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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."
I certainly hope in the end Tenenbaum gets awarded fees, or this'll just be a gain for society at Tenenbaum's expense.
When you're afraid to download music illegally in your own home, then the terrorists have won!
What we need is a non-metaphorical shotgun. Or a non-crappy justice system. Preferably the latter, because we sure don't have it now
No, there is no "-1 I'LL NEVER ADMIT BEING WRONG!!!" mod.
I especially like this side note:
"For additional absurdity, imagine further that the Industry actually got
judgments of $18 million in damages from roughly 30,000 teenagers, which is
approximately the number of lawsuits they filed against consumers until the end of 2008.
That would mean they had outstanding judgments for $540 billion dollars - or more than
the total revenue the recording industry can expect to earn in about 50 years at its current
size of $11 billion per year."
And yet, in view of so many incomprehensible RIAA decisions to date, it's hard to be hopeful.
hi!
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.)
Maybe every court should use this as a precedent. Four hundred forty one thousand times the actual damages should be the statutory award. That makes total sense.
That is surely one way to bring the legal system to its knees; everyone and their mom will sue for damages, no matter how slight, every time there are any damages, because it will be worth it to sue even if you're only out a buck. Anarchy, here we come.
"You're right," Fisheye says. "I should have set it on 'whip' or 'chop.'"
NewYorkCountryLawyer insists that "damages" don't include the money lost through OTHER people downloading that the plaintiff offered up for sharing. He thinks that damages should only count the original download. Unfortunately
* This contradicts existing case law
* It contradicts what the text of the law actually says
* It contradicts how judges have interpreted the law
I think he's doing us all a disservice by sticking his hands in his ears and shouting "la la la". There are interesting arguments to be made, and he's not making them.
How about the defendant is an idiot, the defence lawyers are fools and the judges don't care for grandstanding morons trying to turn a clear cut case of copyright infringement into a reboot of the Rosa Parks case.
Bit I like you thinking, sounds much more exciting.
The fact that the defendant has made an argument isn't news.
I beg to differ, especially in this case. This was the first time that either of the parties directly confronted the central issue. If you look at the table of authorities you'll see that most of the cases and other authorities that were cited were never cited by either side in any prior brief, and that the discussion of Gore and Campbell is likewise totally new. Also the revelation that the 1st Circuit has already applied Gore & Campbell to statutory damages is crucial. It means.... Judge Gertner will be doing likewise.
I.e., bye bye RIAA damages theory.
Ray Beckerman +5 Insightful
You're either a moron or an RIAA lawyer.
1. The first prediction was that the constitutional defense would succeed once the issue has ripened. Don't you get it that the issue has just ripened. Whether my prediction will be fulfilled hasn't yet been determined.
2. Your second link relates to the fair use defense. I have never at any time expressed any opinion on the fair use defense in this case or made any prediction about it.
Ray Beckerman +5 Insightful
Maybe every court should use this as a precedent. Four hundred forty one thousand times the actual damages should be the statutory award. That makes total sense.
Under copyright law, plaintiffs don't have to prove actual damages if they opt for statutory damages. And they didn't. OTOH, the defendant can show evidence of actual damages to mitigate or reduce the statutory damages. But Tenenbaum didn't. That's why his constitutional argument, relying on an alleged $.30 per song, fails at the outset - he never presented any evidence that that was the actual damages.
I know even my friends on Slashdot don't like it when I say this, but...
The trolls are really out in force tonight, on this one. They'll be eating everyone of their nonsensical words when Judge Gertner renders her decision.
Ray Beckerman +5 Insightful
If his share ratio was like most people, it was probably less than 1..... which means he never uploaded a whole song. He uploaded, say, 0.7 of a song which would be unplayable and therefore no harm done.
"I disapprove of what you say, but I will defend to the death your right to say it." - historian Evelyn Beatrice Hall
When someone states that I made 2 incorrect predictions, and then cites to 2 links which have no relation to what he was saying... that is dishonesty. I'm so sorry I 'disappointed' you, but whatever gave you the idea that I am kind and patient to liars, bullies, and thieves?
Ray Beckerman +5 Insightful
Admittedly, I'm only a third-year law student, so I don't claim to have the knowledge and wisdom of someone with decades of experience. That being said, dishonestly is a lot easier to allege than it is to demonstrate, sir.
You know how whenever Fox News is mentioned, a common response is "How can people watch that? It's just telling conservatives what they want to hear?"
Look, we all want the RIAA to die an awful, fiery death. But deluding ourselves about the chances of a given case is not going to help the situation.
In fact, one might even call it "completely dishonest."
I was disappointed to see that Tenenbaum did not include another, more solid ground for having the damages award looked over. During the case, the plaintiff's attorneys proposed a jury instruction to the effect that the statutory damages should be calculated per infringement. The judge agreed, and that was how the jury was ultimately instructed. However, the statute is very specific that statutory infringements are calculated per work, not per infringement. Given that the final award was an even multiple -- a nice, round number, in fact -- of the minimum that could be awarded, there is a possibility that the jury meant to award the minimum, but then mistakenly multiplied the award by the number of times the works were infringed.
I, and at least one other person in the gallery at the trial were very surprised that the plaintiffs proposed that instruction, and that the defendant didn't object to it. Well, not too surprised; the defense attorneys didn't seem very good at this. But you'd think they would have brought it up by now.
Oh well.
-- 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.
Hi, I'm not NYCL, but clicking your name I see nothing but "distribution trolling". 23 posts to be exact, which is all slashdot will show me of anyone's comments.
You're a troll. Happy?
I am not seeing this. In the first link you provided, the only prediction I see relates to statutory damages. NYCL says that there are facts that could lead a court to find fair use in the context of a p2p environment, but there's no prediction with respect to that. The statement that there are fact patterns such that court could find fair use in a p2p situation is still true. I can't find a comment by NYCL in the second link. If one is there, can you show me where it is? NYCL is providing links and updates to potentially important IP cases. He's also "biased" in the sense that he has an opinion, but he wears it on his sleeve so I'm not sure where your anger comes from. If you want to be angry you can also say "the court probably won't care about the amicus briefs", or "the court won't care about the scholarship", or "linking to an 'Ed. Note: the law and scholarship agree' comment is lazy and lame and unpersuasive', but, although all of that would be true in a sense, this is /. and not a law weblog.
99% of the people here have an opinion on the outcome they want and will criticize the courts if that outcome is not reached no matter what is a reasonable interpretation of the law and precedent. /. is a machine that gets fed and, at least with respect to law, is not a place you're going to fund much honest discourse on the current state of IP law. What you will find is discourse on how IP law should be changed -- but those arguments are, no matter what they pretend to be, about statutory changes rather than informed arguments regarding textual analysis of actual law and precedent.
NYCL is feeding information to the machine with his own opinion injected in the summary. He has the advantage of having an educated opinion, whether or not he's correct about the eventual outcome in any particular case. That's like 10 jillion times better than people will ever see reading Cory Doctorow. So I'm happy he exists and posts here. (IAAL, and I am an IP lawyer)
Thank you for your kind words, nudicle.
So far the only RIAA case in which the merits of the due process issue has been judicially determined is UMG v. Lindor, which held that it is a colorable defense, and rejected the RIAA's contention that it is not.
And as you correctly observe, all I have ever said about fair use in these cases is that based upon the hundreds of factual scenarios I have encountered, there are some p2p filesharing behaviors which would clearly qualify as a fair use, some which would clearly not, and some which would occupy a gray area. In fact I publicly criticized the Tenenbaum legal defense for not drawing any of those distinctions.
Ray Beckerman +5 Insightful
You are welcome to take the first two and provide your own interpretation.
Sure I can be an armchair quarterback lawyer as well as anybody, But if my interpretations are more in line with the court than the guy who can say IAAL - despite following up with "but this is not legal advice" - then usually something is not right. Not that I expect a lawyer to be an oracle of how it'll turn out, but sometimes strong personal opinion can cloud your professional judgment, that is hardly limited to lawyers.
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. The practical reality is that a great number of people, be it in the legal system, in Congress or on the jury is sold on the idea of pirates like some kind of economic terrorist and about as popular. When people see a nail they'd like to strike down, they try very hard interpreting the law to be the hammer they need. Sometimes they take the absurdity too far like DVD-Jon that was charged with breaking into his own property and the OINK operator charged with conspiracy to defraud, but it bends quite far by design. This is to avoid people finding say some way to kill someone without being found guilty of murder, it doesn't really matter if they die at your hand or by a hit man or by some implicit act like cutting their brakes or by trapping them in a pit and the inaction of letting them starve to death.
The downside is that they'll also go very far in nailing you for something you think you did. Face it, when you're sitting there on the defense bench and trying to point at wifi stealers and trojans and errors in logging and aliens from outer space, you don't have any other suspect to point at. They aren't going to route themselves into a corner where the standards of evidence are so high no one will get convicted. They're not going to set damages of 35c/pop that are so low as to not discourage anyone at all. They're going lash out at you and viciously, because you're the one sitting in front of them right now. The judges have to in some fashion stay within the constitutional limits and the letter of the law, but they aren't a second guessing of Congress. For example, in this case the Supreme Court found that life with possibility of parole for three counts of fraud totalling 230$ was not "cruel and unusual".
They have made very many similar remarks that fines are largely a matter for the legislature, from United States v. Bajakajian:
The first, which we have emphasized in our cases interpreting the Cruel and Unusual Punishments Clause, is that judgments about the appropriate punishment for an offense belong in the first instance to the legislature. See, e.g., Solem v. Helm, 463 U.S. 277, 290 (1983) (Reviewing courts should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes); see also Gore v. United States, 357 U.S. 386, 393 (1958) (Whatever views may be entertained regarding severity of punishment, these are peculiarly questions of legislative policy).
So one judge said 54,000$ is maximum, but when all is said and done that might not stand because it overrides an explicit limit set in copyright law. To be honest, I find life in prison for 230$ worth of fraud to be more disproportionate than 1.92M$ for sharing 24 songs. And that one is legal, so if the greater absurdity can stand so can the lesser. That is the IANAL interpretation at least...
Live today, because you never know what tomorrow brings
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
My email is public and as you know, I have personally emailed you and identified myself fully.
, and what the axe is that you have to grind. Your motivations are quite suspect. You have some gall to call me a coward.
I'm a law student, and I previously wrote a forthcoming review article on statutory damages for copyright infringement. I approached you for comment on it, and you said:
I never doubted that willful copyright infringement requires intent. I'm not aware of the precise issue you describe having been briefed, but I can't rely on my memory in such matters.
And yet now you claim up and down that I'm a shill and a troll.
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.
So you're saying that defendants can't ever confess unless they're lawyers? That's a novel perspective and I look forward to your future articles on the subject.
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.
Since when is an adverse party-admission "legally meaningless"? Furthermore, Tenenbaum's briefs have all been affirmative defenses - "I did it, BUT it wasn't infringement because [it was fair use/it's unconstitutional/etc.]" Are you suggesting that those briefs, conceding liability, were in violation of Rule 11?
> What is your angle?
Hard to tell, Ray. But if he's Thaetetus, does that make you Socrates? :]
Seriously, though, there are about a zillion Dan Roses out there. Mostly he appears to spend his time making random legal comments on Slashdot among a handful of others. Seems like he *might* be at UNC School of Law. The email has an extra dot, but I think Gmail ignores those. If that's true, he's part of the Lambda Law Students Association (a legal association for homosexuals), which doesn't really explain his interest in the RIAA & copyrights. That said, Google is giving some very strange results, so who knows?
That said, this exchange was pretty ugly for Tenenbaum. I assume it's what he's talking about. Of course, I see nothing in there admitting specifically to violating the distribution right. And I don't have a court transcript, either, which I trust more than random internet reports about the case.
I say that because there are other things out there like this story which claims that "Harvard Law School Professor Charles Nesson has conceded in a letter to the US Department of Justice that his client, accused peer-to-peer infringer Joel Tenenbaum, "downloaded music for [his] own enjoyment."" which points to this letter on your website. The problem is that I've read the letter three times and I can't find that "quote" in it anywhere, unless they got it by cutting out the phrase "is alleged to have," which would make their quote the same kind of dishonesty that led to $312,000 in sanctions recently.
And I got shot down by a commissioner for attempting to file a motion in a case where I were not the plaintiff, even though the filings for the forms stated that I was the plaintiff, but since the title of the case was "In RE: Alice vs Bob", and my name was neither Alice nor Bob, and she couldn't be concerned with looking down the page to where it says "The plaintiff is: snowgirl", and the signature of the other commissioner granting the action, and the stamp marking it as certified and official...
Sometimes as "practical" as the law is, a judge can misinterpret the facts of the case and just blindly bulldoze through with their shit... and in my case, when they're beginning to threaten you with practicing law without a license, you just sit down and shut up...
I'm sure you've been in similar "unwinnable" situations before in your career, but you still go out with your best argument, and take losing like who you are.
WARNING! This girl exceeds the MAXIMUM SAFE standards established by the FDA for BRATTINESS