I was under the impression that "distributing to MediaSentry" qualifies as distribution (as decided by the court), and therefore the RIAA did show evidence of distribution.
Had the trial been properly handled, the judge would have instructed the jury as to required elements to prove "distribution" (or he would have taken the issue away from the jury, there being no evidence of any of those elements).
And oddly enough, it's mainly an argument that conservatives make when they don't get what they want. I don't recall a whole lot of judicial activism complaints coming as a result of SCOTUS overturning the DC hand gun ban or whenever the courts decide to overturn anti-discrimination legislation
....or deciding to prevent the State of Florida from conducting a recount of the votes cast in a presidential election, based upon a one-time-only-never-again-to-be-cited decision that the Equal Protection Clause does NOT mean what 40 years of SCOTUS decisions had said it meant.
That's what is entirely missing here that makes this case insane. It can't possibly be the intent of the law that they should be able to say "Well, we can't prove any specific instance of infringement so we'll just pick the highest possible number we can".
Well done. You've stated the RIAA's case in a nutshell.
If this judge were to throw this out, it would be a case of exceptional judicial activism.
On the contrary, it would be an ordinary application of controlling law regarding "punitive awards", developed over 700 years. What would be exceptional "activism" would be for him to ignore that body of law and to allow a band of inflamed jurors to substitute their hatred for 700 years of jurisprudence.
It was "activism" on his part to overlook the 50 years or so of jurisprudence indicating the parameters of acceptable copyright statutory damage awards, and to permit the jury unlimited leeway in an area where they in fact had no leeway at all. The award should have been $750 per infringed work, or it should have been nothing. The jury should have been awarded no leeway to award any more than that.
Controlling precedent dictated that, as a matter of copyright law, the statutory damages award should not have exceeded approximately 4 times the actual damages sustained.
No award could have been supported based on "distribution" as the elements of a distribution were not, and could not have been, proven.
Isn't there some kind of common-sense law which prohibits especially large amounts like this to be handed down to individuals??
Yes there are several bodies of law of which this verdict ran afoul. One is copyright jurisprudence regarding the appropriate measure of damages. Another is 5th Amendment due process jurisprudence over unreasonably large "punitive awards". Another possible area is the 8th amendment "excessive fines"principle.
The RIAA did not demonstrate that she had actually uploaded any copies of the songs. The defence lawyers, for some reason, did not challenge this.
You are right that they did not produce any evidence of any distribution. In addition to "uploading" they would have had to prove a sale, other transfer of ownership, rental, lease, or lending, which they did not prove. And they would have had to prove it was sent "to the public" which they did not prove.
Where the statute is clear and explicit on what congress authorized for statutory damages, how is a jury following the law to the letter a "runaway jury"?
If you don't think a jury which awarded $1.92 million to a plaintiff who sustained $8 in actual damages is a "runaway jury".... I pity you.
If the law says the judge can award $80k per violation, while outrageous, there is nothing retarded about a judge doing so.
The "law" in the United States is the statutes AND the caselaw. There is a great body of caselaw saying that copyright statutory damages should not be more than approximately 4 times the actual damages. Under that law, the judge should not have allowed the jury any discretion to award more than $750 per infringed work, since $750 is approximately 2200 times the actual damages.
A judicial system that allows somebody to be completely destroyed (which is what enforcing the judgement would do in such a case, since effectively it would deprive her of more than her entire expected lifetime earnings) for what is evidently a trivial matter, is broken. If higher courts will not provide a remedy, then they have failed as courts of equity - which would suggest a defect in the US Constitution.
I agree. However, I think Judge Davis will not allow this verdict to stand.
I don't think the "intent to make profits" should matter at all.
It's relevant; it's just not dispositive. There is a long line of cases -- all of them commercial cases in which the defendant "intended to make profits" -- in which the Courts have held that statutory damages are permissible within the range of 2 to 4 times the actual damages.
It is a factor for the Court to consider. But its presence would not authorize just allowing a jury to do any crazy thing it feels like, like this runaway jury did.
In my simple non-lawyer opinion, the appeal will fail miserably.
Well you're wrong about several things, so your conclusion is wrong. 1. It's not an attack on the statute, but on the award. 2. It's not an appeal. 3. There is nothing in the record to establish a penny in actual damages. 4. There is no such thing as "peripheral" damages.
There is nothing wrong with "simple non-lawyer opinion[s]"; there is, however, something wrong with baseless opinions.
I'm fairly sure it was the Jury that decided on damages, not the judge.
Yes but it was the Judge who incorrectly gave them the latitude to do so. Under well settled principles of copyright law, he ought not to have allowed more than $750 per infringed "work".
Me too. I was even surprised at how little attention Slashdot paid to it. Half the people on Slashdot complain all the time about the MAI decision; here was a decision limiting the MAI decision's scope. (I wish the Court had simply rejected the MAI court's reasoning, but maybe it will do that one of these days in another case).
having read the opinion and cited its reasoning extensively in a law review article I just authored
Here's a copy of the decision for those of you who might not have read it.
As to the reporting of it, most reporters usually report it that way. Lawyers (and law students) know that a denial of certiorari is not an affirmance, but merely a decision not to review the decision.
They have never been able to offer any proof that a copy on someone's computer was "illicit". They have, however, in ex parte proceedings, convinced one or more judges who were not knowledgeable about technology that that was the case.
Well, 2 out of 4 on attorney fees (with an appeal pending) doesn't seem all that a statistic from the RIAA's point of view (given the settlement amounts elsewhere), if the fees were the 100k and 60k (-ish) amounts I read. At this point suing random people chosen by educated guess seems like a viable strategy from an economic sense. At what point does the legal system say "enough is enough, give me something solid or cut this shit out"? Given that, from the case names, the RIAA itself isn't a party in any of them (the individual labels are), proving there's a RIAA-wide strategy of bringing spurious cases involves not only saying one individual entity is operating under such a strategy, but also that there is a concerted effort to make it happen. It seems a bit complex...
It's not "RIAA-wide". Only 4 RIAA members, the big 4 record labels, are behind the litigation campaign. They use the RIAA as a front, to mask their collusion.
what gives the RIAA the right to represent these entities, and still be immune from RICO?
Jane, in my personal opinion they're not immune from RICO. They've committed predicate crimes, it's a racketeering activity. I don't see any immunity at all.
The RIAA has done some serious nit-picking of its own. Given their behavior, the question becomes, does the defense stoop to their level, stay scrupulously above that level, or...
.... only nit-pick when they think the judge won't censor them
My personal philosophy is NEVER to make marginal, "nit picking" arguments. Just because the RIAA lawyers practice law like sleezes doesn't mean that I'm going to lower my standards for how I conduct myself.
Outside cases that settle, is getting attorney fees the rule, or were those cases exceptional?
There were only a couple of cases in which the defendant prevailed and pushed for attorneys fees. I can only think of 4 offhand. In 2 the motion was granted, in 2 denied, but one of the 2 denials -- Lava v. Amurao -- is, as I noted, on appeal.
Slashdot Mirror
I was under the impression that "distributing to MediaSentry" qualifies as distribution (as decided by the court), and therefore the RIAA did show evidence of distribution.
Not according to 17 USC 106(3).
Had the trial been properly handled, the judge would have instructed the jury as to required elements to prove "distribution" (or he would have taken the issue away from the jury, there being no evidence of any of those elements).
And oddly enough, it's mainly an argument that conservatives make when they don't get what they want. I don't recall a whole lot of judicial activism complaints coming as a result of SCOTUS overturning the DC hand gun ban or whenever the courts decide to overturn anti-discrimination legislation
....or deciding to prevent the State of Florida from conducting a recount of the votes cast in a presidential election, based upon a one-time-only-never-again-to-be-cited decision that the Equal Protection Clause does NOT mean what 40 years of SCOTUS decisions had said it meant.
That's what is entirely missing here that makes this case insane. It can't possibly be the intent of the law that they should be able to say "Well, we can't prove any specific instance of infringement so we'll just pick the highest possible number we can".
Well done. You've stated the RIAA's case in a nutshell.
If this judge were to throw this out, it would be a case of exceptional judicial activism.
On the contrary, it would be an ordinary application of controlling law regarding "punitive awards", developed over 700 years. What would be exceptional "activism" would be for him to ignore that body of law and to allow a band of inflamed jurors to substitute their hatred for 700 years of jurisprudence.
It was "activism" on his part to overlook the 50 years or so of jurisprudence indicating the parameters of acceptable copyright statutory damage awards, and to permit the jury unlimited leeway in an area where they in fact had no leeway at all. The award should have been $750 per infringed work, or it should have been nothing. The jury should have been awarded no leeway to award any more than that.
Controlling precedent dictated that, as a matter of copyright law, the statutory damages award should not have exceeded approximately 4 times the actual damages sustained.
No award could have been supported based on "distribution" as the elements of a distribution were not, and could not have been, proven.
I think it backfired on the RIAA.
Big time.
I've never heard of someone winning a case, and then going around apologizing for it.
Isn't there some kind of common-sense law which prohibits especially large amounts like this to be handed down to individuals??
Yes there are several bodies of law of which this verdict ran afoul. One is copyright jurisprudence regarding the appropriate measure of damages. Another is 5th Amendment due process jurisprudence over unreasonably large "punitive awards". Another possible area is the 8th amendment "excessive fines"principle.
The RIAA did not demonstrate that she had actually uploaded any copies of the songs. The defence lawyers, for some reason, did not challenge this.
You are right that they did not produce any evidence of any distribution. In addition to "uploading" they would have had to prove a sale, other transfer of ownership, rental, lease, or lending, which they did not prove. And they would have had to prove it was sent "to the public" which they did not prove.
A hundred thousand times the retail value of the file may seem like a lot. But how many copies of each song did she distribute?
There was no evidence of any distribution. American law does not permit supporting a judgment or verdict on mere speculation.
Where the statute is clear and explicit on what congress authorized for statutory damages, how is a jury following the law to the letter a "runaway jury"?
If you don't think a jury which awarded $1.92 million to a plaintiff who sustained $8 in actual damages is a "runaway jury".... I pity you.
If the law says the judge can award $80k per violation, while outrageous, there is nothing retarded about a judge doing so.
The "law" in the United States is the statutes AND the caselaw. There is a great body of caselaw saying that copyright statutory damages should not be more than approximately 4 times the actual damages. Under that law, the judge should not have allowed the jury any discretion to award more than $750 per infringed work, since $750 is approximately 2200 times the actual damages.
I would like you to read my brief explaining why Gore and BMW are indeed applicable, and tell me where I'm wrong.
A judicial system that allows somebody to be completely destroyed (which is what enforcing the judgement would do in such a case, since effectively it would deprive her of more than her entire expected lifetime earnings) for what is evidently a trivial matter, is broken. If higher courts will not provide a remedy, then they have failed as courts of equity - which would suggest a defect in the US Constitution.
I agree. However, I think Judge Davis will not allow this verdict to stand.
I don't think the "intent to make profits" should matter at all.
It's relevant; it's just not dispositive. There is a long line of cases -- all of them commercial cases in which the defendant "intended to make profits" -- in which the Courts have held that statutory damages are permissible within the range of 2 to 4 times the actual damages.
It is a factor for the Court to consider. But its presence would not authorize just allowing a jury to do any crazy thing it feels like, like this runaway jury did.
In my simple non-lawyer opinion, the appeal will fail miserably.
Well you're wrong about several things, so your conclusion is wrong.
1. It's not an attack on the statute, but on the award.
2. It's not an appeal.
3. There is nothing in the record to establish a penny in actual damages.
4. There is no such thing as "peripheral" damages.
There is nothing wrong with "simple non-lawyer opinion[s]"; there is, however, something wrong with baseless opinions.
Wasn't it the jury that made that award not the judge? Isn't there also a long history of excessive awards by juries being overturned?
Yes and yes.
I'm fairly sure it was the Jury that decided on damages, not the judge.
Yes but it was the Judge who incorrectly gave them the latitude to do so. Under well settled principles of copyright law, he ought not to have allowed more than $750 per infringed "work".
I'm actually suprised how little press attention has been paid to this court ruling. This could be a very very big thing if applied to other digital content. http://deancollinsblog.blogspot.com/2008/08/cloudification-of-your-content.html
Me too. I was even surprised at how little attention Slashdot paid to it. Half the people on Slashdot complain all the time about the MAI decision; here was a decision limiting the MAI decision's scope. (I wish the Court had simply rejected the MAI court's reasoning, but maybe it will do that one of these days in another case).
As a practical matter, in this case, the Supreme Court has "allowed" Cablevision to proceed with its online DVR program.
Judge Chin "forbade" it; the Second Circuit "allowed" it; and the Supreme Court "allowed" the Second Circuit decision to be the final word.
having read the opinion and cited its reasoning extensively in a law review article I just authored
Here's a copy of the decision for those of you who might not have read it.
As to the reporting of it, most reporters usually report it that way. Lawyers (and law students) know that a denial of certiorari is not an affirmance, but merely a decision not to review the decision.
Here's the actual statute.
They have never been able to offer any proof that a copy on someone's computer was "illicit". They have, however, in ex parte proceedings, convinced one or more judges who were not knowledgeable about technology that that was the case.
Well, 2 out of 4 on attorney fees (with an appeal pending) doesn't seem all that a statistic from the RIAA's point of view (given the settlement amounts elsewhere), if the fees were the 100k and 60k (-ish) amounts I read. At this point suing random people chosen by educated guess seems like a viable strategy from an economic sense. At what point does the legal system say "enough is enough, give me something solid or cut this shit out"? Given that, from the case names, the RIAA itself isn't a party in any of them (the individual labels are), proving there's a RIAA-wide strategy of bringing spurious cases involves not only saying one individual entity is operating under such a strategy, but also that there is a concerted effort to make it happen. It seems a bit complex...
It's not "RIAA-wide". Only 4 RIAA members, the big 4 record labels, are behind the litigation campaign. They use the RIAA as a front, to mask their collusion.
what gives the RIAA the right to represent these entities, and still be immune from RICO?
Jane, in my personal opinion they're not immune from RICO. They've committed predicate crimes, it's a racketeering activity. I don't see any immunity at all.
The RIAA has done some serious nit-picking of its own. Given their behavior, the question becomes, does the defense stoop to their level, stay scrupulously above that level, or... . ... only nit-pick when they think the judge won't censor them
My personal philosophy is NEVER to make marginal, "nit picking" arguments. Just because the RIAA lawyers practice law like sleezes doesn't mean that I'm going to lower my standards for how I conduct myself.
Outside cases that settle, is getting attorney fees the rule, or were those cases exceptional?
There were only a couple of cases in which the defendant prevailed and pushed for attorneys fees. I can only think of 4 offhand. In 2 the motion was granted, in 2 denied, but one of the 2 denials -- Lava v. Amurao -- is, as I noted, on appeal.
If that's really what they say, then the law books are just wrong.
Oh. So you're God. Sorry, I didn't know.
Me I'm just a lawyer, who follows the law.