance of the evidence". Not that it would make any difference in recent cases, since I don't think a reasonable juror would find any reasonable doubt, but there are innocent people who get accused.

Re:I didn't know they could do that

[keithpreston]

Jaywalking can kill you. It's not a great analogy because its a law design to protect yourself. There are also many situation where jaywalking is to your advantage without risk of injury, so the punishment for subverting the law is small and often unenforced. Walking and transportation are also an essential part of life.

Sharing songs that you didn't make with the entire internet doesn't seems very essential. It really seems like you are just saying a big middle finger to the people who made those songs. It's also a very difficult to come up with a scenario in which breaking the law is justified(Abandoned or lost work?). If it is something that has no justifiable reason, the punishment being harsh seems to be a reasonable deterrent.

Re:I didn't know they could do that

[Anonymous Coward]

It may wind up being the RIAA that's going to "need an appeal".

That would be good news indeed, can you expound on that a little?

Liability is a foregone conclusion, since Mr. Tenenbaum formally "admitted liability" at the trial. But damages are not.

If the Court follows traditional copyright law principles, it will hold that there was no evidence in the record from which any statutory damages award beyond $750 per infringed work is permissible, thus limiting the award to a maximum of $18,000 under copyright law.

And if the Court then follows traditional constitutional principles, it will hold that any recovery beyond $1.40 per infringed work (or total of $33.60) is unconstitutional.

If the RIAA obtains a monetary damages award of $33.60 I would expect Mr. Tenenbaum to refrain from appealing, and I would expect the RIAA to be the one to file an appeal.

Thus, the damages would include $1.40 for every he uploaded each song to, and everyone they then uploaded the song to. That's going to be much higher than a total of $33.60. How much higher? We don't know - it's too speculative to say, which is why Congress put in the statutory damage provisions.

I'm unaware of the correct legal term here; but that just seems fundamentally flawed. Eventually the RIAA could find the subsequent "abuser" of the copyright on the songs in this example, and then do they again get to sue that person for infringement that they had already been awarded for in this case.. and repeating, etc?

Ok, You stole my idea. I'm going to sue you for stealing my idea and everyone you gave/resold my idea to.. But, we're just going to arbitrarily deduce a probable number of individuals here; but we're not going to break it down to entire content (for instance, a partial share).. and then we're going to extrapolate a random number of individuals those individuals could have potentially then again shared that file to.. ... and next week we'll have them all in court suing them.. and their potential downstream guilty parties... that we already received judgement on..

Whatever.. this is all just silly.

Re:I didn't know they could do that

[afidel]

Here's an example that would make you just as culpable but should probably fall under fair use, creating a remix or mashup and sharing it. But the point is that no matter how little justification there is for the illegal act that does not make it ok that the punishment does not fit the crime. A basic level of fairness is a requirement for the law to work as it is a social contract not a natural law.

Re:I didn't know they could do that

[Theaetetus]

IANAL, as I will doubtless demonstrate, but I'm curious about some of the legal principles here.

Statutory damages as an alternative to actual damages makes sense, but is there any legal expectation that the statutory damages will be roughly proportional to the actual damages?

Yes, and no. In the copyright acts of 1790 through 1976, Congress talked about statutory damages as non-punitive - i.e. roughly proportional to the actual damages. However, in the 1976 Act and the more recent amendments and acts including the DMCA, Congress talked about the deterrent effect, particularly where software, music, and movies can be copied with a click of a button.

Under the current law, the damages are supposed to be roughly proportional - a best estimate, if you will - but also have deterrent effect, meaning they can be higher.

Add to this a crucial point which Ray and Tenenbaum's attorneys disregard in discussing damage levels as being $1.40 per work: under copyright, damages include not just the cost to the infringer of a license, but the lost profits to the copyright owner. This is explicit, even going back to the original 1790 Act - damages include not just the infringer's profits (which may be zero, as here where Tenenbaum isn't charging for copies), but also the lost sales to the owner due to the work now being widely distributed royalty-free. In the 1790 Act, statutory damages were one dollar per page - that's way more than the cost, particularly back when the entire book may cost only a few dollars.

Assuming treble damages, the minimum damages of $750 imply that a reasonable low guess to the damages from downloading one song and uploading in the process would be $250, or $75 if we go to the ten-times limit the Supreme Court said they'd almost certainly not allow.

Treble damages aren't actually an issue. There's no explicit provision for them in the copyright act.
One important thing to note when considering the lower limit of $750 - that's "per work". So, if you make a single copy of a song, it's $750. If you upload that copy to 10 people, it's still only $750. If that copy ends up downloaded by tens of thousands of people... it's still $750. That's what the statutory damage levels are trying to do - the copyright owner doesn't have to run around and find every single person that downloaded a song or bought a copy of your illegally-reprinted book. Instead, we can just assume you made a number of copies causing about that much in damages. If you didn't, the plaintiff gets a small windfall - but if you did, the defendant is relieved of a much higher liability.

It seems to me that these damages are intended as straight punishment, since they're way out of line with any halfway reasonable estimate of damages multiplied by any acceptable multiplier. In that case, I'd be a lot more comfortable with them if they were treated as part of criminal law, with such protections as "no reasonable doubt" rather than "preponderance of the evidence".

See my discussion above - they're not actually that far out of line. As for criminal law, the copyright act does actually have a criminal provision... and this is what the RIAA is misreading:
17 USC 506 makes it a misdemeanor (meaning up to a year in jail) for willfully infringing a copyright for purposes of commercial or private financial gain; or by "making it available on a computer network". Sounds a bit familiar, huh?
Specifically, the statutory damage provisions include $200 for "innocent infringement", $750-30,000 normally, and "up to $150,000 per work for willful infringement". Now, the RIAA defined "willful" as essentially "anything not innocent", which makes that middle $750-30k range useless. And unbelievably, Tenenbaum never argued that one, or at least not well.

My argument (and the paper I'm drafting) is that the jury shouldn't have been asked to come up with a per-work damage amount of "up to $150k", but rather that they should have been presented with the $750-30k range... They likely wouldn't have picked 18k then, but something lower, which would have been more reasonable.

Re:I didn't know they could do that

[keithpreston]

So fair use is a little different topic, how much control over derivative works a copyright owner has can be a big debate. But how many people are getting a judgment for $625,000 against someone who did a remix or mashup?

People aren't getting harsh punishments for derivative works (remix or mashups), they are getting in trouble for exactly copying an original work

I still think that the punishment weakly correlates with the crime. You shared a song with the entire internet for free. There is the small possibility that many people copied the work because of you and thus weakly correlates to lost money of the copyright owner. Because of the scale of the internet your sharing could approach $625,000 of lost revenue.

If that is too much for you, next time you share just put a logging mechanism on your sharing program. When the RIAA sues you and ask for $625,000, you can say I only have 1000 downloads, so I only should owe you $1000

Re:I didn't know they could do that

[NewYorkCountryLawyer]

Statutory damages as an alternative to actual damages makes sense, but is there any legal expectation that the statutory damages will be roughly proportional to the actual damages?

Yes. They are supposed to be reasonably proportioned to the actual damages. Usually that plays out to 2 to 4 times the actual damages.

Re:I didn't know they could do that

[NewYorkCountryLawyer]

Your comment has a lot of fallacies in it. You are ignoring the large body of case law on proportionality of statutory damages; you are ignoring the fact that the Constitution takes precedence over any statute; you are ignoring the Supreme Court's caselaw on "punitive awards"; you are implying there is some prohibition against "uploading", while there is none.... what there is is a prohibition against 'distributing copies to the public by sale or other transfer of ownership, or by rental, lease or lending', none of which have been proven; you are suggesting that damages can be based on speculation, which is not the case; you are assuming that an unauthorized download = a lost sale, which is not the case.

Re:I didn't know they could do that

[Kesch]

He was uploading them too - his violation of copyright wasn't just making a single copy for his own use, but rather distributing them to others. Thus, the damages would include $1.40 for every he uploaded each song to, and everyone they then uploaded the song to. That's going to be much higher than a total of $33.60. How much higher? We don't know - it's too speculative to say, which is why Congress put in the statutory damage provisions.

You seem to have a decent grasp of the laws at play here and offer an interesting counterpoint to NYCL. I'm curious on this one part. Why do you believe that he should be liable for secondary infringement (or more specifically, that statutory damages should reflect assumed secondary (and maybe even tertiary) infringement)?

Re:I didn't know they could do that

[Impy the Impiuos Imp]

From TFCJ:

> The only fair use factor on which the defendant offered any challenge to was the effect of
> his file sharing on the potential market for or value of the copyrighted works. See 17 U.S.C.
> 107(4). He argued that file sharing has not diminished the record companies' revenues nor
> curtailed overall artistic creation. But here, again, the Court was offered a vacuum -- no
> affidavits, no facts.

"Daddy, WTF!" I take it "but everybuddy knowwwwwwwwwwwwwwwwwwwwws it's true!" didn't cut it with the judge.

Re:I didn't know they could do that

[xouumalperxe]

Because of the scale of the internet your sharing could approach $625,000 of lost revenue.

Bullshit. Let's assume the average CD costs 20 dollars. That'd mean you caused the loss of 31,250 CDs' worth of revenue. At an estimated 50 megs per CD, that'd amount to 1.5 TB of data. At 5 megabits per second upstream, you'd have to share non-stop for a full month to accrue that much data. Now, I overestimated both the price of a single CD, and the typical upstream bandwidth available for a domestic user, and underestimated the size of a CD in MP3 format. Assuming a more typical 1 mbit upstream, we're up to 5 months. On top of that make it 15 dollars per CD (which is still high), over six and a half months. If a CD takes up 75 megs (my own personal collection averages at 73.3 megs per album), the grand total is that you'd have to share non-stop, at full speed, for 10 whole months.

Now, if you want to argue that the 625,000 can and should include punitive damages, I personally disagree (outside of commercial piracy), but it's an opinion I'm willing to accept. But lost revenue is a battle you simply can't win.

Re:I didn't know they could do that

[Impy the Impiuos Imp]

> That would be good news indeed, can you expound on that a little?

Do you want full-blown bloviation, or just for him to satisfy the case and controversy requirement?

Re:I didn't know they could do that

[Impy the Impiuos Imp]

I wish the court would render an opinion against the retarded trend of inventing hip new names for stuff. "Seriously?" Seriously?

Re:I didn't know they could do that

[Theaetetus]

Your comment has a lot of fallacies in it. You are ignoring the large body of case law on proportionality of statutory damages; you are ignoring the fact that the Constitution takes precedence over any statute; you are ignoring the Supreme Court's caselaw on "punitive awards"; you are implying there is some prohibition against "uploading", while there is none.... what there is is a prohibition against 'distributing copies to the public by sale or other transfer of ownership, or by rental, lease or lending', none of which have been proven; you are suggesting that damages can be based on speculation, which is not the case; you are assuming that an unauthorized download = a lost sale, which is not the case.

Nope, did none of that. But I have a feeling you're not going to acknowledge any of my arguments, so I'll just point out that while you're focusing on 17 USC 106(3), you've neglected to consider 17 USC 106(1), hence why your defense of "it wasn't for profit" fails every time. Your other arguments, such as those based on Gore, have also been repeatedly disproven.

Re:I didn't know they could do that

[Sirusjr]

Except I didn't need the court to suggest to me it might be legal to rip my music off CDs I purchased to whatever format I choose. If some law made it illegal then there is something wrong with the law.

Re:I didn't know they could do that

[Theaetetus]

He was uploading them too - his violation of copyright wasn't just making a single copy for his own use, but rather distributing them to others. Thus, the damages would include $1.40 for every he uploaded each song to, and everyone they then uploaded the song to. That's going to be much higher than a total of $33.60. How much higher? We don't know - it's too speculative to say, which is why Congress put in the statutory damage provisions.

You seem to have a decent grasp of the laws at play here and offer an interesting counterpoint to NYCL. I'm curious on this one part. Why do you believe that he should be liable for secondary infringement (or more specifically, that statutory damages should reflect assumed secondary (and maybe even tertiary) infringement)?

Well, Congress seems to have considered that, going from the comments in the House Report and Senate Report when they were drafting the law... Specifically, that to not do so would make a loophole where someone could make a single infringing copy and claim that they're only liable for that, while their friend, the publisher, makes a million infringing copies.

I agree that this gets a bit sticky in the era of peer to peer sharing, but I think the better arguments are that (i) the statute as currently worded and as intended applies the middle range of statutory damages to defendants like Thomas and Tenenbaum, and (ii) any change to reduce liability for peer to peer sharing needs to come from Congress, not the courts.

Re:I didn't know they could do that

[Anonymous Coward]

Thus, the damages would include $1.40 for every he uploaded each song to, and everyone they then uploaded the song to.

The latter is clearly wrong because it would allow for multiple recovery. They can't collect damages from this defendant, then go after those he uploaded to and collect from them to. So unless your argument is that this verdict would immunize everyone upstream from this defendant because the damages have already been paid, they can't collect for more than those who he directly uploaded to.

And there is no evidence that this was anyone other than the RIAA investigator. Certainly the structure of P2P suggests a very small number here: The more downloads there are, the more sources there are. If there have been thousands of downloads then there are thousands of sources and the chance that the next downloader will pick any given peer is negligible, with the consequence that the average number of uploads per song per peer is almost certainly in the low single digits. So $33.60 is a good approximation, at least within an order of magnitude one way or the other.

Re:I didn't know they could do that

[selven]

The real big fallacy is that he's responsible for not just those he uploaded to but everyone down the line. if A uploads to B who then uploads to C who then uploads to D, with that argument the RIAA can get C on uploading to D, B for uploading to C and by extension D and A for uploading to B and by extension C and D. Essentially, they're collecting the same damages 3 times. Statistically, if you download something once you upload it once (even if at first everyone downloads to 5 people, at the end there's four fifths who upload to no one, balancing it out). This way they can get much more than that.

Re:I didn't know they could do that

[cpt kangarooski]

No, the best argument is one that they apparently failed to raise - the jury was presented with an instruction, number 110, that willful infringement requires only knowledge or reckless disregard of the copyright, and thus damages up to $150k per work are available, thus leading the jury to pick the $18,000 figure. The RIAA briefed in support of this instruction, and I can't find a copy of the opposition brief or the ruling, but the final jury instruction was exactly what the RIAA wanted. I believe it's incorrect as a matter of law, because their interpretation expressly removes the $750-30k range of damages from ever being able to be applied. Instead, it would be $200, or $150k, but that's not what Congress said. They're misreading and misapplying both the case law and the statute.

The defense had made an argument regarding the requirement for willful infringement, but the judge rejected it, since, predictably, it went way beyond the statute.

There's also one other argument the defense could make with regard to the jury instructions. The suggested instruction by the plaintiff was that statutory damages should be calculated per infringement, and the judge accepted this. However, the statute requires that the damages be calculated per work, regardless of the number of infringements. I predicted at the time that this could result in the jury multiplying the damages by the number of times they estimated the works were infringed by the defendant. And the number that they came up with is suspiciously $750 (minimum damages per work) x $30 (number of works at issue) x $30. It is possible that they meant to award the minimum damages but multiplied them by 30 for whatever reason.

Re:I didn't know they could do that

[Anonymous Coward]

I believe that the RIAA lawyers made some comment about something as little as ripping CDs as being piracy in the case. I don't think the ruling was intended to tell you what you can or can't do as much as a caution to RIAA on what they cannot, would not, or shouldn't be able get away with.

Re:I didn't know they could do that

[Anonymous Coward]

I think the RIAA's argument that statutory damages need not be constitutionally limited to the price of the songs is a good one, and the argument that statutory damages in excess of proven damages are unconstitutional is a bad one. Congress expressly allowed statutory damages as an alternative to actual damages to cover situations where proof of actual damages was too vague or speculative. That applies here, and certainly includes a claim that the only damages were $1.40 per song due to Tenenbaum not purchasing them.

As someone else will probably point out if they hadn't already done so, the problem with your (this) argument is that statutory damages can only be seen as punitive. Now here is the problem, the standards of trial is different for criminal verses civil trials and when the government issues punishment by statute, then the more strict criminal standards need to apply.

Now before we get too far into this, it should be noted that it's entirely different if a jury of your peers decide that your conduct warrants punishment in excess of actual damages compared to the government mandating punishment. But in a civil trial, you only need a preponderance of evidence- that is to say, make it appear that the person is likely guilty of the act. In a criminal trial, you need to prove beyond a reasonable doubt.

Let's assume that there is a $1000 dollar fine and no jail time for littering. Now lets explore the difference between criminal and civil. Suppose you were standing somewhere on private property not of your own (you had a right or ability to be there though so trespass isn't an issue). Lets also assume that your eating your lunch which happens to be a baloney and cheese sandwich with some chips and a pickle that you packed in a brown bag from home. You laid the wrappings and bag on the ground with a small rock as weight so they didn't blow away while you ate the food. Now a cop comes along while your still eating and issues a citation for littering because you turned you back to it while standing there. You go to court, show explain the rock was there to contain everything, what you were doing, and the intention of picking it up and disposing of it properly after you finished eating. In a criminal trial, it would be hard to show that you were littering beyond a reasonable doubt because people often set this food wrappings and containers down while they eat.

Now suppose congress passed a law allowing the land owners to punish litterers by suing them for statutory damages of $1000 per incident (the same as the criminal statute). Ok, still with me? Well, I'm the land owner and I witnessed you doing the same as above. I sue you and tell the jury that you walked away from the trash left on the ground. You attempt to explain that you only went 5 foot away to get a drink from the fountain while you were still eating your punch but I insist that you had no intention or returning to pick the food wrappings and containers up. I pull in a witness that claims to have seen you litter in the past and now by a preponderance of the evidence, the government through me has successfully punished you when the criminal law couldn't.

If the value of damages truly cannot be determined, then a jury can reasonable estimate them, if your conduct was so egregious that simple damages wouldn't compensate the victim, then a jury can reasonable add to it. But when the government intends to punish someone, then that person has a right to due process and a right to the same strict standards that apply in every other case of the government wanting to punish someone. Moving it to a civil trial does nothing but sidestep the constitutional protections that every citizen enjoys and should be entitled to. Remember, the constitution protects us from the government, there is no reason why that protection should be relaxed in any situation.

I hope I have reduced the argument enough to make it completely clear.

Re:I didn't know they could do that

[MacWiz]

Problem now is, how does Tenenbaum get an appeal?

It's hard to expect an appeal for someone who said they DID commit the action in question, did it willingly and makiciously.

Gertner warned the RIAA at the beginning of the Tenenbaum case that they were ruining peoples lives and "this has got to stop." She was obviously willing to give the kid the benefit of the doubt going into the trial.

Joel Tenenbaum wasted the time, effort and interest of far too many people by letting a large case take place, garnering national attention only to confess as soon as he hit the witness stand, allowing the RIAA to win without actually proving a damn thing.

As New York Country Lawyer points out, the case accomplished nothing legally; never dealt with any of the core issues.

Re:I didn't know they could do that

[Theaetetus]

The real big fallacy is that he's responsible for not just those he uploaded to but everyone down the line.

That's not a fallacy, though. That's explicit in the copyright act, going all the way back to the first one in 1790, when you could be awarded statutory damages of one dollar per page, even though a book at the time might only be a few dollars. Furthermore, this wasn't punitive - but rather was an attempt to award compensatory damages. That's because if an infringer was running a printing press, he was likely running off a thousand copies or more.

Consider the potential loophole you've created: A uploads to B once and never, ever uploads again. B, who is outside this country and not subject to US copyright law, burns a million CDs and sells them to retailers. Under your interpretation, A is liable for $1, and we no longer have any copyright law.

Re:I didn't know they could do that

[Theaetetus]

Statutory damages as an alternative to actual damages makes sense, but is there any legal expectation that the statutory damages will be roughly proportional to the actual damages?

Yes. They are supposed to be reasonably proportioned to the actual damages. Usually that plays out to 2 to 4 times the actual damages.

[Citation needed]

Juries are allowed to consider the estimated actual damages when awarding statutory damages, but a plaintiff can opt for statutory damages from the outset and never, ever show any evidence regarding actual damages. In that case, there is no "reasonably proportioned to the actual damages" because no one knows what the actual damages are - rather, they get somewhere between $750-30k per work, or $750-150k per work in the RIAA's interpretation.

Unless, of course, you have some citation that says that evidence must be shown for actual damage before you can receive statutory damages under the copyright act?

Re:I didn't know they could do that

[Theaetetus]

No, the best argument is one that they apparently failed to raise - the jury was presented with an instruction, number 110, that willful infringement requires only knowledge or reckless disregard of the copyright, and thus damages up to $150k per work are available, thus leading the jury to pick the $18,000 figure. The RIAA briefed in support of this instruction, and I can't find a copy of the opposition brief or the ruling, but the final jury instruction was exactly what the RIAA wanted. I believe it's incorrect as a matter of law, because their interpretation expressly removes the $750-30k range of damages from ever being able to be applied. Instead, it would be $200, or $150k, but that's not what Congress said. They're misreading and misapplying both the case law and the statute.

The defense had made an argument regarding the requirement for willful infringement, but the judge rejected it, since, predictably, it went way beyond the statute.

Got a link to the defense argument, by any chance? The only one I can find is the plaintiff's opposition brief to that jury instruction. They make arguments and quote a bit, but I haven't seen the full defense brief.

And it seems, from those quotes, to be a different argument than I'm making - the defense seems to be calling willful "something more than knowledge", but didn't define it. The plaintiffs attacked it mainly for being vague, and apparently succeeded, because the instruction that went to the jury was their version.

There's also one other argument the defense could make with regard to the jury instructions. The suggested instruction by the plaintiff was that statutory damages should be calculated per infringement, and the judge accepted this. However, the statute requires that the damages be calculated per work, regardless of the number of infringements. I predicted at the time that this could result in the jury multiplying the damages by the number of times they estimated the works were infringed by the defendant. And the number that they came up with is suspiciously $750 (minimum damages per work) x $30 (number of works at issue) x $30. It is possible that they meant to award the minimum damages but multiplied them by 30 for whatever reason.

Yeah, but they pretty explicitly listed $22,500 for each of the works. I think they were trying to balance the $750 and $150,000 levels, because that's what the jury instructions told them to do.

Re:I didn't know they could do that

[mcgrew]

He did a very good job of explaining it in his reply.

Re:I didn't know they could do that

[bidule]

Well, Congress seems to have considered that, going from the comments in the House Report and Senate Report when they were drafting the law... Specifically, that to not do so would make a loophole where someone could make a single infringing copy and claim that they're only liable for that, while their friend, the publisher, makes a million infringing copies.

So, why not sue the publisher then? Laziness?
And am I allowed to double-dip and sue both? Nonsense!

Unless there are aggravating circumstances (drunk, insane, underage, conspiracy), there's no way someone should be held responsible for their friend's action.

I'm not sure you are arguing for fair dealing here.

Re:I didn't know they could do that

[Theaetetus]

Well, Congress seems to have considered that, going from the comments in the House Report and Senate Report when they were drafting the law... Specifically, that to not do so would make a loophole where someone could make a single infringing copy and claim that they're only liable for that, while their friend, the publisher, makes a million infringing copies.

So, why not sue the publisher then? Laziness?

The publisher is in Canada, outside the reach of US law.

And am I allowed to double-dip and sue both? Nonsense!

Obviously not. In US law, you aren't allowed to collect full damages from multiple parties.

Unless there are aggravating circumstances (drunk, insane, underage, conspiracy), there's no way someone should be held responsible for their friend's action.

Conspiracy was exactly what I was suggesting. So, I take it you agree with me?

Re:I didn't know they could do that

[selven]

You don't need a copyright loophole to do that. Person A can buy something legitimately, move it across the border legitimately and hand it off to B legitimately. If A is aware of B's intent then A could be charged with aiding copyright infringement either way.

If we stick with the idea that you're responsible for everyone down the line, people could be paid many times for the same offense, which is many times worse than the problem you described.

Sounds like the Court got it right.

[glrotate]

Without reading the order, it sounds like the Court got it right.
I.e. the damages question is a tricky one and excessive damages are to be guarded against, attorney's fees shouldn't be a slam dunk, and Fair Use exists - however downloading whatever you feel like just to list to on your ipod isn't Fair Use.

Re:Sounds like the Court got it right.

[gandhi_2]

I don't see how this is a good thing, making file sharing and fair use synonymous.

The Court, deeply concerned by the rash of file-sharing lawsuits, the
imbalance of resources between the parties, and the upheaval of norms of behavior brought on
by the internet, did everything in its power to permit Tenenbaum to make his best case for fair
use. Over the record companies’ strenuous objection, the Court allowed the fair use defense to
be added at the eleventh hour.

Making a small clip of a copyrighted work so the work could be discussed is one thing, but at the last minute when you are loosing to cry "fair use" looks disparate and only makes fair use a future target.

Re:Sounds like the Court got it right.

[Taibhsear]

Downloading whatever you feel like just to list on your ipod is completely legal in the US. UPLOADING the copywritten files is illegal and infringement of copyrights. This is a very important difference that the RIAA doesn't want you to realize.

Re:Sounds like the Court got it right.

[mcgrew]

Sorry if it seems like I'm picking nits, (I do understand that you meant "losing", damned keyboards..) but did you mean desperate when you said "disparate"? Damned spell checkers, mistype a single key and the spell checker "corrects" it with the wrong word. Is that what happened? I hate it when that happens to me. And if you did indeed mean "disparate" could you explain?

Re:Sounds like the Court got it right.

[Anonymous Coward]

lol... yes, sorry.

The act looks desperate. He is losing, and the judge gave him "disparate" treatment by letting him claim fair use at the last minute. the court however is "loosing" the judicial dogs of war on mr. tannenbaum.

Re:Sounds like the Court got it right.

[keithpreston]

Both are illegal, however it is pretty hard to find downloaders without doing the uploading yourself (which seems a lot like entrapment, and offering to upload your owned content for free could imply a license to download). Because of this and the fact that without uploaders there are no downloaders, most copyright owners have chosen to legally pursue uploaders.

Re:Sounds like the Court got it right.

[shentino]

She admitted liability, case closed.

One may as well have confessed to murder in Texas.

Mostly the court said the defense sucked

[Anonymous Coward]

Mostly the court said the defense sucked and they WOULD have been receptive to such fair use tactics but the defense didn't help them out there.

http://arstechnica.com/tech-policy/news/2009/12/how-team-tenenbaum-missed-a-chance-to-shape-p2p-fair-use-law.ars

This isn't something that applies to all future cases.

Re:Mostly the court said the defense sucked

[pdabbadabba]

Right, of course the key fact that Ars ignores is that the defenses that the court says it would have been receptive to were incompatible with the actual facts of the case.

Re:Mostly the court said the defense sucked

[pitchpipe]

Just call this a [painfully slow] outbreak of common sense.

Re:Mostly the court said the defense sucked

[Znork]

The court also shows a certain naivete: "Whether the widespread, unlimited file sharing that the record suggests he engaged in benefits the public more than our current copyright protections is a balance to be struck by Congress, not this Court,"

As we have come to understand, copyright law is written by lobbyist organizations and entered into as treaties. 'Congress' or 'public benefit' basically does not figure into the equation.

Re:Mostly the court said the defense sucked

[CorporateSuit]

Mostly the court said the defense sucked and they WOULD have been receptive to such fair use tactics but the defense didn't help them out there

So they're saying that "what is right and wrong" is not the focus of judgement, rather who had the better lawyer? Someone want to remind the judge he's not judging a debate tournament, and that innocence transcends protocol?

The focus of any court should be to give the defendant the lightest possible sentence they conscionably can. If the US shifted its focus back to that, we'd improve the state of healthcare and discipline. Barratry wouldn't be so ridiculously prevalent, and more people could do the Right Thing without worrying about vexatious litigants.

Re:Mostly the court said the defense sucked

[pdabbadabba]

That may be, but I'm guessing that you'd still rather the elected legislature (whether you see them as responsive or not) make these sorts of laws than the judiciary. Would you have really been happier if the courts had said "this is really an issue for the legislature but we don't trust them so we're going to make up new laws from the bench"?

That holding would be either instantly struck down by a higher court, or would mean the end of representative democracy in the US.

Re:Mostly the court said the defense sucked

[PRMan]

Yes, because that's never happened before. http://en.wikipedia.org/wiki/Judicial_activism

Re:Mostly the court said the defense sucked

[nomadic]

Someone want to remind the judge he's not judging a debate tournament, and that innocence transcends protocol?

I hope that that someone will actually read the opinion rather than accept an anonymous slashdot poster summary of what it says.

Re:Mostly the court said the defense sucked

[Anonymous Coward]

The judicial has never "made up new laws" because they cannot do that. They can only interpret them and strike them down. Period. There's no such thing as "legislating from the bench" as crybaby republicans would like you to believe.

Re:Mostly the court said the defense sucked

[TLLOTS]

Mostly the court said the defense sucked and they WOULD have been receptive to such fair use tactics but the defense didn't help them out there

So they're saying that "what is right and wrong" is not the focus of judgement, rather who had the better lawyer?

No, the point highlighted in the above article is that instead of making a case for specific types of fair use that might be applicable, the defendants lawyers tried to argue rather broadly that all downloading was fair use, something that the judge couldn't possibly find in favour of. In essence the judge said that they were open to certain arguments being made, but the defendant never tried to make them and instead opted for a bat-shit crazy defense coupled with irresponsible and outright illegal conduct. It's not hard to see why Tenenbaum wound up getting the judgement that he did.

Re:Mostly the court said the defense sucked

[pdabbadabba]

Right. And, usually, when it does happen it is widely criticized.

Re:Mostly the court said the defense sucked

[Anonymous Coward]

Well, corporate personhood did take some pretty hefty distorting of the law, but that's both side with a slight republican slant who liked it, so of course it's not judicial activism ;)

Re:Mostly the court said the defense sucked

[Kjella]

What did you expect, seriously? A mutiny of the courts? A political jab at the election process or the parties and congressmen and senators? They are parts of the checks and balances but they couldn't rebel against the system without breaking the division of power. Courts refusing to enforce copyright law despite Congress being, at least in some form, explicitly granted the authority in the constitution would break the most fundamental rules. You might as well have the President issuing laws by decree and Congress holding trials of political opponents if you go down that path. I don't think they're more clueless about reality than most other people, in fact probably far less. But even a judge that knows he and pretty much everyone else is speeding can't very well dismiss a guy standing trial for a speeding ticket.

Re:Mostly the court said the defense sucked

[shentino]

"legislating from the bench" is actually what a common law legal system is all about.

If you're talking about a civil law system then by all means you'd be correct.

Anyone who thinks that judges don't "legislate from the bench", please study these following landmark cases:

Roe v. Wade
Marbury v. Madison
Brown v. Board of Education
etc...

These binding precedents have just as much legal force coming from the pen of a judge as they would have coming from the pen of a congress critter.

since when is space shifting from CD not fair use?

[bugi]

I was under the impression that space shifting from CD to "mp3" was already settled as fair use. What goes?

Note to self:

[bobdotorg]

Don't ever take a judge's advice and allow Charles Nesson to be my legal counsel.

Victory?

[TiggertheMad]

Judge: "Fair use might be a justifiable defense, but we find for the platiff to the tune of $625k."

Defense Council: "YAAAAAY! Wait a flippin second..."

Re:Victory?

[LOLLinux]

The judge never said that fair use would be a justifiable defense for the case at hand, but that for some future case it could be a justifiable defense.

Re:Victory?

[Tekfactory]

Like if you run out and buy all of the CDs you infringed, and then appealed the ruling to a higher court?

Its gotta cost less than $625k

Re:Victory?

[Anonymous Coward]

How the heck would that help? Did you buy the CD's and ship them to all the people who supposedly downloaded from you? Not knowing the full facts in the case, I do know at least that he wasn't in court over "downloading" - he was in court over the whole "making available" thing (which in theory could mean that thousands or exactly one - media sentry - downloaded from him).

Re:Victory?

[MiniMike]

More like he would have had to run out and buy CDs for all the people who downloaded the mp3s from him. Probably still less than $625k. Still not quite what they mean though.

Re:Victory?

[mdwh2]

At $0.99 per song, and even accepting the ludicrous assertion that every copy is a lost sale, that works out to every song having been downloaded from him an average of almost 22,000 complete times. Do you seriously think that's likely? That's one hell of a seeder!

Re:since when is space shifting from CD not fair u

[kharchenko]

Exactly. But now it "might constitute fair use" ... and in a year or so it will be "unlikely to constitute", etc. Progress!

Re:since when is space shifting from CD not fair u

[sjames]

The question of if you have the CD but rather than ripping it, you download an already ripped mp3.

Damages should be limited by law

[ZorinLynx]

It should be illegal to award damages higher than a certain percentage of the net worth of the losing party.

It's insane that any individual can be expected to pay $625,000 unless they are wealthy.

The ability for the defendant to pay should be considered when damages are decided. Our legal system is so seriously screwed up.

Re:Damages should be limited by law

[cdrguru]

Sure, just as jail terms are limited by law. The problem is, the losses are pretty much impossible to calculate.

I can rip a song from a CD or a movie from a DVD and make it available to the planet for downloading. Unless I keep some kind of records, it is impossible to know how many people have subsequently downloaded it. Let's say it is shared via some P2P software for a day - not many people could have downloaded it in only 24 hours. What if it is available for a year?

The only calculation possible is a guess, and guessing doesn't work well in court. Therefore, an extremely punitive statutory damage award is made. The point of the extreme nature of it is to make it extremely unlikely that anyone will ever consider this something reasonable to do. It isn't working, mostly because enforcement is also next to impossible.

So what are they going to do? I'd say go out of business is the most likely, after a long period of fighting every way they can to avoid it. But it is inevitable that they will fail.

Re:Damages should be limited by law

[keithpreston]

This doesn't make sense. Most people just file bankruptcy and don't end up paying $625,000 The monetary damages should correlate with losses, but to another point they should be a deterrent to the crime. If you were caught letting people download a DVD and only had to pay for the cost of the 1 person (the RIAA) who downloaded and sued you ($20?), everyone would pirate.

Re:Damages should be limited by law

[Anonymous Coward]

Who's going out of business? The music companies are still producing music and making money. The law firms are still collecting in lawyer fees.

Nobody is losing money that can't simply be solved by cutting excess in either artist contracts or staff.

Really, nothing is going to change without some interest group motivation.

Re:Damages should be limited by law

[Anonymous Coward]

5 dollars.

Re:Damages should be limited by law

[cromar]

Which just goes to show that the estimate of the damages is asinine, and that the constituents of the RIAA's methods of distributing and making profit on digital media are asinine.

Re:Damages should be limited by law

[Anonymous Coward]

I thought you couldn't get out of judgements via bankruptcy?

Re:Damages should be limited by law

[SheepFister]

Agreed. Furthermore, how can anyone in their right mind say that $22,500 per song is a fair amount? I had to have seen this before... can someone link me to an article explaining it? The Making Available excuse doesn't seem like it would be enough... and would the fine be different if a user disabled uploading? Would it then just be cut and dry theft, with a fine less astronomical? There's something I'm not seeing in play here...

I can't see myself paying for music through the labels anymore, they're too quick to bend us over. If more bands I like start pulling a 'Radiohead' and releasing music independently on their websites, I'd gladly pay for it. I'll still go to concerts and buy their t-shirts. But any media that has a kickback to the labels is dead to me, and I'm guessing I'm not the only one who feels this way.

Re:Damages should be limited by law

[mea37]

So, you figure as long as I either avoid owning assets or hide them well, I should be allowed to do whatever I want to your assets without fear of consequence?

Interesting.

Re:Damages should be limited by law

[keithpreston]

I don't see how making a profit on digital media is asinine. That's like saying making a profit on anything is asinine. Everything should have perfect competition and we should pay just above exactly additional input costs for an additional unit. This does happen sometimes, but they call them commodities, not creative works. You have to realize that without Copyright, Patents and other methods of control distribution of Creativity are the only way to encourage Creativity. Do you like your Ipod, Intel Processor, GPS, Collected Data(Maps), etc? Without control methods there is no incentive for initial investment to create, and the only things that will be made are commodities. Apple would not spend X million dollars to create the iphone if they knew that once they started selling it a "copy" company would build the same products using the same chips and Apple's software and sell it just above the costs of parts. Digital media is just an extreme example of this because the cost of selling another unit is negligible.

I really hate the argument, well they can make money off the tours and other stuff. Who to say a better performer can't steal your well written song? What's to stop another band from imitating your sound and throwing a tour that happens to play in every city you do and the same time, but at 1/4 the price for admission? What if someone else sold merchandise of your band?

If you don't agree with their system, don't participate in it. Don't subvert laws and break the system and then call the punishment stupid. If anything the best way to break a system, or someone abusing it to make absurd profit is to support their competitors!

Re:Damages should be limited by law

[maxume]

How sure are you that Intel needs government enforcement to protect their products?

They operate the most sophisticated factories in the world, producing some of the most complicated objects in existence, I'm not real sure they need to worry about some guy in his garage trivially duplicating their chips. Not to mention that they consistently offer a certain level of quality.

Re:Damages should be limited by law

[Anonymous Coward]

Suing poor people doesn't make financial sense, so the only real way to keep them in line is to put them in jail. But there's a threshold. So a poor person is free to perform essentially any sue-able offense as long as it wouldn't land them in jail. This applies to a lesser extent for college kids who are paper poor (in actual debt usually) but have rich futures. And, of course, they actually care about their record if they ever need to bow to a corporate overlord.

Re:Damages should be limited by law

[cromar]

Ha! I can see you agree in stronger copyright laws than I do, but only marginally. I have no problem with making a profit off of one's own work and having it protected for a reasonable amount of time. It betters society. What is wrong is not that they are making a profit selling digital media. What is wrong is that their methods for making that profit are asinine, harmful to artists, and harmful to society.

Another thing, for the most part artists are only making money from tours and promotional material if they sign with a major label. In most cases, the artist is paying labels to promote them, because, until recently, that was the only way to promote your music. That has changed, thank God. So I am not only promoting subversion. I am promoting the death of the old mafia labels, and subversion is valuable tool toward that noble goal. Building the infrastructure to support independent artists is well underway and growing at remarkable rate really, but the iron fist of Old Media is still very dangerous and I wouldn't be surprised if they have more tricks up their sleeves, tricks they will use to try to maintain their anti-competitive stranglehold on media and others' creative works.

You can't sing the "Happy Birthyday" song in public for crissakes. Their stranglehold on creative works is unnatural, a product of naivety toward recorded media. It's time we went back to a sane attitude toward creative works, like we have had for thousands of years before our current copyright laws regarding recorded/mass media began to crystallize around the turn of last century.

Re:Damages should be limited by law

[keithpreston]

How sure are you that Intel needs government enforcement to protect their products?

>

Yes they absolutely do! Trust me the difference between the cost Intel pays for each chip and what you pay is padded with a huge profit and initial investment recoup cost. Copying the design wouldn't be very difficult. There are many methods. Electron Microscope to reverse engineer, paying an insider to give you trade secrets, stealing key employees with intimate knowledge of design. Even if they were 6 months behind technology wise, an x86 compatible computer that ran at 75% of Intel speed for $50-100 would crush Intel's market

Because of the current system, you almost never see Big Corporations subvert the Copyright system because they know they will get sued out of existence. Why worry about the guy in the garage? For the most point it has been ignored, however, the internet has made it so that the guy in a garage can do a lot of damage with little resources. However this doesn't mean we can throw out the copyright system, we just have to start enforcing it equally on everyone.

Re:Damages should be limited by law

[jedidiah]

> Sure, just as jail terms are limited by law. The problem is, the losses are pretty much impossible to calculate.

Not at all.

The relevant "art industries" have some idea of what this stuff is worth. They need to be able to evaluate value
in order to do the "business" part of art. So for ANY bit of "art" whether it is something an unsigned band or
something that already has as well established track record, the labels or the studios have some idea of what they
could be losing.

The CEO Virgin Atlantic doesn't just shake a dead chicken while dancing around in a circle mumbling.

ALL of the works have some sort of estimated value and expected annual revenue.

Simply put: the damages for a single uploader should never exceed the actual value of the work.

If music were really treated like real property then it would be taxed as such and there
would be an assessed value on it and that would be recorded with the relevant tax authority.
There would be no guesswork. The maximum potential done to "piracy" would be equal to "out
right theft" of the rights to the work in question.

It is time for this "statutory damages" nonsense to end and for the courts to deal with actual damages.

The fact that it might be "difficult" is irrelevant. These people want to directly destroy lives. They should be given no special favors when it comes to the burden of proof.

Re:Damages should be limited by law

[maxume]

You still need a reasonably similar fab and quality engineering, it isn't just a matter of taking 'the plans' and copying them, and the idea that someone is going to reverse several hundred million transistors with an electron microscope has basically zero credibility (and Intel ships chips that run at "75% of Intel speed" for $50-$100, at least to the extent that the statement even has meaning, they just don't make them on their most modern processes. For example: http://www.newegg.com/Product/Product.aspx?Item=N82E16819116091 ).

Re:Damages should be limited by law

[keithpreston]

Ha! I can see you agree in stronger copyright laws than I do, but only marginally.

Personally I believe there should be much stronger copyright laws with reasonable fair use provision for a much shorter but reasonable time period. This is the only logical conclusion I can come to. Honestly unless you are a commodity laborer, Your value to your company is the creativity and intelligence you put in your job. Trust me, if your company could steal similar creative and intelligent work for free they wouldn't be paying you. Since I contribute my works in exchange for cash, I feel like if I consume works, I should pay cash.

I do agree that the labels have a strangle hold and are abusing the system, but I choose not to cheat the system, but not to support the labels.

Re:Damages should be limited by law

[cromar]

I feel like your missing my point, because you're looking for an argument :) The only thing we disagree about is that it is wrong to cheat a corrupt system. I'm a firm believer that two wrongs can make a right. Anyway, I don't pirate music and I pay for independent creative works, so I'm not sure what you are trying to say... that doesn't make the monetary damages they come up with any less asinine, and it doesn't make their attempts to save a failed business model any less asinine.

Re:Damages should be limited by law

[keithpreston]

Let me clarify.

There are many other Fabs and quality engineering other then intel. I don't think it's a stretch to say that without the burden of copyright one of these other fabs could easy mimic if not straight up copy an intel processor and sell it for a lot less then the cost that intel does. Intel is making a tidy profit, because their competition is low, and there are no new entrants into the x86 market because of copyright and patents

Cost structure is very important, let's take for example a normal cheap PC these days that cost $300. If we looked at all the components in that PC and evaluated them for the raw costs to produce that extra component (with no upfront development costs), I would guess that the PC has about $50-$100 dollar of costs if not less. With no copyright system enforced by the goverment, I propose that we would see intel go out of business because they would never recoup their billion dollar investment in there processor when others copy and sell it just above raw costs.

In fact I would say that a majority of copyrighted material would not be made, because the payback period becomes (profit margin) / (time it takes to copy the item) versus (profit margin) / (time of copyright), This is especially bad for digital media creators because copying is available immediately.

Re:Damages should be limited by law

[keithpreston]

Yes I don't think we can agree on that. Two wrongs don't make a right in my book. To a point I can agree with cheating a corrupt system, the problem with the copyright system is how do you draw up who is corrupt? There are people that don't abuse the copyright system, can we still steal from them? I personally just try and avoid the corrupt ones and deal as often as possible with those not abusing the system.

If a law is justified, and there aren't cases were breaking the law is justified, I don't see how a harsh punishment is bad. If it is something you shouldn't be doing, easy to know if you are doing and you willfully do it, you should be punished accordingly.

It's more of a matter of difficulty in detection. Consider a crime that is easy to commit, can be commit very often, has very non-obvious or long-term outcomes, and is very hard to detect. How do you stop such a crime? There really isn't anyway to stop such a crime, the only way to prevent it is to get people to agree that the crime is bad and not to do it, or fear the punishment. Harsh punishments work well in the situation.

Re:Damages should be limited by law

[shentino]

Microchip manufacture is a capital intensive operation and when you've sunk metric craptons of cash into R&D the last thing you need is some two-bit competitor peeling your research and undercutting you by being able to skip out on the research you paid for.

One thing I think can curb IP law abuse is:

Tax royalties. Have the feds take off a bit from the top and invest the proceeds in the National Science Foundation or something.

Heck, even giving the USPTO a bit of it might help them hire more examiners.

Any company that wants the feds to be their IP guard dogs should at least throw some kibble in the bowl.

Re:Damages should be limited by law

[kramerd]

I don't understand. You believe that people with no money should be allowed to steal, and once caught, only be required to pay damages up to a percentgae of their net worth?

How about someone has a DUI, smashes into my maserati, but is poor. I should have to pay my medical bills and car repairs because its higher than a percentage of their net worth?

A tort is a tort is a tort, and if your tort causes me damages, there should not be a limit on how much of those damages (that I can prove you caused) you should have to pay.

Our legal system (I assume you are in the US) is absolutely fine on this regard.

Re:Damages should be limited by law

[cromar]

Let the punishment fit the crime. Hundreds of thousands of dollars in damage for distributing one song is not Just. It seems like you are saying that if every crime had a punishment of death, that there would be very little crime. And that's true. But, it is an unjust society that would have such laws.

And, with piracy being so prevalent now, how can you say harsh punishments have been working? I could Google for some data, but I am guessing it's not readily available....

Re:Damages should be limited by law

[keithpreston]

And, with piracy being so prevalent now, how can you say harsh punishments have been working?

A crime is prevalent, punishment is not working, let's just make it legal!

It's not the one song that is the problem, it is that you are sharing on the internet. A public form that has billions of people on it. It is very possible that you shared that 1 song 100,000 times. Unfortunately you didn't keep track of everyone that downloaded it. However I bet if you did have nice logs, the court and any sane jury would easily reduce the fine to near copies * normal purchase cost

Re:Damages should be limited by law

[Thinboy00]

Intel is making a tidy profit, because their competition is low, and there are no new entrants into the x86 market because of copyright and patents

Competition is usually a good thing; anti-competitive actions are usually illegal

With no copyright system enforced by the goverment, I propose that we would see intel go out of business...

Copyright normally does not apply to physical objects (you're thinking of patents)

...because they would never recoup their billion dollar investment in there processor when others copy and sell it just above raw costs.

Companies do not "sell it just above raw costs." They sell items where marginal cost=marginal revenue (this is a simplification--competition with Intel would influence pricing, but not to the extent that economic profit becomes zero or negative)

I would say that a majority of copyrighted material would not be made [if not for copyright]

What about Creative Commons? What about William Shakespeare? Wikipedia? "All rights reserved; we will sue you into the ground" is not the only possibility.

Re:Damages should be limited by law

[jp10558]

A crime is prevalent, punishment is not working, let's just make it legal!
Depending on whether you think laws are a social contract or set down by some higher power (and this doesn't need to be supernatural), I suppose my following point may be interpreted differently.

In our current system, I think the idea anyway was to create a system by and for everyone so we can live together as best we can. Laws should be generally with the consent of those living under them (government by the consent of the governed). If enough people are breaking a law, whether it's via overt civil disobedience like during the civil rights movement or secretly like during prohibition and now with copying songs, perhaps it would make sense to re-evaluate the law in light of mass disagreement by the governed.

To clarify, occasionally, it seems to me that it would be a good idea to consider whether a specific act should be a crime, and the answer should be able to go both ways (from no to yes, and back). I don't mean that murder needs much thought, of course the vast majority of people feel it should (and I would bet will always feel this way) be a crime. But (almost) no one feels that PvP in a MMORPG should be murder. We hear about the "amusing" laws that are still on the books, like needing someone walking in front of a car driven by a woman waving flags in some localities. Why shouldn't we the people re-evaluate
that? I'll bet we'd find that should be repealed for all sorts of good reasons.

I do think this consideration ought to take place via our legislative bodies. But I also think it almost begs for some sort of "time limits" on laws where some action needs to be takes to renew them, because legislators almost never go through old laws and see if they are even still relevant. That's another argument though.

Re:Damages should be limited by law

[cpt kangarooski]

This does happen sometimes, but they call them commodities, not creative works.

Well, you'll find that copies of creative works are commodities. One copy of Romeo and Juliet is as good as another, and so publishers wind up competing against one another, and the public benefits from cheap, widely available copies.

You have to realize that without Copyright, Patents and other methods of control distribution of Creativity are the only way to encourage Creativity.

This is demonstrably false. Copyright as a means to 'encourage creativity' was first enacted in 1710, and then only in England. It took some more time for it to spread. And many types of works, such as paintings, were not covered for quite some time either.

Yet many creative works predate copyright law. If copyright was "the only way to encourage creativity," they couldn't exist.

The most you can say for copyright law is that it may encourage the creation and publication of works that otherwise would not be created or published otherwise. But of course, the amount of encouragement that copyright provides will vary depending on circumstances. And you ought not to assume that more copyright is always better in terms of how much encouragement it provides; very broad, long-lasting copyright can permit copyright holders to discourage new authors from creating, since the former group sees competition as undesirable.

Who to say a better performer can't steal your well written song?

This already happens. Musicians are allowed to cover the songs of other musicians, and sometimes do a better job, e.g. Jimi Hendrix did a better version of 'All Along the Watchtower' than Bob Dylan. While there is a fee to be paid for doing covers, it is set in the statute and is fairly small, so most of the rewards would tend to go to the better performer, rather than the songwriter.

What's to stop another band from imitating your sound and throwing a tour that happens to play in every city you do and the same time, but at 1/4 the price for admission?

Again, there's nothing stopping that now. Since you think it would be the end of the world if we allowed this, and we do and always have allowed it, please feel free to point to signs of the imminent collapse of art as a direct consequence of this.

If you don't agree with their system, don't participate in it.

Why not participate in it with the aim of fixing it or abolishing it? Like it or leave it has always been a false choice.

Re:Damages should be limited by law

[RobertM1968]

The CEO Virgin Atlantic doesn't just shake a dead chicken while dancing around in a circle mumbling.

Can you provide proof they dont?

And what about Sony/BMG? That's clearly how they choose some of their new "artists"...

;-)

Re:Damages should be limited by law

[Anonymous Coward]

I'd have to agree but I don't particularly like that solution. What's to prevent Joe Schmoe who nets $15k/yr from being used by someone to cause damages of say $20 mil and then only being charged a percentage of that, not to mention abuses that could entail such circumstances by say corporate espionage, etc etc.

Re:Damages should be limited by law

[CrimsonAvenger]

It should be illegal to award damages higher than a certain percentage of the net worth of the losing party.

Which allows you to violate copyrights to your heart's content as long as you use a frontman with a net worth of zero.

Which isn't terribly hard to do, really.

Court decision

[thelonious]

from the court decision: A word on process: The Court, deeply concerned by the rash of file-sharing lawsuits, the imbalance of resources between the parties, and the upheaval of norms of behavior brought on by the internet,...

They're talking about fetish porn, aren't they?

Format shifting is *probably* already legal......

[Anonymous Coward]

In the USA:

Unless I am greatly mistaken...in prior court cases, it was accepted on precedent that format shifting for personal use was already covered under fair-use.

Additionally, although their are some issues regarding the definition of "digital audio recording device", making a copy of a digital audio CD for private non-commercial use using a "digital audio recording device" (computers are specifically NOT covered under this) is EXEMPT from prosecution or litigation under the 1992 Audio Home Recording Act. Under the terms of the act, the industry specifically gave up all rights to litigation and or fines imperpetuity for any non-commercial analog copying and/or approved digital audio device.

Audio CD recorders and DAT recorders are specifically addressed by this and are approved devices. An audio CD recorder or standalone DVD recorder capable of ripping direct to MP3 would almost definitely be covered as well (e.g. I have a DVD DVR with an internal hard drive that has the capability to buffer a CD to it's internal hard drive and then reburn it to a new CD after transcoding it into MP3 format). As long as any audio device complies with the SCMS (Serial Copy Management System) and refuses to make copies of 2nd generation material (i.e. copies of copies) then the device is legal.

The real question is whether or not making a copy of a CD (an approved device) to an MP3 player (also almost certainly an approved device) by using a PC (a non-approved device) for the ripping/transfer is still covered. Based on past legal cases and statements agreed to by the RIAA during Senate hearings on the matter, this should be legitimate -- but it has never been ruled on directly in court.

The interesting thing about the 1992 AHRA, is that, while it is still illegal to do so, there is no legal PENALTY for making copies of an copyrighted audio CD using a standalone audio-CD recorder -- even if you are making dozens of copies and giving them to all your friends and family members. If I wanted to make 1000 copies of an audio CD and then hand them out on the street corner for the heck of it, the strongest thing they can do to you legally is ask you to cease and desist. This only applies to non-copyprotected audio CD's -- if they have copy protection on them then the DMCA comes into effect (which is an entirely different mess).

A very interesting question in the law would be on the following device -- of which one does exist but was never publicly released:

1) A standalone CD-Audio/DVD Recorder/DVR unit with network capability capable of ripping to MP3. This unit *was* an approved CD-Audio Recorder and was legal for making audio cd copies.
2) This unit fully complies with SCMS and flags any recorded MP3's with the copyright flag and will refuse to reburn second generation copies or copies that did not originate on the unit that have the copyright flag set.
3) This unit was network capable -- although the released design was originally intended for sharing DVR material to other similar players within the same household.
4) As a network capable device with a hard drive, in an unreleased version a Gnutella network client was implemented on the device. This allowed sharing of MP3's ripped onto the device and allowed downloading MP3's off of the internet.
5) In compliance with SCMS, the unit would not burn to CD any downloaded MP3 with the Copyright flag set. Any downloaded file without the Copyright flag set could be burned with impugnity (under the 1992 AHRA players are required to copy media without the copyright flag freely -- the burden of having this flag set correctly was specifically forced outside of the player).

Basically, under current law, this device would probably have been a considered completely un-litigatable network file sharing device. Unfortunately, the base device itself is no longer produced and the "interesting" version was considered too much of a lawsuit magnet to even attempt releasing.

Re:since when is space shifting from CD not fair u

[Anonymous Coward]

Would would only help the defendant a tiny bit, because the major offense here isn't downloading, it's uploading.

Happiness

[cdrguru]

I don't think everyone will be happy until a court rules that downloading everything that can be is "fair use", because the quality of MP3's is only "fair" and after they are downloaded you really can't use them for very much.

Re:Happiness

[MiniMike]

Do you thus think that downloading high-bitrate MP3's should be illegal? What about ogg vorbis files? What if I download high-quality files but listen to them on a cruddy stereo? Agreed that you can't use MP3's for much- other than listening to them. Which is pretty much all the functionality they're intended to have. I also agree that everyone would like to get whatever they want for free, but I don't follow your logic. Additionally, I think a careful reading of these cases reveals that the charges are for uploading files, not downloading them. I hope this doesn't affect your happiness.

Re:Happiness

[jedidiah]

...which is perfectly consistent with the previous 50 years of being able to get music for free.

You condition the consumer to the expectation that they can get entertainment for free then they are bound to continue thinking that.

It's just that now most any form of "broadcast" is also a "download". That's just the evolution of technology.

Re:since when is space shifting from CD not fair u

[noidentity]

If you download an already-ripped mp3 when you already own the CD and could have ripped and encoded it yourself, could your action be found fair use, yet the actions of the site who provided you the mp3 be found as infringing? I love the bizarro world of copyright infringement, where for example a bit is more than just a 1 or 0.

A song for the season

[dkleinsc]

Oh Tenenbaum, oh Tenenbaum,
your legal team is awesome.
Oh Tenenbaum, oh Tenenbaum,
your legal team is awesome.
With fair use, you may see
a chance for copyright victory.
Oh Tenenbaum, oh Tanenbaum,
your legal team is awesome.

Re:A song for the season

[agnosticnixie]

Nice try, cute but it doesn't scan at all.

Not the impression I ,got, exactly

[Mathinker]

> at the last minute when you are loosing to cry "fair use"

My impression from reading the document was that he couldn't be "losing" at that point in the trial, because it was even before the jury was selected. My understanding is that the defense is supposed to reveal to the judge and the plaintiffs ahead of time (and visa versa) what their arguments will be so that the other side can prepare counter-arguments based on good legal research.

Unfortunately, it seems that the defense lawyer wasn't really prepared for the case and pulled this "wonderful" argument out of his, er, hat at the last possible moment. The judge disses the defense lawyer at practically every opportunity in those 38 pages. And I can understand why.

Anyway, after reading a few posters' stories here about personal bankruptcy, I'm confident that even if Joel has to go that route he'll manage to survive this and still have an almost normal life.

Re:since when is space shifting from CD not fair u

[sorak]

If that were found to be valid precedent, then that would mean that it was legal to download a copy of a DVD that you currently own from a foreign torrent site? I assume that you wouldn't be violating the DMCA's circumvention clause...

Doesn't matter

[Mathinker]

Please give references for this interesting "fact", I'm very curious.

It actually doesn't matter, because even if you are correct, if RIAA threatens to sue you unless you pay $2K dollars, it will be cheaper, probably much cheaper, for you to pay them than to go to trial. So most people who are not wealthy cannot afford to be the "test cases" for making precedents. Frankly, I wonder whether RIAA does credit checks on the people it chooses to sue in court.

Re:since when is space shifting from CD not fair u

[bhmit1]

As other's have mentioned, the first question is it fair use to download an mp3 of a cd/song that you have already purchased?

But, there's yet a further step, where time-shifting is allowed in the TV/video world for recording on a VCR. I presume that same shifting is permitted for recording off of the radio. Therefore, are you allowed to download/posses an mp3 of a song that you heard on the radio?

There's a slippery slope that I don't think we should say anyone can download content that's been played on some radio station at some point, but a lawyer would have a difficult time claiming that you hadn't already heard a collection of top-40 songs. And this also wouldn't excuse someone that turns around and shares the content with others.

No matter how you look at it, it's unfair...

[Anonymous Coward]

> That applies here, and certainly includes a claim that the only damages were $1.40 per song due to Tenenbaum not purchasing them. He was uploading them too - his violation of copyright wasn't just making a single copy for his own use, but rather distributing them to others. Thus, the damages would include $1.40 for every he uploaded each song to, and everyone they then uploaded the song to. That's going to be much higher than a total of $33.60. How much higher? We don't know - it's too speculative to say, which is why Congress put in the statutory damage provisions.

You act as if that's unmeasurable. Especially in the case of torrents, it's KNOWN. If you have, say, a ratio of 3.5 (a very, very good ratio for many files), you've redistributed the file 3.5 time as well as having downloaded it. So you could multiply the damages by 4.5 and they would again be reasonable.

Even if you wanted to hold one person collectively responsible for EVERYONE's infringement, that too is measurable, because they can keep track of the number of times someone joins the swarm. And, because not everyone completes the download, the actual number is therefore capped at that. At least, the downloads the defendant has any connection to.

The problem here is that the RIAA wants to multiply the damages by 100,000x or more. These are not only physically impossible for their network connection, but well in excess of the damages actually suffered, even if you hold one person responsible for everyone. And holding one person responsible for everyone makes NO sense, because they'd be double-dipping on damages: it's not like they only sue one person for violating the copyright of a given song.

Re:since when is space shifting from CD not fair u

[mdwh2]

Related examples include downloading a TV programme that aired on a TV channel you pay for (or otherwise legally access) - surely this kind of timeshifting should be no different to videotaping it?

Or for those in the UK, what about a TV licence payer downloading material paid for by the BBC?

Or if you're Lily Allen, what about making a mix tape of copyrighted material without permission, and sharing it on a EMI's website for the purpose of advertising your own commercial work?

The current situation seems to be that that first two would risk you getting sued (or disconnected when new laws come in in the UK), whilst the third is just fine...

Civil issues aren't a crime!

[mdwh2]

but to another point they should be a deterrent to the crime

Sure, if someone is convicted of a crime, with proof beyond reasonable doubt, extra measures for deterrence and punishment are fine.

But in a civil case? No way. Especially when the burden of proof is on the balance of probabilities.

This reminds me of a story I read today, about UK shops suing suspected shoplifters rather than prosecuting, and going after RIAA-style damages. Much like the RIAA cases, there's the problem that they can request outrageous amounts (e.g., £87.50 for a 60p item, or £1207 for a suspected £7 discrepency in takings against a cashier), and people may be pressured into giving in without a fight (especially with the pressure from heavy handed debt collector thugs).

Worse, even if they do take it to court, they are now facing a battle not beyond reasonable doubt, but "on the balance of probabilities". Now sure, if what happened was "well we're not sure who's telling the truth, so tell you what, pay 30p / £3.50", then fine. But it's ludicrous that excessive punititive damages are lumped in, when the person has not been convicted of a crime, or otherwise had the case proven beyond reasonable doubt.

Jury Nullification

[Anonymous Coward]

From Wikipedia: [url=http://en.wikipedia.org/wiki/Jury_nullification]Jury Nullification[/url]

Remember, if you serve on a jury, you also render a verdict on the law itself.

Tell a friend.

What should it be?

[phorm]

What would be fair then? A maximum of 20% net-worth? How about if that individual's entire net worth is because he/she pulled off a massive fraud, ponzi scheme, or whatever?

What if you made a few million bucks but blew most of it on hookers and drugs? Then you've already swindled more than your current "net worth."

The moral law is straightforward

[rastoboy29]

If I'm not using a copyrighted work to make money, even indirectly, it should be fair use.
Absolutely, if I'm using your copyrighted work for profit, I need to have made a deal with you, first, fair cop.  But otherwise, fair use needs to be greatly expanded (and will be sooner or later, it's just a question of how much pain we all suffer in the meantime because of these retards.  Seriously, it's been over a decade and they still haven't figured it out).

Space shifting not fair use?

[arthurpaliden]

"E.g. it declined to rule out the possibility that creation of mp3 files exclusively for space-shifting purposes from audio CDs a defendant had previously purchased might constitute fair use."

You mean in the land of the free you do not have the right to use the media content you bought in any way you like in any device you own.

Only in Canada you say. Pitty.

No wonder the **AA hate us so much.

Re:Format shifting is *probably* already legal....

[cpt kangarooski]

The real question is whether or not making a copy of a CD (an approved device) to an MP3 player (also almost certainly an approved device) by using a PC (a non-approved device) for the ripping/transfer is still covered. Based on past legal cases and statements agreed to by the RIAA during Senate hearings on the matter, this should be legitimate -- but it has never been ruled on directly in court.

Diamond v. RIAA got into this, and found that computers break the chain of AHRA-compliance. Thus MP3 player manufacturers don't have to pay the AHRA royalties, respect SCMS, etc. so long as they require a computer in order to basically do anything.

The interesting thing about the 1992 AHRA, is that, while it is still illegal to do so, there is no legal PENALTY for making copies of an copyrighted audio CD using a standalone audio-CD recorder -- even if you are making dozens of copies and giving them to all your friends and family members. If I wanted to make 1000 copies of an audio CD and then hand them out on the street corner for the heck of it, the strongest thing they can do to you legally is ask you to cease and desist. This only applies to non-copyprotected audio CD's -- if they have copy protection on them then the DMCA comes into effect (which is an entirely different mess).

Nice try, but no dice.

The AHRA is very unusually, very specifically, and very cunningly worded. It doesn't make the reproduction of certain sound recordings non-infringing. It merely makes it non-actionable; i.e. you cannot be sued for this unlawful behavior.

Since the copies made are unlawfully made, they are not eligible for first sale. Therefore, making a copy of a sound recording under the AHRA and then giving that copy to someone else would infringe the distribution right.

A bigger issue

[BenEnglishAtHome]

and we no longer have any copyright law.

Which would be bad...exactly how?

Note: I'm not trying to be obtuse. I recognize the need for copyright law. But lots of folks who read slashdot don't. Since you're one of the few well-reasoned voices that stands up for anything other than anarchy in this area, I thought I'd invite you to summarize the more basic concepts from your pov. Just a thought.

Re:A bigger issue

[Theaetetus]

and we no longer have any copyright law.

Which would be bad...exactly how?

Note: I'm not trying to be obtuse. I recognize the need for copyright law. But lots of folks who read slashdot don't. Since you're one of the few well-reasoned voices that stands up for anything other than anarchy in this area, I thought I'd invite you to summarize the more basic concepts from your pov. Just a thought.

Well, the easy answer is "courts are the wrong place to wipe out an entire chapter of the US code - take it up with Congress if you want to get rid of copyright law."

The less easy answer is that copyright is a useful thing in its ability to protect authors. I think we all recognize certain problems with it - length for a start, and the ease with which massive statutory damage awards are applied - but it's important not to throw the baby out with the bathwater. Bereft of copyright protection, we'd be back in an era where authors and artists where either members of the idle rich aristocracy, or were supported by patrons.

Consider what would happen if you got rid of copyright: some works would still get created, because there is a market for them - such as a new operating system or application. And because the author knows that it can be freely and easily copied, they have to make their money back on the first (and only) sale. So the author charges a million dollars for that copy. If some company buys it (because it's worth it to them), they'll try to sell copies to other companies - say 10 companies for $100k each - so that they can make their money back. Each time, they would make sure that they get cash in hand before passing over the copy, and have large contracts ensuring that the little companies don't simply arrange to buy cheaply from each other. There would be confidentiality agreements and non-disclosure agreements, and (probably) angry suits for breach of contract. This might go through a few layers, but most likely, any sale of the program wouldn't be for less than $1000, and would still include burdensome contracts. So the public wouldn't get their hands on this new application until such time as it was "leaked".

Alternately, the original author could release it as public domain once they got their first million... but then why would anyone ever pay them for that million? This works great for small programs worth a few hundred dollars (for example, that website that was collecting donations and once they hit certain levels, would release applications), but it doesn't work well when you're talking about a new operating system or a new office suite.

The last alternative is to release the program free, open source. That's fine for some people, but who are we to take it away as an option, to say that they can't actually protect their work and have to donate it to the public domain? While some people would still create open source programs, others wouldn't, and we would lose their innovation and creativity as a result. Additionally, without alternate sources of income, many of the people who write free software in their spare time wouldn't be able to do so, particularly as they'd probably have much harsher employment contracts with their employers.

In summary, many people on Slashdot say the copyright system is broken - and they're right - and say that the answer is to completely erase it. That's wrong, and naive.

OT: bloviate

[Will.Woodhull]

'Bloviate': such a perfectly cromulent word! How could it be that this is the very first time I have ever seen it?

Kudos, glrotate! To bring such a rare and wonderful word out of the obscure depths of ancient dictionaries and set it glittering before all the Intarwebs is a marvelacious deed, indeed!