Slashdot Mirror
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."
Duh.
These are a bunch of guys who have a hard time understanding "shall make no law" and "shall not be infringed"
Do you even lift?
These aren't the 'roids you're looking for.
Duh
This will be viewed as the proverbial "Turd in the punch-bowl". From what I have been able to infer from reading about these various cases, it is NEVER good to tell the judge that he did something W.. Wr... Wrro..... "WRONG"... (props to the Fonz). I do hope this and the other cases are viewed properly and have all the due backlash inferred,(complete refusal to purchase RIAA material, boycotting, picketing etc. etc. etc.).
Life is so easy for those people like me who go to itunes and pay a huge scary 99 cents when we buy a song we like.
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.
grow up and pay the fine when you get caught for actually knowingly breaking the law. How about that for a radical idea?
I have gained this from musicology: That I refuse Sony BMG music downloads, that others only avoid from fear of the law.
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!
Every time a defendant does anything in an RIAA trial, slashdot has to report it? He's already sentenced, it's over. This is just more general bleating about how unfair the award is. There's no reason Tenenbaum would get special treatment.. high damages paid to the RIAA have already held up in court and been denied further appeal..
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.
I'd read somewhere that is was capped at $30k per copyright infringement, $150k for distribution of same.
I should think that, if true, the caps are there for rationality and that they're high to discourage infringement - but should never be used as analogous to a sentencing guideline.
Ray, I get the beef (from reading your info) about the judge being wrong in taking the defendant's statement of liability into account - but further, was it right to suggest those limits to the jury, in any case?
Thanks in advance for answering (and only if my question makes sense or is worthy).
Pathological kinda promises Path + Logical - but instead, you get stuck with pathetic.
I'm glad that the Slashdot editors are adamently in support of something that IMO needs to be supported, but how is filing a motion newsworthy in any way? Now, if the court agrees to the motion, that'd be different ... wake me up then. Otherwise, let people publish this sort of "news" to PRNewsWire and their ilk.
!#@%*)anks for hanging up the phone, dear.
that's the damages, folks.
if this is supposed to be a new economy, how come they still want my old fashioned money?
Shouldn't the fine for everything be exceptionally high?
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.
If the government won't do that because it's ridiculous then I want to know why it's not ridiculous that I can be paying that much for downloading a few songs which are, at best, worth $0.99 each.
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.
don't cut it off www.mgmbill.org
On the cover sheet I see at least two obvious mistakes: a phone number with an extra digit, and the name of the law firm is misspelled. I'm sorry, but this smacks of sloppiness. If I were the judge reading this brief, I would be on my guard for other mistakes, including legal ones.
You must be on crack.
"Humans as a species copy" and "damaging to the progress of mankind" are puerile justifications for this behavior. Not being allowed to rip a CD is going to cause the collapse of civilization exactly how?
People download and distribute music out of greed or convenience. That has nothing to do with the development of Mankind. There are no pre-wired instincts to copy music, movies or art.
I am not in favor of this ridiculous penalty even though the defendant completely screwed up during the trial and offended practically everyone. This law is another example of how the Senate and Congress of the US are purchased by Sony, Disney, Monsanto and others. That's the real issue here...
The middle class is increasingly in chains due to this model and it's only going to get worse.
So, apparently there is a levy on blank media in place in various countries, to the tune of 3% (according to wikipedia) in the US. Assuming this is true, and specifically in the US, is it constitutional to charge someone a tax to cover the costs of piracy and then also be able to take them to court for being pirates?! Isn't that double jeopardy? I haven't seen this defense used in any of the cases I've followed and, in fact, it may be based on incorrect understanding of the law (not a lawyer here.)
IANAL. I did skim part of the brief.
The brief states that between the time Napster came out and iTunes came out, there was no ability for consumers to obtain music legally via download, and that posed a lack of choice for "Digital Natives" who wanted to obtain music that way. The court recognized that period as an "interregnum period" during which I presume (again IANAL) that no one can be successfully prosecuted for copyright infringement for downloading. However because iTunes was encrypted from 2003-2007, the brief argues that the interregnum period should be extended until some time in 2007, when encryption-free digital music was available.
The two main arguments for that are 1) publishers released DRM-free music on CD, so they partially contributed to the proliferation of the recordings on P2P networks and must have been aware of it by 2004, yet continued to sell and promote CDs. (This seems awfully tenuous to me...the publishers were still trying to sell music, and by that point the digital market hadn't quite gotten to the saturation point where they could stop selling CDs, and CDs require DRM-free music), and 2) The brief cites a prior case in which a court recognized that care taken by the plaintiff to "protect" their IP made a fair use defense fail, and that had the plaintiffs failed to protect the IP, fair use defense might have worked. In this case, the brief argues that the plaintiffs did not take enough "care" of their IP because they released them DRM-free on CD, and so fair use defense might work. (To me that seems to be arguing a hypothesis - that the court in the prior case would have ruled differently if the plaintiff had acted differently - rather than arguing a precedent on an actual ruling. Also, the CD format requires DRM-free music, so I'm not sure what sort of choice the publishers had there short of breaking everyone's existing CD players. Digital being a newer format allows for new things like DRM.)
It is not only ripping a CD. It is the song "Happy birthday", it is "winnie the Pooh", and scientific journals. It is the ink for your printer, and posting your kids latest performance on Youtube. It is the ability to bring a guitar to amateur nights in the local pub, and play music you like.
U2's Bono wants to implement a Chinese style control of the net globally, so you may not have seen anything yet.
I think artists should be paid well, and maybe have, as the law originally gave, a 14 year copyright. Now it is over 100 years. Anyway, if you as an artist don't want to share, just don't sell CD's or put it on the net.
don't cut it off www.mgmbill.org
"defendant has filed a motion for new trial, attacking, among other things, the constitutionality of the jury's $675,000 award"
Yeah. Good luck with that.
Just like Jammie Thomas before him, Mr. Tenebaum decided to admit that he broke the law and fight a battle based on the the idea that the law is wrong. We saw how well that worked out for both of them. Now, I happen to agree that the law is wrong and that the actual damages suffered by the entire record indusry as a result of "file sharing" is close to zero. However, the chances of convincing the courts that the law is wrong is also somewhere between none and zero.
Ms Thomas, Mr. Tenebaum and their respective attorneys suffer from the same problem. They thought they were going to out-smart the prosecution. Dazzle them with their brilliance and logic. Hit them with a constutional argument that can't be rebutted. And they ran smack into the brick wall of reality.
The sad unfortunate reality is that judges and juries are technologically illiterate. They are easily swayed by words such as "hacker" and "piracy", easily convinced that anyone using a computer may be up to no good and and they are easily convinced that the fine honest upstanding folks of the RIAA are being robbed by evil file-sharers.
It is unfortunate, but the only defense for these cases is DENY DENY DENY. Admit nothing. Deny everything. The RIAA is in error. The information provided by the ISP is wrong or forged by the RIAA. Force them to provide concrete proof of everything. "Innocent until proven guilty" is meaningless if you freely admit that you did exactly that they say you did.
The damages claimed seem unreasonably high no matter how I see it spun.
Most US people have, at most, 1/4 megabyte/second upload on their home connections (2 megabits/second up). In my experience, compressed songs average approximately 6 megabytes for so-so quality, 8 megabytes for good quality.
Assuming the defendant had their computer sharing 24/7 at absolute maximum speed, every day they would be capable of sharing 3,600 songs (and not use their internet connection for any other purpose). At $1/song, and punitive damages of $675,000, the defendant would have to be uploading for 187.5 days straight at maximum utilization. That's over half a year of not using the computer, no internet outages, no ISP throttling due to uploading, et cetera. That also assumes that there were that many downloads from this single user over such a time.
I've said it before and I'll say it again ...
Think again - unless the following issues are being addressed, piracy will not go away.
Side note: Bad credit and credit cards is what got us into the financial crisis in the first place.
Side note: greed is the other reason that got us all into the financial crisis.
Unless the above issues (and I am sure other people have additional issues) are addressed, piracy will not go away.
Just my .02 us$ worth ...
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!!!
IANAL. IANYourL either. This is not legal advice. ETC.
That's OK. I understand that Internet pseudo-advice is just for having an idea of the legal landscape before hiring a lawyer. A lot of people who respond to Ask Slashdot with "ask a lawyer" fail to understand that the question is really "what should I know to make the most of the first consultation?".
Once you have the video, you can do that to it (under current case law) without permission provided said video is sufficiently original.
That doesn't necessarily stop hosting providers from being complicit in a copyright owner's copyfraud. In May 2009, for instance, YouTube took down a video criticizing The Tetris Company and one of its licensees significantly longer than the DMCA maximum 14 business days after I filed the counter-notice.
What constitutes "sufficiently original" is... variable.
Which underscores the importance of having a good errors and omissions insurance policy to back up your fair use in case of crap like Three Boys Music v. Bolton or Rowling v. RDR Books. The trouble is that it's often cost prohibitive for individuals to get such insurance.
Well it's torches and pitchforks time then.
Help stamp out iliturcy.
And so far, they've been holding anybody who makes a copyrighted work available as any downloadable file (over HTTP, FTP, or any flavor of P2P) you're doing so willingly. Nobody's ever been able to prove that they unwillingly installed such file-sharing programs.
****
So why doesn't some bright person out there make a version of bitorrent that only allows downloading or better yet has a "0" setting for upstream speed and connections? Copying is generally only punishable by a fine of the actual value. It's the "distributing" part that is causing all of the problems for these people. Yet to date, I've not seen or heard of one file sharing program that has this option. It doesn't seem like it would take more than a few hours for a half-rate programmer to add, either.
The fundamental problem here is not that of copying, but the matter of justice in proportion to the crime.
Suppose, for example, we take the RIAA's argument at face value: Because she's shared these 19 songs, the RIAA companies will never make another sale from them. According to the RIAA, she owes them for the lost profits they would have made.
Even were this the case, the maximum cost of these 19 songs is the cost the RIAA paid to the artists to produce them. Here's a hint: it's not very much. Elton John once said that he could write a song in 15 minutes; even were he to charge a lawyerly-like rate of $500/hour, that would only be a few thousand dollars of labor. Even at the extreme end, this is two band-years worth of labor, which hardly costs the label a few million dollars.
In terms of actual damages, she probably resulted in no lost sales. Even before filesharing, I grew up in an environment where people simply taped songs off the radio, and bought the occasional LP. The type of people downloading from filesharing networks are the kind who wouldn't have bought the song no matter how much they like it. What the RIAA doesn't understand is that with the exception of the upper-middle and upper classes, most of America has become accustomed to getting their music for free, without paying a dime. If they can't get it for free, they just do without. It is almost never a lost sale.
What disturbs me most is that a jury could be convinced to grant a judgement of a few million dollars against her without any actual proof of infringement. They have no idea how many - if any - downloads actually occurred.
The society for a thought-free internet welcomes you.
God, the solution is simple...if you could get a large enough group of people to follow:
Stop buying music for a few months...
If the record companies don't get money in, they can't pay the RIAA which in turn can't pay the lawyers...
The whole stack of cards comes tumbling down and consumers make a bold choice in how we are treated.
The shops that sell CDs will fold, the online distribution channels will fail.
Once this is done, let the music moguls back in on OUR terms, not theirs!
This is consumerism, it is in our hand, but we don't do it...Why? Because the majority of us are not affected by this (and I mean non-slashdotters by that) and getting them to agree to a boycott is like asking blood from a stone...A movement to trigger a music revolution is the only way this will change, although this is a socialist idea and most of the US/UK would rather shoot themselves first...
Karem
When all is said and done, nothing changes...
The whole point is that the damages don't have to be proven. You rarely see this, normally in a Court one must prove damages after prevailing on liability. The Media Industry, due to their ownership of Congress, was able to have part two removed. Few other plaintiffs get this "gift". Now, part one was dealt with by using a massive disparity in ability to pay for legal counsel, meaning that even if you had a legit defense, or didn't actually do what they claimed, you still paid the extortion money. "Beautiful Computer you have there....be a shame if anything happened to it". If you can't buy Congress, then you have to prove damages like everyone else. That's a key difference between the punitive damages in BMW v Gore, and RIAA legal extortion. /cynical/
Of Course, in the other cases, it was a corporation paying unrealistic damages to a plaintiff. Here, the big corporate plaintiff is steamrollering little guys. Want to bet which way our current supreme court will go ? /cynical/
It would mean it's yours. As long as you don't breech copyright by, for example, selling a copy and keeping the original, you should be allowed to do what you want with it. And EULA's would be unenforceable unless you're getting something for less-than-cost from agreeing to it.
With the EULA you don't even have the right to use software. If you decompile (not a copyright infringement) you lose rights to it. You can't install it on a new computer and use it. You can lose your rights by BENCHMARKING it. You lose first sale right and right to merchantable quality. You lose the right to a refund and you can lose the right to install AT ALL.
Remember, MS only said they'll release an XP crack for activation. They haven't done so yet.
So with the EULA you don't even get the right to use it. You get contingent right to use.
speeding fines in finland are based on percentage of your last tax return
so if you are poor, your speeding fine is a pittance. but if you are the chairman of nokia, its over $100K
http://news.bbc.co.uk/2/hi/europe/1759791.stm
intellectual property law is philosophically incoherent. it is your moral duty to ignore it or sabotage it
The fundamental problem here is not that of copying, but the matter of justice in proportion to the crime.
Your parent argued that copying shouldn't be a crime because it's essential to human nature. If copying isn't a crime, then that's more basic than the proportions of a potential punishment. So the fundamental problem here is that of copying; yours is a secondary.
Sorry, I just *had* to... ;)
The only thing those two situations have in common is that they involve some kind of copyright infringement.
But don't take my word for it. A Formula One can safely negotiate 3g+ turns at over 100mph, so your Ford Explorer should be able to as well. They're both cars right? Go try that for me.
"When information is power, privacy is freedom" - Jah-Wren Ryel
>But what in the world gives you the right to posses a work just because it exists if the creator/owner prefers that you not see it or own it?
Now, let's make the record straight once and forever:
1. I am the owner of any song, not the song's creator. My ancestors invented words "I", "love" and "you" - and all other words and musical tones. It is impossible to create any human art without using something that my ancestors created.
2. Why do I agree that the creator gets money for the work that he creates, but which I do own as soon as he creates it anyway? Simple: "To promote the Progress of Science and useful Arts", see http://en.wikipedia.org/wiki/Copyright_Clause
3. If the creator is not selling the song, his exclusive right to sell the song does not promote the progress of useful arts. Indeed: those songs that are on sale now - are they the progress or the regress? are they useful art or are they useless art? If even a single one of previously created songs is unavailable to the public, then you can't say that newly created songs are better than that old song, right? That means you can't say there is a progress in arts. That means:
4. If the creator is not selling the song, his exclusive right is void.
I am the owner of any song, not the song's creator. My ancestors invented words "I", "love" and "you" - and all other words and musical tones.
By this logic I am the owner of any house created not the builder or architect. Since nature provided the trees for the wood and they are for the taking right? And all lines that can be drawn have been drawn by my ancestors. I own the blue prints and the physical house. Since all houses have been built from components and pieces that were at one time or another built by my ancestors. In fact I own you since your genetic material was created by my ancestors as much as yours. How does it feel to be both prior art and property?
You're argument is ludicrous and false on it's face!
Why bother