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."

Comments

Good luck on that one

[larry bagina]

These are a bunch of guys who have a hard time understanding "shall make no law" and "shall not be infringed"

Re:Good luck on that one

[EzInKy]

Not quite the same, but the U.S. had a fairly sane copyright registration system before signing on to Berne. It just makes sense that people who care about protecting their works would register and people who don't, won't.

I have gained this from musicology

[sakdoctor]

I have gained this from musicology: That I refuse Sony BMG music downloads, that others only avoid from fear of the law.

Re:still flogging this old dead horse?

[moz25]

Sure, he should pay a fine.

One in the order of, say, $675, not $675000.

Re:still flogging this old dead horse?

[selven]

Grow up and pay the $675,000 fine for sharing 30 songs?

Re:Obligatory...

[AuMatar]

Thats what an appeal is. You list a large number of things you think the judge did wrong, and ask a higher court to overrule them. This is everyday stuff here.

Re:still flogging this old dead horse?

[phantomfive]

It's not the fact that a 'pirate' got punished that is at issue here, it's the fact that the penalty is so large it will probably push the defendant into bankruptcy; it is a penalty significantly larger than the damages suffered by the record companies, and perhaps most importantly, it is a penalty that was designed to punish an entirely different class of pirates (commercial pirates who manufacture and widely distribute copies of music for a nice profit. In that case the profit motive is large, so the deterring punishment should also be large).

Personally, I think people should pay the artists for their work, they should pay the recording industry for their work, and if the music isn't worth 99 cents to them, they shouldn't get the music. But we as a society shouldn't destroy someone financially just for downloading a few songs. The punishment should match the crime, which in this case was small.

singles sell for 99 cents to $1.50.

[swschrad]

that's the damages, folks.

Re:singles sell for 99 cents to $1.50.

[nsayer]

Take your straw-man elsewhere, please.

Shoplifting and copyright infringement are not comparable. If you shoplift a pair of pants, the store cannot sell them to someone else. The store takes a hard loss of the cost they paid to acquire the pants. Making a copy of a music file, by contrast, does not cause any direct damage to someone selling copies of that file, since they still have the undiminished ability to continue selling copies. That is, if you download a copy of Gin and Juice from bittorrent, the "inventory" in the iTunes music store of that track does not magically decrement.

Re:singles sell for 99 cents to $1.50.

[uglyduckling]

No, you're wrong. I buy tracks on iTunes and Amazon every day, which I could choose to illegally download or rip from a friend's CD. I even borrow a friend's iPod sometimes, listen to some tracks then go and pay to download the ones I like when I could quite easily copy the (DRM free) tracks straight off the hard drive. I believe in doing my best to comply with the law and pay people for the work they produce. I also believe (and this is not a contradiction) that copyright terms should be massively shortened, probably to no more than 20 years. The most effective answer to piracy is not more litigation, but to ensuring that music and movies are available cheaply and conveniently through legitimate channels.

Re:singles sell for 99 cents to $1.50.

[mcgrew]

If I shoplift a CD, the store is out the price it paid for the CD, and if caught I will have a criminal misdemeanor charge and pay a few hundred dollars.

If I infringe copyright on that same CD nobody loses anything, I have no criminal charges, but I'm liable for hundreds of thousands of dollars.

Logical? Rational? Not to me it isn't.

Re:Argument != Ruling

[phantomfive]

This particular argument is news because

A) It is an area of law that a lot of us care about and
B) Because this is an argument many of us have wished had been made before, but until this time (as far as I know) it hasn't. So we want to pay attention to this case to see how it turns out.

If you don't like the story, you don't have to read it.

Re:still flogging this old dead horse?

[vux984]

grow up and pay the fine when you get caught for actually knowingly breaking the law. How about that for a radical idea?

When I speed the fine is $350, when I let a parking meter run out the fine is $30. Were I to get into a fight and punch someone (misdemeanor assault) I'd face 2 weeks in jail and and $500 fine. Were I to steal a car I'd be facing maybe 1 year in jail, but in all likelihood would serve at most a couple months as a first time offender.

These are all reasonable punishments.

We're I to torrent my favorite artists discography (uploading it in the process, and thereby infringing copyright on several tracks), I would be fined... $675,000. Say what now? That's more than my house, cars, and everything in them are worth altogether. LOTS more. How is that reasonable?

I have fuck all sympathy for those who not only pirate music instead, but when they get caught red handed they act like they are being persecuted.

They ARE being persecuted. They commited a non-violent crime, for neglible personal benefit (they gain a few songs which can legally be obtained by borrowing a friends CD, recording them off a radio, or purchased for under a buck each), and which caused no real measurable harm to the copyright owner (at most the infringment in this act deprived them of a few hundred dollars due to lost sales... and that's highly debateable).

So sure I can see it being on par with shoplifting or something... a moderate fine 10 to 100 times in excess of the value of the items infringed to deter people from doing it seems reasonable. A few hundred to a few thousand dollars... sure no problem.

After all its pretty petty offense against society.

Fining them an amount that's greater than the value of their house, cars, and all their possessions seems a bit over the top for downloading a few albums.

Would you also support law that made loitering is a life sentence in maximum security prison? Making a rolling stop instead of coming to a complete stop is punished with hanging?

Why EXACTLY do you support bankrupting an entire family over p2p sharing a Britney Spears album?

A perversion of law

[viking80]

Trying to fight RIAA in the courts is a loosing effort. RIAA pay politicians handsomely, and generally gets the laws they want. If they temporarily loose in court, they just pay to have the laws changed, and than they win. The draconian penalties as well as the never expiring rights RIAA enjoy is an amazing perversion.

The only thing that is worse is that this can happen in a democracy, and few care.

If you argue "well, just pay the $0.99 on iTunes and stop whining" you misunderstand culture fundamentally. Humans as a species copy. From infants looking at their parents to musicians, architects, engineers and philosophers listening to others, we refine and produce. This is the essence of human culture. That companies can monopolize this flow is damaging to the progress of mankind.

Re:A perversion of law

[nsayer]

We in the modern west have a problem, and I, for one, do not see an easy solution.

It used to be that making copies of creative works was a physical task that was the domain of professionals. As such, enforcing copyrights was relatively easy.

As soon as copyrightable creative works were representable in digital form, and computers became capable of copying them trivially, that changed utterly.

Copyrights exist so that creators of creative works can be given an incentive to create. Their creations, on the whole, enrich society. That's the basic copyright bargain: You write good books and we, as a society, will insure that you can make a living doing it. Of course, another part of the bargain is that your monopoly is for a limited time - that it will eventually fall into the public domain. Congress, in its wisdom, has been eroding that on a regular basis, but that's a whole different discussion.

In an era where digital representations of copyrightable works can be freely copied (DRM doesn't count - breaking the DRM is largely equivalent to scanning in and OCRing a book - something you have to do once, but then the work is disencumbered), however, the idea of being able to police the copying so that authors of creative works can be fairly compensated becomes impossible.

Notice that I said fairly compensated. That means that consumers of creative works (readers of books, listeners of music, watchers of movies and TV shows) pay commensurate with their consumption, and authors get paid commensurate with the relative rates of consumption.

DRM is an attempt to retain control over content copying. Alas (for the ??AA), it is the exact equivalent of an ostrich attempting to control predation by burying its head in the sand.

The Copyright system no longer functions properly because conditions in the world have changed irrevocably. I don't have an answer as to how to fix it. Nobody does, because if they did, things would be different.

Re:A perversion of law

[cpt kangarooski]

It used to be that making copies of creative works was a physical task that was the domain of professionals. As such, enforcing copyrights was relatively easy.

A minor quibble: Making copies using state of the art methods was the domain of professionals. Most people didn't have their own printing press, but if you were literate and had ink, pen, paper, and time, you could still copy a book by hand. Even today, in fact, you could not compete with a CD or DVD factory if you were merely armed with a generic writable drive and recordable disks. But the modern techniques that are in the hands of ordinary people are now sufficiently good -- particularly those involving network file sharing -- that enough of the gap is closed.

Copyrights exist so that creators of creative works can be given an incentive to create. Their creations, on the whole, enrich society. That's the basic copyright bargain: You write good books and we, as a society, will insure that you can make a living doing it.

But now we've moved beyond quibbling. Copyrights exist to serve the public interest. Part of the means by which they work is to give authors an additional incentive to create and publish beyond those which are naturally present. Creation and publication are both important, as unpublished works do so little good for society that they may as well not exist. And copyright is merely an economic incentive. Other incentives include fame, art-for-art's sake, and even money unrelated to a copyright (e.g. selling original works, rather than additional copies; artistic labor as a service like any other). Sometimes those other incentives will be sufficient, as is the case for all works created before copyright existed, and for many works since. When no additional incentive is needed to encourage the creation and publication of works, it would be wasteful to grant a copyright; why pay for the cow, if you get the milk for free?

Additionally, copyrights are merely a sort of monopoly. At the expense of some waste in transactional costs, they act as a lens or funnel, focusing whatever copyright-related economic value a work has on the copyright holder. If the work is economically valueless, however -- like the typical Slashdot post -- then the copyright is valueless too. The author gets nothing other than a useless exclusive right.

An author who makes a work that flops may get a copyright, but society will not promise him a living. It's all up to the whims of the market. The vast majority of authors don't make a living based on their copyrights, in fact.

Notice that I said fairly compensated. That means that consumers of creative works (readers of books, listeners of music, watchers of movies and TV shows) pay commensurate with their consumption, and authors get paid commensurate with the relative rates of consumption.

Why is that fair? More importantly, why do we care? The goal of copyright is to serve the public interest, remember; it needn't be fair. We want as many works created and published as possible, for as few restrictions on the public as possible, in both duration and scope. So long as the public interest is maximally satisfied, why should our copyright policy care whether authors live comfortably or shiver in garrets? We should have social welfare to help the poor, whether they are authors or not. Not copyright, which is more like giving lottery tickets to only a small subgroup of people.

Re:A perversion of law

[cpt kangarooski]

The point is that with no copyright, how is any author ever going to earn any money? As soon as a new book was published, anyone could copy it and sell it without the author getting a penny.

First, I don't recall saying that we should abolish copyrights, although that is a legitimate option. In determining whether to have copyrights, and how much copyright to have, if any, we should look only at the public interest. It is in the public interest to have as many works created and published as possible, and it is also in the public interest for the public to suffer no, or the fewest, shortest-lived restrictions on what they can do with the work (a book I can only read is less valuable to me than a book I can read and make copies of for my friends, for example). If granting some level of copyright will increase the number of works created and published, benefiting society, and will increase the amount of restrictions on the public, harming society, then we should do it if the benefit outweighs the harm, and not do it if the opposite is true. The ideal copyright law will be the one that produces the greatest public benefit for the least public harm. Unless there is literally no possible copyright law that is better than none at all, copyright law should exist in some form or another.

Whether that law is ideal for authors, however, I don't care. It might be great for them, it might be lousy for them, but what matters is the public interest.

I fail to see why I should support a law that is bad (or at least less than as good as it could be) for society, merely to help a special interest group make money through monopolies. It's not as though this is a civil rights issue, where we must protect a minority against the depredations of the majority. Right now, it seems to be the opposite, in fact!

Second, there are ways for authors to make a living and write books. Remember, copyright even as it exists today, does not guarantee that an author will earn any money as an author. The most it does is guarantee that if a work has copyright-related value above what might be eaten up by transactional costs, that the copyright holder can get that value for himself. If a book is a flop, the author has a worthless copyright. Most authors are flops, as it happens. Lots of books get written all the time, and are rejected by publishers because they're lousy books, and the publisher doesn't want to waste money on them. The author is left monetarily poorer for having written the book instead of doing something else to make money. Of books that are published, very many never turn a profit, or only turn a very modest profit (which isn't enough for the publisher), and while the author isn't left absolutely penniless, he still would've made more money if he had spent that time working at a regular job instead of writing. Yet, for all this, we still get books somehow.

Books that are a commercial success are pretty rare. Books that are a lasting commercial success (how many of the bestselling books from 1910 have you read? What about from 1960?) are as rare as winning lottery tickets.

Whether because of the monetary promise of copyright, even though it is usually unrealized, or because of other reasons -- fame, just wanting to tell a story, etc. -- authors continue to write books, usually without being professional authors that do nothing other than write, because even today it's very very difficult to make enough money as an author to do so.

We had plenty of authors before 1978, when copyright terms were considerably shorter than they are today. Have we gained more than we've lost by increasing the scope and duration of copyright? We had lots of authors before 1909, when copyrights were shorter still.

In fact, most copies of a given book only sell when first published in a particular medium. Publish in hardback, and you'll get most of your sales within anywhere from 6 to 18 months. Copyright could last forever minus a day, and you'd probably never make as much money to the end of time as you did

Re:still flogging this old dead horse?

[Jahava]

Personally, I think people should pay the artists for their work, they should pay the recording industry for their work, and if the music isn't worth 99 cents to them, they shouldn't get the music.

So let me begin with: Opinion Alert! The following post is pure speculation and opinion, but done with the utmost sincerity!

I agree with your point, but I'd like to note something that I believe to be true, namely that the only reason we can pay 99 cents for a movie is due to an industry adaptation that has been motivated in a large part by that very piracy. Prior to digital piracy pioneers like Napster, getting a single good song was not really an option. You had to buy an entire pricey CD. Downloading music legally also wasn't an option; you had to go to a store. The music industry created and funded the marketing, hype, publicity, content, and talent necessary to successfully Make Us Want Something, then failed to provide it at any reasonable price.

It is my belief that piracy is many things, among them a consumer movement in reaction to an unnaturally-imbalanced industry. Pirated music has, over the last fifteen years, frequently been a better product than that produced by the music industry. It was downloadable, accessible, and lacked both DRM and license management shenanigans. It was a pure and simple solution to an otherwise unsolvable problem: a consumer movement!

Now, that doesn't make it right or ethical, but it doesn't make it evil either. The recording industry dragged their heels and did their very best (as they still are) to hinder the simple and fair distribution of their product, when that was exactly what consumers wanted. In response, consumers resorted to illegal activity, and most are better off for it.

The Napster of the past is what recording industries should have established years prior. A very significant impetus behind the current state of consumer-oriented legal music sharing like iTunes was (and is) perceived losses due to the piracy front. And look what we have now ... split albums, downloadable content, DRM-free songs ... It's done its share of good and then some. Piracy is forcing a hand that is using its own entrenched power to remain still, and the world is better for it.

Many people out there have pirated a significant share of music, and bought a significant amount as well. As legal avenues open (Amazon MP3 is great!), their usage of piracy has definitely declined. Nobody feels good about depriving someone of their just due, but it isn't always a bad thing to do so. Sometimes an illegal act is the only counterweight that one can provide.

Re:still flogging this old dead horse?

[A nonymous Coward]

So what is the punishment for exceeding constitutional limits on the punishment meted out?

You see, that's the problem here. Many other punishments have been ruled unconstitutional for being excessive, including fines and jail time all out of proportion. It's blatantly obvious to most people that millions of dollars for sharing music is excessive.

Let's suppose the appeal wins the day and the fine is declared excessive. Do you think any of the RIAA executives are going to be punished for all the previously collected fines? Do you think that's fair? Do you think they perhaps ought to grow up and pay the fine for actually getting caught?

Re:still flogging this old dead horse?

[PopeRatzo]

There is a difference between fair use and pirating.

And there is a difference between sharing mp3 files and pirating.

Re:still flogging this old dead horse?

[PopeRatzo]

they should pay the recording industry for their work

In a digital age, exactly what is the work of the "recording industry"?

It should be re-named the "collection industry" because all they do is collect money from the work of others.

Re:still flogging this old dead horse?

[reverseengineer]

The argument involved in bringing up the court cases cited in the summary is that the damage award involved in this RIAA case is unconstitutional, as it violates part of the Fourteenth Amendment: "nor shall any State deprive any person of life, liberty, or property, without due process of law;". The decision for BMW of North America, Inc. v. Gore laid out a set of guideposts for whether punitive damage awards are in violation of this clause:

1. The degree of reprehensibility of the defendant's conduct
2. the ratio to the compensatory damages awarded (actual or potential harm inflicted on the plaintiff)
3. Comparison of the punitive damages award and civil or criminal penalties that could be imposed for comparable misconduct.

In my non-lawyer opinion, if awards were overturned in the Gore and Campbell cases under this rationale, there is a far stronger argument to be made here. The behavior of both BMW of NA (was selling slightly repaired cars as "new") and State Farm (had a secret internal scheme to cap payouts) could more reasonably be asserted as reprehensible than that of a music downloader. From a "ratio" standpoint, if you consider the actual damage from illegally downloading a song to be 99 cents as the parent implies, then for the 31 songs involved here, the ratio of punitive to actual is over 20000 to 1, far more than the 1000 to 1 in Gore and 145 to 1 in Campbell. And those were of course awards meant to have punitive effect on gigantic corporations, not to destroy the finances of a single private citizen. From a "comparable misconduct" standard, the $675,000 award is not in the same universe as the penalties for petty larceny if Mr. Tenenbaum had merely shoplifted physical copies of the same music.

Re:Argument != Ruling

[NewYorkCountryLawyer]

This particular argument is news because A) It is an area of law that a lot of us care about and B) Because this is an argument many of us have wished had been made before, but until this time (as far as I know) it hasn't. So we want to pay attention to this case to see how it turns out. If you don't like the story, you don't have to read it.

The RIAA would not like the world to know about these arguments and defenses. Isn't that reason enough to want to learn about them? :)

Re:still flogging this old dead horse?

[suomynonAyletamitlU]

We should also point out the degree of culpability the consumer actually should be considered to have.

1) Did they create the method by which the music was ripped? No, this is done with available tools for which the cost of entry is negligible or zero, and which has no particularly greater barriers to entry than installing a new text editor.
2) Did they create the method for distribution of the music? No, they neither had any hand in the creation of bittorrent, nor were they hosting a tracker nor otherwise going out of their way to create new infrastructure to ease the distribution. Again, the barrier to entry to gaining access to this method is no higher than downloading any other software.
3) Did they create or do they maintain or manage the media (read: the internet) on which the distribution is taking place? No, they are using someone else's network, which for various reasons isn't well monitored and arguably should not be.
4) Did they create any other tool at all or in any way invest more than trivial effort? No, they did not, in fact what effort was needed to create this system was fairly distributed across a number of other people, and virtually none of the offenders--whether they have been prosecuted yet or not--had any hand in it at all.

I'm not being silly. The effort anyone puts into downloading a torrent--legal or not--is insignificantly small. To try my first slashdot car analogy, if driving with the windows down and the AC on was illegal, they'd be asking the judge to revoke your license, impound your car, repossess your house, and send your kids to child services, even though it just takes the flick of a couple switches to do it, and there are reasons why you'd want to, and all the cars are shipped capable of doing so.

If the record companies don't want us to create so many digital copies, maybe they shouldn't be using technology they know can be copied, and they should just hold more concerts and go back to vinyl or something.

Re:Thanks slashdot

[PopeRatzo]

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, they don't even have to prove there is any damage in the first place.

This is the crux of the whole deal as far as I'm concerned.

Face it, this entire RIAA scam is little more than an effort to squeeze the last scraps of wealth from an "industry" that is past it's expiration date.

There is no longer any need for a "recording industry". It's only purpose today is to skim value from the work of other people. What the RIAA is trying to do now is put together some golden parachutes for record company executives. If I skip through the music I've added to my collection in the past several years, the thing that jumps out is that the overwhelming majority of it was purchased directly from the artists. I don't think I've purchased a single bit of music from any of the members of the RIAA since at least 2004. I won't put money into their hands. I've got a few collections of things that I was given by other people that are from big labels, but I wouldn't have bought them anyway. Yes, they've lobbied congress to extend copyrights, but it's going to become harder and harder for them to keep extending copyright beyond the length of a human lifespan. Eventually, the music industry will fade away, just like there are no longer factories making wax cylinder recordings.

So I don't have any records by Lady Gaga (although I have a ringtone of Eric Cartman singing a Lady Gaga song) and I have absolutely nothing in my collection made by any contestant on American Idol. And I don't have anything by any of the made-to-order industry-created phenomena that seem to populate the record charts these days.

It's not that hard to be an avid music fan these days and never, ever put a penny in the pocket of any of the people behind the RIAA.

Re:still flogging this old dead horse?

[BigSlowTarget]

Somehow when its time for the CRIA/RIAA to pay up in Canada I doubt they will want to use the same mathematics.

Say all the copyright fans do recognize that those copyrights are government monopolies granted from society for the benefit of society, right? There is no self evident natural right to not have your stuff copied.

Re:If the fees are high to discourage people...

[shentino]

Speeding tickets are a gold-mine for municipal budgets.

If you have a cash cow, you milk it gently. Not rip the udders clean off.

Re:If the fees are high to discourage people...

[selven]

Enjoying a song without permission = $22,500
Growing a plant without permission = 5 years
Illegally disabling competition in a multibillion dollar market for years = a few days of profit

I think there's an inverse relationship here.

Re:still flogging this old dead horse?

[jedidiah]

...the old "he asked for his day in court therefore he should be tortured to death" argument.

Desiring to exercise your legal rights should never be a cause for a punishment. Otherwise then they aren't rights at all.

While you are at it why bother with lawyers and demand letters? Just let the record companies hire armed thugs and ransack people's houses.

And y'all believe this is gonna stop piracy?

[MadMaverick9]

I've said it before and I'll say it again ...

Think again - unless the following issues are being addressed, piracy will not go away.

1. DVD technology: a dvd has a region code so that a dvd bought in one region can not be played in another region (unless you use an illegal hacked player). While an .avi file can be played anywhere.
2. Payment methods: not everybody who wants to buy movies, music or software has a credit card. If you want everybody to buy your product, then you (the company) need to provide payment methods that cover all needs, incl. cash only. Another example: somebody has enough credit in their paypal account to buy a product, but they still can not buy the product they want, because at the end of the purchasing process, one is still required to enter a credit card number, despite sufficient credit in your paypal account. This example assumes the paypal account is not linked to a credit card and/or bank account. I do not know if this is an issue with paypal and/or the company selling the product, and I don't really care. It's a problem - and if you (the company) do not address it, piracy will continue.
   Side note: Bad credit and credit cards is what got us into the financial crisis in the first place.
3. Cost: a newly released dvd cost around 28 - 40 us$. How much does it cost to produce the dvd: probably one us$ or less. It doesn't matter, the question is: where is the bulk of the money we pay for a dvd going? To the artist? Probably not - but it should go to the artist.
   Side note: greed is the other reason that got us all into the financial crisis.
4. Business model: you do not actually buy software - no - you buy the right to use it. Who came up with this idea??

Unless the above issues (and I am sure other people have additional issues) are addressed, piracy will not go away.

Just my .02 us$ worth ...

Re:Levy's on blank media in the US (and elsewhere)

[Cassini2]

Essentially, your argument applied in Canada, was used in Canada, and the people won at the Supreme Court. As a result, downloading files for personal use is largely legal in Canada. Uploading of files is still a grey area.

Then some artists pointed out that the Canadian music industry hasn't been properly paying royalties on some of the CDs it has been selling. In fact, they have been selling CDs without a proper contract in place at all. As such, a bunch of the large Canadian record companies are on the hook for billions in liabilities.

Effectively, in Canada, the recording industry has been violating it's own anti-copying laws. Things are very different in Canada, as opposed to the U.S. The recording companies are being chased by the musicians! For non-payment of royalties!!!

Re:still flogging this old dead horse?

[Anonymous Coward]

Which if I sold my car, my video game systems, and the computer I am writing this on, is still about twice the amount of money I have. Welcome to being poor.

Re:If the fees are high to discourage people...

[Joe Mucchiello]

Children don't walk to school any more. There are too many boogiemen on the streets. Sad, but true. How will today's child admonish their children about how tough they had it. They don't even walk to school uphill, in the snow, one way.

Re:Let me be the second!

[tehcyder]

Both of my boys are about to turn 18 and both refuse to vote.

Well that's really going to help.

Re:Let me be the second!

[toddestan]

I would think it would be more effective to either turn in a blank ballot, or do something like write in Mickey Mouse(*). By simply not voting, the assumption is that people are lazy and/or don't care - by taking the time to vote but not actually filling in a valid ballot shows that this is not case. Look at the current situation, the numbers for "didn't vote" has trumped the winning candidate in any election in recent history, yet nothing seems to be changing because of this. Can you imagine what would happen if Mickey Mouse even got 5% of the vote?

(*) see, on topic!