Tenenbaum To SCOTUS: Let's Get This Debate Rolling

NewYorkCountryLawyer writes "Joel Tenenbaum has filed a reply brief in support of his petition for certiorari to the U.S. Supreme Court, in SONY BMG Music Entertainment v. Tenenbaum, trying to get the Court to take on the thorny issue of copyright statutory damages in the age of mp3 files and micropayments."

Comments

So NYCL...

[Hatta]

Short summary. Is there anything you'd like to add? How good of a test case is Tenenbaum?

Re:So NYCL...

[cpu6502]

"Tenenbaum's team arguing that the statutory damages for non-commercial use is clearly a major Constitutional issue, and by forcing it through the remittitur process, all the courts are doing is pressuring people like Tenenbaum to settle, rather than ever allowing it to be judged on constitutionality. And that has consequences -- namely in enabling copyright trolls to shake people down, without ever allowing them to challenge the constitutionality of massive statutory damages.

"I actually think this is a much more persuasive argument than I've seen from Team Tenenbaum in the past, but it seems unlikely that the Supreme Court will actually take the case on. I hope I'm wrong (and then, if I am wrong on that, I hope I'm wrong in my guess as to how it will come out, because this version of the Supreme Court doesn't appear to understand the issues around copyright law)..... It's an interesting argument to get around the lack of a circuit split (conflicting rulings in different circuits, which is one of the key reasons why the Supreme Court agrees to hear certain cases)."

If I got a letter from RIAA or MPAA demanding $5000 I'd just throw it in the trash.

It's doubtful they'd come after me, and if they did, then I'd enjoy fighting them in court. And if I wound-up losing and owing $1.5 million (two songs infringed upon), I'd consider that a life sentence. That's worse than the punishment for murder.

Re:So NYCL...

[Kjella]

And if I wound-up losing and owing $1.5 million (two songs infringed upon), I'd consider that a life sentence.

No no, you see there's a generous cap on maximum damages so you'd only owe $300k, to get as much as $1.5 million you must be a big time infringer sharing at least 10 files or a little less than an album.

Re:So NYCL...

[hot soldering iron]

So.... You'd get off with a lighter sentence if you went and killed the RIAA attorneys? I like your thinking, and I'll gladly kick in a buck for your legal defense fund.

Re:So NYCL...

[Anonymous Coward]

I could see someone going for gold and try to sell a kilo of poisoned cocaine near certain corporate offices and end up getting something like:

  - Millions in fines for the alleged infringement.
  - 10 years minimum for possession with intent to distribute
  - And ...wait for it... a year in pen with a year of probation for attempted murder, because life is sacred to our government, don't-cha-know?

And who tried to buy the coke? "Well...hurr....uhh... we have no leads at this time as to the whereabouts of the alleged busi....err...buyers. Hey, look over there at something shiny!"

Re:So NYCL...

[Theaetetus]

How good of a test case is Tenenbaum?

Considering Tenenbaum's lawyer has already faced sanctions and had to pay fees for the other side, probably not a great one.

Re:So NYCL...

[Ihmhi]

I haven't seen NYCL (NewYorkCountryLawyer, for the uninformed) in a while and I do terribly miss him. He's one of the nicer things about Slashdot. But, it looks like he started posting again in the last few days! Hello NYCL!

Re:So NYCL...

[N1AK]

If I got a letter from RIAA or MPAA demanding $5000 I'd just throw it in the trash. It's doubtful they'd come after me, and if they did, then I'd enjoy fighting them in court. And if I wound-up losing and owing $1.5 million (two songs infringed upon), I'd consider that a life sentence. That's worse than the punishment for murder.

Oh come on. If the punishment was that bad why would you throw the letter away without seeking legal advice. Either you like acting irrationally or that position makes no sense. Secondly I'd much rather get a $1.5 million fine (which would bankrupt me) than spend 10+ years in prison. I'd have to question the sanity of anyone who genuinely thought the fine would be worse.

Re:So NYCL...

[cpu6502]

For the same reason I'd throw a letter from Nigeria demanding $5000 in the trash. I don't respond to extortion.

Re:So NYCL...

[Anonymous Coward]

I for one welcome our NYCL Overlords!

Re:So NYCL...

[molog]

And if I wound-up losing and owing $1.5 million (two songs infringed upon), I'd consider that a life sentence. That's worse than the punishment for murder.

Why would it be a life sentence. There is this thing called bankruptcy. It can wipe even this judgement away.

Re:So NYCL...

[NewYorkCountryLawyer]

I haven't seen NYCL (NewYorkCountryLawyer, for the uninformed) in a while and I do terribly miss him. He's one of the nicer things about Slashdot. But, it looks like he started posting again in the last few days! Hello NYCL!

Thank you Ihmhi

Yeah I really have been remiss, will try to do better :)

I miss you guys (and by guys I mean gals too)

Re:So NYCL...

[NewYorkCountryLawyer]

I for one welcome our NYCL Overlords!

In order to prove your loyalty, you must obey my command and try to get this other story submission -- about Verizon responding to a subpoena BEFORE its response was due, and thus mooting judicial review of the subpoena -- voted up:
"Verizon answers John Doe subpoena BEFORE it was due"

Re:So NYCL...

[Anonymous Coward]

Killing the lawyers is wrong, they are just doing their jobs. You go an take out the head or board of the RIAA. That will get your point across.

Re:So NYCL...

[hot soldering iron]

Hit men are "just doing their jobs", too. Still takes a special strain of scum to *want* to do it.

SCOTUS to rule on micro vs. monolithic kernels?

[Anonymous Coward]

Oh, it's not that Tenenbaum :(

Re:SCOTUS to rule on micro vs. monolithic kernels?

[Anonymous Coward]

Tenenbaum argues that the large monolithic fine imposed on him constitutes bad legal design, and proposes replacing it with smaller, independent fees for each shared song, in accordance with the micropayments model.

The RIAA lawyers, on the other hand, point out that large monolithic fines have worked perfectly fine for them so far, and that in the real world, profitability often trumps morality.

I should point out here that what I'm referring to as RIAA, is in fact, Sony/RIAA, or as I've recently taken to calling it, Sony plus RIAA. The RIAA is not a company unto itself, but rather a trade organization of record labels and distributors that join forces and lobby together to protect their economic interests.

There really is a RIAA, and people are getting sued, but by the larger ecosystem that they comprise. The RIAA is an essential part of the extortion process, but useless by itself; it can only function in the context of lawyers and litigious rightsholders. The RIAA is used here as a collective name for the rightsholders: the court case is basically Sony with RIAA added, or Sony/RIAA. When commenters talk about this so-called "RIAA suit", they really mean the case brought by Sony/RIAA.

Of course, some people may find that a bit gratuitous, and point out that there are several other companies that constitute this court case. Taken to it's full conclusion wouldn't we end up with Sony/Warner/Atlantic/Arista/UMG/RIAA?
Many companies have made major contributions to copyright litigation, and they all deserve credit for this suit. But the reason /.ers can all agree it's evil -- and not just a collection of companies trying to make a living -- is because if it wasn't Sony wouldn't bother with it.

Debate? In the Supreme Court?

[Anonymous Coward]

Wrong place. All their debates are secret.

Let's have a public discourse.

Failure to comprehend

[SolitaryMan]

Can somebody please translate this summary to English.

Re:Failure to comprehend

[Beardo the Bearded]

Okay, this guy Tenenbaum, let's call him Mr. T for short, was sharing files. Sony sued him and won a fuckton of cash from him, more than he'll earn in his lifetime.

The argument put forth by Mr. T is that those are fair punishments if the infringer is a business, and that's when those laws were drafted. They didn't think that an individual would be on the business end of commercial copyright theft. (Which by definition they cannot be, since they aren't a commercial entity)

So Mr. T's argument is: come on, now it's $1 a song for an MP3. It's cruel and unusual punishment (thus the constitutionality of it) to subject someone to a lifetime of indebtured service for stealing something that's worth $1. If he stole 500 pies and then burned down the bakery with five people inside, he'd be out of prison in 10 years. For taking a photo of those pies and putting them up on his website so other people could see what those pies looked like, he's being put to financial death.

Re:Failure to comprehend

[Anonymous Coward]

AFAICS, the only part of TFS that isn't part of normal English is certiorari, which is when you ask the US Supreme Court to hear your case.
Somebody who's been being sued for music copyright infringemennt (probably file sharing) is trying to get the Supremes to put a stop to the RIAA lawsuit foolishness.

Re:Failure to comprehend

[medv4380]

The guy submit a request to have the US Supreme Court review a case involving copyright infringement on the basis that it violates the Excessive Fines Clause. Which is at least a reasonable argument, and if accepted would put the RIAA and others under a spotlight that could damage all future cases. However, it is unlikely they will accept it.

Re:Failure to comprehend

[Trepidity]

1. For a while now, many people have viewed he per-infringement statutory damages as pretty ridiculous, since you can end up owing like, $10 million in damages for sharing a folder of mp3s, which does not seem anywhere near any actual damage caused.

2. The U.S. Supreme Court in the past has held that, for punitive damages, an award of more than about 4x actual damages, and definitely anything in excess of 10x actual damages, is unconstitutional.

3. Commentators have urged courts to combine #1 and #2 above by extending the holding to statutory damages: i.e. that statutory damages cannot exceed some reasonable multiplier over actual damages.

4. In the case at issue, Sony BMG v. Tenenbaum, a court did precisely that. A jury returned a $675,000 statutory damages verdict, and the defendant moved to have it reduced as unconstitutionally out of line with actual damages. The court accepted that argument, and reduced it to $67,500.

5. That decision was subsequently set aside, by an Appeals Court, on some obscure statutory grounds I'm not entirely familiar with, and returned to the District Court for a new trial. Tenenbaum is appealing that ruling to the Supreme Court, asking for the Appeals Court to be overturned, and the District Court's constitutional ruling on excessive damages to be reinstated.

6. More generally, many commentators see this case as a particularly good opportunity for the Supreme Court to speak definitively on the question, hopefully extending the punitive damages rule to statutory damages.

Re:Failure to comprehend

[Rogerborg]

Well, that's his argument now. Remember, it started out as "Nuh huh, didn't", until it became painfully obvious that uh huh, did. Joel has had exactly the level of representation that he's paid for - none. His, uh, "legal representatives" have successfully defended him from a few thousand dollar settlement all the way into eternal servitude.

Given an appeal to SCOTUS, they might manage to get him renditioned to Guantanamo, although on the bright side, it won't have cost him a cent in legal fees to get there, and they'll get some totally awesome anecdotes to deliver in their Law 101 lectures.

Re:Failure to comprehend

[NewYorkCountryLawyer]

Can somebody please translate this summary to English.

Dear Supreme Court:
When an mp3 file sells at retail for 99 cents, and the record company is out about 5 cents from an unauthorized download, it's beyond the pale to allow me to be penalized more than a few dollars for it, especially since I was not making any money on it, I was just listening to the music.
So please rule on this issue to take the insanity out of present day copyright law.
Thank you
Your friend
Joel Tenenbaum (& his lawyer Prof. Charlie Nesson)

Re:Failure to comprehend

[Beardo the Bearded]

It doesn't matter if he did or did not at this point. Once he's found guilty of doing it, then it's a fact that he did do it, reality be damned. In the one law course I took as an Engineer, we talked about this. Let's say I commit a crime while wearing a red shirt. If all the witnesses said I was wearing a blue shirt and I was convicted, then as far as the law was concerned, that red shirt is, in fact, blue.

Now, legal weirdness notwithstanding, he's got a good point. A $3/4 million dollar fine is all well and good for a huge corporation like Sony or Dell or IHOP, but it's ridiculous to the vast majority of people. Fining someone $675,000 for stealing something with a retail value literally smaller than a chocolate bar ($0.99) is so wholly unreasonable (22k5 times the value) that it should be unlawful.

If it was me, I'd declare bankruptcy, then my next Internet connection would be a business one. If that business gets sued, then fold the company, blame it all on the actions of a few rogue employees, lather, rinse, repeat.

Re:Failure to comprehend

[LandDolphin]

But the problem is that he isn't being charged with "stealing" in the idea that he took something worth $1. It's that he gave that $1 item away for free a multitude of times.

So it isn't the 1 song he downloaded, but the song that he gave away a multitude of times.

At least, that is my understanding. They don't go after the downloader, they go after the seeder.

Re:Failure to comprehend

[LandDolphin]

It isn't the downloaded, but the seeding that get's one in trouble. It isn't that he downloaded two songs, but that he seeded two songs to a mutuality of people and each person is a new case of infringement.

Re:Failure to comprehend

[westlake]

Dear Supreme Court:

When an mp3 file sells at retail for 99 cents, and the record company is out about 5 cents from an unauthorized download, it's beyond the pale to allow me to be penalized more than a few dollars for it, especially since I was not making any money on it, I was just listening to the music.

You were also re-distributing the files wholesale to the P2P nets.

Would you rather be charged 5 cents --- or, more plausibly, 45 cents each --- for every pirated mp3 file that could be traced back to your computer? Through a watermark or other means?

Think about it.

uTorrent has been downloaded 17 million times through Download.com alone.

Re:Failure to comprehend

[Internetuser1248]

Joel has had exactly the level of representation that he's paid for - none.

Because in the US legal system, the rich are innocent, and the poor are guilty. You would save a lot of time if everyone just emailed bank statements to the courts and then no one would have to waste their time in a courtroom.

Re:Failure to comprehend

[Theaetetus]

The argument put forth by Mr. T is that those are fair punishments if the infringer is a business, and that's when those laws were drafted. They didn't think that an individual would be on the business end of commercial copyright theft. (Which by definition they cannot be, since they aren't a commercial entity)

The problem with that argument is that the copyright act was updated 14 years ago, with provisions included specifically to address copyright infringement in the internet era - the Digital Millennium Copyright Act. So, any argument that the copyright act is simply too out of date and they never considered file sharing is doomed at the outset.

So Mr. T's argument is: come on, now it's $1 a song for an MP3. It's cruel and unusual punishment (thus the constitutionality of it) to subject someone to a lifetime of indebtured service for stealing something that's worth $1. If he stole 500 pies and then burned down the bakery with five people inside, he'd be out of prison in 10 years. For taking a photo of those pies and putting them up on his website so other people could see what those pies looked like, he's being put to financial death.

And unfortunately, that argument misses half of the infringement. You're right, Mr. T could have downloaded a track for $1. But he also was uploading copies... How much is a distribution license? Do you think that Apple, for example, pays a single dollar, once, in exchange for getting to distribute millions of copies of the latest pop song? Heck no... Distribution licenses are usually based on royalty percentages with established distributors, or flat fees (potentially plus a lower royalty) for unestablished distributors where the royalties may be questionable. If Mr. T approached Capitol Records and said "I'd like a license to distribute ten thousand copies of this song," do you think they would say "sure, that'll be $1", or would they more likely say something like, "sure, that'll be $100,000"?

For example, Michael Jackson bought the distribution rights to a bunch of Beatles songs - specifically, 4,000 songs at $47.5 million, or about $12k per song... Much more than $1.

So, any argument that Mr. T's damages should be only $1 is also doomed to fail.

Fortunately, there's another argument, but it's one that only a judge or an amici would raise since neither Tenenbaum nor the RIAA would like it (which may be an indicator that it's correct)... Specifically, it has to do with the "willful" infringement standard which expands the damage range from $750-30,000 per work to "up to $150,000". The RIAA has argued in the past that "willful" means "known or should have known the song was copyrighted" (which is why they slap a copyright label on everything)... but that effectively removes the regular damage range, and it also disregards some of the specific legislative history of the act and congressional reports. However, no defendant - including Tenenbaum - has ever tried to argue that, no, they should only be liable for up to $30k, because that's still way too high for them. They're too busy arguing the doomed "it should only be $1," so they miss this point: the "willful" standard was intended to be a "malicious" infringement standard, for either commercial profit or to commercially destroy the publisher by giving away their works.

And this is actually quite important... juries select damages near the geometric mean of a range, unless there's egregious behavior that pisses them off. If you give a jury an instruction that they should find damages between $750-150000, they'll end up picking something in the $30k-40k range. If you tell them they should find damages between $750-30000, they'll end up picking something in the $7k-10k range. It's pure psychology - if you go from $750 to $1500, you've doubled the fee... but if you go from $149250 to $150000, you've barely changed it, even though it's the same difference. So, juries pick round numbers, a

Re:Failure to comprehend

[Theaetetus]

Dear Supreme Court:
When an mp3 file sells at retail for 99 cents, and the record company is out about 5 cents from an unauthorized download, it's beyond the pale to allow me to be penalized more than a few dollars for it, especially since I was not making any money on it, I was just listening to the music.
So please rule on this issue to take the insanity out of present day copyright law.
Thank you
Your friend
Joel Tenenbaum (& his lawyer Prof. Charlie Nesson)

Dear Mr. Tenebaum and Counselor Neeson,
That would be a very reasonable point, if all you had ever done was download the song and "just listen to it."
But instead, you distributed the song to thousands of people. We asked Capitol Records if a distribution license was also only 99 cents, and their accountant collapsed. When he recovered, he asked if we had meant 99 thousand dollars.
So, can you clarify whether we're supposed to be ruling on the mere "just downloading and listening" that you claimed, or on the "sharing to lots of people" that you actually did? We'd be happy to rule on the former, but it's not going to help the contents of your bank account.
Your besties,
The Supremes

Re:Failure to comprehend

[Anonymous Coward]

So, if on those two files, he had a ratio of 100 (which would be exceptionally high), he should be billed $0.45 per upload or a total of $90? Uh, okay, I guess I could live with that.

Re:Failure to comprehend

[Anonymous Coward]

Yep. Madoff, Lay, Ebbers, Stewart, Helmsley, Snipes, Nelson, Moffat, DuPont- all those poor people convicted of crimes they didn't commit.

Re:Failure to comprehend

[nick357]

Can somebody please translate this summary to English.

Sure!

I used the services of Google translate to change that unreadable gibberish into something much more understandable:

Provides a summary of responses to support requests, and Joel Tnanbhum ", in an attempt to court the thorny issue of damages in copyright law micropayment and MP3 files, Sony Music Entertainment, BMG Tnanbhum contrast, the U.S. Supreme Court notify".

In keeping with the spirit of Slashdot, for those interested in the technical details, I moved it from its original gibberish to Latin to Arabic to Japanese to Swahili to English.

You are most welcome.

Re:Failure to comprehend

[whoever57]

So it isn't the 1 song he downloaded, but the song that he gave away a multitude of times.

What evidence that he gave it away more than once (or even once) was presented to the court?

Re:Failure to comprehend

[whoever57]

And unfortunately, that argument misses half of the infringement. You're right, Mr. T could have downloaded a track for $1. But he also was uploading copies.

You suppose that he uploaded it multiple times. What evidence exists to prove this? Without such evidence, the uploading damages should be zero.

Re:Failure to comprehend

[Theaetetus]

And unfortunately, that argument misses half of the infringement. You're right, Mr. T could have downloaded a track for $1. But he also was uploading copies.

You suppose that he uploaded it multiple times. What evidence exists to prove this? Without such evidence, the uploading damages should be zero.

He admitted it. And in fact, Neeson did it again during the trial, placing all of the songs on a website for free download. A confession is sufficient evidence. The only issue at trial was damages, and thus, the only issue that can be up before the Supreme Court is damages.

Re:Failure to comprehend

[sjames]

So just exactly how many times do they claim he gave it away? In order for the $675,000 to not be excessive, he would have to have given away 337,500 instances of songs the plaintiff has exclusive rights to (about a TB of data).

On a typical broadband connection, that would mean keeping his upstream at 100% utilization 24/7 for over half a year (without being cut off as an abuser) or for much longer if he actually wanted to use the connection himself.

This all assumes that the label would make $0.50 on the song (a rate they readily accept for iTunes), a typical song of 3MB, an upload bandwidth of 500K (perhaps a touch generous for the time period this happened in), and 100% uptime on his connection, that he dedicated himself to sharing the plaintiff's songs exclusively, and that 4x damages is to be considered reasonable.

Re:Failure to comprehend

[MacGyver2210]

It's that he gave that $1 item away for free a multitude of times.

This should help his case, if anything. If he had setup a music downloading site a-la iTunes store, and had taken this music and SOLD it repeatedly without the proper authorization steps, then the fine would be just. As it stands, he did not sell the items, and it is entirely unfair that they charge him an amount based on profit margins from music stores and copyright licensing fees for multimillion dollar companies.

What is so wrong with, say, $100 a song you shared illegally? I think that would be sufficient for a $0.99 item. At this point, the prosecutors are not making an example of him as they thought they were, they are just proving how dickish and out of touch with reality they are.

Re:Failure to comprehend

[MacGyver2210]

As I understand it, he didn't charge to download these copied files on his end. This should mean he is not subject to the corporate music store licensing, but he should be held accountable by the Copyright notice that is at the beginning of every movie saying "Hey! $10,000 fine and up to 5 years in the slammer!".

I know if I were given the option of a few years in white-collar jail and a $10k fine versus ~$700k in fines I would take the first option.

Re:Failure to comprehend

[Anonymous Coward]

I would *GLADLY* pay $1 or even $10 for every MP3 file I have ever shared instead of $600k or even $67k.

I'm a dick. I don't seed or upload. Also, I only have about ~2500 songs I illegally downloaded, so I would save a ton of cash.

Re:Failure to comprehend

[MacGyver2210]

That is remarkably coherent for that number of translations, and the legalese it began as.

Re:Failure to comprehend

[Theaetetus]

As I understand it, he didn't charge to download these copied files on his end. This should mean he is not subject to the corporate music store licensing, but he should be held accountable by the Copyright notice that is at the beginning of every movie saying "Hey! $10,000 fine and up to 5 years in the slammer!".

That's a great theory... Why don't you look in the copyright act and find where there's support for that theory that he's not subject to licensing fees since he didn't charge? We'll wait.

Re:Failure to comprehend

[Anonymous Coward]

And unfortunately, that argument misses half of the infringement. You're right, Mr. T could have downloaded a track for $1. But he also was uploading copies... How much is a distribution license? Do you think that Apple, for example, pays a single dollar, once, in exchange for getting to distribute millions of copies of the latest pop song? Heck no... Distribution licenses are usually based on royalty percentages with established distributors, or flat fees (potentially plus a lower royalty) for unestablished distributors where the royalties may be questionable. If Mr. T approached Capitol Records and said "I'd like a license to distribute ten thousand copies of this song," do you think they would say "sure, that'll be $1", or would they more likely say something like, "sure, that'll be $100,000"?

And you missed the point completly. An entity like Apple is making money off the recording, when you talk distribution costs that is about someone making money off the music. What money was made from sharing the files? Then there is the question of how many times the songs were uploaded, which could be found out but would take a lot of work. And it seems like a certain side of this argument doesn't want to do any of that work because it might not come out in their favor.

This is plain and simple a question of the punishment matching the crime. I get throwing the book at the guy selling copies in a grocery parking lot, but this is someone with no profit motive. There needs to be a seperation between the two and it needs to happen now.

And one last thing that ruins your argument is the whole "the "willful" standard was intended to be a "malicious" infringement standard, for either commercial profit or to commercially destroy the publisher by giving away their works." Doesn't fly when we have studies saying sharing files actually is a benefit to the labels and helps increase sales. Maybe your right it's not just a dollar in damages, but millions that should swung the other way in favor of the consumer.

Re:Failure to comprehend

[walshy007]

But instead, you distributed the song to thousands of people.

You seed every download until you hit the thousands of uploads mark? Must have a lot of upload capacity. Even small downloads won't hit that because the smaller the download the more seeders there tends to be so less likelihood of your machine distributing.

Re:Failure to comprehend

[Theaetetus]

But instead, you distributed the song to thousands of people.

You seed every download until you hit the thousands of uploads mark? Must have a lot of upload capacity. Even small downloads won't hit that because the smaller the download the more seeders there tends to be so less likelihood of your machine distributing.

Dear Mr. Tenebaum and Counselor Neeson,
So you're admitting you distributed the file, rather than merely "just downloading and listening" as you originally suggested, but instead are merely quibbling over the number of recipients? Why exactly are you wasting our time if you can't even get the facts of your own case straight?
Sincerely,
The Supremes

Re:Failure to comprehend

[Theaetetus]

So it isn't the 1 song he downloaded, but the song that he gave away a multitude of times.

What evidence that he gave it away more than once (or even once) was presented to the court?

His own statements of admission.

Are you saying that Tenenbaum shouldn't be liable for infringement, but that both he and Neeson should instead face criminal trials for perjury?

... that's a novel "defense".

Re:Failure to comprehend

[Theaetetus]

It's that he gave that $1 item away for free a multitude of times.

This should help his case, if anything. If he had setup a music downloading site a-la iTunes store, and had taken this music and SOLD it repeatedly without the proper authorization steps, then the fine would be just. As it stands, he did not sell the items, and it is entirely unfair that they charge him an amount based on profit margins from music stores and copyright licensing fees for multimillion dollar companies.

But, for better or for worse, the copyright statute makes no distinction between those who infringe copyright for funsies and those who do it for commercial profit, except in the area of criminal liability. Tenenbaum didn't sell the music, so he won't go to jail... but he doesn't magically get to avoid all of the infringement damages as a result.

And, again, for better or for worse, the Supreme Court doesn't get to change that... Congress can change the statute to exempt infringement-for-funsies or reduce the damages, but only Congress can do that, not the "activist" judges... They simply lack the power.

Re:Failure to comprehend

[sjames]

Their mistake was ripping off people who were even richer than they were.

Re:Failure to comprehend

[Eskarel]

The Supreme court can't, as such, change it, they can say "These fines are cruel and unusual punishment and therefor in violation of the constitution" though. This of course doesn't replace the fines, but it does remove the existing ones. Congress would then have to actually get together and set a new amount, likely following guidance from the SC decision.

Now the likelihood of this happening is not exactly high. The current SC has voted very heavily in favor of both corporations and conservative ideals. About the only shot he's got is if the conservatives decide that the content industry are a bunch of pinko communists and rule against them out of spite, a ruling based on a clear interpretation of the law seems unlikely at this point.

The big upshot of this for the defendant is that with that part of the law being struck down and no other law currently in existence to charge him under he'd probably walk away with no penalty at all or at worst some sort of proved "actual damages".

I think at this point Tenenbaum is probably looking at it from the point of view that the Supreme Court can't make his damages any worse than they already are(there could be some down sides for defendants in this kind of a case as a whole, but not for Joel), his lawyers are looking at a shot to argue in front of the Supreme Court and they're sort of saying "Why not?". Now the SC won't take the case, even if they did they're in bed with corporations and conservative politics, and even if they weren't, despite what Slashdot seems to think, Intellectual Property doesn't violate the constitution and the penalties are probably not quite so draconian as to cause the SC to interfere with an act of Congress. A bit excessive certainly, but cruel and unusual punishment is a fairly high standard to overcome, I mean the SC has ruled that it's just fine to execute the mentally disabled so what shot does a guy who's only dealing with money have?

Re:Failure to comprehend

[whoever57]

He admitted it.

As far as I can tell, he admitted to uploading, but not how many times each file was uploaded. I really doubt that the record shows anything related his uploading his activity except for his admission of an indeterminate number of uploads.

And in fact, Neeson did it again during the trial, placing all of the songs on a website for free download

How are the actions of his lawyer related to his liability?

Re:Failure to comprehend

[Anonymous Coward]

And unfortunately, that argument misses half of the infringement. You're right, Mr. T could have downloaded a track for $1. But he also was uploading copies... How much is a distribution license? Do you think that Apple, for example, pays a single dollar, once, in exchange for getting to distribute millions of copies of the latest pop song? Heck no... Distribution licenses are usually based on royalty percentages with established distributors, or flat fees (potentially plus a lower royalty) for unestablished distributors where the royalties may be questionable. If Mr. T approached Capitol Records and said "I'd like a license to distribute ten thousand copies of this song," do you think they would say "sure, that'll be $1", or would they more likely say something like, "sure, that'll be $100,000"?

Epic Fail.
Apple pays $0.70 per song sold and gets to profit off the other $0.30 in the $1 cost. Distribution license is basically just "$0.70 each copy" so that is an idiotic example to choose. (10,000 copies = $7000 which is a lot fucking less than this bullshit judgement, how many songs altogether? 24 or something, 24 * $7000 is $168,000 which is still ridiculous but a lot less fucking ridiculous then $1.5mil)

Re:Failure to comprehend

[Anonymous Coward]

That's the RIAA argument. If you are torrenting a file you should be responsible for the, say, 100,000 downloads. But they apply this argument to every one of the 100,000 downloaders (who are, of course, also seeding). If they sued all 100,000 they would be getting damages for 10,000,000,000 infringements in total.

This is to some extent justifiable in criminal proceedings where large sentences are given to the minority of criminals who get caught to "send a message" to everyone else. However, in civil proceedings the penalties are supposed to be based on actual damage. Damages for 10,000,000,000 copies when only 100,000 were made is plainly wrong.

Re:Failure to comprehend

[Anonymous Coward]

But that's not really accurate. Normally you have to prove your damages because of such lunacy. If I steal a candy bar it's easy enough to show that the cost of the candy bar and loss is some amount. However, the supposed loss by the owner of the song should never be more than the cost of the track times the number of people that have downloaded it. And even that is extremely generous as it's assuming those people would have paid rather than doing without had the track not been there to be downloaded.

What's more, often times there's a dozen or more people that contribute towards the same copy being downloaded. Should each one have to pay for the entire copy?

Which is why the MAFIAA is so pleased with statutory damages, they don't actually have to be damaged in order to get a buttload of money.

Re:Failure to comprehend

[Anonymous Coward]

I don't expect them to accept it, but they really should. Settling the matter, even if wrongly would at least leave the matter settled. As it stands now, there's an increasing number of judges that have to spend time dealing with this bullshit. Having it clarified is something that's going to have to happen eventually.

Re:Failure to comprehend

[Anonymous Coward]

Which is also an issue which needs to be clarified because if there's a hundred people seeding a copy of a movie, it's absurd for the MAFIAA to expect to receive the same amount of damages from each and every one of those seeds for that copy.

Re:Failure to comprehend

[Anonymous Coward]

This isn't about "willfulness" at all. In this day and age, everyone knows they are willfully violating the law. They laugh about it. Its a joke. Its frequently a point to boast. He willfully violated the law. He then willfully negotiated himself into harsher and hasher fines; because he's an idiot. There is absolutely nothing unconstitutional about this case, unless willfully violating the law and being an idiot is protected by the Constitution. And as far as I know, it absolutely is not. And if you feel it is, please cite.

He's a wonderful example of someone who should be removed from the gene pool.

Any pirate who thinks this guy should be championed, is yelling they too should be removed from the gene pool.

Re:Failure to comprehend

[Theaetetus]

He admitted it.

As far as I can tell, he admitted to uploading, but not how many times each file was uploaded. I really doubt that the record shows anything related his uploading his activity except for his admission of an indeterminate number of uploads.

Ah, sorry, didn't realize that's the part you were quibbling with - not whether he uploaded, but how many times. The latter is irrelevant - a single act of uploading gets the same statutory damages as ten thousand, because damages are per work infringed, not per copy.

Re:Failure to comprehend

[Anonymous Coward]

I'm surprised that Tennenbaum didn't try that stupid 'a dozen or more people contributed' argument. Sounds like just the brilliant thing he would try. Instead of just being liable for copyright infringement (which he would still be), he would also be open to conspiracy to commit a crime charges.

Re:Failure to comprehend

[bws111]

You don't seem to understand the purpose of copyright. As it says in the constitution: "To promote the progress of science and the useful arts", not "to prevent someone else from making a buck". It does not matter WHY someone infringes copyright, because no matter what the reason is the creator has lost his exclusive rights, and that runs counter to the reason for copyright.

In the past, it made sense to distinguish between commercial and non-commercial infringement. There was very little a non-commercial infringer could do to take away the creators exclusive distribution. It cost actual money to make a copy, and every succeeding generation of copies got significantly worse. Only a commercial pirate would have the equipment and money necessary for large-scale infringement.

Today, a non-commercial pirate does potentially more damage than a commercial pirate. A commercial pirate is going to be charging something, and a non-commercial pirate is giving it away for free. Chances are excellent that the non-commercial infringement is causing far more harm than the commercial infringement.

Re:Failure to comprehend

[bws111]

Yeah, because usually people rip off people who have less than they do.

Re:Failure to comprehend

[bws111]

It does not matter how many times he uploaded. What a lot of people (including you) don't seem to understand is that the damage is not loss of a single copy or a single sale, it is loss of the exclusive right to distribute. Since it is impossible to determine the value of that right, an amount was set by statute.

Re:Failure to comprehend

[cdrguru]

I would offer that music piracy today is indeed willful with the clear intent to commercially destroy the publisher by giving away their works. Nearly everyone that is on the "production" side in music and movie piracy is very much interested in the destruction of the publishers by removing any revenue they might get.

It brings us all one step closer to the Roddenberry dream of the Star Trek Economy... or at least that is the thinking behind a lot of this. First you destroy any value non-material goods might have and then the material ones will have no value soon after that. Of course, it is an utterly ignorant and misguided theory, but it sounds really good on the Internet, especially late at night.

Re:Failure to comprehend

[Teancum]

You don't seem to understand the purpose of copyright. As it says in the constitution: "To promote the progress of science and the useful arts", not "to prevent someone else from making a buck". It does not matter WHY someone infringes copyright, because no matter what the reason is the creator has lost his exclusive rights, and that runs counter to the reason for copyright.

You forgot an important part of that clause in the U.S. Constitution:

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;

Eldred v. Ashcroft notwitstanding, perpetual copyright is a part of the root cause of the problem here. You can't have your cake and eat it too.... either have a very strong copyright for a very limited period of time where the author has complete exclusivity to the copyrighted work, or grant generally weak copyrights that last generally forever.

The problem is when groups want strong copyright protection lasting forever that essentially kills a part of society as a result. Non-commercial infringement is one of those situations, where the lack of earning money from a copyrighted work is a part of the fair-use clause of the copyright law and can be a legitimate part of a defense for why a particular distribution of a portion of a copyrighted work may be perfectly legal (where a "portion" could be the whole work too). Yes, fair-use has other factors to consider apart from non-commercial infringement, but the non-commercial nature can be legitimately considered as a factor.

My argument here is that people insisting on very long copyright terms should also be opening themselves up for significant fair-use exceptions for distribution as well. While not explicitly codified, the age of a copyrighted work likely should be considered as well in terms of a fair-use exception. Something that was only recently created ought to have stronger copyright considerations as opposed to something made 75 years ago (but is still under copyright protection because of the life + 75 copyright term now on many copyrighted works).

If you want to argue that non-commercial infringement is harmful, you would also need to be arguing the limited time argument as well, suggesting that the author has not had sufficient time to market and vend the copyrighted material. I think it would be very difficult to prove that Walt Disney or the Walt Disney corporation has had insufficient time to gather profits from Steamboat Willey, much less George Lucas obtaining plenty of profit from Star Wars. It would be an even tougher stretch to suggest that the current time frame for copyright protection does much to encourage progress of "science and the useful arts". A few years of protection, perhaps. A century? I don't think Walt Disney is necessarily going to have any incentives at the moment to create any additional films due to royalty collections on Steamboat Willey, or his company for that matter.

Re:Failure to comprehend

[bws111]

The problem with all of your calculations is that they are based off the wrong thing. You (and a lot of other people) assume that the 'damage' is a copy of a song. It isn't. The thing that copyright law gives you is exclusive control of your work. THAT is the damage - loss of exclusive control. Since it is impossible to calculate the value of exclusive control, a value was set by statute. So really, the question for a court would be whether or not the amount set by statute is a reasonable amount for the value of exclusive control. Now, is $22500 a reasonable amount for exclusive control of a song? I think it would be pretty hard to argue that it is far too high. I would imagine they can show many cases where at least that much has been paid to gain exclusive distribution rights to a song. If that amount is reasonable, then the amount of the award is not excessive. If you torch a $10M house, you are on the hook for $10M - just because you will never earn that much does not make it excessive, it just means you caused more damage than you can afford. That is your problem, not the law's.

Re:Failure to comprehend

[whoever57]

What a lot of people (including you) don't seem to understand is that the damage is not loss of a single copy or a single sale, it is loss of the exclusive right to distribute. Since it is impossible to determine the value of that right, an amount was set by statute.

He did not rip the CD and make the first upload, thus, he was not the person who was responsible for the loss of the exclusive right. Once that first upload was done, the exclusive right was lost. On the other hand, if he wasn't the first person to upload a rip, should he be responsible for the uploads and proliferation done by others who may have downloaded from him?

This whole case is about whether the amount of damages are unreasonably high. Since all that can really be counted is his one download of each song, are the statuory damages excessive?

Re:Failure to comprehend

[sjames]

Actually, that is true surprisingly often for fraud (at least when the fraudster gets away with it), not so much for robbery.

Of course, the victim has to be above a threshold of wealth to get anyone to do anything about it at all.

Re:Failure to comprehend

[sjames]

Nonsense. The only value the exclusivity has is that it gives you the ability to make people pay you for something they could otherwise just take for free. That is worth exactly what you could get people to pay you for it.

Why is that house valued at $10M? Because that's what comparable houses are selling for. (you are correct that it has nothing to do with what the defendant can actually afford).

So what is an instance of giving someone a copy of a song actually worth? Lets look at how much an instance of that is selling for. That would be the amount iTunes and co. have to pay the rights holders for one copy of a song.

Since the defendants in these cases did NOT gain exclusive rights to distribution (that would be actual theft of the copyright), it is unfair to charge them for that. The record label did not lose the right to sell the right to make single copies of the song to iTunes and co.

Re:Failure to comprehend

[bws111]

They are not paying for the defendants gain, they are paying for the plaintiffs loss. When you torched that house you didn't gain anything either.

Neither you nor anyone else has any idea what the exclusive control would have been worth had they maintained it. It is impossible to know. That is why a value is set by statute. The idea that it would only be $1 is laughable at best.

I'm sure that you would be just as generous with people taking away your exclusive control of things, right? I mean, if I were to make a key to your house and tell a bunch of people that it was OK to use your house when you weren't home or your car when you weren't using it that would be OK, right? I mean, the most I would possibly be liable for is the night's rent.

Re:Failure to comprehend

[bws111]

I'm pretty sure that even lifetime+70yrs is a 'limited time'. I mean, I am guessing that if we were discussing bandwidth caps a cap of 'average user+70GB' would be shouted down as 'that is not unlimited!'

People keep bringing up Steamboat Willie as the great example of something that should be out of copyright. I am genuinely curious, what would the benefit of that be? Is the world somehow suffering because not everyone has a copy of an 80 year old cartoon? Surely Mickey Mouse is also a trademark of Disney, so would not be able to be used in any new works anyway.

Yes, George Lucas has made plenty of profit off of Star Wars. So what? Why does anyone else have a right to make a profit off of it?

The number one movie right now is The Avengers. What possible reason is there for saying that the creators of those characters should not benefit from that, just because they created them a long time ago?

Exactly what part of society is being 'killed' by long copyrights, other than the part that just wants free stuff? There are literally hundreds of thousands of new works created every year, far more than anyone could use. How many more (worthwhile) works would be created if copyright were shortened? How many of those works currently being created would NOT be created if copyright was shortened?

Saying that the copyrights on Steamboat Willie are providing no incentive to Disney is missing the point. The copyrights on OLD stuff is not the incentive, the ability to hold a long-term copyright is the incentive to produce NEW works. Or are you claiming the Disney is no longer producing new works because they hold those old copyrights (which would just be flat out wrong)?

Re:Failure to comprehend

[Anonymous Coward]

Just a quick look in TPB..

One of the top seeded torrents in music was an album by Adele, with 6831 seeds, 17 tracks to the album.

Using the $150,000 per work value, then the record industry should be owed 17,410,509,000

I think absurd would accurately describe it.

Re:Failure to comprehend

[sjames]

Yes, but your loss is intimately tied to potential gain when courts make value determinations. The value per song is whatever the proper rightsholder customarily charges for that copy, in this case less than $1 per copy. They routinely sell that to iTunes and other distributors. If they lost an exclusivity, it was when they started selling the right to make single copies on a per-copy basis to distributors.

As for the house option, I can assure you the courts would NOT assign a value of 700 times the entire cost of my house. Not even 4 times the cost of my house. If, in fact, I did customarily offer my house for a night's rental (just as the record labels DO customarily offer copies of the song), the courts would likely value your trespass at the customary rental fee times a single digit multiplier as punitive damages. Same for my car. Note that that is even though it is a magic house where your 'unauthorized rental' created no conflicts with rentals I had already negotiated. That is, where I can also rent the house out on the same night you took your liberties and nobody noticed.

For the label's song to be like my personal house that I live in rather than a second house I rent out, it would have to be a song that they locked away in the vault after it was produced and never allowed copies to be sold. It would also need to have some personal emotional value to them (impossible, corporations don't have emotions).

Re:Failure to comprehend

[Coren22]

http://en.wikipedia.org/wiki/Cruel_and_unusual_punishment

So you think $150k for essentially (to most non technical people) downloading a song is not cruel and unusual punishment? For most people, $3M is an amount of money they will never make in their lifetime, so it is essentially indentured servitude, which is also unconstitutional.

Re:Failure to comprehend

[Coren22]

There are scientific studies that demonstrate piracy leading to higher sales, so trying to say we want to destroy them is rather absurd when many pirates buy many things they pirate.

Re:Failure to comprehend

[bws111]

Your response to the personal house question shows you still don't get it. It does not matter what your wishes are or were, I have taken your exclusive control away. According to your theory, since you were not going to rent out your house anyway the damages should be exactly zero. You are the one claiming exclusive control has no value in itself, and that is just plain wrong.

However, since you want to pretend that there is a difference because of 'emotions', let's try this. You run a car rental service. I come in one night and take one of your cars. Two days later they find your car. Am I a car thief, deserving a felony charge, or do I just pay two days rental and call it even? If you claim it is just two days rental you are a total liar.

Re:Failure to comprehend

[bws111]

Several problems. First, no-one has been sued for downloading a song. Every case has been about unauthorized distribution. Next, it is a civil case. The judgement (not fine) is to make things whole with the harmed party. The ability to pay has absolutely nothing to do with how much damage you have caused. If you manage to cause a billion dollars of damage, you are on the hook for a billion dollars. That is not cruel and unusual, it is just you causing more damage than you can afford. Since you are in no way forced to work for the party you have harmed, it is in no way indentured servitude.

Which leaves just the question of damages. What are the damages? Some people claim that the damages are the number of times the song has been distributed, but that is not the damage. The Constitution, enacted by the Copyright Act, grants exclusive control to the creator of the work. When you distribute, you have taken away that exclusive control. That is the damage. The only question is: how much is that exclusive control worth? It is impossible to tell, so a statutory value has been set. The thing to remember is: the amount of the value is purely based on the harm to the creator, and has absolutely nothing to do with the ability of an infringer to pay.

Re:Failure to comprehend

[sjames]

Go read it again. My customary use matters very much to the courts. I actually argued that the analogy is only valid if the label had no intention of distributing the song at all (patently untrue, they only exist to distribute songs).

We are not discussing criminal charges here, this is a civil case. If you took my rental car out for 2 days and brought it back undamaged, I probably WOULD only get 2 days rent plus a single digit multiplier (if that) as damages. The criminal charges would be irrelevant to the action in civil court other than for establishing that you actually did it. I would probably get a bit more if I actually had to find it rather than you bringing it back.

As for the case where I don't customarily rent out my house, I probably would get darn near goose egg from a civil court if nothing was broken. There would be separate criminal charges. There's a reason such cases don't generally go to civil court. However, I have more than justified why this is not an analogois situation (even though it still pays nearly nothing to the plaintiff).

Re:Failure to comprehend

[Teancum]

The problem with a very long copyright term is that the content doesn't go into the public domain. How old is old?

An example of a very old copyright is the King James Version of the Bible, which is still under copyright in the United Kingdom. Should the works of William Shakespeare still be under copyright by his heirs? What benefit would that provide?

Strong copyright really is a strong restriction on speech, where using the Steamboat Willie example you can't effectively use it in examples of early animation. Just as significant is the issue with copyrighted works of about the same age where the current copyright isn't even known. This is an issue known as "orphaned works", where in some cases the company who "owns" the copyright simply doesn't exist. If you want to re-publish some of these older work where the copyright status is uncertain, you take the risk of massive copyright infringement even if you have performed an extensive survey to see who might own that content. This includes simply trying to archive copyrighted material to simply preserve it for future generations, where strong copyright simply prevents even ordinary archiving of that content. This has resulted in some substantial works being lost.

There is also the general issue of content being made available for people to make derivative works. You mention why somebody should profit off of Star Wars? My counter argument to that is what stories have been lost because people can't enter the Star Wars universe and tell stories from that setting, do a "what if" speculation about what might have been if Luke Skywalker failed to destroy the Death Star, and other numerous stories. This isn't just speculation here either, as such stories have been squelched through copyright claims. Yes, fan fiction exists in various forms, but the original copyright holder heavily regulates these kind of stories.

Giving a good example of how stories entering the public domain can benefit from a retelling, "West Side Story" is essentially a retelling of "Romeo and Juliet" but in a much more contemporary setting. If William Shakespeare's copyright was still being honored, that story simply wouldn't have been told. I could say the same thing about "The Lion King" as a retelling of Hamlet. Both of these derivative stories are recycling the work of the past in a new way that really has added value to our culture and serves to encourage retelling these stories in very new ways.

Also, this debate about copyright term length goes back to the debate over the issue with the original constitution convention of 1787, where the issue of copyright terms was raised in that convention. Abuses of copyright at the time were rampant and the copyright clause was explicitly entered into the U.S. Constitution as a protest against the British copyright laws of the era. It should be telling that the first edition of the Bible printed in America was in Cherokee, as publication of the Bible in the English language was prohibited under the copyright laws of the time. It wasn't until after the American Revolution that a copy of the Bible in English was published... after which there were literally hundreds of presses making copies of that particular book. Other writings of the American Revolution as set up by the "Committee of Correspondence" were also critical to spreading knowledge about key issues of the day, where they used something akin to and open source license for spreading that information.

In short, the U.S. Constitution was written with a very limited term explicitly because the founding fathers knew the value of content in the public domain and expected that we should have access to our own cultural heritage. Long copyright terms prevent that. While it was a dissenting opinion (therefore not really law), I did appreciate Justice Breyer's opinion that he wrote for Eldred v. Ashcroft covering this specific topic and why lengthy copyright terms is a bad thing, going into very speci

Re:Failure to comprehend

[westlake]

So, if on those two files, he had a ratio of 100 (which would be exceptionally high), he should be billed $0.45 per upload or a total of $90? Uh, okay, I guess I could live with that.

His shared files go into the shared file folders of those who downloaded from him.

There is nothing to surprise anyone in this: when Kazaa was in its prime you could see dozens if not hundreds of sources for the same file.

Re:Failure to comprehend

[Cigarra]

No matter how white collar your prison, they will still rape you in it. Just saying.

Re:Failure to comprehend

[reiisi]

That would assume the rental agency didn't have the car from the time the thief took it to the time it was returned.

Let's try a different analogy. Person A visits your rental lot and and checks out the driver's seat of a car. Let's say he rips the seatcover somehow. Whether there was intent or not, is the damage to the seatcover going to exceed the cost of the car? Should the law allow your lawyer to send letters threatening you with a bankrupting suit unless you're willing to cough up the price of a hundred days' rental?

It's still not a good fit, and begs huge questions about the nature of damages and the amount of control the "exclusive rights for a limited time" was intended to give, but it's a bit closer to the best face the RIAA can put on their activities.

Re:Failure to comprehend

[gottabeme]

You make some good points.

I'm curious about what you think about the chance that non-commercial infringement is not causing harm but is enlarging the market for works.

Also, if you're right that it doesn't make as much sense to distinguish between commercial and non-commercial infringement anymore, what do you think damages and penalties and laws should be?

It makes no sense, morally or ethically or rationally, to throw millions of people into jail or bankruptcy because they shared/downloaded songs/movies/whatever on P2P/whatever--especially when the plaintiffs are non-person, corporate entities which cannot be prosecuted, fined, or jailed as the human defendants can--and are billion-dollar industries using anti-competitive, anti-cultural practices to hold back cultural and technological progress (contrary to the purpose of copyright), and to squeeze every cent possible out of every theoretical customer in a struggling economy.

In the courtroom, the law may be all that matters. In reality, the situation is far more nuanced. There is no balance of power--it's all in the hands of the corporations and their packs of lawyers and lobbyists. Sadly, we cannot elect representatives who will enact or repeal laws in order to level the playing field (IMO, it's not possible--politicians are either too corruptible or too ignorant).

So what's the answer? Probably the best one is to support Free Culture movements, like Creative Commons, and eschew RIAA/MPAA media. But even so, is it right to criminalize or bankrupt those who do participate in sharing the media created and controlled by these evil, literally inhuman entities?

One thing is clear: the laws are broken.

Re:Failure to comprehend

[NewYorkCountryLawyer]

Dear Prof. Nesson, and Mr. Tenenbaum

In order to have a distribution under copyright law there has to be a sale, or other transfer of ownership, or a rental, lease, or lending, to the public, none of which occurred here, so that's not an issue.

But thanks for asking.

Love

The Supremes

Send our regards to Theaetetus

Re:Failure to comprehend

[Theaetetus]

Dear Prof. Nesson, and Mr. Tenenbaum

In order to have a distribution under copyright law there has to be a sale, or other transfer of ownership, or a rental, lease, or lending, to the public, none of which occurred here, so that's not an issue.

But thanks for asking.

Love

The Supremes

Send our regards to Theaetetus

Dear Supreme Court,

As much as it pains us, considering that it destroys our last hope for salvation, in the interests of fulfilling our duty of candor, we must respectfully point out that you may be confusing "distribution" with "publication," which is defined as you note (and includes the term "distribution" within its definition, creating a circular definition in your reading). "Distribution" is not as limited as you state. As noted by the D. Minn. court in Capitol v. Thomas, "distribution" is not synonymous with "publication". In fact, as you yourselves noted in Harper & Row v. Nation Enterprises, "to publish" and "to distribute" are distinct rights.

Rather, as noted by the D. Minn. court, the plain meaning of "distribution" includes a transfer of ownership or possession from one person to another.

We understand that this obviates the issues raised in our prior letter, of course, and so we are withdrawing our appeal and returning to our day jobs in hopes of raising enough money to pay the judgment.

Your servants,
Prof. Neeson and Mr. Tenenbaum

P.S.: You should consider asking that New York Country Lawyer guy to clerk for you. He seems quite intelligent, but could use the additional training and tutelage you could provide.

Re:Failure to comprehend

[NewYorkCountryLawyer]

That's a great theory... Why don't you look in the copyright act and find where there's support for that theory that he's not subject to licensing fees since he didn't charge? We'll wait.

You mean this part?

to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending 17. USC 106(3);

Re:Debate? In the Supreme Court?

[Trepidity]

While it's true that they do have private conferences where they discuss draft opinions, there is also considerable public debate at oral argument.

Oh NYCL

[MechaShiva]

How I've missed you. Keep posting on the good fight.

Re:Oh NYCL

[NewYorkCountryLawyer]

Aw thanks :)

Re:Oh NYCL

[FatAlb3rt]

+1, it's been a while. Hope to see more.

Isn't the whole album just one work?

[Anonymous Coward]

Coming from a history of 70s rock.. wouldn't something like Quadrophenia or Tommy be one work. As long as I distributed it as one big chunk. In fact, would not the individual songs be excerpts for critical comment ?

Weren't composers all up in arms about iTunes, etc. "destroying the unity of the work" by selling albums piecemeal?

If I distribute all movements of a recorded symphony (e.g. all 4 parts of Beethoven's 9th) is the RIAA going to come after me for 4 infringements or 1?

I guess it depends on what copyrights were filed originally? You get one on the album as a whole, and others on the separate pieces.

Re:Debate? In the Supreme Court?

[Anonymous Coward]

That's not public debate. More a game of whack-a-mole against prepared targets that can't strike back.

Case in point, the solictor general not telling Scalia he's a moron when asking about broccoli.

SCOTUS -- SCROTUM

[Anonymous Coward]

SCOTUS should be renamed to SCROTUM... :-o

Re:SCOTUS -- SCROTUM

[Anonymous Coward]

Supreme Court Ruling Over The Union: Megalomaniacs.

Re:SCOTUS -- SCROTUM

[Anonymous Coward]

What, you have something against scrotums?

Ok, then remove his access to the internet

[Anonymous Coward]

If its a punishment then OK, here we go:

To regulate access to the Internet you need a government supplied ID.
Providers must validate your ID to access the net.

Enjoy your new regulatory scheme. No, its not unconstitutional. Its dumb, but legal.

Analogy: Drivers License, Business License

andrew

[101percent]

Was anyone else upset this wasn't a story involving Andrew Tanenbaum?

Re:andrew

[Anonymous Coward]

Yes, that'd be me.

The first time I looked at the headline I did read "Tanenbaum" and got all excited.. Then I noticed my eye-typo. Oh well.

Re:Debate? In the Supreme Court?

[Anonymous Coward]

There's no public comment or debate, it's not even a direct discussion.

It's certainly not one where policy can be set or determined.

Just the current existing laws. Admittedly they can come to some abstruse reasoning, it's still not ideal to start a discussion or debate.

song is available for cheap or maybe even free

[Anonymous Coward]

Not only are the songs distributed for $1 or less on iTunes and Amazon, it is also possible to see most of them for free on youtube. A free view on youtube can be video or audio recorded by anybody with the appropriate software. If the labels are distributing a song for free on youtube in exchange for adviews, what price are they charging Google per view?

non-exclusive distribution

[dutchwhizzman]

Non-exclusive distribution is what Tenenbaum did. That is worth a lot less than exclusive distribution. You do the exact same thing, but because you are paying someone to promise that they won't let your competitors have a fair go at the market, the price is higher. Actually, there no longer is any realistic option for "exclusive distribution" anymore, since digital copies are everywhere, so what is the actual value of an agreement the seller can not possibly uphold?

Right, how can someone ever explain this whole media rights thing without making a fool of himself and showing that it has nothing to do with free market and protecting the interests of "we the people"?

Ballsack

[Anonymous Coward]

I keep reading this as SCROTUS.

His own statement of admission of WHAT?

[Anonymous Coward]

What evidence that he gave it away more than once (or even once) was presented to the court?

Saying "I put them up for download" is not evidence that it was given away more than once (or even once).

If I put out a box of cookies for people to eat, I just made them available. Whether someone eats them or not is not what I can force.

And, since he didn't make any copies, he's not infringing copyrights.

And, since all they say you're buying with your media is a "license to use", then there's no loss whatsoever: he's not sharing a license and those downloading a copy (if any exist) may well have a valid license to use anyway.

Admitted to uploading? One copy.

[Anonymous Coward]

Therefore lost sale: nil. I already had bought a copy.

NYCL, debunk the upload multiplier theory

[Anonymous Coward]

It's very commonly trotted out that it's the seeding that multiplies the punishable action by a large number, but actually that premise is logical nonsense.

It doesn't matter how many people seed a song, each person will still only download one copy to play, so the seeding does not make any contribution at all unless it's a very rare song without a single seeder. For chart songs, one person adding a seed actually has ZERO contributory effect on the number of people doing downloads.

The RIAA's legal theory that seeding torrents means that the infraction is thousands of times worse than just downloading a song for which you haven't paid is simply wrong, mathematically and logically. It ought to be debunked.

Mad at him because he lost?

[reiisi]

You want to be the next test case?

Exclusive control is un-Constitutional.

[reiisi]

Look it up. Nowhere in the US Constitution is the phrase "exclusive control" used.

Temporary "exclusive right" to a work, yes.

Right to a house involves being able to use it for shelter when you want to. Allows you demand another person to leave.

Does not involve using it to manufacture nerve gas with the windows open, for instance.

Right to a song? Given the pre-amble and various elements of the Constitution itself, rights to a song should not include the right to extort huge sums of money from an individual who was adolescent enough to post it where lots of other people could copy it. Particularly, when the theory of damages assumes, contrary to fact, an ecquivalence between copying and would-have-purchased-but-didn't.

We know that copying converts to purchase at about the rate that listening to songs on the radio used to.

The royalty system with the radio stations was based on the radio stations getting some commercial value, so the argument that there is no such system with personal sharing doesn't transfer well.

We know for a fact that never hearing a song converts to effectively zero sales (except for extremely popular "musicians", whose case is so different from the usual case as to be absolutely not the case on which to base law.

Having been "punished" according to the law, Tenenbaum now has standing to make the real argument, that the extortion being engaged in is a serious harm to individuals and community, and that the law which allows it is therefore wrong.

IP does violate the US Constitution.

[reiisi]

That's part of the problem.

Patents and copyrights did not violate the Constitution before the invention of "intellectual property".

These were temporary liens on the market commons relative to creative works.

Now they are title to other people's thoughts, because of a semantic shift in the application of law.

Reality and the law are way out of sync. If the RIAA and MPAA and patent trolls don't quit, patents are going to be replaced with the GPL, and copyrights are going to be reduced to five years, no extension, when the backlash is finished.

Re:IP does violate the US Constitution.

[Eskarel]

I agree with you there(though I probably have a different solution), but the point of it is that this case is a bit of a long shot even if you had a very different supreme court than we currently do.

That said, as I've stated, it's a long shot with pretty much no down side for the people involved. Arguing in front of the SC is a career win for the lawyers and even if they came back with some massively pro copyright ruling it wouldn't increase the fine. We could potentially end up with such a ruling which would hurt everyone else, but it wouldn't make this individual's situation any worse.