"indie" is any non-RIAA music. It's short for "independantly produced". Note that the "alternative music" was in fact produced, recorded, and marketed by the major lablels; US started out as "alternative", as did Cheap Trick.
Indie == "non-RIAA".
Correct.
Where it gets tricky for me is a label like Rounder Records, a traditionally independent label which has never been associated with the Big 4 record companies, and which has never been a part of the Big 4's litigation campaign, but which is a dues-paying member of the RIAA.
I'm classifying them as non-indie because their dues are contributing to the RIAA vendetta.
I.e., I go with your definition. indie=non RIAA. period. I attempt to never patronize any company associated with the RIAA, and I go to check at RIAARadar.com.
A distribution under 17 USC 106(3) requires a sale or other transfer of ownership, or by rental, lease, or lending. Also it must involve a dissemination of copies to the public.
The mistake that you seem poised to make, and that RIAA trolls make religiously, is equating the two numbers (copies downloaded and sales lost). They are not equal (and any sane economist can explain why inside of 30 seconds). Are SOME sales lost? Of course. But its a hell of a lot less than the number of total downloads.
Correct. And that same point was made the the Court in USA v. Dove, where the judge rejected the RIAA's nonsensical argument that every unauthorized download was tantamount to a lost sale.
Actually, the MAXIMUM damages -- assuming that every unauthorized download by Tenenbaum was a lost sale, which is definitely not the case -- would be around 35 cents per song, because the wholesale price is around 70 cents, and the expenses, on average, would be 35 cents. So the current award is around 65,000 times the actual damages.
The argument involved in bringing up the court cases cited in the summary is that the damage award involved in this RIAA case is unconstitutional, as it violates part of the Fourteenth Amendment: "nor shall any State deprive any person of life, liberty, or property, without due process of law;". The decision for BMW of North America, Inc. v. Gore laid out a set of guideposts for whether punitive damage awards are in violation of this clause:
1. The degree of reprehensibility of the defendant's conduct
2. the ratio to the compensatory damages awarded (actual or potential harm inflicted on the plaintiff)
3. Comparison of the punitive damages award and civil or criminal penalties that could be imposed for comparable misconduct.
In my non-lawyer opinion, if awards were overturned in the Gore and Campbell cases under this rationale, there is a far stronger argument to be made here. The behavior of both BMW of NA (was selling slightly repaired cars as "new") and State Farm (had a secret internal scheme to cap payouts) could more reasonably be asserted as reprehensible than that of a music downloader. From a "ratio" standpoint, if you consider the actual damage from illegally downloading a song to be 99 cents as the parent implies, then for the 31 songs involved here, the ratio of punitive to actual is over 20000 to 1, far more than the 1000 to 1 in Gore and 145 to 1 in Campbell. And those were of course awards meant to have punitive effect on gigantic corporations, not to destroy the finances of a single private citizen. From a "comparable misconduct" standard, the $675,000 award is not in the same universe as the penalties for petty larceny if Mr. Tenenbaum had merely shoplifted physical copies of the same music.
The 'making available' argument was aired in the Thomas case (although her counsel didn't bother to bring the precedents to court) and the jury instructions were that making available was sufficient to found liability
The judge in the Thomas case reversed himself on that, realizing that "making available" was NOT sufficient to find distribution. Slight detail you seem to have overlooked.
Your arguments are totally circular. Yes the statute could be construed to authorize numbers vastly disproportionate to the actual damages, as the RIAA argues would be peachy keen (except when they're defendants in which case they raise holy hell), but the Supreme Court has consistently held that the Constitution -- which takes precedent over the statute -- does not permit such a construction. I guess you, like the RIAA lawyers, have forgotten about the Supreme Court's rulings.
This particular argument is news because
A) It is an area of law that a lot of us care about and
B) Because this is an argument many of us have wished had been made before, but until this time (as far as I know) it hasn't. So we want to pay attention to this case to see how it turns out.
If you don't like the story, you don't have to read it.
The RIAA would not like the world to know about these arguments and defenses. Isn't that reason enough to want to learn about them?:)
To the best of my recollection (NYCL, a little help?), the constitutionality of the damages has never been challenged.
Only one such motion has been made, in Minnesota, in Capitol Records v. Thomas. That motion is pending. This motion also makes arguments the other one had not made, and makes the due process argument a bit more clearly than the other one had, IMHO.
Ray.....was it right to suggest those limits to the jury?
No in my opinion it was error. There was no basis for allowing anything above the $750 per infringed work minimum, and only the judge rather than the jury could have awarded less, so there was nothing for the jury to decide.
Your comment has a lot of fallacies in it. You are ignoring the large body of case law on proportionality of statutory damages; you are ignoring the fact that the Constitution takes precedence over any statute; you are ignoring the Supreme Court's caselaw on "punitive awards"; you are implying there is some prohibition against "uploading", while there is none.... what there is is a prohibition against 'distributing copies to the public by sale or other transfer of ownership, or by rental, lease or lending', none of which have been proven; you are suggesting that damages can be based on speculation, which is not the case; you are assuming that an unauthorized download = a lost sale, which is not the case.
Statutory damages as an alternative to actual damages makes sense, but is there any legal expectation that the statutory damages will be roughly proportional to the actual damages?
Yes. They are supposed to be reasonably proportioned to the actual damages. Usually that plays out to 2 to 4 times the actual damages.
It may wind up being the RIAA that's going to "need an appeal".
That would be good news indeed, can you expound on that a little?
Liability is a foregone conclusion, since Mr. Tenenbaum formally "admitted liability" at the trial. But damages are not.
If the Court follows traditional copyright law principles, it will hold that there was no evidence in the record from which any statutory damages award beyond $750 per infringed work is permissible, thus limiting the award to a maximum of $18,000 under copyright law.
And if the Court then follows traditional constitutional principles, it will hold that any recovery beyond $1.40 per infringed work (or total of $33.60) is unconstitutional.
If the RIAA obtains a monetary damages award of $33.60 I would expect Mr. Tenenbaum to refrain from appealing, and I would expect the RIAA to be the one to file an appeal.
Well he doesn't need an appeal. The real question -- the excessiveness of the verdict under (a) copyright law and (b) constitutional law -- hasn't been decided yet. The judge had earlier indicated she would be getting to that only after judgment had been entered, and a motion to set aside the judgment had been made. She has scheduled that for a January 4th deadline, with the RIAA getting 14 days from the making of such a motion to respond.
It may wind up being the RIAA that's going to "need an appeal".
Wait a minute... I thought vampires sparkled in the light of day. Now I'm confused.
I KNEW that when I brought up vampires and ghouls someone at Slashdot, more knowledgeable on the subject than I, would correct me. It comes up every time I try to describe the RIAA lawyers in understandable terms.
Seriously, there's not a lot of people who can claim to have gone toe-to-toe with those bastards and come out the better for it. More power to you, NYCL- and if you'll tell me what you drink you've got one of them headed your way.
Thanks, my friend. Regrettably, I don't drink; but it's the thought that counts.:)
Did this kind of BS from the RIAA even have a chance of working
No.
or were they just being vexatious themselves?
Absolutely, which is why I made a Rule 11 motion. I can only remember 1 other time, in 30+ years of practicing law, that I have filed a Rule 11 motion against a fellow attorney.
He's a competent attorney, and knows better than any of the laymen here what the risks are of the choices he makes. But there's something very special happening here; knowing the risks and facing a huge and implacable enemy he's sticking fairly closely to the path of truth - even though it may be expensive or uncomfortable to him.
He can see the true outlines of the questions being decided - and they're much more important than many of the commentators here may imagine. It's not solely about protecting some pirate from having to pay for their downloads - it's also about the music cartel and if they should be allowed to exert total control over the production and distribution of music. While we've been snoozing they've carved out a legal niche where they crouch and work out ways to take even more control for themselves.
Those cartel members are full of self-importance and those stories you hear about "pay per play" or putting independent outlets out of business aren't bedtime stories - these are things the cartel wants and they'll get them and more if nobody stands up to oppose them. Those who think that downloading a few more tunes will make a difference are fooling themselves; they're playing the cartel's game.
It's OK if most of the folks stick to their nice soft beds and don't get involved in important social problems like this one. But we need a few who will - NYCL is one, who else will stand up and fight for the truth?
Slashdot Mirror
"indie" is any non-RIAA music. It's short for "independantly produced". Note that the "alternative music" was in fact produced, recorded, and marketed by the major lablels; US started out as "alternative", as did Cheap Trick. Indie == "non-RIAA".
Correct.
Where it gets tricky for me is a label like Rounder Records, a traditionally independent label which has never been associated with the Big 4 record companies, and which has never been a part of the Big 4's litigation campaign, but which is a dues-paying member of the RIAA.
I'm classifying them as non-indie because their dues are contributing to the RIAA vendetta.
I.e., I go with your definition. indie=non RIAA. period. I attempt to never patronize any company associated with the RIAA, and I go to check at RIAARadar.com.
A distribution under 17 USC 106(3) requires a sale or other transfer of ownership, or by rental, lease, or lending. Also it must involve a dissemination of copies to the public.
The mistake that you seem poised to make, and that RIAA trolls make religiously, is equating the two numbers (copies downloaded and sales lost). They are not equal (and any sane economist can explain why inside of 30 seconds). Are SOME sales lost? Of course. But its a hell of a lot less than the number of total downloads.
Correct. And that same point was made the the Court in USA v. Dove, where the judge rejected the RIAA's nonsensical argument that every unauthorized download was tantamount to a lost sale.
does anybody actually think this has a chance in hell?
I cannot imagine that the $675,000 verdict will be left standing. If Judge Gertner doesn't knock it out, an appeals court certainly will.
Just a nitpick, but people are usually sued for uploading, not downloading.
1. They're being sued for both.
2. There's no proof of any uploads.
3. The RIAA relies on the distribution to try to get at uploading, but they have no proof of any distribution.
Actually, the MAXIMUM damages -- assuming that every unauthorized download by Tenenbaum was a lost sale, which is definitely not the case -- would be around 35 cents per song, because the wholesale price is around 70 cents, and the expenses, on average, would be 35 cents. So the current award is around 65,000 times the actual damages.
Given the crappiness of what passes for music these days, the ceiling should have been set at a nickel per song -- and wooden ones at that.
It seems that the real excitement is in indie music.
The argument involved in bringing up the court cases cited in the summary is that the damage award involved in this RIAA case is unconstitutional, as it violates part of the Fourteenth Amendment: "nor shall any State deprive any person of life, liberty, or property, without due process of law;". The decision for BMW of North America, Inc. v. Gore laid out a set of guideposts for whether punitive damage awards are in violation of this clause: 1. The degree of reprehensibility of the defendant's conduct 2. the ratio to the compensatory damages awarded (actual or potential harm inflicted on the plaintiff) 3. Comparison of the punitive damages award and civil or criminal penalties that could be imposed for comparable misconduct. In my non-lawyer opinion, if awards were overturned in the Gore and Campbell cases under this rationale, there is a far stronger argument to be made here. The behavior of both BMW of NA (was selling slightly repaired cars as "new") and State Farm (had a secret internal scheme to cap payouts) could more reasonably be asserted as reprehensible than that of a music downloader. From a "ratio" standpoint, if you consider the actual damage from illegally downloading a song to be 99 cents as the parent implies, then for the 31 songs involved here, the ratio of punitive to actual is over 20000 to 1, far more than the 1000 to 1 in Gore and 145 to 1 in Campbell. And those were of course awards meant to have punitive effect on gigantic corporations, not to destroy the finances of a single private citizen. From a "comparable misconduct" standard, the $675,000 award is not in the same universe as the penalties for petty larceny if Mr. Tenenbaum had merely shoplifted physical copies of the same music.
Very good for a non-lawyer.
This is why slashdot sucks. So many people who hate the RIAA that they won't give them their due. Kneejerk defense of criminal behaviour.
I think you're why slashdot sucks; accusing people of saying things they didn't say.
Oh wait. Slashdot doesn't suck. Sorry, I take it back.
The 'making available' argument was aired in the Thomas case (although her counsel didn't bother to bring the precedents to court) and the jury instructions were that making available was sufficient to found liability
The judge in the Thomas case reversed himself on that, realizing that "making available" was NOT sufficient to find distribution. Slight detail you seem to have overlooked.
Your arguments are totally circular. Yes the statute could be construed to authorize numbers vastly disproportionate to the actual damages, as the RIAA argues would be peachy keen (except when they're defendants in which case they raise holy hell), but the Supreme Court has consistently held that the Constitution -- which takes precedent over the statute -- does not permit such a construction. I guess you, like the RIAA lawyers, have forgotten about the Supreme Court's rulings.
NewYorkCountyLawyer seems to have a "right of way" to go straight to the homepage based on past contributions.
1. Don't I wish.
2. Can't you get my damn name right? I'm a Country lawyer, not a County lawyer.
This particular argument is news because A) It is an area of law that a lot of us care about and B) Because this is an argument many of us have wished had been made before, but until this time (as far as I know) it hasn't. So we want to pay attention to this case to see how it turns out. If you don't like the story, you don't have to read it.
The RIAA would not like the world to know about these arguments and defenses. Isn't that reason enough to want to learn about them? :)
To the best of my recollection (NYCL, a little help?), the constitutionality of the damages has never been challenged.
Only one such motion has been made, in Minnesota, in Capitol Records v. Thomas. That motion is pending. This motion also makes arguments the other one had not made, and makes the due process argument a bit more clearly than the other one had, IMHO.
how is filing a motion newsworthy?
There have been ~40,000 cases; this is only the 2nd time such a motion has been made. The first such motion is pending.
Sure, he should pay a fine. One in the order of, say, $675, not $675000.
Under Supreme Court guidelines, it should have been more along the line of $30 or $40.
Ray.....was it right to suggest those limits to the jury?
No in my opinion it was error. There was no basis for allowing anything above the $750 per infringed work minimum, and only the judge rather than the jury could have awarded less, so there was nothing for the jury to decide.
Your comment has a lot of fallacies in it. You are ignoring the large body of case law on proportionality of statutory damages; you are ignoring the fact that the Constitution takes precedence over any statute; you are ignoring the Supreme Court's caselaw on "punitive awards"; you are implying there is some prohibition against "uploading", while there is none.... what there is is a prohibition against 'distributing copies to the public by sale or other transfer of ownership, or by rental, lease or lending', none of which have been proven; you are suggesting that damages can be based on speculation, which is not the case; you are assuming that an unauthorized download = a lost sale, which is not the case.
Statutory damages as an alternative to actual damages makes sense, but is there any legal expectation that the statutory damages will be roughly proportional to the actual damages?
Yes. They are supposed to be reasonably proportioned to the actual damages. Usually that plays out to 2 to 4 times the actual damages.
It may wind up being the RIAA that's going to "need an appeal".
That would be good news indeed, can you expound on that a little?
Liability is a foregone conclusion, since Mr. Tenenbaum formally "admitted liability" at the trial. But damages are not.
If the Court follows traditional copyright law principles, it will hold that there was no evidence in the record from which any statutory damages award beyond $750 per infringed work is permissible, thus limiting the award to a maximum of $18,000 under copyright law.
And if the Court then follows traditional constitutional principles, it will hold that any recovery beyond $1.40 per infringed work (or total of $33.60) is unconstitutional.
If the RIAA obtains a monetary damages award of $33.60 I would expect Mr. Tenenbaum to refrain from appealing, and I would expect the RIAA to be the one to file an appeal.
Problem now is, how does Tenenbaum get an appeal?
Well he doesn't need an appeal. The real question -- the excessiveness of the verdict under (a) copyright law and (b) constitutional law -- hasn't been decided yet. The judge had earlier indicated she would be getting to that only after judgment had been entered, and a motion to set aside the judgment had been made. She has scheduled that for a January 4th deadline, with the RIAA getting 14 days from the making of such a motion to respond.
It may wind up being the RIAA that's going to "need an appeal".
Wait a minute... I thought vampires sparkled in the light of day. Now I'm confused.
I KNEW that when I brought up vampires and ghouls someone at Slashdot, more knowledgeable on the subject than I, would correct me. It comes up every time I try to describe the RIAA lawyers in understandable terms.
Seriously, there's not a lot of people who can claim to have gone toe-to-toe with those bastards and come out the better for it. More power to you, NYCL- and if you'll tell me what you drink you've got one of them headed your way.
Thanks, my friend. Regrettably, I don't drink; but it's the thought that counts. :)
Did this kind of BS from the RIAA even have a chance of working
No.
or were they just being vexatious themselves?
Absolutely, which is why I made a Rule 11 motion. I can only remember 1 other time, in 30+ years of practicing law, that I have filed a Rule 11 motion against a fellow attorney.
He's a competent attorney, and knows better than any of the laymen here what the risks are of the choices he makes. But there's something very special happening here; knowing the risks and facing a huge and implacable enemy he's sticking fairly closely to the path of truth - even though it may be expensive or uncomfortable to him. He can see the true outlines of the questions being decided - and they're much more important than many of the commentators here may imagine. It's not solely about protecting some pirate from having to pay for their downloads - it's also about the music cartel and if they should be allowed to exert total control over the production and distribution of music. While we've been snoozing they've carved out a legal niche where they crouch and work out ways to take even more control for themselves. Those cartel members are full of self-importance and those stories you hear about "pay per play" or putting independent outlets out of business aren't bedtime stories - these are things the cartel wants and they'll get them and more if nobody stands up to oppose them. Those who think that downloading a few more tunes will make a difference are fooling themselves; they're playing the cartel's game. It's OK if most of the folks stick to their nice soft beds and don't get involved in important social problems like this one. But we need a few who will - NYCL is one, who else will stand up and fight for the truth?
Thanks, Whuffo. Very much appreciated.