Slashdot Mirror
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."
That's how the justice system works. Cruel and unusual punishment doesn't really apply AFAIK. It doesn't matter whether a judgment is excessive or not when considering that prohibition. It's more aimed at cases like people accused of torture can't themselves face being abused as a part of the punishment. People that are found guilty of being slum lords can't themselves generally be forced to live in maggot infested cesspools. That's the sort of thing that's regarded as cruel. Since the penalties are a rarity, they might get away with arguing that it's unusual, however the lack of a substantial number of cases where people were tried in that sense may or may not hurt.
If financially ruining the life of someone who has done little or no real harm to anyone is not "cruel" then the definition of "cruel" needs to be amended. There's a reason we don't fine people ten million dollars for jaywalking, because it would be excessive and far out of proportion to the act that is being punished. There's something clearly and plainly wrong with punishing copyright infringers more severely than many con artists and violent criminals who do real harm to real people, as opposed to little or no harm to corporations. All the clever explanations in the universe don't change that. In fact any explanation designed to excuse this behavior is also wrong.
All this bullshit does is drive the behavior (filesharing) further underground and erode whatever respect people still have for the law, which may not be much after witnessing things like the War on (some) Drugs and "free speech zones".
Please show me in his post where he says that damages should only count for the original download. You seem to be putting words in his mouth.
"record company's lost profit is in the neighborhood of 35 cents"
That statement can only be true if you're talking about the original download. Distribution rights are far more expensive.
Since the "distribution troll" is working this thread, I'll make this statement once:
The distribution right in 17 USC 106(3) requires:
-that it be by a sale, or other transfer of ownership, or by a rental, lease, or lending, AND
-that it be to the public.
Ray Beckerman +5 Insightful
The states with 3-day rules that I am familiar with do not allow you to return the car within three days. They allow you to cancel the sale within three days, but you don't get the car until that period is up. The rule is not there in case you don't like the car, the rule is there to protect you from high-pressure sales tactics causing you to buy something you really don't want.
They'll weep if the precedent is now set closer to 35 cents a song and not $150,000.....
Interestingly, Judge Gertner in the Tenenbaum trial is quite pro-little guy. Take a look at most of her decisions, and she really tries to help defendants.
That is a ridiculous assessment. Judge Gertner has been the best friend the RIAA has had in the US to date. She consolidated all of the hundreds of Massachusetts cases under her watch, and she's never ruled in favor of a defendant. She's upheld every subpoena, and entered every judgment, and signed every ex parte order that's been presented to her by the RIAA over a 7 year period, except for a few fine distinctions on minor procedural issues during the past year and a half. I'm convinced you are just a dishonest person and I wish you'd STFU rather than keep on trying to mislead the nonlawyers here.
Ray Beckerman +5 Insightful
I think NYCL is a bit too fond of telling slashdot of how the law should be and how it should work, not so much practical reality.
Well I'm a lawyer. I have to work with what the law is. I have written elsewhere, in the ABA Judges Journal, about the unfairness of the way these cases work out in practical reality, due to the economic imbalance between the litigants. But when I bring that type of issue up here, I get accused of 'playing violins'.
Here I'm dealing with readers who are largely (a) very intelligent, (b) educated, (c) interested in hard news and substance rather than "human interest", and (d) intensely interested in copyright law as it bears upon digitalization, software, and the internet. So I try to confine myself to discussing (a) the legal events and (b) the legal issues to the extent I can comment on them without disclosing thoughts I haven't yet disclosed in publicly filed litigation documents.
You don't need yet another voice here griping about the RIAA's improper influence on Congress, and even on the Department of Justice. I'm aware of those things, but have nothing special to say about them.
And most importantly, the life of a lawyer is all about "practical reality". My practical reality is the given facts, and the given law. I do the best I can in that world.
Ray Beckerman +5 Insightful
And as to 'how the law should be'.... you've never heard that from me. I have never ever discussed that publicly. That's for Lawrence Lessig, and Charles Nesson, and other academics. As a litigator I take the law that is. No more and no less.
In the cases I've been involved in the only "activists" have been the RIAA lawyers, making arguments that have no basis in existing law. You have never seen me do that, in my court papers, or here.
Ray Beckerman +5 Insightful