There would also be a court order requiring you to take it down. Ignoring the order would put you in contempt of court, which is a bad place to be. Also, it's not a lifetime payment. Infringements that you engage in after the case would not be covered by the previous remedy, and they could indeed sue you all over again.
So if 50 people got a song from me, they would charge me 50 times whatever the fine is?
Under the statutory damages, no. They can only get damages per work, not per infringement. So if you infringed the copyright of one work, the most you could possibly pay would be $150,000. It doesn't matter if you infringed one time or a million times. But if you infringed on two works, then it's twice that.
Under actual damages, it could roughly be per infringement, and the two sides end up fighting over what should and shouldn't be included. They might say that every infringement ought to count, and you can say that only some percentage should for the reasons you've articulated, and a jury makes the actual decision based on what both sides present. (Which needs to be some kind of proof, really, like actual survey evidence, not just supposition)
This to me implies that they don't neccesarily have to stick to the minimum, if they can show that the minimum is ridiculous.
The only remedies are the ones in the statute. If some of those remedies are unconstitutional, then the statute is gone, and they have to find a different remedy permitted by the statute. The plaintiff can't just ask for an arbitrary amount of statutory damages outside of what the statute provides for; then the courts would be creating their own statutory damages, and that's impermissible.
Also - I think it isn't quite fair to say that if you uploaded 1 song to 50 people, and those 50 people upload it to 50 people, that you are responsible for all of those damages.
I didn't say anything like that to begin with. Nor would I agree, since there's obviously an intervening proximate cause anyway. I don't see what this has to do with anything though. The statutory damages provision doesn't care how many infringements there are of a given work.
And I'd say you're right. The statute requires actual distribution, not merely potential distribution. There was a case about this not long ago, but I'm blanking on it at the moment. I'm sure it'll come to me later.
It sounds like you've either got an implied license, or that someone could have a good argument in equity against you. This is probably why, AFAIK, there aren't copyright suit honeypots.
There's enough easy to find infringement going on anyway, and no one views ordinary P2P-type infringement as a way to make money through actual or threatened litigation, so I'm unsurprised that the idea of honeypots seems not to have caught on, given how unlikely it would be to work in the first place.
The example is of how Alice might have a fair use argument, but Bob acting on behalf of Alice might not. Nothing more.
Basically, they are just saving the consumer time, doing something they could easily do themsevles.
Given that the students were using library books they didn't own, the copy shop made the same argument: it's just saving the students' time, doing it for them instead of making them do precisely the same thing themselves.
No, the key doesn't matter per se. It's what's done with it and how it became available that is relevant. Otherwise your argument would be akin to saying that if someone loses their house key by accident, it's not illegal for you to use it to go into their house; obviously, that's a loser of an argument.
The copyright holders authorized DVDCCA to sub-authorize decryption. DVDCCA has sub-authorized certain manufacturers to make decryption devices, if they conform to certain criteria DVDCCA has set forth (e.g. respect UOP instructions on the disc), and users who use those devices in their stock configurations, with all the DRM turned on, etc.
Use anything else, or use those things in the wrong ways, and you're circumventing. It doesn't matter whether you use the same key the authorized player uses; you aren't authorized to use it that way.
I would suggest reading the excellent essay What Colour Are Your Bits? for some illumination into kinds of distinctions the law typically makes.
Unless the other person keeps a copy of the music, it takes pretty insane troll logic to decide that it's copyright infringement.
No, not really.
It is prima facie infringement, that's certain. But the argument is that it is a fair use, and thus the infringement is defended against. The problem is that while it may be a fair use for the end user, there is a general principle that one party cannot stand in another's shoes for fair use purposes. Just because Alice could win on a fair use argument when she rips CDs herself, that doesn't mean that Bob will win if he does it for Alice, trying to stand in her shoes. One example of how this has cropped up in the past is that students might fairly make xeroxes from reference books for their classes, but copy shops that do it for the students get sued and lose. I've been noticing the first indications that this principle might be on the wane, but it'll be a while yet. In the meantime, those who would want to stand in another's shoes are going to need to make a fair use argument that works with regard to them, rather than borrowing someone else's.
Perhaps it's not right, but that doesn't mean it's violative of due process. I agree, it's an interesting defense. Personally, I wouldn't bet the farm on it, but I do wish the proponents of the argument luck. It is better than the Kazaa argument, but more because that is limited to this plaintiff specifically, and wouldn't stop someone totally different winning in the same sort of case in the future.
You're just complaining that lawyers make a lot of arguments in the alternative. This is really not different than having conditional statements in computer programming. You're required to make all the arguments you can make up front, partly to be fair to the other side (so they have a chance to respond), to not waste the court's time (courts do not tolerate surprises or sudden changes midway through a suit), and to avoid the danger of suing the defendant again and again over the same thing (which would be an improper use of the judicial system). To be honest, the judicial system loves predictability. If you don't know pretty accurately how a case is going to turn out before you set foot in court, you're either breaking new ground or in real trouble.
In psuedocode, it would be like this:
if plaintiff's prima facie case is insufficient
then defendant wins elseif defendant has a valid defense
then defendant wins else try to show that damages are very low
A good programmer doesn't wait for a specific likely condition to actually happen before he writes code that can handle it. Why should lawyers have to wait for a condition to actually happen before having prepared for it.
750 is nothing more than extortion unless they can prove actual value lost (which they can't) or until they actually force someone to settle for that amount, which they haven't yet.
No, that's actually the number Congress provided in the statute. It's meant to be an alternative to having to prove actual damages (similar in some respects to, say, workman's comp). In fact, $750 per work is the minimum amount they can ask for; the maximum is $30,000 to $150,000, depending on some facts in the case. Don't think that the $750 figure is them being nice; it's meant to stay away from a jury that might side with the defendant, since if the minimum is what's sought, there's nothing for a jury to decide with regard to damages, or even to need to know about.
As for settlement, that has nothing to do with anything.
The AHRA isn't quite that broad. It only covers certain types of works, and then only allows for certain media or devices for copying. Ripping something to a computer, putting it on an iPod, etc. do not fall under AHRA. It's also not that limited; it doesn't only cover copying for personal use, but instead covers copying for any noncommercial use.
You paid for the 8-tracks which includes a fair use license for the music.
I'm impressed. Not only are you completely wrong, but you're so creatively wrong. Tell the truth, were you being deliberately silly, or did you really think this?
Not really. I was thinking of the situation where the police screw up in such a way that you have a defense under the federal 4th, 5th, or 6th Amendments, which are largely binding on the states not due to the Supremecy Clause, but due to the federal 14th Amendment's Incorporation Doctrine. The state courts are perfectly capable of interpreting these laws, but the supreme interpreter of federal law is the federal Supreme Court, in just the same way that the supreme interpreter of a state's law is that state's Supreme Court. (Which is why in a purely state law case, without any applicable federal law of any kind, you cannot appeal from a state Supreme Court to the federal Supreme Court; the latter won't even bother to hear the case) So the state courts deciding matters of federal law will defer to what the federal courts have said, but you're still going to be in the state system unless you have to appeal on the federal question from the state Supreme Court to the federal Supreme Court.
Full Faith and Credit?
Well, that plays a role, but that's not the source of it. Remember that states don't get power from the federal Constitution; they gave some up in it. And states aren't limited governments like the federal government is; they're plenary governments. Basically choosing which law to apply in a given case, with an option being some kind of law foreign to the court, is something that courts have had to do since the Romans, if not before. This is often because events might occur under the foreign law, or the foreign law otherwise applies for some reason, but it's the local court that has jurisdiction and that has had the case come before it, so it's generally stuck with it.
No, what they appear to be saying is that the court does have jurisdiction, but that the state law claims are preempted. Jurisdiction is a matter of which court can hear a claim. The preemption issue has nothing to do with jurisdiction, but is instead saying that the claims are void because federal law controls, and federal law says that they are void. That decision is a matter of copyright law, and so the jurisdiction does have to be in federal court. Then the defendants are saying that the federal court does have jurisdiction to decide the other matter, partly because it's something of a copyright matter (dealing with copyright licensing) and partly because the earlier issue forces everything here to be decided in federal court, even if some of it is arguably state law.
Basically your understanding of events (i.e. 'this case is...') was wrong.
Actually, with only some minor exceptions as to certain bodies of law, or certain limited-jurisdiction courts, all courts get to deal with foreign law.
For example, let's say you are arrested in your state, by your local police, and they make some kind of terrible procedural error. You'll end up in a county court, most likely, which is a court created by your state, but you can make an argument based on the federal constitution. The court will consider this law, which is foreign to it in that it's a state court, not a federal court, and can interpret it, and rule accordingly.
A state court can not only deal with federal law, but it can also interpret the law of other states in making its decisions in a case that demands it. And likewise, federal courts that need to consider matters of state law are able to do so. In some cases, these courts can even interpret the laws of foreign countries. Naturally, a court that makes an interpretation of foreign law can't issue an opinion that's binding on the foreign courts (e.g. a state court can't bind a federal court on federal law, just as a federal court can't bind a state on state law), but it is binding on any courts below the one issuing the opinion, and can still influence the foreign court if it's a particularly good interpretation.
One way to get to federal court is through diversity, as you noted. The idea there is that the federal court, not beholden to any state, will be fairer than a state court would where one party is a native and the other party from outside that state. Another way is to have an issue of federal law at stake. For most such issues, there is concurrent jurisdiction; a federal claim could be made just as easily in state court as in federal court, and it's up to the plaintiff to get to pick.
But in this case, Congress made a law (28 USC 1338) that says that the federal courts have exclusive jurisdiction in copyright cases. This means that if a case is a copyright case, no state court can hear it at all. (Of course not all cases that involve a copyright at all are actually copyright cases; many are really contract cases where the copyright could just as easily be a microwave, since it's just the thing being fought over) This is because Congress doesn't want states to have much of an effect on copyright policy. And since our judicial systems also have a rule of res judicata, a plaintiff can't split his claims; he has to sue the defendant for everything he can as to the complained of factual scenario, or else he loses the claims he didn't bring. So the federal court has to hear the state claims or else the defendant would have to choose between a copyright suit or a state law suit and couldn't bring both. This is the only fair way to do it.
Federal courts are perfectly able to decide matters of state law, and in fact do so all the time.
Anyway, federal copyright law includes a provision that preempts state copyright law. The idea is that this way there is only one system of copyright law in the US, rather than parallel state and federal systems, where the state systems might differ amongst themselves. Remember that the federal government lacks inherent powers and instead is given powers from the states and the people. The states had copyright laws before the current government even existed, but it was one of those sorts of things that they tended to do a poor job with, which is why the federal government, when it was created, was given some more authoritative power there too. Even so, there was still significant state copyright law in operation until the 1976 Act, and there's still some even today. However, in an attempt to clean things up, the preemption statute was put into place. Basically, if a state has a law that is the equivalent to copyright, the federal law makes it non-operative. Of course, states can still have laws that are sufficiently different from the federal scheme to remain active, even if they're basically copyright laws.
Here, the plaintiff is making some state law claims, and the defendant is saying that they fall under the preemption statute and are void. They may be right, though I'd have to see exactly what's being claimed. However, the federal copyright claims can't be dispensed with so easily.
In order to attack those, he's saying that the plaintiff copyright holder has a valid copyright but has given permission to the world to engage in the behavior that the defendant is accused of. This is possible, though it's either the same or nearly the same as putting the work in the public domain. And if the work was merely GPLed (and not also or alternatively placed under some license that does what defendant says) then I don't see it being a winning argument. Still, you have to argue the case you've got, not the case you wish you had. As with most legal disputes, this'll probably just end up settling.
I wouldn't call it defeatism, I'd call it realism. Remember how Eldred turned out? Or Grokster? The courts are generally going to uphold whatever copyright law Congress passes, and are themselves willing to go even further in some instances.
This is because the courts can only overturn a copyright law where it is unconstitutional, which is pretty rare. They don't get to create more copyright laws, and can't particularly change what we've got. Given that they've found that Congress has tremendously wide latitude to enact whatever copyright laws Congress thinks are best, we can expect judicial reactions to be roughly on par with that of Commerce Clause laws in the post-Lochner era.
While it might be possible to win a bit here and there, significant change can only come from Congress.
There's nothing that says that they can't sue for downloading; it's just as illegal. They don't normally for tactical reasons, rather than legal ones: downloaders are harder to find, and since they don't supply anyone, the effort of getting rid of one yields less of a reward than if you got rid of an uploader, or better yet, an entire network.
Under US law, given the right circumstances, downloading one song could get you a federal prison sentence of ten years and fines of $250,000. And that's the criminal punishment; a civil case could also be brought. And it pretty certainly wouldn't be considered cruel and unusual, given that there are criminal copyright infringement suits fairly frequently, allowing for the rather low priority it gets from law enforcement.
That's true, Ray. But also true is that you have to contend with 401(d), which kills your innocent infringement argument if your client even had access to a copy that had proper notice attached to it. It makes things tough.
Slashdot Mirror
Eh, it has a bit more to do with Congress having enacted 17 USC 505, which authorizes the court to award fees to the prevailing party.
Nice try.
There would also be a court order requiring you to take it down. Ignoring the order would put you in contempt of court, which is a bad place to be. Also, it's not a lifetime payment. Infringements that you engage in after the case would not be covered by the previous remedy, and they could indeed sue you all over again.
So if 50 people got a song from me, they would charge me 50 times whatever the fine is?
Under the statutory damages, no. They can only get damages per work, not per infringement. So if you infringed the copyright of one work, the most you could possibly pay would be $150,000. It doesn't matter if you infringed one time or a million times. But if you infringed on two works, then it's twice that.
Under actual damages, it could roughly be per infringement, and the two sides end up fighting over what should and shouldn't be included. They might say that every infringement ought to count, and you can say that only some percentage should for the reasons you've articulated, and a jury makes the actual decision based on what both sides present. (Which needs to be some kind of proof, really, like actual survey evidence, not just supposition)
This to me implies that they don't neccesarily have to stick to the minimum, if they can show that the minimum is ridiculous.
The only remedies are the ones in the statute. If some of those remedies are unconstitutional, then the statute is gone, and they have to find a different remedy permitted by the statute. The plaintiff can't just ask for an arbitrary amount of statutory damages outside of what the statute provides for; then the courts would be creating their own statutory damages, and that's impermissible.
Also - I think it isn't quite fair to say that if you uploaded 1 song to 50 people, and those 50 people upload it to 50 people, that you are responsible for all of those damages.
I didn't say anything like that to begin with. Nor would I agree, since there's obviously an intervening proximate cause anyway. I don't see what this has to do with anything though. The statutory damages provision doesn't care how many infringements there are of a given work.
And I'd say you're right. The statute requires actual distribution, not merely potential distribution. There was a case about this not long ago, but I'm blanking on it at the moment. I'm sure it'll come to me later.
It sounds like you've either got an implied license, or that someone could have a good argument in equity against you. This is probably why, AFAIK, there aren't copyright suit honeypots.
There's enough easy to find infringement going on anyway, and no one views ordinary P2P-type infringement as a way to make money through actual or threatened litigation, so I'm unsurprised that the idea of honeypots seems not to have caught on, given how unlikely it would be to work in the first place.
The example is of how Alice might have a fair use argument, but Bob acting on behalf of Alice might not. Nothing more.
Basically, they are just saving the consumer time, doing something they could easily do themsevles.
Given that the students were using library books they didn't own, the copy shop made the same argument: it's just saving the students' time, doing it for them instead of making them do precisely the same thing themselves.
This argument hasn't really worked yet.
No, the key doesn't matter per se. It's what's done with it and how it became available that is relevant. Otherwise your argument would be akin to saying that if someone loses their house key by accident, it's not illegal for you to use it to go into their house; obviously, that's a loser of an argument.
The copyright holders authorized DVDCCA to sub-authorize decryption. DVDCCA has sub-authorized certain manufacturers to make decryption devices, if they conform to certain criteria DVDCCA has set forth (e.g. respect UOP instructions on the disc), and users who use those devices in their stock configurations, with all the DRM turned on, etc.
Use anything else, or use those things in the wrong ways, and you're circumventing. It doesn't matter whether you use the same key the authorized player uses; you aren't authorized to use it that way.
I would suggest reading the excellent essay What Colour Are Your Bits? for some illumination into kinds of distinctions the law typically makes.
Unless the other person keeps a copy of the music, it takes pretty insane troll logic to decide that it's copyright infringement.
No, not really.
It is prima facie infringement, that's certain. But the argument is that it is a fair use, and thus the infringement is defended against. The problem is that while it may be a fair use for the end user, there is a general principle that one party cannot stand in another's shoes for fair use purposes. Just because Alice could win on a fair use argument when she rips CDs herself, that doesn't mean that Bob will win if he does it for Alice, trying to stand in her shoes. One example of how this has cropped up in the past is that students might fairly make xeroxes from reference books for their classes, but copy shops that do it for the students get sued and lose. I've been noticing the first indications that this principle might be on the wane, but it'll be a while yet. In the meantime, those who would want to stand in another's shoes are going to need to make a fair use argument that works with regard to them, rather than borrowing someone else's.
Just to clarify, the DMCA had nothing to do with mp3.com, but this case is a good example of why section 1201 et al are really awful.
Perhaps it's not right, but that doesn't mean it's violative of due process. I agree, it's an interesting defense. Personally, I wouldn't bet the farm on it, but I do wish the proponents of the argument luck. It is better than the Kazaa argument, but more because that is limited to this plaintiff specifically, and wouldn't stop someone totally different winning in the same sort of case in the future.
Piffle.
You're just complaining that lawyers make a lot of arguments in the alternative. This is really not different than having conditional statements in computer programming. You're required to make all the arguments you can make up front, partly to be fair to the other side (so they have a chance to respond), to not waste the court's time (courts do not tolerate surprises or sudden changes midway through a suit), and to avoid the danger of suing the defendant again and again over the same thing (which would be an improper use of the judicial system). To be honest, the judicial system loves predictability. If you don't know pretty accurately how a case is going to turn out before you set foot in court, you're either breaking new ground or in real trouble.
In psuedocode, it would be like this:
if plaintiff's prima facie case is insufficient
then defendant wins
elseif defendant has a valid defense
then defendant wins
else try to show that damages are very low
A good programmer doesn't wait for a specific likely condition to actually happen before he writes code that can handle it. Why should lawyers have to wait for a condition to actually happen before having prepared for it.
750 is nothing more than extortion unless they can prove actual value lost (which they can't) or until they actually force someone to settle for that amount, which they haven't yet.
No, that's actually the number Congress provided in the statute. It's meant to be an alternative to having to prove actual damages (similar in some respects to, say, workman's comp). In fact, $750 per work is the minimum amount they can ask for; the maximum is $30,000 to $150,000, depending on some facts in the case. Don't think that the $750 figure is them being nice; it's meant to stay away from a jury that might side with the defendant, since if the minimum is what's sought, there's nothing for a jury to decide with regard to damages, or even to need to know about.
As for settlement, that has nothing to do with anything.
The AHRA isn't quite that broad. It only covers certain types of works, and then only allows for certain media or devices for copying. Ripping something to a computer, putting it on an iPod, etc. do not fall under AHRA. It's also not that limited; it doesn't only cover copying for personal use, but instead covers copying for any noncommercial use.
You paid for the 8-tracks which includes a fair use license for the music.
I'm impressed. Not only are you completely wrong, but you're so creatively wrong. Tell the truth, were you being deliberately silly, or did you really think this?
a little IBM logo (the old one with three letters made out of stripes)
That's still their logo.
That seems to be covered by the Supremacy Clause
Not really. I was thinking of the situation where the police screw up in such a way that you have a defense under the federal 4th, 5th, or 6th Amendments, which are largely binding on the states not due to the Supremecy Clause, but due to the federal 14th Amendment's Incorporation Doctrine. The state courts are perfectly capable of interpreting these laws, but the supreme interpreter of federal law is the federal Supreme Court, in just the same way that the supreme interpreter of a state's law is that state's Supreme Court. (Which is why in a purely state law case, without any applicable federal law of any kind, you cannot appeal from a state Supreme Court to the federal Supreme Court; the latter won't even bother to hear the case) So the state courts deciding matters of federal law will defer to what the federal courts have said, but you're still going to be in the state system unless you have to appeal on the federal question from the state Supreme Court to the federal Supreme Court.
Full Faith and Credit?
Well, that plays a role, but that's not the source of it. Remember that states don't get power from the federal Constitution; they gave some up in it. And states aren't limited governments like the federal government is; they're plenary governments. Basically choosing which law to apply in a given case, with an option being some kind of law foreign to the court, is something that courts have had to do since the Romans, if not before. This is often because events might occur under the foreign law, or the foreign law otherwise applies for some reason, but it's the local court that has jurisdiction and that has had the case come before it, so it's generally stuck with it.
No, what they appear to be saying is that the court does have jurisdiction, but that the state law claims are preempted. Jurisdiction is a matter of which court can hear a claim. The preemption issue has nothing to do with jurisdiction, but is instead saying that the claims are void because federal law controls, and federal law says that they are void. That decision is a matter of copyright law, and so the jurisdiction does have to be in federal court. Then the defendants are saying that the federal court does have jurisdiction to decide the other matter, partly because it's something of a copyright matter (dealing with copyright licensing) and partly because the earlier issue forces everything here to be decided in federal court, even if some of it is arguably state law.
Basically your understanding of events (i.e. 'this case is...') was wrong.
Actually, with only some minor exceptions as to certain bodies of law, or certain limited-jurisdiction courts, all courts get to deal with foreign law.
For example, let's say you are arrested in your state, by your local police, and they make some kind of terrible procedural error. You'll end up in a county court, most likely, which is a court created by your state, but you can make an argument based on the federal constitution. The court will consider this law, which is foreign to it in that it's a state court, not a federal court, and can interpret it, and rule accordingly.
A state court can not only deal with federal law, but it can also interpret the law of other states in making its decisions in a case that demands it. And likewise, federal courts that need to consider matters of state law are able to do so. In some cases, these courts can even interpret the laws of foreign countries. Naturally, a court that makes an interpretation of foreign law can't issue an opinion that's binding on the foreign courts (e.g. a state court can't bind a federal court on federal law, just as a federal court can't bind a state on state law), but it is binding on any courts below the one issuing the opinion, and can still influence the foreign court if it's a particularly good interpretation.
One way to get to federal court is through diversity, as you noted. The idea there is that the federal court, not beholden to any state, will be fairer than a state court would where one party is a native and the other party from outside that state. Another way is to have an issue of federal law at stake. For most such issues, there is concurrent jurisdiction; a federal claim could be made just as easily in state court as in federal court, and it's up to the plaintiff to get to pick.
But in this case, Congress made a law (28 USC 1338) that says that the federal courts have exclusive jurisdiction in copyright cases. This means that if a case is a copyright case, no state court can hear it at all. (Of course not all cases that involve a copyright at all are actually copyright cases; many are really contract cases where the copyright could just as easily be a microwave, since it's just the thing being fought over) This is because Congress doesn't want states to have much of an effect on copyright policy. And since our judicial systems also have a rule of res judicata, a plaintiff can't split his claims; he has to sue the defendant for everything he can as to the complained of factual scenario, or else he loses the claims he didn't bring. So the federal court has to hear the state claims or else the defendant would have to choose between a copyright suit or a state law suit and couldn't bring both. This is the only fair way to do it.
Not quite.
Federal courts are perfectly able to decide matters of state law, and in fact do so all the time.
Anyway, federal copyright law includes a provision that preempts state copyright law. The idea is that this way there is only one system of copyright law in the US, rather than parallel state and federal systems, where the state systems might differ amongst themselves. Remember that the federal government lacks inherent powers and instead is given powers from the states and the people. The states had copyright laws before the current government even existed, but it was one of those sorts of things that they tended to do a poor job with, which is why the federal government, when it was created, was given some more authoritative power there too. Even so, there was still significant state copyright law in operation until the 1976 Act, and there's still some even today. However, in an attempt to clean things up, the preemption statute was put into place. Basically, if a state has a law that is the equivalent to copyright, the federal law makes it non-operative. Of course, states can still have laws that are sufficiently different from the federal scheme to remain active, even if they're basically copyright laws.
Here, the plaintiff is making some state law claims, and the defendant is saying that they fall under the preemption statute and are void. They may be right, though I'd have to see exactly what's being claimed. However, the federal copyright claims can't be dispensed with so easily.
In order to attack those, he's saying that the plaintiff copyright holder has a valid copyright but has given permission to the world to engage in the behavior that the defendant is accused of. This is possible, though it's either the same or nearly the same as putting the work in the public domain. And if the work was merely GPLed (and not also or alternatively placed under some license that does what defendant says) then I don't see it being a winning argument. Still, you have to argue the case you've got, not the case you wish you had. As with most legal disputes, this'll probably just end up settling.
There are actually some exceptions to that, but more or less, yeah.
I wouldn't call it defeatism, I'd call it realism. Remember how Eldred turned out? Or Grokster? The courts are generally going to uphold whatever copyright law Congress passes, and are themselves willing to go even further in some instances.
This is because the courts can only overturn a copyright law where it is unconstitutional, which is pretty rare. They don't get to create more copyright laws, and can't particularly change what we've got. Given that they've found that Congress has tremendously wide latitude to enact whatever copyright laws Congress thinks are best, we can expect judicial reactions to be roughly on par with that of Commerce Clause laws in the post-Lochner era.
While it might be possible to win a bit here and there, significant change can only come from Congress.
There's nothing that says that they can't sue for downloading; it's just as illegal. They don't normally for tactical reasons, rather than legal ones: downloaders are harder to find, and since they don't supply anyone, the effort of getting rid of one yields less of a reward than if you got rid of an uploader, or better yet, an entire network.
You don't know US law either.
Under US law, given the right circumstances, downloading one song could get you a federal prison sentence of ten years and fines of $250,000. And that's the criminal punishment; a civil case could also be brought. And it pretty certainly wouldn't be considered cruel and unusual, given that there are criminal copyright infringement suits fairly frequently, allowing for the rather low priority it gets from law enforcement.
That's true, Ray. But also true is that you have to contend with 401(d), which kills your innocent infringement argument if your client even had access to a copy that had proper notice attached to it. It makes things tough.