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]

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: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: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: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: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: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.