Judge Says Damages In Tenenbaum Case Were 'Unconstitutionally Excessive'
from the the-riaa-is-not-going-to-like-that dept
It seems like the Joel Tenenbaum case is simply an echo on the Jammie Thomas case. Both lawsuits involved very flawed defendants who probably shouldn't have gone through with their fights against the RIAA. In both cases, juries awarded huge statutory damages awards to the record labels. In Thomas' case it was $1.92 million or $80,000 per song. In the Tenenbaum case, it was $675,000 or $22,500 per song. Even though both cases were what I considered to be "bad" cases (too much evidence that both Thomas and Tenenbaum were actually heavily involved in file sharing), both have used the rulings to challenge the statutory damages awards as being unconstitutional.. and now the judges in both cases have agreed.As you probably recall, the judge in the Thomas case reduced the $1.92 million award to $54,000 (or $2,250 per song) and today comes the news that Judge Gertner in the Tenenbaum case has declared the original damages award to be "unconstitutionally excessive" and slashed the total by 90% down to $67,500. In both cases, the judges actually set the per song damages award down to $2,250. There were lots of questions when Judge Davis did this in the Jammie Thomas case if a judge could actually do that, and that's still being fought to some extent. It seems likely that, as with the Thomas case, the RIAA will appeal this particular ruling because it most certainly does not want a precedent on the books that can lower the statutory damages rate for copyright.
This could start to get very interesting. Both judges are clearly taking a stand that the actual statutory rates set by Congress are ridiculously high and totally out of proportion with the actions done by the defendants. There is definitely some precedent for ridiculously high damages awards being thrown out as unconstitutionally excessive... but not when it comes to statutory rates, where the courts have generally said Congress has great leeway to determine what is and what is not excessive. However, with two judges pointing out that a number within the range provided by Congress is excessive, it's setting up a potentially very important legal battle about the statutory damages associated with copyright.
The industry has always pushed for higher and higher damages, somehow believing that will act as a disincentive for infringing. Yet, there doesn't appear to be any evidence at all that it's working. Instead, such high damages have actually done the opposite. They've convinced many, many people of just how ridiculously unfair and out of touch copyright laws are. The general public can recognize that sharing a single file shouldn't lead to a fine of tens of thousands of dollars. It's so out of proportion with reality that they begin to question the overall setup of copyright law itself. The industry's focus on higher and higher copyright damages has been a major strategic mistake that has backfired. These rulings -- which the industry will fight tooth and nail -- might actually be a blessing in disguise for the industry. If the actual damages weren't so ridiculous, people probably wouldn't be so up in arms over copyright issues.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: copyright, damages, jammie thomas, joel tenenbaoum
Companies: riaa
Reader Comments
Subscribe: RSS
View by: Time | Thread
Purpose and Scope
[ link to this | view in chronology ]
Re: Purpose and Scope
[ link to this | view in chronology ]
Re: Re: Purpose and Scope
[ link to this | view in chronology ]
Re: Re: Re: Purpose and Scope
The basic principles of Torts would be a start.
Although the idea that "cruel and unusual punishnments" are inherently wrong seem to be what these judges are fixating on.
Those statutory damages were originally intended for bootleggers and are grossly out of proportion when applied to individuals swapping works.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
Wrong...and gay...
[ link to this | view in chronology ]
I still think they're high, but considering the defendents were fools for fighting the case, didn't look innocent, and in one case had a crazy legal team, it's not too bad.
Fining someone the equivalent of their lifetime income over some mp3's that were in a shared folder is beyond crazy. The fines for serious crimes that actually harm others is nowhere near these levels.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
Let me fix that for you:
"There are a lot of people out there that these awards are more than the individual's LIFETIME GROSS income."
Wait, thats still not right, let me take another pass at that:
"There are a lot of people out there that these awards are more than the individual's LIFETIME GROSS income MULTIPLE TIMES OVER."
Ah thats better, thats exactly what we have now.
[ link to this | view in chronology ]
Appeals are all but certain. If one of the two circuit courts of appeal (the one containing Massachusetts and the other containing Minnesota) agrees with the trial judges, a direct appeal to the Supreme Court would be taken up by the Supreme Court as it would involve a declaration that a duly enacted statute is unconstitutional (plus a whole host of other quite important issues, including the 7th Amendment). If the two circuit courts reverse the trial courts a petition for cert to the Supreme Court will likely be filed and may very well be accepted by the court (though any decision to do so is at the court's sole discretion).
Importantly, at both the circuit court and the Supreme Court the Department of Justice will present merit briefs fully supporting the constitutionality of the statutory damages provision.
Simply put, these cases have quite a long way to go before they are concluded.
Just my view, but I tend to believe that on appeal the appellate judges will likely focus less on the statutory damages provision itself, and more on the important relationship of the roles played by judges and juries, which is a 7th Amendment issue.
[ link to this | view in chronology ]
Re:
The reason statutory damages were set high originally was the assumption that infringement would be for commercial purposes. That they do not take into account non-commercial uses is part of the reason most people think they're a joke.
[ link to this | view in chronology ]
Re: Re:
Citation? Commercial use in a very general sense was the primary thrust for criminal copyright infringement up until the time the criminal statutes were amended in 1999, but it is a distinction that is not a part of the statutes pertaining to civil liability.
[ link to this | view in chronology ]
Re: Re: Re:
The history of copyright law and the Congressional record on current statutory rates...
[ link to this | view in chronology ]
Non-elected judiciary.
"To save the expense" Illegal file bartering has been held to be a commercial use, cutting off the defense of fair use in the U.S.: "...[C]ommercial use is demonstrated by a showing that repeated and exploitative unauhorized copies of copyrighted works were made to save the expense of purchasing authorized copies." A&M Records, Inc. et al v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001), at 1014.
Legislation from the bench has long been held by the knowledgable public in justifiable concern, since it is Congress’ job, not the judiciary to set the laws. It’s always rewarding to see the fanbois here applaud legislating from the bench when it happens to feed their own version of utopia.
[ link to this | view in chronology ]
Re: Non-elected judiciary.
Sigh, this argument is so silly. The judges decried the statutory damages awarded to be unconstitutional. Intepreting law and striking the law down when it is in itself unlawful is the PRIMARY purpose of the court system. It's the judiciary's check and balance on Congress. To claim that this is a case of legislating from the bench is moronic. To claim that the judiciary does not have the constitutional power of checking Congressional laws against the Constitution is a fundemental misunderstanding in the way our government is supposed to work.
In other words....WRONG!
[ link to this | view in chronology ]
Re: Non-elected judiciary.
(Couldn't help fixing that for you.)
"Further, these were jury findings, not the industry or the judge"
Meaningless, given the way juries are misled and restricted nowadays.
"The RIAA offered to settle for a fraction of the jury amount."
Not only meaningless, but insulting. Get an unjustly egregious award, then pretend to be reasonable by offering to settle for a less egregious award.
"And file sharing has been held as a non-fair use, commercial infringement since Napster, in 2001."
In certain circumstances.
"it is Congress’ job, not the judiciary to set the laws"
True, but it is the judiciary's job to oversee congress (checks & balances, remember?) to ensure that the laws comport with the Constitution. Congress does not have the right to pass any laws it likes, without restraint. That's a good thing.
[ link to this | view in chronology ]
@Sam I Am: sickening to see lawyers applauding dystopia.
[ link to this | view in chronology ]
Re: @Sam I Am: sickening to see lawyers applauding dystopia.
Well yeah. Okay.
You got me there.
[ link to this | view in chronology ]
Re: Non-elected judiciary.
It's always rewarding to see people applaud uninformed congressional decisions when they happen to feed their own version of utopia.
[ link to this | view in chronology ]
Re: Non-elected judiciary.
- This is a country of laws, if you don't like them leave the country.
- The law is the law and you have to follow it.
You I know is a paid shill. That keep posting ridiculous statements everywhere, have you visit Ars, TorrentFreak, DSLreports yet?
[ link to this | view in chronology ]
What happens if they can't pay?
[ link to this | view in chronology ]
Re: What happens if they can't pay?
IF this process as far as the record labels are concerned could be shown to work as a deterrent I can see why the labels pursue it, but seeing as how the numbers on file sharing are actually increasing I fail to understand why they are so willing to go down the this path. Its a very expensive and time-gobbling process. Even if it doesn't cost them in time it sure has hell costs them in billable hours. If they were even a bit creative think of all the money they could make diverting that wasted cash to creative ways to make money from music.
[ link to this | view in chronology ]
Re: Re: What happens if they can't pay?
Think about the 3 strikes that is in process with Youtube. Also think about the fact that ICANN has helped law enforcement in the takedown of 9 sites. It's far easier and less time consuming (read less money) to go after those than going after individuals. Especially when said individuals are all over the country.
[ link to this | view in chronology ]
Re: What happens if they can't pay?
[ link to this | view in chronology ]
Re: What happens if they can't pay?
[ link to this | view in chronology ]
No Electronic Theft Act 1997
[ https://secure.wikimedia.org/wikipedia/en/wiki/NET_Act ]
Previous to this dreadful piece of legislation the RIAA and it's like couldn't go after non-commercial, not for profit, infringers.
For those in the audience that like to pester our congress critters, this would definitely be a bad law to repeal.
(from the above mentioned link)
"Prior to the enactment of the NET Act in 1997, criminal copyright infringement required that the infringement was for the purpose of "commercial advantage or private financial gain." Merely uploading and downloading files on the internet did not fulfill this requirement, meaning that even large-scale online infringement could not be prosecuted criminally.[1] This state of affairs was underscored by the unsuccessful 1994 prosecution of David LaMacchia, then a student at the Massachusetts Institute of Technology, for allegedly facilitating massive copyright infringement as a hobby, without any commercial motive. The court's dismissal of United States v. LaMacchia suggested that then-existing criminal law simply did not apply to non-commercial infringements (a state of affairs which became known as the "LaMacchia Loophole"). The court suggested that Congress could act to make some non-commercial infringements a crime, and Congress acted on that suggestion in the NET Act."
[ link to this | view in chronology ]
Re: No Electronic Theft Act 1997
[ https://secure.wikimedia.org/wikipedia/en/wiki/NET_Act ]"
THANK YOU! This is the exact law and line of reasoning I was trying to get across. The idea that these huge statutory damages were ever to be wielded against individuals who were sharing (infringing) for non commercial reasons is a new concept and variation of the original intent of the law that has sadly been pushed to the forefront of these lawsuits, when that was never the intent of these laws to begin with.
[ link to this | view in chronology ]
Re: Re: No Electronic Theft Act 1997
I say "probably" because I don't know of one single case where this actually happened. Not prior to 1997, anyway.
Also, only registered copyrights are allowed statutory damages. Usually a copyright is only registered when there is the expectation of commercial gain. (Prior to 1976, if you didn't register, you didn't hold a copyright at all.)
So yes, it does appear that statutory rates for infringement were designed solely for commercial infringers.
If you haven't already, you should read the specific alterations to the law that the NET Act made.
A good portion of it is the institution of "victim impact statements" by rights holders. In other words, they're allowed to grandstand on how much non-commercial infringement "hurts" them, in order to get harsher sentences, without having to back up their claims. "Victim impact statements" are usually reserved for victims of violent crimes (it originated with the Manson murders). That they would be instituted here is a joke.
As an aside: Dave LaMacchia went to MIT with my brother. He's a nice guy.
[ link to this | view in chronology ]
Re: Re: Re: No Electronic Theft Act 1997
I take that back. The non-commercial nature of infringement was central to the case of Williams & Wilkins Co. v. United States (1973).
In this case, non-commercial copying was found not to be copyright infringement. It was one of the cases that helped form fair use doctrine.
If anyone else is curious, there's a pretty good copyright timeline at the Association of Research Libraries.
[ link to this | view in chronology ]
Re: Re: Re: Re: No Electronic Theft Act 1997
[ link to this | view in chronology ]
Re: No Electronic Theft Act 1997
Prior to 1997 "non-commercial" (an undefined term) infringement could not be prosecuted by the government under the criminal provisions of Title 17.
In 1997 the criminal provisions were changed such that under certain enumerated circumstances prosecution could take place and criminal sanctions applied (fine and/or imprisonment within certain limits).
If anything, this informs me that "non-commercial" infringement is clearly contemplated as activity subject to civil enforcement by rights holders, and that such enforcement may embrace either actual or statutory damages, at the election of rights holders.
[ link to this | view in chronology ]
Re: Re: No Electronic Theft Act 1997
That's my read as well.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
$5 - $10 per song would not be a deterrent, it would just by a minor annoyance, like swatting a fly. it would not make anyone consider not sharing.
settlements in the thousands make people think. it makes them reconsider their actions. that is the entire point.
[ link to this | view in chronology ]
Re: Re:
The only fair way would be to look at a users share ratio and the number of seeders and calculate exactly how much they contributed. Let them pay their share of it.
[ link to this | view in chronology ]
Re: Re:
If that's the point, then it's mistaken. People who engage in this type of copyright violation will continue to do so regardless.
Even besides that, does that end justify those means? Where would you draw the line? At what point is the punishment so far in excess of the damage that it is, itself immoral? I say that point has already been passed, but perhaps you would place it differently. Where do you draw that line?
[ link to this | view in chronology ]
Re: Re:
What is the fine for shoplifting? Maby $100 for a cd? About 10 tracks on a cd, about $10 per song seems do be enough of a deterrent for actually steeling the music.
Settlements if the thousands do make people think about how ridicules it is. Why not make speeding a multi million dollar crime? That might actually save some peoples lives, rather then prop up a failing business.
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Can you buy 100 song licenses for $18? Why yes. Yes of course.
Much better deal than $2,500 a piece.
[ link to this | view in chronology ]
Can you buy 100 song licenses for $18? Why yes. Yes of course.
Much better deal than $2,500 a piece.
[ link to this | view in chronology ]
I wonder if U.S. Copyright group is paying attention? Suddenly their threats of suing for $150,000 per single infringement have little teeth.
In fact, the new award imposed by the court ($2250) is even less than the $2500 settlement amount they are asking for per single infringement claim.
[ link to this | view in chronology ]
These fines are the same idea. People "know" they can get dinged for this, but the risk of being caught is low and the actual punishment is so far removed from the activity and so outrageous in scope that it doesn't serve as any kind deterrent or "educational" effect.
It's just another ridiculous case of corporate power being exerted through the law. And people wonder why piracy exists as a form of civil disobedience.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
MSRP
License fees
ASCAP
BMI
I'd go on but you get the point.
[ link to this | view in chronology ]
use WI-Fi hotspots and watch the RIAA/MIAA losers sue the hotels, McDs etc.
HA HA HA HA HA HA HA HA
[ link to this | view in chronology ]
Agreed. But, we all know they are going to keep pushing for harsher and harsher punishments to use as deterents. To use a really bad pun. I know I sound like a broken record on this, in the past month we have heard an industry type stating/joking there should be the death penalty for infringement, ACTA includes criminalization and jail time for infringement, they wont stop until their industry suffers a catastrophic failure. Its coming sooner than they think.
[ link to this | view in chronology ]
Copyright
I am moving toward believing copyright law is so hopelessly broken it should be all eliminated - though without campaign finance reform, it won't happen - too many legislators would be unelectable without the largesse from copyright holders.
[ link to this | view in chronology ]
Quick annoying request: Can you fix the tag (in this article and the follow-up) so that Tenenbaum is spelled correctly and all the articles are linked? Thanks!
[ link to this | view in chronology ]