It is not "legislating from the bench" to declare a damages award, authorized by a statute, to be unconstitutional. The fundamental law of the United States is its constitution. When a statute violates the constitution, the judge has to say so. That is not legislating, that is applying the law. The US Supreme Court has said that "punitive awards" which are unreasonably disproportionate to the actual damages are unconstitutional.
Wired reports that, based on her previous decisions...
Huh, that's odd, I only found the article to list one case -- the TopRank suing the host of a tavern in 1996. And the statement she added as:
"A willful infringement, which the magistrate judge found, combined with a willful default, however, warrant an award greater and more significant than one which corresponds so closely to an estimated loss to the plaintiff,"
Are there more decisions I missed? Are we basing our image of this woman off of one action and one statement?
It's not a good indication but it's hardly conclusive. Things have changed with the advent of the internet since then. Here's to hoping, I guess, but I think we're being a bit unfair and too hasty.
eldavojohn, you are quite right to be skeptical of the Wired article. In fact, there is no basis for the author to have drawn the conclusion he did. The Top Rank case is a garden variety, 'bar and tavern' case, in which the statutory damages awarded are usually 2 to 4 times the actual damages. The Magistrate's decision was below the normal range, despite his finding of wilfulness. Judge Sotomayor merely raised the award to within the typical range. It appears that she awarded between 2 and 3 times the actual damages.
In RIAA-land that would translate to from 70 cents to $1.00, as opposed to from $750 to $150,000.
No reason in the world to think Judge Sotomayor would disregard a hundred years of Supreme Court precedent and dance to the RIAA's tune.
I don't see anything in the Top Rank decision which justifies the conclusion the Wired author has drawn. The only decision referred to was Top Rank v. Allerton Lounge, a typical 'bar and tavern' case. In those cases the statutory damages are frequently from 2 to 4 times the actual damages. The Magistrate appears to have awarded statutory damages on a 1:1 ratio. Judge Sotomayor raised the damages, but not wildly to some extreme multiple like what the RIAA looks for. It appears that her award was between 2 and 3 times the actual damages, which is within the usual range.
The RIAA seeks from 2,200 to 450,000 times the actual damages. It is well settled law that statutory damages awards have to bear a reasonable relationship to the actual damages, and in keeping with economic reality. And it is well settled law that excessive disproportion to the actual damages is unconstitutional, as a violation of the due process clause.
There is no reason in the world to think that Judge Sotomayor would consider imposing statutory damages of $750 to $150,000 as against plaintiff's 35-cent loss for the download of a single mp3 file.
In the unlikely event that the RIAA could prove the defendant was a "distributor" -- i.e. someone who disseminated copies to the public by selling them, or by other transfers of ownership, or by rentals, leases, or lending -- then of course the actual damages would be higher than 35 cents. But the RIAA would have to prove its actual damages, and then the court could award statutory damages greater than that sum, but -- under established Supreme Court precedent -- the award would be constitutionally suspect were the ratio greater than single digits.
WHOOPS. I FORMATTED MY PREVIOUS COMMENT INCORRECTLY. SORRY ABOUT THAT. HERE IT IS CORRECTLY FORMATTED:
What I wonder about is how, under these circumstances, the MediaSentry guy can take the stand and not take the 5th Amendment.
How is that going to affect anything though? Isn't it already well established what MediaSentry did? For what purpose would they be asked to take the stand at all? It seems like they've already taken care (according to the brief) to document and explain the methods they use (as well as they can anyway), so why would it be necessary to call them to the stand?
If we know what they did, and we know they did it without a required license (the irony of which is not lost on me), what else do we need to know?
That's easy. The guy from MediaSentry has to take the stand to explain what he did and lay a foundation for his bogus evidence. Then, on cross examination, or on 'voir dire', when he is asked about his licensing issues, he should -- if he is well advised by his family lawyer or a criminal lawyer -- take the Fifth. Because otherwise he would be admitting under oath to things that may well land him in a Minnesota prison.
If he does take the 5th, then all of his testimony and the materials would be stricken.
What I wonder about is how, under these circumstances, the MediaSentry guy can take the stand and not take the 5th Amendment.
How is that going to affect anything though? Isn't it already well established what MediaSentry did? For what purpose would they be asked to take the stand at all? It seems like they've already taken care (according to the brief) to document and explain the methods they use (as well as they can anyway), so why would it be necessary to call them to the stand?
If we know what they did, and we know they did it without a required license (the irony of which is not lost on me), what else do we need to know?
That's easy. The guy from MediaSentry has to take the stand to explain what he did and lay a foundation for his bogus evidence. Then, on cross examination, or on 'voir dire', when he is asked about his licensing issues, he should -- if he is well advised by his family lawyer or a criminal lawyer -- take the Fifth. Because otherwise he would be admitting under oath to things that may well land him in a Minnesota prison.
If he does take the 5th, then all of his testimony and the materials would be stricken.
Not so. Their phony "evidence" is fully subject to challenge in the second trial. My impression of the new legal team is that they are above average in tech-savvy... so I expect them to vigorously challenge the RIAA's junk evidence, and get most or all of it excluded.
Are we sure he didn't become a lawyer -- or at least didn't start taking (and reporting) on these sorts of cases -- solely to get modded up?
Obviously I want him on our side, but it'd be good to know the truth about his motivations.
I did it all for the karma.
Getting a law degree, passing the bar, taking on the RIAA all for Karma? NYCL, I love you man, the fight against the MAFIA wouldn't be the same without you, but WOW, that takes Karma whoring to a whole new level...
Yes I think it is arguable that I have taken Karma whoring to a whole new level. Back in 1974, 20-odd years before Slashdot had even been born, I had it all planned out. Cmdr Taco was placed on this earth in order to enable me to fulfill my destiny.
And now, all I have to do is sit back and reap the many rewards of my accumulated Slashdot karma, such as....... er....... er.......
Well let's put it this way:
1. Go to Bronx High School of Science, wear pocket protectors, establish nerd credentials. 2. Go to college. 3. Go to law school. 4. Work hard as lawyer. 5. Start blogging. 6. Get blog noticed on Slashdot. 7. Write many submissions and comments for Slashdot. 8. Accumulate much karma. 9. ???????? 10. Profit!!!
Who is this guy that he could jump in and go after them like this? Legal research takes time..
They're young and they're tech savvy. And I was quite surprised that they didn't ask for a modest adjournment, which I'm sure the judge would have granted them.
Are we sure he didn't become a lawyer -- or at least didn't start taking (and reporting) on these sorts of cases -- solely to get modded up?
Obviously I want him on our side, but it'd be good to know the truth about his motivations.
one of the major "decisions" I drew away from this was that the brief recommends against taking up the case because it is not a good test case
Yes that was one of the reasons given; but the brief also, point by point, refutes each and every substantive copyright law argument the plaintiffs' lawyers (including those now at DOJ) had made.
Supporters of free market (those most vocal about reducing government powers) maintain that free market would adjust itself accordingly.
The so-called 'supporters of free market' are basically liars and hypocrites, like the Big 4 record companies hiding behind the RIAA. They would say they believe in free markets, but they do everything they can to get the government to bail them out of the fact that they have lost in the marketplace, and their collusion with their competitors is anything but a 'free market'.
Ray
being s[k]eptical is an important attribute for an engineer. It just might be true that many/. readers are engineers.
If people were screwed about one topic over years it is very likely that they do not believe something has changed just because the outcome of a few cases is different.
Yours typical cynical and skeptical./ reader;)
-S
I'm not asking anyone to give up their skepticism and cynicism; I'm certainly not giving up mine. I'm just pointing out that in this instance, something good happened. The DOJ took a position opposite to that taken by some of its own lawyers in this very case. That is an instance of the system working, as opposed to its malfunctioning. So we cynics and skeptics should take note that it happened, just as we take note of the myriad malfunctions. Unremitting negativity is as false as blind optimism.
He cares enough about copyright to appoint former RIAA lawyers to the DOJ
The guy he appointed to the top spot was a law school chum, and headed the Obama transition team. Even I do not think he was appointed because he represented the content cartel in copyright infringement cases. He was hired because of their relationship and because Obama obviously placed great trust in him.
If you mean that treaties have the same force as statutes enacted by Congress that do not violate the Constitution, then you are right.
That's not exactly correct. If a treaty provision conflicts with, or expands upon, an existing statute, it is invalid. See, e.g., Elektra v. Barker, which held that the WIPO copyright treaty could not vary the terms of the Copyright Act.
What we probably really need is smaller corporations. Another part of the Reagan legacy was to relegate antitrust enforcement and securities law enforcement to a back seat. We need a strong dose of government to start moving away from monopolization, anticompetitive practices, and financial gamesmanship. And to move towards investment in the people who live here, with health care, education, child care, housing for the homeless, etc. Then when we have made some progress in those areas, we can start talking about reducing the size of government. But not until then.
He's not in bed with the **AA the way a lot of Slashdotters like to think.
Evidence indicates otherwise.
I have been quick to point out 'tea leaves' suggesting that he was being overly generous to the content cartel in his appointments. And I pointed out the 2 misguided, fervently pro-RIAA, briefs his DOJ filed in 2 'RIAA v. End User' cases (if I weren't a professional I would call them "dumbass", but of course I would never use such a term). But fairmindedness requires us to see this new filing, which is at the United States Supreme Court level, as evidence to the contrary. This brief directly contradicts the things the pro-RIAA appointees argued in this very case.
As far as I am concerned, if every brief Obama's DOJ files is as fair minded and scholarly as this one was, I will not care if the conclusions drawn by the brief agree with, or disagree with, the conclusions I have drawn.
All I ask for is fairness. A lawyer who disagrees with me, but does so with integrity and honor, is okay in my book.
Slashdot Mirror
The article in "Technically Legal" is absolutely correct.
It is not "legislating from the bench" to declare a damages award, authorized by a statute, to be unconstitutional. The fundamental law of the United States is its constitution. When a statute violates the constitution, the judge has to say so. That is not legislating, that is applying the law. The US Supreme Court has said that "punitive awards" which are unreasonably disproportionate to the actual damages are unconstitutional.
Wired reports that, based on her previous decisions ...
Huh, that's odd, I only found the article to list one case -- the TopRank suing the host of a tavern in 1996. And the statement she added as:
"A willful infringement, which the magistrate judge found, combined with a willful default, however, warrant an award greater and more significant than one which corresponds so closely to an estimated loss to the plaintiff,"
Are there more decisions I missed? Are we basing our image of this woman off of one action and one statement? It's not a good indication but it's hardly conclusive. Things have changed with the advent of the internet since then. Here's to hoping, I guess, but I think we're being a bit unfair and too hasty.
eldavojohn, you are quite right to be skeptical of the Wired article. In fact, there is no basis for the author to have drawn the conclusion he did. The Top Rank case is a garden variety, 'bar and tavern' case, in which the statutory damages awarded are usually 2 to 4 times the actual damages. The Magistrate's decision was below the normal range, despite his finding of wilfulness. Judge Sotomayor merely raised the award to within the typical range. It appears that she awarded between 2 and 3 times the actual damages.
In RIAA-land that would translate to from 70 cents to $1.00, as opposed to from $750 to $150,000.
No reason in the world to think Judge Sotomayor would disregard a hundred years of Supreme Court precedent and dance to the RIAA's tune.
I don't see anything in the Top Rank decision which justifies the conclusion the Wired author has drawn. The only decision referred to was Top Rank v. Allerton Lounge, a typical 'bar and tavern' case. In those cases the statutory damages are frequently from 2 to 4 times the actual damages. The Magistrate appears to have awarded statutory damages on a 1:1 ratio. Judge Sotomayor raised the damages, but not wildly to some extreme multiple like what the RIAA looks for. It appears that her award was between 2 and 3 times the actual damages, which is within the usual range.
The RIAA seeks from 2,200 to 450,000 times the actual damages. It is well settled law that statutory damages awards have to bear a reasonable relationship to the actual damages, and in keeping with economic reality. And it is well settled law that excessive disproportion to the actual damages is unconstitutional, as a violation of the due process clause.
There is no reason in the world to think that Judge Sotomayor would consider imposing statutory damages of $750 to $150,000 as against plaintiff's 35-cent loss for the download of a single mp3 file.
In the unlikely event that the RIAA could prove the defendant was a "distributor" -- i.e. someone who disseminated copies to the public by selling them, or by other transfers of ownership, or by rentals, leases, or lending -- then of course the actual damages would be higher than 35 cents. But the RIAA would have to prove its actual damages, and then the court could award statutory damages greater than that sum, but -- under established Supreme Court precedent -- the award would be constitutionally suspect were the ratio greater than single digits.
What I wonder about is how, under these circumstances, the MediaSentry guy can take the stand and not take the 5th Amendment.
How is that going to affect anything though? Isn't it already well established what MediaSentry did? For what purpose would they be asked to take the stand at all? It seems like they've already taken care (according to the brief) to document and explain the methods they use (as well as they can anyway), so why would it be necessary to call them to the stand? If we know what they did, and we know they did it without a required license (the irony of which is not lost on me), what else do we need to know?
That's easy. The guy from MediaSentry has to take the stand to explain what he did and lay a foundation for his bogus evidence. Then, on cross examination, or on 'voir dire', when he is asked about his licensing issues, he should -- if he is well advised by his family lawyer or a criminal lawyer -- take the Fifth. Because otherwise he would be admitting under oath to things that may well land him in a Minnesota prison. If he does take the 5th, then all of his testimony and the materials would be stricken.
What I wonder about is how, under these circumstances, the MediaSentry guy can take the stand and not take the 5th Amendment. How is that going to affect anything though? Isn't it already well established what MediaSentry did? For what purpose would they be asked to take the stand at all? It seems like they've already taken care (according to the brief) to document and explain the methods they use (as well as they can anyway), so why would it be necessary to call them to the stand?
If we know what they did, and we know they did it without a required license (the irony of which is not lost on me), what else do we need to know?
That's easy. The guy from MediaSentry has to take the stand to explain what he did and lay a foundation for his bogus evidence. Then, on cross examination, or on 'voir dire', when he is asked about his licensing issues, he should -- if he is well advised by his family lawyer or a criminal lawyer -- take the Fifth. Because otherwise he would be admitting under oath to things that may well land him in a Minnesota prison.
If he does take the 5th, then all of his testimony and the materials would be stricken.
I've always wondered what the Statue of limitations looked like. I mean is it a large hand in the universal "STOP" position?
Of course not. It's a tall lady with flowing robes with a book in one hand and her other hand in the universal "STOP" position.
their "evidence" is still accepted as evidence
Not so. Their phony "evidence" is fully subject to challenge in the second trial. My impression of the new legal team is that they are above average in tech-savvy... so I expect them to vigorously challenge the RIAA's junk evidence, and get most or all of it excluded.
And how does it feel now, that your master plan has finally come to fruition and you have karma to burn?
I guess I feel.... pretty stupid.
Are we sure he didn't become a lawyer -- or at least didn't start taking (and reporting) on these sorts of cases -- solely to get modded up? Obviously I want him on our side, but it'd be good to know the truth about his motivations.
I did it all for the karma.
Getting a law degree, passing the bar, taking on the RIAA all for Karma? NYCL, I love you man, the fight against the MAFIA wouldn't be the same without you, but WOW, that takes Karma whoring to a whole new level...
Yes I think it is arguable that I have taken Karma whoring to a whole new level. Back in 1974, 20-odd years before Slashdot had even been born, I had it all planned out. Cmdr Taco was placed on this earth in order to enable me to fulfill my destiny.
And now, all I have to do is sit back and reap the many rewards of my accumulated Slashdot karma, such as....... er....... er.......
Well let's put it this way:
1. Go to Bronx High School of Science, wear pocket protectors, establish nerd credentials.
2. Go to college.
3. Go to law school.
4. Work hard as lawyer.
5. Start blogging.
6. Get blog noticed on Slashdot.
7. Write many submissions and comments for Slashdot.
8. Accumulate much karma.
9. ????????
10. Profit!!!
What I wonder about is how, under these circumstances, the MediaSentry guy can take the stand and not take the 5th Amendment.
Who is this guy that he could jump in and go after them like this? Legal research takes time..
They're young and they're tech savvy. And I was quite surprised that they didn't ask for a modest adjournment, which I'm sure the judge would have granted them.
Maybe that's the thing about being young.
I wasn't aware that anything MediaSentry has brought into court was anywhere near something we'd call evidence. Vague screenshots, unverifyable logs?
It really isn't. But we need defense lawyers to be in there challenging it, and explaining that to the Judges.
Are we sure he didn't become a lawyer -- or at least didn't start taking (and reporting) on these sorts of cases -- solely to get modded up? Obviously I want him on our side, but it'd be good to know the truth about his motivations.
I did it all for the karma.
one of these days you will get your head out of your ass
It's getting a little late for that.
and find out that those who rule us aren't alien beings
I already knew that.
but human beings
I already knew that.
just like you.
Not exactly.
it will probably coincide roughly around the time you realize that you yourself are not some vanguard of moral precision,
Damn you. Are you trying to break my bubble? My parents probably thought they were training me for Messiah.
nor whatever other heroes you have right now that you somehow view as morally perfect
The only morally perfect heroes I had are deceased. They were few in number. I am not in their league.
one of the major "decisions" I drew away from this was that the brief recommends against taking up the case because it is not a good test case
Yes that was one of the reasons given; but the brief also, point by point, refutes each and every substantive copyright law argument the plaintiffs' lawyers (including those now at DOJ) had made.
Supporters of free market (those most vocal about reducing government powers) maintain that free market would adjust itself accordingly.
The so-called 'supporters of free market' are basically liars and hypocrites, like the Big 4 record companies hiding behind the RIAA. They would say they believe in free markets, but they do everything they can to get the government to bail them out of the fact that they have lost in the marketplace, and their collusion with their competitors is anything but a 'free market'.
Ray being s[k]eptical is an important attribute for an engineer. It just might be true that many /. readers are engineers.
If people were screwed about one topic over years it is very likely that they do not believe something has changed just because the outcome of a few cases is different.
Yours typical cynical and skeptical ./ reader ;)
-S
I'm not asking anyone to give up their skepticism and cynicism; I'm certainly not giving up mine. I'm just pointing out that in this instance, something good happened. The DOJ took a position opposite to that taken by some of its own lawyers in this very case. That is an instance of the system working, as opposed to its malfunctioning. So we cynics and skeptics should take note that it happened, just as we take note of the myriad malfunctions. Unremitting negativity is as false as blind optimism.
He cares enough about copyright to appoint former RIAA lawyers to the DOJ
The guy he appointed to the top spot was a law school chum, and headed the Obama transition team. Even I do not think he was appointed because he represented the content cartel in copyright infringement cases. He was hired because of their relationship and because Obama obviously placed great trust in him.
The brief basically says that there're no important issues, so SCOTUS does not need to get involved.
Yes it says that. But it also says a whole lot more, and point-by-point rejects the film companies' substantive arguments.
All in all, I found that to be a nice piece of news. And I'm beginning to harbour some nice suspicions.
Well, like I say... I'm not ready to genuflect just yet. But this brief was good news.
If you mean that treaties have the same force as statutes enacted by Congress that do not violate the Constitution, then you are right.
That's not exactly correct. If a treaty provision conflicts with, or expands upon, an existing statute, it is invalid. See, e.g., Elektra v. Barker, which held that the WIPO copyright treaty could not vary the terms of the Copyright Act.
What we probably really need is smaller corporations. Another part of the Reagan legacy was to relegate antitrust enforcement and securities law enforcement to a back seat. We need a strong dose of government to start moving away from monopolization, anticompetitive practices, and financial gamesmanship. And to move towards investment in the people who live here, with health care, education, child care, housing for the homeless, etc. Then when we have made some progress in those areas, we can start talking about reducing the size of government. But not until then.
He's not in bed with the **AA the way a lot of Slashdotters like to think.
Evidence indicates otherwise.
I have been quick to point out 'tea leaves' suggesting that he was being overly generous to the content cartel in his appointments. And I pointed out the 2 misguided, fervently pro-RIAA, briefs his DOJ filed in 2 'RIAA v. End User' cases (if I weren't a professional I would call them "dumbass", but of course I would never use such a term). But fairmindedness requires us to see this new filing, which is at the United States Supreme Court level, as evidence to the contrary. This brief directly contradicts the things the pro-RIAA appointees argued in this very case.
As far as I am concerned, if every brief Obama's DOJ files is as fair minded and scholarly as this one was, I will not care if the conclusions drawn by the brief agree with, or disagree with, the conclusions I have drawn.
All I ask for is fairness. A lawyer who disagrees with me, but does so with integrity and honor, is okay in my book.
Representation irregardless of personal feel[ing]s to me is a principle.
Not in my book. In my book that's the absence of principle.