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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."
Lawyer: "I Have created this airtight and brilliant brief! It is Irrefutable and right! All of society will benefit from my genius! I am sure to win Lawyer of the year for this awesome brief!"
Judge:"That's nice, any who, back to what I was saying..."
Is it sad that I am more likely to recognize you and your posts by your sig than your name or UID?
If this was me, I'd do the same thing as Tenenbaum. Fuck it, you're already looking at bankruptcy, why not burn everything you have in the off chance that you take them with you?
"From Hell's heart I stab at thee /
For hate's sake, I spit my last breath at thee."
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ECHELON is a government program to find words like bomb, jihad, plutonium, assassinate, and anarchy.
I'm intersted in knowing how RIAA know that he distributed the songs to "millions of people". And what was his share ratio on these songs? Eg. If his share ratio on these songs were 1,000,000 then it could be said that he's passed those songs onto a million people. If it were 1.5 then it can be said that he passed it on to 1 person and half of it onto another person (and then there'd need to be discussion as to how much was lost by passing half an MP3 onto someone).
Just my 2c.
dnuof eruc rof aixelsid
I think I don't buy the black and white argument, but the logic does strongly bias towards teh first seeder. Quite literally, to borrow from Will Smith, "If you don't start nothin', there won't be nothin'!" No seeders, no sharing, no infringements.
Obviously the sharers have a piece of the liability too, since if they didn't request and didn't hang around the seeders wouldn't be sharing with anyone. But that is much that same as the drug dealer and the drug user problem, or looking for who started and participated in a bar brawl. They are in a symbiotic relationship, but the "offenses" of each party are somewhat different.
To put a number on it, I'd say the relationship is a declining harmonic progression, with the seeder carrying weight 1, and each successive participant in the torrent carrying weight 1/n. The millionth guy, Tenenbaum, may be the straw that broke the RIAA's back, but his actual contribution is near meaningless.
Behold, this dreamer cometh. Come now, and let us slay him... and we shall see what will become of his dreams.
One, and only one, of the following is true:
1. Anyone with reason to be sympathetic to Tenenbaum and his legal cause is by definition a pirate.
2. You're an idiot.
AND they are tired of getting screwed up the ass by dishonest corporations that refuse to offer a basic "satisfaction guaranteed" warranty. Hell even the chocolate bar companies offer that warranty ("If you are dissatisfied with your Snickers, return it for full refund.").
I grew tired of throwing-away my money on shitty CDs or boring movies, so now I try before I buy. If it's good I'll buy it to support the artists/engineers, but otherwise no.
"I disapprove of what you say, but I will defend to the death your right to say it." - historian Evelyn Beatrice Hall
Looting removes physical goods, this is just breaking of a monopoly. Considering that this monopoly has now been extended so often perhaps piracy is the morally correct thing to do.
I do not participate in these activities, but I can see the rationale. I cannot however seen any relation between infringing on a government granted monopoly and the taking of actual goods.
Also even if said person is not financially ruined, it would take that citizen the rest of his life to earn the money to pay-back the cash fine. In effect it's a life sentence to slavery for RIAA, simply because the person didn't legally buy ~$30 worth of songs. That IS excessive.
"I disapprove of what you say, but I will defend to the death your right to say it." - historian Evelyn Beatrice Hall
So how has radio not yet put them out of business?
And why is this distribution right worth $30k?
Say he distributes it to 1 person, and they distribute it to 1000 people, what sense does it make for him to be responsible for 1001 redistributions?
Say you have an exclusive monopoly on something - say you create a new Mona Lisa, or discover a new way to make jet fuel out of water. You can charge whatever the market will bear for your painting or fuel because you have a natural monopoly.
Now say someone sneaks in and makes a copy of your painting, or steals your exclusive formula, and they give it away for free. Now, you can't charge anything, because any potential customer will just get it for free. Poof - your hard work is gone. It doesn't matter whether 100 people make jet fuel from water or 1 million people do - you can't make anything from your invention, even if it cost you a million dollars to research and develop, because anyone can get the information for free.
The first distribution destroys the exclusivity, and most of the value is in the exclusivity. Therefore, the first unlicensed distribution destroys most of the value of the property.
To put it in terms of your exclusive distribution right view:
If I upload a copy of your music to someone else, I've deprived you of 1 sale, but I've done no more damage to your ability to further distribute your track than you're doing to yourself by selling it to anyone who'll buy.
... provided that my potential customer will only purchase from me. But when I'm charging $1 for the song and you're giving it away for free, why would they go to me?
If it were some sort of unreleased track then I would be denying you your exclusivity in being able to distribute the track, and if I were to be the source of that getting onto X filesharing network then I would be doing you a lot of damage, but once you start selling it to all and sundry, I'm only costing you the lost sale for the people I distribute it to. Unless you want to get into some really messy argument about the second person not having had the opportunity to distribute it if they hadn't got it for free.
Sure, any person along the chain could have been the one to upload it for free to the net... But you did it, and I can prove you did it. Therefore, you're responsible. The statute doesn't require that the plaintiff find the sole uploader or original uploader... any infringer is liable. Basically, the defense "but it was already online, so when I distributed it, I wasn't causing additional harm" may sound good but isn't supported by the statute, and any judge who accepted it would be reversed immediately.
NYCL, don't be a coward. Address my arguments
You're the coward hiding behind the cloak of anonymity and refusing to disclose your true identity, and what the axe is that you have to grind. Your motivations are quite suspect. You have some gall to call me a coward.
If you had any knowledge of the law you would know that Joel Tenenbaum doesn't tell the Court what the law is. The Court determines what the law is, and doesn't ask a 20-something non-lawyer who's a witness and party in a case what he thinks the law is and whether he thinks he violated it. And the law in this case is a statute that was enacted by Congress and signed by the President, which describes what a "distribution" is. And as you well know there was no evidence of the components of a violation of the 17 USC 106(3) distribution right. The testimony of a 20-something young adult that he "distributed" something is legally meaningless.
Ray Beckerman +5 Insightful