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Tenenbaum Appeal Heard: Is It OK to Make Someone Pay $675K for 30 Songs?

57 points by grellas 16y ago

mdemare 16y ago
Please correct the title. Tanenbaum is the renowned ast of Minix fame; Tenenbaum is the hapless guy being sued by the RIAA.
joshes 16y ago
It's okay if the Justice Department has the back of your entire industry.
Construct 16y ago
It is refreshing to see judges questioning the nature of the charges and exposing the fact that current copyright laws weren't really developed with file-sharing in mind. One of the judges immediately jumps in and says that Congress could have made an exception, but didn't. Harrow points out that perhaps it didn't because the result would naturally be absurd: the idea that someone sitting at home, listening to music, would suddenly be liable for billions of dollars, doesn't make any sense. Even worse, the RIAA has not (to my knowledge) provided any evidence that Tenenbaum actually distributed the works, only that he made them available by participating in a BitTorrent swarm.
- tzs 16y ago
  This reminds me of a classic case in torts. Three hunters went out. They got separated so that you had two on one side of clearing, one on the other. A bird took off between the two groups. The group of two shot at the bird. One got the bird, and one got the third hunter. The third hunter sued the first two for his medical expenses. The first two each raised the defense that there was no proof that they were the one that shot the third. They each maintained that they were the one that hit the bird. They were both found liable. One had actually shot the third. The other, by taking a reckless shot in that direction at the same time, had made it so that the identity of the shooter could not be determined, thus creating the situation that made it so blame could not be accurately assigned. It seems to me that putting a copyrighted work up on P2P without authorization from the copyright owner is similar. You are doing something that can only serve one of two purposes: (1) to directly infringe copyright, or (2) to obscure who is directly infringing copyright. Arguably, copyright law could be read as covering this. 17 USC 106, the section that lists the exclusive rights of the copyright holder, says the copyright holder has the exclusive rights to do those things and to authorize those things. I wonder if one could argue that when you put a file up on P2P without permission, you are authorizing the distribution of the file, and so violating the exclusive right of the copyright owner to authorize distribution (regardless of whether or not anyone actually grabs the file from you)?
  - radu_floricica 16y ago
    And I'm sure the third hunter got his medical expenses reimbursed - not an arbitrary amount of money based on the best case scenario of what he could have done with his time. The problem here isn't the blame, it's the fact that the maximum possible damage the defendant inflicted (price of song x no of downloads) is still much lower then the prescribed penalty - probably order of magnitudes lower.
    - Silhouette 16y ago
      > The problem here isn't the blame, it's the fact that the maximum possible damage the defendant inflicted (price of song x no of downloads) is still much lower then the prescribed penalty - probably order of magnitudes lower. I'll concede you that point if you'll let me impose mandatory monitoring of all Internet use sufficient that everyone else who subsequently shared the file can also be caught and fairly prosecuted. Otherwise, the viral nature of infringement does matter, and trying to cap the damage in absolute terms as you have done here is no more realistic than trying to claim the astronomical sums based on a loss of hypothetical sales that Big Media keep arguing.
      - nitrogen 16y ago
        Regardless of the viral nature of any behavior, a mere participant in the network should not be responsible for the behavior of others. Edit: I think this raises a larger question: in the modern technology-enabled world, where large-scale crimes can be committed in a distributed fashion and in most cases there is no kingpin to take down, what is the law to do, and what are the people to do, since each individual person is causing very little of the total damage? I don't think holding the members of an organization responsible for the crimes of other members of the organization works in this case, since there is no organization.
        Silhouette 16y ago
        > Regardless of the viral nature of any behavior, a mere participant in the network should not be responsible for the behavior of others. I don't think it is fair to dismiss the viral nature so lightly. For example, it is not completely unreasonable to consider in law that the first person to share material is ultimately responsible for everyone who subsequently copies it, since without their action, the other copies would not have been possible. By the same argument, it is not completely unreasonable to hold each person in the network responsible for the future distribution that occurs based on the sharing they did. Now, that might not be very practical, if you have to demonstrate the number of copies that were ultimately made base on a single original. Moreover, in some cases, it might lead to large damages awards, which we might or might not consider sensible given the relative power of the parties involved and the nature and consequences of the illegal act. On the flip side, the bottom line is that the copyright holder is the one who is not breaking the law in these cases, and if you don't provide a practically effective way for them to enforce their rights under the law, then the innocent party is losing out. (I am not contending that Big Media are saints or that they should not be held accountable for any legally or ethically dubious practices they might adopt. I just think that is a separate debate.) > I think this raises a larger question: in the modern technology-enabled world, where large-scale crimes can be committed in a distributed fashion and in most cases there is no kingpin to take down, what is the law to do, and what are the people to do, since each individual person is causing very little of the total damage? Exactly. It is a difficult question. I just don't personally buy the theory that the wronged party, who typically has practical access to redress only via civil lawsuits that probably cannot be cost-effectively brought under many western legal systems today, should be the one that loses out. I think the presumption should be that the network are collectively liable for the actual damage caused, that in the absence of ability to read minds it is reasonable to assume one actual (not hypothetical) copy has a value equivalent to the cheapest legitimate purchase price, and that the proportion of the cost paid by any individual member of the network should be such that a copyright holder can expect to regain their actual losses (but no more than that) through reasonable legal means. That basically means that if you infringe but it is possible for the copyright holder to trace the consequences with reasonable effort, you will personally only be responsible for the damages that can be proven attributable to your own sharing, which will probably be a significant deterrent but won't be bankrupting most people with the kinds of silly awards we see today. On the other hand, if you actively choose not only to break the law but to do so via an anonymising network that can cause unknown damage with the intent of concealing your own and your accomplices' identities, then if you're the guy they catch, it sucks to be you.
Locke1689 16y ago
For anyone listening to the oral arguments, I was really impressed by Paul Clement and really unimpressed by the EFF. The law student (Harrow) was fairly convincing as well, although it seemed like he needed a bit more practice.
- mattdeboard 16y ago
  I was listening to the facts of his arguments, not the quality of his elocution. Paul Clement vis a vis Paul Clement's arguments was utterly unimpressive.
  - Locke1689 16y ago
    I disagreed with him in many places, but I still thought he made a good argument.
tobylane 16y ago
I sometimes count my music library in terms of money saved (in the insane world that a pirated album is a lost sale), it's currently something like £8k because I really have no idea of how many albums I have. Should I start counting by how much I'd get sued? It's over a third of a trillion going by this court.
- tzs 16y ago
  Did you pay for any of it, or is your entire library pirated?
  - falcolas 16y ago
    Wouldn't matter according to the original ruling, if it was ever listed in a file sharing program as available for distribution.
  - tobylane 16y ago
    Paid for nothing, had previously owned ~20 albums, got ~10 albums for free (Jamendo). I don't seed, seeders will hate this, anti-piraters may like this. I have no reason to do it, unlimited, p2p-allowing internet. This is my third music library from p2p (and first backed-up).
- techiferous 16y ago
  I've always been suspicious of the ethics of pirated music and I sincerely want to know how people who pirate music justify it. From my perspective, a musician put forth a lot of effort and cost into creating a piece of music. At that point, I consider that the musician owns what they have created and can choose whether to keep their music to themselves or share it with the wider world. From my point of view it is the musician who gets to decide what they want to do with their work: sell it through a record label, sell it independently, give it away for free. As a consumer of the music I don't think it's in my place to make the choice for the musician about what they want to do with their work. Is there something I'm missing? Am I framing it the wrong way? Or am I right in thinking that people who pirate music are unilaterally making the decision for the original musicians on how their work should be distributed?
mdemare 16y ago
It's not in the article, but the case is being heard by the First Circuit.

57 points by grellas 16y ago

Please correct the title. Tanenbaum is the renowned ast of Minix fame; Tenenbaum is the hapless guy being sued by the RIAA.

joshes 16y ago

It's okay if the Justice Department has the back of your entire industry.

Construct 16y ago

It is refreshing to see judges questioning the nature of the charges and exposing the fact that current copyright laws weren't really developed with file-sharing in mind. One of the judges immediately jumps in and says that Congress could have made an exception, but didn't. Harrow points out that perhaps it didn't because the result would naturally be absurd: the idea that someone sitting at home, listening to music, would suddenly be liable for billions of dollars, doesn't make any sense. Even worse, the RIAA has not (to my knowledge) provided any evidence that Tenenbaum actually distributed the works, only that he made them available by participating in a BitTorrent swarm.

tzs 16y ago
This reminds me of a classic case in torts. Three hunters went out. They got separated so that you had two on one side of clearing, one on the other. A bird took off between the two groups. The group of two shot at the bird. One got the bird, and one got the third hunter. The third hunter sued the first two for his medical expenses. The first two each raised the defense that there was no proof that they were the one that shot the third. They each maintained that they were the one that hit the bird. They were both found liable. One had actually shot the third. The other, by taking a reckless shot in that direction at the same time, had made it so that the identity of the shooter could not be determined, thus creating the situation that made it so blame could not be accurately assigned. It seems to me that putting a copyrighted work up on P2P without authorization from the copyright owner is similar. You are doing something that can only serve one of two purposes: (1) to directly infringe copyright, or (2) to obscure who is directly infringing copyright. Arguably, copyright law could be read as covering this. 17 USC 106, the section that lists the exclusive rights of the copyright holder, says the copyright holder has the exclusive rights to do those things and to authorize those things. I wonder if one could argue that when you put a file up on P2P without permission, you are authorizing the distribution of the file, and so violating the exclusive right of the copyright owner to authorize distribution (regardless of whether or not anyone actually grabs the file from you)?
- radu_floricica 16y ago
  And I'm sure the third hunter got his medical expenses reimbursed - not an arbitrary amount of money based on the best case scenario of what he could have done with his time. The problem here isn't the blame, it's the fact that the maximum possible damage the defendant inflicted (price of song x no of downloads) is still much lower then the prescribed penalty - probably order of magnitudes lower.
  - Silhouette 16y ago
    > The problem here isn't the blame, it's the fact that the maximum possible damage the defendant inflicted (price of song x no of downloads) is still much lower then the prescribed penalty - probably order of magnitudes lower. I'll concede you that point if you'll let me impose mandatory monitoring of all Internet use sufficient that everyone else who subsequently shared the file can also be caught and fairly prosecuted. Otherwise, the viral nature of infringement does matter, and trying to cap the damage in absolute terms as you have done here is no more realistic than trying to claim the astronomical sums based on a loss of hypothetical sales that Big Media keep arguing.
    - nitrogen 16y ago
      Regardless of the viral nature of any behavior, a mere participant in the network should not be responsible for the behavior of others. Edit: I think this raises a larger question: in the modern technology-enabled world, where large-scale crimes can be committed in a distributed fashion and in most cases there is no kingpin to take down, what is the law to do, and what are the people to do, since each individual person is causing very little of the total damage? I don't think holding the members of an organization responsible for the crimes of other members of the organization works in this case, since there is no organization.
      - Silhouette 16y ago
        > Regardless of the viral nature of any behavior, a mere participant in the network should not be responsible for the behavior of others. I don't think it is fair to dismiss the viral nature so lightly. For example, it is not completely unreasonable to consider in law that the first person to share material is ultimately responsible for everyone who subsequently copies it, since without their action, the other copies would not have been possible. By the same argument, it is not completely unreasonable to hold each person in the network responsible for the future distribution that occurs based on the sharing they did. Now, that might not be very practical, if you have to demonstrate the number of copies that were ultimately made base on a single original. Moreover, in some cases, it might lead to large damages awards, which we might or might not consider sensible given the relative power of the parties involved and the nature and consequences of the illegal act. On the flip side, the bottom line is that the copyright holder is the one who is not breaking the law in these cases, and if you don't provide a practically effective way for them to enforce their rights under the law, then the innocent party is losing out. (I am not contending that Big Media are saints or that they should not be held accountable for any legally or ethically dubious practices they might adopt. I just think that is a separate debate.) > I think this raises a larger question: in the modern technology-enabled world, where large-scale crimes can be committed in a distributed fashion and in most cases there is no kingpin to take down, what is the law to do, and what are the people to do, since each individual person is causing very little of the total damage? Exactly. It is a difficult question. I just don't personally buy the theory that the wronged party, who typically has practical access to redress only via civil lawsuits that probably cannot be cost-effectively brought under many western legal systems today, should be the one that loses out. I think the presumption should be that the network are collectively liable for the actual damage caused, that in the absence of ability to read minds it is reasonable to assume one actual (not hypothetical) copy has a value equivalent to the cheapest legitimate purchase price, and that the proportion of the cost paid by any individual member of the network should be such that a copyright holder can expect to regain their actual losses (but no more than that) through reasonable legal means. That basically means that if you infringe but it is possible for the copyright holder to trace the consequences with reasonable effort, you will personally only be responsible for the damages that can be proven attributable to your own sharing, which will probably be a significant deterrent but won't be bankrupting most people with the kinds of silly awards we see today. On the other hand, if you actively choose not only to break the law but to do so via an anonymising network that can cause unknown damage with the intent of concealing your own and your accomplices' identities, then if you're the guy they catch, it sucks to be you.

Locke1689 16y ago

For anyone listening to the oral arguments, I was really impressed by Paul Clement and really unimpressed by the EFF. The law student (Harrow) was fairly convincing as well, although it seemed like he needed a bit more practice.

mattdeboard 16y ago
I was listening to the facts of his arguments, not the quality of his elocution. Paul Clement vis a vis Paul Clement's arguments was utterly unimpressive.
- Locke1689 16y ago
  I disagreed with him in many places, but I still thought he made a good argument.

tobylane 16y ago

I sometimes count my music library in terms of money saved (in the insane world that a pirated album is a lost sale), it's currently something like £8k because I really have no idea of how many albums I have. Should I start counting by how much I'd get sued? It's over a third of a trillion going by this court.

tzs 16y ago
Did you pay for any of it, or is your entire library pirated?
- falcolas 16y ago
  Wouldn't matter according to the original ruling, if it was ever listed in a file sharing program as available for distribution.
- tobylane 16y ago
  Paid for nothing, had previously owned ~20 albums, got ~10 albums for free (Jamendo). I don't seed, seeders will hate this, anti-piraters may like this. I have no reason to do it, unlimited, p2p-allowing internet. This is my third music library from p2p (and first backed-up).
techiferous 16y ago
I've always been suspicious of the ethics of pirated music and I sincerely want to know how people who pirate music justify it. From my perspective, a musician put forth a lot of effort and cost into creating a piece of music. At that point, I consider that the musician owns what they have created and can choose whether to keep their music to themselves or share it with the wider world. From my point of view it is the musician who gets to decide what they want to do with their work: sell it through a record label, sell it independently, give it away for free. As a consumer of the music I don't think it's in my place to make the choice for the musician about what they want to do with their work. Is there something I'm missing? Am I framing it the wrong way? Or am I right in thinking that people who pirate music are unilaterally making the decision for the original musicians on how their work should be distributed?

mdemare 16y ago

It's not in the article, but the case is being heard by the First Circuit.