6 ms·

The $22,500 MP3: Does The Constitution Protect People Or Just Corporations?

31 points by brlewis 17y ago

quoderat 17y ago
Nominally, it protects both. But because some corporations have vastly more money and resources than the people they wish to bully (individuals, in this case), the outcomes are distorted, not to mention the lobbying power of a corporation vs. that of an individual.
- jacquesm 17y ago
  It's especially the latter that is the cause of a lot of problems. Lobbying has its uses but for the most part it is simply a channel that ought not to even exist. I don't recall any modern democracy that includes a 'right to lobby' in its charter. Corporations already have an edge over us 'regular humans', they're immortal. Lobbying skews it to the point where there effectively is class justice, corporations can pay to get their laws passed and the general people get to vote who passes the laws. It's like being able to inject something after the filtering function has already been applied.
seertaak 17y ago
The author mistakes "downloading" for "sharing", and it all goes downhill from there. Based on this and a series of other false assumptions and deductions, he arrives at the conclusion that the award of $675,000 for the plaintiffs is unconstitutional. This is pretty silly stuff, especially from someone claiming to be a lawyer.
- MaxwellKennerly 17y ago
  Please see my reply below -- your distinction isn't relevant, because the record company elected statutory damages, thereby eliminating the need to prove any actual damages from "sharing." The downloading itself is all they needed.
  - jacquesm 17y ago
    For all we know those files were deleted by the recipients in which case there is no damage. Normally in a lawsuit where you claim damages you have to prove that those damages actually exist.
  - seertaak 17y ago
    > your distinction isn't relevant, because the record company elected statutory damages, thereby eliminating the need to prove an actual damages from "sharing." a) The plaintiff is not a "record company", it is: SONY BMG Music Entertainment, Warner Bros. Records, Inc., Atlantic Recording Corporation, Arista Records LLC, and UMG Recordings, Inc. If you can't even get the basic facts of the case right, how can you be trusted in your opinion as to whether the damages awarded are constitutional, or anything else regarding the case, for that matter? b) While it's true that downloading is all that is "needed" for eliciting statutory damages in a case like this (being a form of copyright infringement), it is not true to say that the "distinction" isn't relevant. As you ought to know, the jury is left considerable discretion in its decision of how large to make the damages. The nature of the infringement has an impact on the damages awarded (this wide leeway for statutory damages exists precisely because the impact of copyright infringement is hard to measure and varies widely according to circumstances), so it is ridiculous to claim that Mr. Tenenbaum's sharing of the files had nothing to do with the damages awarded. Just to underscore this point, look at Judge Gertner's order granting the plaintiffs' rule 50 motion on liability: <snip>4 Judge Nancy Gertner: Electronic ORDER entered with respect to reconsideration of rule 50 motion: The Court has reviewed the transcript of the defendant's testimony, which had not been before the Court at the time of the earlier ruling. The last question asked by Mr. Reynolds on direct examination was Question: "Mr. Tenenbaum, on the stand now, are you now admitting liability for downloading and distributing all 30 sound recordings that are at issue and listed on Exhibits 55 and 56 of the exhibits?" Answer: "Yes." Notwithstanding the protestations of Tenenbaum's counsel, Tenenbaum's statement plainly admits liability on both downloading and distributing, does so in the very language of the statute (no "making available" ambiguity) and does so with respect to each and every sound recording at issue here. Thus, the Court reverses its earlier ruling; Rule 50 motion is granted with respect to infringement. The only issues for the jury are willfulness and damages. (Gertner, Nancy) </snip> Note that the order specifically mentions "distributing"; not just "downloading". You can find the instructions for the jury at http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Internet_Law/sony_tenenbaum_090731JuryInstructions.pdf http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Intern... . The nature of the infringement is mentioned in the instructions, as well as the financial impact on the plaintiff. How could sharing the file possibly be irrelevant to this?
URSpider94 17y ago
The statutory damages for copyright infringement were put into place when peer-to-peer infringement was unimaginable. They were clearly intended to dissuade businesses from engaging in wholesale copyright infringement for profit, say by selling pirated movies. Nonetheless, the law is the law, and I can't foresee even a committed grass-roots effort convincing lawmakers to reduce the statutory damages for willful infringement. The best bet would be to get a high court to determine that willful infringement doesn't apply when there is no profit motive for the infringer.
- vaksel 17y ago
  Napster's fines amounted to a grand total of little more than 1000 songs shared based on this compensation.
  - jacquesm 17y ago
    Exactly. This is way out of proportion. Professional pirates that operate a for-profit business were the reason these amounts were set, and their height is reflected by the potential profits of those pirates. To use those same penalties against ordinary citizens acting without a profit motive is madness.
joshfinnie 17y ago
I feel this whole issue needs to be explained more clearly. It isn't that these people downloaded the songs that are getting them in trouble. It is the fact that they allowed other people to download them from their shared libraries. If you could get in trouble for downloading illegally, then this person's argument makes sense, but he is comparing apples to oranges!
- christopherolah 17y ago
  Fortunately, we live in a legal system where one needs to _prove_ how much damage was done. The RIAA did not, according the the article, demonstrate anything beyond the value of the song, $0.99.
  - michael_dorfman 17y ago
    So, you're arguing that the fine should be $0.99 times the number of people who downloaded each song this person shared, times some kind of multiplier for punitive damanges?
    - joshfinnie 17y ago
      Well it should be even lower than $0.99. I would be shocked if Apple is making zero profit for their iTunes store. They are probably charged something like $0.75 a song per person. This should make for a good baseline for these cases.
    - jacquesm 17y ago
      That would be something that would probably be palatable to a lot of people. It is based in fact, not in some arbitrary figure pulled out of the air.
- MaxwellKennerly 17y ago
  I'm the author of the article. Let me clarify (this is hinted at with the asterisk footnote at the bottom of the post) what happened here: the record company elected, under the copyright statute, not to prove any actual damages and instead use "statutory damages." At that point, they didn't need to prove anything at all other than "infringement," which would include his own use of the music and of his making them available to others, regardless of how much infringement there really was. That's part of what's so preposterous about our copyright regime: it permits copyright holders to elect, at their discretion, to pursue an amorphous claim with fantastically huge damages that doesn't require they prove much. It's like if a slip and fall plaintiff could elect "statutory damages" of millions of dollars if they proved nothing more than that the defendant spilled something on the floor. Such would be swiftly declared unconstitutional.
grellas 17y ago
This is a classic case where a law passed to deter certain very serious activity (willful copyright infringement) now finds itself being applied to new circumstances where it falls with a particularly heavy and disproportional hand. The remedy needs to be tailored to the nature of the wrong - that is, the law needs refinement, not jettisoning. This can come from Congress or perhaps from judicial refinements via statutory interpretation. It will not come from some wild approach striking down the concept of statutory damages as unconstitutional. The article is way off on this.
- MaxwellKennerly 17y ago
  It's not as "off" as you think. Punitive damages limitations have already been applied to common law copyright cases, and numerous courts have considered, but not ruled on, their application to the statutory regime. But there's a more basic issue: it doesn't matter if the damages arise by statute or common law, the constitution protects the defendant all the same. Congress has no power to override a due process protection.
  - grellas 17y ago
    I obviously agree with the basic issue that Congress has no power to override a due process protection. I just don't think this approach to the problem is going anywhere. Mea culpa (and apologies), however, for overstating my point. There are two sides to this.
- timwiseman 17y ago
  Excellent point, but could you clarify how it could come about via statutory interpretation? As I understand it (which could easily be entirely wrong), barring some invalidation of the law, the plain reading clearly and unambiguously supports the awards the RIAA is getting in this case.
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31 points by brlewis 17y ago

Nominally, it protects both. But because some corporations have vastly more money and resources than the people they wish to bully (individuals, in this case), the outcomes are distorted, not to mention the lobbying power of a corporation vs. that of an individual.

jacquesm 17y ago
It's especially the latter that is the cause of a lot of problems. Lobbying has its uses but for the most part it is simply a channel that ought not to even exist. I don't recall any modern democracy that includes a 'right to lobby' in its charter. Corporations already have an edge over us 'regular humans', they're immortal. Lobbying skews it to the point where there effectively is class justice, corporations can pay to get their laws passed and the general people get to vote who passes the laws. It's like being able to inject something after the filtering function has already been applied.

seertaak 17y ago

The author mistakes "downloading" for "sharing", and it all goes downhill from there. Based on this and a series of other false assumptions and deductions, he arrives at the conclusion that the award of $675,000 for the plaintiffs is unconstitutional. This is pretty silly stuff, especially from someone claiming to be a lawyer.

MaxwellKennerly 17y ago
Please see my reply below -- your distinction isn't relevant, because the record company elected statutory damages, thereby eliminating the need to prove any actual damages from "sharing." The downloading itself is all they needed.
- jacquesm 17y ago
  For all we know those files were deleted by the recipients in which case there is no damage. Normally in a lawsuit where you claim damages you have to prove that those damages actually exist.
- seertaak 17y ago
  > your distinction isn't relevant, because the record company elected statutory damages, thereby eliminating the need to prove an actual damages from "sharing." a) The plaintiff is not a "record company", it is: SONY BMG Music Entertainment, Warner Bros. Records, Inc., Atlantic Recording Corporation, Arista Records LLC, and UMG Recordings, Inc. If you can't even get the basic facts of the case right, how can you be trusted in your opinion as to whether the damages awarded are constitutional, or anything else regarding the case, for that matter? b) While it's true that downloading is all that is "needed" for eliciting statutory damages in a case like this (being a form of copyright infringement), it is not true to say that the "distinction" isn't relevant. As you ought to know, the jury is left considerable discretion in its decision of how large to make the damages. The nature of the infringement has an impact on the damages awarded (this wide leeway for statutory damages exists precisely because the impact of copyright infringement is hard to measure and varies widely according to circumstances), so it is ridiculous to claim that Mr. Tenenbaum's sharing of the files had nothing to do with the damages awarded. Just to underscore this point, look at Judge Gertner's order granting the plaintiffs' rule 50 motion on liability: <snip>4 Judge Nancy Gertner: Electronic ORDER entered with respect to reconsideration of rule 50 motion: The Court has reviewed the transcript of the defendant's testimony, which had not been before the Court at the time of the earlier ruling. The last question asked by Mr. Reynolds on direct examination was Question: "Mr. Tenenbaum, on the stand now, are you now admitting liability for downloading and distributing all 30 sound recordings that are at issue and listed on Exhibits 55 and 56 of the exhibits?" Answer: "Yes." Notwithstanding the protestations of Tenenbaum's counsel, Tenenbaum's statement plainly admits liability on both downloading and distributing, does so in the very language of the statute (no "making available" ambiguity) and does so with respect to each and every sound recording at issue here. Thus, the Court reverses its earlier ruling; Rule 50 motion is granted with respect to infringement. The only issues for the jury are willfulness and damages. (Gertner, Nancy) </snip> Note that the order specifically mentions "distributing"; not just "downloading". You can find the instructions for the jury at http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Internet_Law/sony_tenenbaum_090731JuryInstructions.pdf http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Intern... . The nature of the infringement is mentioned in the instructions, as well as the financial impact on the plaintiff. How could sharing the file possibly be irrelevant to this?

URSpider94 17y ago

The statutory damages for copyright infringement were put into place when peer-to-peer infringement was unimaginable. They were clearly intended to dissuade businesses from engaging in wholesale copyright infringement for profit, say by selling pirated movies. Nonetheless, the law is the law, and I can't foresee even a committed grass-roots effort convincing lawmakers to reduce the statutory damages for willful infringement. The best bet would be to get a high court to determine that willful infringement doesn't apply when there is no profit motive for the infringer.

vaksel 17y ago
Napster's fines amounted to a grand total of little more than 1000 songs shared based on this compensation.
- jacquesm 17y ago
  Exactly. This is way out of proportion. Professional pirates that operate a for-profit business were the reason these amounts were set, and their height is reflected by the potential profits of those pirates. To use those same penalties against ordinary citizens acting without a profit motive is madness.

joshfinnie 17y ago

I feel this whole issue needs to be explained more clearly. It isn't that these people downloaded the songs that are getting them in trouble. It is the fact that they allowed other people to download them from their shared libraries. If you could get in trouble for downloading illegally, then this person's argument makes sense, but he is comparing apples to oranges!

christopherolah 17y ago
Fortunately, we live in a legal system where one needs to _prove_ how much damage was done. The RIAA did not, according the the article, demonstrate anything beyond the value of the song, $0.99.
- michael_dorfman 17y ago
  So, you're arguing that the fine should be $0.99 times the number of people who downloaded each song this person shared, times some kind of multiplier for punitive damanges?
  - joshfinnie 17y ago
    Well it should be even lower than $0.99. I would be shocked if Apple is making zero profit for their iTunes store. They are probably charged something like $0.75 a song per person. This should make for a good baseline for these cases.
  - jacquesm 17y ago
    That would be something that would probably be palatable to a lot of people. It is based in fact, not in some arbitrary figure pulled out of the air.
MaxwellKennerly 17y ago
I'm the author of the article. Let me clarify (this is hinted at with the asterisk footnote at the bottom of the post) what happened here: the record company elected, under the copyright statute, not to prove any actual damages and instead use "statutory damages." At that point, they didn't need to prove anything at all other than "infringement," which would include his own use of the music and of his making them available to others, regardless of how much infringement there really was. That's part of what's so preposterous about our copyright regime: it permits copyright holders to elect, at their discretion, to pursue an amorphous claim with fantastically huge damages that doesn't require they prove much. It's like if a slip and fall plaintiff could elect "statutory damages" of millions of dollars if they proved nothing more than that the defendant spilled something on the floor. Such would be swiftly declared unconstitutional.

grellas 17y ago

This is a classic case where a law passed to deter certain very serious activity (willful copyright infringement) now finds itself being applied to new circumstances where it falls with a particularly heavy and disproportional hand. The remedy needs to be tailored to the nature of the wrong - that is, the law needs refinement, not jettisoning. This can come from Congress or perhaps from judicial refinements via statutory interpretation. It will not come from some wild approach striking down the concept of statutory damages as unconstitutional. The article is way off on this.

MaxwellKennerly 17y ago
It's not as "off" as you think. Punitive damages limitations have already been applied to common law copyright cases, and numerous courts have considered, but not ruled on, their application to the statutory regime. But there's a more basic issue: it doesn't matter if the damages arise by statute or common law, the constitution protects the defendant all the same. Congress has no power to override a due process protection.
- grellas 17y ago
  I obviously agree with the basic issue that Congress has no power to override a due process protection. I just don't think this approach to the problem is going anywhere. Mea culpa (and apologies), however, for overstating my point. There are two sides to this.
timwiseman 17y ago
Excellent point, but could you clarify how it could come about via statutory interpretation? As I understand it (which could easily be entirely wrong), barring some invalidation of the law, the plain reading clearly and unambiguously supports the awards the RIAA is getting in this case.

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