Tenenbaum Appeal Heard: Is It Okay To Make Someone Pay $675,000 For Downloading 30 Songs?

from the we-will-soon-find-out dept

Tue, Apr 5th 2011 8:01am — Mike Masnick

The latest in the ongoing trial of Joel Tenenbaum, the student who was found guilty of sharing 30 songs online, and told to pay $675,000 for it, until the judge unilaterraly reduced the amount to $67,500. As we noted at the time, it really seemed like Tenenbaum had horrifically bad legal counsel, in the form of Harvard law professor Charlie Nesson, who still seems more focused on making the case a circus, rather than focusing in on the key issues. That does not, however, mean there aren't key issues here, with the big one being the appropriate standards for determining how much one should have to pay if found guilty of file sharing.

The appeal was just heard on Monday, and you can listen to the oral arguments (mp3) from the court's website. It's definitely an interesting hearing and worth listening to. As with most appeals court situations, the bulk of the work is done in the briefs that were filed prior to the hearing, and which everyone is familiar with. The oral hearings get right to the point and drill down on where the panel of judges has questions.

The hearing opens with a representative of the US Department of Justice, which stepped in on the case, because it was concerned that the court might rule that the statutory rates for copyright infringement (which, of course, can go up to $150,000 per infringement in cases of willful infringement) were not meant for cases like a person sharing copyrighted music for their own pleasure, rather than any commercial purpose. The Justice Department sides with the RIAA (of course), in saying that it's just fine to apply copyright law -- which really was designed for commercial cases of infringement -- to kids sharing files. At least one of the judges appears skeptical of this, asking directly:

Was file sharing in existence at the time the statute was passed?

The Justice Department tries to get around this by pointing to the legislative record from the last time the statutory damage rates were changed, but the judge is not buying it. He immediately points out that if this is what Congress intended, it's quite odd that no such cases (or perhaps one other case -- by which they're referring to the Jammie Thomas case) have been tried, involving file sharing for non-commercial means. The judge clearly seems skeptical that copyright law was intended for such cases. While the lawyer tries to explain all of this away, with some claim about how everyone makes choices in who they sue, another judge chimes in and points out that for all the claims that Congress meant for these damages to cover non-commercial file sharing, wouldn't Congress also know that the law had never been used that way.

The lawyer again goes on to insist that since file sharing "greatly multiplies the harm" to the copyright holder (um... citation needed on that one...), Congress must have meant for such ridiculous statutory rates to cover file sharing as well. Again, the judges seem skeptical, pointing out that in this particular case, the only evidence was that Joel Tenenbaum downloaded 30 songs, and the RIAA presented no evidence that anyone else copied from him. In other words, they immediately push back on the claims of "harm." The lawyer, again says that there's lots of other evidence, even though the labels chose not to bring it.

Once again, the court is skeptical. They ask the DoJ lawyer: if Tenenbaum had sat down in a single setting and downloaded 1,000 songs, would it be appropriate under the law to claim he owed $75,000 for each download. And the lawyer says, effectively, yes, after going through the specific statutory rates ($750 to $30,000 for non-willful, and up to $150,000 for willful). Realizing how ridiculous this sounds, the lawyer tries to focus on the fact that the judge can tell the jury about mitigating factors and be specific in the jury instructions.

From there, the lawyer for the record labels, Paul Clement, steps in, and claims that the ridiculously high damages are fine because Congress wanted to send a message about the harm of "willful" infringement. He then goes on to rail about how Tenenbaum's downloading destroyed "the value of the copyright," and complains about how the district court judge likened downloading to public performance rights. At that point, another judge interrupts, and says that he basically doesn't understand "the mechanics" of infringement, and would like more specific info.

After explaining (somewhat misleadingly, but carefully) how file sharing works, Clement goes on to rail against file sharing as being incredibly damaging, because it pushes people who download to also upload... and immediately a judge cuts to the heart of one of the key legal questions:

Is "making available" the same as distribution?

Clement sidesteps this, by noting that while the RIAA obviously thinks it is, that's "not an issue in this case." The judge doesn't want to give up, though, and asks him if the record labels "have the technological capacity to determine if distribution was actually effectuated?" Again, Clement tries to get around this, by saying it doesn't matter in this case.

Another judge asks a pertinent question about damages, wondering if the actual damage to the record labels was just "the lost sales" from people not buying the music, and Clement, quite ridiculously, then tries to pin the entire demise of copyright law on Tenenbaum:

"It's more than that, your honor. It's really the complete undermining of the copyright. What I mean by that is you can't just isolate what's going on here as if it's an individual's, by copying it, has not gone and bought the work on iTunes or not bought the work in a record store when we used to have record stores. What happens is, by distributing it to others, there are... the viral nature of this technology, really has a substantial impact on the value of the work. And the way I'd ask you to think about it is this: one, I think, relevant question in a statutory damages case is, what would it cost to get a license for what the defendant has done. And, if all the defendant had done was making a copy and that was it, then maybe an analogy to just getting a copy off of iTunes would be appropriate. But here, by distributing it... if someone wanted to go to one of the record companies and say 'we'd like to do what the defendant did in this case,' the value of that license would be essentially the value of the entire copyrighted work. Because the effect of putting this work up on peer-to-peer technology is essentially you take a copyrighted work, and put it in the public domain."

He goes on to blame the poor financial state of the record labels on file sharing, and seems to indicate that we should blame Tenenbaum for this.

After a brief, and somewhat inconsequential, discussion by Julie Ahrens, representing the EFF (which the judges clearly didn't have much interest in, pointing out that any of the issues raised should have been raised to the jury, not to them -- even though that would have raised questions by the RIAA folks of an attempt at jury nullification...), we move on to Tenenbaum's own defense, which was handled (with permission) by a Harvard Law student, Jason Harrow. He kicks off his talk by pointing out that the Justice Department's claim that companies didn't bring such lawsuits for non-commercial infringement in the past because it wasn't cost effective, is on its face ridiculous. After all, if you can get $150,000 per infringement for someone infringing on a $1 work, how is it not cost effective to bring that lawsuit over and over again (just ask the various mass file sharing lawsuit filers...). Instead, he notes that the better explanation is that "no one thought that the statute would apply to such consumer usage."

One of the judges immediately jumps in and says that Congress could have made an exception, but didn't. Harrow points out that perhaps it didn't because the result would naturally be absurd: the idea that someone sitting at home, listening to music, would suddenly be liable for billions of dollars, doesn't make any sense. The judges' questioning of Harrow seems focused on the specific standards and jury instructions, rather than on the larger issue.

Finally, Charlie Nesson presents, and goes through the history of copyright law, and how statutory damages were clearly, originally intended for commercial infringement, not non-commercial. One of the judges points out that the RIAA began these lawsuits in 2003, and if Congress was upset about them, it's had eight years to amend the statute to specify that statutory damages don't apply to non-commercial use. Of course, that ignores the reality, which is that it's effectively impossible for Congress to change copyright law in a manner that benefits consumers, since the entertainment industry would go ballistic. The court also chides Nesson a bit for "pushing the bubble" very far in some of his arguments.

Clement then comes back for a brief rebuttal, trying to claim that the very first Congress put in place statutory damages for copyright... which is immediately shot down by one of the judges, who notes that the Congress felt that statutory damages should not be punitive, which Clement tries to sidestep around (not very successfully, in my opinion).

And that's about it. If you had asked me prior to the oral hearing, I would have said that the court would almost certainly uphold the statutory damage rates as being perfectly reasonable. It just seems like the sort of question that the courts don't want to touch -- especially (as mentioned by one of the judges in the case) noting that Congress has said nothing on the issue in the last decade. However, I have to admit that I was surprised at how (I believe) two of the judges really seemed to dig in against both the Justice Department lawyer and the RIAA/labels lawyer, on the big key questions, and suggested, repeatedly, that they're not buying the overall claim. I'm still guessing that the court won't say that the award was unconstitutionally excessive, but I'm not nearly as certain after listening to the hearing as I was before it...

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Filed Under: appeal, copyright, damages, joel tenenbaum

85 Comments

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Anonymous Coward, 5 Apr 2011 @ 8:11am

Calling it the 'justice' department is a misnomer. There is nothing just about what it's doing.
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el_segfaulto (profile), 5 Apr 2011 @ 8:11am

No
That was easy!
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Thomas (profile), 5 Apr 2011 @ 8:50am

I'm baffled ..
I'm baffled why none of the defense teams in any of these cases ever dig into the actual facts and make the record companies prove actual damages. They know what songs were downloaded; they could research the sales figures, and make them show that after the date the song was downloaded, what the effect on sales was. Statutory damages are meant to be levied when actual damages are difficult to prove, but I would think someone, somewhere would try to tie the damages to some semblance of reality.
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- Ron Rezendes (profile), 5 Apr 2011 @ 9:26am
  
  Re: I'm baffled ..
  If you let reality into the equation then the labels barely have a case at all! They realize this and conveniently avoid any presentation of reality or facts when it comes to proving harm/damage. Stick to the theory not the reality.
  
  If they were awarded damages based on fact, the guy might actually have to pay for his music at full retail price and maybe damages are trebled. The total fine might be more like $200-$300, which would actually seem almost reasonable. But remember, reasonable is not an option and it certainly does pay the legal team!
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  - Ron Rezendes (profile), 5 Apr 2011 @ 9:28am
    
    Re: Re: I'm baffled ..
    ... it certainly DOESN'T pay the legal team!
    
    (Another vote for an edit button, MM!)
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  - Greevar (profile), 5 Apr 2011 @ 9:31am
    
    Re: Re: I'm baffled ..
    If that was all they could get and people knew it, they wouldn't even bother with it. So, here's to that happening!
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- MrWilson, 5 Apr 2011 @ 10:35am
  
  Re: I'm baffled ..
  The labels likely know that the damages are minimal or even non-existent and difficult to prove without a lot of expensive effort on their part. Not to mention the truth would hurt their arguments. Their arguments have always been based on exaggerated and melodramatic moral panics about how whatever they oppose is killing music and starving the artists, so reality is not on their side.
  
  By obfuscating the issue by simply stating it's not able to be proven, they can claim that the highly profitable minimal statutory damages are appropriate.
  
  The problem is that nobody charges drug-dealers for crimes they can't prove. You can't say, "he dealt drugs, but we don't know how many he sold, so we're just going to make up a number instead." If the RIAA can only prove someone downloaded or can only prove they downloaded from the defendant, they can only prove one or two violations.
  
  This is why they attempted to argue that making available is infringement. But if that were true, there's no logical way to quantify infringement. How do you divide up availability? Every second that a file is available is a second that it could be downloaded, so do we multiple how many seconds the files are available to determine the number of infringements.
  
  It's not logical to allow damages higher than the world's entire estimated worth, but that's what you'd have to do if you used RIAA math to determine damages.
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- rdm (profile), 6 Apr 2011 @ 1:02pm
  
  Re: I'm baffled ..
  If you google search irreparable injunctive harm, you should find pages which basically say that no amount of money can be enough to pay for copyright violation. And since this has been a legal tradition, when dealing with copyright law, the discussion generally needs to be on other subjects.
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Jay (profile), 5 Apr 2011 @ 9:13am

I can see a lot of people coming in to say that Joel should be punished for these obscene amounts. Nevermind the fact that he's only a math student and the RIAA makes a lot more than he does. Nevermind the fact that the artists still aren't being paid. No, the only solution is to take out the weak guy of the herd. The one struck by the lightning of the RIAA "sue-hammer."
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- Anonymous Coward, 5 Apr 2011 @ 9:54am
  
  Re:
  T was not a weak guy in the herd. The only reason this matter proceeded to trial is because T chose to do so in lieu of a very modest settlement that was repeatedly offered to him. Of course, it did not help that a group at HLS decided to take up his cause as a learning experience, and the proceeded to handle things miserably; nor did it help that T was his own worst enemy by his conduct leading up to and during the trial.
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  - MrWilson, 5 Apr 2011 @ 10:40am
    
    Re: Re:
    Damn right. It's the kid's fault that he got beaten up for not giving his lunch money to the bully. You gotta put these little punks in their place or the bullies might starve.
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    - Anonymous Coward, 5 Apr 2011 @ 10:48am
      
      Re: Re: Re:
      Tenenbaum was a gigantic douchenozzle throughout the entire process, shooting off his mouth and arrogantly thinking he could rewrite the law.
      
      If he only ends up owing $675,000, he should consider himself lucky.
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      - MrWilson, 5 Apr 2011 @ 12:06pm
        
        Re: Re: Re: Re:
        Please cite the law that codifies obnoxiously large penalties based on the defendant being, "a gigantic douchenozzle."
        
        Judge: "I sentence the defendant to death!"
        
        Lawyer: "But your honor, he stole a candybar!"
        
        Judge: "That doesn't matter. He's getting what he deserves for being, 'a gigantic douchenozzle throughout the entire process, shooting off his mouth and arrogantly thinking he could rewrite the law.'"
        
        Sounds stupid, doesn't it?
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        crade (profile), 5 Apr 2011 @ 12:20pm
        
        Re: Re: Re: Re: Re:
        heh, thats how judge judy's court works!
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        Anonymous Coward, 5 Apr 2011 @ 12:52pm
        
        Re: Re: Re: Re: Re:
        You implied he was bullied, which is BS. I replied with the fact that he behaved like a gigantic douchehydrant throughout the entire process. So nice logic fail there, pal.
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        Anonymous Coward, 5 Apr 2011 @ 2:57pm
        
        Re: Re: Re: Re: Re: Re:
        You implied he was bullied, which is BS.
        
        Hello bully,
        
        There was a story about a study not long ago that found that most bullies don't think that what they do do is bullying. Instead, they tend to think that they are justified because the victims somehow "deserve" it. You certainly seem to demonstrate that.
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        Anonymous Coward, 5 Apr 2011 @ 3:19pm
        
        Re: Re: Re: Re: Re: Re: Re:
        Really? I guess Tenenbaum was bullying musicians and record labels then.
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        Anonymous Coward, 5 Apr 2011 @ 6:57pm
        
        Re: Re: Re: Re: Re: Re: Re: Re:
        Record labels bully musicians, silly!
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        Anonymous Coward, 5 Apr 2011 @ 9:10pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re:
        That's just another lie freetards use to try and rationalize ripping off music.
        
        If it were true then no one would ever sign with a record label. duh.
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        Anonymous Coward, 5 Apr 2011 @ 9:28pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        That's just another lie freetards use to try and rationalize ripping off music.
        
        If it were true then no one would ever sign with a record label. duh.
        
        Hey, nobody said every musician was a genius.
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        Anonymous Coward, 5 Apr 2011 @ 9:26pm
        
        Re: Re: Re: Re: Re: Re: Re: Re:
        "Really? I guess Tenenbaum was bullying musicians and record labels then."
        
        Heh, typical bully response.
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        Jay (profile), 5 Apr 2011 @ 10:21pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re:
        And when they are dealt with, woe betide to the one on the receiving end of the pain
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        MrWilson, 5 Apr 2011 @ 4:12pm
        
        Re: Re: Re: Re: Re: Re:
        "T chose to do so in lieu of a very modest settlement that was repeatedly offered to him."
        
        The "very modest settlement" was bullying.
        
        "Give me money or I'll sue you for more than you'll ever make in your life."
        
        If you compare $675,000 to the $3000 in extortion money, it might seem modest, but if you compare $3000 to even 10 times the price of the music he downloaded, it's sadistic.
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        Anonymous Coward, 5 Apr 2011 @ 11:35pm
        
        Re: Re: Re: Re: Re: Re: Re:
        This is some amusing stuff you jokers are dreaming up.
        
        So Joel should only have to pay up to the value of what he stole??? That's funny. Willful infringement penalties *by law* state he would owe more than that. Which is also, btw, far, far more than the settlement he was offered.
        
        But like that other sociopath, Jammie Thomas, he refused to settle.
        
        He just a huge tool that thought he could make a mockery of the law and deserves his ass being handed to him.
        
        Which is exactly what is happening.
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        Not an Electronic Rodent (profile), 6 Apr 2011 @ 1:01am
        
        Re: Re: Re: Re: Re: Re: Re: Re:
        So Joel should only have to pay up to the value of what he stole???
        
        Nope, he should pay nothing because by the plaintiff's lawyers own argument what he downloaded was public domain or at least inherently valueless to the copyright holder. Fantastic argument from the lawyer there and you think it's the defendant that's making a mockery of the law?
        Tell me, do you have better justification for thinking that $75,000 per song (I.e. I'm guessing about 2 years average wages) is a reasonable number? Something that, unlike the argument given, doesn't mean the song was already valueless when it was downloaded? I'll give you a start to cross some off;
        "Because it's the law" isn't a justification
        "Because he's a 'douchenozzle'" isn't a justification
        "Because you're all a bunch of freetard thieves" isn't a justification
        "Because he's the only one we can get so we may as well stick him with the whole amount we think me might ever hypothetically lose" isn't a justification
        
        What else have you got?
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        Anonymous Coward, 6 Apr 2011 @ 1:18am
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re:
        Nope, he should pay nothing because by the plaintiff's lawyers own argument what he downloaded was public domain or at least inherently valueless to the copyright holder.
        
        ???
        
        Please share with us what you're smoking these days.
        
        What's this "he was the only one they could get" BS? Almost every infringer (the sane ones) settled once they were caught. They took the risk and payed the consequences for breaking the law. The law is what we're talking about here. I'm sorry that your fantasist method of existence causes you to be in denial about that, but that's the reality. Especially for Joel.
        
        Joel was the idiot that decided to take his case to court. Once he was found guilty, he was fucked. The law dictates damages. You can't blame the RIAA for that, sorry bud.
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        Anonymous Coward, 6 Apr 2011 @ 1:26am
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        paid, not payed.
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        Jay (profile), 6 Apr 2011 @ 6:11am
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        "What's this "he was the only one they could get" BS? Almost every infringer (the sane ones) settled once they were caught. They took the risk and payed the consequences for breaking the law. The law is what we're talking about here. I'm sorry that your fantasist method of existence causes you to be in denial about that, but that's the reality. Especially for Joel."
        
        No they didn't. The courts turned against quite a few of the lawsuits with joinder issues, issues of jurisdiction, and issues of trying to go after dead people.
        
        Yeah, that was really smart of them.
        
        And the RIAA lobbied for that change in statutory damages in 1998 with the DMCA. So yes, you can blame the RIAA for that one, bud.
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        Not an Electronic Rodent (profile), 6 Apr 2011 @ 12:02pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        Well done for totally ignoring the question in favour of a sematic attack.
        
        For reference:
        Nope not smoking anything, simply following the logic of the prosecuting lawyer as I explained above.
        
        If you actually bothered to read my comment before wading in to try and trash it you'd have read that I was simply excluding "He was the only one they could get" as a valid justification for such a grossly out of proportion to the damage award.
        
        I also excluded "Because it's the law" as a justification as it's a fact not a reason. Not so long ago it was fact in england that killing a dear was cause for summary execution according to law. The fact of it being a law doesn't make it a just one. I asked what your reason for thinking it justified was.
        
        The defendant's idiocy or not is also not a justification for a law. If it were I suspect you would not be able to afford the computer to (not) reply.
        
        To recap:
        Other than there I was referring to the plaintiffs' own lawyer's argument in response to your previous post I wasn't referring to this case. I am also not necessarily saying that it is not a crime nor that there should not be a reasonable punishment if it is.
        I was asking what you believe to be the justification for bankrupting someone for life when their individual actions had little or no effect of actual damage on the plaintiff.
        
        Are you interested in answering the question or woudl you like to rant tangentially some more?
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        Anonymous Coward, 6 Apr 2011 @ 1:25am
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re:
        btw, he ripped off at least 1000 songs; how in the world are you coming up with a 75K per song figure? That would be 7.5 million dollars total... which isn't even remotely close to what is happening.
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        The eejit (profile), 6 Apr 2011 @ 3:10am
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        Because, and you seem to be shooting for the moon here, there are only thirty songs being sued over.
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  - Jay (profile), 5 Apr 2011 @ 10:52am
    
    Re: Re:
    I want to dissect this quite carefully so as not to misconstrue intent.
    
    The only reason this matter proceeded to trial is because T chose to do so in lieu of a very modest settlement that was repeatedly offered to him
    
    This has absolutely NOTHING to do with the incentives raised by the DMCA and the extended length of copyright laws in the US. This seems to only say to people "You're guilty, fess up and pay up!", which is NOT the reason he should have been sued in a civil court. Add this that the statutory damages seems to believe that he's responsible for the behavior of others to "send a message" and you have the grounds for abuse.
    
    Of course, it did not help that a group at HLS decided to take up his cause as a learning experience, and the proceeded to handle things miserably;
    
    I recall that T also came to the summons with no lawyer and Nesson volunteered to do it. Think about that... He's a regular person being sued for a large amount by a company with 5 lawyers. No matter if HLS was inexperienced or not, not lawyers stepped up to the plate to take the case pro bono nor did they try to touch this case other than through Nesson. That was the best he could get and I doubt that would have changed.
    
    nor did it help that T was his own worst enemy by his conduct leading up to and during the trial.
    
    You try being under a lawsuit where you may have your wages garnished, for an amount 10x your income, for the rest of your natural life. Then tell me you won't do everything to avoid such an amount, that was picked out of thin air, and has no basis in reality.
    
    Now with that out of the way, here's my opinion:
    
    It's quite deplorable that people continue to look at the proceedings, the lawsuits, and the entire "sue the world" mentality of businesses for copyright infringement and blame the victims here. Just because we have the letter of the law in the US, doesn't mean the spirit, or intention behind them should be faulted. There is NO evidence that Tenenbaum's actions caused the downfall of the RIAA. There is a LOT of evidence noting that the RIAA's lawsuits didn't stop filesharing, hurt their signatories, and was not worth the hassle of even trying the "educate" the populace when there is nothing wrong with an abundant good.
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    - Anonymous Coward, 5 Apr 2011 @ 11:59am
      
      Re: Re: Re:
      Perhaps the problem here is that you view T as the "victim", and not the "perpetrator".
      
      The evidence produced at trial made it clear that T knew what he was doing was illegal, and yet he persisted over a long period of time. This is not the hallmark of a victim. It is the hallmark of a fool.
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      - MrWilson, 5 Apr 2011 @ 12:09pm
        
        Re: Re: Re: Re:
        He "stole" (not really though) less than the equivalent 30 candybars (they're getting expensive these days..).
        
        Garnishing his wages substantially for the rest of his life is not the hallmark of justice. It is the hallmark of financial sadism.
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        Anonymous Coward, 6 Apr 2011 @ 1:36am
        
        Re: Re: Re: Re: Re:
        He "stole" at least 1000 songs and admitted to it.
        
        Why are you trying to defend the indefensible?
        
        Change copyright law or shut your piehole when it's enforced.
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        Anonymous Coward, 6 Apr 2011 @ 8:57am
        
        Re: Re: Re: Re: Re: Re:
        How do you steal a thing when you simply made one more of it?
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      - Anonymous Coward, 5 Apr 2011 @ 12:16pm
        
        Re: Re: Re: Re:
        The evidence produced at trial made it clear that T knew what he was doing was illegal, and yet he persisted over a long period of time. This is not the hallmark of a victim. It is the hallmark of a fool.
        
        Kinda like Rosa Parks and others, huh?
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        Anonymous Coward, 5 Apr 2011 @ 12:55pm
        
        Re: Re: Re: Re: Re:
        I'm totally sure you'll never get bitten by major karma for comparing Rosa Parks' difficult journeys to the people that steal music.
        
        Absolutely sure.
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        Jay (profile), 5 Apr 2011 @ 1:53pm
        
        Re: Re: Re: Re: Re: Re:
        Yeah, those damned thieves caused over $75 trillion dollars of damage to the economy.
        
        Curse those Johnny Depp thieves!
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crade (profile), 5 Apr 2011 @ 9:30am

heh, I love the way they keep trying to say the whole reason the damage is so high is because of the damage from redistribution, but it's not relevent whether or not any redistribution occured.
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- Greevar (profile), 5 Apr 2011 @ 9:37am
  
  Re:
  Yeah, it seems that they want to blame Tenebaum and Thomas for all of the infringing copies out there. In reality, they have the capacity to share with maybe a few people a day while sharing it, if they shared it at all. At worst they should be required to pay no more than 10 times the retail value of each infringing copy in their possession.
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- Anonymous Coward, 5 Apr 2011 @ 9:57am
  
  Re:
  Redistribution is incredibly relevant and the primary, but not sole, right that was litigated.
  
  If the case had been solely about what T downloaded, litigation almost certainly would have never ensued.
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  - Greevar (profile), 5 Apr 2011 @ 10:08am
    
    Re: Re:
    Wrong. This whole fiasco ensued because the RIAA wanted to fire off a bunch of "pay up or else" threats to fleece ignorant people of their money. Unfortunately for the RIAA, one person decided to call them on their bluff and now they have to try to prove their case or allow a devastating precedent to occur that would undermine their whole argument and expose it for the false rhetoric it really is.
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    - Anonymous Coward, 5 Apr 2011 @ 10:19am
      
      Re: Re: Re:
      The labels have already proven their case and prevailed at trial on the merits. What is now being argued is essentially the respective roles of judges and jurors, and this is an issue of no small moment.
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      - Anonymous Coward, 5 Apr 2011 @ 10:41am
        
        Re: Re: Re: Re:
        What's are you doing bring facts into the discussion? This is a piracy cheerleading blog, remember?
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        Anonymous Coward, 5 Apr 2011 @ 11:18am
        
        Re: Re: Re: Re: Re:
        But the recording industry won, right? So piracy is over, right?
        
        Or maybe it's a bit more complicated then, "They prevailed at trial. Case closed. Nothing else matters except that part."
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        crade (profile), 5 Apr 2011 @ 12:11pm
        
        Re: Re: Re: Re: Re: Re:
        It's over? Finally. That "war on piracy" had so much collateral damag, you'd almost think they were trying to hit the civies! Can I make a rap song now?
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      - Greevar (profile), 5 Apr 2011 @ 11:13am
        
        Re: Re: Re: Re:
        That's not what you were talking about in the previous comment. You were talking about the reason it was litigated in the first place and I pointed out that you were wrong. What I said isn't what the final result came to be, but that was the what the issue was at the onset.
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  - crade (profile), 5 Apr 2011 @ 10:42am
    
    Re: Re:
    Yet every time the evil guy is asked if there is any evidence that redistribution occured, he says it isn't relevent.
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    - crade (profile), 5 Apr 2011 @ 10:47am
      
      Re: Re: Re:
      Sorry, I should have been more clear. I wasn't giving my opinion on the relevence, I was talking about the article.. Specifically, here:
      "The judge doesn't want to give up, though, and asks him if the record labels "have the technological capacity to determine if distribution was actually effectuated?" Again, Clement tries to get around this, by saying it doesn't matter in this case."
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      - Anonymous Coward, 5 Apr 2011 @ 12:23pm
        
        Re: Re: Re: Re:
        It helps to read the actual trial transcript to realize that distribution was not an issue because T had already admitted he had done so.
        
        Thus, there really was no issue to "get around" because it was not an issue for purposes of the appeal.
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        crade (profile), 7 Apr 2011 @ 9:00pm
        
        Re: Re: Re: Re: Re:
        I'll admit I still haven't read the transcript (yuck) but
        what you said still makes no sense. The judge is asking if distribution took place. That isn't something that "T" would do, so he couldn't admit to doing it. He asking if they were actually distributed (if anyone actually downloaded them, and, if so I would only assume the followup would be asking for a quantity since that would be relevent to potential damage).
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Not an Electronic Rodent (profile), 5 Apr 2011 @ 9:37am

Whoa! Headspin! Logic Loop.....,
Because the effect of putting this work up on peer-to-peer technology is essentially you take a copyrighted work, and put it in the public domain."

If he downloaded it, then it must by the lawyer's own argument have already been in the public domain as once the work has been uploaded "the copyright value is removed".

By that reasoning they can go after the original uploader (assuming they can track such a person down)for 2 Gazillion pounds, but any downloader who subsequently shares it is de-facto sharing public domain content and therefore not infringing.....

It's kinda funny (in a sick sort of way) watching the the tortuous knots these people seem to generate to try and steal money from anyone they can find
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Anonymous Coward, 5 Apr 2011 @ 9:44am

Excellent reporting, Mike. Job well done. The result is absurd, and I wouldn't put it past the circuit court to agree.
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- Anonymous Coward, 6 Apr 2011 @ 1:42am
  
  Re:
  That wasn't anything even resembling reporting. It was taking parts out of context and giving them the spin he enjoys giving.
  
  It's his blog, and he's free to do that, but don't confuse it with "reporting".
  
  This blog has an agenda that, while latent in the past, is now very overt; despite the owner being too much of a wussy to admit it.
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  - The eejit (profile), 6 Apr 2011 @ 3:12am
    
    Re: Re:
    Says you, the failed musician, blaming it all on piracy. How often were you out playign gigs? Were you actually bothering to connect with people, or were you just saying, "It's not my job to connect, people should love me anyway!"
    
    You're not Justin Bieber, whom, while I thionk his music is awful, had an amazing business model to work from.
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Brian Schroth (profile), 5 Apr 2011 @ 9:46am

Lawyer:"It's more than that, your honor. It's really the complete undermining of the copyright. What I mean by that is you can't just isolate what's going on here as if it's an individual's, by copying it, has not gone and bought the work on iTunes or not bought the work in a record store when we used to have record stores. What happens is, by distributing it to others, there are... the viral nature of this technology, really has a substantial impact on the value of the work. And the way I'd ask you to think about it is this: one, I think, relevant question in a statutory damages case is, what would it cost to get a license for what the defendant has done. And, if all the defendant had done was making a copy and that was it, then maybe an analogy to just getting a copy off of iTunes would be appropriate. But here, by distributing it... if someone wanted to go to one of the record companies and say 'we'd like to do what the defendant did in this case,' the value of that license would be essentially the value of the entire copyrighted work. Because the effect of putting this work up on peer-to-peer technology is essentially you take a copyrighted work, and put it in the public domain."

Judge: So when a work is shared on P2P networks, you essentially lose the entire value of that work?

Lawyer: Yes, exactly!

Judge: And would it be safe to say that nearly all of your company's works are currently being shared on P2P networks, if not by this defendant than by others?

Lawyer: Yes! It's destroying our industry!

Judge: So since you have lost the entire value of all of your works, your revenue for the past year was $0, right?

Lawyer: Um...
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- Ron Rezendes (profile), 5 Apr 2011 @ 4:36pm
  
  Re:
  Judge: So since you have lost the entire value of all of your works, your revenue for the past year was $0, right?
  
  Lawyer: Um...only when we have to figure out what we actually owe to the artists, then yes, it is $0.
  
  Judge: Please allow Marshall Bruce Mathers III to enter the courtroom. {MBM III enters} Mr. Mathers, could you please tell the court how much money you were paid in royalties last year for your music?
  
  MBM III: I was paid $X, your honor based on sales of #Y number of copies in physical formats. However, the label claims that all my songs on iTunes are only licenses for which I should be paid $X + 20% since the digital distribution is relatively zero cost, according to my contract.
  
  Judge: Are you the only artist signed to a contract with this label?
  
  MBM III: No, your honor.
  
  Judge: Council, you are full of shit!
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Anonymous Coward, 5 Apr 2011 @ 9:47am

Re the headline:

While the litigation was limited to 30 songs for the sake of simplifying the proceedings, it was admitted by T at the trial that he had wilfully downloaded well over 1,000 songs that were then placed in his P2P distribution folder.

To say this is about 30 songs is plainly wrong.
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- Anonymous Coward, 5 Apr 2011 @ 10:02am
  
  Re: ?
  The RIAA chose to make this case only about those 30 songs, so the headline's not wrong, it's accurate.
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  - Anonymous Coward, 5 Apr 2011 @ 10:44am
    
    Re: Re: ?
    It's just another example of Masnick leaving out any details that might make his pirate friends look even worse.
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    - Dave, 5 Apr 2011 @ 11:15am
      
      Arrrr!
      Arrrrr!!! I be one o' Mike's pirate friends, and I be assurin' ya, there be no way of makin' me look worse! I be missin' 23 teeth and I have a heap of parrot droppins on me shoulder. I be also missin' me right hand where a croc bit it off and me left leg at the knee. I haven't bathed in months unless you be countin' the sea spray or rain water. Thanks to Mike I no longer be needin' to work for me livin'. I just sit back and live off me ill-gotten mp3z and moviez. Ha ha ha ha!!! Take that ye scurvy dog!
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    - Greevar (profile), 5 Apr 2011 @ 11:15am
      
      Re: Re: Re: ?
      You must really like telling lies.
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- Greevar (profile), 5 Apr 2011 @ 10:03am
  
  Re:
  Is he being sued for 30 songs or 1,000? Who gives a shit what he claims he downloaded? He's on the hook for 30 songs and that's what the case has to be measured by. The headline is not misleading, you are. The courts base their decisions on the accusations at hand, not what he isn't being accused of. If you think he should be on for 1,000 songs, then complain that they aren't doing that, but don't call a title misleading when it is actually fact. You're obviously trying to silence the messenger by discrediting him.
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- Anonymous Coward, 5 Apr 2011 @ 10:41am
  
  Re:
  You are plainly wrong, actually, but thanks for playing the condescension game.
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- crade (profile), 5 Apr 2011 @ 11:59am
  
  Re:
  You are right! They should be arguing for 22,500,000$ for 1000 songs instead!
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Harrekki, 5 Apr 2011 @ 10:16am

Wait, let me see if I get this right:

"the student who was found guilty of sharing 30 songs online, and told to pay $675,000 for it."

Then later you tell me:

"and you can listen to the oral arguments (mp3) from the court's website."

So now I am confused. I can download an MP3 which has no release of Copyright information, about a court case where a kid got sued for downloading and sharing MP3's which were under copyright, but never said so?

"Pot? it's Kettle. Imma SUE YOU."

it would be funny if they played the 30 songs in the oral arguments, so now they would be public domain in a free to use MP3 from the courts..........
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- Anonymous Coward, 5 Apr 2011 @ 10:23am
  
  Re:
  Ignoring the question of copyright as it pertains to the downloadable mp3, it cannot be denied that the mp3 is there specifically so that it can be downloaded and listened to.
  
  The same cannot be said of that which T downloaded and distributed.
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  - Anonymous Coward, 5 Apr 2011 @ 11:25am
    
    Re: Re:
    What does Mr. T have to do with any of this?
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    - coldbrew, 5 Apr 2011 @ 11:31am
      
      Re: Re: Re:
      Obviously, he, "Pities the fools that try to copy his records!"
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  - Togashi (profile), 5 Apr 2011 @ 11:55pm
    
    Re: Re:
    Where he got them, no doubt the mp3s Tennenbaum downloaded were "there specifically so that [they] could be downloaded and listened to". Whoever had put them there just didn't have the right to do so.
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  - Ron Rezendes (profile), 6 Apr 2011 @ 9:57am
    
    Re: Re:
    It's amazing how the AC shill/trolls, aka shit-rolls, claim that ALL file sharing is piracy (wrong!), which equals theft (wrong again!), but when the technology is useful in other ways it's perfectly fine to use as a modern communications tool (hypocrite!).
    
    "Ignoring the question of copyright as it pertains to the downloadable mp3, it cannot be denied that the mp3 is there specifically so that it can be downloaded and listened to."
    
    Anyone who downloads unauthorized mp3's pretty much ignores the question of copyright already - isn't that what this case is all about? Where is the explicit authorization for this file?
    
    In fact, every mp3 that can be found online ANYWHERE is there specifically to be downloaded and listened to - that's why the format was chosen.
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Dave, 5 Apr 2011 @ 10:31am

I've been wondering...
If I get sued for sharing via bit torrent, it would be fairly easy to show exactly how much I distributed. Usually my ratio doesn't get much higher than 1.5 to 2. So I would have distributed at most 2 copies. Pretty easy to determine damages in that case and I would think harder to say that statutory damages should apply. I haven't seen any cases that used bit torrent go to trial though.
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- Anonymous Coward, 5 Apr 2011 @ 10:55am
  
  Re: I've been wondering...
  The most they could sue you for in one lawsuit is a single award of damages for each work you infringed. Even if you shared the same file many times, it's only one award of damages for all of those shares. Now, how many times you shared it would factor in determining where in the range of damages the award would be, so it matters in that sense.
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- Jay (profile), 5 Apr 2011 @ 11:00am
  
  Re: I've been wondering...
  Remember, this was on P2P networks. BT came later and has legal uses. But if you delete your torrent, it's going to be harder to find out how much you've leeched:seeded since I believe the torrent restarts. I think the torrent is restarted also if you move the file. So there's added things to look into on BT.
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Anonymous Coward, 5 Apr 2011 @ 10:53am

Abolish Copyright
Patents too.
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Anonymous Coward, 5 Apr 2011 @ 11:24am

Why would Congress go against the people that give them so much money? That's all the politicians seem to care about is enriching themselves. They forgot all about "by the people for the people" long ago once big business starting paying for their votes.
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- The eejit (profile), 5 Apr 2011 @ 1:35pm
  
  Re:
  Because they're supposed to be for the people, not for the imaginary people who pretend to be people being not-people who are given personhood.
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sagescape (profile), 5 Apr 2011 @ 12:54pm

Audio now on YouTube, with helpful annotations
I took the liberty of posting the audio in easier-to-digest YouTube format, complete with annotations so that you can tell who is speaking when.
- Part 1: United States as intervenor-appellant. Argument by Jeffrey Clair, Department of Justice, Civil Division. http://www.youtube.com/watch?v=1gLXSnCzgNM
- Part 2: Record labels as plaintiff-appellant. Argument by Paul Clement, Partner, King & Spalding. http://www.youtube.com/watch?v=6s5Omh2bDdA
- Part 3: Electronic Frontier Foundation as amicus curiae. Argument by Julie A. Ahrens, Associate Director, Fair Use Project, Center for Internet and Society at Stanford Law School. http://www.youtube.com/watch?v=-lqHuukDW-c
- Part 4: Joel Tenenbaum as defendant-appellee. Argument by Jason S. Harrow, Student, Harvard Law School, and Charles R. Nesson, Weld Professor of Law, Harvard Law School. http://www.youtube.com/watch?v=VWy3Wj6XbDk
- Part 5: Record labels� rebuttal. Clement again. http://www.youtube.com/watch?v=WI-3YYN3xxY
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Paul Keating, 6 Apr 2011 @ 3:14am

Interstate Commerce anyone?
Perhaps I am missing something here. However, Congress has the right to adopt laws if they impact interstate commerce. Otherwise they are within the exclusive mandate of the various States. Assuming the above is correct (chime in here anyone), the only touchstone for application of the law would be use in interstate commerce. Now that term is quite broad but is it sufficiently broad to support a federal claim against an individual who uploaded 30 songs without any commercial intent?

PRK
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- Anonymous Coward, 6 Apr 2011 @ 8:00am
  
  Re: Interstate Commerce anyone?
  Legislative power under Article 1 of the Constitution has many facets, one of them, of course, being the power to regulate commerce among the several states, as embodied in the "Commerce Clause". Copyright law, however, is based upon a separate and distinct power enumerated in Article 1, namely, the "Patent and Copyright Clause".
  
  The issues here arose under the latter.
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Anonymous Coward, 6 Apr 2011 @ 10:19am

"Ignoring the...." was inserted intentionally, and if you were familiar with 17 USC 105 you would immediately understand why it was inserted.

The file in question was lawfully made available for downloading, so your idignation and pejorative comments are missplaced.
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- Anonymous Coward, 6 Apr 2011 @ 10:23am
  
  Re:
  As an aside, had T limited his activities to downloading oral arguments published by the courts themselves, and not to the music from the plaintiff record labels, he would never have had a problem in the first place.
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- duffmeister (profile), 6 Apr 2011 @ 11:48am
  
  Re:
  In the future to help the debate and education can you link to the law you are referencing? This would help me out immensely as I like to read them and see how it pertains to the discussion.
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Zoltoid, 7 Apr 2011 @ 12:51pm

I'm no American but I've studied a bit about the American Constitution. I recall something about the Constitution being against cruel and unusual punishment. To me a 600 and some odd thou for 30 illegally downloaded songs sounds a lot like just that. AMERICA WAKE UP!
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