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

[Beardo the Bearded]

If this was me, I'd do the same thing as Tenenbaum. Fuck it, you're already looking at bankruptcy, why not burn everything you have in the off chance that you take them with you?

"From Hell's heart I stab at thee /
For hate's sake, I spit my last breath at thee."

Re:Fees

[Anonymous Coward]

That's how the justice system works. Cruel and unusual punishment doesn't really apply AFAIK. It doesn't matter whether a judgment is excessive or not when considering that prohibition. It's more aimed at cases like people accused of torture can't themselves face being abused as a part of the punishment. People that are found guilty of being slum lords can't themselves generally be forced to live in maggot infested cesspools. That's the sort of thing that's regarded as cruel. Since the penalties are a rarity, they might get away with arguing that it's unusual, however the lack of a substantial number of cases where people were tried in that sense may or may not hurt.

If financially ruining the life of someone who has done little or no real harm to anyone is not "cruel" then the definition of "cruel" needs to be amended. There's a reason we don't fine people ten million dollars for jaywalking, because it would be excessive and far out of proportion to the act that is being punished. There's something clearly and plainly wrong with punishing copyright infringers more severely than many con artists and violent criminals who do real harm to real people, as opposed to little or no harm to corporations. All the clever explanations in the universe don't change that. In fact any explanation designed to excuse this behavior is also wrong.

All this bullshit does is drive the behavior (filesharing) further underground and erode whatever respect people still have for the law, which may not be much after witnessing things like the War on (some) Drugs and "free speech zones".

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 Coward]

If [Tenenbaum] doesn't get awarded fees, there would hopefully be thousands willing to pitch in to reimburse him for the precedent he bought us.

Holy Crap, that's the funniest thing I've read today. You don't actually believe that the pirate community would give up a single penny to support this do you?

One, and only one, of the following is true:
1. Anyone with reason to be sympathetic to Tenenbaum and his legal cause is by definition a pirate.
2. You're an idiot.

Re:Fees

[commodore64_love]

AND they are tired of getting screwed up the ass by dishonest corporations that refuse to offer a basic "satisfaction guaranteed" warranty. Hell even the chocolate bar companies offer that warranty ("If you are dissatisfied with your Snickers, return it for full refund.").

I grew tired of throwing-away my money on shitty CDs or boring movies, so now I try before I buy. If it's good I'll buy it to support the artists/engineers, but otherwise no.

Re:Fees

[commodore64_love]

Also even if said person is not financially ruined, it would take that citizen the rest of his life to earn the money to pay-back the cash fine. In effect it's a life sentence to slavery for RIAA, simply because the person didn't legally buy ~$30 worth of songs. That IS excessive.

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

[bws111]

The states with 3-day rules that I am familiar with do not allow you to return the car within three days. They allow you to cancel the sale within three days, but you don't get the car until that period is up. The rule is not there in case you don't like the car, the rule is there to protect you from high-pressure sales tactics causing you to buy something you really don't want.

Re:Fees

[blackraven14250]

They'll weep if the precedent is now set closer to 35 cents a song and not $150,000.....

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.

How legal briefs work

[TinBromide]

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..."

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: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: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

[AshtangiMan]

I think the crux of how slanted your view is is nicely summed up by your use of the word mislead. The law is a complex area. What nycl gives us very generously is succinct cogent explanations of the case, the body of law and precident that relates, and an interpretation based on his subjective view. You are welcome to take the first two and provide your own interpretation.

Re:How legal briefs work

[nudicle]

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)

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.

Re:How legal briefs work

[NewYorkCountryLawyer]

Interestingly, Judge Gertner in the Tenenbaum trial is quite pro-little guy. Take a look at most of her decisions, and she really tries to help defendants.

That is a ridiculous assessment. Judge Gertner has been the best friend the RIAA has had in the US to date. She consolidated all of the hundreds of Massachusetts cases under her watch, and she's never ruled in favor of a defendant. She's upheld every subpoena, and entered every judgment, and signed every ex parte order that's been presented to her by the RIAA over a 7 year period, except for a few fine distinctions on minor procedural issues during the past year and a half. I'm convinced you are just a dishonest person and I wish you'd STFU rather than keep on trying to mislead the nonlawyers here.

Re:How legal briefs work

[NewYorkCountryLawyer]

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.

Well I'm a lawyer. I have to work with what the law is. I have written elsewhere, in the ABA Judges Journal, about the unfairness of the way these cases work out in practical reality, due to the economic imbalance between the litigants. But when I bring that type of issue up here, I get accused of 'playing violins'.

Here I'm dealing with readers who are largely (a) very intelligent, (b) educated, (c) interested in hard news and substance rather than "human interest", and (d) intensely interested in copyright law as it bears upon digitalization, software, and the internet. So I try to confine myself to discussing (a) the legal events and (b) the legal issues to the extent I can comment on them without disclosing thoughts I haven't yet disclosed in publicly filed litigation documents.

You don't need yet another voice here griping about the RIAA's improper influence on Congress, and even on the Department of Justice. I'm aware of those things, but have nothing special to say about them.

And most importantly, the life of a lawyer is all about "practical reality". My practical reality is the given facts, and the given law. I do the best I can in that world.

Re:How legal briefs work

[NewYorkCountryLawyer]

And as to 'how the law should be'.... you've never heard that from me. I have never ever discussed that publicly. That's for Lawrence Lessig, and Charles Nesson, and other academics. As a litigator I take the law that is. No more and no less.

In the cases I've been involved in the only "activists" have been the RIAA lawyers, making arguments that have no basis in existing law. You have never seen me do that, in my court papers, or here.

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:Nicely Written Brief

[h4rr4r]

Looting removes physical goods, this is just breaking of a monopoly. Considering that this monopoly has now been extended so often perhaps piracy is the morally correct thing to do.

I do not participate in these activities, but I can see the rationale. I cannot however seen any relation between infringing on a government granted monopoly and the taking of actual goods.

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:Only initial seeders liable?

[pookemon]

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.

Re:NewYorkCountryLawyer is dishonest

[Theaetetus]

Please show me in his post where he says that damages should only count for the original download. You seem to be putting words in his mouth.

"record company's lost profit is in the neighborhood of 35 cents"

That statement can only be true if you're talking about the original download. Distribution rights are far more expensive.

Re:Only initial seeders liable?

[Tiger4]

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.

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: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.

Distribution

[NewYorkCountryLawyer]

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.

Re:Distribution

[NewYorkCountryLawyer]

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, and what the axe is that you have to grind. Your motivations are quite suspect. You have some gall to call me a coward.

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. 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.

Re:Distribution

[Wizard Drongo]

I would note that if someone says "I did this then that then this", and if pressed if they committed distribution said "I don't know what that is, and that's for the court to decide", then they've not admitted distribution;
Sometimes, slimy prosecutors will try and get defendants to admit their guilt by asking them questions they lack the legal competency to understand. To me, the word "distribute" means to spread something around, make it accessible to others". To a lawyer it has a set statutory meaning, confessing to which means you have committed a crime (or a civil infringement; means something different in US law to Scots law I imagine). For a lawyer to get some Joe on the stand and make him say "distribution" when they're not fully aware of that difference is disingenuous.

Re:NewYorkCountryLawyer is dishonest

[h4rr4r]

So how has radio not yet put them out of business?

Re:NewYorkCountryLawyer is dishonest

[Theaetetus]

And why is this distribution right worth $30k?
Say he distributes it to 1 person, and they distribute it to 1000 people, what sense does it make for him to be responsible for 1001 redistributions?

Say you have an exclusive monopoly on something - say you create a new Mona Lisa, or discover a new way to make jet fuel out of water. You can charge whatever the market will bear for your painting or fuel because you have a natural monopoly.
Now say someone sneaks in and makes a copy of your painting, or steals your exclusive formula, and they give it away for free. Now, you can't charge anything, because any potential customer will just get it for free. Poof - your hard work is gone. It doesn't matter whether 100 people make jet fuel from water or 1 million people do - you can't make anything from your invention, even if it cost you a million dollars to research and develop, because anyone can get the information for free.

The first distribution destroys the exclusivity, and most of the value is in the exclusivity. Therefore, the first unlicensed distribution destroys most of the value of the property.

To put it in terms of your exclusive distribution right view:
If I upload a copy of your music to someone else, I've deprived you of 1 sale, but I've done no more damage to your ability to further distribute your track than you're doing to yourself by selling it to anyone who'll buy.

... provided that my potential customer will only purchase from me. But when I'm charging $1 for the song and you're giving it away for free, why would they go to me?

If it were some sort of unreleased track then I would be denying you your exclusivity in being able to distribute the track, and if I were to be the source of that getting onto X filesharing network then I would be doing you a lot of damage, but once you start selling it to all and sundry, I'm only costing you the lost sale for the people I distribute it to. Unless you want to get into some really messy argument about the second person not having had the opportunity to distribute it if they hadn't got it for free.

Sure, any person along the chain could have been the one to upload it for free to the net... But you did it, and I can prove you did it. Therefore, you're responsible. The statute doesn't require that the plaintiff find the sole uploader or original uploader... any infringer is liable. Basically, the defense "but it was already online, so when I distributed it, I wasn't causing additional harm" may sound good but isn't supported by the statute, and any judge who accepted it would be reversed immediately.