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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
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.
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.
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
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.
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.
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.