District Court: $675,000 For Non-commercially Sharing 30 Songs Is Perfectly Reasonable
from the pay-up dept
Let's be clear on one thing: Joel Tenenbaum should never have allowed the record label lawsuit against him to go forward. As with Jammie Thomas before him, he was not a good defendant, and had too many factors that clouded the key questions concerning the statutory damages rates in copyright law. Even worse, he lied to the court and his lawyers seemed more focused on making a point than mounting a defense. As we said all along, he needed to find better lawyers (and he probably shouldn't have fought this in the first place). Even the judge, who clearly was sympathetic to Tenenbaum's side of the story, rejected his basic argument, on which his legal team seemed to bet their whole strategy -- and then berated his legal team for their dreadful handling of the case.Given all of that, it's easy to conflate all of those other issues with the important one: are the statutory rates for copyright infringement, especially in cases of non-commercial, personal use, Constitutional? The original judge, Nancy Gertner, argued that they were unconstitutionally excessive, which became the focus of the appeals process. The appeals court rejected the process Gertner used to come to that conclusion, saying that she should have used "remittitur" to reduce the award and offer the RIAA a chance for a new trial (as happened in the Jammie Thomas case). Instead, Gertner effectively tried to jump the line, by going straight to a Constitutional argument. The appeals court noted that it was too early in the process for that, and she should have used remittitur first. As such, it reinstated the original jury award of $675,000 for sharing 30 songs. The Supreme Court then refused to hear the case, which wasn't a huge surprise either.
So... back down at the district court, with a different judge, who doesn't seem nearly as sympathetic. Given that the judge is 80-years-old, it's perhaps not a surprise that she seemed to spend more time talking about what a naughty kid Tenenbaum was, rather than the actual reasonableness of the rates. The court has now said, not only does it not find $675,000 constitutionally excessive for sharing 30 songs, but that it doesn't even qualify for remittitur, because $675,000 is not "grossly excessive, inordinate, shocking to the conscience of the court." In other words, a $675,000 judgment is perfectly reasonable for sharing 30 songs. The judge, not surprisingly, focuses on many of the elements that we discuss above in arguing why it's not excessive, with Tenenbaum's continued use of file sharing and his lies, to support the supposed reasonableness of the ruling. She never actually looks at whether the numbers make sense, but merely suggests that because he didn't revere copyright law, that such an award is perfectly reasonable.
Unfortunately, it seems that Tenenbaum's behavior -- which we agree was not good at all -- clouds the larger issue of just how insane the statutory damages are. Some, of course, will point out that he's been accused of sharing a lot more than 30 songs, but that doesn't matter. The trial was about 30 songs. We don't punish people in a court for stuff they're not charged with and which they can't defend against. If you want to say that $675k is reasonable for thousands of songs, then he should have been charged with infringing on that many songs.
The judge argues that one of the factors that makes this "reasonable" is that if Tenenbaum had wanted to license the songs for distribution himself, the cost would have been "enormous," according to the labels. But that's a silly comparison, because this wasn't a commercial venture and he wasn't looking to set up a service -- he was just doing what millions of people around the world do -- whether you think it's right or wrong. As such, any thinking person should recognize that a $675k fine for the personal sharing of 30 songs seems offensive to the senses, even if you agree that Tenenbaum is not particularly apologetic for what he did. It really is a situation where tons of people were doing it, and right or wrong, it had become the norm. Something is wrong with a legal system that burdens people with such out of proportion awards for doing what everyone's doing.
And despite the RIAA cheering on this decision, claiming that it's "pleased" with the decision, it actually hurts them too. When ordinary people see $675,000 judgments for sharing 30 songs, they respect copyright less, because it seems so out of proportion with reality.
This case probably isn't over yet, and there will likely still be an appeal to get at the Constitutional questions. But, I'm worried that Tenenbaum's own bad actions, separate from what he's accused of, are clouding the water here, and actually make this a bad and potentially dangerous case. That the court has upheld the $675,000 isn't a surprise, but it should still be worrisome to people in terms of the precedent it will set for the next group of people accused in this manner, who didn't act the same way Tenenbaum did.
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Filed Under: $675, 000, constitutional, copyright, joel tenenbaum, non-commercial sharing, statutory damages
Companies: riaa
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They need to collect that $74 Trillion, one outrageous judgement at a time.
Why not just set the retail price of music at $675,000 for 30 songs and offer them in internet downloadable format? That would work.
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I do not care who is coming out or what movie or what new TV Show.All of these Big Content A-Holes have lost me as a Customer for life.
If I decide to spend any of my cash it will either be on Local Art or it will be on something INDIE.
Let the Mindless Stupid Consumers flock to the A-Hole Copyright Maximalists.
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Fucking moron. Take your cash where you want. No one wants your tens of dollars anyway you homeless tard. The "Mindless Stupid Consumers" outnumber you and will continue to outnumber you. Rather than making fun of those people, you'd serve your cause better by trying to change minds. Instead you just want to be different and stick it to the man because you're trapped in the mind of a 12 year old emo kid who hates authority.
You were beat before you ever started your rally. Take your tens of dollars elsewhere because we don't want them.
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Step 1 - Take lots of "fucking morons" tens of dollars
Step 2 - ???
Step 3 - PROFIT!!
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Bed. Made. Lie.
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Oh its a lot worse than that. What actually happens is, the RIAA charges ALL costs back to the label, who then charges back those costs to the artist(s) against their "recoup" costs. So, the money collected stays with the RIAA, with none being disbursed to the artist (whom, the RIAA and labels claim, is who the prosecutions and fines are for), but ALL costs are charged ultimately to the artist.
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Needless to say the only case they let go to trial was the one they felt they could easily win, and they had thousands of people to choose from.
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The RIAA have made it extremely clear that any money from these endeavours are to be thrown back into the machine to sue more people. Artists won't be seeing a dime.
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Sometimes, a person or organization is primarily defined by what they are willing to do to others in order to "win" and their attitude in so doing. The RIAA could have turned around right after the judgment and said, "We think we've made our point, and it isn't our goal to destroy people over this. We'll unilaterally forgive 99 percent of his debt if Mr. Tenenbaum will sign an agreement not to appeal this any further." That was their opportunity to show themselves to be something other than villains.
I'm saddened but not at all surprised.
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I look at this case and I hope the outcome is that it is appealed, the Court of Appeals finds that the case is now ripe for the Constitutional question, finds the amount egregious and finds the attorneys actions unconscionable and contrary to the candor and good faith in dealing with the court and sanctions them for there participation in such a miscarriage of justice.
With that said does Tenenbaum deserve to loose, yes. Does he deserve to pay, yes. We can all agree that sharing music is against copyright law. Whether there should be a fair use or other exception is debatable.
The fundamental problem is that until the public starts to motivate their representatives in Congress nothing will change about copyright. To me the first thing to change about copyright is to limit the term. Make copyright do what the Constitution intended, permit an artist to profit from their creativity for a LIMITED time, then bring the created work to the public so that it may be enjoyed by the entire public, not just those wealthy enough to afford it, and utilized to create more and better works.
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I spend an absolute fortune on music so I have to make sure it is all backed up. Thankfully, the few times I have lost music, Amazon were good at making them available for me to re-download.
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I "lost" a lot of trash that wouldn't make any difference if I had just selected and hit delete.
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I back all mine up online.
It's so easy. You don't even have to upload it! Just go to thepiratebay.se and search for your backed up copies!
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Re: easy answer
Let's go with 10 songs per CD and assume you've handed out 20 of those CDs. You owe a minimum of $6 million.
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Nothing. The Tenenbaum case is about mass distribution, which is why the big numbers.
A good law is being applied inappropriately due to the courts' ignorance about technology (and with the help of some unscrupulous lawyers)- sort of the theme of this whole discussion over the years.
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Restitution
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Re: Restitution
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All the MAFIAA achieved was to anger even the older people with Jamie and Joel (and many other cases they trumpet as justice being done). There's no justice in this. There's no wrong in sharing and the great majority of society nowadays accept it to some point (which leads to hilarious stances where ppl condemn file sharing but they don't mind getting a copy from a CD that belongs to a friend).
It's a shame, it's disgusting. It's business as always for the MAFIAA.
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Corporate greed?
And how about reputational greed? He could have settled from the beginning, but he wanted to be the cool dude, the macho man who stood up to those evil folks at the RIAA. He and his pothead lawyer wanted to be celebrated and toasted by the everything-must-be-free crowd back at the commune/university. It was a monsterously greedy form of ego gratification that lead them to march into court and (1) admit guilt and (2) say that the facts didn't matter.
Face it. The record companies and their execs may be greedy, but they were never on the same vain, greedy ego trip as Misters Tennenbaum and Nessen.
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Re: Corporate greed?
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Is it fair to say that he was greedy to just take it? Or are we just pretend that he was singing Kumbaya while he took without paying?
First and most important we don't know if he had legit music or not. Also, if memory serves he was a student when all that started so I am fairly sure he had no money for vanity as it was my case when I was still in college a while back. And even in the event we find out he is a complete prick and won't pay a dime for music it does not justify the insane amount he was fined with.
And how about reputational greed? He could have settled from the beginning, but he wanted to be the cool dude, the macho man who stood up to those evil folks at the RIAA.
He did it the wrong way but If anything he is the martyr here. I'd go for a full scale fight too if I were in his place. Because I don't agree with the current copyright system, it's bad and it does not do what it's supposed to do in the first place. All it accomplishes is destroying ppl lives. If you have anything bad to say about him, please enlighten us with your wisdom on many other cases where the same thing happened (ppl went to trial and got awarded insane penalties). I'm sure you can think all sorts of twisted reasons to smear moms, grandmas, retired firefighters and so on. Oh, don't forget the printer.
In the end I agree with Mike that he and his defense incurred in a few blunders that damned the thing in the end. But you? No sorry, I completely disagree with your idiotic trolling.
Face it. The record companies and their execs may be greedy, but they were never on the same vain, greedy ego trip as Misters Tennenbaum and Nessen.
Oh no, they are greedy in a much more evil and rotten way because they think it's ok to destroy the lives of a few innocent to make them an example for the masses that they can't control. Because file sharing is the norm. But since you can't put the entire population behind bars let's just fuck up a few ones so the others will fear and stop doing what we think it's not ok because it doesn't give us easy money. Flash news: FILE SHARING IS NOT GOING AWAY, IT'S SOCIALLY AND MORALLY ACCEPTED. Money for vanity is scarce and availability is great. And more than ever people are willing to throw money at their favorite artists. Why don't the industry in all its glorious and infinite greed can't just face it and workout things without fucking up the artists and the people at the same time?! Wanna talk about greed? Then be prepared to have your own greed thrown back at you.
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Re: Corporate greed?
Take the actual numbers out of the scenario and think of it by its effective result. Tennenbaum will be lucky to get a job that pays $40k/yr in this economy. Even if he didn't need to pay for anything else in life like food, shelter, clothing, etc., and was able to funnel all his earnings to pay the fine, he'd basically be spending more than fifteen years of his life paying money as if he were making mortgage payments on an expensive house, only he doesn't get to live in it or sell it, etc., after it's paid for.
Does sharing 30 songs you didn't pay for warrant having to buy someone else an expensive house as punishment? He didn't burn down anyone's house. The family members of murdered victims don't always get that much in civil suits against the murderer. Tennenbaum shared music. He didn't kill anyone. No amount of arrogance or bad defenses in court or even malicious intent warrants financial slavery that you can only hope to escape from within your lifetime.
This is why it's an excessive amount.
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Re: Corporate greed?
He didn't take $675000. If what he did makes him greedy then we have to create a new word for the record companies and their execs.
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Just think, if he was sharing 500 songs, he would have to give up every dime he makes the rest of his life.
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Works both ways
On the other hand, my gut feeling is that, after all is said and done in the judicial arena, it very well might take Tenenbaum a not so very long time to just crowdfund the money. And if that happens, where exactly does all of the supposed "deterrent effect" which RIAA wanted to generate go? Right down the drain! Precedents can work both ways.
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Luckily he'll be another Peter Sunde who'll have support from other means while he himself will remain "miserable".
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Lets say these are really expensive songs to, like $20 for a single song. That makes it more then 1,125 times more expensive then the normal value (but that number would be much worse if I actually used a reasonable per song cost). That's much higher a punitive rate then any corporation faces for putting the public in actual danger, like illegal marketing for the benefits & risks prescription drugs.
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Let's say that's not a very popular song so about 100 people are sharing it. That's $2,500,000 in lost sales due to file sharing for a single, not very popular song.
Now ypu can see how bad file sharing is, how it's ruining the economy and why it must be stopped at all costs.
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This has a huge effect. It may not stamp it out. It may drive it further underground. But every little bit helps.
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Right, so no need for new laws or agreements between rightsholders and ISPs. Good to know.
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Re: Re:Helps what and who?
(1) The kid (obviously not)
(2) The artists- No probably not. The artists recieve none of this money and probably lost fans over this.
(3) The RIAA- Maybe if you are more into symbolism than commercial or financial success. 650k probably means very little to this industry business, other than symbolic values. They probably spent millions on the legal costs of this alone. Therefore, finacially this is a total loss in the books. They still look like a villian which hurts them more in the public than helps them overall. They are still losing money and have not solved a single problem with this result and publicly look worse in the eyes of their consumers. In the end they may have pushed additional consumers away from legal purchases over symbolic or mindset "justice".
(4)Troll laywers- Yes this is an emerging field in a legal economy that has a 50% employment rate at graduation. We are promoting the creation of troll lawyers with these legal victories. The trolls are the big winners here and no one else.
In the end the kid loses, the RIAA loses, the defense lawyers lose, the artists lose, and the only winner is the troll prosecution lawyers.
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Won't stop it. Will just keep it out of sight.
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This has a huge effect. It may not stamp it out. It may drive it further underground. But every little bit helps."
I disagree. If I didn't read techdirt, I would have no idea that this happened. It would have had no impact on me or my kids whatsoever.
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Sue the parents and they did not perform the act. Sue the 7 year old and you should be laughed out of court...
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How on earth would _you_ know?
I suspect that the vast majority of people haven't even heard of Tenenbaum, or this ongoing trial. And the majority of parents who might say that to their kids don't know how to prevent their kids from infringing on copyright. In fact, it's probable that the vast majority of people infringe on copyright every day.
Tell me, exactly, what songs do you sing at your children's birthday parties (assuming you have children)?
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The record labels, their lobby group, and a large selection of politicians are claiming the exact opposite, and demanding even more laws be introduced. Are you wrong, or are they? You can't both be right. Please clarify your position.
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The fine/ticket was for $180 total. My friend couldn't pay it all at once (like he figured he'd have to), so they put him on a payment plan. Because he paid it in 3 payments (within a month) they went so far as to "refund" him $30. (Not even sure how that worked.) And his total fine was $150 for ACTUALLY STEALING (or trying to, unsuccessfully) 3 cds from a store. I can't remember the albums anymore (one was a soundtrack), but total songs on the 3 cds was about 30 or so.
Funny system of justice. Actually steal the physical equivalent, slap on the wrist and a refund. Share the digital equivalent (with no verifiable losses to anyone), get ridiculousness like this. (Which some ACs will say "hurrah" to, not thinking how ridiculous this is or the fact that it leads others to even further have a lack of respect for copyright or those seeking to enforce it.)
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But there's a big difference here that is important.
Shoplifting some CD's deprives the store of physical property that they have paid for and could have sold. Therefore it is important that the shoplifter have to pay $150 fine.
File sharing does not deprive anyone of any physical item and there must be punished with $675,000 fine. The RIAA wants to teach people to stop playing 'piracy' on their computers in their mom's basement, and go outside in the sunlight and learn to do something useful like real stealing the old fashioned way. Work for the skill of stealing.
Want to steal, learn from the masters, the RIAA.
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"any thinking person should recognize that a $675k fine for the personal sharing of 30 songs seems offensive to the senses"
IT'S NOT A FINE! A fine is what you get in a criminal case. This is a judgement, a settlement in a civil case, not a criminal case.
As for the judgement, I think the judge was making clear that while Joel was tried for 30 songs, he could have easily been tried for hundreds or even thousands. His arrogance in this case, and the incredibly poor legal strategy leaves him where he is today.
You guys better hope he stops appealing, because this one is likely to set the bar for these types of judgements and end your whining about the limits set by congress.
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...he could have easily been tried for hundreds or even thousands.
Punishment for things not brought to trial?
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As noted by Nick up above, if digital and analog goods are the same, would I get a settlement / fine / whatever word you'd like of $675k for shoplifting 3 albums (assuming each has 10 songs on it)? If not, why not? It's "stealing" either way, and the damages should be in sync since they are the same thing, right?
If you agree, then I think I'll be inclined to note that you're crazy for thinking someone should be charged $675k for stealing 3 physical items that cost about $15 apiece. If you disagree, then you'll need to explain how digital and analog are different and that this isn't "stealing", but still is stealing, somehow, kind of.
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First you'd have to steal the 3 CD's then make a large number of duplicates, set up a stand in the park, and leave them on a table.
No sign, no advertising, just rely on people searching for those CD's to look in the park to find them. Then it is more comparable.
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It's not like the bittorrent users made a local copy on his computer and then copied it, that all happens on the other computer.
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If you did the exact same thing - left single copies on a table with innumerable blank CDs - and people made copies with them, would you expect to be on the hook for what they did?
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Wow, are you kidding? That isnt remotely like the analogy. He left a single copy on the table, and people came TO the table with their OWN equipment and made their OWN copies. That is the analogy.
Just, wow.
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You mean, like, noone ever downloaded a complete song from him but only bits here and there completing the songs from other members of the swarm?
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He stole 3 cds, didnt duplicate them, but left them on a park table for other to borrow and copy.
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Unlikely to be true
You obviously don't understand how P2P works. The average number of times any work is redistributed by people using P2P is exactly 1. Everyone, on the average, uploads information equivalent in size to exactly one whole copy of the work.
This doesn't mean that Joel couldn't have distributed massive amounts of copies (since there are always leechers who redistribute less than 1 copy), but it does mean that it is rather unlikely.
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This is a judgement, a settlement in a civil case, not a criminal case.
A judgement and a settlement are two very different things.
From Wikipedia:
Judgement: synonymous with the formal decision made by a court following a lawsuit.
Settlement: resolution between disputing parties about a legal case.
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Could have. But wasn't.
If someone is on trial for shoplifting, you don't sentence him based on the fact that he "could have" murdered someone too.
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Weak argument. Even someone as arrogant as you knows that while he was tried for 30 songs, his actual catalog of shared music was much larger. These cases, to avoid the size of the lawsuit and the amount of paper work getting out of hand are done with a representative number of songs, not the total songs being shared at the time.
I quote (from hxxp://beckermanlegal.com/Lawyer_Copyright_Internet_Law/sony_tenenbaum_120213DeftPetCert.pdf )
"At one point in time in 2004 alone, Tenenbaum had 1153 songs on his �shared-directory� on the Kazaa network."
So really, the number is at least 1000, and thousands (plural) might not be out of the question considering the time frame and songs being added and removed.
So come on Mike, don't play stupid. I know you like to try to be coy, but admit you got this one wrong (again).
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Yes. As mentioned elsewhere (in my reply to RD's lies), he was offered a settlement that was quite low considering the risk and the expense to claim innocence that he was unlikely to prove. $12,000 - or about $2000 a year since. Instead, this guy now has a life crushing judgement hanging over his head, and no way to get out of it.
He can't blame the RIAA. He can't blame the courts. He only has his own actions and those of his legal team to look at and consider now.
He needs to stop digging and start looking for a settlement he can live with.
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No worries, the rest of us have that covered for him.
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Reaping
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Re: Reaping
Sorry, but I am not going to bend over and kill a business just to make Tenenbaum (and the rest of the freeloaders) happy. Fuck that, they can become terrorists, and get locked up for it.
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You DISAGREE. You are clear the amount is for 30 songs, and you're right. Nothing "nominal" about it.
I think I know what you're trying to say - they threw the book at him. That's indisputable.
Mike's point is that you generally shouldn't sentence someone for a violation they haven't been found guilty of, EVEN IF YOU SAW THEM DO IT. A certain amount of doing so is human nature and fair, but is this?
http://arstechnica.com/tech-policy/2009/07/o-tenenbaum-riaa-wins-675000-or-22500-per-song/
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Repeat after me: "It's not a fine, it's a judgement".
Now, after that, perhaps you can come to realize that the ability to pay the judgement out isn't really material in the deal, rather the legal judgement is important. The point is to work the legal logic through, get the case settled, and move on from there.
As for having 8k songs, all I can say is that you are clearly someone with few morals. Congrats of being a big time thief.
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How would you feel if when you are stopped for speeding and you are found guilty, the judge (or jury if you request a jury trial) says we are going to fine you for speeding for every time you were in your car, because even though you may not have been speeding and it was not proven here, we will just assume you were...
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A fine by another name.
A normal tort judgement is about making the victim whole.
This judgement has nothing to do with that and is entirely punitive.
It's a larger punishment with a lower burden of proof.
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Re: A fine by another name.
IMO, it's a poor application of an irrelevant law. Infringement law was never intended to apply to the sort of copying that goes on in the course of everyday noncommercial online activity. This is like suing someone for infringement because they played a song over the phone.
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Re: Re: A fine by another name.
That would be a public performance without acquiring the appropriate rights....
Come on get up to date on your Imaginary Law, before someone imagines up some new ones...
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Re: A fine by another name.
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Re:
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Nesson
So true. I remember reading about the strategy they were using and I was appalled. It would have been a perfectly good academic argument (and a good policy to enact). But as a defense at trial, it bordered on frivolous. I think this goes beyond a question of Tenenbaum needing a better lawyer (in the sense of more skilled). Using your client as a vehicle for your own arguments at the expense of his legal defense is a pretty clear breach of your duty as counsel.
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he lied to the court
with Tenenbaum's continued use of file sharing and his lies, to support the supposed reasonableness of the ruling.
Tenenbaum's behavior -- which we agree was not good at all -
you agree that Tenenbaum is not particularly apologetic for what he did
I'm worried that Tenenbaum's own bad actions
who didn't act the same way Tenenbaum did.
Pirate Mike, admit you are a dirty pirate apologist. Clearly these weasel words prove it.
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Re:
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Re: Re:
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Humph ...
The only problem in this case is the way the problem was attacked and the reasoning. If he had better lawyers who understood the principle of ownership and used that to fight for the change needed things might have gone better, probably not, but if the case was put forward in a simple way and all arguments were proven to be wrong he could have changed the law and made it legal to torrent.
I don't care how artists make money, only a tiny percentage of actors and musicians and authors make enough money to make a living from it, For this reason alone copyright should be cancelled no laws at all or only laws that prevent individuals or businesses from profiting without compensating the artist with at least 80% of any money made. And how do they make that money, I don't actually care, as has been discussed on this website and many others there are ways to monetise music and video and books without charging for them, but any law that involves preventing anyone from sharing that material or content is wrong.
I will continue to share with others , nobody can stop that , I will send a song to my mother if I want her to tell me what she thinks or if I think she will like it. I will share anything I have purchased with others if I want and no law will stop me doing that.
It is the law here that is wrong not people sharing, it is the law that needs to be changed not human nature to share with others.
And yes this time around the MPAA and courts are looking like idiots and they are encouraging even more people to share, they are proving to everyone that copyright law is very very wrong. Thank you MPAA for helping our cause.
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This is disgusting
The verdict handed down in this case is a life destroying verdict for a young man. That the RIAA keeps appealing for its huge award is DISGUSTING.
Giant corporate entities are working at utterly destroying one person's life. The RIAA deserves every ounce of contempt and disdain it gets from the people.
For companies that like to believe that they create things that move human emotions and make people think, the RIAA collectively is a horribly dark, twisted, and evil group of people (and the MPAA is even. worse.)
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I am an automotive pirate
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Re: I am an automotive pirate
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Re: Re: I am an automotive pirate
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The old laws don't work any more than the old business models work.
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Honestly, this, imho, is a classic example of Conflict Escalation from psychology that the RIAA, MPAA, etc just can't seem to grasp. We have been driven to a point where two opposing camps exist, copyright maximalists and the Piratbyr�n. (I'll use the pirate party name for convenience.) As this back and forth drive for power continues, the issue no longer is about copyright legislation, but a moral obligation by both sides of the issue.
Further reading and you can see where this may lead: link (Think back to the Vietnam war protests.)
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That is how the labels do it.
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Fines, Highway Robbery & other Legal Crimes
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Re:
Citation on all of this specious dribble please. The RIAA has proven time and again that they have ZERO interest in negotiating a lower fine, especially after they have won. They have even gone back, after winning, and asked the fine to be INCREASED in at least one case.
So, put up or shut up.
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Re: Re:
First off, it's a judgement, not a fine. Can you get the basics right?
Second of all, the RIAA has repeatedly tried to settle every case that has gone to court. Example, the thomas case:
hxxp://news.cnet.com/8301-31001_3-10442482-261.html
They had a million plus dollar judgement in hand, and were willing to settle at 25k.
Tenenbaum? From Wikipedia:
"In a pre-trial conference in June 2008, Tenenbaum's mother stated "my son was offered $12,000, your Honor, and every time we appear that goes up." The plaintiffs responded that Tenenbaum had filed several motions with the court, and that "as our legal fees go up, so will the settlement amount that we offer."[6]"
So please, if you are going to lie, at least don't be so obvious.
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Re: Re:
2. The RIAA was not the litigant. It is but an industry association. The plaintiffs in these cases are the labels themselves in their individual capacities as rights holders.
3. The only case of which I am aware where higher damages were argued involved a case where the lichpin issue was "innocent infringement". Where the "innocent infringer" defense is sustained, a court or jury, as aplicable, may reduce the award to not less than $200 per work. When the defendant appealed the trial court finding of infringement, the plaintiffs cross-appealed that the trial court erred as a matter of law in sustaining the defendant's "innocent infringement" defense. The defendant's appeal was rejected, and the plaintiffs' appeal concerning the "innocent infringement" defense was upheld and the trial court was reversed.
4. Apparently you are not an attorney, otherwise you would be quite familiar with post-verdict negotiations.
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Re: Re: Re:
Haha, you mean judgments maybe? well either way:
Definition of fine: "Punish (someone) by making them pay a sum of money, typically as a penalty for breaking the law."
The Judgment was a fine awarded to Sony and the other labels.
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Re:
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Apples and Oranges
Digital file sharing DOES resemble commercial infringement once its on the network, but to the end user it just looks like sharing a file.
If you are a judge in these cases, I can see where it would be difficult to come to a fair ruling. From the file sharers point of view, there is generally no intent to profit, but from the content creator's point of view there is definitely an impact on sales. Are statutory damages even remotely reasonable? NO they are not.
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Joel's "Enormous" License
What, seriously?
Let's try to actually figure out what the licensing deal would cost.
First, we'll assume the iTunes model - which is one of the highest out there, so it favors the RIAA. For a $.99 MP3, iTunes takes $.30, so the remainder is $.69 per track.
Next, we'll assume that each of these 30 songs was shared 1000 times. Now, that number is extremely high - most people on P2P networks don't share a track with nearly that many other people. But it's not out of the question, so again, we'll choose a number that favors the RIAA.
30 songs x 1000 downloads each x $0.69 per download = $20,700.00. So, actual damages would be about twenty thousand dollars. And that's the maximum that he would have had to pay, the number that favors the RIAA the most.
Which means the awarded damages are over 32 times the actual damages.
This is pretty clearly unconstitutionally excessive, in my opinion. Gertner got it right the first time.
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Re: Joel's "Enormous" License
This is where you fail.
When Joel chose to seed those songs, to give them away online, he started a chain of events, and made it possible for others to do the same. File sharing is pretty much a pyramid deal. You share it with 100, who each share it with 100, who each share it with 100... 3 levels down, you have 1,000,000 copies made from a single source.
Now, the standard argument is that each step down the line is someone choosing to break the law, and this would be true. However, without the initial breaking of the law, without the initial distribution, the rest would not have happened. Remember, most people don't actually rip music themselves.
It is incredibly dishonest to try to establish actual losses when the number of resulting downloads is potentially infinite.
It's already been shown in the past where software torrents, with a single license key, have been used millions of times. That suggests that a single seeding source was directly and indirectly responsible for all of those infringing copies. it's not hard to imagine Mr Tenebaum's extensive music share file as being the source for literally millions of infringing copies.
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Re: Re: Joel's "Enormous" License
In 2004, Joel was using Kazaa, which is P2P, not bitTorrent, so no "seeding" was done.
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Re: Re: Re: Joel's "Enormous" License
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Re: Re: Re: Joel's "Enormous" License
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Re: Re: Re: Re: Joel's "Enormous" License
Seeding is intentionally placing the songs available for bitTorrent, that's where the term applies.
By default, Kazaa placed songs in a shared folder, and in some cases tried to find your music folders and share them with the P2P network.
The question is, which I don't know, did Joel knowingly place files in the folder Kazaa shares or configure Kazaa to share his music folder?
If not, then the concept of seeding does NOT apply!
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Re: Re: Re: Re: Re: Joel's "Enormous" License
Joel puts the file in his shared directory. 100 people download it and keep it in their shared directory. 100 people go to each of them and do the same.
1 - 101, 10,001, 1,000,001... the progression is very fast and very powerful. Given a couple of more iterations, and pretty much the entire population of the planet has had access.
Stop worrying about the technical jargon - go look at the effects/
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Re: Re: Re: Re: Re: Re: Joel's "Enormous" License
So, Joel's act of infringement is infringement by copying. He also infringes by distributing those files to 100 people.
The notion that he should be held responsible for what those 100 people then do is ridiculous. The amount of actual damages can, should be, and are legally required to be the damages caused spcifically by Joel's infringement. That means caused by the infringement that Joel actually participated in.
Especially since there is zero evidence (and it's not alleged) that Joel was the sole source of those files. Joel got those files from somewhere else - and in your example, 99 other people did too. Those 100 people that got the files from Joel could have just gotten them from one of the other 99 sources instead. Or from Joel's source. Or, for that matter, from among any the other 99 people that (would have) downloaded from Joel, who are now sources themselves.
Despite your insistence, file sharing is not like a pyramid. Once the initial file exists anywhere in a file sharing network, any one of the downloaders can become a source. It's not a pyramid, it's a soup.
To say Joel "caused" or "enabled" those 100 people to also share those files is beyond ridiculous. He didn't cause those infringements; they would have happened even if Joel never existed. If Joel never shared files, there would be exactly one less infringing copy - Joel's.
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Re: Re: Re: Joel's "Enormous" License
I may have "failed" in this way myself. I knew that he was using Kazaa, but I assumed that it used a protocol that is similar to torrents.
If it was a literal "peer-to-peer" protocol, where each user only copies a file from one other user, then he would probably be responsible for far fewer infringements. Given the upload speeds that existed before 2003, sharing even a single file with 1000 individuals would take years.
In fact, the P2P protocol that Kazaa used is called FastTrack - the same protocol used by Grokster and Morpheus. It is not a one-to-one P2P protocol, but is in fact closer to how torrents work. That is, each file may have thousands of users downloading, and also thousands of users uploading. Those users are connected via "supernodes," which are (AFAIK) a centralized equivalent of "swarms."
At least, that's what I've been able to work out. The FastTrack protocol details are not exactly helpful in this matter.
In any case, there's no way in Hell that Joel ever shared each file more than 1000 times. It is likely that this figure is much too high.
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Re: Re: Joel's "Enormous" License
When Joel chose to seed those songs, to give them away online, he started a chain of events, and made it possible for others to do the same.
There's no evidence (and I don't believe that it was even alleged) that Joel was the initial source of those songs. In fact, the lawsuit alleges that he "downloaded" those songs. He was simply another "step down the line."
If you're counting all users in all swarms when figuring damages, then you can only count these users if you sue the initial source of the files. In this case, you wouldn't be able to declare any actual damages if you're suing anyone "down the line." Otherwise, you're counting a single infringement hundreds of times - it's not even remotely close to calculating actual damages.
If you are suing someone "down the line" (like Joel), you must do the numerically correct thing, and only count the number of infringements that the seeder actually participates in.
Even here, that number is larger than it actually should be. If a swarm has 100 seeders and 400 leechers, then there is a grand total of 500 infringements. So, the actual damages must be calculated using those 500 infringements. If you sue one of those 100 seeders, then each seeder would be responsible for five infringements each.
In other words, the 1000 number is even higher than it really should be, since I counted each person in his swarm as a leecher (and not a seeder themselves). I was being generous to the RIAA.
So, basically, it's you who fail.
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Re: Re: Re: Joel's "Enormous" License
It's the nature of p2p file sharing. Each is a receiver, and each is also a transmitter. Denying Joel's implication in the acts is to deny reality.
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Re: Re: Joel's "Enormous" License
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Re: Joel's "Enormous" License
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So you know what, every day the trial continued, I'd declare to the court I just shared those same 30 songs again on BitTorrent the night before. Bing! $675k bing! another $675k bing! Bing! Bing! I'd just keep doing it.
I'd basically try to find out if the judge is daft enough to keep a running total or make the MAFIAA file separate lawsuits; if so, how high could I rack up the total?!
It would make a complete mockery of the system. I'd keep a running total myself and tell them "Today I owe you guys a bazillion dollars!"
If you're going to be made bankrupt anyway, make it worthwhile!
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Re:
They are free for everyone now. Unless Joel wants some money for them, since he now has the distribution rights.
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You don't know what you are talking about
You are not qualified to write an article on a topic like this, in this way.
I'm sorry for the ones reading and buying what you have stated.
Get professional.
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Re: You don't know what you are talking about
You are not qualified to write a comment on an article like this, in this way.
I'm sorry for the ones reading and buying what you have stated.
Get professional.
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Re: Re: You don't know what you are talking about
FTFY
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Phew...
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Re: Phew...
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Re: Re: Phew...
Actually, it was more than "struck down." The Audio Home Recording Act made non-commercial copying completely legal:
It was considered a trade-off for requiring copy protection and royalty payments.
This could possibly mean only actions against manufacturers are prohibited, but it says explicitly "under this title," meaning "under Title 17," the entire copyright statute.
So making mixtapes, even digital ones, is legal (or at least not "actionable").
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So he's out $675,000...
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slavery
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There is something very wrong here
Regardless of the details of the case, a whole
justice system (Judges, jury , supreme court) exhibit
behavior so far from common sense that, if exhibited
by an individual, he would end up in a psychiatric hospital.
What recourse has a citizen when he sees his country's judicial system go insane?
This is the only real question this unbelievable case begs us to answer.
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Why obeying to the rules by this unfair film- and musicindustries?
I have already had also stress with this film- and musicindustries. Here in Germany we have the same problem because of the GVU (a private association, which works together with this film- and musicindustries for getting us filesharers fined).
But: I have found some tricks round this fine and do filesharing without getting fined!!
How I do this??
It's really just easy. First: secure your Browser with the recommended Addons: NoScript, BroserProtect, AdblockPlus, DoNotTrack Plus and Better Privacy (agains these LSO-Cookies).
Then I also secured my System with Truecrypt and installed Tor-Button on my Linux. Tor-Buttons secures your IP-Adress, so that these detectives of this film- and musicindustries do not get my real IP-Adress!
Then I also do not use Bittorrent-Cliensts, but I use Browser-Addons like DTA (DownThemAll), ProxTube(to unlock these locked Videos by GEMA), youtube-Downloadhelper and FlashGot.
Then furthermore, there is the method of not useing WLAN or LAN but UMTS! I do not use WLAN for my download-activities but I use UMTS-Net for that. For this purpose, I bought me a prepaid usb-Stick for UMTS. These little sticks are at a price of 40 � with Amazon and are not simlocked!! :-) And so I trick this film- and musicindustries out twice!.
Another way is a harddrive-videorecorder. These machines are cheap in the electronic-stores and also have an internal burning-rom-device!! So I can download my film from TV and directly burn it to disc. So there one can also trick this film- and musicindustries out!!
And a third trick is a software-trick. I use VLC-Player in combination with MediathekView. Thes two programs are opensource. And MediathekView makes it possible to download all films or other content of the public german TV-stations directly to your computer!!
As long as this film- and musicindustries does not obey to rulings of our european Highcourt, there is no other way than letting this film- and musicindustries feel or anger this way!!! This court ruled, that preventive filters are illegal! But: the film- and musicindustries does not obey. They seem to give money to the courts so that they get their shitty rulings to make us fine!! But: we users also do no longer accept these fines so we trick them out!! And the other pain for this film- and musicindustries also was, that this ACTA-laws had been swept off Europe by the working together of the worldwide Internet-Users-Community!!
So: why obeying to this fining?? I do not look into this!! As long as this film- and musicindustries does not offer us users a legal platform for downloading films and music, they shall feel our anger and as long as they put down our own set up platforms, we will not give in or even give up!! The film- and musicindustries declared the war on us, so we react back!!
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Re: Why obeying to the rules by this unfair film- and musicindustries?
Nobody here is interested. I'm not the site owner, but I'd personally appreciate it if you didn't post "how-to's" here.
This is not a site about getting away with file sharing; it's about how to deal with it, from a business perspective.
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Re: Why obeying to the rules by this unfair film- and musicindustries?
You do the site harm with such postings. Please avoid doing so.
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Piracy?
Steve Jobs solved that problem with forcing them into 99 cent downloads.
So, now they are viciously bringing lawsuits that cannot be properly defended against people who are not personally profiting from their 'sharing'. The music business has been coddled. I'm hoping that they get stompted on in some way.
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