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."

Comments

Fees

[biryokumaru]

I certainly hope in the end Tenenbaum gets awarded fees, or this'll just be a gain for society at Tenenbaum's expense.

Re:Fees

[Anonymous Coward]

Isn't the "cruel and unusual" thing for criminal cases? Since these are civil cases I don't believe there is any "cruel and unusual" clause.

When I read the Constitution it does not make any such exceptions. Nowhere does it say "oh, except for civil torts."

Now that might still be used as a clever way to maneuver around something the Constitution clearly forbids. For example, the "free speech zones" I mentioned. Have you heard of them? Yeah, the weasel "logic" (sorry to insult weasels this way) is that the First Amendment guarantees that citizens have free political speech, that "Congress shall make no law" restricting this. However, the First Amendment does not specify where this right applies, so they can tell you that you may only exercise your free speech rights within a designated zone. Of course this zone is located someplace where you can be easily ignored and your protests cannot easily be heard.

Tyrants just love tricks like this. Any reasonable person would say that the Constitution is the highest law of the land, and does not specify where in the USA it applies because it applies everywhere in the USA. But that's not very useful for a tyrant. Likewise, noting that the Constitution does not say that the prohibition against "cruel and unusual punishment" is limited to criminal courts only is also not very useful for a tyrant.

Re:Fees

[Anonymous Cowpat]

It's an interesting conundrum. The product that you're buying is the physical disc, but the value that it has to you is in the data stored on the disc. However, you can't really estimate that value without inspecting it, and you can't inspect it until you've completed the transaction.

Most other people who build a business model around getting people to buy a pig in a poke get called scam artists.

Re:Fees

[Wildclaw]

It doesn't need to be reworded. People who interpret things stop need to be twisting around.

The US constitution is the old legacy program that receives the occasional update to fix compatibility issues, but that hasn't received a security update for ages. The program can't be replaced, because lots of other software depends on it, most of the users are comfortable with it and would raise hell if anyone touched their precious program, and it is actually a decent functional program. The problem is that there are lots of exploits available that can cause the system it runs on to become unstable.

Heck, look no further than your own post. You are trying to exploit the vagueness yourself by providing your own interpretation of the constitution that fits your viewpoint.

Re:I'm still holding my breath

[Anomalyx]

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

Nicely Written Brief

[notaspy]

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.

Re:How legal briefs work

[gknoy]

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.)

Re:NewYorkCountryLawyer is dishonest

[Secshunayt]

You're failing to take into account how peer-to-peer works: most people have a share ratio of about 1:1. On average, any one person can only be held accountable for distributing one copy of something they seed.

Re:And?

[NewYorkCountryLawyer]

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.

Re:How legal briefs work

[NewYorkCountryLawyer]

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.

Re:NewYorkCountryLawyer is dishonest

[NewYorkCountryLawyer]

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.

Re:How legal briefs work

[NewYorkCountryLawyer]

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?

Re:How legal briefs work

[NewYorkCountryLawyer]

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.