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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 und

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.
- MaxwellKennerly 17y ago
  See my reply above. The record companies did indeed prove unauthorized use of the songs by Tenenbaum, and thus the approximately $0.99. Your "cannot separate" argument completely misses the point: just because Congress lumps compensatory and punitive damages together in one statute doesn't mean constitutional protections don't apply. If that were the case, Congress would easily legislate its way around every Supreme Court ruling by lumping issues together. Are you arguing there is no punitive element at all to the statutory damages? If so, then why are the damages raised for the exact same conduct if it is "willful?"
  - seertaak 17y ago
    > The record companies did indeed prove unauthorized use of the songs by Tenenbaum, and thus the approximately $0.99. a) "and thus" is a deduction that you form yourself. At no point did the plaintiffs assert this to be their figure for the financial damages resulting from the defendant's actions. If you can find such a statement in the transcripts, please produce it. b) Even assuming the plaintiffs had made a statement of fact regarding the financial damages wrought by the defendant's unauthorized reproduction of the copyrighted material, there is the significant unknown of the financial damages wrought by the defendant's unauthorized distribution of the material. You conveniently assume that by not providing evidence as to the size of this figure, the plaintiffs, defendants and jury have valued it at zero. This is of course completely wrong. c) Since the financial damages wrought by the defendant's behaviour is the sum of the financial damages wrought by each individual infraction, and the damage of one of those infractions hasn't been determined by either the plaintiffs or the defendants, and moreover, the jury hasn't provided us with the formula they used to arrive to their value of the damages, we have no way of knowing the punitive/compensatory ratio, and your argument breaks down. To look at it somewhat differently, supposing the plaintiffs had only filed suit for unauthorized distribution. What happens to your argument then? Answer: depending on how dim-witted you are, you'll either argue that the ratio is infinite or (more sensibly) you'll acknowledge that the ratio is indeterminate, whence one can't draw any conclusions as to its constitutionality. > Are you arguing there is no punitive element at all to the statutory damages? Of course not. It is right and proper that there is a punitive element to the statutory damages, simply to deter further unauthorized distribution. All I'm saying is that you're not in a position to say that this quantity is (total damages awarded) - $1.

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.

MaxwellKennerly 17y ago
See my reply above. The record companies did indeed prove unauthorized use of the songs by Tenenbaum, and thus the approximately $0.99. Your "cannot separate" argument completely misses the point: just because Congress lumps compensatory and punitive damages together in one statute doesn't mean constitutional protections don't apply. If that were the case, Congress would easily legislate its way around every Supreme Court ruling by lumping issues together. Are you arguing there is no punitive element at all to the statutory damages? If so, then why are the damages raised for the exact same conduct if it is "willful?"
- seertaak 17y ago
  > The record companies did indeed prove unauthorized use of the songs by Tenenbaum, and thus the approximately $0.99. a) "and thus" is a deduction that you form yourself. At no point did the plaintiffs assert this to be their figure for the financial damages resulting from the defendant's actions. If you can find such a statement in the transcripts, please produce it. b) Even assuming the plaintiffs had made a statement of fact regarding the financial damages wrought by the defendant's unauthorized reproduction of the copyrighted material, there is the significant unknown of the financial damages wrought by the defendant's unauthorized distribution of the material. You conveniently assume that by not providing evidence as to the size of this figure, the plaintiffs, defendants and jury have valued it at zero. This is of course completely wrong. c) Since the financial damages wrought by the defendant's behaviour is the sum of the financial damages wrought by each individual infraction, and the damage of one of those infractions hasn't been determined by either the plaintiffs or the defendants, and moreover, the jury hasn't provided us with the formula they used to arrive to their value of the damages, we have no way of knowing the punitive/compensatory ratio, and your argument breaks down. To look at it somewhat differently, supposing the plaintiffs had only filed suit for unauthorized distribution. What happens to your argument then? Answer: depending on how dim-witted you are, you'll either argue that the ratio is infinite or (more sensibly) you'll acknowledge that the ratio is indeterminate, whence one can't draw any conclusions as to its constitutionality. > Are you arguing there is no punitive element at all to the statutory damages? Of course not. It is right and proper that there is a punitive element to the statutory damages, simply to deter further unauthorized distribution. All I'm saying is that you're not in a position to say that this quantity is (total damages awarded) - $1.