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Tenenbaum back on the hook for $675k: Court reverses reduction in damages Modular Synthesizers
Old 21st September 2011
  #31
Quote:
Originally Posted by unitymusic View Post
GW dropped the ball and Obama had to clean up? Get the f out! Ha, seriously though... that makes sense though I still feel like there's probably more to it.

Regardless, this person that they are prosecuting: is he a tech whiz? Would he be able to do what he did without third party networks? There has to be a source to the problem, and I don't think this guy is it. So continue the investigation and find out who it is. I'm just not down with fear tacticts, regardless of if the intentions were pure or not. This makes it seem like they aren't concerned with a solution as long as someone carries the burden of compensation. Maybe I'm wrong, it's obvious we're kinda stuck ATM. But educating the public and getting them on your side should be a higher priority than financial compensation otherwise you will always be dependent on a legislation that may or may not be competent and/or sympathetic.
Sometimes fear is the only thing that works, especially when what you're fighting is greedy, unenlightened self-interest.

Think of it as the old man with the shotgun full of rock salt defending his watermelon patch. The kids are gonna keep raiding the patch if they think nothing's gonna happen to 'em. One or two catches an arse full of rock salt, the rest will think twice about stealing. But it ain't gonna stop kids from eating watermelon - they'll just have to pay for it.

It's called a DETERRENT, son.

Do I think that the problem with the government was entirely GWB? No. It started during Clinton's term, but didn't get really serious until Bush. (With Clinton is just kinda slipped under the radar.) There are aspects to the way Bush handled things related to the issue that go too far into politics to be discussed here without violating site rules, but let's just say that the rampant fearmongering that Bush employed to keep himself in office had a lot to do with where he deployed the FBI.

What's kinda interesting is that Obama has been re-purposing the HSC security monolith the Bush put together to attack the infringement problem. If Bush had done that in the first place we wouldn't be in the mess we're in. Let's just hope that Obama stays in office long enough to follow through.

And yes, more needs to be done than simply going after the independent uploaders like Tenenbaum and Thomas, although they absolutely MUST be prosecuted. The operators of the sites need to be pursued and taken down, which is where the Obama administration has been beginning to show some initiative.
Old 21st September 2011
  #32
Quote:
Originally Posted by unitymusic View Post
But educating the public and getting them on your side should be a higher priority than financial compensation otherwise you will always be dependent on a legislation that may or may not be competent and/or sympathetic.
Do you talk to many ordinary people?
1) They can't see a problem that needs to be fixed.
2) Mention musicians leaving the music scene due to the level of piracy they've experienced and they'll start talking about millionaire popstars and 'entitlement'.
3) To top it off, they'll mention how they'd love to be famous while not working hard and earn lots of money while partying with 'chicks' and taking lots of drugs.
Heck, I read much of the above in this very forum.

In short.....
Education is going to be a very long haul, and what's needed right now is action to dramatically slow the stealing, so at least musicians can ply their trade.
Old 21st September 2011
  #33
Quote:
Originally Posted by chrisso View Post
Do you talk to many ordinary people?
1) They can't see a problem that needs to be fixed.
2) Mention musicians leaving the music scene due to the level of piracy they've experienced and they'll start talking about millionaire popstars and 'entitlement'.
3) To top it off, they'll mention how they'd love to be famous while not working hard and earn lots of money while partying with 'chicks' and taking lots of drugs.
Heck, I read much of the above in this very forum.

In short.....
Education is going to be a very long haul, and what's needed right now is action to dramatically slow the stealing, so at least musicians can ply their trade.
Actually some of this "education" is both beside the point and counterproductive. People want to be sold glamour. They don't want to be told that what lies behind that glamour is a lot of grueling, incredibly hard work and that only a tiny percentage ever get there, there rest are just earning a living like everyone else.

I don't hear anybody complaining about the millions Charlie Sheen is making.
Old 21st September 2011
  #34
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AwwDeOhh's Avatar
 

Quote:
I don't hear anybody complaining about the millions Charlie Sheen is making.
or his drug dealer!
heck, maybe i should start selling meth!
Old 23rd September 2011
  #35
Lives for gear
Quote:
Originally Posted by chrisso View Post
Do you talk to many ordinary people?
1) They can't see a problem that needs to be fixed.
2) Mention musicians leaving the music scene due to the level of piracy they've experienced and they'll start talking about millionaire popstars and 'entitlement'.
3) To top it off, they'll mention how they'd love to be famous while not working hard and earn lots of money while partying with 'chicks' and taking lots of drugs.
Heck, I read much of the above in this very forum.

In short.....
Education is going to be a very long haul, and what's needed right now is action to dramatically slow the stealing, so at least musicians can ply their trade.
I don't know what you mean by 'ordinary people', but I'm guessing I don't talk to them much. Unless you mean earthlings, in which case I see them every day. I don't know why you guys think I'm so against the best interest of musicians, it's kind of offensive honestly considering I've dedicated my whole life to not only music, but 100% DIY music. I'm a musician before I am a buisnessman or a lobbyist, I'll admit to that much.
Old 23rd September 2011
  #36
Quote:
Originally Posted by unitymusic View Post
I don't know what you mean by 'ordinary people', but I'm guessing I don't talk to them much. Unless you mean earthlings, in which case I see them every day. I don't know why you guys think I'm so against the best interest of musicians, it's kind of offensive honestly considering I've dedicated my whole life to not only music, but 100% DIY music. I'm a musician before I am a buisnessman or a lobbyist, I'll admit to that much.
Well it's a disconcerting fact that a lot of musicians don't really have a clear idea of where their interests lie. Many musicians have, as their core inclinations, somewhat leftish or populist sentiments and the anti-copyright crowd have positioned themselves to appeal to that. (I personally found it extremely difficult to accept the conclusion that the only really viable solution to the piracy problem must be based on law enforcement.)

There is some evidence that this is to some degree a strategy by the right to split the left and spread confusion and dissension. For example those staunch populists of The Pirate Bay/ The Pirate Party are actually backed by a right wing financier.

Who is REALLY behind The Pirate Bay?

There are also serious business interests in the tech industry with a strong interest in destroying copyright (Google has been in the forefront of this) and weakening the rights of content holders.
Old 23rd September 2011
  #37
Lives for gear
Quote:
Originally Posted by John Eppstein View Post
Well it's a disconcerting fact that a lot of musicians don't really have a clear idea of where their interests lie. Many musicians have, as their core inclinations, somewhat leftish or populist sentiments and the anti-copyright crowd have positioned themselves to appeal to that. (I personally found it extremely difficult to accept the conclusion that the only really viable solution to the piracy problem must be based on law enforcement.)

There is some evidence that this is to some degree a strategy by the right to split the left and spread confusion and dissension. For example those staunch populists of The Pirate Bay/ The Pirate Party are actually backed by a right wing financier.

Who is REALLY behind The Pirate Bay?

There are also serious business interests in the tech industry with a strong interest in destroying copyright (Google has been in the forefront of this) and weakening the rights of content holders.
Well I am not a member of, nor do I support the anti-copyright movement. Nor do I have any political affiliation other than independent. If you had to pin me down I guess I would be "liberal", as long as that is not confused with democrat. I think a two-party system is a joke. All of that is beside the point though. I have independent interests and there is just no room for that in this world anymore I think is the bigger issue at hand, at least that's how I see it.
Old 23rd September 2011
  #38
Quote:
Originally Posted by unitymusic View Post
I don't know why you guys think I'm so against the best interest of musicians, it's kind of offensive honestly considering I've dedicated my whole life to not only music, but 100% DIY music.
Do you think educating pirates will work?
How long* will it take to educate change in behaviour?
How many musicians can hang on financially for the time (*answer 2) it takes to educate a behaviour change in pirates?
Old 23rd September 2011
  #39
Lives for gear
Quote:
Originally Posted by chrisso View Post
Do you think educating pirates will work?
How long* will it take to educate change in behaviour?
How many musicians can hang on financially for the time (*answer 2) it takes to educate a behaviour change in pirates?
No, I think you are right that you can't educate pirates, which I would define as people with a grudge or otherwise deliberately entitled behavior. I don't think the majority of people that download music illegally fall into that category though. The pirates are the ones that enable everyone else to download. For the average person, I think education is one approach that will help the situation, combined with: going after the real pirates; continuously striving to provide unpredictable high quality products; showing innovation in an evolving market; and treating fans and consumers with appreciation, rather than as simply customers.

I do think you guys mean well, and it is necessary to have a public voice, though I think it is sometimes taken too far because not everyone who might share certain opinions with pirates actually support piracy. Especially if what john said about them trying to appeal to the "liberal left" is true.
Old 23rd September 2011
  #40
Quote:
Originally Posted by unitymusic View Post
No, I think you are right that you can't educate pirates, which I would define as people with a grudge or otherwise deliberately entitled behavior.
Simply defined, 'pirates' are people (anyone) who downloads music against the wishes of the artist and without paying for it.
I just don't think you can get into gradations of illegality.
People should know there's something fishy about something free.
If iTunes has an album for $10.99, but you download the same from *7%%x6ty.com for $0, don't tell me you don't know it's wrong.
The education aspect is to show people how damaging their actions are..... to ordinary musicians. But people have cheated on their insurance claims and social security for decades, so I don't think the main effort should be in education.
The main effort should be in effective deterrent.
Old 23rd September 2011
  #41
Lives for gear
I'm not defending the actions of people who habitually download illegal music, simply saying that as long as it's available people are going to download it. Copyright infringement was originally defined as copying and distributing, so those are the people I think we should be concerned with and I disagree with your definition of a pirate. Stopping people who copy and distribute music seems like the most logical and effective detterent. You are right that education is pretty much useless, people don't care nor do they care to learn. Piracy will most likely be an ongoing circular issue just like this forum.
Old 23rd September 2011
  #42
Quote:
Originally Posted by unitymusic View Post
I'm not defending the actions of people who habitually download illegal music, simply saying that as long as it's available people are going to download it. As long as they think there's no chance of serious consequences.
There - fixed it for you.
Old 23rd September 2011
  #43
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AwwDeOhh's Avatar
 

The education can come in the form of enforcement.

...after getting caught and having consequences, the pirate will "Learn" that to keep doing that will definately sting.
Old 23rd September 2011
  #44
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Well I've been looking into this case some more, and it appears there are a lot of conflicting reports of what the truth actually is.

Here is what wiki has to say:

Sony BMG v. Tenenbaum - Wikipedia, the free encyclopedia

It says the infringement accusation was for sharing 31 songs.

Here are some legal documents of the filings:

http://blogs.law.harvard.edu/cyberon.../11/j-01-1.pdf

http://blogs.law.harvard.edu/cyberon.../11/j-01-2.pdf

The second one cites 7 songs they believed to be infringing on copyright, with the total audio files in his Kazaa audio folder '816'.

Here is Joel's initial response:

http://blogs.law.harvard.edu/cyberon...08/11/j-05.pdf

Here is a counterclaim filed for excessive damages:

http://blogs.law.harvard.edu/cyberon...08/11/j-05.pdf

The damages of $675k that were previously awarded (which was a compromise to the $4m. they were asking) were found to be excessive and unconstitutional and reduced to around $67k, which both parties appealed. Now it seems they would like to challenge the constitution again.

This seems like it is more than a case of piracy, it is a blatant and excessive abuse of the constitution and legal system aided by powerful financial institutions for the sake of proving a point and diminishing individual rights and the ability to defend yourself against them in the court of law. Sad really.
Old 23rd September 2011
  #45
Quote:
Originally Posted by unitymusic View Post
Well I've been looking into this case some more, and it appears there are a lot of conflicting reports of what the truth actually is.

Here is what wiki has to say:

Sony BMG v. Tenenbaum - Wikipedia, the free encyclopedia

It says the infringement accusation was for sharing 31 songs.

Here are some legal documents of the filings:

http://blogs.law.harvard.edu/cyberon.../11/j-01-1.pdf

http://blogs.law.harvard.edu/cyberon.../11/j-01-2.pdf

The second one cites 7 songs they believed to be infringing on copyright, with the total audio files in his Kazaa audio folder '816'.

Here is Joel's initial response:

http://blogs.law.harvard.edu/cyberon...08/11/j-05.pdf

Here is a counterclaim filed for excessive damages:

http://blogs.law.harvard.edu/cyberon...08/11/j-05.pdf

The damages of $675k that were previously awarded (which was a compromise to the $4m. they were asking) were found to be excessive and unconstitutional and reduced to around $67k, which both parties appealed. Now it seems they would like to challenge the constitution again.

This seems like it is more than a case of piracy, it is a blatant and excessive abuse of the constitution and legal system aided by powerful financial institutions for the sake of proving a point and diminishing individual rights and the ability to defend yourself against them in the court of law. Sad really.
That's a load of BS. The Constitution says nothing about the size of fines or lawsuit awards. The LAW actually allows a much larger award.

One idiot judge made that ruling and ordered a reduction. That ruling was reversed, hence the topic of this thread. There was no legal basis for the reduction, merely the fact that this one judge is soft on piracy.

Pro-piracy advocates like to talk about this crap like it's a constitutional or "human rights" issue. It's not.

Quote:
diminishing individual rights and the ability to defend yourself against them in the court of law.
What "individual rights" are you talking about? The right to steal? I've got news for you, junior - you have no "right" to engage in illegal activity. You have no "right" to have legally defined penalties for engaging in such activity reduced just because you don't like them.

Mr Tenenbaum has had PLENTY ability to defend himself in court. He lost. He lost because he's guilty. He lost in several trials. He moronically refused several VERY generous settlement offers and insisted on making a big issue out of it. Well, he got his big issue. Boo-hoo.
Old 23rd September 2011
  #46
Quote:
Originally Posted by unitymusic View Post
This seems like it is more than a case of piracy, it is a blatant and excessive abuse of the constitution and legal system aided by powerful financial institutions for the sake of proving a point and diminishing individual rights and the ability to defend yourself against them in the court of law. Sad really.
you need to re-read the OP, you are mislead, misinformed and confused.

Quote:
Originally Posted by terryhart View Post
I haven't even had a chance to read the decision yet, but thought I'd share it here:

Sony BMG v. Tenenbaum Opinion

The 1st Circuit rejected ALL of Tenenbaum's arguments, reinstated the original jury verdict, BUT remanded to the District Court for reconsideration of the common-law remittitur question, so this isn't over yet.

Some interesting bits:
Quote:
Quote:
Tenenbaum argues to us that Congress never intended for the Copyright Act to impose liability or statutory damages against what he calls "consumer copiers." That argument was not presented to the district court and is waived.
Even were the argument not waived, it must fail. We start with the inaccuracy of the labels that Tenenbaum's argument uses. Tenenbaum is not a "consumer-copier," a term he never clearly defines. He is not a consumer whose infringement was merely that he failed to pay for copies of music recordings which he downloaded for his own personal use. Rather, he widely and repeatedly copied works belonging to Sony and then illegally distributed those works to others, who also did not pay Sony. Further, he received, in turn, other copyrighted works for which he did not pay. Nor can Tenenbaum assert that his was merely a "non-commercial" use and distribution of copyrighted works as those terms are used elsewhere in the Act. His use and distribution was for private gain and involved repeated and exploitative copying.
Tenenbaum's conduct:
Quote:
Quote:
Over the duration of Tenenbaum's conduct, he intentionally downloaded thousands of songs to his own computers from other network users. He also purposefully made thousands of songs available to other network users. He did this in the period after lawsuits were brought, and publicized, against individuals who downloaded and distributed music without authorization. At one point in time in 2004 alone, Tenenbaum had 1153 songs on his "shared-directory" on the Kazaa network. Any of those files within Tenenbaum's shared directory could be easily downloaded by other Kazaa users. Although there was no way to determine the exact number of times other users had downloaded files from Tenenbaum's shared directory, it was frequent. Most of the networks Tenenbaum used had a "traffic tab" that informed him of the frequency with which other users were downloading his shared files. Tenenbaum regularly looked at the traffic tab, and he admitted it "definitely wasn't uncommon" for other users to be downloading materials from his computer.
This is a complete smackdown. The court even takes the time to explain why the arguments Tenenbaum made that weren't preserved for appeal are wrong.
__________________
Copyhype
Old 23rd September 2011
  #47
Lives for gear
Quote:
Originally Posted by John Eppstein View Post
That's a load of BS. The Constitution says nothing about the size of fines or lawsuit awards. The LAW actually allows a much larger award.

........

What "individual rights" are you talking about? The right to steal? I've got news for you, junior - you have no "right" to engage in illegal activity. You have no "right" to have legally defined penalties for engaging in such activity reduced just because you don't like them.
Hm... well I'm referring to Amendment VIII in the Bill Of Rights:


Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.


I'd say this falls under excessive fines.
Old 23rd September 2011
  #48
Gear Addict
 

Quote:
Originally Posted by unitymusic View Post
Well I've been looking into this case some more, and it appears there are a lot of conflicting reports of what the truth actually is.

Here is what wiki has to say:

Sony BMG v. Tenenbaum - Wikipedia, the free encyclopedia

It says the infringement accusation was for sharing 31 songs.

Here are some legal documents of the filings:

http://blogs.law.harvard.edu/cyberon.../11/j-01-1.pdf

http://blogs.law.harvard.edu/cyberon.../11/j-01-2.pdf

The second one cites 7 songs they believed to be infringing on copyright, with the total audio files in his Kazaa audio folder '816'.

Here is Joel's initial response:

http://blogs.law.harvard.edu/cyberon...08/11/j-05.pdf

Here is a counterclaim filed for excessive damages:

http://blogs.law.harvard.edu/cyberon...08/11/j-05.pdf

The damages of $675k that were previously awarded (which was a compromise to the $4m. they were asking) were found to be excessive and unconstitutional and reduced to around $67k, which both parties appealed. Now it seems they would like to challenge the constitution again.

This seems like it is more than a case of piracy, it is a blatant and excessive abuse of the constitution and legal system aided by powerful financial institutions for the sake of proving a point and diminishing individual rights and the ability to defend yourself against them in the court of law. Sad really.
I've got more on this decision up on my site:

Sony BMG v Tenenbaum: District Court Erred in Reducing Jury Verdict | Copyhype

Far from being an abuse of the constitution, I think the court's decision upheld important constitutional values. The original judge literally created a new substantive due process limitation on jury verdicts -- at the expense of fundamental principles of separation of powers, judicial restraint, and the right to a jury trial.
Old 23rd September 2011
  #49
Lives for gear
Quote:
Originally Posted by terryhart View Post
I've got more on this decision up on my site:

Sony BMG v Tenenbaum: District Court Erred in Reducing Jury Verdict | Copyhype

Far from being an abuse of the constitution, I think the court's decision upheld important constitutional values. The original judge literally created a new substantive due process limitation on jury verdicts -- at the expense of fundamental principles of separation of powers, judicial restraint, and the right to a jury trial.
With all due respect Terry, because I do appreciate your expertise chiming in on the matter, but which specific constitutional values is this upholding? And how can you deny this is not excessive? The second paragraph on your site strikes me as odd:

"It’s a lot of money, of course. I think it’s highly unlikely any of the jurors who awarded the damages really expect Tenenbaum to be able to pay it all in a lifetime, and certainly Sony and the other record labels aren’t expecting to receive a check for anywhere near that amount".

If that is the case, and that does not mean it's excessive, please give me the proper definition of an "excessive fine".
Old 23rd September 2011
  #50
Gear Addict
 

Quote:
Originally Posted by unitymusic View Post
With all due respect Terry, because I do appreciate your expertise chiming in on the matter, but which specific constitutional values is this upholding? And how can you deny this is not excessive? The second paragraph on your site strikes me as odd:

"It’s a lot of money, of course. I think it’s highly unlikely any of the jurors who awarded the damages really expect Tenenbaum to be able to pay it all in a lifetime, and certainly Sony and the other record labels aren’t expecting to receive a check for anywhere near that amount".

If that is the case, and that does not mean it's excessive, please give me the proper definition of an "excessive fine".
There's no express constitutional prohibition against excessive damage awards in civil cases. The 8th Amendment prohibits "excessive fines":

Quote:
This Court has never held, or even intimated, that the Eighth Amendment serves as a check on the power of a jury to award damages in a civil case. Rather, our concerns in applying the Eighth Amendment have been with criminal process and with direct actions initiated by government to inflict punishment. Awards of punitive damages do not implicate these concerns. We therefore hold, on the basis of the history and purpose of the Eighth Amendment, that its Excessive Fines Clause does not apply to awards of punitive damages in cases between private parties.
...
The history of the Eighth Amendment convinces us that the Excessive Fines Clause was intended to limit only those fines directly imposed by, and payable to, the government.
Browning-Ferris v. Kelco Disposal (1989)

With that said, what constitutional values does this uphold?
1) Separation of powers. The power to make laws is vested in Congress. Congress made a law setting the range of statutory damages available in copyright infringement cases. A court can't substitute its judgment for Congress's simply because it doesn't like the results of a law.

2) Judicial restraint. The Constitution limits judicial power to deciding "cases or controversies". Also, Congress is elected by the people while federal judges are not, and they serve for life. Because of these characteristics, courts have to take caution not to push the exercise of their power too far.

3) The right to a jury trial. One of the most fundamental rights in the US. The Supreme Court has held that plaintiffs have a constitutional right to have a jury decide statutory damages. The district court judge ignored that right when she unilaterally reduced the verdict.

I realize the dollar amount makes this case difficult to view objectively, but this is how I see it: Congress passed a law setting the range of damages. A trial was held and a jury returned a verdict within that range. There wasn't any defect in the procedure: the trial was fair, the verdict wasn't the result of inflamed passions or prejudice. No matter how much you disagree with the size of the verdict, I don't think you can find anywhere in the Constitution that allows a judge to reduce it the way the district court judge did.
Old 23rd September 2011
  #51
Quote:
Originally Posted by unitymusic View Post
Hm... well I'm referring to Amendment VIII in the Bill Of Rights:


Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.


I'd say this falls under excessive fines.
The fine imposed is well within the statutory limits, therefore it is not excessive.

And there's plenty of legal precedent for high fines - and high bail, for that matter. "High" is in the eye of the beholder, but legally it's a very vague term.

Also, as Terry points out, this is a settlement in a civil suit, not a fine.

The guy was performing mass distribution of nearly 2 thousand songs. There's no way to tell exactly how many individual infringements he comitted, but there's every possibility that the $675k figure was LESS than the minimum statutory liability if it were possible to measure it.
Old 23rd September 2011
  #52
Quote:
Originally Posted by unitymusic View Post
With all due respect Terry, because I do appreciate your expertise chiming in on the matter, but which specific constitutional values is this upholding? ............
SNIP
Two things scream out at me about your recent posts.
1) The fine has little to do with the music industry and musicians. It was set by a jury of peers.
This is the system we are working with. It's no different to McDonalds being sued for a hot apple pie incident, or a local council if you trip and injure yourself and sue for medical expenses. Yes, the amounts can be ridiculous, but this is the jury award system at work.
2) Lot's of words about the constitution and pirates rights, but I have rights. I'm legally the owner of my work. I can sell my product and set my own price. Whenever someone takes my work without paying (and it happens a lot) my legal rights are violated.
So I think you need to step back and take a cold hard re-evaluation here.....
One or two people have suffered steep fines for their wrong doing, albeit both of them rejected an affordable and super reasonable alternative. meanwhile, literally hundreds of thousands of creative people are have their legal rights stomped on daily by millions of greedy individuals who actually don't care whether musicians are sent to the poor house.
Old 23rd September 2011
  #53
Which brings me back to a question I asked a while ago - unitymusic, why do you hate musicians?

Why do you hold the so-called "rights" of those who steal our work to be more important than our right to a fair wage?

You claim to be an aspiring musician yourself - why do you support the people who rip you off, or would rip you off if you had anything to actually sell?
Old 23rd September 2011
  #54
Quote:
Originally Posted by John Eppstein View Post
The guy was performing mass distribution of nearly 2 thousand songs. There's no way to tell exactly how many individual infringements he comitted, but there's every possibility that the $675k figure was LESS than the minimum statutory liability if it were possible to measure it.
...it is ABSOLUTELY more than $675k in minimum statutory liability, he's getting off easy...
Old 23rd September 2011
  #55
Lives for gear
Quote:
Originally Posted by terryhart View Post
There's no express constitutional prohibition against excessive damage awards in civil cases. The 8th Amendment prohibits "excessive fines":


Browning-Ferris v. Kelco Disposal (1989)

With that said, what constitutional values does this uphold?
1) Separation of powers. The power to make laws is vested in Congress. Congress made a law setting the range of statutory damages available in copyright infringement cases. A court can't substitute its judgment for Congress's simply because it doesn't like the results of a law.

2) Judicial restraint. The Constitution limits judicial power to deciding "cases or controversies". Also, Congress is elected by the people while federal judges are not, and they serve for life. Because of these characteristics, courts have to take caution not to push the exercise of their power too far.

3) The right to a jury trial. One of the most fundamental rights in the US. The Supreme Court has held that plaintiffs have a constitutional right to have a jury decide statutory damages. The district court judge ignored that right when she unilaterally reduced the verdict.

I realize the dollar amount makes this case difficult to view objectively, but this is how I see it: Congress passed a law setting the range of damages. A trial was held and a jury returned a verdict within that range. There wasn't any defect in the procedure: the trial was fair, the verdict wasn't the result of inflamed passions or prejudice. No matter how much you disagree with the size of the verdict, I don't think you can find anywhere in the Constitution that allows a judge to reduce it the way the district court judge did.
Yes, it is the dollar amount that I disagree with. Do you think it may be possible that down the line some case may make it to the supreme court and challenge that previous precedent? Or likewise, do you think it could be possible for someone down the line to make a case that Mass Media companies are "Businesses that serve the public interest [and] are subject to regulation by state government"? In which case, instituting max fines that fall within "non-excessive" limits could be possible?
Old 23rd September 2011
  #56
Lives for gear
Quote:
Originally Posted by chrisso View Post
Two things scream out at me about your recent posts.
1) The fine has little to do with the music industry and musicians. It was set by a jury of peers.
This is the system we are working with. It's no different to McDonalds being sued for a hot apple pie incident, or a local council if you trip and injure yourself and sue for medical expenses. Yes, the amounts can be ridiculous, but this is the jury award system at work.
2) Lot's of words about the constitution and pirates rights, but I have rights. I'm legally the owner of my work. I can sell my product and set my own price. Whenever someone takes my work without paying (and it happens a lot) my legal rights are violated.
So I think you need to step back and take a cold hard re-evaluation here.....
One or two people have suffered steep fines for their wrong doing, albeit both of them rejected an affordable and super reasonable alternative. meanwhile, literally hundreds of thousands of creative people are have their legal rights stomped on daily by millions of greedy individuals who actually don't care whether musicians are sent to the poor house.
Chrisso, I agree with that, but there is a reason why even murderers are entitled to a defense attorney in the United States. I'm not taking the side of pirates over musicians, I definitely side with creative people and rights owners, and the law. I still don't like to see large companies (who are not even musicians and creators, simply people that represent them...) use their financial advantage over individuals in the legal system, regardless of if the defending individual was wrong, which it is clear that this is the fact in this case, and was even admitted by Joel in his initial response that he acknowledged he was wrong. I don't think anyone is arguing with that, and I'm not trying to argue that. I have never said anything about supporting anyone's right to steal anything, much less supporting this right over creative peoples right to have IP not get stolen.
Old 23rd September 2011
  #57
Quote:
Originally Posted by unitymusic View Post
I still don't like to see large companies (who are not even musicians and creators, simply people that represent them...) use their financial advantage over individuals in the legal system
Well, those of us who aren't part of a large media company just get regularly ripped off with no avenue of address.
The large companies are the vanguard, at least redressing some of the imbalance in the way creative people are treated by web users.
Again, I really think you are worrying about the wrong people.
If you don't steal from other people, you don't end up in court.
Also, the fine was set by a jury of ordinary citizens (not by the judges or large media companies), and in both high profile cases so far, a very reasonable low dollar fine was tabled as a compromise, but rejected by the defendants.
Finally, these people are takers. They take what they want and damn those they take from, barely considering the consequences of their greed. then when some consequences are visited on them, they bleat about how unfair it is.
Old 23rd September 2011
  #58
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Originally Posted by unitymusic View Post
Yes, it is the dollar amount that I disagree with.
Actually, I disagree with the dollar amount too.

It should have been closer to $1.5 million, as it was in the Thomas case. That's a lot closer to the statutory penalty.

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Do you think it may be possible that down the line some case may make it to the supreme court and challenge that previous precedent?
Not likely. As I understand it the Supreme Court has declined to hear the case/issue.

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Or likewise, do you think it could be possible for someone down the line to make a case that Mass Media companies are "Businesses that serve the public interest [and] are subject to regulation by state government"?
Absolutely not.

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In which case, instituting max fines that fall within "non-excessive" limits could be possible?
You just don't get it, do you?

"Non-excessive fines" are pro-pirate propaganda. Criminals always want to avoid the penalty for their crimes.

The only people who want "non-excessive" fines are pirates and piracy sympathizers. If you favor "non-excessive" fines you are, by definition, a piracy sympathizer whether you realize it or not.

The only conceivable reason to have "non-excessive fines" would be to facilitate piracy by making it easier on pirates if they get caught. In other words, to negate the deterrent value of the fine.

You know, if you get busted for drunk driving you're stuck for around 10 grand in fines, court costs, etc, plus community service and having it on your record for 10 years which means greatly elevated insurance costs after you finally get your license back - FOR ONE OFFENSE. Would you reduce the "excessive penalty" for drunk driving?

Tenenbaum, Thomas, etc. are committing TENS OF THOUSANDS of offenses. If someone shares 1,600 songs (the approximate number that T&T each shared) with only 10 downloaders per song that's 16,000 offenses per pirate. And some of those songs had hundreds of downloaders. Possibly thousands.
Old 24th September 2011
  #59
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Originally Posted by unitymusic View Post
I'm not taking the side of pirates over musicians,
You certainly appear to be.

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I definitely side with creative people and rights owners, and the law. I still don't like to see large companies (who are not even musicians and creators, simply people that represent them...) use their financial advantage over individuals in the legal system,
Large companies? You don't get it - the ones who are getting KILLED by this are the small indie companies and the individual musicians. It's just that the big companies are the only one with the available funds to take it to court. In that sense the "large corporations" are acting in the interests of all of us.

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regardless of if the defending individual was wrong, which it is clear that this is the fact in this case, and was even admitted by Joel in his initial response that he acknowledged he was wrong. I don't think anyone is arguing with that, and I'm not trying to argue that. I have never said anything about supporting anyone's right to steal anything, much less supporting this right over creative peoples right to have IP not get stolen.
Then why are you sticking up for Tenenbaum so vigorously?
Old 24th September 2011
  #60
Gear Addict
 

Quote:
Originally Posted by unitymusic View Post
Yes, it is the dollar amount that I disagree with. Do you think it may be possible that down the line some case may make it to the supreme court and challenge that previous precedent?
Getting to the Supreme Court is very rare, but so far nothing has foreclosed that possibility in this or the Thomas-Rasset case, so yes, it is still possible it will make it there.

Do I think any judge-reduced verdict will stand if it makes it that far? No. I think the law is clear on this point, and while the lower court judges have looked at stretching the law to validate their actions, at least 1/3 of the Supreme Court judges have expressed concern that the law has already been stretched too far on this point -- meaning the farther Tenenbaum and Thomas-Rasset push this, the farther they dig themselves into a hole.

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Or likewise, do you think it could be possible for someone down the line to make a case that Mass Media companies are "Businesses that serve the public interest [and] are subject to regulation by state government"? In which case, instituting max fines that fall within "non-excessive" limits could be possible?
The "mass media" companies didn't set the damages (they're damages, after all, not fines). The range of damages, from $750-30,000 per work infringed, with the max increased to $150,000 for willful infringement, were set by the duly elected Congress. The damage award was handed down by a jury of 12 peers, after a fair trial. It's very simple: if you think that range is too high, tell Congress to change it.

Quote:
Originally Posted by unitymusic View Post
Chrisso, I agree with that, but there is a reason why even murderers are entitled to a defense attorney in the United States. I'm not taking the side of pirates over musicians, I definitely side with creative people and rights owners, and the law. I still don't like to see large companies (who are not even musicians and creators, simply people that represent them...) use their financial advantage over individuals in the legal system, regardless of if the defending individual was wrong, which it is clear that this is the fact in this case, and was even admitted by Joel in his initial response that he acknowledged he was wrong. I don't think anyone is arguing with that, and I'm not trying to argue that. I have never said anything about supporting anyone's right to steal anything, much less supporting this right over creative peoples right to have IP not get stolen.
Tenenbaum had a fair trial, with a lot of pro bono help from willing critics of record labels. He had a Harvard law professor and students at a Harvard law clinic defending him, with the EFF assisting as an amicus -- this is heavyweight legal defense. He also had an extremely sympathetic district court judge. But he was still found liable for $675,000. Yes, part of that is because the Harvard law professor was more interested in grandstanding than actually defending his client, and he screwed up -- royally.

But this wasn't a case of deep pocketed corporations exerting an unfair advantage over the little guy. This was a fair fight, and 12 of the little guys thought Tenenbaum should be on the hook for $675k for his conduct.

And it's not an aberration: 12 of the little guys thought Thomas-Rasset should be on the hook for $222k, $1.92m, and $1.5m for similar conduct.

To put it another way: every single jury award for file-sharing has been in the range of thousands of dollars per work. At what point do we recognize that the idea that these are unfair or excessive verdicts is a minority position?
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