Tenenbaum Dinged $22,500 Per Song; $675,000 Total
from the and-onto-the-appeal dept
After admitting flat out yesterday that he downloaded and distributed songs using file sharing software, and that he lied about it, there wasn't a question of whether or not Joel Tenenbaum would be found guilty. In fact, the judge even said that the question wasn't even at issue. The only thing the jury had to work out was how much the damages would be, and they didn't take long at all, awarding $22,500 per song, or a total of $675,000. While a lot less than what the Jammie Thomas jury awarded, it's still a hefty chunk of change.I've already expressed my distaste for how this trial was handled by Nesson and "Team Tenenbaum," but honestly, if he was going to just admit that he did it, it's unbelievable that he didn't just settle earlier when he had the chance. The only reason to go through with this is if the entire purpose is to create a later constitutional challenge on the statutory rates -- which many assume was Nesson's plan all along. However, if that's the case, is this really a good test case for that? Gleefully ignoring the law isn't the sort of thing that I think many judges/justices will find endearing. If this case does move up the appeals chain, one would hope that a better team of folks will handle Tenenbaum's appeal, and focus on the real legal issues. Of course, even before the appeal, it appears that Judge Gertner is planning to review whether or not the amount appears to be unconstitutional. It seems that particular ruling will be a lot more important than what the jury had to say.
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Filed Under: charles nesson, constitutional, copyright, damages, joel tenenbaum
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If I was Tenenbaum
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Re: If I was Tenenbaum
18,000 * $3,000 = $54,000,000 ... not a small chunk of change
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AFL RIAA factory-piracy
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This case is much the same way, we are trying to show how out of sync the law is with the way the world works. Somehow im sure its an age thing as well, old people in suits telling young people what they can and cant do. Young people aways rebel aginst this kind of authority and it never ends well.
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how out of sync law is with reality?
Tenenbaum had no defense other than this one: the whole system is stupid. That's not a good defense in any legal case, even where the system is stupid. To establish the system is stupid, you use the case where the stupidity is plain to EVERYONE.
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Maybe the big O will pass a music tax of say 10% of your income.
Yeah, that is a good price.
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It isn't a legal issue.
I think the current model for music and video is completely broken and needs to be changed. The music and movie industries are completely out of touch with technology. I believe that we need to aggressively move in the direction that Trent Reznor is pointing to.
However, just because this is the way I feel - and Joel feels - doesn't give either of us the right to decide this is the way to go on behalf of the property owners. I think paper currency is also an obsolete model - does this give me the right to use available technology to copy it and distribute it? Of course not.
To use another example, as Mike said in previous posts, just because we think Lori Drew may have behaved in a despicable way doesn't mean that we should bend the laws to punish her. The same applies here. Just because we think music should be free doesn't give us the right to ignore the laws on stealing.
This is a business issue, not a legal issue. Stealing music should not be a matter for the courts. The right approach to solving this problem is to make the RIAA and MPAA wake up. Go straight to the artists and bypass the Luddites. If they can't get with the game, send them to the bench. The customer base is speaking with a very loud voice. Now it's up to the business owners to listen and change their game. There is so much more money to be made.
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To be guilty of theft, it must be shown that one intended to permanently deprive the rightful owner of the thing being stolen.
This *is* a legal issue. Tenenbaum infringed copyright, and that is a legal issue.
That the music recording, television, and motion picture industries are broken (your other point?) is valid but that does not negate the existing copyright protection they enjoy.
Which point would you like to debate?
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Once again copyright infringement != stealing, as you haven't "stolen" (deprived someone of something physical) anything.
Also, reducto ad absurdium is never a good way to frame your argument. By robbing a bank, you steal (deprive the bank of) money. When you download music, you make an identical copy of the song(s). The artist has been deprived of nothing. You might claim that the download deprives the artist of money, but why is it that the music industry is thriving even though infringement is rampant?
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Actually, this is one of Mike's little "misdirections", let me explain:
1997, the total music sales (CDs, records, tapes, whatever was around) worldwide was about 10 billion dollars. in 2007, that number was 11 billion. Now, if you are smart, you will see that sales are up 10% (dollar wise). But considering inflation and all, that original adjusted to 2007 number should be somewhere between 14 and 16 billion - so in fact, sales of recordings are down significantly. This is very easy to verify, just consider the number of music stores that disappeared in that 10 year period. The numbers come from the RIAA I think, originally found here on techdirt about a year ago.
Recently, Mike ran an article about the music business making more money in the UK. But again, the story is a little misleading because it lumps together both record sales, live performance, and all other revenue sources related to music in any shape or form. When you consider that concert ticket prices have more than doubled (and often tripled) in the last 10 years, you would think that the total take for all of music would be more than double. The reality, it is barely up total, which again does not bode well in adjusted revenue numbers.
Widespread "stealing services" (aka, infinging) has lead to a significant drop in the retail music business. Again, bear witness to the number of record stores that have closed in the last 10 years. Itunes isn't making up for it in anywhere near a big way.
More importantly, consider the increase in the consumption of music - MP3 players are so widespread now, that pretty much every home has at least one if not more, plus computers to play music, etc. With all that extra consumption of music, radio stations are seeing declining listenerships, online radio isn't doing all that well, and record sales aren't happening on scale with the explosion of music consumption. Thus, you can also deduce that if people actually paid for what they were using, the music industry would be booming. That the numbers are less than booming is another key indicator of what is lost.
If you think the music industry is thriving, you need to go look closer - most of it is suffering greatly under the weight of lost income.
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Stealing does have a legal definition in some vicinities. In others it's called larceny, which is a synonym for stealing. The shortened legal definition is as follows:
STEAL - the wrongful or willful taking of money or property belonging to someone else with intent to deprive the owner of its use or benefit either temporarily or permanently. No particular type of movement or carrying away is required.
So come on back you sorry piece of shit. Show me where I'm wrong. Even better, come on down to my house and we'll talk turkey. Maybe you could hire me to teach you everything I know about law. Next time you need to do a little fucking research before your sorry ass starts spouting about generic terms versus legal terms.
You're too stupid to live.
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The real key is "deprive the owner of its use or benefit either temporarily or permanently" - one of the benefits of creating a song is controlling how it is sold, how it is distributed, and how long it is on the market. File trading deprives the original creator of the song of these ownership rights forever, putting the music out there in a place where the owner can no longer control the benefits that he or she should have as the copyright holder.
Stealing.
Next.
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"The real key is "deprive the owner of its use or benefit either temporarily or permanently" - one of the benefits of creating a song is controlling how it is sold, how it is distributed, and how long it is on the market. File trading deprives the original creator of the song of these ownership rights forever, putting the music out there in a place where the owner can no longer control the benefits that he or she should have as the copyright holder."
Partially true, but distorted. Taking a CD from a store is, legally speaking, stealing. Distributing files that you have no distribution rights to is, legally speaking, copyright infringement. Mark Lemley, COPYRIGHT EXPERT AT STANFORD LAW (I assume you don't have a distinction like that) said "If I take your physical property, I have it and you no longer do. If I copy your song, I have it, but so do you." While I agree that the data itself is valuable and that you shouldn't infringe on copyright (my brother is a professional musician...he sings for his supper so I have very strong opinions on copyright), that doesn't change the fact that LEGALLY you will not go to jail for infringement. You will be taken to court by a company or individual, not by the state (I am assuming you're talking about the US since that's where this case is).
Let's discuss what he was accused of. Was he accused of theft? Grand theft? Grand larceny? Murder? No, because all of these things take away something physical. LEGALLY (yes, I'm referring to the law again even though you don't agree with how the law is worded) he was accused of and later found guilty of willful copyright infringement. The plaintiff was awarded damages. In a civil suit no 'crime' has been committed, but someone has instead been wronged. The person found guilty of the wrongdoing is then ordered to pay restitution to the damaged party, not serve time in jail.
Do you see the difference between the two? Unless you're in the business of interpreting the law (are you a judge? If so, where?) you do not get to dictate what certain words mean legally no matter how strongly you feel about it.
In summary: I am not for copyright infringement but let's call things what they are. That's why I called you all those names earlier. That's what you are. That's why when I discuss copyright infringement I don't try to muddy the issue and call it something it's not. Sure, stealing is easier to type for people who can't spell infringement. Sure, stealing is something that everyone has some feelings about so it is an emotionally swaying argument. Call it what it is, though, not what you want it to be. You want to change the law? Go buy yourself a congress-critter.
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This represents a hole in the legal system, because things are fairly clear: There are millions of people all over the world that have music they didn't pay for. If I ask my mother "what would you call it if I have a bunch of stuff that cost money but I didn't pay for it?" her first answer would be "a gift". I say "nobody gave it to me, I went to get it myself". She thinks for a second, and says "you stole it from someone?". That pretty much summed up where I end up with this, we can play semantics and word games until we are blue in the face, but in the end, people who "infringe" end up with a whole bunch of stuff they shouldn't have.
Tenenbaum is worse, because he was also actively sharing the music, it seems. That adds greatly to the liabilty, because just like Jammie Thomas, the question is how many copies are made as a result down the line? You share it with a couple of people, they share it with a couple of people, and so on. It's easy to show where a single infringement can turn to thousands of infringements in short order.
Oh yeah, no matter what the legal sense of the word is, you and I both know that morally, they stole it. It's just legal semantics at this point.
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I say "nobody gave it to me, I went to get it myself".
No, actually, someone offers it up on whatever method you use (Kazaa, bittorrent, usenet, etc) in much the same fashion as a GIFT. They are giving it away for free. Then someone else accepts that gift, and may in return offer it up for others.
Far up the chain, chances are someone BOUGHT that CD and ripped it to their computer, and then gave it away.
So, to sum it up: Someone buys a CD and rips it, and then gives away a copy. Someone else gives away a copy of a copy. Etc, etc.
So, when does theft come in, exactly? I'm waiting to be enlightened.
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It isn't really any different. If you can't find the stealing going on there, then your mamma didn't raise you right.
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If they're very, very simple, then why did you get them very, very wrong?
If only stupidity was illegal...
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I would prefer to see violators such as this student receive a small punitive fine, have the computer hardware confiscated, and a good chunk of community service. This way he would face some consequences, and the RIAA would get some justice.
I personally believe that business and copyright holders have gotten the best of our Congress. I have no problem with rewarding creativity and ingenuity, but when copyright crimes are prosecuted this harshly, something is wrong.
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Tenenbaum was accused of downloading 30 songs with a retail value of 99 cents each., and a wholesale value profit value to the music label of 35 cents each. The RIAA never proved distribution. 30 x .35 = $10.50. The 675,000 verdict is beyond unreasonable, it is unconscionable.
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no really...
I can't do it...I see no REAL legal issues..I see a bunch of elitist wind breaking! this is it...copyright needs to be REDUCED to NOTHING but IF someone IS proved of SELLING it and/or taking their name and putting it on said copyrighted "thing". Really.. that's what its all about and should be all about. *sigh*
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That is enough to discourage people.
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Out of Sync
His punishment for what he has done is basically a life at the poverty line as his wages are garnished and he can never make to much money with out the system taking it away.
My point still stands that to get rid of this law we just have to charge as many people as we can with it till a grandmother who does not even own a computer gets a judgment against her and people start demanding the law gets fixed OR we get some Jury Nullification cases.
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Wake up and smell the coffee, that ain't happening.
People who steal don't get to dictate the business model of other people. The mob doesn't rule.
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Also, do you mean to tell me that no musicians will every make any more music ever if we don't have copyrights? What about before copyrights? You DO know that copyrights haven't been around forever, right?
I can't speak for anyone else, but I'm on the side of the table where musicians have to actually work for their pay, instead of doing it ONCE and getting paid for each copy of it. You want to make music as your job, go out and do it everyday. I do my job everyday, and no one thinks I shouldn't. In this day and age, paying for a digital *copy* of anything is foolish. It costs next to nothing to make that copy. So little in fact that people are willing to do it themselves instead of going out to find someone to do it for them.
Just my thoughts.
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I made the comment that the music industry's business model is obsolete, and I think most people agree.
I also made the point that the laws are fine the way they are because the 'offense' is clear (whatever you call the 'offense'). However, I do agree that the punishments being doled out are inappropriate. Not because the amounts of damage to the artists are right or wrong, but because the convicted have no chance of paying the amounts awarded. I like the suggestion of a big chunk of community service and perhaps a few years of probation during which the offender may not obtain or possess any digital entertainment media for personal use. Make them feel the consequences of their crime without
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Face it, we need to rewrite the law for dealing with digital goods, I have no issue with the law being able to give huge awords in some cases but punnishing someone in school for life is not good for the peace of the state.
I cant wait till someone goes down the white pages and sends pree settlement letters to an entire city. Heck that might be a great way to make some money right now.
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"I cant wait till someone goes down the white pages and sends pree settlement letters to an entire city. Heck that might be a great way to make some money right now."
Good luck - false copyright claims such as this would be a fraud, and that could put your ass in jail.
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Additional info to Paul Brinker
"His punishment for what he has done is basically a life at the poverty line as his wages are garnished and he can never make to much money with out the system taking it away."
Paul,
A little additional information that I can pass along as an employer who has many times gotten paycheck court orders for things like alimony, debt judgments, and other judgments.
Every judgment order has attached to it the clear laws that instruct the employer how stack multiple judgments and the percent total of the paycheck that can be attached. I don't have one in front of me because I am at home and not at work, but the the total of all judgments amounts (and I think some taxes are included) can't exceed a ceiling of around 50% of the take home pay. They are very difficult to administer with employees who have variable hours and have to almost be hand checked to meet all the conditions of these orders.
I have never in 25 years seen any amount of combined orders be allowed to exceed 50%.
If you think about it, those protection laws make sense, because if the burden gets too high with combined judgments than the person goes underground and the creditor and child support disappear.
I am not disagreeing with the substance of your post just that there is a additional laws that apply to preserve paychecks.
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Could that possibly be due to a larger demand for the tix due to the new internet infringment inspired popularity of the bands? Yes. (there is in fact little other to turn to to be able to explain the situation).
"Thus, you can also deduce that if people actually paid for what they were using, the music industry would be booming."
Yeah you can deduce that, and you can deduce that people would simply "use" less music, or listen to the radio more. And overall the industry wouldn't be booming.
Mike's point is that popularity of music went up, and it did. Increased availability of a thing will always increase its popularity if it is something people like.
Mike's other point is that this increase in popularity offsets the supposed "loses". And it is indeed reasonable to conclude such.
I don't see how you morons can continue to miss this. If 10000 people know about your music, and love it and buy it (as well as misc sht you sell), in year 1, and in year 10 1000000 people know about your music, and love it and buy a small portion of it then you'll just about break even. However, when one considers all that misc sht you sell on the side, you came out very much in the black at year 10. The fact that IF you'd have had 1000000 people all buying all of your songs/records in year 10 you'd make bazillions is moot because you'd never have had 1000000 people know about your music in the first instance if they hadn't all been spreading your work around to each other. In other words, you can't have the bazillions in the filesharing scenario, or in the no filesharing scenario. Never going to happen.
The next question you have to ask yourself is: Do I want this young man I just sued coming to kill my children at their playground?
I imagine that most RIAA staff, when they get around to considering the last question will have a change of heart.
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If we are down to this level, well then, welcome to the true nature of "piracy". Hoist the jolly roger and make sure your sword is sharp!
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But is is still illegal to copy one of Janis' albums and give a copy to your friend.
Which action do you think is the greater violation of the desires and rights of that artist?
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