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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."
Thank you for calling him out on this.
Considering that virtually every single one of NewYorkCountryLawyer's predictions has been wrong, at some point Slashdot should just admit that it needs a less biased legal reporter.
There are interesting arguments to be made, and he's not making them.
... and when we do make them, he calls us "shills" and "trolls," refuses to respond, and gets snippy if we call him "Ray" rather than "Mister Beckerman," leaving name-calling his sole domain.
People just can't get past the notion that if something is easy and convenient, and makes life cheaper or better for them, they must have some kind of right to it. Even if it sucks the life and earnings out of the rightful owner of the thing. Even if the rightful owner is an evil, vicious old coot with a bad business model and overpriced products sold in musty old stores. None of that changes the fact that copyright violation by file sharing is pretty much like looting. Someone, maybe not you but someone, broke into the store, and now all the goods are available. You steal the product and destroy the business for your own benefit, happy in the relative anonymity of the crowd.
But people just can't see themselves as being wrong in doing it, because they benefit, and that *can't* be wrong, can it?
Behold, this dreamer cometh. Come now, and let us slay him... and we shall see what will become of his dreams.
I wish I had mod points for you. Couldn't have put it better myself.
Onda Technology Institute
Because digital data reproduction does not cost money. And you can not take it away too.
The 35 cents are a lie too! You can not sell the digital data itself.
You can sell the service which results in digital data, though. But when you created it, and passed it over to someone, he now can do what it what he wants. Just as when you tell someone your name. Gone and out of control.
Their business model is based on faulty logic resulting in using bitspace objects as if they were meatspace ones. Those are two realms with radically different laws/rules (of physics).
So not only the damages that can be awarded are ZERO, but the media companies are engaged in active fraud of selling physically not existing things.
Any sufficiently advanced intelligence is indistinguishable from stupidity.
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.
I believe Ray is referring to me, even though he adamantly refuses to name me or reply to my posts.
Tenenbaum admitted distribution on the stand, under oath. NYCL refuses to accept Tenenbaum's statements to the court and continues saying, "but where was the distribution? Where?!"
The distribution was proven by the defendant saying, "Hi, I'm Andrew Tenenbaum. I swear to tell the whole truth and nothing but the truth. I distributed these songs." The end. That's why there was a directed verdict - but NYCL keeps trying to return to arguing whether infringement even occurred. This is incorrect - this trial is about damages, because infringement has already been proven.
NYCL, don't be a coward. Address my arguments without calling me a troll.
He didn't steal anything. Madoff stole actual money (imagine enough stacks of hundred to fill a library of congress)...This guy copied a string of ones and zeros ('product') that the RIAA didn't even create; hell they don't even represent the creator.
This is not a case about theft.
This is about placing a string of ones and zeros from a place that holds strings of ones and zeros to another place that holds ones and zeros.
This has been inevitable since September 16th, 1948 (or if you want to be pedantic: August 1962).
Cruel and unusual punishment doesn't really apply AFAIK. It doesn't matter whether a judgment is excessive or not when considering that prohibition.
No matter, the 8th amendment still proscribes these ridiculously large statutory damages:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Nobody in their right mind could possibly claim that these are not excessive fines. Case closed.
You demonstrated again that you are a liar because you truncated my statement. Why did you leave out the part that began "except". You are a shameful liar. I am not responding further. Slashdot readers are intelligent enough to see through your game.
Oh, come on. That's not a truncation. That's your exact sentence, fully intact, incorporating your period. If you were engaging in hyperbole and are now upset for being called out on that, say it - "I, Ray Beckerman, am sorry for implying that the judge 'never ruled in favor of a defendant.' It was hyperbole."
I mean, geez... It's not like people can't scroll up a quarter page.
Yay, NewYorkCountryLawyer has finally catched the slashdot-groupthink: if you don't agree with what I say, you are an idiot, Welcome Mr. Beckerman.
On a slightly different note, I guess the RIAA has thrown a wave of minions and apologists to slashdot, my question would be, how much did they pay for such low slashdot IDs??
It should be their new "internet strategy" to try to reduce file sharing. Welcome to slashdot RIAA!
Ubuntu is an African word meaning 'I can't configure Debian'
Who mod's this tripe up, when did the RIAA get mod points.
In a court of law you have to prove damages, if they want to prove damages from distribution they have to show clear evidence of distribution equal to the damages the damages being claimed. Given that the RIAA's case is on shaky evidence just for the downloading part and they cant prove how many times he shared the entire song(s) they can only claim for 1 license infringed. Then once that is proven they can only sue for actual damages incurred (US$0.35 per proven infringement).
But hey, I'm from this crazy nation called Australia where this kind of stand-over tactic is actually against the law, as in we'll see you in the criminal court next Tuesday and where judges can actually see through RIAA BS.
Calling someone a "hater" only means you can not rationally rebut their argument.
Distribution rights are far more expensive.
Really, that makes you sound like an RIAA troll. That is just the latest RIAA term of the month that is a complete bullshit lie. Distribution rights are less expensive. Or do you actually believe that Apple pays more than $1 for each song they distribute via the iTunes store.
Seems like this concept has gotten fuzzy. I hope this simple three step Q and A clears things up for everyone.
1) Do you now have something that you didn't have a minute ago?
Examples might include cars, sneakers, or perhaps an MP3 audio file of a song and the enjoyment that you experience when you listen to that song.
2) Is this thing the product of someone else's hard work and financial investment?
Examples might include the years of heart ache and hard work that a songwriter puts into his craft in order to create something that enriches other people's lives. It might also include the years of rejection sweat and tears that go into a performer's craft.
3) Does the creator make, or hope to make their living by selling this thing? If so, did you take it without paying?
Examples might include a farmer who expects to be paid for the corn he grows, but you went out in the field and cut some yourself. Or a songwriter who only makes 4 cents off each sale of his song, but you downloaded it from Limewire instead of paying 99 cents on iTunes before driving down to Starbucks where you paid $4 for a cup of coffee.
If you answered "yes" to all three questions then you have stolen something that you were not permitted to take.