DOJ Sides With RIAA In Tenebaum Case
from the shocker dept
Considering that the Justice Department has hired a bunch of the RIAA's favorite lawyers, it was widely expected that the Justice Department would weigh in on the Joel Tenenbaum case -- despite the fact that folks in the Obama administration aren't supposed to be involved in situations that relate to work they did recently (oops). So, of course, the Justice Deparment has filed an amicus brief supporting the constitutionality of the statutory fines for copyright infringement. As Ray Beckerman notes, the Justice Department seems to have conveniently ignored numerous other precedents -- and doesn't bother to explain why earlier cases that upheld damages of 116 and 44 times damages means it's okay to have damages pushing hundreds of thousands of times over potential damages (and an argument can be made that there were actually no damages at all solely due to Tenenbaum). So while this is hardly surprising, it is a bit disappointing that the DOJ filed this brief, given the obvious conflicts of interest concerning its recent hires.
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Filed Under: doj, joel tenenbaum, riaa
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Great sadness
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Maybe you want to quote a slight more balanced view, like:
http://news.cnet.com/8301-13578_3-10201831-38.html
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Re:
What I'm really interested in is whether or not the damages are *reasonable*, not whether they are *allowable*. Judges are supposed to be arbiters of what is reasonable given the circumstances.
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Re: Re:
Once you read the CNet story, the opinion pieces make more sense, and then you are free to have your own opinion, not the one being spoon fed to you :)
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Re: Re: Re:
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Re: Re: Re:
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Re: Re: Re:
>>not the one being spoon fed to you :)
Huh? Why are you assuming that I'm not free to have my own opinion without reading the sources/materials that *you* think I should read? Or that I'm not "informed" if I haven't read the things you think I should?
I also don't get the part about being "spoon fed." Blogs, almost by definition are written from a particular viewpoint. I read this blog and about ten others that often cross-analyze each other's materials. But all blogs "spoon feed"--that's the point. However, the expectation is that you follow the line of thinking and use a particular blog to begin your own analysis.
I suspect you believe that nearly all those you disagree with don't do their own analysis--but that would be a very uninformed view IMO.
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Re:
This law is bad precisely because it's so easy to abuse to rediculous levels. It's so bad precisely because it's not being used to right a wrong but to deliberately destroy individual lives in an attempt to intimidate and scare "potential" violators.
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Am I understanding the guy withdraws from the case, then files a amicus brief from the Justice Department in support of the RIAA? I don't care what the situation is, thats messed up.
2,100 to 425,000 times the actual damages. Good grief, greed is a terible thing.
Am I to understand someone could download some songs and be charged up to 425,000 per song? How is that justice? He could be forced to pay over a million dollars for downloading 7 songs? Thats totally twisted, how can anyone think thats a good thing?
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Re:
You don't understand - it isn't about just what he downloads, but what he spread. By perpetuating the spread of this music (P2P up / down ratios), he has created the potential for infinite copies of the music. So how damage is done?
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Re: Re: infinite copies
That's like punishing an individual for the nature of a medium.
Clearly damage claims in civil cases should relate directly to actual, measured damages. Otherwise you're victimising a handful of individuals for the actions of society.
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Re: Re: Re: infinite copies
if you sue some one for a reasonable amount then you can't scare people into buying CD's. reasonable amounts just aren't intimidating.
Clearly damage claims in civil cases should relate directly to actual, measured damages. Otherwise you're victimising a handful of individuals for the actions of society.
riiiiight. people are sued for millions every day for no good reason. in this case, the purpose of the damages is intimidation. they can't figure out how to deliver a product worth buying, so they are going to break metaphorical kneecaps instead. now that they own the dept. of justice it's like a crime spree.
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Re: Re:
This isnt about spreading p2p, as it will continue as long as their is a demand for it. This is about basically bankrupting a person for having the sheer audacity to share music. Im not sure this is a good or even logical method of tamping down the spread of p2p. Maybe if the music distributors/publishers came up with a better method, this wouldnt be a problem.
You cant fight demand with non-participation.
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Re: Re:
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Re: Re:
Obviously not. Potential is not the same as actual. This is why you need to prove actual damages and not potential ones for the same reason prosecution is based on actual crimes and not potential ones.
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Re: Re: Re:
The issue of damages goes back to one of distibution. By agreeing to use kazaa and signing onto their network, this guy entered into a world who's only intent is to spread files without permission (because if it was with permission, there would be no reason to use the complicated and slow methods that P2P uses to hide file sources). In essence, he entered into a global conspiracy to trade files without permission (infringing). Now, he may have only shared the file once, but if he was the original source for another 10,000 downloads, then he is very much in on the game.
It's where that infinite thing bites back. All that needs to be shown is (a) these are the files that he made available by being part of the kazaa network, and here are the number of pirate copies that can be found on the net today. We don't know if he did all of it, but we know his intent, therefore he could be stuck with the result.
The damage is done. How much is this guy? Who knows? But 1% of inifinite is still, well, the max.
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Re: Re: Re: Re:
Now replace Person X with Weird Harold. Weird Harold has the potential to commit a crime. Should you be locked up b/c of your potential for future deeds? Obviously not. Now apply this reasoning to the damages discussion...
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Re: Re: Re: Re:
- So Blizzard is spreading World of Warcraft files without permission? (patches distributed via P2P)
- So Nine Inch Nails is distributing music without permission? (Ghosts anyone?)
- So anyone who downloads various incarnations of Linux is doing so without permission?
- So anyone choosing to download OpenOffice via P2P is doing so without permission?
Or perhaps, P2P is also a way to multi-source files to get around the limitation of upload bandwidth versus download bandwidth. Personally, I have a 1Mbps upload and a 6Mpbs download. I'd like to be able to take advantage of that fatter download pipe when I'm getting the latest copy of OpenOffice. Are you saying I'm essentially a "pirate" for doing so?
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Re: Re: Re: Re: Re:
Honestly, what percentage of P2P traffic would be entirely legal files? The answer is "a pretty darn small number". You only have to hit the top torrent sites to see what is popular. (The pirate bay is the biggest, and their top 100 is entirely pirated, not shocking, is it?).
"P2P is also a way to multi-source files to get around the limitation of upload bandwidth versus download bandwidth"
Heh? What are you talking about? Your upload speed has nothing to do with your download speed when getting a file in a normal way (such as FTP). My connection is about the same speed as yours, and I can go download open office at about 725k/s - or in about 2 minutes. Fastest I would get it on P2P might be 20 minutes or an hour, I don't know - and I can't know, because I am entirely dependant on other people to get it (and in fact, because Bell traffic shapes P2P during the day, it might take 24 hours to get it).
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Re: Re: Re: Re: Re: Re:
Whether this represents a sizeable majority of the people using P2P is irrelevant. You claimed that P2P was a world where the "only intent is to spread files without permission". People come back at you with example after example of how that's simply not true, and your response is to claim (backed, as usual, with no evidence) that those people are irrelevant, rather than actually address the issue at hand.
"The guy was on Kazaa downloading music files, not getting linux."
So? You seem to be claiming that *nobody* using P2P can possibly be using it for legal means. Just because this particular guy was not using it for legal means, that has no bearing on the millions of downloads that occur legally.
"Your upload speed has nothing to do with your download speed when getting a file in a normal way (such as FTP)."
Depending on the state of the servers you're downloading from, it can actually be much quicker to download via a torrent than direct via FTP (especially if there's a dodgy connection that keeps interrupting the download for a 500Mb+ file - remember BitTorrent is geared toward large file downloads). Even if not, it can be more convenient to simply load up a client with torrent files and let them download overnight (I often do this with new Linux betas).
Not only that, but we're also talking about overall costs. By encouraging people to use P2P to download their software, many companies (including Blizzard and the various Linux distros) keep their costs down by sharing their bandwidth requirements among customers. Those customer willingly help out because without those bandwidth savings, the costs would be much higher for using the product in question.
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Re: Re: Re: Re: Re: Re:
Looks like he caught you in another lie then.
Please grow up, points like this are so childish.
I guess when you get caught lying there's not much left to do but to start hurling insults, eh?
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Re: Re: Re: Re: Re: Re:
If I have 100 files, and one of them is downloaded by 5% of people and every other one is downloaded by 1% of people, then the 5% file is "the most popular" but 95% of my content is not that. Just because you hit plurality doesn't mean you hit majority.
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Re: Re: Re: Re:
Welcome to the future dumb-ass.
I'd ask you to please research what you write in the future, but since others have asked and you still won't, I don't really see the point.
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Re: Re: Re: Re:
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Tigers don't easilly change their stripes
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On the other hand, if it can be shown that he was willfully flouting the law, then large damages might be reasonable. How large is reasonable? 100x actual damages? 1000x actual damages? 10000x actual damages? Until now, the largest value used is around 100x actual damages, but the RIAA and the feds are asking for far more.
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WTH
How much damage is done works both ways. I don't know what songs are in question, but you can bet he's not the only one that has them available. So how can anyone determine what "damage" his copy did? I just cannot bring myself to believe his copy of seven songs did a million dollars worth of damage, thats just stupid.
I'm not saying downloading is right, just that the punishment should fit the crime. I for one don't want to be driving down the road one day and someone hear my radio, claim its a performance, and send me a $425,000 bill.
I'm at the point now I wont even buy music, I've got a radio (of the non-performance type, hidden under my desk, and I'm using headphones with the volume turned way down", thats enough until these people pull their head out of their ass and realize there not just scaring the file sharing people, their scaring the rest of their customer base as well.
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Wierd Harold is RIAA's Limbaugh
Time for your Oxycontin :)
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It's actually EXTREMELY disappointing.
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are you really surprised
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infinite?
If there was infinite easily obtainable clean water, how much could you charge for clean water? If there was infinite easily obtainable usable energy, how much could you charge for energy?
Now here,s the question. If there's and infinite supply of easily obtainable music/movies, how much can you charge for them?
you seems to not understand how infinite works.
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The facts
"Keep in mind the most important question. What damage did Tenenbaum himself actually do? How many copies did he create? The law does not allow Tenenbaum to be punished for what other people do. Don't think it's OK to make him an example by throwing million dollar damages at him -- the law doesn't excuse that, nor does basic morality. On the other hand, if it can be shown that he was willfully flouting the law, then large damages might be reasonable. How large is reasonable? 100x actual damages? 1000x actual damages? 10000x actual damages? Until now, the largest value used is around 100x actual damages, but the RIAA and the feds are asking for far more."
You make an important point. The DOJ was right, I think, in asking the Court to defer ruling on a question the Court may never have to reach. It would be very difficult to make this kind of determination without a full evidentiary record:
-what were the plaintiffs' lost profits;
-what was the degree of reprehensibility?
-were there mitigating or aggravating factors?
Can't answer those without the facts.
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So it's...
Perhaps it's time to change the government?
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Thoughtful analysis
"that article is less than helpful. All it does is summarize the brief--there is no thoughtful analysis as to why the brief might be taking a reasonable position. It simply states that the law allows the position."
Does every single blog post have to be full of "thoughtful analysis"? Can't it be a valid and useful blog post to give information about a significant legal event? (I hope so, because if not my blog is dead in the water; I hardly ever provide "thoughtful analysis" like Mike usually does.)
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Re: Thoughtful analysis
It is the pejorative nature of this article, and particularly its clear suggestion that pro-label bias underlies why the DOJ request for intervention and brief have been filed, that is clearly troubling as it fosters negative perceptions about the DOJ and its role as an arm of our government.
As we both know, it is SOP for the DOJ to intervene in matters where the constitutionality of a federal statute is being questioned in a civil matter such as this one. It is also SOP for the DOJ to present arguments solely directed to issues of constitutionality, and not to the underlying merits of the civil matter as proffered by plaintiffs and defendants.
Mr. Masnick certainly does not need to provide thoughtful analysis of the merits of the DOJ brief. However, if he truly wants his arguments to carry persuasive force, it would help considerably if he expressed his opinion in a form other than a highly misleading rant.
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Re: Thoughtful analysis
No, of course not. And if you are focusing on that, you're missing my point. I was reacting to Weird Harold making a big deal out of having to include sources that represented an opposing view and pointing out that the link he gave did really nothing of the sort. It simply parroted the amicus brief itself.
Unlike he, I am comfortable reading blogs that take a very narrow view so long as they present their thoughts in a meaningful and well-founded way.
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Re: Re: Thoughtful analysis
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woah
The damage is done. How much is this guy? Who knows? But 1% of inifinite is still, well, the max."
I bet you'd argue that by listening to music, your brain is making an unprotected analog copy and should result in the listener being thrown in prison.
ohh, and did you know that by changing the channel during commercials that you're "breaking the law" because you are OBLIGATED to watch commercials if you watch the TV shows since the value of the commercial that pays for the TV show is directly linked to the people watching the commercials.
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Gotcha!
"But 1% of inifinite is still, well, the max."
By your own mouth, you are hypocritized. This is INFRINGEMENT, not THEFT as you CONSTANTLY spew. Its also an infinite good, in the sense of how it can be distributed (minimal cost of BW and storage, infinitely replicatable)
Now you can no longer take the other side in these arguments, since you completely expose your hypocrisy here.
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Re: Gotcha!
Plus it is wasteful to sit here and play legal tiddly winks with kids in mom's basement who have no idea what it means to create something and have it stolen out from under you.
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Re: Gotcha!
That happened to WH long ago. But being the paid pathological liar that he is, it has absolutely no effect on WH.
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In the interest of accuracy, the DOJ has not "sided" with anyone. To suggest/state otherwise is simply incorrect.
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Obama's Admin
Its like shooting yourself in the foot, just not a wise thing to do (although that doesn't stop most corporations).
Dear Obama, stop letting your group run wild with copyright and start promoting the public like you said you would. Start increasing the public domain and reducing copyright.
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Re: Obama's Admin
It's called "use 'em and loose 'em." You've served your purpose, he's in the Whitehouse. Now go take a hike.
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Re: Re: Obama's Admin
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As in the past
This happened with prohibition, Hero Ferrarella LaGuardia
Villein The Chicago Mob along with other mob groups.
The war on drugs that we are winning (lol) Hero The brave voters of the states. Villein the DEA
This current losing affair by the Riaa Hero anyone standing against the RIAA Villein those in stand with the RIAA.
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If it's worth stealing, it's worth buying...
For now, and regardless of whatever "business model" the industry should be using in your ideal flat earth populated by unicorns and rainbows, downloading copyrighted content without paying is theft. Spare me your infinite justifications....
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Re:
Now, I won't even bother going off on a rant about how it's not stealing because clearly it's too complicated a concept. What I will do is point out that if you replace the word "steal" with the word "accept" then it's easy to see how something can be worth accepting but not worth buying.
For instance, and this is a long shot, I'm sure:
Unknown Artist: "Hey buddy, you want to buy my CD for $5?"
You: "No thanks, I've never even heard of you."
UA: "Okay, want it for free?"
You: "Sure, I'll take a listen."
or, another long shot:
Not You: "I heard GNR's new album was crap."
You: "Yeah, me too, it got bad reviews."
NY: "You didn't buy it?"
You: "No, I didn't want to waste my money."
NY: "I bought it anyway, but I don't want it. Do you?"
You: "Sure, the reviews might be wrong, I'll have a listen."
Get it? Buying music (at current prices) is an investment, and when the investment looks poor, people will go without. When there's no potential for loss (buying a CD and hating it) then the music will be accepted.
This is core with showing that every copyright infingement is not, in fact, a lost sale. For many people, the investment would be turned down unless the financial loss was mitigated.
I hope this helps.
PS- It's not stealing!!! (It *is* illegal.) Just like Double Parking is not Reckless Driving. Both are illegal, both involve cars and roads, but they are *not* the same. (and when you insist they are the same, you look foolish.)
Sorry, I guess I did end up ranting.
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Re:
uhh, a good deal of it isn't even worth stealing.
the tripe that they expect us to buy, i wouldn't listen to with someone else's ears. most of what is "stolen" is back catalog stuff that they have sold and has been paid for and profited on at least twice.
and i haven't justified anything. i don't argue that piracy is right, i argue that it's impossible to stop and that fighting it is a waste of resources that could have been pocketed as profits.
i argue that content creators need to cut costs drastically to mitigate the impact of piracy. not fighting a losing battle with piracy is a good place to start.
in an age where trading cd's and DVD's is effortless, spending millions to produce and promote an album, and hundreds of millions to produce a film is ridiculous. cut your expenses to the bare minimum and focus your efforts on the people who buy your stuff.
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SOP
It would have been SOP in the traditional sense to say the statute is unexceptionable on its face, and that any question of the constitutionality as applied to this defendant should await the trial. It is not SOP for the Government to go out on a limb and, without any authority to support it, argue that it would be constitutional to assess $150,000 statutory damages where the plaintiffs' actual damage is 35 cents.
Yes making a dumbass statement like that was SOP for the Bush DOJ. I was hoping for something more professional and lawyerlike from the Obama DOJ.
As to whether this constitutes "siding" with the RIAA it certainly does; it goes way beyond defending the statute itself.
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Re: SOP
I address you precisely as such because we are both attorneys well steeped in the many facets of copyright law. It is true, however, that the majority who post comments to techdirt articles are not attorneys.
As for "siding", this is a matter over which we will have to agree to disagree.
M. Slonecker
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Re: Re: SOP
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For now, and regardless of whatever "business model" the industry should be using in your ideal flat earth populated by unicorns and rainbows, downloading copyrighted content without paying is theft. Spare me your infinite justifications...."
too bad it is IMPOSSIBLE to steal that which is infinite. Your idea's do not apply to that which is digital
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Re:
So the "conflict of interest" may be tenuous at best, something potentially created as a smoke screen to explain about the expensive shafting that tenennbaum is about to get.
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Re: Re:
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What you describe is a matter for criminal courts not civil courts, which have a higher burden of proof. The damages are punitive, that is why this is not a civil matter.
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Sweet Irony
Someone should let the TM holders know so they can defend it. :P
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Re: Sweet Irony
You guys need to worry more about debating ideas and stop worrying about me.
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Re: Re: Sweet Irony
My real comments were in a different post entirely. :)
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Heh? What are you talking about? Your upload speed has nothing to do with your download speed when getting a file in a normal way (such as FTP). My connection is about the same speed as yours, and I can go download open office at about 725k/s - or in about 2 minutes. Fastest I would get it on P2P might be 20 minutes or an hour, I don't know - and I can't know, because I am entirely dependant on other people to get it (and in fact, because Bell traffic shapes P2P during the day, it might take 24 hours to get it).[/i]
You seem to have a very poor understanding of how P2P works. And your ISP shaping P2P means your ISP sucks. Some of us don't have ISPs that suck.
Just the other day I downloaded several Linux distros to compare some stuff. I was getting around 300 - 400 kbps with "normal" FTP downloads, even after trying several mirrors. When I realized I should be downloading them P2P I was getting right around 800 (maxed out).
And yes, P2P enables companies to distribute large files without having to have massive banks of servers. It's an amazing way to do things.
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