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Please see my reply below -- your distinction isn't relevant, because the record company elected statutory damages, thereby eliminating the need to prove any ac

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?
- MaxwellKennerly 17y ago
  Obviously, you shouldn't "trust" my "opinion" at all. It's just an opinion on the internet from someone you never met. You should, however, think about the underlying issues. Fact is, the plaintiff proved only $0.99 in actual damages per song from Tenenbaum's use and apparently (I write "apparently" because I have not seen the transcripts, just the report I linked to in the post) chose not to present any evidence of actual damages arising from distribution. It's in the court order, but the actual damages (which is the relevant issue for a 'Campbell' due process analysis) proven were solely from his personal use. Your "hard to measure" argument is a good one, and the one that the RIAA will raise on appeal. Yet, damages in every case are "hard to measure" and that doesn't stop courts from routinely limiting those damages on constitutional grounds. Can Congress grant copyright holders a presumption in court -- without proving anything at all -- that, for each song made available online for any amount of time in any capacity, the defendant suffered up to $15,000 in actual damages? That's not so clear to me. And you haven't said why it's clear to you. (I chose "$15,000" because it's the only way the statutory $150,000 could be constitutional under the Campbell case's "single-digit" punitive ratio.)
  - seertaak 17y ago
    > the plaintiff proved only $0.99 in actual damages per song from Tenenbaum's use and apparently The plaintiff didn't "prove" "$0.99 in actual damages per song", or any other figure, for that matter. It was in fact the defence that brought in the expert witness who demonstrated downloading the song via AmazonMP3 (this turned out to be counter-productive, because it showed just how easy and cheap it was to behave legally). Let me say that again: Plaintiffs did not prove any figure for "actual damages", whether $0.99 or otherwise. When asked this specific question by the defence, the plaintiff's experts and witnesses repeatedly stated that it is up to the jury to determine the statutory damages. You cannot separate the awarded damages into the compensatory and punitive damages, because the jury hasn't given you the information to do so. Therefore your argument on the constitutionality of the compensatory/punitive damage ratio falls apart. If you think I'm wrong, the right way to proceed at this point is to provide evidence from court materials, not other cases that you think are relevant or your guesses. All the information is freely available, so there's really no excuse for you to be more specific in relation to the facts of the case. In particular, if you can provide me with evidence from court documents that the jury used or was instructed to use a certain figure as the "compensatory damage" figure and told to derive a punitive one on top of that, then you will have proved that you are correct. Otherwise, you're just another lawyer emitting hot air -- rather like Professor Nesson.

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?

MaxwellKennerly 17y ago
Obviously, you shouldn't "trust" my "opinion" at all. It's just an opinion on the internet from someone you never met. You should, however, think about the underlying issues. Fact is, the plaintiff proved only $0.99 in actual damages per song from Tenenbaum's use and apparently (I write "apparently" because I have not seen the transcripts, just the report I linked to in the post) chose not to present any evidence of actual damages arising from distribution. It's in the court order, but the actual damages (which is the relevant issue for a 'Campbell' due process analysis) proven were solely from his personal use. Your "hard to measure" argument is a good one, and the one that the RIAA will raise on appeal. Yet, damages in every case are "hard to measure" and that doesn't stop courts from routinely limiting those damages on constitutional grounds. Can Congress grant copyright holders a presumption in court -- without proving anything at all -- that, for each song made available online for any amount of time in any capacity, the defendant suffered up to $15,000 in actual damages? That's not so clear to me. And you haven't said why it's clear to you. (I chose "$15,000" because it's the only way the statutory $150,000 could be constitutional under the Campbell case's "single-digit" punitive ratio.)
- seertaak 17y ago
  > the plaintiff proved only $0.99 in actual damages per song from Tenenbaum's use and apparently The plaintiff didn't "prove" "$0.99 in actual damages per song", or any other figure, for that matter. It was in fact the defence that brought in the expert witness who demonstrated downloading the song via AmazonMP3 (this turned out to be counter-productive, because it showed just how easy and cheap it was to behave legally). Let me say that again: Plaintiffs did not prove any figure for "actual damages", whether $0.99 or otherwise. When asked this specific question by the defence, the plaintiff's experts and witnesses repeatedly stated that it is up to the jury to determine the statutory damages. You cannot separate the awarded damages into the compensatory and punitive damages, because the jury hasn't given you the information to do so. Therefore your argument on the constitutionality of the compensatory/punitive damage ratio falls apart. If you think I'm wrong, the right way to proceed at this point is to provide evidence from court materials, not other cases that you think are relevant or your guesses. All the information is freely available, so there's really no excuse for you to be more specific in relation to the facts of the case. In particular, if you can provide me with evidence from court documents that the jury used or was instructed to use a certain figure as the "compensatory damage" figure and told to derive a punitive one on top of that, then you will have proved that you are correct. Otherwise, you're just another lawyer emitting hot air -- rather like Professor Nesson.