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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."
"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.
My AC stalker: " I personally agree with your posts most of the time, but that won't keep me from modding you troll"
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.
Live today, because you never know what tomorrow brings
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 $67,500.
5. That decision was subsequently set aside, by an Appeals Court, on some obscure statutory grounds I'm not entirely familiar with, and returned to the District Court for a new trial. Tenenbaum is appealing that ruling to the Supreme Court, asking for the Appeals Court to be overturned, and the District Court's constitutional ruling on excessive damages to be reinstated.
6. More generally, many commentators see this case as a particularly good opportunity for the Supreme Court to speak definitively on the question, hopefully extending the punitive damages rule to statutory damages.
10 PRINT CHR$(205.5+RND(1)); : GOTO 10
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
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.
When you want something built, come see me. If you want correct grammar and spelling, get a F*ing liberal arts student.
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
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!
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