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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."
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.
I was under the impression that space shifting from CD to "mp3" was already settled as fair use. What goes?
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.
THL phish sticks
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.
Exactly. But now it "might constitute fair use" ... and in a year or so it will be "unlikely to constitute", etc. Progress!
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?
There are 4 boxes to use in the defense of liberty: soap, ballot, jury, ammo. Use in that order. Starting now.
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?
"Does jaywalking justify the death penalty?" "Does walking 10 extra metres make you life so unbearable that you can't continue?"
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.
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.
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.