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Tenenbaum back on the hook for $675k: Court reverses reduction in damages Modular Synthesizers
Old 16th September 2011
  #1
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Tenenbaum back on the hook for $675k: Court reverses reduction in damages

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:
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:
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.

Last edited by terryhart; 16th September 2011 at 11:09 PM.. Reason: additions
Old 17th September 2011
  #2
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AwwDeOhh's Avatar
 

Tenenbaum must be kicking himself in the rear-end for not taking the original settlement (or the numerous attempts offered to settle out of court inbetween trials...)
What was it again? 5k? less?


I'm always hearing something to the ilk of "he only downloaded a handful of songs ... and they awarded how much?"

The following sentences never seem to register with these same people:
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.
NO one can say he is without guilt... heck, even HE freely admits it!
Old 17th September 2011
  #3
Gear Addict
 

Quote:
Originally Posted by AwwDeOhh;7039165
[I
NO[/I] one can say he is without guilt... heck, even HE freely admits it!
Well...eventually admitted it...

Quote:
Before the trial, Tenenbaum also attempted to shift responsibility for his conduct to other individuals by claiming they could have used his computer in order to illegally download and distribute the copyrighted works. These individuals included a foster child living in his family's home, burglars who had broken into the home, his family's house guest, and his own sisters. His sisters and others he blamed testified that they had never illegally downloaded music and had no knowledge of who installed the file sharing software on Tenenbaum's computer.

Finally, when asked at trial about his efforts to attribute the blame for his actions to others, Tenenbaum admitted his own responsibility: "I used the computer, I uploaded, I downloaded music, this is what I did, that's how it is, I did it."
Old 17th September 2011
  #4
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AwwDeOhh's Avatar
 

ROFL!
" ...burglars who had broken into the home... "

That made me chuckle... the mental image of a burglar(s) sitting down to surf the net, download and upload a few thousand songs...

Aren't burglars usually in sort of a hurry? At least, i would think...
Old 18th September 2011
  #5
tenenbaum and thomas are idiots - they're wrong, they know it, they got caught and they keep looking for excuses...

it's pretty simple : don't steal what is not yours...
Old 19th September 2011
  #6
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Quote:
Originally Posted by terryhart View Post
Before the trial, Tenenbaum also attempted to shift responsibility for his conduct to other individuals by claiming they could have used his computer in order to illegally download and distribute the copyrighted works. These individuals included a foster child living in his family's home, burglars who had broken into the home, his family's house guest, and his own sisters. His sisters and others he blamed testified that they had never illegally downloaded music and had no knowledge of who installed the file sharing software on Tenenbaum's computer.

Finally, when asked at trial about his efforts to attribute the blame for his actions to others, Tenenbaum admitted his own responsibility: "I used the computer, I uploaded, I downloaded music, this is what I did, that's how it is, I did it."
*Jeopardy theme music*
"What are-- things people say to avoid responsibility for their own actions?"
I'll take People Without a Moral Compass for $2000, Alex.
Old 19th September 2011
  #7
Who are the real bad guys in society?
The Lars Ulrich's or the people who when caught doing wrong blame an innocent sister and foster child?
Old 19th September 2011
  #8
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Quote:
Originally Posted by chrisso View Post
Who are the real bad guys in society?
The Lars Ulrich's or the people who when caught doing wrong blame an innocent sister and foster child?
They're both kinda dumb in my opinion, but I agree that's pretty low. However, I would never pay $675k for downloading music. I do think this guy is wrong and probably deserves a harsher penalty for mocking the issue so much, but that is an excessive amount to pay for any amount of music, and the whole 'send a message thing' is tired. Either stop the issue at the real source or don't, but stop pretending that prosecuting small time people like this is actually progress towards the larger issue at hand, IMO.
Old 20th September 2011
  #9
Quote:
Originally Posted by unitymusic View Post
They're both kinda dumb in my opinion, but I agree that's pretty low. However, I would never pay $675k for downloading music. I do think this guy is wrong and probably deserves a harsher penalty for mocking the issue so much, but that is an excessive amount to pay for any amount of music, and the whole 'send a message thing' is tired. Either stop the issue at the real source or don't, but stop pretending that prosecuting small time people like this is actually progress towards the larger issue at hand, IMO.
No, it's not.

A fine that is "fair" is pointless.

The whole point of a fine is to be punitive - it has to hurt. It has to hurt enough to make people stop and think "Do I really want to risk this? Is it worth it? No, it isn't."

The minute you remove that "No, it isn't" from the equation the fine becomes pointless as a deterrent.

And, in fact, Tannenbaum's fine was pretty fair. He uploaded thousands of records to thousands of people. That's a LOT of damage. That's actually easily enough damage to qualify as a federal felony; he's really lucky he's not pulling jail time. And in fact that may yet happen.

Quote:
I would never pay $675k for downloading music.
I've got news for you, sonny - you most definitely would if you got caught doing what he did. Certain types of debts do NOT go away if you declare bankruptcy. You do not have the choice not to pay; if you don't pay you get slapped with Contempt Of Court and spend time in the slammer until you cough up. The only way to avoid paying is to not make any money. If you do make money they will put a lien on your earnings until the debt is paid off.
Old 20th September 2011
  #10
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How do you expect anyone to pay $675k? It certainly is not possible for me, and I would imagine the same for a lot of people. If you're talking theoretical debt that gets reduced and settled ok, but there is no physical way they could ever get $675k from me. Are they going to throw me in jail for the rest of my life because I can't pay? I'm a musician, I don't have any money.
Old 20th September 2011
  #11
Quote:
Originally Posted by unitymusic View Post
How do you expect anyone to pay $675k? It certainly is not possible for me, and I would imagine the same for a lot of people. If you're talking theoretical debt that gets reduced and settled ok, but there is no physical way they could ever get $675k from me. Are they going to throw me in jail for the rest of my life because I can't pay? I'm a musician, I don't have any money.
Well, if you don't have any money, they can't get it. But if you ever DO get any money, they'll take most of it. It's like alimony - the only way you can avoid paying is by staying broke. Which ain't fun.

Think of it in the same way as one of those Wall Street fraudsters who gets sentenced to 200 years in jail. No, it's not technically a life sentence. But he's not ever gonna get out.
Old 20th September 2011
  #12
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I just think it's excessive and absurd. Ruining someones life over a non violent crime is just unnecessary. Being broke is not fun, but if I had that kind of debt I certainly wouldn't work just to give it all away. They're not expecting to get that money (in the full amount) I would assume, but why waste the resources trying to 'prove a point'? That just pushes public opinion farther away from sympathizing with content holders.
Old 20th September 2011
  #13
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Quote:
Originally Posted by unitymusic View Post
I just think it's excessive and absurd. Ruining someones life over a non violent crime is just unnecessary. Being broke is not fun, but if I had that kind of debt I certainly wouldn't work just to give it all away. They're not expecting to get that money (in the full amount) I would assume, but why waste the resources trying to 'prove a point'? That just pushes public opinion farther away from sympathizing with content holders.
Being broke is a lot better than being in prison. Let someone steal all your life's work and let's see how charitable you feel then.
Old 20th September 2011
  #14
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Quote:
Originally Posted by unitymusic View Post
I just think it's excessive and absurd. Ruining someones life over a non violent crime is just unnecessary. Being broke is not fun, but if I had that kind of debt I certainly wouldn't work just to give it all away. They're not expecting to get that money (in the full amount) I would assume, but why waste the resources trying to 'prove a point'? That just pushes public opinion farther away from sympathizing with content holders.
The person here that's "Trying to Prove a Point" as you put it.. is, in fact, Tenenbaum.
He was offered to settle for around $5,000. After going to court and racking up lawyer fees, they offered to settle again, this time 25k.
Tenenbaum refused MUTIPLE offers to settle out of court... even AFTER getting several HUGE judgements awarded against him...
Old 20th September 2011
  #15
Quote:
Originally Posted by unitymusic View Post
I just think it's excessive and absurd. Ruining someones life over a non violent crime is just unnecessary. Being broke is not fun, but if I had that kind of debt I certainly wouldn't work just to give it all away. They're not expecting to get that money (in the full amount) I would assume, but why waste the resources trying to 'prove a point'? That just pushes public opinion farther away from sympathizing with content holders.
The idea is TO PREVENT THEM FROM DOING THE CRIME.

Why are you sympathetic to the criminals but not the victims?

Do you think it's excessive to send a bank robber to prison for most of his life?

The average bank robber steals far less than the amount that Tennenbaum stole and damages far fewer people in a far less serious way, given that bank deposits are covered by federal insurance and musicians' royalties have no insurance at all.

Why do you hate musicians?

It's because we're easy marks, right?
Old 20th September 2011
  #16
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I don't hate musicians, I hate greed. I highly doubt any musician would try to demand $675k from someone for stealing their music. So both parties in this case are trying to prove a point... I think they both hate musicians, they certainly aren't looking out for their best interest.

And really, bank robbers? You are saying no one has been killed in a bank robbery before? Or are you just saying that's not as serious as IP piracy? Why do you hate human rights?

I also hate the war on drugs, it's not because I support organized crime, it's because the war on drugs does not help the issue.
Old 20th September 2011
  #17
Quote:
Originally Posted by unitymusic View Post
I don't hate musicians, I hate greed. I highly doubt any musician would try to demand $675k from someone for stealing their music. So both parties in this case are trying to prove a point... I think they both hate musicians, they certainly aren't looking out for their best interest.
You don't get it. Joel Tenenbaum stole thousands of songs from hundreds or even thousands of different artists and distributed each song widely over the internet, resulting in hundreds or even thousands of individual thefts of each song. It's not "any musician" demanding $675k - it's MANY musicians demanding that this massive a-hole gets the punishment he deserves.

Quote:
And really, bank robbers? You are saying no one has been killed in a bank robbery before?
That's murder, which is a separate crime. With its own penalty.

Quote:
Or are you just saying that's not as serious as IP piracy? Why do you hate human rights?
You mean the "right to steal"? Theft is not a human right. A human right is the right to be paid a fair wage if somebody uses your work. Why do YOU hate human rights?

Do you actually make a living in some aspect of music?

What do you do to support yourself?

How would you feel about being forced to give away your work for free? That's slavery, isn't it - Do you support slavery, Mr. Human Rights?
Old 20th September 2011
  #18
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I said nothing about having or deserving the right to steal. I was simply replying to your comment that this guy affected far more people on a far more serious level than bank robberies do. Since sometimes people die in bank robberies, I took that to mean you don't value/respect human life and human rights. Tongue in cheek of course.
Old 20th September 2011
  #19
Quote:
Originally Posted by unitymusic View Post
I said nothing about having or deserving the right to steal. I was simply replying to your comment that this guy affected far more people on a far more serious level than bank robberies do. Since sometimes people die in bank robberies, I took that to mean you don't value/respect human life and human rights. Tongue in cheek of course.
Sometimes people die if they can't pay their rent or feed themselves, too. Sometimes people commit suicide if their work is being stolen on a worldwide scale and they don't receive a dime for it. Sometimes people die if they can't afford proper medical care (this is rather common among musicians, BTW.)

Now answer my questions - do you actually work in music (as opposed to dabbling in your bedroom or playing in a band for fun).

What do you do to support yourself?

How would you feel if you had to do it for free because people wanted your work but refused to pay you for it? Do you support slavery?

Not tongue in cheek. At all.
Old 20th September 2011
  #20
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I haven't had a job in a while, so no full time income from anything. I used to play in bars but got tired of being a *****. I record some people here and there, small budget stuff though so again no full time income. I guess I'm a dabbler. I don't do it for fun, it's a lifestyle. No of course I don't support slavery.
Old 20th September 2011
  #21
Yeah, I agree that you've missed the point. 'Greed' has absolutely nothing to do with the fine.
It's a punitive fine, designed to punish the defendant and deter others.
I do agree that the reasonable settlement of $5,000 should have been grabbed with both hands, but what we've seen in two high profile cases is greedy individuals protesting they've done nothing wrong.
The greed is fully and squarely on the side of the illegal downloaders.
Old 20th September 2011
  #22
Quote:
Originally Posted by chrisso View Post
Yeah, I agree that you've missed the point. 'Greed' has absolutely nothing to do with the fine.
It's a punitive fine, designed to punish the defendant and deter others.
I do agree that the reasonable settlement of $5,000 should have been grabbed with both hands, but what we've seen in two high profile cases is greedy individuals protesting they've done nothing wrong.
The greed is fully and squarely on the side of the illegal downloaders.
Exactly.

The point that certain people either keep missing or deliberately ignoring is that every attempt WAS made to be "reasonable" and that all attempts at "reason" were rejected.

The pirates insisted on making a big test case out of it. They should have expected what they got.

You try to make a case for the right to steal, you get whacked upside the head with a big ole legal baseball bat, maybe it'll knock some sense into you. And send a message to anybody else who's dumb enough or greedy enough to pull the same stunt.
Old 20th September 2011
  #23
Concerning how one might make $675k to pay off the fine, well, there's always a career in law.......
Old 20th September 2011
  #24
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Quote:
Originally Posted by chrisso View Post
Yeah, I agree that you've missed the point. 'Greed' has absolutely nothing to do with the fine.
It's a punitive fine, designed to punish the defendant and deter others.
I do agree that the reasonable settlement of $5,000 should have been grabbed with both hands, but what we've seen in two high profile cases is greedy individuals protesting they've done nothing wrong.
The greed is fully and squarely on the side of the illegal downloaders.
I'm not arguing with that, nor am I arguing with johns point about making a case to steal. Just the fact that if they were willing to settle for $5k, $675k is absurd. It does not help make a case for educating the public and getting them on your side.

Concerning a career in law: I don't think I'm smart enough for that so that doesn't apply to everyone.
Old 21st September 2011
  #25
Quote:
Originally Posted by unitymusic View Post
I'm not arguing with that, nor am I arguing with johns point about making a case to steal. Just the fact that if they were willing to settle for $5k, $675k is absurd. It does not help make a case for educating the public and getting them on your side.
Actually, "educating the public" and "getting them on your side" isn't the point.

"Educating" has been tried by everyone from Lars Ulrich to Mike Lombardo. It doesn't do much good because you're trying to "educate" people into acting against their perceived self interest. Same thing with "getting them on your side".



The point is to make it obvious to all but the hardest core pirate that stealing music is NOT in their self interest for the same reason that shoplifting is not in their self interest - if they get caught the consequences will not be pleasant. And since the perception is that music piracy is easier to get away with than shoplifting, the penalties need to be scarier to make an impression.

Quote:
Concerning a career in law: I don't think I'm smart enough for that so that doesn't apply to everyone.
Well, obviously Tennenbaum thought HE was smart enough.


You know, it should never have even been up to the musicians and the record industry to pursue this in the first place. The government should have been on it from square one. If the government had been on top of things it never would have blown up out of proportion to begin with. The FBI should have come down on Napster with both feet. And if Napster had been doing software instead of music they would have. Law enforcement is the government's responsibility, not the private sector's. If they can't at least do that, what good are they?
Old 21st September 2011
  #26
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Ah, the same way you get people to support religion... I guess that's why I'm skeptical and feel like I'm being lied to?
Old 21st September 2011
  #27
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Quote:
Originally Posted by John Eppstein View Post
You know, it should never have even been up to the musicians and the record industry to pursue this in the first place. The government should have been on it from square one. If the government had been on top of things it never would have blown up out of proportion to begin with. The FBI should have come down on Napster with both feet. And if Napster had been doing software instead of music they would have. Law enforcement is the government's responsibility, not the private sector's. If they can't at least do that, what good are they?
Now that I totally agree with. So what exactly does the government stand to gain by not enforcing this? Or what do they stand to lose by enforcing it? Or is it strictly incompetence?
Old 21st September 2011
  #28
Quote:
Originally Posted by unitymusic View Post
Ah, the same way you get people to support religion... I guess that's why I'm skeptical and feel like I'm being lied to?
I'd say something about that but religion is a verboten topic on GS. BTW you should probably re-read my post - I edited it and added some stuff.
Old 21st September 2011
  #29
Quote:
Originally Posted by unitymusic View Post
Now that I totally agree with. So what exactly does the government stand to gain by not enforcing this? Or what do they stand to lose by enforcing it? Or is it strictly incompetence?
It was a combination of incompetence, underfunding, expediency, and conflicting goals.

They didn't understand the threat.

They didn't understand the internet.

Internet piracy hit at the same time as the rise in global terrorism and the rise of hacking in organized crime, both of which were perceived as more serious threats - much of the FBI's cyber capability was redirected into those areas and away from copyright enforcement. The feds regarded piracy as primarily a bunch of kids fooling around until the problem had totally blown up out of control.

Finally the Obama administration appears to be getting it.

There's also the small matter of the fact that the GWB administration was largely hostile towards the entertainment industry in general. It's no accident that funding for some of the major pirate sites is provided by right-wingers. Who is REALLY behind The Pirate Bay?
Old 21st September 2011
  #30
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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.
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