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Constitutionality of RIAA Damages Challenged
NewYorkCountryLawyer writes "In SONY BMG Music Entertainment v. Tenenbaum, the defendant has filed a motion for new trial, attacking, among other things, the constitutionality of the jury's $675,000 award as being violative of due process. In his 32-page brief (PDF), Tenenbaum argues that the award exceeded constitutional due process standards, both under the Court's 1919 decision in St. Louis Railway v. Williams, as well as under its more recent authorities State Farm v. Campbell and BMW v. Gore. Defendant also argues that the Court's application of fair use doctrine was incorrect, that statutory damages should not be imposed against music consumers, and that the Court erred in a key evidentiary ruling."
A link to an old slashdot article, and 2 links to legal documents - one of which is 32-pages long!
Now THAT makes for some interesting reading... well, this is definitely one time that I will RTFA!
It really shouldn't be news that someone is making an argument in their case. Anyone can make an argument - that doesn't mean it's right. And the standards on due process for damages are pretty wishy-washy. So, while I'm not saying this wouldn't be good news if it were ultimately upheld, it's not really news that someone is bringing it up. 99% of all class actions are arguments made by plaintiffs' lawyers that are garbage, which never go anywhere.
Since the cost per song is $.99, then it would be roughly $1.00 per song...
Since the downloader didn't share the files intentionally (software developers ought to make the default NOT share), and the fact that there is ZERO evidence that the files shared were actually downloaded, and since we know that "making available" isn't an offense (otherwise the RIAA would have to sue itself out of existence as there would be no pirating without them producing the content in the first place), then it would $.99 per song MAXIMUM fine...
I think GP was talking about they judges. They can't understand basic phrases like "shall not" so they allow grossly unconstitutional laws to remain in effect instead of striking them down. Of course, there's always some asinine reasoning of why such and such is an exception to constitutional limitations, but they are usually BS reasons.
Three days from now?? Thats tomorrow!! ~Peter Griffin
If the punishment for breaking the law is unconstitutional (cruel and unusual, excessive fines, etc) then no, you shouldn't just deal with it. In fact, levying such fines is illegal, and those pushing for them should grow up and deal with it.
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According to 17 U.S.C. 504 (http://www.copyright.gov/title17/92chap5.html), the minimum is $750 per work infringed while $30,000 is the max. However, if the infringement is willfully committed it jumps to $150,000 but if the infringement is committed "innocently" (naively might be a better word) then it drops to $200.
What is really neat is the presumption of willfullness under section 3 when the violator "knowingly provided or knowingly caused to be provided materially false contact information to a domain name registrar, domain name registry, or other domain name registration authority in registering, maintaining, or renewing a domain name used in connection with the infringement."
it takes two different cases to get two circuits finding the opposite of one another. When that happens, the Supreme Court *MUST* hear the case(s) to resolve the discrepancy. It is one of only a few things that can force the Supreme Court to hear a case. Other cases are heard at the court's discretion from among those appealed after decision at the circuit level. Thus do constitutional lawyers decide who makes a good test case. The goal is to find a client with circumstances that will get the circuit to rule differently than another circuit, even if it's on a tangential aspect of the case. It's like hacking a bit.
"If still these truths be held to be
Self evident."
-Edna St. Vincent Millay
Except that punitive damages is one of the select few things you cannot get rid of in bankruptcy. that means that unless this person is well above the median income they will never pay this off in their lifetime and no matter how good a job they get they will be living in poverty for the rest of their life.
Seriously if downloading one song can have you paying out, for example, $10,000 then surely speeding which can result in death should have a fine of $100,000 at the very least.
Please don't give any legislators new ideas. My last spedding ticket for 10 over cost me $300. I expect that to rise by the next time I get a ticket already.
In all seriousness though, I have thought about the law in the terms you mention often and have been surprised. For instance, I remember the first time I saw a sign that said $1,000 for littering (I live in California). At first I thought nothing of this until I later saw a sign, in the same town, that said $271 fine for running a red light at a busy intersection. Now, This was years ago so the numbers have probably changed but I remember being shocked at this discrepancy. Running a red, which could cost other drivers significantly (as in multiple thousands of dollars of damage as well as potential death) had a lower fine than throwing my straw wrapper out my window which, at worst, could what...kill a bird that was to stupid to tell paper from food and choked on it? Welcome to modern America, where the law doesn't make sense and nobody seems to give a damn. =)
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RIAA/MPAA's classic settlement offer is whatever-you-have plus a dollar
Bull. Their settlement offer is almost always a few thousand dollars, tops.
IANAL and IANAAmerican, but it baffles me that plaintiffs don't have to prove actual damages. It seems that they not only don't have to substantiate the amount of damage,
Consider this example: Mal Icious, the dastardly copyright infringer makes counterfeit Prada bags and sells them on the streets of Manhattan for cash. He never files a tax return, though he rakes in a hundred thousand dollars a year. Prada catches him, buys a bag to prove that he infringed their copyrighted design, and sues...
Under your theory, they can collect a hundred bucks for their one provable instance of being actually damaged, while Mal gets away free by virtue of destroying (or not keeping) all of his sales records.
That's why plaintiffs don't have to prove actual damages, if they opt for statutory damages. OTOH, if they can prove damages that are much higher than the statutory damage limit, they go that route - see Apple v. Psystar, for example.
they don't even have to prove there is any damage in the first place.
Not quite - they still have to prove that there was infringement, such as that one counterfeit bag I mentioned. The damage is that the infringer trespassed on the plaintiff's right to copy and right to distribute.
Wouldn't it be fair to have them produce statistics that say that music that is pirated more is sold less? Or to have them produce say five witnesses who testify that they didn't buy a song because Tenenbaum uploaded it?
No, because Congress intentionally made it so that plaintiffs don't have to jump through hoops in that way. They do have to prove the guy infringed... it's then his burden to prove that there were no damages, which could then result in the jury awarding the minimum damages - a slap on the wrist, essentially. Neither Tenenbaum nor Thomas ever did that, though... they just claimed that the plaintiff has to prove damages, and when the plaintiff didn't, they claim that any amount of damages is therefore unreasonable. That's not in the statute, and it has lost every time.
Ray.....was it right to suggest those limits to the jury?
No in my opinion it was error. There was no basis for allowing anything above the $750 per infringed work minimum, and only the judge rather than the jury could have awarded less, so there was nothing for the jury to decide.
Ray Beckerman +5 Insightful
Sure, he should pay a fine. One in the order of, say, $675, not $675000.
Under Supreme Court guidelines, it should have been more along the line of $30 or $40.
Ray Beckerman +5 Insightful
To the best of my recollection (NYCL, a little help?), the constitutionality of the damages has never been challenged.
Only one such motion has been made, in Minnesota, in Capitol Records v. Thomas. That motion is pending. This motion also makes arguments the other one had not made, and makes the due process argument a bit more clearly than the other one had, IMHO.
Ray Beckerman +5 Insightful
Your arguments are totally circular. Yes the statute could be construed to authorize numbers vastly disproportionate to the actual damages, as the RIAA argues would be peachy keen (except when they're defendants in which case they raise holy hell), but the Supreme Court has consistently held that the Constitution -- which takes precedent over the statute -- does not permit such a construction. I guess you, like the RIAA lawyers, have forgotten about the Supreme Court's rulings.
Ray Beckerman +5 Insightful
Point of Information (http://en.wikipedia.org/wiki/Point_of_information) regarding previous post:
Point of Order - A point of order is a matter raised during consideration of a motion concerning the rules of parliamentary procedure. (http://en.wikipedia.org/wiki/Point_of_order)
They obviously need to read RFC2119 then...
For those too lazy to look that up... it's the RFC that defines phrases such as "SHALL [NOT]" (as in "implementations SHALL NOT do X").
$ make available
When that happens, the Supreme Court *MUST* hear the case(s) to resolve the discrepancy. It is one of only a few things that can force the Supreme Court to hear a case.
No, it isn't mandatory that they resolve the circuit split. It is often convenient when they do, but it is not mandatory.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
Careful, NYCL.
"Indie" is what "alternative" was in the '90's. Both originally meant homegrown music from independent "mom and pop" record labels until the major labels realize how "cool" it is to be different, then they hijack those phrases and apply them to their mass-produced crap.
I guess the only honest way to say it is "Music of non-RIAA/ASCAP artists".
The damages are not awarded at $1/song, nor are the damages punitive. Rather, the damages in this case are statutory.
The damages are award as per USC 17 504(c)(2), under which, if "the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000." And, that is per infringement.
Perhaps you should actually learn about copyright law before making statements about it.
There is no "-1 offended" or "-1 you don't agree with me" mod options for a reason.
But does anybody actually think this has a chance in hell? I mean we have already seen that the court doesn't give a flying shit about the constitution, thanks to them allowing congress to keep hitting the snooze alarm when it comes to copyrights. As it is now something written today won't be out of copyright until your grandkids are getting old, so who honestly thinks they are gonna do the right thing?
Sadly the courts, like every other part of our system, is completely broken, probably irretrievably. Too much money and power in the hands of too few have made the whole thing nothing but a sham. Both of my boys are about to turn 18 and both refuse to vote. They simply refuse to play a part in what is now obviously a sham, with one rich corporate suckup VS another. Hell the Pepsi challenge gave us more choice than Repubs vs Dems anymore, as the only difference is whose booty they kiss. In both cases they couldn't give a flying shit about the people, the constitution, or anything else that doesn't line their pockets or make their corporate master happy. Short of revolution I just don't see things getting any better. The entire process is just too corrupt.
ACs don't waste your time replying, your posts are never seen by me.
I'd like to know how, when I search for "scatterbrain", which songs with that name are copyrighted, copylefted, or public domain? There are hundreds of songs with that name, all completely different. How is a downloader supposed to know whether or not he's infringing?
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I do vote. And unless the guy is REALLY well known to me I don't vote Democrat or Republican anymore. I look for the third party candidates and research and vote for them instead.
We got into this mess by voting Democrat or Republican. It's time for real change. Not a TV spot telling us about change.
Has Comcast disconnected your Internet account? Same here. You can read about it at http://comcastissue.blogspot.com
I used to believe like you Mr. Beckerman, until the court said hitting the snooze alarm on copyrights was okey dokey. If limited time can me "forever minus one day" then pretty much anything in the constitution can mean whatever. After all you don't get much clearer than limited time, and even the most common man wouldn't think centuries equals a limited time, so where does that leave us?
This is why I can't get my boys to vote. It is because it doesn't matter whose face is sitting in the office or on the bench, nothing ever changes. The corps get whatever they desire, the common man gets treated worse each passing year, and if you do try to fight you get the courts saying it is all okay. See warrantless wiretapping, eternal copyrights, DMCA, etc for examples.
So while I would like to have faith in the system, or give the kids a reason to vote, honestly I haven't seen anything but the same old rotten apples, the same old corruption, for decades. What would you say to the youth that think the entire system is nothing but a scam? Because I can't honestly point to anything in decades that the common man actually got ahead when faced with a mega corp. Hell the last one I can think of is old Teddy Roosevelt busting the trusts, what? A hundred years ago? For the past 30 years I can't really think of anything where common sense and decency won against unlimited funds and bribery.
So while I hope you are right I'm betting in the end they will knock it down to a "more reasonable" 400k and that will be the end of it. Either way the corps will win and ultimately We, The People will lose.
ACs don't waste your time replying, your posts are never seen by me.