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> 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 availa

> 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. Your logic is wrong. While it is true that all the plaintiffs needed was unauthorized reproduction, that doesn't mean that finding additional infringements won't cause a jury to award higher statutory damages: indeed, the jury is specifically instructed to take into account the nature of the infringements.

MaxwellKennerly 17y ago
See my response to you below. You're confusing multiple issues. For purposes of my discussion about the constitutionally-permissible compensatory-to-punitive ratio, the sole question is what actual damages were proven. At trial, the defendants only proved $0.99 actual damages for each song. Your argument about other unproven damages has already been rejected by the 'Philip Morris' Supreme Court case, which explicitly said jurors could only consider, when deciding on punitive damages, actual damages proven in court. (In that case, the jurors had considered damage to other smokers in the state who weren't plaintiffs in the actual case.)
- seertaak 17y ago
  > At trial, the defendants only proved $0.99 actual damages for each song. I suspect you mean the plaintiffs. In any case, it really doesn't matter; the damages in this case are not separable into punitive and compensatory parts. You can argue that this is unconstitional, but you can't argue that that damages awarded are unconstitutional on the basis of your or the defendant's estimate of the compensatory damages, seeing as those aren't what the jury used in their determination of damages. So your $0.99 "actual damages" is a red herring. Had there been more of an onus on the record companies to provide more evidence of actual damages, they would almost surely have been able to provide at least rough estimates, using studies that were cited in the expert testimony of Stanley Liebowitz. There was however, no onus to do so, so it was reasonable for the plaintiffs not to go in greater detail here. > Your argument about other unproven damages What argument about "unproven damages"? I have not used that language, please don't put words in my mouth. It's fine for you to quote me; please don't misparaphrase me.
  - MaxwellKennerly 17y ago
    I was referring to the unproven damages you wrote about above, the unproven distribution damages. Fact is, at trial, the only actual damages proven was the unauthorized personal use of a $0.99 song. "Had there been more of an onus on the record companies to provide more evidence of actual damages, they would almost surely have been able to provide at least rough estimates ..." Yet, it looks like they didn't, likely because they would have been much, much lower than the $150,000 per infringement available under the statute, and they wanted the jury to think big numbers. It was a tactical gamble, the same type made daily in trials across the country. Like I wrote in the post, Congress can't simply call a duck a goose and get around the due process protections established by the Gore, Philip Morris, and Campbell cases. The statute's language does not trump due process and the fundamental fact that we have actual damages proven at trial (~$0.99 per song) and a grossly excessive award ($22,500.00 per song) awarded by way of a punitive element ("willful"). They are "punitive" damages by any measure. That undoubtedly triggers due process protections.
    - seertaak 17y ago
      > Fact is, at trial, the only actual damages proven was the unauthorized personal use of a $0.99 song. Wrong, as I've pointed out to you numerous times. Defence did not have any expert testimony on damages (this was indeed one of big blunders of the Tenenbaum team, and was due to their basing the case on whimsical fair-use arguments). Plaintiffs did have an expert on damages (Stanley Liebowitz), but neither he nor any of the plaintiffs witnesses contributed any proof of the "actual damages." If you wish to persist in making this claim, please provide documentary evidence. > Yet, it looks like they didn't, likely because they would have been much, much lower than the $150,000 per infringement available under the statute, and they wanted the jury to think big numbers. It was a tactical gamble, the same type made daily in trials across the country. They didn't because they didn't need to, as I've said elsewhere. Everything else is pure speculation on your part. > the fundamental fact that we have actual damages proven at trial (~$0.99 per song) Show me evidence of your "fundamental fact". I submit that you can't: there was no determination of actual (or compensatory) damages.
      - 17y ago

MaxwellKennerly 17y ago

See my response to you below. You're confusing multiple issues. For purposes of my discussion about the constitutionally-permissible compensatory-to-punitive ratio, the sole question is what actual damages were proven. At trial, the defendants only proved $0.99 actual damages for each song. Your argument about other unproven damages has already been rejected by the 'Philip Morris' Supreme Court case, which explicitly said jurors could only consider, when deciding on punitive damages, actual damages proven in court. (In that case, the jurors had considered damage to other smokers in the state who weren't plaintiffs in the actual case.)

seertaak 17y ago
> At trial, the defendants only proved $0.99 actual damages for each song. I suspect you mean the plaintiffs. In any case, it really doesn't matter; the damages in this case are not separable into punitive and compensatory parts. You can argue that this is unconstitional, but you can't argue that that damages awarded are unconstitutional on the basis of your or the defendant's estimate of the compensatory damages, seeing as those aren't what the jury used in their determination of damages. So your $0.99 "actual damages" is a red herring. Had there been more of an onus on the record companies to provide more evidence of actual damages, they would almost surely have been able to provide at least rough estimates, using studies that were cited in the expert testimony of Stanley Liebowitz. There was however, no onus to do so, so it was reasonable for the plaintiffs not to go in greater detail here. > Your argument about other unproven damages What argument about "unproven damages"? I have not used that language, please don't put words in my mouth. It's fine for you to quote me; please don't misparaphrase me.
- MaxwellKennerly 17y ago
  I was referring to the unproven damages you wrote about above, the unproven distribution damages. Fact is, at trial, the only actual damages proven was the unauthorized personal use of a $0.99 song. "Had there been more of an onus on the record companies to provide more evidence of actual damages, they would almost surely have been able to provide at least rough estimates ..." Yet, it looks like they didn't, likely because they would have been much, much lower than the $150,000 per infringement available under the statute, and they wanted the jury to think big numbers. It was a tactical gamble, the same type made daily in trials across the country. Like I wrote in the post, Congress can't simply call a duck a goose and get around the due process protections established by the Gore, Philip Morris, and Campbell cases. The statute's language does not trump due process and the fundamental fact that we have actual damages proven at trial (~$0.99 per song) and a grossly excessive award ($22,500.00 per song) awarded by way of a punitive element ("willful"). They are "punitive" damages by any measure. That undoubtedly triggers due process protections.
  - seertaak 17y ago
    > Fact is, at trial, the only actual damages proven was the unauthorized personal use of a $0.99 song. Wrong, as I've pointed out to you numerous times. Defence did not have any expert testimony on damages (this was indeed one of big blunders of the Tenenbaum team, and was due to their basing the case on whimsical fair-use arguments). Plaintiffs did have an expert on damages (Stanley Liebowitz), but neither he nor any of the plaintiffs witnesses contributed any proof of the "actual damages." If you wish to persist in making this claim, please provide documentary evidence. > Yet, it looks like they didn't, likely because they would have been much, much lower than the $150,000 per infringement available under the statute, and they wanted the jury to think big numbers. It was a tactical gamble, the same type made daily in trials across the country. They didn't because they didn't need to, as I've said elsewhere. Everything else is pure speculation on your part. > the fundamental fact that we have actual damages proven at trial (~$0.99 per song) Show me evidence of your "fundamental fact". I submit that you can't: there was no determination of actual (or compensatory) damages.
    - 17y ago