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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!
Will this affect the thomas appeal?
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?
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.
The fact that the defendant has made an argument isn't news. Anyone can make an argument, and the amicus curiae system even allows strangers like me to submit an argument on this case to the court. When the judge decides in favor of one party or the other, that's going to be the significant event. I would give some latitude if this were a pivotal Supreme Court case, but so far it's just a filesharing trial.
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!
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.
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.
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.
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
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.
Ray Beckerman +5 Insightful
This post is long because the brief is long.
First, keep in mind that RIAA doesn't write the law. Don't hate RIAA for using laws that Disney and others bought Congresscritters to enact into law. Hate the Congresscritters.
The first basic argument is that the companies lost nothing because even if Tenenbaum had not shared the music then someone else would have. However, the companies lose sales to illegal downloading. There's a question of how many sales, but no question that there are lost sales. So they suffer loss from one person making downloads available. If only one person made the files available, they could recover their losses by suing that person. Defendant's argument is that because many people do it, the companies cannot recover. That's like saying that if you get beaten up then you can sue your attacker, but if you get lynched by a mob then you have no recourse. The fact that many people are doing it... you know, if you have to read that here to learn it, you can't learn it. Let's move on to the next point.
From the brief: “[N]umerous courts have held that assessed statutory damages should bear some relation to the actual damages suffered.” When the Supreme Court has spoken, it makes no difference what other courts have said or how numerous they are. The Supremes get the last word. And here's the word: The "excessiveness inquiry appropriately begins with an identification of the state interests that a punitive award is designed to serve." Here, the interest is in deterring people from granting themselves licenses to engage in unlimited and uncompensated distribution of very valuable copyrighted works. Such distribution not only costs the original copyright owner money but the availability of such goods depresses or destroys secondary markets and harms, for example, used CD stores. For these and countless other reasons, the state obviously has a very large interest in deterring the conduct.
They go on to say that "we do not doubt that Congress has ample authority to enact such a policy for the entire Nation." They note that "evidence that a defendant has repeatedly engaged in prohibited conduct while knowing or suspecting that it was unlawful would provide relevant support for an argument that strong medicine is required to cure the defendant's disrespect for the law." Is there argument that Tenenbaum thought that his conduct was lawful? There is not. There is, in fact, his sworn testimony that he knew that the time that it was illegal.
Finally, the case that *defendant* cites states, ""While petitioner stresses the shocking disparity between the punitive award and the compensatory award, that shock dissipates when one considers the potential loss to respondents, in terms of reduced or eliminated royalties payments." What is the potential loss from granting a license for unlimited uncompensated distribution of all of those works? Tennenbaum got tagged for $675K and the courts routinely award 4:1 damages, so the relevant question here is whether the potential loss was more or less than $675K / 30 songs / 4:1 damage ratio = $5625/song and the answer is that such a license would clearly cost more. A helluva lot more. A whole helluva lot more. And it wouldn't matter that others also had licenses, it would still cost a helluva lot more. Tennenbaum is getting off dirt cheap.
Despite defendant's repeated claims that compensatory and punitive damages have similar jurisprudence, defendant's own brief cites State Farm v. Campbell which states, "We recognized ... that in our judicial system compensatory and punitive damages ... serve different purposes." In case you're not a lawyer, let me help you out: it never, ever gets clearer than that for any reason. Defendant's claims that the court should conflate compensatory and punitive damages are totally and unconditionally wrong at best.
Defeendant argues that even if $5625 is dirt cheap for a license for unlimited distribution of a song worth at least
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.
> 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.