In general, two companies failing to come to an agreement means... two companies failed to come to an agreement. Not, "one company is 'worried' and 'has bitten off more than it really wants to chew'."
And perhaps, just perhaps, he meant "perhaps" when he wrote "perhaps"....
So it is just like Fox News, sliding smoothly from news to editorial with nary a transition.
Perhaps Tim is worried that Samsung is still the primary component supplier for mobile products, including the iPhone, iPad, and iPod touch or perhaps Apple has bitten off more than it really wants to chew with the litigation between the two getting to truly epic and global proportions.
None of that is in the article. So, Fluffeh is the new Fox News?
In general, two companies failing to come to an agreement means... two companies failed to come to an agreement. Not, "one company is 'worried' and 'has bitten off more than it really wants to chew'."
I believe one of the patents in this whole mess is "scheduling an appointment from a mobile device"... which is almost exactly the same as "scheduling an appointment in real life", and nearly almost exactly similar to "scheduling an appointment with a computer".
Not quite. You can roughly describe it that way, in the same way that you can describe a Toyota Prius as "a car", but note that you're inherently describing the thing in terms of prior art, so of course that description will be obvious. You have to go to the patent claims, not just the title or abstract. Toyota can't patent "a car" or even "a hybrid car", but they can patent their specific type of hybrid planetary engine, and Microsoft can patent their specific type of Exchange-based remote calendar invites.
Even if the judge does the unthinkable and rules for Oracle, all they'll get from it is the $150,000 statutory limit. To go against their several million dollar lawyers fees.
Probably not even that... To get statutory damages, you have to register your work with the Copyright Office. If they didn't do that, then they can only get actual damages, which may be tiny.
I believe the judge kinda lead his opinion by saying that he disagreed with them being copyrighted, based on his comments about RangeCheck ("I could do this myself any day").
Though I believe the judge will hold them to be non-copyrightable, if he does so based on that reason, it's immediately reversible on appeal for multiple reasons. One is that the judge is neither an expert nor a witness (nor can he be), so his independently created facts are inadmissible.
The second, and more important reason, is that ability to re-create something is irrelevant to whether it's copyrightable. You sit me down with a typewriter and a case of Mountain Dew, and I'll write you a story about boy wizard Harry Potter, with a scar on his forehead, who attends Hogwart's Castle. Or I'll draw you a picture of Mickey Mouse. Or I'll copy out Hamlet's soliloquy. Or I'll copy out sheet music for Van Halen's Jump. But none of that means that novels, art, plays, or music are non-copyrightable. In other words, the fact that the judge can play the piano, or draw a character, or even re-write RangeCheck doesn't mean that music, drawings, or APIs can not be copyrighted.
Fortunately, we've got a 21st century definition, in the form of the recently-updated copyright act, which expressly addressed things like copying to RAM. You may have heard of the Digital Millennium Copyright Act, no?
The DMCA does not address RAM copies. No statute addresses such copies of anything but computer programs.
Really? Take a look at the definition in 17 USC 101, and then look at 17 USC 117. Now, you or I might define "computer program" differently, say, as an executable, but that's not how Congress has defined it. Rather, they defined it as "a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result." An audio file could be interpreted as a set of statements to be used indirectly by a media player application in order to bring about a certain result, specifically statements of sequential values of an A/D converter. Again, it might not be the definition we'd choose, but it's certainly a valid one, given the broad definition of "computer program" and the lack of any explicit definition of "statement".
The thing is the 57% number is *too LOW*. Just about every computer user is a "pirate" under definitions that the *AAs consider valid. Hell, an extreme view of copyright law says that making a copy to RAM falls under copyright laws.
It's broken. The 19th century definition just doesn't fit when everything can be expressed as bits. It just doesn't work.
Fortunately, we've got a 21st century definition, in the form of the recently-updated copyright act, which expressly addressed things like copying to RAM. You may have heard of the Digital Millennium Copyright Act, no?
You can dislike it for myriad reasons, but "the act is 200 years out of date" is simply not a valid one.
It can't be legal to gain access to someone's house under false pretences, can it? Its trespassing at the least.
I don't know about you, but when I was selling my house, I invited people in. At that point, they weren't trespassers, even if they didn't end up making me an offer.
Well by that argument, I think you're saying the music Tenenbaum distributed is worth approximately double that of Beatles music. If MJ paid $47.5M for 4000 tracks, or 11,875 each on average, then that's darn near half of the per-track infringement damages - and it's not like he suddenly owns the right to distribute either. So I'm not convinced that saying "the tracks Mr Tenenbaum distributed are valued at approximately double a comparable Beatles track" is necessarily reasonable.
I think it's arguable... He wasn't sharing local indie folk bands, but platinum-selling top 40 rock bands. And those 4000 tracks weren't all the Beatles' greatest hits.
But, more importantly, it's arguable: we're now talking about a single order of magnitude... A far cry from the 10,000x damages we were discussing. And so, we can disagree on the subjective value of these particular tracks, but the damages fit within the statutory range and if they're out of whack, they're less than a single order of magnitude out of whack... which is why it's not unconstitutionally excessive.
... because? You can't simply say something like that without then providing an argument of sorts. Otherwise, you just seem upset.
Michael Jackson paid for exclusive rights to sell songs to record companies, who would sell them on a huge scale for big profits.
Not so. Michael Jackson paid for the distribution rights. He sublicensed those rights. But this fails to have anything to do with this issue. Are you disputing that he paid money for those rights? What exactly is your argument?
In the UK, newspapers have been adding free CDs to newspapers. I'm quite sure they had a license to do so. And they produced tens of thousands to hundres of thousands of copies. Which is probably more than thousand times as many copies as Tenenbaum made. And I bet they didn't pay $22,500 per song.
It's negotiable, but I bet they paid something. The amount would probably vary depending on what the song was, who the artist was, whether the song was driving sales of the newspapers or vice versa, the medium, etc. Your "lol ur idiot" argument is naive at best, and ignorant at worst.
Personally though, I think that any suit for damages exceeding 10% of defendant's yearly earnings warrants a criminal trial instead of a civil one.
... doesn't that make poor people face criminal penalties for being poor that a rich person, having performed the same actions, wouldn't face?
As a rich person, I like this plan, but I can't reasonably justify it.
The use of a civil court to decide damages of such obscenely disproportionate ammounts against individual citizens is a gross misuse of the court system, and is one that I would love to see made to endure serious sanction in and of itself some day. The court is there to determine liability, and to pass sentence. However, if the sentence is egregious, it should run afoul of the 8th amendment, regardess of trial type.
I'm not saying tannenbaum should get off the hook. I'm saying he shouldn't pay damages with a quadruple digit multiplier, when actual damages *CAN* be determined within a practical statistical bounding.
I don't know that this was so obscenely disproportionate... This wasn't about his downloading of a song he could've purchased for $1, but about his uploading of a song. And if Tenenbaum Records, Inc. wanted to purchase a distribution license for those songs from Sony BMG, he would've been paying much more than $1. Arguably something closer to $22,500.
At the very most, I could see tannenbaum liable for 200k in damages. At the very highest extreme.
I agree, but for a different reason... I think the "willfulness" rule is misapplied, and the jury should've been given the $750-$30,000 range for damages. It would've resulted in a total around $100k, statistically.
We are talking "al capone of file sharing" here. As it is, tannenbum was a single offender making use of an illegal service to gain unlicensed access to material, the mechanism of which also causes him to reciprocate in the utility of making said material available to others. The ones who should get the "al capone" sized bill should be initial seeders, not driveby downloaders.
He had the ability to become a leecher, but didn't for whatever reason. If I run a pirate rebroadcaster, I'm still running an illegal transmitter, even if I'm not originating the material.
We're talking about proportions here. The court has traditionally held that over 10x actual damages is unconstitutional. The Tenenbaum verdict is more like 10,000x actual damages.
Not really. We're not talking about damages because he didn't purchase those songs on iTunes for a dollar each... We're talking about damages because he uploaded those songs. Apple pays a lot more than a dollar for the rights to distribute. In fact, some years back, Michael Jackson bought the rights to distribute 4,000 Beatles songs. Did he pay $4,000? No, try $47.5 million. The $22,500 per song for Tenenbaum's infringement of the distribution right is pretty reasonable in view of that.
> I don't think you understant what the word useful can mean. Music has a use. It can be used to provide enjoyment.
So why would the founders say "useful Arts" rather than just "Arts"? Because, of course, they never had any intention allowing the government to do anything more than promote innovation of things useful to the nation as a whole, like the cotton gin and motor car.
"Science", as it was used at the time of the Constitution, meant any literary, scientific, or artistic work. It was in contradistinction to the "useful arts," which were practical inventions. And if you think the founders "never had any intention of allowing the government" to protect copyright, then why was one of the first acts they passed the Copyright Act of 1789, only two years after the Constitution was signed?
At least in Arizona, a divorced woman over 50 can get "spousal maintenance" for the rest of her life, not revisable due to circumstances (e.g. unemployment of the ex-husband, including retirement or disability.) Which might explain some of the 70-something greeters at Wal-Mart.
Correction: a divorced person over 50 can get spousal maintenance for the rest of his or her life... provided they were married for a sufficiently long time and one of them was a stay-at-home caretaker who gave up career and/or education to take care of the other's children. The statutes are gender-neutral. That the person receiving alimony tends to be female is a result of the gender wage gap and institutionalized sexism that says that women are the ones who give up careers to stay home with kids. Hopefully, gay marriage as well as better paternity leave laws will help change this.
Music is neither Science, nor is it useful. Are you sure you weren't looking for a different passage?
On the contrary, music is science. Or, was, under the definition of the term "science" in use when the Constitution was drafted. From the Latin "scientia" or "knowledge, "science" included any literary or artistic works by authors, in contrast to the "useful arts" which included utilitarian constructions by inventors.
As a matter of good policy, copyright shouldn't necessarily be abolished, as that is throwing the baby out with the bathwater. Rather, copyright should be retooled to define it as a protection against plagiarism, rather than a guarantee of profits. If I came up with something unique and original, and you went around presenting it as your own work regardless of whether you were charging for it or not, that would be dishonest and fraudulent and without copyright laws, perfectly legal.
So, if I'm Apple, I should be able to distribute free copies of Windows 8 to anyone I want, provided I include the statement "btw, we didn't write this, it's really Microsoft software. But it's still free." No plagiarism, there.
Are you sure you want to go down this road, considering equating them would eliminate liability of big companies for damages, like Exxon for the Valdez, or BP for the Gulf spill?
I would LOVE to see BP pay out 10 times the actual damages they caused to the gulf. Hell, I'd like to see BP pay out 1 times actual damages.
Me too. But saying that "large damage awards are unconstitutional 'excessive fines'" would run smack into that.
3. "A severe punishment that is clearly and totally rejected throughout society."
4. "A severe punishment that is patently unnecessary."
Principle 3, at the very least, seems to apply to this case.
I'd say principle 4 is the one that may apply here, at best. But, nevertheless, none of them do... this isn't punishment. These are compensatory damages. Punitive damages were not applied and are not at issue. And certainly, monetary damages in compensation for a wronged victim are not "clearly and totally rejected throughout society". In fact, they're pretty widely accepted as a response to civil liability.
It's also interesting to note that the original Judge who tried to rule on the constitutionality of the monetary award is now retired and is a colleague of Tenenbaums defence attorney...
Not that unusual, though. Boston has more law schools (and more universities) per square mile than any other place in the world. For a big town, it's an awfully small town here.
Nullification was intended as a REMEDY for the latter. That is why US juries were given that power in the first place, as the situation with crooked judges that we have now existed THEN too, in the courts of england. Putting powers into the hands of ordinary people in the jury as a meas of preventing officious behavior from the legal system, and to help ensure that blind justice was served. Its also why jurors have legal protections against punitative reprisals from angry judges.
Want this shit to end? Educate the public, and end the "jury instruction" free ride.
Jury nullification, however, doesn't apply to civil trials. It's a result of the fact that a jury can declare someone not guilty in a criminal trial, and (a) no one can ask their reasons why; and (b) their ruling is final and the defendant can't be re-tried. That's not true in a civil trial, which have the rule known as Judgment-Not-Withstanding-the-Verdict (JNOV, or sometimes JMOL - judgment as a matter of law). The jury can say "we find the defendant not liable" and the judge can say, in a civil trial, "no reasonable jury could find that, so I'm reversing and finding him liable."
Here, in fact, there was a directed verdict. Tenenbaum admitted infringement, so the judge explicitly ordered the jury to find him guilty of infringement. The only issue before the jury was the amount of damages.
Want to have jury nullification be a viable option in criminal trials? Educate yourself about it before you attempt to educate the public in error.
The jury awarded the ridiculous damages. You should be asking what is wrong with ordinary Americans that they can so easily be persuaded that inordinate punishments are acceptable. At least in Europe such things can be challenged under human rights legislation, which is presumably one reason why the media companies* in the UK are anti-EU; it has some weird idea that law should be on the side of ordinary people.
*(Barclay Brothers, Murdochs, Rothermeres.)
The jury was given the statutory range of $750-$150,000 per work... It's basic psychology that they'd come up with something not terribly far from the geometric mean, or $22,500 per work.
This points to one potential answer... For many reasons, the definition of "willfulness" being used is wrong. The jury should have gotten a $750-$30,000 instruction, which would have led to something around $5k-8k per work, or around $150-200k total. Still high, but better.
In the original discovery, did Sony, Warner, et al. show how many times the exact files Tenenbaum uploaded were downloaded, or was 'distributing to millions of other people' hyperbole based on the number of people downloading from those services in general and not with regards to the specific files he uploaded? The answer to that goes a long way in deciding whether the damages are excessive or not.
Not really... Even a single upload of a work is enough to count as "distribution" under the statute. This is reasonable, because otherwise you'd open the door for commercial infringement via proxy - I, as Apple, buy a single copy of Windows 8 and put it on bittorrent. Once I seed it once, I shut down my application. The market for Windows is destroyed* and I get out of any real damages because, even though I acted willfully and maliciously, anything more than a hundred bucks is out of proportion compared to the single copy I uploaded. That's not the right answer either.
There are a couple answers... One is that the legislature could return to the issue and amend the copyright act to separate out punishments for non-commercial infringement vs. commercial infringement. Another is that the courts could look at the definition of "willfulness" that lets damages balloon to $150k. Their current definition - "with knowledge of copyright" - is incorrect. But the problem is that neither the RIAA nor defendants will argue that issue: the former, because it would reduce their damage awards; and the latter, because even a $10k per song judgment is still in excess of what they can pay.
Fortunately, the court could decide it sua sponte, but you need a good, thoughtful judge, and some well written amicus briefs.
*this disregards the fact that currently - and even moreso if precedent went the way you suggest - Windows has strong DRM. Of course, Apple wouldn't actually be able to do that... because Windows would need to be always connected to the Internet and phoning home every 10 minutes. See., e,g. Diablo III and the farking single player campaign. A lack of copyright protection will result in more and worse DRM.
What is exactly is there to listen to when the Constitution makes it clear Congress has the power to enforce copyright?
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
That's what there is to listen to. Unless you're arguing that the Copyright Clause supercedes the Bill of Rights. In that case, why should the 5th and 6th amendments apply either? Are you sure you want to go down this road?
"Damages" are not the same as "fines". Fines, by definition, are punitive in nature, while damages, by definition, are compensatory in nature. Are you sure you want to go down this road, considering equating them would eliminate liability of big companies for damages, like Exxon for the Valdez, or BP for the Gulf spill? Because compensatory damages in those cases are huge, as they should be.
The Supreme Court ruling on this always struck me as somewhat ludicrous. If Congress does not have the right to set ballpark figures for fines to deter people from violating a law it has a constitutional mandate to pass, then what rights does it have?
This sounds "cruel and unusual" to me. I wonder if there is any authority that could issue an opinion regarding my concern. The Supreme Court perhaps?
It may well be cruel, but it's not unusual - the statutory damage ranges are codified in, well, the statute. Every defendant is subject to them. And, for better or for worse, as Scalia noted, to violate the 8th Amendment, punishments must be both cruel and unusual. It's not unconstitutional to require a shoplifter to stand in front of a store wearing an "I'm a shoplifter" sign for a week, even though it's unusual. And it's not unconstitutional to sentence a murderer to death, though it's certainly cruel. Sentence a shoplifter to death, and that would be both cruel and unusual. Or torture a murderer to death, and that would be both cruel and unusual.
But be charged with a statutory damage amount that's a nice round number near the geometric mean of the $750-150,000 range per work? That's about as usual as you can get.
And to be more specific, it's a home network with a cable connection. (I obviously can't be too specific due to his need for anonymity to avoid 'alarming' his family to his clandestine monitoring intentions). He does reasonable cause for suspecting something is going on and just needs to have information available to aid him in making decisions about some unusual behavior.
In other words, he thinks his wife is having an affair and has seen some "unusual" transactions on the credit card or caller ID numbers, and is trying to gather "evidence" to use against her.
If you're the client, this is a hugely bad idea and could get you in very, very big legal trouble.
If you're not the client, then this is still a hugely bad idea and could get you in legal trouble.
Probably the second best move for you is to contact the wife and let her know what you've been asked to do. You might even get a larger paycheck out of it that way.
But finally, the first best move for you is to contact a qualified divorce/family law lawyer in your jurisdiction. Because before you take any further moves, you want to know which ones will get you sued and which ones will get you in jail.
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And perhaps, just perhaps, he meant "perhaps" when he wrote "perhaps"....
So it is just like Fox News, sliding smoothly from news to editorial with nary a transition.
Perhaps Tim is worried that Samsung is still the primary component supplier for mobile products, including the iPhone, iPad, and iPod touch or perhaps Apple has bitten off more than it really wants to chew with the litigation between the two getting to truly epic and global proportions.
None of that is in the article. So, Fluffeh is the new Fox News?
In general, two companies failing to come to an agreement means... two companies failed to come to an agreement. Not, "one company is 'worried' and 'has bitten off more than it really wants to chew'."
I believe one of the patents in this whole mess is "scheduling an appointment from a mobile device" ... which is almost exactly the same as "scheduling an appointment in real life", and nearly almost exactly similar to "scheduling an appointment with a computer".
Not quite. You can roughly describe it that way, in the same way that you can describe a Toyota Prius as "a car", but note that you're inherently describing the thing in terms of prior art, so of course that description will be obvious. You have to go to the patent claims, not just the title or abstract. Toyota can't patent "a car" or even "a hybrid car", but they can patent their specific type of hybrid planetary engine, and Microsoft can patent their specific type of Exchange-based remote calendar invites.
Even if the judge does the unthinkable and rules for Oracle, all they'll get from it is the $150,000 statutory limit. To go against their several million dollar lawyers fees.
Probably not even that... To get statutory damages, you have to register your work with the Copyright Office. If they didn't do that, then they can only get actual damages, which may be tiny.
I believe the judge kinda lead his opinion by saying that he disagreed with them being copyrighted, based on his comments about RangeCheck ("I could do this myself any day").
Though I believe the judge will hold them to be non-copyrightable, if he does so based on that reason, it's immediately reversible on appeal for multiple reasons. One is that the judge is neither an expert nor a witness (nor can he be), so his independently created facts are inadmissible.
The second, and more important reason, is that ability to re-create something is irrelevant to whether it's copyrightable. You sit me down with a typewriter and a case of Mountain Dew, and I'll write you a story about boy wizard Harry Potter, with a scar on his forehead, who attends Hogwart's Castle. Or I'll draw you a picture of Mickey Mouse. Or I'll copy out Hamlet's soliloquy. Or I'll copy out sheet music for Van Halen's Jump. But none of that means that novels, art, plays, or music are non-copyrightable. In other words, the fact that the judge can play the piano, or draw a character, or even re-write RangeCheck doesn't mean that music, drawings, or APIs can not be copyrighted.
The DMCA does not address RAM copies. No statute addresses such copies of anything but computer programs.
Really? Take a look at the definition in 17 USC 101, and then look at 17 USC 117. Now, you or I might define "computer program" differently, say, as an executable, but that's not how Congress has defined it. Rather, they defined it as "a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result." An audio file could be interpreted as a set of statements to be used indirectly by a media player application in order to bring about a certain result, specifically statements of sequential values of an A/D converter. Again, it might not be the definition we'd choose, but it's certainly a valid one, given the broad definition of "computer program" and the lack of any explicit definition of "statement".
The thing is the 57% number is *too LOW*. Just about every computer user is a "pirate" under definitions that the *AAs consider valid. Hell, an extreme view of copyright law says that making a copy to RAM falls under copyright laws.
It's broken. The 19th century definition just doesn't fit when everything can be expressed as bits. It just doesn't work.
Fortunately, we've got a 21st century definition, in the form of the recently-updated copyright act, which expressly addressed things like copying to RAM. You may have heard of the Digital Millennium Copyright Act, no?
You can dislike it for myriad reasons, but "the act is 200 years out of date" is simply not a valid one.
It can't be legal to gain access to someone's house under false pretences, can it? Its trespassing at the least.
I don't know about you, but when I was selling my house, I invited people in. At that point, they weren't trespassers, even if they didn't end up making me an offer.
Well by that argument, I think you're saying the music Tenenbaum distributed is worth approximately double that of Beatles music. If MJ paid $47.5M for 4000 tracks, or 11,875 each on average, then that's darn near half of the per-track infringement damages - and it's not like he suddenly owns the right to distribute either. So I'm not convinced that saying "the tracks Mr Tenenbaum distributed are valued at approximately double a comparable Beatles track" is necessarily reasonable.
I think it's arguable... He wasn't sharing local indie folk bands, but platinum-selling top 40 rock bands. And those 4000 tracks weren't all the Beatles' greatest hits.
But, more importantly, it's arguable: we're now talking about a single order of magnitude... A far cry from the 10,000x damages we were discussing. And so, we can disagree on the subjective value of these particular tracks, but the damages fit within the statutory range and if they're out of whack, they're less than a single order of magnitude out of whack... which is why it's not unconstitutionally excessive.
Actually, what you say is quite idiotic.
... because? You can't simply say something like that without then providing an argument of sorts. Otherwise, you just seem upset.
Michael Jackson paid for exclusive rights to sell songs to record companies, who would sell them on a huge scale for big profits.
Not so. Michael Jackson paid for the distribution rights. He sublicensed those rights. But this fails to have anything to do with this issue. Are you disputing that he paid money for those rights? What exactly is your argument?
In the UK, newspapers have been adding free CDs to newspapers. I'm quite sure they had a license to do so. And they produced tens of thousands to hundres of thousands of copies. Which is probably more than thousand times as many copies as Tenenbaum made. And I bet they didn't pay $22,500 per song.
It's negotiable, but I bet they paid something. The amount would probably vary depending on what the song was, who the artist was, whether the song was driving sales of the newspapers or vice versa, the medium, etc. Your "lol ur idiot" argument is naive at best, and ignorant at worst.
Personally though, I think that any suit for damages exceeding 10% of defendant's yearly earnings warrants a criminal trial instead of a civil one.
... doesn't that make poor people face criminal penalties for being poor that a rich person, having performed the same actions, wouldn't face?
As a rich person, I like this plan, but I can't reasonably justify it.
The use of a civil court to decide damages of such obscenely disproportionate ammounts against individual citizens is a gross misuse of the court system, and is one that I would love to see made to endure serious sanction in and of itself some day. The court is there to determine liability, and to pass sentence. However, if the sentence is egregious, it should run afoul of the 8th amendment, regardess of trial type.
I'm not saying tannenbaum should get off the hook. I'm saying he shouldn't pay damages with a quadruple digit multiplier, when actual damages *CAN* be determined within a practical statistical bounding.
I don't know that this was so obscenely disproportionate... This wasn't about his downloading of a song he could've purchased for $1, but about his uploading of a song. And if Tenenbaum Records, Inc. wanted to purchase a distribution license for those songs from Sony BMG, he would've been paying much more than $1. Arguably something closer to $22,500.
At the very most, I could see tannenbaum liable for 200k in damages. At the very highest extreme.
I agree, but for a different reason... I think the "willfulness" rule is misapplied, and the jury should've been given the $750-$30,000 range for damages. It would've resulted in a total around $100k, statistically.
We are talking "al capone of file sharing" here. As it is, tannenbum was a single offender making use of an illegal service to gain unlicensed access to material, the mechanism of which also causes him to reciprocate in the utility of making said material available to others. The ones who should get the "al capone" sized bill should be initial seeders, not driveby downloaders.
He had the ability to become a leecher, but didn't for whatever reason. If I run a pirate rebroadcaster, I'm still running an illegal transmitter, even if I'm not originating the material.
We're talking about proportions here. The court has traditionally held that over 10x actual damages is unconstitutional. The Tenenbaum verdict is more like 10,000x actual damages.
Not really. We're not talking about damages because he didn't purchase those songs on iTunes for a dollar each... We're talking about damages because he uploaded those songs. Apple pays a lot more than a dollar for the rights to distribute. In fact, some years back, Michael Jackson bought the rights to distribute 4,000 Beatles songs. Did he pay $4,000? No, try $47.5 million. The $22,500 per song for Tenenbaum's infringement of the distribution right is pretty reasonable in view of that.
> I don't think you understant what the word useful can mean. Music has a use. It can be used to provide enjoyment.
So why would the founders say "useful Arts" rather than just "Arts"? Because, of course, they never had any intention allowing the government to do anything more than promote innovation of things useful to the nation as a whole, like the cotton gin and motor car.
"Science", as it was used at the time of the Constitution, meant any literary, scientific, or artistic work. It was in contradistinction to the "useful arts," which were practical inventions. And if you think the founders "never had any intention of allowing the government" to protect copyright, then why was one of the first acts they passed the Copyright Act of 1789, only two years after the Constitution was signed?
At least in Arizona, a divorced woman over 50 can get "spousal maintenance" for the rest of her life, not revisable due to circumstances (e.g. unemployment of the ex-husband, including retirement or disability.) Which might explain some of the 70-something greeters at Wal-Mart.
Correction: a divorced person over 50 can get spousal maintenance for the rest of his or her life... provided they were married for a sufficiently long time and one of them was a stay-at-home caretaker who gave up career and/or education to take care of the other's children. The statutes are gender-neutral. That the person receiving alimony tends to be female is a result of the gender wage gap and institutionalized sexism that says that women are the ones who give up careers to stay home with kids. Hopefully, gay marriage as well as better paternity leave laws will help change this.
Music is neither Science, nor is it useful. Are you sure you weren't looking for a different passage?
On the contrary, music is science. Or, was, under the definition of the term "science" in use when the Constitution was drafted. From the Latin "scientia" or "knowledge, "science" included any literary or artistic works by authors, in contrast to the "useful arts" which included utilitarian constructions by inventors.
As a matter of good policy, copyright shouldn't necessarily be abolished, as that is throwing the baby out with the bathwater. Rather, copyright should be retooled to define it as a protection against plagiarism, rather than a guarantee of profits. If I came up with something unique and original, and you went around presenting it as your own work regardless of whether you were charging for it or not, that would be dishonest and fraudulent and without copyright laws, perfectly legal.
So, if I'm Apple, I should be able to distribute free copies of Windows 8 to anyone I want, provided I include the statement "btw, we didn't write this, it's really Microsoft software. But it's still free." No plagiarism, there.
Are you sure you want to go down this road, considering equating them would eliminate liability of big companies for damages, like Exxon for the Valdez, or BP for the Gulf spill?
I would LOVE to see BP pay out 10 times the actual damages they caused to the gulf. Hell, I'd like to see BP pay out 1 times actual damages.
Me too. But saying that "large damage awards are unconstitutional 'excessive fines'" would run smack into that.
3. "A severe punishment that is clearly and totally rejected throughout society."
4. "A severe punishment that is patently unnecessary."
Principle 3, at the very least, seems to apply to this case.
I'd say principle 4 is the one that may apply here, at best. But, nevertheless, none of them do... this isn't punishment. These are compensatory damages. Punitive damages were not applied and are not at issue. And certainly, monetary damages in compensation for a wronged victim are not "clearly and totally rejected throughout society". In fact, they're pretty widely accepted as a response to civil liability.
It's also interesting to note that the original Judge who tried to rule on the constitutionality of the monetary award is now retired and is a colleague of Tenenbaums defence attorney...
Not that unusual, though. Boston has more law schools (and more universities) per square mile than any other place in the world. For a big town, it's an awfully small town here.
Nullification was intended as a REMEDY for the latter. That is why US juries were given that power in the first place, as the situation with crooked judges that we have now existed THEN too, in the courts of england. Putting powers into the hands of ordinary people in the jury as a meas of preventing officious behavior from the legal system, and to help ensure that blind justice was served. Its also why jurors have legal protections against punitative reprisals from angry judges.
Want this shit to end? Educate the public, and end the "jury instruction" free ride.
Jury nullification, however, doesn't apply to civil trials. It's a result of the fact that a jury can declare someone not guilty in a criminal trial, and (a) no one can ask their reasons why; and (b) their ruling is final and the defendant can't be re-tried. That's not true in a civil trial, which have the rule known as Judgment-Not-Withstanding-the-Verdict (JNOV, or sometimes JMOL - judgment as a matter of law). The jury can say "we find the defendant not liable" and the judge can say, in a civil trial, "no reasonable jury could find that, so I'm reversing and finding him liable."
Here, in fact, there was a directed verdict. Tenenbaum admitted infringement, so the judge explicitly ordered the jury to find him guilty of infringement. The only issue before the jury was the amount of damages.
Want to have jury nullification be a viable option in criminal trials? Educate yourself about it before you attempt to educate the public in error.
The jury awarded the ridiculous damages. You should be asking what is wrong with ordinary Americans that they can so easily be persuaded that inordinate punishments are acceptable. At least in Europe such things can be challenged under human rights legislation, which is presumably one reason why the media companies* in the UK are anti-EU; it has some weird idea that law should be on the side of ordinary people.
*(Barclay Brothers, Murdochs, Rothermeres.)
The jury was given the statutory range of $750-$150,000 per work... It's basic psychology that they'd come up with something not terribly far from the geometric mean, or $22,500 per work.
This points to one potential answer... For many reasons, the definition of "willfulness" being used is wrong. The jury should have gotten a $750-$30,000 instruction, which would have led to something around $5k-8k per work, or around $150-200k total. Still high, but better.
In the original discovery, did Sony, Warner, et al. show how many times the exact files Tenenbaum uploaded were downloaded, or was 'distributing to millions of other people' hyperbole based on the number of people downloading from those services in general and not with regards to the specific files he uploaded? The answer to that goes a long way in deciding whether the damages are excessive or not.
Not really... Even a single upload of a work is enough to count as "distribution" under the statute. This is reasonable, because otherwise you'd open the door for commercial infringement via proxy - I, as Apple, buy a single copy of Windows 8 and put it on bittorrent. Once I seed it once, I shut down my application. The market for Windows is destroyed* and I get out of any real damages because, even though I acted willfully and maliciously, anything more than a hundred bucks is out of proportion compared to the single copy I uploaded. That's not the right answer either.
There are a couple answers... One is that the legislature could return to the issue and amend the copyright act to separate out punishments for non-commercial infringement vs. commercial infringement. Another is that the courts could look at the definition of "willfulness" that lets damages balloon to $150k. Their current definition - "with knowledge of copyright" - is incorrect. But the problem is that neither the RIAA nor defendants will argue that issue: the former, because it would reduce their damage awards; and the latter, because even a $10k per song judgment is still in excess of what they can pay.
Fortunately, the court could decide it sua sponte, but you need a good, thoughtful judge, and some well written amicus briefs.
*this disregards the fact that currently - and even moreso if precedent went the way you suggest - Windows has strong DRM. Of course, Apple wouldn't actually be able to do that... because Windows would need to be always connected to the Internet and phoning home every 10 minutes. See., e,g. Diablo III and the farking single player campaign. A lack of copyright protection will result in more and worse DRM.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
That's what there is to listen to. Unless you're arguing that the Copyright Clause supercedes the Bill of Rights. In that case, why should the 5th and 6th amendments apply either? Are you sure you want to go down this road?
"Damages" are not the same as "fines". Fines, by definition, are punitive in nature, while damages, by definition, are compensatory in nature. Are you sure you want to go down this road, considering equating them would eliminate liability of big companies for damages, like Exxon for the Valdez, or BP for the Gulf spill? Because compensatory damages in those cases are huge, as they should be.
The Supreme Court ruling on this always struck me as somewhat ludicrous. If Congress does not have the right to set ballpark figures for fines to deter people from violating a law it has a constitutional mandate to pass, then what rights does it have?
This sounds "cruel and unusual" to me. I wonder if there is any authority that could issue an opinion regarding my concern. The Supreme Court perhaps?
It may well be cruel, but it's not unusual - the statutory damage ranges are codified in, well, the statute. Every defendant is subject to them. And, for better or for worse, as Scalia noted, to violate the 8th Amendment, punishments must be both cruel and unusual. It's not unconstitutional to require a shoplifter to stand in front of a store wearing an "I'm a shoplifter" sign for a week, even though it's unusual. And it's not unconstitutional to sentence a murderer to death, though it's certainly cruel. Sentence a shoplifter to death, and that would be both cruel and unusual. Or torture a murderer to death, and that would be both cruel and unusual.
But be charged with a statutory damage amount that's a nice round number near the geometric mean of the $750-150,000 range per work? That's about as usual as you can get.
And to be more specific, it's a home network with a cable connection. (I obviously can't be too specific due to his need for anonymity to avoid 'alarming' his family to his clandestine monitoring intentions). He does reasonable cause for suspecting something is going on and just needs to have information available to aid him in making decisions about some unusual behavior.
In other words, he thinks his wife is having an affair and has seen some "unusual" transactions on the credit card or caller ID numbers, and is trying to gather "evidence" to use against her.
If you're the client, this is a hugely bad idea and could get you in very, very big legal trouble.
If you're not the client, then this is still a hugely bad idea and could get you in legal trouble.
Probably the second best move for you is to contact the wife and let her know what you've been asked to do. You might even get a larger paycheck out of it that way.
But finally, the first best move for you is to contact a qualified divorce/family law lawyer in your jurisdiction. Because before you take any further moves, you want to know which ones will get you sued and which ones will get you in jail.