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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."
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.
Sure, he should pay a fine.
One in the order of, say, $675, not $675000.
see a Text Widget
Grow up and pay the $675,000 fine for sharing 30 songs?
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.
I still have more fans than freaks. WTF is wrong with you people?
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.
Qxe4
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.
Qxe4
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.
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
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?
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
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.
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.
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?
Infuriate left and right
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.
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.
"FDA staff reviewers expressed concern about the number of patients who were left out of the study because they died."
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
how is filing a motion newsworthy?
There have been ~40,000 cases; this is only the 2nd time such a motion has been made. The first such motion is pending.
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
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? :)
Ray Beckerman +5 Insightful
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.
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.
You are welcome on my lawn.
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.
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
The 'making available' argument was aired in the Thomas case (although her counsel didn't bother to bring the precedents to court) and the jury instructions were that making available was sufficient to found liability
The judge in the Thomas case reversed himself on that, realizing that "making available" was NOT sufficient to find distribution. Slight detail you seem to have overlooked.
Ray Beckerman +5 Insightful
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.
...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.
A Pirate and a Puritan look the same on a balance sheet.
It'll be a pirated copy.
Sure it would, but I'd feel fully justified in buying/owning/viewing it as there is no legitimate way for me (in the US) to purchase a copy.
The courts agree too. For example, Am. Geophysical Union v. Texaco, Inc., 60 F.3d 913, 931 (2d Cir. 1994) ("If the work is 'out of print' and unavailable for purchase through normal channels, the user may have more justification for reproducing it").
http://www.digitalmedialawyerblog.com/2009/12/sony_bmg_v_tenenbaum_judge_pro.html/
This sig intentionally left blank.
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".
Weird. That really, really does not sound like "innocent until proven guilty" to me... Oh, also, we tend to like the phrase "extraordinary claims require extraordinary proof", but apparently the courts will accept a plaintiff's extraordinary claims, with no proof?
I feel fantastic, and I'm still alive.
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.
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.
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.
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.
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.
Wooden Nickelback?
(There is supposed to be a Sarcmark® here, but my $1.99 check hasn't cleared, yet...)
Well that's really going to help.
To have a right to do a thing is not at all the same as to be right in doing it