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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."
Short summary. Is there anything you'd like to add? How good of a test case is Tenenbaum?
Give me Classic Slashdot or give me death!
Oh, it's not that Tenenbaum :(
While it's true that they do have private conferences where they discuss draft opinions, there is also considerable public debate at oral argument.
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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.
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ECHELON is a government program to find words like bomb, jihad, plutonium, assassinate, and anarchy.
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.
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.
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Aw thanks :)
Ray Beckerman +5 Insightful
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.
If you were blocking sigs, you wouldn't have to read this.
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)
Ray Beckerman +5 Insightful
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.
Spelling and Grammar errors have been added to this post for your enjoyment
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
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
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.
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.
If the only way you can accept an assertion is by faith, then you are conceding that it can't be taken on its own merits
Their mistake was ripping off people who were even richer than they were.
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.
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?
The real "Libtards" are the Libertarians!
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.