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Tenenbaum's Final Brief — $675K Award Too High
NewYorkCountryLawyer writes "The final brief (PDF) filed by the defendant Joel Tenenbaum in SONY BMG Music Entertainment v. Tenenbaum seems to put the final nail in the coffin on the RIAA's argument that 'statutory damages' up to $150,000 can be awarded where the record company's lost profit is in the neighborhood of 35 cents. Not only do Tenenbaum's lawyers accurately describe the applicable caselaw and scholarship, something neither the RIAA nor the Department of Justice did in their briefs, but they point out to the Court that the US Court of Appeals for the First Circuit — the appeals court controlling this matter — has itself ruled that statutory damages awards are reviewable for due process considerations under the guidelines of State Farm v. Campbell and BMW v. Gore. The brief is consistent with the amicus curiae brief filed in the case last year by the Free Software Foundation."
No, he's right.
Pirates don't steal things because they're making some kind of political statement.
They steal stuff because they don't want to pay for it and it's easy with little chance of getting caught.
Mod me down, my New Earth Global Warmingist friends!
What's the alternative? "Courts reaffirm the validity of industry pillaging of your rights"? That's a more likely prediction, but Ray Beckerman makes predictions on what he believes to be the proper reading of laws (and past rulings). He talks about how it should be, and how he hopes things will turn out. Judges don't always agree with him. Sometimes they aren't as familiar with the facts as he is, other times they may just interpret something differently (or rule that something doesn't apply). NYCL is still a great contributor to Slashdot. Do we have other lawyers who monitor Nerd-Worthy cases the way Mr. Beckerman does? Do they bother to submit to Slashdot? (I don't know.)
The poster to whom you're responding is a pure troll. His comment was completely dishonest.
Ray Beckerman +5 Insightful
>>>How many proceedings does it take to realize what any idiot can discern?
It's too bad the guy with the airplane did not bomb the RIAA headquarters instead. (Yes I think these people are tyrants and deserve to die - just like what happened to Mussolini, King Louis of France and Emperor Nero.)
"I disapprove of what you say, but I will defend to the death your right to say it." - historian Evelyn Beatrice Hall
Come on. You think that every single time that one user downloads a song from another user on a P2P network means a sale was lost? At best, these users either have no intention of buying music, or they don't believe the music is worth what they're being asked to pay. Sidestepping the issue of whether or not their actions are morally or legally correct for a moment, these users STILL have no intention of ever buying music. These lawsuits are simply a means for the recording industry to wring outrageous profits from a demographic of the population who they wouldn't be able to make money from otherwise, under the guise of a law that was enacted when printing presses were the technological boogeymen du jour. The argument that the unknown, indeterminable, unquantifiable amount of music that Tenenbaum actually "distributed" impacted RIAA sales in any significant way (much less than to the tune of $675K) is total lunacy...
Well, in the only case in which I am aware of the issue having come up, the judge agreed with you -- not with them. USA v. Dove held that it is absurd to argue that each unauthorized download represents a lost sale.
But what about the lost value of the licensing right? Say the RIAA has a new single, and they want to license it to retailers such as H&M or the iTunes Music Store. They go to them and say "we'll grant you a license to distribute this song in your store for 20% of your proceeds, with a minimum of $50k per year, for the next five years," and the other side says, "why the fark should I do that, it's available free on the Gnutella network. Sure, we'd have some sales, but if people can get it free, they'll just do that. We won't make that $50k back, so no. Make it $1k per year, and you've got a deal."
That's $49k per year in lost profits for the RIAA for that song, due to the loss of value of the distribution right caused by the infringer. That's completely separate from arguing that each unauthorized download represents a lost sale.
that is dishonesty
Do not attribute to malice what might be more easily attributed to being mistaken.
but whatever gave you the idea that I am kind and patient to liars, bullies, and thieves?
Nothing at all. However, to assume that someone who has a different reading of the situation is a "liar" is not exactly the paragon of intellectual honesty either. Please stop being a self-righteous dick if you want us to take you seriously.
Thank you.
The
its really not. the radio exists for this reason and furthermore you play by their rules. you dont like the fact you have to buy music before hearing it in your radioless world? too bad. if its really a bad business model the industry will be forced to adjust for their sake. which is whats happening. this is not 2001 anymore. napster is dead, cds arent the only way to get music and you dont have to analyze music downloading from a philosophical, legal, psychological and moral standpoint whenever its brought up as tho its a "connundrum" get the fuck over it
captcha is hellfire lol
You're either a moron or an RIAA lawyer.
Re:How legal briefs work (Score:-1, Troll)
by NewYorkCountryLawyer (912032)
Calling people morons or shills apparently gets you rated a troll on Slashdot, Ray. I'm sure, as an experienced litigator, you think it works well in court. I'm sure juries just loooooove you calling people names.
I encourage you to rethink at least the spirit of Thaetius's contributions to the dialogue.
He's a sophisticated shill. I'm sorry you fell for his act.
Ray Beckerman +5 Insightful
WTF, who modded this as troll? He stated a plain fact quoted straight from the Constitution, which is directly on topic with the conversation, and was not done in a rude or insulting manner whatsoever.