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: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: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: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.