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RIAA Insists On 3rd Trial In Thomas Case
NewYorkCountryLawyer writes "Not satisfied with the reduced $54,000 verdict which the Judge allowed it in Capitol Records v. Thomas-Rasset, representing approximately 6500 times the amount of their actual damages, the RIAA has decided to take its chances on a third trial, at which it could only win a verdict that is equal to, or less than, $54,000. Since a 3rd trial in and of itself makes no economic sense, and since the RIAA's lawyers inappropriately added 7 pages of legal argument to their 'notice', it can only be assumed that the reason they are opting for a 3rd trial is to hope that they can somehow bait the Judge into making an error that will help them on an appeal."
"The code of tribal wisdom says that when you discover you are riding a dead horse, the best strategy is to dismount.
In law firms, we often try other strategies with dead horses, including the following: buying a stronger whip; changing riders; saying things like 'this is the way we have always ridden this horse'; appointing a committee to study the horse; arranging to visit other firms to see how they ride dead horses; increasing the standards to ride dead horses; declaring that the horse is better, faster, and cheaper dead; and finally, harnessing several dead horses together for increased speed."
-- Judge Thomas Penfield Jackson, 16 February 1999, in the courtroom after lunch on the second day of testimony from Microsoft's Brad Chase.
After considering the Court’s Order, Plaintiffs regretfully must decline to accept the remittitur since the rationale underlying the remittitur is inconsistent with the Copyright Act and its legislative history, as well as established case law.
I am not a lawyer but how many times can you prolong at trial? I'm aware of the appeal process but is this even an appeal? It sounds more like they're saying "we refuse to accept the court's decision" which is not quite how I recall law in the United States to work.
Then their filing says this:
In light of the foregoing, Plaintiffs respectfully decline to accept the Court’s remittitur and shall work with Defendant’s counsel and the Court to set this matter for a new trial on the issue of damages.
Emphasis mine. So this isn't an appeal or a retrial but instead a new trial? How many times must Thomas-Rasset go to court for copyright violation on twenty four songs?!
Further more, if any lawyers are reading this, does this affect the precedence that this verdict would set? Will Capital v. Thomas be referenced with an asterisk indicating that the first eight trials found her on the hook for any amount between $24 and $2 million causing the judge to finally throw it out on the ninth "new trial"?
Whatever happened to due process and not being able to stand trial for the same crime twice? Is this new trial a civil suit where the first two trials were criminal suits?
I understand some issues are not clearly defined in law but this is turning into a circus.
My work here is dung.
As more content becomes electronically available, such as ebooks, movies, etc this nonsense will proliferate. Even now, as book publishers try to increase the cost of books from 9.99 to 14,99 and higher, or delay release of electronic versions hoping people will buy the hard-copy first and the ebook 6 months later, there are attacks forming on the publishers (read Amazon reviews for ebooks > $9.99 and see the 1 star reviews), and there will be attacks on the technology as piracy takes hold. Everybody is just greedy, the consumers want it for a low cost that never changes, the publishers, the lawyers, etc. I pity the independent singer songwriter or now author who is blamed as part of the economic ecosystem of this mess. They may have a stigma attached to them they cannot shake and cannot grow beyond.
no comment
...it can only be assumed that the reason they are opting for a 3rd trial is to hope that they can somehow bait the Judge into making an error that will help them on an appeal."
No, I think other assumptions could also be made. Such as, maybe they're just a bunch of vindictive pricks who have the money and just want to screw with someone they lost to (well, it wasn't a loss, but they surely see it that way). Why not piss away another pile of cash?
They're going for harassment and want to make an example of this person by tying up life, finances, and emotional health as long and deeply as possible. If they could get an execution somehow they would, but they'll settle for lawsuits for the rest of natural life to prevent things like, oh, personal property and/or basic health from taking hold ever again.
Rip 'is 'art 'apart!
STOP . AMERICA . NOW
So basically, they're going to court and simply repeating themselves?
They're starting to sound like a broken record now.
I'll get my coat
Always proofread carefully to see if you any words out.
Well, the RIAA are the ones insisting on a new trial, so I suspect the answer is until the RIAA gets the verdict they want .
The Saints submitted notice to appeal their Super Bowl win, on the grounds that the Colts unfairly bunched up at the line near the end of the first half, forcing a turnover on downs, and causing the Saints to settle for a field goal on a subsequent series. Sean Peyton, coach of the Saints explained that while they could only lose the game due to appeal, and could in no way increase their margin of victory, they hoped that by filing they may increase their chances of a higher pick in next year's draft. Drunken fans in the french quarter cheered the announcement, and said they "waited 43 years for this, why not wait a little longer".
no comment
But to say that $54,000 is approximately 6500x (ie $8.30) the actual damages is disingenuous at best.
So this is what, the third trial?
At this point, since my life would be financially over, I'd consider some other options. Options that, while not monetarily or legally beneficial, ones that would be immensely emotionally cathartic.
Out of modpoints but really liked a post? 1BDkF6TtmmeZ3yqXbz9yhdYVqRYnwFoXDj
Goliaths know that whoever has deeper pockets to pay legal expenses for a longer period of time, generally wins lawsuits. Frivolous lawsuits filed by large companies on individuals and small entities are more often than not seen as a war of attrition that they have no way of losing. As someone was once the victim of this, it makes me incredibly angry. I was frivolously sued by a large company. Even though I won the case (basically by showing up and showing the contract vis a vis their allegations), I had to spend a few thousand dollars defending myself (I'm lucky it wasn't tens or hundreds of thousands). They're trying to ruin this individual, and make an example out of him. It's one of the most evil aspects of corporations and is what's most wrong IMO about our legal system.
The Institute of Incomplete Research has determined that 9 of out 10
Can I get this as a car analogy please?
English is not this
Wow, I wonder if everyone can "respectfully decline to accept" the court's agreed-upon settlement in a civil case. "No, we're going to keep coming back until Walmart pays me one trillion dollars to replace this faulty TV."
No kidding!!! What do you say at this point?
Does the idea of double jeopardy apply in civil law? If not, what prevents a plaintiff with very deep pockets from suing a defendant for something, losing, suing them again, losing, etc until the defendant's funds with which to defend themselves run out? Because this sounds like a pretty open-and-shut case of the RIAA doing exactly that, and the overall effect is that said defendant effectively loses even if they win.
I am officially gone from
Oh, I prefer to respectfully decline to accept the court's final decision to put me in prison for 10 years. On basis that I don't like the decision and don't want to go to prison.
45 5F E1 04 22 CA 29 C4 93 3F 95 05 2B 79 2A B2
That horse is not dead. It's sleeping.
Wenn ist das Nunstueck git und Slotermeyer? Ja! Beiherhund das Oder die Flipperwaldt gersput.
Toyota, having achieved their goal of becoming the world's largest car company, appealed their win to the court of public opinion by recalling millions of vehicles. There was no hope of becoming larger than themselves, so the only downside was possibly becoming smaller. "We need this appeal to keep our name in the public spotlight," unexplained an anonymous spokesman.
Infuriate left and right
Well, IANAL, but they can't appeal--because they won the case.
Who checks to see if an artist is in the RIAA BEFORE they buy a song or CD? It is guilt by association, much like all bankers are "fat cats ripping us off", all singers and authors are just money grubbing self important prima donas because I read where they sue unemployed mothers living in Harlem with insecure wireless access points. See how that works?
no comment
Whew, the system works.
MABASPLOOM!
There are many legal avenues that a well-paid legal team can travel down to simply outpace the individual in both resources and time.
I'm going to tell a quick story. When I was a minor (though admittedly close to 18), my parent and I filed a lawsuit against [z] for wrongful discipline. It wasn't really wrongful discipline, but that's the easiest way to put it: [x] had broken code/regulations dozens of times during the course of the incident after I had unknowingly done something wrong due to a "disability"; my lawyer discovered all of this, and we filed the lawsuit. During the first settlement meeting, they were in one room, we were in another, our lawyers/mediators were jumping all over and meeting privately at times. (Typical mediation.) They were extremely heavy-handed and wouldn't settle for more than a meager amount at first. Four hours into the meeting, the mediator and my lawyer came in the room and we began talking. I decided to play the best card I had after the mediator had informed me that they will be willing to spend however much money it takes, and go through trial for probably over a year, (that that is their main weapon against litigants that are common folk without much money.) I made it very clear to the mediator: "Listen, I'm going to be honest, I don't care about this settlement, it's not even a dent in my worth. I want them to learn their lesson, and I will not walk out of here without getting at least 20x what they are offering. When I turn 18, I am inheriting over two million dollars and will be more than happy to pay as many lawyers as it takes. [$x] is an insult to me and my family, and unless we see [$20x], we'll be looking very forward to trial and the ability to speak to the press about this whole ordeal."
Long story short, after 5 hours worth of arguing over the size of a three digit settlement, the mediator came back and informed us that over the course of five minutes, they accepted the five-digit number upon finding out about my inheritance and my eagerness to go to trial. For me, it wasn't a risky move: my lawyer already had the media lined up to speak to me and break the story, I really was inheriting a very large amount of money, and I was dying to go to trial (because of the severity of the "awe" factor in my favor). It's important to note, however, that if you have these three things against you, it becomes a much risker move to make. Though it's a risky move, its very effective, because as this article clearly shows, a large corporation/entity's main weapon is the fact that they can afford far more legal action than you can. Also please note that I was blessed to have had a great lawyer: my family and I were literally going days without eating in order to pay the mortgage and one or two bills a month (single parent), but my lawyer offered to take the case and allow me to pay him once I turned 18 or when we won. Because I was a minor, the settlement wasn't given to me until I was 18 anyway. I was very lucky to have such a large upper-hand against an entity that had an enormous advantage to begin with.
Moral of the story: as soon as they found out I was willing to dish out just as much (if not more) money than they were to fight, they backed down and realized even 20x the original settlement amount is worth ending the matter ASAP. Granted, this article is dealing with the RIAA and I have nowhere near the amount of available resources that they do. Because of that, they will continue fighting this battle just because they can and would like to deter file-sharers from doing this in the future. Legal fights are all about money: ever seen the lower-class people on Judge Judy fighting over $100? How long do those cases last? Think about it, it's all about money, and unfortunately when an entity as large as the RIAA sues an individual, it is a very uneven fight.
IAAL. It is really a part of the same trial-- the rules of remittitur say if you don't like how the judge reduced your award, you can try the issue of damages again. Basically means if you think the judge wrongly reduced the jury verdict, you can and should have the jury try again, so we know, on appeal, what a second jury verdict was (a perspective on the reasonableness of how much the judge chopped off the first verdict). If I were an appellate court judge I think I'd want to see that.
Those are my principles, and if you don't like them... well, I have others.
A double-entendre involving the '$' sign. Nicely done!
Bear in mind that they're up against Kiwi Camara, hotshot pro-bona wunderkind, whose primary interest (at this point in his career) is in making a name for himself by tilting at windmills. You want proof? His other client is Psystar. Neither side (and I mean the RIAA vs Camara, not Thomas-Rasset, who is irrelevant at this point) has anything to lose and potentially something to gain by keeping this going indefinitely.
If you were blocking sigs, you wouldn't have to read this.
As far as I understand, the judge has found that as a matter of law they can not claim more than 54,000$
This is not strictly true, and NYCL's summary is a bit misleading on this count. The jury question on damages will (unfortunately) be the same, and allow them to award between $750 and $150,000 for each infringed work. So they could again award $1.8 million, and have the judge again reduce it. However, what the RIAA is trying to do is draw out the issue of what damages are authorized by the statute - in the previous trial, the judge reduced the damages in a short post-trial motion without any opportunity for the parties to argue that he was wrong as a matter of law. This trial will give the RIAA an opportunity to get some facts and arguments on paper such that, if the judge limits damages again, they can appeal.
As for what other people have proposed, such as harassment of Thomas-Rasset or causing her to pay more, that's not an issue - I believe Camera-Sibley is defending her for free.
Mules, long noted for stubbornness, would seem to have nothing on either the music labels or Jammie Thomas-Rasset. Both sides have dug in deep and are prepared, almost unbelievably, to have a third trial on the question of whether Thomas-Rasset was a dirty P2P pirate... and of what she should pay if she was.
At the second trial, in 2009, Thomas-Rasset was again found liable, but the jury this time fined her $1.92 million. Last week, federal judge Michael Davis decided that this was "monstrous" in its disproportionality and slashed the damages to $54,000. The recording industry could either accept his decision or request a third trial.
The RIAA then sent a letter to Thomas-Rasset's lawyers with an alternate offer. Thomas-Rasset could settle for only $25,000 ("We are willing to negotiate a payment schedule for this sum," said a copy of the letter seen by Ars), and she wouldn't even need to pay the labels--all cash could go to a charity benefiting musicians. The entire settlement would be conditioned on the judge vacating his recent remittitur order.
"We do not believe embarking on a third trial is in anyone's interest," said the letter. "Continuing to use scarce judicial resources as well as spend our respective clients' time and money strikes as unwise and pointless."
It does not strike Thomas-Rasset that way. While the RIAA asked for an answer by Friday, January 29, Thomas-Rasset's lawyers have already responded: no deal.
I checked in with Kiwi Camara, one of Thomas-Rasset's lawyers. who confirmed that the settlement was ruled out. He added that Thomas-Rasset would likewise rule out any settlement asking her to pay damages, and that the Camara & Sibley law firm was ready to represent her pro bono once more.
It's hard to see how this will play out, but a few things are clear: Judge Davis, despite strong criticism of the damage award, had no kind words for Thomas-Rasset. He noted that "ThomasRasset's refusal to accept responsibility for her actions and her decision to concoct a new theory of the infringement casting possible blame on her children and exboyfriend for her actions demonstrate a refusal to accept responsibility and raise the need for strong deterrence." The judge even concluded that she "lied on the witness stand by denying responsibility for her infringing acts and, instead, blamed others, including her children, for her actions."
Given the facts in the case, which after two trials don't appear to be in dispute, it's hard to see how Thomas-Rasset hopes to prevail without paying a dime, but that appears to be the plan.
If she had been willing to pay something, she would have done so long ago, when the RIAA offered her a settlement of a few thousand dollars. Instead, Thomas-Rasset has spent years of her life working with two law firms on two federal trials, and she's willing to risk a third.
The stubbornness isn't just on one side of the aisle, however. The RIAA is completely unwilling to abide Judge Davis' ruling that the jury's damage award was excessive. Accepting the ruling would set an unacceptable precedent for judges to alter jury awards in copyright cases at their whim. It's not the amount, but the principle--something shown by the fact that the trade group is willing to drop roughly a bazillion dollars more on the Denver law firm that has been prosecuting the case in order to do it all again. In addition, conversations with industry lawyers and executives over the years have also revealed a strong sense that Thomas-Rasset needs to take responsibility and pay something; there's a very real sense that, apart from issue of statutory damage law, Thomas-Rasset is thumbing her nose at the industry and hoping to get away with no penalty.
Thus--a third trial.
Thomas-Rasset vows to pay nothing, so third trial inevitable [Jan 28]
b) The judges have so far ruled that the cases be dismissed WITHOUT PREJUDICE.
Not true. The RIAA won the first trial, and were awarded $222k in damages. The judge dismissed that one due to an error in the jury instructions. The RIAA won the second trial and were awarded $1.92 million in damages. The judge reduced the award to $54k, and the RIAA has opted for a new trial on damages rather than accept that. The previous trial is not dismissed without prejudice - rather, the jury findings that Thomas was liable for 24 counts of willful infringement of the right to copy and 24 counts of willful infringement of the right to distribute aren't touched. This trial will only be on what level of damages are awarded.
And, it makes sense for the RIAA... The judge reduced the damages from $1.92 million to $54k in a post-trial opinion. The RIAA didn't get to argue that that was improper, so they'd have nothing to appeal. This new trial gives them a chance to argue that decision.
And don't weep for Thomas-Rasset. Her lawyers are working pro bono.
c) The judges have not ruled against the cases to be unconstitutional.
Yeah, and NYCL's wishes aside, they're really unlikely to do so. Article I, section 8, clause 8 expressly gives Congress the power to create copyright law. That's clearly constitutional - the only issue for unconstitutionality is statutory damages, but that's a tough road to hoe. First, because Congress has the power to create copyright law, then the courts have to defer to how they create the law, provided they're within the bounds of the 5th amendment. Second, if you want a original-intent argument, copyright law has included statutory damages since the original 1790 Act, only three years after the Constitution. Third, the arguments that statutory damages are out of proportion with actual damages ignore most of the damages, specifically the infringement of the right to distribute. It's like saying that sending someone to jail for 5 years for speeding is grossly excessive, and neglect to mention their DUI and hit and run.
Wrong. It does and it doesn't. There's some aspects of the Constitution which apply in full force (with changes in procedure that alter the nature of the BoR's impact on things...) and some things that don't.
For example:
A civil asset seizure, if not properly done under a valid Warrant is a violation of the Fourth Amendment- just as if it were a criminal one. If the assets so seized are not immediately remanded, it's a Fifth Amendment violation (Unlawful Takings...). Any Civil discovery or Criminal evidence obtained from such a seizure is no longer admissible in court and is typically ordered to be destroyed at the moment of the discovery that the Fourth has been violated.
Testimony not able to be cross-examined prior to a trial or during is generally held to be inadmissible as hearsay per the confrontation clause of the Sixth Amendment. Bank statements are excluded from this holding- but most everything else isn't going to fly.
In a courtroom, you may plead the Fifth in a Civil case, but you have to explicitly take it each and every time you are asked a question- and you can have negative inferences (i.e. it can be at least partly held against you in a decision...) from the Judge or Jury if you DO choose to take that route. And you can't let up once you start, you have to take it from that moment on.
You can't be tried under the Civil code by the the State or Federal government for something and then have it followed up by a Criminal code suit for the same specific violation (double-jeopardy). Though you can have a trial under the Criminal code and then be sued by the family of the deceased/injured in the context of a murder/manslaughter/etc. case as we've seen with the OJ Simpson story. That's allowed because it wasn't specifically the same cause (The state tried for murder, the family sued for damages, etc.).
The First Amendment is typically deemed to trump most every Civil and Criminal statute when applied in the manner it's usually done.
Most of these things apply to State level courts through the Fourteenth Amendment.
In truth, the Civil code's authority stems from the rules set forth in the Constitution and the Bill of Rights affects it as much as the varying Penal codes.
I am not merely a "consumer" or a "taxpayer". I am a Citizen of the State of Texas
How many times must Thomas-Rasset go to court for copyright violation on twenty four songs?!
Well, the RIAA are the ones insisting on a new trial, so I suspect the answer is until the RIAA gets the verdict they want .
:)
I know it seems that way, but not really.
The first trial's verdict was set aside because the Judge recognized that his acceptance of the RIAA's incorrect jury instruction on "making available".
The ruling setting aside the second trial's verdict was a partial victory for Ms. Thomas-Rasset, reducing a $1,920,000 verdict to $54,000.
In view of the Judge's ruling on the second verdict, the RIAA will never 'get the verdict they want'; the most they can possibly get is $54,000.
It is common, in granting "remittitur" due to an obviously out of control jury, to lower the verdict, but offer the plaintiff a chance to reject the lower verdict and get a do-over. Nothing at all unusual about it.
The RIAA will never get more than $54,000, and may well get less the second time around. And if the Judge finally does tackle the constitutional issue, I predict the third verdict will be a WHOLE LOT less.
Ray Beckerman +5 Insightful
It's starting to seem like it. At some point, a judge is going to have to teach these buttheads a lesson by dismissing the damned case with prejudice. Or override any jury's damage amount and give them something like $100 dollars with the admonishment "Take or leave it but never file another suit over Thomas's copyright violations ever again.".
CUR ALLOC 20195.....5804M
I suspect this is a somewhat silly question, but ...
Will the extra costs incurred to Thomas after the 54k verdict be plaintiff? I.e. if the RIAA's tactic here incurs an extra 5,000 dollar in legal fees, will she be allowed to deduct that from the next verdict?
Or can this be seen as a tactic to put more strain on her financial situation? I.e. they know they can't get more than 54,000 dollars, but if they can force her into bankruptcy by not only holding that 54,000 dollar verdict over her head but also constantly increasing legal fees, they can force her into an out of court settlement that may be cheaper for her (legal fees only), but kept under wraps so as not to set precedent.
1. In the present posture, she can't win, absent an appeal. The second trial is just about the amount of damages.
In actuality the RIAA will incur at least a hundred thousand dollars for another trial, probably more. And that's not counting the other expenses, such as employee time, etc.
I think, but am not sure, that there was a special agreement in this case precluding attorneys fees.
Sometimes settlements are entered into the public record, sometimes not. Either way, they are not judicial precedents.
Ray Beckerman +5 Insightful
For anyone interested in the constitutionality of the RIAA's statutory damages theory I suggest reading our revised amicus curiae brief filed in SONY v. Tenenbaum, and -- if you wish to go further -- reading the 3 law review articles cited in the brief.
Ray Beckerman +5 Insightful
For anyone interested in the constitutionality of the RIAA's statutory damages theory I suggest reading our revised amicus curiae brief filed in SONY v. Tenenbaum, and -- if you wish to go further -- reading the 3 law review articles cited in the brief.
Thanks for that link. If I may address a few points...
1) My previous post notes that "the arguments that statutory damages are out of proportion with actual damages ignore most of the damages, specifically the infringement of the right to distribute. It's like saying that sending someone to jail for 5 years for speeding is grossly excessive, and neglect to mention their DUI and hit and run."
You mention this in your brief on page 6:
They seek statutory damages of from $750 to $150,000 as to each MP3 file, without regard to whether what they have proved, as to that file, is mere “downloading” -- i.e. violation of the reproduction right -- or “distribution”, i.e. violation of the distribution right.
...In the case of a “distribution” -- i.e. defendant's having acted as a “distributor” and having actually disseminated actual copies to the public, by a sale or other transfer of ownership, or by a license, lease, or lending -- the actual damages would no doubt be greater than 35 cents, and the subject of further proof.
You explicitly note that actual damages would be higher, but suggest that they be the subject of further proof. Statutory damages under 17 USC 504 do not require proof of actual damages. Rather, the plaintiff merely has to show infringement and opt for statutory damages, and the defendant may show proof of actual damages to mitigate the statutory damages. Neither Tenenbaum nor Thomas ever showed proof of actual damages.
2) Continuing in the same paragraph:
Suffice it to say, however, that in 40,000 cases and counting, these plaintiffs have never been able to find or prove any such “distribution”.2
So while there exists a purely theoretical possibility that plaintiffs will be able to prove that Joel Tenenbaum was some sort of “distributor” of MP3 files, if all they ever prove is downloading, then they are seeking multiples of more than 2,100 to 425,000, which would clearly be unconstitutional under any standard.
This is not true. In the Thomas-Rasset case, the MediaSentry evidence showed distribution, and was not excluded (whether it should have been is a different question). In the Tenenbaum case, he admitted distribution under oath. Thus, in both cases, plaintiffs explicitly proved distribution:
"Mr. Tenenbaum, on the stand now, are you now admitting liability for downloading and distributing all 30 sound recordings that are at issue and listed on Exhibits 55 and 56 of the exhibits?" Answer: "Yes."
So, returning to your earlier point, the actual damages for infringement of the distribution right are "no doubt" greater than 35 cents.
Your remaining arguments address the disparity between the 35 cents damages and the $750-$150k per work statutory damages. However, as shown above, you admit that actual damages for infringement of distribution rights are greater. How much greater? Michael Jackson purchased the distribution rights to 200 Beatles songs for $47 million. $235,000 per work is significantly higher than the statute allows, but let's consider that an upper limit for a fair market value. Statutory damages in the range of half actual damages certainly don't seem out of line under Gore or State Farm.
Thought experiment.
Let's say I rob a store. I steal 100 copies of the White Album. I also steal 100 car radios.
If I give away those car radios, I am distributing them. I am generally liable for the cost of the radios plus reasonable damages based on a small multiplier of their value.
If I give away those CDs, by your argument I have committed damage to the copyright holder equivalent to the value of the distribution rights of those songs.
Explain to me how uploading a song is a worse crime than selling those stolen goods, how it violates the right to distribute in a worse way. And if you succeed at that, explain how it is in any way reasonable for selling stolen $20 CD's to be a crime 100x worse than selling stolen $100 car radios.
I can't believe you've tricked the moderators into moderating your bogus comments as "+3, informative" when it is clear you are a shill or a troll. If you want to continue your charade, please tell us SPECIFICALLY:
1. what the elements of "distribution" are under 17 USC 106(3) and
2. what evidence was submitted to prove them.
Interesting that neither the RIAA nor the Department of Justice could do that, but you can.
Ray Beckerman +5 Insightful
By the way, a distribution requires
1.dissemination of copies to the public
2. by sale or other transfer of ownership, or a rental, lease or lending.
17 USC 106(3). The RIAA has never proved, and probably could never prove, a distribution in any of these end user cases.
Ray Beckerman +5 Insightful
I always check first, via riaaradar.com. If the artist is represented by the RIAA, then I don't buy the CD, I don't buy the song on iTunes, nor do I pirate it, either. There are plenty of non-RIAA artists to lavish my limited funds on.
Towards the Singularity.
I can't believe you've tricked the moderators into moderating your bogus comments as "+3, informative" when it is clear you are a shill or a troll.
Ray, we've communicated via email separate from Slashdot. You know that I'm a law student, and neither a shill nor a troll. Calling me names doesn't dismiss my points.
My points, I'll notice, which you haven't responded to, but have instead shifted the issue to saying "the RIAA never proved distribution."
Nonetheless, as was explicitly noted in the Tenenbaum trial, Tenenbaum admitted liability for distribution. That is prima facie evidence of Tenenbaum's liability and admissible under FRE 801(d)(2)(A). Even if that was the sole bit of evidence offered to prove distribution by Tenenbaum, nothing more is needed to show his liability - essentially, he confessed, and it wasn't even an issue for the jury. All of his defenses were affirmative defenses.
If you want to continue your charade, please tell us SPECIFICALLY: 1. what the elements of "distribution" are under 17 USC 106(3) and 2. what evidence was submitted to prove them. Interesting that neither the RIAA nor the Department of Justice could do that, but you can.
Well, the DoJ didn't do that because they didn't try. The DoJ has only been involved in this case on the constitutionality of statutory damages and have explicitly stated at every turn that they take no position on actual liability for infringement by either Thomas or Tenenbaum, so that's a bit of a red herring.
As for the RIAA, 106(3) is the right "to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending." Of course you know that, so my guess is by stressing "distribution" in your question, you're asking for a definition of that specific word - if not, let me know.
For the definition of distribution, personally, I'd turn to Nimmer on Copyright, which states at section 8.11, "The copyright owner thus has the exclusive right publicly to sell, give away, rent or lend any material embodiment of his work." If you disagree with that definition, please let me know.
As for the evidence, as noted above, in the Tenenbaum case he admitted liability for distribution under oath. That's fine evidence. There was also the MediaSentry evidence, who downloaded a song from him, thus showing that he distributed it. Similarly, in the Thomas case, there was the MediaSentry evidence that was not excluded - whether it should have been is a different question. These show that Thomas and Tennenbaum both "gave away" a "material embodiment" of the work. Neither Thomas nor Tenenbaum presented any evidence that their actions did not constitute infringement under the First Sale doctrine.
These should answer your questions 1 and 2 above. Now, would you kindly address my points in the prior post, preferably without further calling me names?
One thing to consider is that by selling pirated copies of songs, you're not actually depriving someone of ownership of the copyright. This isn't a case of "You took a Beatles song worth $235k away from MJ, and MJ no longer has the Beatles song."
MJ didn't buy specific copies of Beatles songs - he bought the exclusive right to distribute. He'd be pretty silly to pay $235k for an album you can get at H&M for $20. If you start distributing, you're infringing his exclusive right.
Think of it this way - exclusionary rights are property rights, like trespass. If I drive my car across your lawn, you still have your lawn. Nothing has been "stolen" from you. But I have infringed your right, as owner of that land, to exclude others from use.
It's a case of "You distributed X copies of a song that you had no right to distribute." In reality, the damages should be (# of copies given out [directly and indirectly]) times (highest price the song sells for) times (decent penalty multiplier, maybe 3-6 times).
You include "highest price the song sells for", but there's no reason for that... MJ paid $235k for the right to distribute a song. If you illegally distribute that song just once, by your formula, you owe him $1*$1*[penalty multiplier]. So the right he paid $235k for is worth only that. And similarly, the property is now almost valueless. Why would anyone ever pay for a license of something if they could freely take it and be liable only for a couple bucks... and in reality, liable for nothing, because who is going to file a $10 thousand dollar lawsuit over a couple bucks? In what way is this supported by statute or case law?
Ray's point was that you are using YOUR definition of the word distribution. THE WORD IS NOT DEFINED. I have been trying to find a concrete legal definition for the word for ten years. (I write software for a living and have an intrinsic interest in what defines "distribution" of my copyrighted software.)
In the US there is no single definition. It is VAUGE to say the least and varies greatly on jurisdiction. Some places require a physical copy to be transferred (bits on a hard drive may or may not count) AND its use. Other jurisdictions require that the recipient be aware of the transfer, others do not. Some jurisdictions require that parties understand that the transfer is taking place (think being handed a mix tape but you don't know about the 5th track). Currently in at least one jurisdiction distribution includes a computer transferring a programs executable data into ram. There is no single definition of distribution. Without that, how can you say that the defendant did or did not do something. It is undefined!
Just read the commentary on the GPLv2 and GPLv3. They changed the wording to avoid using the word distribution because it was undefined.
Ray's point was that you are using YOUR definition of the word distribution. THE WORD IS NOT DEFINED. I have been trying to find a concrete legal definition for the word for ten years. (I write software for a living and have an intrinsic interest in what defines "distribution" of my copyrighted software.)
Agreed, it's not defined in the statute. However, federal case law has established a definition for distribution - the one I quoted above from Nimmer.
Nonetheless, yes, I agree - there are certainly arguments in that area, and "distribution" should be explicitly defined in the statute. However, the fact that it isn't doesn't suddenly make infringement impossible - instead, judges must apply precedent as well as secondary sources to determine a definition. I will point out that neither Tenenbaum nor Thomas argued the definition of "distribution".
Currently in at least one jurisdiction distribution includes a computer transferring a programs executable data into ram.
Fortunately, on this one at least, Congress has stepped in and expressly stated that that is not copyright infringement (after MAI Systems Corp., Congress amended 17 USC 117).
Sorry to break the news to you but no relevant change has happened. I would refer you to MDY Industries LLC v. Blizzard Entertainment, Inc:
http://en.wikipedia.org/wiki/MDY_Indus._LLC_v._Blizzard_Entm't,_Inc.
For at least the District of Arizona the natural physical action of running a program is distribution under copyright law. If you would like to find any reasonable or unreasonable situation I am sure we can find two opposing rulings in Federal law, both having equal weight.
The situation is on the whole, absurd.
When I turn 18, I am inheriting over two million dollars and will be more than happy to pay as many lawyers as it takes. [...] Moral of the story
Moral of the story: justice for the rich.
Now, don't get me wrong. I think it's great you won your victory there. A three-digit settlement (in dollars) isn't a huge deal financially; I'd be angry to pay it but I'd be able to manage it (heck, I just bought a new phone for high three digits even though my current one works just fine), and I'd been able to afford it even when I was on state welfare for students (in socialist Denmark, the government pays you to study...). Symmetrically, I'd be happy to receive a three-digit settlement---zomfg free monies!!
And I'm not speaking out of envy for that large wad of dough. Sure, I'd love to have two million dollars, but I think I'd just be putting them in a savings account just like I am my doing to my money now.
It's just striking to me that you backed up your threat of litigation with "I have a large amount of money" rather than "I have a very strong case". That speaks volumes.
Thanks for the explanation of why another trial is possible when the judge sets aside a civil jury's damage award. But, what's the point if it can only serve to uphold or reduce the current award?
In the context of this particular case, there is absolutely... no... point.
Ray Beckerman +5 Insightful
You have yet to point us to a transfer of ownership, or to a rental, or a lease, or a lending.
How many times will you move the goalposts before responding to my earlier post, Ray? And to think you called me a troll.
Nonetheless, I will answer your question yet again, even though you haven't addressed any of my points. Transfer of ownership includes giving away copies, which was done here. Are you arguing that the transfer of a copy of a work from the personal computer of one person, to the personal computer of another person, does not constitute a transfer of ownership of said second copy? Do you have a citation, because case law in Litecubes and National Car Rental Sys. are against you.
Now, I've responded to yet a third post of yours, Ray. Can you please now address my points from my first post - the one where you called me a shill or troll, without addressing anything I said?
I applaud your reasoning. And while it might not be popular here to say, I think you're absolutely right. In so far as the law works at this time, distributing new copies of a work of art fundamentally infringes the rights of the rights-holder.
The rights-holder is out a lot more than just the price of the single distribution. The market might well bear $5/song if it were enforceable, and there were not free alternatives available due to theft. Thus, the rights holders have had to lower their prices to about $1/song to compete with ALL the rights violators... not just these specific ones that they have brought action against.
The purpose of statutory damages is for someone to use it as deterrence to keep others from violating the same rights... I think that $2 million dollars does so.
Now, I don't think that songs should cost $5/song, and about $1/song is still a little too much in some cases (way better than some downloadable TV Shows on XBox Live though... since I'm more likely to watch those once and rarely return to watch it again.). But that's a marketing option, and I would be one of the people willing to go without my $5/song songs because they are now an unaffordable luxury.
But really... if an artist wants to make a song and charge $50/song to get your hands on it, that's really his right...
WARNING! This girl exceeds the MAXIMUM SAFE standards established by the FDA for BRATTINESS