RIAA's Tenenbaum Verdict Cut From $675k To $67.5k

NewYorkCountryLawyer writes "In SONY BMG Music Entertainment v. Tenenbaum, the Court has reduced the jury's award from $675,000, or $22,500 per infringed work, to $67,500, or $2,250 per infringed work, on due process grounds, holding that the jury's award was unconstitutionally excessive. In a 64-page decision (PDF), District Judge Nancy Gertner ruled that the Gore, Campbell, and Williams line of cases was applicable to determining the constitutionality of statutory damages awards, that statutory damages must bear a reasonable relationship to the actual damages, and that the usual statutory damages award in even more egregious commercial cases is from 2 to 6 times the actual damages. However, after concluding that the actual damages in this case were ~ $1 per infringed work, she entered a judgment for 2,250 times that amount. Go figure." That $2,250 per infringed work figure should look familiar from Jammie Thomas-Rassett's reduced damages judgment — $54,000 for 24 songs.

Comments

Still..

[Anonymous Coward]

Still getting screwed

What difference does it make?

[Zironic]

Isn't that still way more then most people can reasonably pay and completely disproportionate to the actual damages caused? He'll probably still have to declare bankruptcy.

Re:What difference does it make?

[MozeeToby]

It's more than most people have liquid but it's certainly not more than most people can reasonably pay. After all, most adults have a house, a car, and if necissary wages for the next 10 years. It's not like they expect you to write out a check the day after the trial is over. Yes, it's still wildly disproportionate, but at least it I am mentally capable of imagining it is an amount the people who wrote the law might have expected; something that I can't say about the original award.

Re:What difference does it make?

[Monkeedude1212]

Isn't that still way more then most people can reasonably pay and completely disproportionate to the actual damages caused? He'll probably still have to declare bankruptcy.

While completely disproportionate to actual damages, that is easily within a payable range (though not all at once).

It's less than a house, and there are people who can afford two of those. If they make him do monthly installments over 6 years he should be able to pull it off.

Re:What difference does it make?

[Monkeedude1212]

Ouch, I was just answering the question. I wasn't siding with them or anything.

Re:What difference does it make?

[commodore64_love]

>>>completely disproportionate to the actual damages caused

It appears the judge determined actual damages to be $2250 / 6 == $375 per song (minimum). Maybe she's taking into account prosecution costs (lawyers, security specialists to track the downloader, programmers, et cetera)
.

Re:What difference does it make?

[commodore64_love]

>>>an amount the people who wrote the law might have expected

Not really. The lawmakers established a fine of $250,000 per song. They'd probably be disappointed to see it reduced to just over $2000

Re:What difference does it make?

[MozeeToby]

No, the lawmakers established a range of $350 - $250,000 per song, depending on the circumstances of the infringement. I refuse to believe that they intended for the top end of that spectrum to be applied to situations such as these. While this was clearly not the most innocent type of infringement (something like burning a mix CD would qualify in my mind (not that I agree that it should be against the law, only that according to the law that is infringement and if it must be punished should be punished with the smallest award legally applicable)). At the same time it is far from the most heinous infringement (something like a major bootlegging operation selling thousands of copies at a profit).

Re:What difference does it make?

[SnarfQuest]

Maybe they are taking their rates from the toner industry. You pay >100x more for toner than you do for the same amount of beer.

Re:What difference does it make?

[BonquiquiShiquavius]

Read the decision. The judge agrees with you. She finds the original award unconstitutionally excessive, and thus has grounds to reduce it; however, she still must still respect the findings of the jury, who were "going for broke" in her words. In this case, determining the size of the award fell to the jury, not the court. There's only so much she could do.

Actually there's probably only so much the jury could do as well, given that Tenenbaum not only admitted to years of copyright infringement, but also admitted to lying about it to authorities when caught. No jury likes a weasel.

Re:What difference does it make?

[Lloyd_Bryant]

... an amount the people who wrote the law might have expected

Not really. The lawmakers established a fine of $250,000 per song. They'd probably be disappointed to see it reduced to just over $2000

I doubt it. When the law was written, it was written to cover commercial infringement, as at that time there was no technology that would have allowed for the wide-spread non-commercial infringement that is commonplace today.

The law really needs to be rewritten to differentiate between the two, with reasonable (if any) penalties for P2P type infringement. However, given the current influence of the media corporations with government, maybe we should leave well enough alone...

Re:What difference does it make?

[Anonymous Coward]

You think most people will need to declare bankruptcy because they have to pay 67K? You must be a student...or financially inept. If you were to make payments on this over 30 yrs it might end up being something like $400/month.

As a software engineer with a middling salary...I could pay this. It'd be a huge pain, but I could do it. So I imagine others could could do the same.

Now...I agree that this is an absurd amount. $100 a song would be more reasonable.

Re:What difference does it make?

[NecroPuppy]

It's a 750 dollar minimum with, as I recall, a few criteria that can allow for triple damages, such as willfull infringement.

So really, that is, by law, the miminum he could have been hit for.

Ultimately, if the RIAA decides to go back on the "sue-em-all" bandwagon, they'll just start raising the number of songs. Instead of going after someone for 24 songs, they'll instead go after them for 100 songs.

Re:What difference does it make?

[sconeu]

A mix CD is *NOT* infringement. That's an obvious case of Fair Use.

Re:What difference does it make?

[RobertM1968]

It's more than most people have liquid but it's certainly not more than most people can reasonably pay. After all, most adults have a house, a car, and if necissary wages for the next 10 years.

So, you are saying that because someone is capable of selling their house and car to pay $67,000 for sharing 24 songs, that it is a reasonable expectation?

It's not like they expect you to write out a check the day after the trial is over.

Are you sure about that? Most companies I have ever seen (ones far less evil than the RIAA) expect, on determination of a judgment amount, that you will do exactly that or they take other measures to collect said judgment - all while adding exorbitant interest and fees (legal, collection and otherwise) to the amount. As a matter of fact, such practices were part of the reason for the Homestead law in Florida (and similar ones elsewhere) because such "collection" activities often included going after such personal property as one's house and car.

Yes, it's still wildly disproportionate, but at least it I am mentally capable of imagining it is an amount the people who wrote the law might have expected; something that I can't say about the original award.

Well, I am sure that the people who lobbied for and/or sponsored those penalties as defined in the law (the RIAA and MPAA and their members) definitely imagined and hoped for such amounts - and obviously more (based on the original judgment amount) when they pushed for this. I suspect that those who wrote the law went in to it fully expecting such amounts as well, fully knowing what the **AA's expectations were on the matter. That has nothing to do with whether either judgment fits the "crime" though. So... I guess I concede that point to you. ;-)

Re:What difference does it make?

[flaming error]

> it's certainly not more than most people can reasonably pay
Perhaps most people in your social circle could pay that, but not most people in America.

Median income is around $50K/year.

The average amount of "disposable income" that is saved lately varies between -2% and +2%.

Paying off $7K/year would require 14% of the median income. I suppose one can survive on that, if one cuts back on luxuries like clothes, meat, and gasoline. And pirates their music.

Re:What difference does it make?

[Zironic]

Last time I saw the numbers I think the median net worth of a Swedish citizen was around $1000. This is because while they do have a car and a house they're both bought with borrowed money leaving them with very little ability to achieve liquidity and why wouldn't they expect you to write out a check the day after the trial is over?

Re:What difference does it make?

[webheaded]

What? It's $2,250 per song. Didn't you even read the SUMMARY, for crying out loud? Total reward was $67,500. That is still insane. Making someone pay $67k (the price of a really crappy house basically) is absurd. Many people have already mentioned that this law was intended to apply to COMMERCIAL copyright infringement. These people made no money at all. The damages sustained are VERY much arguable. The amount they ended up with is ridiculous and this person will probably STILL have to claim bankruptcy. These people are being abused, plain and simple. I cannot state clearly enough what a gross abuse of the legal system this is. They're printing money. That's not what these laws are for.

Re:What difference does it make?

[VocationalZero]

However, given the current influence of the media corporations with government, maybe we should leave well enough alone...

You're going to have to; their lobbies have a fair degree of control over every political party in every branch of government, so there is no way to vote against their agenda.

Re:What difference does it make?

[Solandri]

I doubt it. When the law was written, it was written to cover commercial infringement,

Yes, that's a very important point to remember. The laws were written to discourage commercial pirates. If they made and sold 10,000 illegal copies of a CD, they made 10,000x as much money as if they only sold one. The more copies they could sell, the more they would benefit. So a fine like $250,000 per song made sense to discourage them.

But on the same token, it makes absolutely no sense to apply that fine to personal copyright infringement. By definition, the personal infringer is only interested in one copy. S/he cannot benefit from making nor providing more than one copy (indeed, as many filesharing networks have found out, the incentive to leave the network as soon as they've gotten their one copy gives rise to "leechers"). So just fining them for the one illegal copy is disincentive enough. Figure $25 for a CD, treble damages for willful infringement, and a little extra for the copyright holder's and government's time and effort, and you're in the $100-$200 range per CD.

This gets into another aspect of this whole thing which is just wrong. The *AA are essentially double-dipping. When they bring a file-sharer to trial, they bemoan how the lone person made the song available to thousands of other people, and so the fine should reflect all those copies. But if that's their reasoning, then the moment they get a judgment for $54,000 against one person, that should indemnify all the people who got files from her from further prosecution. After all, by the *AA's own argument, the fine she's paying is for all those copies, not just hers. So the defendant(s) has been punished and fined, and the *AA recompensed for those thousands of copies and made whole. But no, they go right on filing lawsuits against all those other people.

Either haul one person to court and make them pay these huge fines, and indemnify the rest of the people from prosecution for that infringement. Or try each person in court for their single infringement. You cannot have it both ways and fine every single person for his/her infringement plus the infringement of every other filesharer, and do the same for every other filesharer. Much like if you file suit against a commercial pirate, the people who bought CDs from that pirate are not liable for infringement.

Re:What difference does it make?

[ThorGod]

Upon hearing the judgement, I thought the same. It seems the court is just looking to lynch the accused's financial life. I can't help but feel that's excessive.

I'm pretty sure judgements are binding beyond bankruptcy. There's simply no getting away from that debt (presumably for good reason).

Re:What difference does it make?

[Etcetera]

Isn't that still way more then most people can reasonably pay and completely disproportionate to the actual damages caused? He'll probably still have to declare bankruptcy.

Don't do the crime, if you can't do the time.

See that FBI/INTERPOL message in the front of every video or DVD? When you copy it, you're making a risk assessment that if you get caught they're not going to put the full weight of the statutory limit against you --- but that's a risk.

If you really want change, push for a change of the law and sentencing guidelines. $2250/song is still high, but it's within the realm of reason. Hell... in California you get fined $1000 for littering on the freeway; and I'm sure some judge has tried to make that "per item" instead of "per distinct offense".

Re:What difference does it make?

[PopeRatzo]

While completely disproportionate to actual damages, that is easily within a payable range (though not all at once).

Is this the new standard for corporate extortion? "It's completely disproportionate, but if he's willing to give up his life and future he can pay it".

It's bad enough that the system in the US (and most western countries) has become a simple matter of re-distributing wealth from the working class to the ownership class, but this is simply economic terrorism. Create a penalty that is so disproportionate that it frightens anyone who might consider not giving money to the corporation. Make it so that people are afraid to post their own original work to YouTube because the RIAA is likely to send a C&D letter "just in case". Send C&D letters when people use Creative Commons to make sure they learn who's boss. Make everyone pay and pay until they're willing to open their wallets, just to be left alone. Have the corporate media repeat the notion that anyone who believes in the public domain, anyone who might consider alternatives to old-fashioned copyrights is labeled a "pirate" or "anti-copyright radical".

Make public libraries emblematic of "big government" and "socialism" so that municipalities who withdraw funding for those libraries seem patriotic. Equate regulation of business with tyranny.

The new corporatism is much, much more dangerous to our society than terrorism.

Re:What difference does it make?

[gnasher719]

A mix CD is *NOT* infringement. That's an obvious case of Fair Use.

Copyright law disagrees with you. "Fair use" would be a CD on which you record your own one hour blog about the evolution of rock music from 1960 to 2010 and add a few ten second samples to clarify the points that you are making. A mix CD containing _complete_ songs or large parts of songs is definitely not "Fair use".

Re:What difference does it make?

[Kjella]

So, you are saying that because someone is capable of selling their house and car to pay $67,000 for sharing 24 songs, that it is a reasonable expectation?

You're abusing what the parent said, a person can "reasonably pay" that sum without making unreasonable assumptions like winning the lottery, that doesn't say anything about whether it's a reasonable penalty or not. If it was $675k then any normal person can just declare bankruptcy right away, they'd never manage to pay it back.

Re:What difference does it make?

[Anonymous Coward]

You seem to be missing the point that this is a penalty for being found guilty of copyright infringement. Suppose the penalty were 3 months of prison time, would you argue against that since it's too "inconvenient"?

Re:What difference does it make?

[Kjella]

The usual rule of thumb is that you can manage 3x your income in debt, and I found that the average US private debt was $55k. Add $67k on top, and you're not cutting luxuries, you're bargain shopping for necessities and get clothes from the salvation army.

Re:What difference does it make?

[commodore64_love]

If you own all the original CDs or AACs that the mix cd was created from, that is fair use..... or at least it should be.

Re:What difference does it make?

[commodore64_love]

>>>Didn't you even read the SUMMARY, for crying out loud?

I did read the summary but apparently you did not. Quote: "District Judge Nancy Gertner ruled that the usual statutory damages award in even more egregious commercial cases is from 2 to 6 times the actual damages." So since she awarded 2250 per song, she must be figuring the per song cost is 2250/2 == $1125 actual damages. Or 2250/6 == $375 actual damages. The latter makes more sense
.

Re:What difference does it make?

[RobertM1968]

So, you are saying that because someone is capable of selling their house and car to pay $67,000 for sharing 24 songs, that it is a reasonable expectation?

You're abusing what the parent said, a person can "reasonably pay" that sum without making unreasonable assumptions like winning the lottery, that doesn't say anything about whether it's a reasonable penalty or not. If it was $675k then any normal person can just declare bankruptcy right away, they'd never manage to pay it back.

Wrong, I am not in any way abusing that. If selling one's house is the way to "reasonably pay" such a fine, then explain what is reasonable about it?

And wrong on the second part as well - you cannot escape a *legal* judgment by declaring bankruptcy. This isn't a debt. It's a court ordered judgment for violating a civil law.

Re:What difference does it make?

[Joe Snipe]

One thing to keep in mind: The RIAA cannot afford to keep trying these cases if they keep getting such paltry sums. The lawyers alone are expecting to earn more than that.

Re:What difference does it make?

[nedlohs]

And poor child molesters spend years in prison, which also incurs a cutting back on luxuries.

Don't steal the fucking music in the first place seems the simple solution.

Re:What difference does it make?

[flaming error]

Why is "inconvenient" in quotes? I never used that word, nor did parent.

But I would argue that a penalty of 3 months in prison for copying $24 worth of songs is bat-shit insane.

Re:What difference does it make?

[flaming error]

> Don't steal the fucking music in the first place
Interesting point. But good luck convincing the RIAA - I doubt they'll ever stop stealing and fucking musicians.

Re:What difference does it make?

[cynyr]

I don't know, I think I'd take 3 months in jail over a 675k or even a 67.5k "fine". Seems like I would need to be making over 240k/year for it to be more expensive(overall), and thats just the 67.5k award, or 2.7million/year for the larger award.

I would argue against the 3 month sentence, as i can drive home drunk, physically endangering hundreds of people and get far less than that for a first time offense.Maximum penalty for a first time offender with no aggravating factors, with no priors, is 30 days and/or $1000, and goes up to 3000 and 1 year for two+ aggravating factors, in the state of Minnesota[1]. So yes, sharing 24 songs a few hundred times, for no commercial gain, seems to me to be less of an issue than driving with a .19 BAC by yourself home from the bar. Think of how many traffic lights are between your bar, and home. How well could you drive with a .19BAC(0.08BAC is the limit in Minnesota). Now i'm not saying that driving below .08 is legal, it's just a DUI instead of a DWI[1]. Your second offense in 10 years is 2 days in jail/workhose and 8hours community service per day less than 30 days in jail[2].

So yes, a basicly harmless act(at most a few hundred dollars of losses, counting the cost of each album shared* number of times shared to a unique computer), is getting someone a 67.5K fine, but no jail time, and no community service. You would need to pay back around 7k a year to pay it off, with interest, in ten years.

Not stating that drunk driving is good, to be honest I think the penalties aren't harsh enough, but then if you take away a license to drive in the USA you really have no other option. Go us not wanting to pay for anything that someone else might use.

[1] http://dwi-minnesota.com/mn-penalties.html
[2]http://dwi-minnesota.com/mandatoryminimum.html

Re:What difference does it make?

[cynyr]

yep i copied it all right, to my harddrive to stream to my ps3 in my living room. They have not been released to the public, and i own >95% of the content of my movies folder. 4% of it is friends/family owned stuff. leaving just around 1% of "bootleg" stuff.

Still worth 2250/movie?

For the record around 1/3 of my music collection is from an ex girlfriends collection that I ripped. Some of which I actually bought and paid for and gave to her, where she then let me rip the CD later. Others of it is from official Youtube pages or sites, where I grabbed the stream and saved it. To be honest I could just pull them up again, but no one has written a music player that will let me shuffle them into my normal collection, and again, my PS3 doesn't do that either. I know I know, page views, if you would like I could write a script to go and fetch those sites with chrome 2-3x a day, so it would look like views.

Re:What difference does it make?

[Anonymous Coward]

Yes. But also to clarify:
Creating the mix CD is OK.
Giving the mix CD to someone else - not so OK.

Re:What difference does it make?

[linuxrocks123]

> And wrong on the second part as well - you cannot escape a *legal* judgment by declaring bankruptcy. This isn't a debt. It's a court ordered judgment for violating a civil law.

You are dead wrong about this: http://www.ehow.com/facts_5689609_can-bankruptcy-after-court-judgment_.html

Relevant snippet:
The general rule is that bankruptcy discharges all judgments. However, bankruptcy does not discharge judgments for family support obligations, government-imposed fines or penalties, or taxes.

---linuxrocks123

Re:What difference does it make?

[Reziac]

I'm wondering when these penalties will become conflated with civil asset forfeiture, allowing the offended agency to simply grab anything of yours that they deem to have "committed an offense" or that might "be at risk". I think this is coming (it is already here in some other venues).

Re:What difference does it make?

[Reziac]

But your cite includes this:

5. If you broke a law and were ordered by the court to pay a fine or penalty, your financial obligation will not be discharged in bankruptcy.

Doesn't that mean that judgments on behalf of the RIAA, since they're based on "a fine for breaking a law", would NOT be discharged via bankruptcy??

Regardless, half an average mortgage is hardly reasonable as a penalty for what amounts to digitally shoplifting 2 or 3 CDs. If you were to shoplift the real thing, your penalty would be nowhere near that much.

Re:What difference does it make?

[linuxrocks123]

No, because the RIAA's suit is civil, not criminal. If a district attorney charged you and found you guilty of criminal copyright infringement, then the debt would not be dischargeable. However, that would be a completely different situation: the standard of proof would be "beyond reasonable doubt" instead of "preponderance of evidence", the statute has a few additional requirements (can't remember what they are right now), and district attorneys generally can't be arsed to sue random people from the Internet for downloading $1 songs.

---linuxrocks123

Re:What difference does it make?

[Runaway1956]

"Giving the mix CD to someone else - not so OK."

Not exactly true. Copyright law is aimed at commercial enterprise. For me to create, then GIVE AWAY a CD, or a dozen CD's, isn't exactly a commercial endeavor. Only if I CHARGE for distributing those CD's do I begin to infringe upon anyone's exclusive right to make money from their songs.

And, that is precisely WHY there is a sliding scale of penalties involved. Any infringement trial should be working hard to determine the motivation for the "distribution", the scale of the operation, number of people involved, gross profits, etc.

Joe Blow grabbing a few songs off the internet, then sharing a little bandwidth via torrent isn't exactly a high profile high profit infringement on anyone's works.

Re:What difference does it make?

[Anonymous Coward]

Copyright law disagrees with you ... A mix CD containing _complete_ songs or large parts of songs is definitely not "Fair use".

Copyright law disagrees with you. The judge in the RIAA vs. Diamond Multimedia case ruled that space shifting was a paradigmic example of legal Fair Use. FYI, the Supreme Court ruled in the Sony vs. Universal Studios ("Betamax") case that time shifting was legal Fair Use even though it involved the copying of complete works.

Re:What difference does it make?

[Anonymous Coward]

It's still 100x too high.

Re:What difference does it make?

[Anonymous Coward]

Yeah, it'll still break him, but then, that seems to be in keeping with SONY's overall gameplan anyway. Frankly, it doesn't seem to matter if you're their customer or their enemy, SONY will find a way to get a heel in your face.

Re:What difference does it make?

[afidel]

Do you have more than $67k in net assets outside your 401k or other retirement accounts? If not then it probably makes sense to declare bankruptcy in a case like this.

Re:What difference does it make?

[shutdown -p now]

It's a 750 dollar minimum with, as I recall, a few criteria that can allow for triple damages, such as willfull infringement.

The lower bound is the same - $750 - regardless of whether the infringement was willful or not. However, the upper bound changes from $30k to $150k in the case of willful infringement.

However, it's interesting to read the actual reasoning by which the judge arrived to the given figure (which is $750 x 3). Seriously, RTFA!

For the reasons I discuss below, I reduce the jury’s award to $2,250 per infringed work, three times the statutory minimum, for a total award of $67,500. Significantly, this amount is more than I might have awarded in my independent judgment. But the task of determining the appropriate damages award in this case fell to the jury, not the Court. I have merely reduced the award to the greatest amount that the constitution will permit given the facts of this case.

There is no question that this reduced award is still severe, even harsh. It not only adequately compensates the plaintiffs for the relatively minor harm that Tenenbaum caused them; it sends a strong message that those who exploit peer-to-peer networks to unlawfully download and distribute copyrighted works run the risk of incurring substantial damages awards. Tenenbaum’s behavior, after all, was hardly exemplary. The jury found that he not only violated the law, but did so willfully.

Reducing the jury’s $675,000 award, however, also sends another no less important message: The Due Process Clause does not merely protect large corporations, like BMW and State Farm, from grossly excessive punitive awards. It also protects ordinary people like Joel Tenenbaum.

In other words, she started from the figure provided by the jury, and then tried to reduce it as much as possible. She seems to be doing this specifically by looking at numerous other cases in which punitive damages were awarded to arrive at the reasonable absolute figure, as well as a reasonable ratio of punitive amount to compensation for the plaintiff:

Notice of section 504(c)’s extraordinarily broad statutory damages ranges, standing alone, does not in any meaningful sense constitute “fair notice” of the liability that an individual might face for file-sharing. In a case of willful infringement such as this one, the maximum damages per infringed work -- $150,000 -- are 200 times greater than the statutory minimum of $750. Since the jury found that Tenenbaum willfully infringed thirty copyrights, its award could have ranged from a low of $22,500 to a high of $4,500,000. For anyone who is not a multi-millionaire, such “notice” is hardly more illuminating than the notice that BMW and State Farm had that their fraudulent conduct might lead to the imposition of a punitive damages award ranging from $0 to infinity.

Since section 504(c) failed to provide Tenenbaum with fair notice of the liability he could incur for filesharing, it is imperative that I review other copyright cases to determine whether the jury’s $675,000 award here fell within a discernible pattern of awards of which Tenenbaum could have taken note, or was instead an unforeseeable outlier. ...

I conclude that an award of $2,250 per song, three times the statutory minimum, is the outer limit of what a jury could reasonably (and constitutionally) impose in this case

Then the explanation as to why the 3x multiplier over the minimal amount of $750: ... there is a long tradition in the law of allowing treble damages for willful misconduct. ... Given the record before me, I conclude that the most reasoned approach is to reduce the jury’s award to three times the statutory minimum. Although this decision will not be entirely satisfactory to some, it at least has the virtue of finding some basis in the long history of courts and legislators sancti

Re:What difference does it make?

[flosofl]

I think what you're describing (the charging for distribution) is called criminal copyright infringement. It has much steeper fines and could involve jail time.

Making a mix tape (or CD) and giving it to a friend gratis, is still copyright infringement, but I believe it's only a civil matter at that point. Tanenbaum was sued in civil court, (the RIAA's mentions 10 jurors in their response to the ruling). It's only when you start charging money when it becomes criminal (and the federal government attacks your ass).

I could be wrong, but I'm fairly sure that's how it currently works (or rather doesn't work IMHO).

Re:What difference does it make?

[RobertM1968]

> And wrong on the second part as well - you cannot escape a *legal* judgment by declaring bankruptcy. This isn't a debt. It's a court ordered judgment for violating a civil law.

You are dead wrong about this: http://www.ehow.com/facts_5689609_can-bankruptcy-after-court-judgment_.html

Relevant snippet: The general rule is that bankruptcy discharges all judgments. However, bankruptcy does not discharge judgments for family support obligations, government-imposed fines or penalties, or taxes.

---linuxrocks123

Ah... I see.

Oh, wait, I dont - because even the section that YOU pointed out says YOU are wrong and I am correct (see bolded). Perhaps you should read THIS section, which goes into more detail (ie: the actual LAW regarding it):

11 USC 523 Exceptions to Discharge...

(a)(19)(B)(iii) any court or administrative order for any damages, fine, penalty, citation, restitutionary payment, disgorgement payment, attorney fee, cost, or other payment owed by the debtor.

Re:What difference does it make?

[RobertM1968]

Again, the law does not specify the difference. It simply states:

11 USC 523 Exceptions to Discharge...

(a)(19)(B)(iii) any court or administrative order for any damages, fine, penalty, citation, restitutionary payment, disgorgement payment, attorney fee, cost, or other payment owed by the debtor.

Re:What difference does it make?

[Securityemo]

I don't care about what the law says - putting someone into financial ruin for such a petty crime is clearly horrendously evil. Nitpicking only serves to obfuscate the basic injustice of it. The law (your law, I don't live in the US) is corrupt.

Re:What difference does it make?

[Anonymous Coward]

Any amount of money is too much since this is a bullshit non-crime. Intellectual property infringement should be socially stigmatized and nothing more.

Re:What difference does it make?

[Anonymous Coward]

But on the same token, it makes absolutely no sense to apply that fine to personal copyright infringement. By definition, the personal infringer is only interested in one copy. S/he cannot benefit from making nor providing more than one copy (indeed, as many filesharing networks have found out, the incentive to leave the network as soon as they've gotten their one copy gives rise to "leechers"). So just fining them for the one illegal copy is disincentive enough. Figure $25 for a CD, treble damages for willful infringement, and a little extra for the copyright holder's and government's time and effort, and you're in the $100-$200 range per CD.

This is incorrect. As it cost far, far more than $200 to bring the case, a damage award in that range would pretty much guarantee that prosecuting individuals can safely download music, disregarding copyright. I realize that this is the desired outcome for most of slashdot, but it is not the intent of the law, nor is it how the court decides damages.

Even if you want to do a purely economic argument and focus on the award, I have trouble seeing $200 as being remotely close to a disincentive. A song costs $1--let's say it's worth only twenty-five cents to me. If I download it for free, and as many as 0.01% of downloads get caught and proven in court, you'd need the fine to get up to $2500 to make it an economic wash.

This still misses the point, though, as the purpose of large awards in these cases are specifically to be punitive. People are doing something, they know it is wrong, but they will probably get away with it--the punishment when they get caught needs to be sufficiently severe to be scary and frightening.

Re:What difference does it make?

[shaitand]

In your world most adults own a house, a car, and have spare wages? Where do you live? Must not be the US.

Re:What difference does it make?

[shentino]

It's not a fine, it's a judgment for damages.

Re:What difference does it make?

[Anonymous Coward]

It is, is part of backup. I can backup different songs in different cds or mix them up, as long as I don't circumvent the DCMA (so you can't do the same with a dvd or bluray).

Re:What difference does it make?

[shaitand]

"bankruptcy does not discharge judgments for family support obligations, government-imposed fines or penalties, or taxes."

A court civil judgement is not a government imposed fine or penalty. A fine or penalty is something criminal court issues when you break the law. Copyright infringment (at least this kind) is a civil matter.

It is no different than if we had a contract and I broke it and the court ruled in your favor and ordered me to pay you. I didn't break that law, it isn't a fine or (government imposed) penalty. It would be discharged.

It really doesn't matter what you quote from the law or how clear you think it is. What matters is how the courts interpret the law and they discharge civil judgements all day long in bankruptcy.

Re:What difference does it make?

[shaitand]

False nobody was found guilty and this is not a penalty/fine. This is a civil judgement for copyright infringement. You don't get found guilty of civil issues, a court just determines that you PROBABLY wronged a party and owe them a debt.

Re:What difference does it make?

[shaitand]

I could literally walk in a store and steal a $24 item in front of a cop and get no jail time and walk away with a $100 fine.

Re:What difference does it make?

[shaitand]

She also redefined the maximum fine for willful infringement of this type to $2250. Her judgement didn't say it was a reasonable fine, it said it was the most a jury could constitutionally impose.

Re:What difference does it make?

[shentino]

True, but in order to go through bankruptcy you will probably have to surrender significant amounts of property.

Re:What difference does it make?

[Aeternitas827]

This is incorrect. As it cost far, far more than $200 to bring the case, a damage award in that range would pretty much guarantee that prosecuting individuals can safely download music, disregarding copyright.

Yes, the court costs and attorney's fees raise the amount to bring a case. However, the available remedies should not inherently consider that as a basis for larger awards; the plaintiff is at liberty to bring suit, or not to; and in making that choice they should consider if the possible award will be sufficient when costs are considered. Sufficiently high damages by default (especially in this type of case where the damages are awarded per item) lead to a situation where the choice is more frequently to head to court--it's too lucrative, and may not reasonably reflect such costs. Overall, it's really not the way it should be, but then again. attorneys probably don't need to charge quite so much...but that's a talk for another day.

It is also important to note that in many civil cases, attorney's fees are not given to the victor either way; I'm not sure this is codified anywhere in law, or whether it's just precedent, but I find it difficult to think that Congress would work around that by inflating statutory damages with a piece of legislation. (Sidenote on this--Wikipedia mentions copyright cases as an exception, but I can't find the source nor reference in Thomas-Rasset or Tenenbaum that they were awarded).

Re:What difference does it make?

[linuxrocks123]

You provided insufficient context for this citation. Here is the full section:

(19) that--
(A) is for--
(i) the violation of any of the Federal securities laws (as that term is defined in section 3(a)(47) of the Securities Exchange Act of 1934), any of the State securities laws, or any regulation or order issued under such Federal or State securities laws; or
(ii) common law fraud, deceit, or manipulation in connection with the purchase or sale of any security; and
(B) results, before, on, or after the date on which the petition was filed, from--
(i) any judgment, order, consent order, or decree entered in any Federal or State judicial or administrative proceeding;
(ii) any settlement agreement entered into by the debtor; or
(iii) any court or administrative order for any damages, fine, penalty, citation, restitutionary payment, disgorgement payment, attorney fee, cost, or other payment owed by the debtor.

As you can see, the exception you cite exempts certain debts resulting from securities fraud from bankruptcy discharge and is not relevant to our discussion.

---linuxrocks123

Re:What difference does it make?

[xero314]

What kind of deterrent, one of the reasons for fines, would it be if it was easy to pay. You make the fine $24 dollars and people would distribute copyrighted material all day long. The purpose of a fine is not just to punish the current violator, it's to make sure that no one else wants to take the risk in the future. I'm not saying the law or the ruling are correct, I'm just saying that if we accept any fine as being acceptable then it better be large enough to keep it from ever having to happen again.

Re:What difference does it make?

[xero314]

I don't know, I think I'd take 3 months in jail over a 675k or even a 67.5k "fine". Seems like I would need to be making over 240k/year for it to be more expensive(overall), and thats just the 67.5k award, or 2.7million/year for the larger award.

You are missing a lot of factors in your equation. 3 months of jail time does not cost you 3 months pay. It cost you your job, and depending on what type of work you do, if can cost you your career. depending on you savings, it could cost you a foreclosure on your home and a repossession of any thing you are financing. I can tell you for me, and other's in a similar position, 3 months in jail would cost me millions over the rest of my life. Given the choice between a 67.5k fine and 3 months in jail, there would be no question, the fine is the way to go. But this is why I avoid breaking laws that I am not willing to lose my lively hood over.

Re:What difference does it make?

[uglyduckling]

This whole thread is arguing two different things. Taking it as read that the fine is still totally unreasonable and unjust in the context of this case, can you not understand that it is possible, in general for many people to eventually pay of a $67k fine, whereas ten times that amount would be impossible regardless of whether the reason for imposing it was just or unjust?

Re:What difference does it make?

[Rogerborg]

He's a lawyer. Chances are, he'll pay it off in 6 months, using money stolen from widows and orphans.

Re:What difference does it make?

[adolf]

My first house was $65,000, 3 bedrooms, 1,200 square feet, nicely finished.

My current house was $55,000, 5 bedrooms, 2,200 square feet, not quite done yet.

Perhaps you live somewhere that housing expenses (and median income) is greater, but I would not have been able to pay either of them off in six years.

Re:What difference does it make?

[Anonymous Coward]

In other words, she started from the figure provided by the jury, and then tried to reduce it as much as possible.

Wrong. In fact, she did the exact opposite; she tried to reduce the figure provided by the jury as LITTLE as possible. Her only criterion was that the figure should actually end up being constitutional; beyond that, although she disagreed with the amount, she explicitely said that it was not her job to determine the amount - or, thus, change the figure the jury provided.

Re:What difference does it make?

[Fjandr]

A fine or penalty is some amount paid to the government, not to a private party. The judgement is neither fine nor penalty.

Re:What difference does it make?

[ultranova]

Making a mix tape (or CD) and giving it to a friend gratis, is still copyright infringement, but I believe it's only a civil matter at that point.

"Only" a civil matter? It seems to me that the punishments from civil matters seem far harsher than from actual crimes, not to mention you have to prove your innocence to avoid them.

Re:What difference does it make?

[Anonymous Coward]

Unless you have to remove DRM from your digital download to burn it to a mix CD?

Re:What difference does it make?

[Anonymous Coward]

I just can't imagine why people can't stand Jews...

I mean, we can't have the poor Jews actually doing MANUAL LABOUR, like their 'cattle' do, can we? (That means you and I - the Jews' cattle. Apparently, according to the Talmud, all non-Jews are 'beasts that walk on two legs'. How kind of them).

This case is just typical of the never ending greed of the Jew, and shows how Jews run your country, otherwise such ludicrous penalties wouldn't exist, because MOST people don't support them. But the JEWS sure do!

Re:What difference does it make?

[Reziac]

Not so. Fines can be levied by private parties, sometimes with backing per their state charter. And the cite doesn't specify gov't or private party, only "fine or penalty".

Methinks your best bet is a sympathetic reading in bankruptcy court. IOW it doesn't look to me like this can be wholly relied on as an escape hatch from **AA extortion.

Re:What difference does it make?

[denmarkw00t]

Um...what? The RIAA isn't that hard-up for cash, though they could be eventually. Right now they are fine - every victory in court deters people like my mom from burning a CD, and so they get a little fear in. But as time progresses, the RIAA won't be able to sustain on these legal winnings, but at least they have J. Beiber right? Right? RIGHT? HIS MUSIC IS SO GOOD THAT I'LL PAY FOR IT TWICE! LONG LIVE THE RIAA! LONG LIVE THE (lack of) REVOLUTION!

Re:What difference does it make?

[seanbruckman]

You don't expect all the people involved in the case to get all dressed up so many times and have it result in a pocket change judgement, do you? Cognitive dissonance and the tendency to think one's position is more important that it really is prevents this judge from making a sane damage award. Judges have a stupidity precedence for having not thrown every goddamn last one of these cases out of any courtroom.

Re:What difference does it make?

[Zironic]

Well, as been noted in other parts of the discussion she apparently lacked the authority to lower it further. It's partly the previous judges fault, partly the messed up laws fault and mostly the jury's fault. $750 is the minimum damage according to the law and they managed to prove willful infringement which causes triple damages which is why it was $2250 per song so she couldn't get away with lower (but the jury could).

The law seems to be in need of an update because it was obviously written with commercial infringement in mind, noone sane would ever expect a private citizen to run afoul of distribution laws.

Re:What difference does it make?

[HereIAmJH]

I think what you're describing (the charging for distribution) is called criminal copyright infringement. It has much steeper fines and could involve jail time.

I would argue that the framers of the constitution never envisioned nor intended there to be any such thing as criminal copyright infringement. Until recent history infringement has been strictly a civil matter. Copyright holders wanted a means to prosecute infringers without having to pay to protect their IP, so they bought enough politicians to transfer the obligation to the federal government.

If you will look at what they wrote, they don't appear to believe that an author owns the works they created because they secure 'exclusive Right'. The right to control copying is not the same as ownership. Which also puts into question IP 'theft' since the expectation was that works belonged to the public.

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

Re:What difference does it make?

[WillDraven]

The new corporatism is much, much more dangerous to our society than terrorism.

Not only that, but one could make the argument that it breeds actual terrorism. As we have learned in the middle east, if you ruin enough peoples lives eventually some of them will decide to come and TAKE yours.

Re:What difference does it make?

[Anonymous Coward]

I thought copyright law includes making copies for your own personal use, such as for example to convert to another medium, or make backup copies.

So what you're saying is that in fact if I make such a copy I'm violating US copyright laws, including fair use provisions. Which means if I rip the CD in order to extract a 10-second sample I'm already in violation and subject to fines up to $250,000 per song.

Nice world we live in. Why not just put everybody to death and have done?

Re:What difference does it make?

[RobertM1968]

Wrong... either you put the OR in the wrong place, or the place you quoted did.

Read it here:

http://www.law.cornell.edu/uscode/11/523.html

Re:What difference does it make?

[RobertM1968]

Or maybe you are right... in which case my apologies. Though there are other sections that also seem to cover this. As well as lawyers on various legal forums who seem to think the section I quoted applies.

But, as I am not a lawyer, I've got no clue other than what the lawyer said. So, I am willing to cede this point to you.

Re:What difference does it make?

[Anonymous Coward]

Isn't that still way more then most people can reasonably pay and completely disproportionate to the actual damages caused?

It's probably less though than what sony spent on legal fees-
hopefully more cases like this will become more nails in the coffin of suing consumers as they don't deter piracy and don't earn them any real life profit, it is simply a money making device for counsel.

Re:What difference does it make?

[Thinboy00]

IANAL.

Having said that, IIRC most copyright laws including the DMCA make exemptions for "archival or backup purposes", which a mix-cd is.

Re:What difference does it make?

[Thinboy00]

Well said sir!

Re:What difference does it make?

[j00r0m4nc3r]

I don't know, I think I'd take 3 months in jail over a 675k or even a 67.5k "fine"

Assuming 3 ass-rapes per day, I think it works out to about 270 ass-rapings total. Doesn't seem like such a good deal to me...

So

[afidel]

We have tort reform which limits doctors liability when they screw up someones life, we have oil company liability limited to $75M, but if you trade some bits you are responsible for a months takehome pay for an average US family, sounds about right.

Re:So

[amorsen]

How many Americans back and support milking BP for everything they have? 90%?

Re:So

[Anonymous Coward]

1. Obama has done nothing, there is little he can do other than create sound-bites.

2. BP aren't paying up, aren't cleaning up, aren't stopping the flow because they still want that hole in the ground to produce oil.

3. BP have started a campaign of hiring all major legal firms around the Gulf. Not that they need them, but to stop lawsuits coming at them because the legal firms cannot take on clients suing BP due to the conflict of interests. Guess who's behind it? Good 'ol Rummy.

3. The oil has reached Texas and FL. FL lives for tourism, guess what. The beaches are suffering, unemployment rockets, we all pay, except BP. Texans can scoop it up,after all, they luuurve oil.

4. USA isn't a democracy, never has been, never will be. It's the most powerful corporation controlled state on the planet.

Re:So

[Bryansix]

You can't have everything. They would just declare bankruptcy. Also if Americans want everything then that just proves how unethical our culture has become. At most they should want the amount equal to their real liability. Even better would be to not break the law and live up to the liability cap set in place. Full Discolsure: I sold my stocks in oil companies over a year ago and hold none now.

Re:So

[Anonymous Coward]

Months? Don't you mean Years take home pay?

I don't know many people who make $67.5K per month. Perhaps maybe the lawyer....

Re:So

[LordAndrewSama]

Look where oil company liability got BP.....

Re:So

[amorsen]

Right, so your problem isn't that Obama is a dictator. Your problem is that YOU aren't the dictator.

Re:So

[Bryansix]

Right because we all know that only dictators keep their word. (end Sarcasm)

Re:So

[duane_robertson]

Look where oil company liability got BP...

You mean a multi-billion dollar per annum company, with more money than God, based in a country that doesn't tax them? They paid their stockholders a billion the first quarter of this year. That's a portion of their profits for one quarter. I'm surprised that the antique liability law has survived this long.

Re:So

[cynyr]

At most they should want the amount equal to their real liability

Yep, so ruined gulf fishing for years, clean up costs, loss of taxes paid on that oil(if they don't need to pay taxes on it), some extra in there for hardship(remember there are family incomes riding on it being cleaned up right and quickly), some more for any loss of marine life(it has a worth), some huge number if something goes extinct because of the spill. Yep looks near the worth of BP. They wouldn't be in this predicament of they had done it right. Yes yes, i know i know, not all problems are foreseeable, but from what i have heard the rig was having issues earlier and they were fairly sure their valve was bad.

Re:So

[afidel]

The industries affected in the Gulf region are worth ~$200B a year and will be affected for many years ergo if BP were to pay real damages they would be bankrupt, and that is how it's supposed to work. The investors aren't personally liable so you will never recover more than the net value of the company, but the company should cease to exist if justice were to be served. Should the company survive it's just more proof that the Libertarian model of letting everyone run wild and the market decide things is fundamentally flawed.

Re:So

[afidel]

I meant per song.

Re:So

[Culture20]

How many Americans back and support milking BP for everything they have? 90%?

Probably only 90% in the south. Not everyone cares about the gulf. I've only seen it once, and while it sure is a bad thing happening, real human evil is happening a lot closer to my home. BP's evil was carelessness. I doubt they were scheming in their boardroom: "I've got the perfect plan. We'll blow up a deep sea oil rig and cover the gulf in oil. Muahahaha! All hail Big Oil!" My city's got cops happy to beat people for breathing, drug dealers happy to shoot kids because they were good target practice, and other kinds of intentional evil. Friends of mine west-northwest of the gulf are dealing with worse stuff than me, and I doubt they're thinking about the oil much at all.

Re:So

[shaitand]

$67k is a months takehome pay for an average US family? I'm curious where you get these numbers, that is about triple the average annual salary of a family.

Re:So

[shaitand]

"At most they should want the amount equal to their real liability."

You seriously believe an oil company is properly valued at a sum greater than the gulf of mexico and the life in it?

Re:So

[drinkypoo]

Should the company survive it's just more proof that the Libertarian model of letting everyone run wild and the market decide things is fundamentally flawed.

Under the anarchic model (let's face it, that's what libertarians really want; a system of anarchy where they can create their own feudal societies) someone or some group would take up the task of assassinating BP executives, destroying their equipment, et cetera. But under THIS model such a thing is illegal and will get you in a whole lot of trouble. Of course, it wouldn't really solve anything. Instead of civil war there would be corporate war. But libertarians never seem to realize that they are anarchists. Then again, we're just sitting here bagging on libertarians when none of them have even cropped up to say anything ignorant.

Re:So

[Anonymous Coward]

See, those of us who don't regurgitate useless dogma from conservative news sources and have actually read the related laws know that anything Obama had to say on the issue was largely irrelevant.

The $75 million figure comes from the following law:

http://frwebgate.access.gpo.gov/cgi-bin/usc.cgi?ACTION=RETRIEVE&FILE=$$xa$$busc33.wais&start=4683182&SIZE=13816&TYPE=TEXT

In (a)(3) we have "for an offshore facility except a deepwater port, the total of all removal costs plus $75,000,000;"

Now, if you just read a little further down to section (c) ("Exceptions") part (1), you would see

  "Subsection (a) of this section does not apply if the incident
        was proximately caused by--
                        (A) gross negligence or willful misconduct of, or
                        (B) the violation of an applicable Federal safety,
                construction, or operating regulation by..."

Now all that remains is for you to convince us that the incident was not proximately caused my gross negligence. Proceed.

Re:So

[AK Marc]

Americans back milking BP for the damage they caused the USA. That BP lied and cheated their way to make that number approach the value of the company is irrelevant to the desire to hold them responsible for their negligent actions.

Re:So

[Thinboy00]

There is a difference between anarchism and minarchism.

Re:So

[Bryansix]

Ya, but that has to be proven in a COURT of LAW FIRST. That's called DUE PROCESS and it is guaranteed by the CONSTITUION of the United States. You should read it some time. That's right people, Obama shreds the Consititution.

Not sure

[Anonymous Coward]

I dunno, it's still fucking ridiculous. Are you sure that was a real judge?

go figure?

[nomadic]

Go figure.

Or read the opinion, which will obviate the need for figuring. She explains her justification for the damages figure (3 times the statutory minimum) quite thoroughly. She also points out that, like Thomas in the Jammie Thomas-Rasset case, the defendant willfully violated the law then lied under oath to try to escape it, which seems to inform her decision that some sort of serious punishment is justified.

Re:go figure?

[Hognoxious]

I would disagree. Perjury, like contempt of court, is a criminal matter entirely separate from the primary (or whatever the sharkspeak word is) case.

For example, if I'm pulled in front of the beak for parking on a double yellow line the worst I can get is a fine and penalty points. However if, during the trial, I lie under oath or call the judge a big fat nonce (even if he is) then I could in theory become a permanent guest of Her Germanic Majesty.

Re:go figure?

[StillNeedMoreCoffee]

Come on, 2250 times the actual damages for copying music. Here the court (and the law I might add) is out of balance. The law should treat each case on merits and what damages there actually were, having the punishment fit the crime. Our system of justice is not supose to treat people as examples, without regard to what the effect of the judgement is going to be on the individual, the punishment to the individual needs to fit the crime, Here it does not. Corporate profits have trumped our laws and our politics. We need a change.

Re:go figure?

[nomadic]

I would disagree. Perjury, like contempt of court, is a criminal matter entirely separate from the primary (or whatever the sharkspeak word is) case.,/i>

That's why I said informed, not based. While you are correct that perjury is generally a criminal matter separate from the case in chief, it is not necessarily completely disconnected. For example, perjury can be grounds for dismissing an action. Here, she seemed to interpret his failure to tell the truth under oath (I'm not saying he actually did, just her conclusion was that he did) goes to the willfulness of his misconduct, and willfulness is definitely a factor in damages here.

Re:go figure?

[MozeeToby]

But the judge can take things like remorse, admittance of guilt, hiding/destroying evidence, etc into account when sentencing. Sounds to me like that is exactly what she did here.

Re:go figure?

[commodore64_love]

>>>the defendant willfully violated the law then lied under oath to try to escape it

When did this happen? If the actual damages are $1 or $2 per song, and the statutory minimum is $750, then I would have assigned that. If 4-6 times is the norm in civil cases, then paying 325-700 times the actual damages would already be punishment enough for perjury
.

Re:go figure?

[Anonymous Coward]

I do agree that 2250 per song is a bit excessive, but what do you mean by "should treat each case ..d and what damages there actually were". If the penalty for file-sharing a $1 song was only $1, there is no incentive for the immoral to *not* do it. There is, after all, no monetary risk involved. What would you suggest as reasonable damages?

Re:go figure?

[Richard_at_work]

2250 times what exactly? The price of an mp3 or the value of unlimited international distribution rights?

Re:go figure?

[NewYorkCountryLawyer]

Come on, 2250 times the actual damages for copying music. Here the court (and the law I might add) is out of balance. The law should treat each case on merits and what damages there actually were, having the punishment fit the crime. Our system of justice is not supose to treat people as examples, without regard to what the effect of the judgement is going to be on the individual, the punishment to the individual needs to fit the crime, Here it does not. Corporate profits have trumped our laws and our politics. We need a change.

I don't think this result was consistent with existing law. The judge conceded that under existing law a copyright infringement statutory damages claim should not exceed 2 to 6 times the actual damages. Had she applied that principle to her overly generous appraisal of the actual damages as being $1 per infringed work, and had she decided to "throw the book" at Mr. Tenenbaum and award 6 times the actual damages, the total judgment would be $180.

Re:go figure?

[NewYorkCountryLawyer]

2250 times what exactly? The price of an mp3 or the value of unlimited international distribution rights?

There was no evidence of an actual "distribution" with in the meaning of the Copyright Act, let alone of him acting as a dispenser of "unlimited international distribution rights".

Re:go figure?

[Hatta]

Or read the opinion, which will obviate the need for figuring. She explains her justification for the damages figure (3 times the statutory minimum) quite thoroughly

When statutory damages are 750 times actual damages, the statutory damages are clearly unconstitutional. There's no explaining that.

If the defendant provably lied under oath, prosecute them for perjury. Tacking damages onto another judgment is wrong.

Re:go figure?

[Anonymous Coward]

politicians, judges and elected officials willfully lie

all day

every day

punishment for them should be.

the ultimate punishment.

Re:go figure?

[NewYorkCountryLawyer]

When statutory damages are 750 times actual damages, the statutory damages are clearly unconstitutional. There's no explaining that.

No there is no explaining it. The decision never makes a rational transition to its conclusion.

1.Law: statutory damages should be 2 to 6 times actual damage
2.Actual damage found to be $1
3. ??????????
4. $2,250 profits for RIAA.

I for one welcome the administration of justice by our corporatist overlords.

Re:go figure?

[omnichad]

Triple damages ($3 per song) plus legal fees. I'm sure the legal fees alone are enough to make anyone think twice.

Re:go figure?

[nomadic]

Where was this in the opinion? I see where she says "Nevertheless, the awards in such cases are generally no more than "two to six times the license fees defendants 'saved' by not obeying the Copyright Act"--a ratio of statutory to actual damages far lower than the ratio present in this case" (pages 40-41) where she'd discussing the disparity between public performance cases and this one, but I do not see where she concludes as a matter of law the statute only permits that range for the instant case, just that the disparity suggests egregiousness.

Re:go figure?

[Krahar]

I would disagree. Perjury, like contempt of court, is a criminal matter entirely separate from the primary (or whatever the sharkspeak word is) case.

Perhaps you should read the opinion as the grandparent post suggests. The judge needed to determine if the awarded amount was unconstitutionally high. This involved determining what amount would be constitutional. In determining that, the judge had to consider how reprehensible the actions of Tenenbaum was. His lying under oath was one of the things that weighed against him in determining the reprehensibility of his actions. It's very clearly laid out in the opinion.

Re:go figure?

[blair1q]

It's a separate charge, in that the judge can have the defendant charged with perjury and made to pay for that even if he wins the original case.

But perjury is moot here. The judge isn't charging anyone with perjury. She is merely saying that lying about the crime makes the punishment worse when there is discretion about the punishment. You get slack when you're (a) naive about your crime and (b) remorseful about it, not when you're (c) fully aware you're breaking the law and (d) willing to waste the court's time and risk further charges by lying about what you did.

Judges hate adding paperwork to cases, so putting them in that position by raising the possibility of having to do you for perjury or contempt really pisses them off, guaranteeing you'll get hammered for the original offense.

Re:go figure?

[Krahar]

The judge is not making a judgement on the appropriate amount, the judge is making a judgement on what is permissible under the constitution. That's completely different, in that the constitution only outlaws amounts that are... I don't remember the wording. Something to the effect of "completely insane". So the judge determined that 2250$ is just a tiny bit short of "completely insane", being merely "pretty fucking insane" and hence constitutional. That sounds about right to me, actually. The judge did not have the option of reducing the amount to a level that she thought was appropriate - it's all in the opinion.

Re:go figure?

[Krahar]

The judge does not have authority to set the amount - the jury did that. The judge has only the authority to restrict the amount to the maximum that the constitution will stand for in any way. Obviously that can be much more than an amount that might be reasonable. She points out several times that the amount is more than she might have awarded if she had the authority to dictate the amount.

Re:go figure?

[Kjella]

Actually, I think the logic is quite plain. From page 38:

The plain language of 17 U.S.C. 504(c) authorized the jury's award in this
case. I must give effect to this clear statutory language, at least to the extent that the jury's
award does not run afoul of the Due Process Clause. See Caminetti v. United States, 242 U.S.
470, 485, 490 (1917) ("[I]f [a statute's language] is plain, and if the law is within the
constitutional authority of the lawmaking body which passed it, the sole function of the courts is
to enforce it according to its terms," unless doing so would "lead[] to absurd or wholly
impracticable consequences.").

The other part is in the conclusion on page 54:

Chief Judge Davis notes, there is a long tradition in the law of allowing treble damages for
willful misconduct.

Basically the damages was reduced to the lowest possible limit without saying the statute itself is unconstitutional, just that parts of the range are unconstitutional given the case. If you look at the case law cited, it almost exclusively deals with cases where the damages have been wide open, and the jury returned crazy damages but that's on the jury's hands. If you go below $750, then it's the law itself and not the application of it. As a lone judge, I'd probably take the easy one out and limit myself to saying the jury's verdict is unconstitutional too. Maybe if and when this reaches the Supreme Court - I expect the appeals to go all the way unless the Supremes refuse to hear it - maybe they will have the balls to say the law itself is unconstitutional, but not before.

Re:go figure?

[mangu]

the constitution only outlaws amounts that are... I don't remember the wording. Something to the effect of "completely insane"

No, the constitution outlaws amounts that are, in the exact wording, "excessive". Pick any dictionary to know what "excessive" means.

 

Re:go figure?

[Reziac]

I mentioned above that I think this sort of judgment is headed in the direction of becoming a form of civil asset forfeiture (with all the abuses and corruption inherent therein), and that we can expect it to become blatantly so in the future. Your thoughts?

Re:go figure?

[shutdown -p now]

But isn't the ruling about calculating statutory rather than actual damages?

Re:go figure?

[shaitand]

$750 per song is the statutory minimum. Treble damages is normal for willful infringement so she trebled the minimum and stated outright in her judgement that this is the constitutional maximum that could be allowed for this type of infringement. She determined the maximum should be awarded to keep with the spirit of the jury verdict and said she would have issued a smaller fine.

The only way to reduce damages to a reasonable level would be to declare the damages in the statute unconstitutional and overturn that part of the law. Apparently she wasn't willing to go that far.

Re:go figure?

[shaitand]

She could have ruled the statutory minimum to be unconstitutional since it is 750x generously calculated actual damages per song.

Re:go figure?

[shaitand]

"Obviously that can be much more than an amount that might be reasonable."

No it wouldn't. The constitution forbids "excessive" anything beyond "reasonable" would be "excessive" so constitutional would limit the damages to "reasonable".

She could have declared the statutory minimum unconstitutional since congress doesn't trump the constitution but she opt'd not to.

Re:go figure?

[Krahar]

The constitution forbids "excessive" anything beyond "reasonable" would be "excessive" so constitutional would limit the damages to "reasonable".

So in any case at all where the judge thinks that the amount is unreasonable but not completely outside the realm of what a halfway sane person might grant, the judge should overturn the verdict of the jury? That is a very dangerous precedent. Should this also apply in criminal cases and if not why not, if it should apply in this case? Then why do we even have juries?

Re:go figure?

[Krahar]

The judge isn't supposed to just ignore congress if she has an option not to. The constitution does not contain a statement like "damage to award ratios beyond X are not allowed," and the precedent is that the constitution only puts a mild constraint on awards. Let's continue this in one of our other threads.

Re:go figure?

[Krahar]

the constitution only outlaws amounts that are... I don't remember the wording. Something to the effect of "completely insane"

No, the constitution outlaws amounts that are, in the exact wording, "excessive". Pick any dictionary to know what "excessive" means.

The meaning of such words are not defined by dictionaries. First of all our modern dictionaries can be very different from the dictionaries from the time when each amendment was written. But even contemporary dictionaries would be little help. The meaning of such words are determined through how those words have been interpreted by previous courts and it is informed by a great many concerns that those previous courts weighed. That is one reason that a law might mean something completely different from what it seems to plainly state to a normal, sane, non-lawyer person. Dictionaries are of no help. I imagine there are legal dictionaries that might be of more use.

Re:go figure?

[Anonymous Coward]

Times actual damages. Is "unlimited international distribution rights" actual damages? No, it's imaginary profit they'd have never gotten anyway.

Re:go figure?

[NewYorkCountryLawyer]

The judge isn't supposed to just ignore congress

1. It is not "ignoring congress" to declare a statute to be inconsistent with the Constitution, which is the "big daddy" of statutes, from which the powers of the president and congress to enact a statute derive. It has been part of US federal law for ~200 years that the courts are empowered -- indeed are required -- to ensure that statutes comply with the Constitution.

2. You could not have read the decision very carefully, for the judge was very careful to review all of the applicable authority on both sides as what standards were to be applied to determining the constitutionality of the statute.

Re:go figure?

[NewYorkCountryLawyer]

Where was this in the opinion? I see where she says "Nevertheless, the awards in such cases are generally no more than "two to six times the license fees defendants 'saved' by not obeying the Copyright Act"--a ratio of statutory to actual damages far lower than the ratio present in this case" (pages 40-41) where she'd discussing the disparity between public performance cases and this one, but I do not see where she concludes as a matter of law the statute only permits that range for the instant case, just that the disparity suggests egregiousness.

You have quoted her correctly, but I think you nit picking a little here. Obviously she did not "conclude[...] as a matter of law the statute only permits that range...." But she never explains why it's ok to award 2250 times actual damages against a college kid, while the recovery against UMG Recordings when it's being sued is limited to 2 times actual damages, nor does she explain why an award should be so far out of the normal range of copyright statutory damages. She simply (a) never dealt with the issue of why the minimum statutory damages of $750 is constitutional, and (b) gave no legally cognizable explanation for trebling it.

Re:go figure?

[Krahar]

What I wrote was

The judge isn't supposed to just ignore congress if she has an option not to

and what you quoted me to have written was

The judge isn't supposed to just ignore congress

You then went on to attribute to me the position that a judge is not authorized to follow the constitution over congress based on this half-quote, when the truthful quote was that it is better if the judge can find a way to follow both the constitution and congress.

I don't even know how your point two is related to anything I wrote. I would have suspected that your whole post was an answer to some other poster if you hadn't "quoted" me.

Re:go figure?

[tp_xyzzy]

It'd go more like this:
  1) riaa takes a loan to pay some artists to create some music
  2) then they find out that all the music is available on competitors systems(==computers)
  3) since the competitor did nothing wrong, they have no other choice than sue end users
  4) the end users are all different and use whatever products that are available
  5) so the master plan is to search bad people from the competitor's systems and sue them for not choosing products correctly
  6) to manage the lawsuits, all you need is quick way to generate paperwork and follow some predefined plan
  7) then send letters to whoever was found using competitor's systems asking for $3000 for a chance to avoid $120k judgement
  8) the 120k claim was obviously based on their loan in step (1)
  9) if any of the end users decide to get a lawyer, increase settlement money amount until they cannot pay more
10) after piles of paperwork and end users running in the maze, make them admit they did xxx things wrong in hope for faster exit
11) since they admit doing a wrong thing, the 120k claim can be attached to just this one end user
12) make the 120k smaller so that end users can choose better route in the maze
13) ???
14) ???
15) ???
16) ???
17) profit

It's all about the step (1). (sorry if my numbers are wrong.)

Re:go figure?

[shaitand]

Your implied point is that if it is at all possible to interpret the constitution to allow what congress did (the statute in this case) the judge should interpret it that way.

But the ideal is the opposite. The benefit of the doubt should go to the people not to lawmakers. Whatever interpretation places the greatest constraint on congress should always be the preference or else liberty is lost.

Government may be a necessary evil but it is still an evil and should be suffered rather than encouraged.

Re:go figure?

[shaitand]

In criminal cases juries might recommend penalties but judges make the decision. Ultimately juries are for deciding two things, A if application of the law is just and B if the burden of proof was met. Judges should not (be able to) overturn juries on these points.

However nobody, judges, jury, or congress should be allowed to enforce excessive punishment that is not appropriate to the crime or act. So yes, if an appellate court sees a punishment that is excessive it should be struck down no matter who ordered it.

Re:go figure?

[NewYorkCountryLawyer]

Well it's the law that the judge is supposed to look for ways to avoid the constitutional "showdown", and Judge Gertner explained why the RIAA's litigation posture made it unwise to do so here. The RIAA has proved her point, by refuse to accept the Court's "remittitur" in Minnesota, as it said it would almost certainly do in Massachusetts.

Maybe there accountants messed up

[Anonymous Coward]

After reading the article about Hollywood Accounting I wonder if the music industry does the same thing. You can say pirated music is the reason you're losing money but instead your cooking the books so a few people can make a lot of money off the profits. At the same time the RIAA should realize people will not stop pirating music and this isn't scaring people from stopping either and how much is it costing the RIAA for these trials I'm guessing it's a lot more than settlement, overall it seems like a net loss. Besides what was the actual damage done, I've never read a report saying how much money is actually lost by pirating one song. In the end the recording industry should realize that if they don't adapt they will die off.

Re:Maybe there accountants messed up

[Anonymous Coward]

Are their any other's whom finds these uses of ore engrish language more better amusing?

Re:Maybe there accountants messed up

[Nadaka]

They do. They routinely screw aspiring artists as much as possible on their first record contract or two. It is the reason you frequently notice successful artists spinning of their own production company, having been burned, they know it is the only way that they get to keep a little of the money they earn instead of handing it over to someone else.

I think this was intentionally stupid

[craze ivan]

I'm not a lawyer, but I think this was just a way to give the plaintive grounds for appeal to further get the judgment reduced. The judge's ruling not matching the awarded damages sounds like grounds for appeal.

Re:I think this was intentionally stupid

[Krahar]

Read the opinion. The amount is stupid because the jury was stupid and there is only so much the judge can do about it.

ridiculous

[freezway]

I dont see HOW lawyers can make up $2k for downloading a $1 song.

Re:ridiculous

[Anonymous Coward]

Its called there fee.

Re:ridiculous

[Anonymous Coward]

As opposed to a here fee?

Re:ridiculous

[Krahar]

Read the opinion. It's about punishing Tenenbaum and giving other people an incentive to refrain from file sharing. It's not just about compensating the plaintiffs for their losses. He also gets the amount multiplied by 3 because he knew that he was acting illegally and did it anyway.

Re:ridiculous

[shaitand]

"It's about punishing Tenenbaum and giving other people an incentive to refrain from file sharing. "

Which is illegal. It is illegal to punish one for the actions of others. Tenenbaum is only liable for the damage and consequences of his personal actions in isolation.

Re:ridiculous

[Krahar]

That's not what I meant and it's not what the judge writes about in her opinion. She specifically points out as you do that Tenenbaum is not liable for what other people do. However, the law also includes provisions that the perpetrator should not benefit in aggregate of his crimes, and that this benefit should include the chance of being caught, which in this case is low. According to the opinion the law says that it is a legitimate interest of the state that the award should be great enough to deter future infringement by both Tenenbaum and anyone who learns of the case. This is different from a statement saying that Tenenbaum is responsible for what other people have already done.

Re:ridiculous

[shaitand]

"This is different from a statement saying that Tenenbaum is responsible for what other people have already done."

Agreed.

"According to the opinion the law says that it is a legitimate interest of the state that the award should be great enough to deter future infringement by both Tenenbaum"

If you remove the "both" and end that with "by Tenenbaum", then agreed.

"and anyone who learns of the case"

False. You can not levy an excessive punishment. This is effectively punishing Tenenbaum for the actions others would have committed without the deterrent.

Re:ridiculous

[Krahar]

The thing is that after the case is over and awards are paid (let's imagine Tenenbaum could), Tenenbaum is in the same position as anyone else in the US would be when it comes to calculating his expected total payoff from engaging in copyright infringement at that point. So future deterrence of Tenenbaum and future deterrence of anyone else similar to Tenenbaum is one and the same.

2250/song!?

[paxcoder]

You mean the same amount? How is that possible? If I were just a tad more paranoid, I'd say the "industry" had influenced the decision by illegal means and left us a visible warning telling us they can and do so.
Or perhaps there's another explanation? Did anyone RTfA?

Re:2250/song!?

[Anonymous Coward]

Yes, did you?

Re:2250/song!?

[Krahar]

The minimum according to the law is 750$. There is apparently precedent that if the infringement is "willful", then the damages are multiplied by 3 and 3*750$=2250$.

Re:2250/song!?

[paxcoder]

Thanks. Funny how it now sounds like it makes sense, even though it is simply common sense that the verdict is unjust if the infringer is say, a single parent, and the other side is rich beyond merit.

In any case, it's a complicated matter. We need radical new thinking, perhaps even from bottom up rather than trying to change stuff as they are now. "New tech which is misunderstood" is not so new anymore, and the ancient laws are just patched to "work". Despite both, the solution doesn't appear near. But it's necessary to think before acting. "Starving artist" may not apply to Hollywood or some music industries, but it does to many others - especially in fields unaccounted for (graphics design, books, etc.).

Re:

[Anonymous Coward]

That's why you're not a lawyer.

Mods - WTH

[MozeeToby]

Come on mods, there is absolutely nothing trollish about what he said here. It arguably states the facts of the situation better than the OP's comment which is currently at +5.

'-1 Troll' != 'I Disagree'

Infinite Resources

[DIplomatic]

The real problem here is that computer data (here referring to song files) is the only truly infinite resource that has ever existed on the planet. A digital copy of a CD could be copied an infinite number of times without any loss of quality. How do you regulate that? It would be like if you had a device that cloned Ferraris and with the push of a button you created a dozen perfect Ferraris out of thin air for you and all of your friends. The guy who owns a Ferrari dealership is going to be pissed, but you didn't do anything to him. You didn't take anything from him. You can't erase file-sharing from the planet. The technology exists, so there must now be a new model of business and new rules by which to regulate it.

Re:Infinite Resources

[Anonymous Coward]

Just because there is infinite supply doesn't mean theres infinite demand. If you could copy Ferrari's at the touch of a button, they would be worth their weight in salvageable materials. True, the dealer gets screwed. But hes the middle man. The only thing he does is buy from the manufacturer and sell it to other people for an inflated price. On the other hand, in our case, the manufacturers are the musicians and last I checked they never get a cut from these lawsuits. Regardless, back to my original point, after getting to a certain threshold theres simply no demand for the car (music). No one cares how many copies of the song ____ you downloaded. Theres no point in having more than one per person (or if you really want to argue about it.. one per device that can store/play music)

Re:Infinite Resources

[Anonymous Coward]

Not that I agree with this verdict or the RIAA; but
performing free copying, you are taking from the business owner. You are taking away POTENTIAL future customers/business. The argument of "I would have never bought it anyway" is BS in my opinion. /hate the RIAA /they can suck it

Re:Infinite Resources

[noidentity]

Isn't it obvious? I have a computer constantly copying bits of data day and night. I figure that by now I should be able to get trillions of dollars for all the wealth it's created. I still want to let it accumulate a but more before I cash in. I can't wait.

Re:Infinite Resources

[Anonymous Coward]

It would actually be a double edged sword in regards to the Ferrari dealers.

Some would be copied and driven off, but also the cost of production drops to almost nothing so they can lower their prices to more consumer friendly prices and make a killing financially from it.

What we have here would be like the dealers using the machine to reproduce them for pennies on the dollar and still trying to charge everyone absorbent amounts for them off the lot and rigging the game so the startups can't get their foot in the door for competition by any means necessary legal or otherwise.

Re:Infinite Resources

[Culture20]

The real problem here is that computer data (here referring to song files) is the only truly infinite resource that has ever existed on the planet. A digital copy of a CD could be copied an infinite number of times without any loss of quality. How do you regulate that?

Forget regulating it. Abuse it. Copy some data so many times that you owe the RIAA a Googolplex times the total value of the world's money. Prove the point that data has little to no value on its own by the absurdity of the scenario.

Re:Infinite Resources

[Sabriel]

It would be like if you had a device that cloned Ferraris and with the push of a button you created a dozen perfect Ferraris

Many might think that concept good only for analogies, but there are (very primitive) prototypes of those devices being experimented with now.

This is what we've got:

(a) influential cartels pushing IP laws as far to their favour as they can, with draconian punishments
(b) cause-and-effect meaning society has lost a great deal of respect for IP laws - and for lawmakers
(c) new technologies approaching that will do for analog reproduction what was done for digital.

So basically it's a taut elastic system that is about to have a string cut. Bets on our leaders gaining a clue and reducing the tension first? Bets on them doing the opposite?

Re:Infinite Resources

[Anonymous Coward]

That circumstance could be applied to any competitor in an industrial economic market, as well - either another car dealer opening up, or another manufacturer producing autos more desirable than Ferrari. No business in a competitive market is entitled to potential income - if that income is there, you either capitalize on it while it's their, or someone else will. Once that potential income has been acquired or lost, that's it - it's gone.
Right now, I am convinced of this much : Digitized information is an unlimited resource, because anyone can duplicate at such little cost, that the cost of mass production is, for all intents and purposes, zero. Zero cost is a number that industrial economics cannot cope with; nor can it deal with infinite supply - industrial economics is necessarily limited by "competition for limited resources". As the GP stated, we are realizing the first market niche capable of supplying something infinitely, and because industrial economic practice cannot accommodate for zero and infinity, a new economic practice is going to HAVE to be embraced.

    I see things going two ways: The current path being pushed by the MAFIAA, is for a managed market. It's old skool collectivism, and it's practiced by many countries (although, in a democracy, the control is usually managed by an elected body, I'd speculate). Call it what you will - socialism, marxism, monarchy, it all boils down to handing control of a part of the economy over to group of people. The second option is a free market - but a free market in an age of infinite supply necessitates a more intelligent consumer. In my estimation so far, infinite supply causes a natural shift to a demand-based economy where the customer determines the value of a product. "Customer-determined value" is the new order for a free market. But customers have to pay. It's not enough to say "the media companies ass-raped us for 50 years, and I'll be God damned if I'm going to give the a wooden nickel for a single byte of data." The really great thing about customer-determined value and the information age is that it should afford a whole new opportunity for independents. But, customer-determined value must be greater than zero, and the facility to patronize in small amounts (quarters, dimes, single dollars) must exist.

Re:Infinite Resources

[jimicus]

I've posted a very similar idea as a thought experiment some time ago - an inexpensive, cheap to run 3D-photocopier that can create exact copies of any object.

The thing is, a large chunk of the world's economy is based on the idea that I have some sort of physical object that you want, and will give it to you in exchange for something, usually cash. If you think the RIAA kick up a stink whenever new technology comes along that makes distributing music easier, that's nothing to the kind of stink that'd be kicked up were such a device to be invented - I reckon you'd be lucky to avoid wearing concrete boots dropped off the side of a boat in the middle of the atlantic, along with your invention.

The counter-argument is that there would be no need for an economy because we'd all have everything we'd ever want - IMV that's rubbish because society doesn't change that quickly.

Re:Infinite Resources

[Anonymous Coward]

The guy who owns a Ferrari dealership is going to be pissed, but you didn't do anything to him. You didn't take anything from him.

That argument again...

You took _potential_ customers from him.

And of those _some_ would have eventually become actual customers.

Not to mention that in the case of Ferrari's you would devalue the brand in such a way that even existing customers might walk away and either not get another one (because "everyone" has one now) or get the next one from you instead of the dealer. Because, hey, no one likes to feel like they got reamed.

It would be so nice if some of y'all quit trying to defend that you are copying stuff without rewarding the creator of the work. In the end that's what is going on, and for those of us that have true respect for the artists it is disappointing to see that they don't get rewarded properly, with the obvious consequences. (true enough that the RIAA is largely to blame, I hate them with a passion, but that's a different story)

Re:Infinite Resources

[Anonymous Coward]

Or, in economics, marginal cost of production is zero.

Re:Infinite Resources

[hacksoncode]

There's little practical limit (though "infinite" is a gross exaggeration, given physical storage requirements) on replicating data. So "data" qua "data" is nearly an infinite resource.

There is, however, a strictly limited amount of *new* data. Whether we like to think it or not, the "newness" of data has value. Once it is copied infinitely, or has existed for long enough, its value (both as a producer and consumer) is essentially zero.

Every copy made of data reduces the "newness" component of the value of that data roughly proportional to the number of copies existing.

$67,500 ???

[Dumnezeu]

That's still too much! How the fuck can they justify those costs? That's five thousand times more than what the songs are actually worth. Why are they getting paid more than they can prove? They can't possibly prove that Tenenbaum spread each song to five thousand people that never paid for it! Remember, $2,25k is the cost of each song he shared, so it does not include legal fees.

But the songs..

[matthiasvegh]

Has anyone here actually looked at the songlist? $2250 for *these*?
01 - Incubus - New Skin
02 - Green Day - Minority
03 - Outkast - Wheelz of Steel
04 - Incubus - Pardon Me
05 - Nirvana - Come As You Are
06 - Green Day - When I Come Around
07 - Green Day - Nice Guys Finish Last
08 - Nirvana - Heart Shaped Box
09 - Nine Inch Nails - The Perfect Drug
10 - Blink 182 - Adam's Song
11 - Limp Bizkit - Rearranged
12 - Limp Bizkit - Leech
13 - Linkin Park - Crawling Hybrid
14 - Deftones - Be Quiet And Drive
15 - The Fugees - Killing Me Softly
16 - Red Hot Chili Peppers - Californication
17 - Red Hot Chili Peppers - By The Way
18 - Red Hot Chili Peppers - My Friends
19 - Beck - Loser
20 - Eminem - My Name Is
21 - Eminem - Drug Ballad
22 - Eminem - Cleaning Out My Closet
23 - Beastie Boys - (You Gotta) Fight for Your Right (To Party)
24 - The Ramones - The KKK Took My Baby Away
25 - Monster Magnet - Look To Your Orb For The Warning
26 - Aerosmith - Pink
27 - OutKast - Rosa Parks
28 - Rage Against The Machine - Guerrilla Radio
29 - Goo Goo Dolls - Iris
30 - Aerosmith - Water Song/Janie's Got A Gun

There is maybe like 4-5 songs actually worth something; the rest will just fade in time. Tenenbaums bill of $67.5K on the other hand, probably won't..

He won't be declaring bankrupcy

[rsilvergun]

you can't any more, not for something like this. They'll garnish his wages.

Re:He won't be declaring bankrupcy

[commodore64_love]

Assuming he can find a job:

"Hello. I'm a lawyer, studied for 6 years inc ollege plus law school, and oh yeah I have a court record that forces me to pay $70,000."

"Ummmm.... that's... interesting. Well we'll go through the rest of this daylong interview since you're here, but to be honest I've already wrote Reject on your resume."

Re:He won't be declaring bankrupcy

[Hognoxious]

to be honest I've already wrote Reject on your resume

You are Ernie Wise AICMFP.

Re:He won't be declaring bankrupcy

[linuxrocks123]

You are wrong. Please see my comment here: http://slashdot.org/comments.pl?sid=1714430&cid=32857120

---linuxrocks123

Re:He won't be declaring bankrupcy

[shaitand]

generally you can't force a wage garnishment for a civil judgement anymore. Some types of federal debts (taxes, student loans, etc) and child support are exceptions.

There are always presents under the Christmas tree

[WaroDaBeast]

O Tenenbaum, o Tenenbaum,
Du kannst mir sehr gefallen!
Wie oft hat schon zur Winterzeit
Ein Baum von dir mich hoch erfreut!
O Tenenbaum, o Tenenbaum,
Du kannst mir sehr gefallen!

Ob

[Hognoxious]

O Tenenbaum, o Tenenbaum,
Reduce the dam-a-ges we pay!

O Tenenbaum, o Tenebaum,
Reduce them further ev'ry day!

As exponential they decayrz,
We download emmpeethrees and wayrz.[1]

Though lawyers bill and AA's whine -
Go shove it where the sun don't shine!

[1] yeah, this is bad, though Rush got away with worse.

If you don't like it, you can substitute:

Reduce our liabilatee
- though it's not really libertee [2]

[2] And if you don't like that, you can fuck off.

Bankruptcy does NOT clear you...

[Anonymous Coward]

He'll probably still have to declare bankruptcy.

Bankruptcy does not clear you of obligation to pay civil court judgments against you. You continue to owe those forever until paid in full.

Bankruptcy can only clear you of obligation to pay outstanding debt in the case of credit default.

Re:Bankruptcy does NOT clear you...

[afidel]

WRONG, the winning party in a civil court becomes a creditor and can have their liability discharged in bankruptcy just like any other debt.

When UMG is sued limit is 2x; when suing 2250x

[NewYorkCountryLawyer]

When UMG was sued for copyright infringement, the punitive damages were reduced from 10x actual damages to 2x actual damages.

But when it is suing some kid for copyright infringement, it's allowed to collect 2250x actual damages.*

Doesn't sound like equal justice to me.

* Even Judge Gertner's $1 actual damages figure is wildly overstated. 70 cents lost revenue minus 35 cents saved expenses = lost profit of 35 cents, IF you wanted to assume that every unuathorized download represents a lost sale, which it certainly does not. Most likely the real actual damages is 5 or 10 cents on an mp3 download.

Re:When UMG is sued limit is 2x; when suing 2250x

[broken_chaos]

Even Judge Gertner's $1 actual damages figure is wildly overstated. 70 cents lost revenue minus 35 cents saved expenses = lost profit of 35 cents, IF you wanted to assume that every unuathorized download represents a lost sale, which it certainly does not. Most likely the real actual damages is 5 or 10 cents on an mp3 download.

You could make an argument that this could actually be several times higher, given the uploading done by many peer-to-peer applications. If you even upload a small bit to another person, they can then upload it to some more -- averaging this out over the entire lifespan of a torrent could enable a few more people to download it. Meaning, I dunno, maybe $5 tops per song, unless you seeded to a real high ratio.

Re:When UMG is sued limit is 2x; when suing 2250x

[Anonymous Coward]

Get an actual lawyer to explain statutory damages to you sometime.

Re:When UMG is sued limit is 2x; when suing 2250x

[rastoboy29]

I've been telling people for over a decade that the actual value of a downloaded mp3 is something in the area of 4 cents, and I've almost always gotten deeply incredulous responses--even from supposed nerds!

It's gratifying that someone as useful as yourself has come to a similar sort of calculation :-)

Please keep up the good work!

Re:When UMG is sued limit is 2x; when suing 2250x

[Anonymous Coward]

When UMG was sued for copyright infringement, the punitive damages were reduced from 10x actual damages to 2x actual damages.

The point of punitive damages are to be a legal disincentive. It's not at all inconsistent to decide that the $1,000,000 UMG paid for using a sample of a track is sufficient punishment to scare both them and others, but the ten-dollar judgment you suggest might not actually frighten other downloaders. That is why we have juries and judges to settle things on a case by case basis.

Re:When UMG is sued limit is 2x; when suing 2250x

[shaitand]

I don't know even 5 or 10 cents sounds pretty high aggregate across downloads. I mean for every song you'd otherwise buy you download what maybe 200-2000. So at the bottom figure of 200 free songs for one you'd buy that is $0.005 per song.

Some would try to claim an upload is more dangerous but your upload is someone elses download so it is included in their own $0.005 per song calculation.

Re:When UMG is sued limit is 2x; when suing 2250x

[NewYorkCountryLawyer]

I've been telling people for over a decade that the actual value of a downloaded mp3 is something in the area of 4 cents, and I've almost always gotten deeply incredulous responses--even from supposed nerds! It's gratifying that someone as useful as yourself has come to a similar sort of calculation :-) Please keep up the good work!

Thanks. It is beyond dispute that the maximum damage is in the neighborhood of 30 to 40 cents. That would be the damage if every unauthorized download represented a lost sale. It would take statistical evidence to determine what the proportion is, but I'm guessing it's in the neighborhood of 1:7 or something like that, which would put it at around a nickel.

[disclaimer: I am aware of microbreweries, TVM]

[Hognoxious]

You pay >100x more for toner than you do for the same amount of beer.

If you live in the US, the toner not only contains 100x more alcohol but tastes 100x better.

Re:[disclaimer: I am aware of microbreweries, TVM]

[cynyr]

hey, we import beer, and the micro breweries tend to make decent stuff as well.

Re:[disclaimer: I am aware of microbreweries, TVM]

[Anonymous Coward]

You aren't very good at reading titles, are you?

Re:Dont pirate music, simple as that.

[0123456]

Why is everyone bitching that the guy got in trouble for downloading free music. I was taught "don't do the crime if you cant do the time." These guys broke the law and committed a felony. They are lucky they are not going to prison. I would gladly pay $60k and keep my ass out of the prison shower room.

I think the complaint is the disproportionate punishment for the crime. He apparently downloaded 30 songs, which is about 3 CDs worth... if he'd walked into a CD store and stolen three CDs with no previous criminal record, do you really think he'd be fined $67,000 or sent to jail?

Re:Amateur Lawyers

[Hatta]

The decision seems to say that $2,250 is 3 times the "statutory minimum" of $750.

If 3 times the statutory minimum is 2 thousand times the actual damages, then the statute is clearly unconstitutional. What logic could justify that?

Re:Amateur Lawyers

[NewYorkCountryLawyer]

If 3 times the statutory minimum is 2 thousand times the actual damages, then the statute is clearly unconstitutional. What logic could justify that?

None.

Re:Amateur Lawyers

[Anonymous Coward]

You quoted from the summary. The summary was written by NewYorkCountryLawyer, who is (if I remember correctly) an actual lawyer.

Re:Amateur Lawyers

[Anonymous Coward]

However, after concluding that the actual damages in this case were ~ $1 per infringed work, she entered a judgment for 2,250 times that amount. Go figure.

If you can't figure out the judge's logic, maybe you should ask for your law school tuition back. What, you never went to law school? Funny how law is the one profession everybody thinks they know, even without training. Remind me not to ask your for medical advice either. And no, you can't design my house.

The decision seems to say that $2,250 is 3 times the "statutory minimum" of $750. And no, I don't know what statute she refers to — IANAL either.

The person you're quoting and then calling untrained IS an actual lawyer and did go to law school. Nice job on pretending you know more than he does about law though. Hypocrite much?

Hmmm.

[bluenawab]

It is funny to compare the financial damage in this case with the restitution costs paid out by the oil companies - their negligence harmed thousands of people for several years, blighted an entire eco-system and the court awarded 500 million after 20 years. In this case, the "damage" due to an everyday person sharing songs unknowingly, is $2250... Thats some justice!

Re:Amateur Lawyers

[ThorGod]

Law isn't the only profession/discipline everybody things they know (or - worse - 'should' know).

I constantly hear gruff from people who think economists are all liars and don't know what they're talking about. I'd bet every profession and discipline has to suffer this problem.

Penalty less than iTunes?

[stimpleton]

I live outside of the US. Lets say, as in the summary, I was fined US$1 per infringed work then:

Currently, I pay NZ$1.50 per iTunes song.

At its worst exchange rate a couple years back it was NZ$2.12 per song(I didnt purchase many at that time).

If I had taken these songs instead, extradited to the US, fined, I would have to pay, lets see....US$340. Potentially less than the legitimate purchase price.

PS: I take no moral stand, I work, have limited time outside work hours, and take the shortest path for various things even if it means paying.

Re:Penalty less than iTunes?

[shaitand]

OK, so the sake of simplicity lets take the exchange rates out of the equation it just confuses the issue.

The actual damages were determined to be $1 per song. The award wasn't $1 per song though, it was $2250 per song.

This wasn't a fine. A fine is like when you go too fast and you get a ticket and have to pay a fine for breaking the rules.

This is a judgement saying he owes the music company money. Lets say I break your window and it costs $100 to fix. You take me to court because I won't pay you. The court might then order me to pay for the window. It is custom to pay 3x the cost if it was willful in the US so if I meant to break the window I might have to pay $300. (I also might have to pay legal fees of course).

In this case it was determined he willfully hurt them financially and so should pay 3x. Since the actual damage was $1 that should have been $3 per song. Instead they charged him $2250 per song.

Now you might argue that $3 wouldn't be enough to deter someone. The point isn't to deter them you don't have the right to make me suffer to deter others from breaking your windows only to recover your damages. Even the 3x thing is to deter me, specifically, individually not others who might break your windows.

Re:Amateur Lawyers

[NewYorkCountryLawyer]

You quoted from the summary. The summary was written by NewYorkCountryLawyer, who is (if I remember correctly) an actual lawyer.

Unfortunately, you are right about that. I probably should have been a computer programmer, but I was a little intimidated by those tall machines with whirring wheels and punch cards, which they had in those days.

Re:Dont pirate music, simple as that.

[kramerd]

Why is everyone bitching that the guy got in trouble for downloading free music. I was taught "don't do the crime if you cant do the time." These guys broke the law and committed a felony. They are lucky they are not going to prison. I would gladly pay $60k and keep my ass out of the prison shower room.

I think the complaint is the disproportionate punishment for the crime. He apparently downloaded 30 songs, which is about 3 CDs worth... if he'd walked into a CD store and stolen three CDs with no previous criminal record, do you really think he'd be fined $67,000 or sent to jail?

To idiot #1, its a civil infraction, not a felony, as this was not commercial infringement. Prison was never in the house, never mind on the table.

To idiot #2, stealing is very different from copyright infringement. Stealing is benefiting oneself to the detriment of the originating owner, copyright infringement is distribution without permission. Meanwhile, if he refuses to pay, he will have personal property (excepting certain legally protected property) sold at auction and if it isn't paid off, future wages garnished. Prison will not be an issue until a crime is committed, guilt found in a court of law, and legally mandated.

Re:Amateur Lawyers

[fm6]

Thinking that a whole profession is BS (not sure I disagree about the economists!) is not quite the same thing. I'm not talking about people who think the law is BS (plenty of those) I'm talking about people who believe in the law, but suffer from the illusion that their casual reading puts them on a par with somebody who's spent years studying the subject.

Re:Amateur Lawyers

[fm6]

the statute is clearly unconstitutional

You missed the whole point of the post you're replying to, didn't you?

I don't get it

[Anonymous Coward]

So the discussion is about how difficult it is to pay, when you are caught, for something that you stole. I do not support $20 for a CD but when I don't have an extra twenty, I don't FUCKING buy a CD. Why is it difficult to understand that as ridiculous and seemingly unfair the punishment could be, it is what it is. Did he know it? Yes. Did he take a chance? Yes. Time to wake up buddy. No one is to blame. Ugh.

Its actually amost worst for Tenenbaum

[nick357]

I am reminded of a saying I heard years ago:

If you owe the bank 100 thousand dollars and you can't pay, then you have a serious problem.

But, if you owe the bank 100 million dollars and you can't pay, then the BANK has a serious problem.

Re:Amateur Lawyers

[Krahar]

If 3 times the statutory minimum is 2 thousand times the actual damages, then the statute is clearly unconstitutional. What logic could justify that?

The logic in the opinion that you didn't read.

I run an unsecured wireless network at my house...

[Anonymous Coward]

The SSID is "usemywifianddie"

I see about 3-4 users per month logging in from neighbors houses etc because everyone else has WAP or WEP and it is easier for guests to just use our open network.

Riddle me this:
How can a lawyer prove that I was the one the downloaded the songs beyond reasonable doubt? Even with security, it is not that hard (WEP less than 1 minute) to get onto my wifi and do something illegal on the net.
How can this lawyer prove that a friend or someone didn't break into my house and use my computer to download something illegal?

It seems to me that you would have to either admit to downloading copyrighted works, or get raided and have them on your computer with ONLY access for your user account to the files that they could PROVE you didn't share the password to be found guilty. I don't get how these people keep getting caught and ending up with rulings against them. It seems like something that would be VERY easy to defend with a little logic and tech savvy.

Re:Amateur Lawyers

[TFAFalcon]

.

Funny how law is the one profession everybody thinks they know, even without training.

In most other fields, people are constrained by certain pre-existing laws and facts, such as biology and physics. But they still try to simplify things as much as possible - Newtons laws can still be used in most situations, no need for relativity. It's only in the field of law that things are made as difficult to understand as possible and people are told they can't be expected to understand anything about the law since they are not lawyers. That is until they are sued, when they are expected to know and understand and follow every law there is.

Re:Dont pirate music, simple as that.

[Anonymous Coward]

To idiot #2, stealing is very different from copyright infringement. Stealing is benefiting oneself to the detriment of the originating owner, copyright infringement is distribution without permission.

And to take care of Idiot #3 in advance, pointing out the FACT that copyright infringement is not stealing does NOT imply endorsement of (or participation in) copyright infringement.

Re:Amateur Lawyers

[ThorGod]

If someone's making an argument or statement that 'appears informed' then they're implicitly stating they have enough knowledge to make an informed argument or statement.

I see your point, but I think it's superfluous.

Can we at least agree that the professionals should be let to do their professional duty? ;) I don't know if I could cut it as a lawyer. I look at everything as an axiomatic system with derived statements.

Re:Amateur Lawyers

[fm6]

So, Mister County Lawyer, explain to us why statutory minimum damages are unconstitutional, and why every judge in the country seems painfully unaware of the fact?

That still doesn't make sense.

[Anonymous Coward]

$2,250 would be a reasonable fine for the entire bundle, but not per song. I don't know about federal law, but most state laws that I have seen agree that theft of less than $250 or so is only worth a maximum fine of around $2,500 and/or half a year in jail. The charges don't apply to each item stolen, but to the total of all items stolen. Imagine that Bob steals a $1 candy bar from the store. Assuming the theft were taken seriously, he could legally be arrested and fined up to whatever the limit is in his state, for example $2,500 (Though he would probably be fined for a lot less for stealing a single candy bar). Now, imagine that Joe went to the store and stole the entire candy bar display, worth around $100. He would likely be fined more than Bob, as he stole a hundred candy bars to Bob's one, but he would still only be able to be fined a maximum of $2,500. Bill, now, steals some CDs from the local music store, of around the same value. He would obviously be fined around as severely, if not less. So why is it that stealing a few CDs of data is worth fines of $67.5k, let alone whatever crazy things the RIAA demands? Federal laws can't treat petty theft THAT seriously... can they?

Re:That still doesn't make sense.

[Anonymous Coward]

I don't know about federal law, but most state laws that I have seen agree that theft of less than $250 or so is only worth a maximum fine of around $2,500 and/or half a year in jail.

For each offense. And yes, if your caught shoplifting multiple times it multiplies your liability. Try it some time and come back and let us know how your logic worked out for you. I have yet to see anyone take me up on this challenge because they know, at heart, their logic is flawed.

Re:I run an unsecured wireless network at my house

[brit74]

Information traveling to your computer can be identified by your MAC address. I remember one case where a woman tried this defense - saying it was someone else on her wireless network. It came back to bite her when it was revealed that the data when to a MAC address matching her computer. http://en.wikipedia.org/wiki/MAC_address

How can this lawyer prove that a friend or someone didn't break into my house and use my computer to download something illegal?
Seems like you could use the same defense on child pornography. It's pretty unlikely, and most people just aren't going to buy a silly "I was framed" defense.

US Constitution Amendment 8

[mangu]

Either haul one person to court and make them pay these huge fines, and indemnify the rest of the people from prosecution for that infringement. Or try each person in court for their single infringement

I think the US Constitution would not let one person pay for all the others. "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

Even if we disregard the "excessive fines" part, if just one person is punished that would certainly be an "unusual" punishment.

Strengthen our resolve

[Anonymous Coward]

Dear RIAA,

We dispise you (yes, you Sony, BMG, Warner, etc). Your disgraceful antics do not discourage us, they strengthen our resolve.
Brothers and Sisters, stop buying music from ANY company who is part of the RIAA or MPAA. It's the ONLY way to stop them. If you want to give money to the artists, there are other ways (eg. T-Shirts, etc).

Sincerely,

The Internet

Re:I run an unsecured wireless network at my house

[snowgirl]

How can a lawyer prove that I was the one the downloaded the songs beyond reasonable doubt?

Because reasonable doubt is not required for civil cases. In civil cases it is a preponderance of evidence. The lower standard of proof is because there is no jail time involved.

So, they only need show that you operate the wifi, and you're the person who primarily uses it. Thus, the most reasonable assumption is that it was your download.

Done and done.

Seriously, if you think you have some creative way to avoid the law, seriously... SERIOUSLY, talk to a lawyer about it, and they'll explain to you exactly how it would never work.

Car analogy

[mangu]

See that FBI/INTERPOL message in the front of every video or DVD? When you copy it, you're making a risk assessment that if you get caught they're not going to put the full weight of the statutory limit against you

Yes, I see that -- unconstitutional -- message. In essence, what the statutory limit says is that, if I get caught I have to pay for all those who weren't caught.

It's like if the highway patrol said, "we will only catch one in a million speeder, but he will have to pay for all the million speeders we didn't catch".

If I have one copy of a song, all the damage i have caused to the copyright owner is the lowest cost at which I could have got that song. Incidentally, for most songs this cost is zero, since they are available on the radio. Radio is paid by advertisement, and advertisement cost is bundled into the price of every product I buy.

However, let's ignore that and assume that I couldn't have listened to that song in the radio, the price I would have had to pay would still be $1 or $2 at most. If a thousand other people downloaded, well, sue them and get $1 or $2 from each.

Re:I run an unsecured wireless network at my house

[ShadowFalls]

MAC addresses can be spoofed, and have been to gain access to wireless networks people thought were secure with MAC filtering.

Its not too late!

[Anonymous Coward]

I admire your noble efforts to help the little people who are being steamrollered by the RIAA's disgusting legal tactics. However, should you ever feel that you need a change in profession, you should give computer programming a try! After all, if you can wrap your brain around all the complicated legal nonsense that goes on in this system, its probably adaptable enough to get good at programming. I will admit though, that your efforts in your current profession are probably doing more to benefit society than most individual programmers out there.

RIAA invites people to pirate for profit.

[Wild_dog!]

Apparently with all of the wildly large costs for pirating 24 songs people should just start trying to make it a business.e I you made an nice 24 song compilation, you could probably sell 100k copies for about a buck the world over. You would then have the necessary profits to pay off this sort of settlement. Might as well give the illegal a try if they are going to impose such giant penalties eh?

destructive justice

[bzipitidoo]

This "justice" doesn't accomplish anything. The courts really should consider whether a particular verdict will strengthen society, and this one most emphatically does not. This verdict, if it stands, will only break an ordinary citizen who did nothing heinous, or even really naughty. It won't stop piracy, and it won't help the industry. It makes the government look bad, and increases suspicions of corruption and cronyism.

This copying is something anyone could have done without thinking anything of it. The court system can't seem to figure out what's right despite the time they've taken. Even if they ultimately find that the accused should pay only a few hundred dollars if anything, as they should, they've spent years wrangling over something that should have been easy.

This is no lesson about someone getting what they deserve, no way. Makes the courts look hapless and hopelessly bureaucratic, if that's the best they can do. Shows a lot of people that there is precious little justice. This is our system heeding the incoherent, drug-induced, nightmarish and wholly unreasonable fears of a few undeserving elites who despite their great wealth, power, and responsibility somehow manage to sincerely believe they are victims. Some of the biggest monsters in history are those who are given great power, and use it to strike back against people they think victimized them, and try to terrorize everyone in foolish hopes that no one will never dare attempt to victimize them again.

Where are the checks and balances that are supposed to keep a lid on this? Most people who start behaving insanely end up at the funny farm. Distressing that delusional thinking can get such traction when it comes from those with lots of money, expensive wardrobes, and seats in powerful organizations. These industry creeps are like rabid animals being allowed to run loose, biting and clawing everyone who comes within reach.

Re:destructive justice

[shaitand]

"The courts really should consider whether a particular verdict will strengthen society, and this one most emphatically does not."

That isn't the courts job it is the job of a jury. Too bad courts typically lie to them and tell them they aren't even allowed to consider the law.

Copy Right

[Anonymous Coward]

Yes. "Copy Right" is just that -- the holder of the copyright has exclusive and plenary control over the copying/distribution of their work. IT really doesn't matter who/when/how much, except for very limited "Fair Use" exceptions. Bear in mind too that those exceptions are raised as affirmative defenses in a court of law. That means that you start your case by saying "I AM GUILTY, but..." for the following reasons, I should be excuses. And you bear the burden of proving it was excusable. (I think by a "clear and convincing" standard too, not "preponderance of the evidence", but I could be wrong. I haven't looked at that area in a while.)

You might not think it is morally right -- I certainly don't -- but it's how the mechanics of the law works, as currently written.

Re:Copy Right

[Anonymous Coward]

That means that you start your case by saying "I AM GUILTY, but..." for the following reasons, I should be excuses.

The Fair Use section of the copyright law states that Fair Use is an exception to the scope of copyright -- Fair Use is, by definition, not infringement.

So a defense of Fair Use is not a claim that "I AM GUILTY OF INFRINGEMENT". It is "I AM INNOCENT, BECAUSE THE ARTIFICIAL MONOPOLY HOLDER DOES NOT HAVE MONOPOLY CONTROL OVER THIS USE."

LAW

[Anonymous Coward]

Like we give fines for speeding, and put people in jail for robbery, cash settlements, even in civil cases are not entirely about recouping costs. Where the law stands is based on essentially what the law used to do, and hence we follow this path.

I can't see many of you americans complaining if there was a suit taken against someone who smashed a car window and the plaintiff was awarded damages sufficient for a new car. This is essentially analogous under the law, and as such copyright should be treated in the same way.
You might not like the fact that people own the rights to music, but they do, and that is a pillar of the motivation for its production on such a wide basis. While harsh copyright law, especially where media is concerned is reasonable in what it is trying to prohibit, and the changing legal attitudes towards it, like in the case above are beginning to show that that the judiciary is willing to try and manage the problem without unfairly, or unevenly distributing guilt.
What you suggest, that if you get caught you should pay what you didnt pay in the first place, then in a perfectly resourced judicial system it would amount to everyone just buying the damn tracks in the first place, which clearly isnt the point.

Re:Dont pirate music, simple as that.

[shaitand]

To the idiot above. So called idiot #2 wasn't equated copyright infringement with stealing. He was pointing at that stealing is dramatically worse and stealing this material would result at most (realistically not maximum legal penalties) in a $100 fine.

Re:Amateur Lawyers

[shaitand]

I read it and I didn't see anything that would make the $750 minimum constitutional in the first place. Only quotes that she was bound to enforce it if it was not unconstitutional.

Re:Amateur Lawyers

[shaitand]

I'll chime in. The statutory minimum is over 750x generously estimated actual damages. This is by any sane definition excessive and the constitution bars excessive punishment.

As for every judge in the country, this one wasn't willing to overturn the law but that doesn't mean it won't happen if it keeps getting appealed.

Judges throughout the nation also lie to juries about their duties and authority. What makes you think they overturn laws simply because they are illegal?

Re:Amateur Lawyers

[Krahar]

It's a long opinion so I'm not going to read it again to extract quotes. However, one thing that I noticed was that she cited a previous case where the argument was that if the amount of damages was very low, the ratio of damages to award could be high due to the state's legitimate interest in deterrence of breaking the law. In that case the damages was 66 cents and the fine per incident was 75$, if I recall correctly. She also estimated in her opinion that the total benefit to Tenenbaum for his infringement throughout his life might be around 1500$ - it was determined in court that he had pirated for many years and using multiple networks, not just the one time with the songs he was being sued for. There is also a legitimate argument that she makes that congress has mandated a minimum amount of 750$ with treble damages for willful infringement. That doesn't mean it is constitutional, but there is a heavier onus on the judge to respect the edicts of congress than the edict of a jury. There is also a president from a previous case that this is an amount that has been paid out.

Now add to all that that the constitution has no dollar amounts and no ratios in it. It must be a vague document and so no amount at all can be "clearly unconstitutional" on its face, it seems to me. It can only be determined if a fine is unconstitutional following a careful assessment that in part must include some amount of arbitrariness - and the judge admits that. The treble minimum amount is an option that avoids at least some of the arbitrariness, and that there is precedent for in another case, I understand.

As she points out, she does not have authority to set the amount. The only thing she can do is reduce the amount to the very upper extreme amount that the constitution can in any way construed to allow. Seeing how vague the constitution of necessity is, and that very high ratios have been permitted in the past in cases where the actual damages were very low, she had her hands tied. Given the arguments in her opinion, I don't think that it is a bad estimate to say that 2250$ is a bad verdict on the upper extreme range that the constitution will allow. She does not have the authority to set a reasonable amount because it was the jury who should have done that and the figure of 2250$ is not given because she thinks it is reasonable. The judge isn't even normally allowed to interfere with the award of damages without the consent of both parties - she is only doing it here because the award is so extreme that, in a very rare event, there is an argument that the constitution will not allow it.

On top of all that, she grants Tenenbaum the option of appealing the amount. She points out that the amount is harsh and in excess of what she herself would have granted if it were up to her and not the jury. She points out absurdities in the law, such as that 1000 infringements is judged to be exactly 1000 times as bad 1 infringement. It seems to me that she did as much as she possibly could for Tenenbaum with the constitution argument, and that she is helping him as much as she can to argue his case at his appeal of the amount. It's just that she has to stay within the law - I blame the law and jury in this case, not the judge.

Re:Dont pirate music, simple as that.

[kramerd]

Try reading that again, with comprehension this time.

I responded to point out that while petty theft results in no jail time, neither does copyright infringement, however the scale of the civil infraction is very different, and requires different preventative measures.

I await your apology.

Re:Dont pirate music, simple as that.

[Anonymous Coward]

Go fuck yourself.

Re:Amateur Lawyers

[NewYorkCountryLawyer]

So, Mister County Lawyer, explain to us why statutory minimum damages are unconstitutional, and why every judge in the country seems painfully unaware of the fact?

Well Mr. fm6,

(a) the $750 miminum as applied to an unauthorized download of an mp3 single is unconstitutional because it is over 2000 times the maximum actual damages sustained, and in the neighborhood of 14,000 times the actual damages sustained, and (b) so far only one judge has decided the issue, one way or the other.

So, other than being completely wrong, you are 100% right.

LOL

[crhylove]

As a musician I agree that mp3s should be worth $2,250 each. Think how much money I would be making on iTunes!!!!

Re:Dont pirate music, simple as that.

[Anonymous Coward]

Um... copyright violation is a felony, now? Wow.

Why not just give everybody in the US the death penalty and be done? I'm sure you're guilty of something. If you're guilty of something then any punishment is justified. Let's see... didn't quite stop for that red light? Exceed the speed limit by 1 mph? Ooh, following too closely, that's a good one. Did you leave your trash cans out an extra day? Have a loud argument or play loud music after 10pm where there's a curfew? It's the death penalty for you. If you can't do the time, don't do the crime!

P.S. For God's sake do NOT sing "Happy Birthday to You" or they'll just drop a bomb on your neighborhood.

Re:Dont pirate music, simple as that.

[shaitand]

Try reading that again, with comprehension this time.

Re:Amateur Lawyers

[shaitand]

You are right about precedent for treble damages that is well established precedent in many areas.

"That doesn't mean it is constitutional, but there is a heavier onus on the judge to respect the edicts of congress than the edict of a jury."

I disagree. The jury is the direct voice of the people, congress is a body empowered by the people. Jury trumps congress.

"she cited a previous case where the argument was that if the amount of damages was very low, the ratio of damages to award could be high due to the state's legitimate interest in deterrence of breaking the law"

Be that as it may that isn't constitutional. The state may have an interest in deterrence but the state does not have the authority to use an excessive punishment to achieve it. Tenenbaum can only be punished for his own action actions in isolation and any punishment which is excessive for those actions is unconstitutional.

The constitution is more vague so that it can be interpreted broadly in the interest of limiting government and reserving power to the people. Throughout the document this intention is made clear and great effort is taken to express this. Not only the word but also the intention of the law must be considered when interpreting it.

The bottom line is, based on her ruling it is doubtful this judge would even disagree with me. She simply didn't have the moxie to issue the ruling.

Re:I run an unsecured wireless network at my house

[Anonymous Coward]

"Information traveling to your computer can be identified by your MAC address. I remember one case where a woman tried this defense - saying it was someone else on her wireless network. It came back to bite her when it was revealed that the data when to a MAC address matching her computer. http://en.wikipedia.org/wiki/MAC_address [wikipedia.org] "

This doesn't make any sense. The Ethernet header will only contain your computers mac address as packets travel between you and your immediate next hop router. You would only know the destinations mac if you were both on the same layer 2 switched network. Read up on Ethernet/IP encapsulation and how routers forward traffic.

Double-Plus 5 Insightful

[ThatsNotPudding]

Either haul one person to court and make them pay these huge fines, and indemnify the rest of the people from prosecution for that infringement. Or try each person in court for their single infringement. You cannot have it both ways and fine every single person for his/her infringement plus the infringement of every other filesharer, and do the same for every other filesharer. Much like if you file suit against a commercial pirate, the people who bought CDs from that pirate are not liable for infringement.

Has anyone ever thought of using this arguement in court? What would be the defense against it?