Judge Says Damages In Tenenbaum Case Were 'Unconstitutionally Excessive'
from the the-riaa-is-not-going-to-like-that dept
It seems like the Joel Tenenbaum case is simply an echo on the Jammie Thomas case. Both lawsuits involved very flawed defendants who probably shouldn’t have gone through with their fights against the RIAA. In both cases, juries awarded huge statutory damages awards to the record labels. In Thomas’ case it was $1.92 million or $80,000 per song. In the Tenenbaum case, it was $675,000 or $22,500 per song. Even though both cases were what I considered to be “bad” cases (too much evidence that both Thomas and Tenenbaum were actually heavily involved in file sharing), both have used the rulings to challenge the statutory damages awards as being unconstitutional.. and now the judges in both cases have agreed.
As you probably recall, the judge in the Thomas case reduced the $1.92 million award to $54,000 (or $2,250 per song) and today comes the news that Judge Gertner in the Tenenbaum case has declared the original damages award to be “unconstitutionally excessive” and slashed the total by 90% down to $67,500. In both cases, the judges actually set the per song damages award down to $2,250. There were lots of questions when Judge Davis did this in the Jammie Thomas case if a judge could actually do that, and that’s still being fought to some extent. It seems likely that, as with the Thomas case, the RIAA will appeal this particular ruling because it most certainly does not want a precedent on the books that can lower the statutory damages rate for copyright.
This could start to get very interesting. Both judges are clearly taking a stand that the actual statutory rates set by Congress are ridiculously high and totally out of proportion with the actions done by the defendants. There is definitely some precedent for ridiculously high damages awards being thrown out as unconstitutionally excessive… but not when it comes to statutory rates, where the courts have generally said Congress has great leeway to determine what is and what is not excessive. However, with two judges pointing out that a number within the range provided by Congress is excessive, it’s setting up a potentially very important legal battle about the statutory damages associated with copyright.
The industry has always pushed for higher and higher damages, somehow believing that will act as a disincentive for infringing. Yet, there doesn’t appear to be any evidence at all that it’s working. Instead, such high damages have actually done the opposite. They’ve convinced many, many people of just how ridiculously unfair and out of touch copyright laws are. The general public can recognize that sharing a single file shouldn’t lead to a fine of tens of thousands of dollars. It’s so out of proportion with reality that they begin to question the overall setup of copyright law itself. The industry’s focus on higher and higher copyright damages has been a major strategic mistake that has backfired. These rulings — which the industry will fight tooth and nail — might actually be a blessing in disguise for the industry. If the actual damages weren’t so ridiculous, people probably wouldn’t be so up in arms over copyright issues.
Filed Under: copyright, damages, jammie thomas, joel tenenbaoum
Companies: riaa
Comments on “Judge Says Damages In Tenenbaum Case Were 'Unconstitutionally Excessive'”
Purpose and Scope
Lets not forget that the actual primary reason for these statutory damages is for COMMERCIAL infringement. This was always intended to go after people who would mass-copy and SELL (not ads on a website with links either) ACTUAL PHYSICAL COPIES, and on a scale, not just a few to friends. There was always supposed to be a profit motive (and no, avoiding paying for something is NOT the same as profiting from selling something) associated with these damages. This was the essence of this kind of “distribution” and there used to be a specific exception carved out for non-commercial, personal use. Still is, I think, but it routinely gets ignored and these people who get sued get lumped in with COMMERCIAL LEVEL infringers, as if sharing a file is the same as making a CD and selling it on the street or in a corner convenience store (you’ve seen them in cities, dont deny it).
Re: Purpose and Scope
To say that statutory damages are for commercial infringement is simply wrong, as is only too clear from even a cursory reading of the legislative history.
Re: Re: Purpose and Scope
Care to support your assertion with – like … anything ?
Re: Re: Re: Purpose and Scope
> Care to support your assertion with – like … anything ?
The basic principles of Torts would be a start.
Although the idea that “cruel and unusual punishnments” are inherently wrong seem to be what these judges are fixating on.
Those statutory damages were originally intended for bootleggers and are grossly out of proportion when applied to individuals swapping works.
“…does not what a precedent on the books”
hehehe First for the first time ever. On topic I think that reducing the damages is hurting our PR campaign. So let the full damages stand, and we will then see how these MAFIAA do anything.
Re: Re:
“hehehe First for the first time ever.”
Wrong…and gay…
It’s good that there is at least some level of sanity in the damage awards.
I still think they’re high, but considering the defendents were fools for fighting the case, didn’t look innocent, and in one case had a crazy legal team, it’s not too bad.
Fining someone the equivalent of their lifetime income over some mp3’s that were in a shared folder is beyond crazy. The fines for serious crimes that actually harm others is nowhere near these levels.
Re: Re:
Re fines for criminal activity, yes the fines are lower…just the same as most criminal activity vis a vis civil litigation. Of course, it is useful to keep in mind that one does not go to jail for a civil law violation.
Even with the drastic reductions, the damages per song are most of or more than most people’s monthly incomes.
Re: Re:
There are a lot of people out there that these awards are more than the individual’s ANNUAL GROSS income.
Re: Re: Re:
“There are a lot of people out there that these awards are more than the individual’s ANNUAL GROSS income.”
Let me fix that for you:
“There are a lot of people out there that these awards are more than the individual’s LIFETIME GROSS income.”
Wait, thats still not right, let me take another pass at that:
“There are a lot of people out there that these awards are more than the individual’s LIFETIME GROSS income MULTIPLE TIMES OVER.”
Ah thats better, thats exactly what we have now.
IIRC, the current statutory damages represent twice the amount that were on the “books” before cases like JRT and T came to the fore. Even under the prior statute damages could be awarded that were quite high. The same can be said of the original Copyright Act of 1790, a “cousin” of what is now the statutory damages regime.
Appeals are all but certain. If one of the two circuit courts of appeal (the one containing Massachusetts and the other containing Minnesota) agrees with the trial judges, a direct appeal to the Supreme Court would be taken up by the Supreme Court as it would involve a declaration that a duly enacted statute is unconstitutional (plus a whole host of other quite important issues, including the 7th Amendment). If the two circuit courts reverse the trial courts a petition for cert to the Supreme Court will likely be filed and may very well be accepted by the court (though any decision to do so is at the court’s sole discretion).
Importantly, at both the circuit court and the Supreme Court the Department of Justice will present merit briefs fully supporting the constitutionality of the statutory damages provision.
Simply put, these cases have quite a long way to go before they are concluded.
Just my view, but I tend to believe that on appeal the appellate judges will likely focus less on the statutory damages provision itself, and more on the important relationship of the roles played by judges and juries, which is a 7th Amendment issue.
Re: Re:
IIRC, the current statutory damages represent twice the amount that were on the “books” before cases like JRT and T came to the fore. Even under the prior statute damages could be awarded that were quite high.
The reason statutory damages were set high originally was the assumption that infringement would be for commercial purposes. That they do not take into account non-commercial uses is part of the reason most people think they’re a joke.
Re: Re: Re:
“The reason statutory damages were set high originally was the assumption that infringement would be for commercial purposes.”
Citation? Commercial use in a very general sense was the primary thrust for criminal copyright infringement up until the time the criminal statutes were amended in 1999, but it is a distinction that is not a part of the statutes pertaining to civil liability.
Re: Re: Re: Re:
Citation? Commercial use in a very general sense was the primary thrust for criminal copyright infringement up until the time the criminal statutes were amended in 1999, but it is a distinction that is not a part of the statutes pertaining to civil liability.
The history of copyright law and the Congressional record on current statutory rates…
Non-elected judiciary.
The elected congress does the best it can with complicated issues that often lag behind the pace of societal/behavioral adoption. The minimum/maximum in statutory damages was established for a variety of reasons and it was NOT actually about (merely) physical copies. It was about any transgression upon the holders rights. Further, these were jury findings, not the industry or the judge. The RIAA offered to settle for a fraction of the jury amount. And file sharing has been held as a non-fair use, commercial infringement since Napster, in 2001.
“To save the expense” Illegal file bartering has been held to be a commercial use, cutting off the defense of fair use in the U.S.: “…[C]ommercial use is demonstrated by a showing that repeated and exploitative unauhorized copies of copyrighted works were made to save the expense of purchasing authorized copies.” A&M Records, Inc. et al v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001), at 1014.
Legislation from the bench has long been held by the knowledgable public in justifiable concern, since it is Congress’ job, not the judiciary to set the laws. It’s always rewarding to see the fanbois here applaud legislating from the bench when it happens to feed their own version of utopia.
Re: Non-elected judiciary.
“Legislation from the bench has long been held by the knowledgable public in justifiable concern, since it is Congress’ job, not the judiciary to set the laws. It’s always rewarding to see the fanbois here applaud legislating from the bench when it happens to feed their own version of utopia.”
Sigh, this argument is so silly. The judges decried the statutory damages awarded to be unconstitutional. Intepreting law and striking the law down when it is in itself unlawful is the PRIMARY purpose of the court system. It’s the judiciary’s check and balance on Congress. To claim that this is a case of legislating from the bench is moronic. To claim that the judiciary does not have the constitutional power of checking Congressional laws against the Constitution is a fundemental misunderstanding in the way our government is supposed to work.
In other words….WRONG!
Re: Non-elected judiciary.
“The elected congress does the best it can [to support their money donors a/k/a corporations] with complicated issues” regardless of the fairness or justice involved.
(Couldn’t help fixing that for you.)
“Further, these were jury findings, not the industry or the judge”
Meaningless, given the way juries are misled and restricted nowadays.
“The RIAA offered to settle for a fraction of the jury amount.”
Not only meaningless, but insulting. Get an unjustly egregious award, then pretend to be reasonable by offering to settle for a less egregious award.
“And file sharing has been held as a non-fair use, commercial infringement since Napster, in 2001.”
In certain circumstances.
“it is Congress’ job, not the judiciary to set the laws”
True, but it is the judiciary’s job to oversee congress (checks & balances, remember?) to ensure that the laws comport with the Constitution. Congress does not have the right to pass any laws it likes, without restraint. That’s a good thing.
Re: @Sam I Am: sickening to see lawyers applauding dystopia.
So you’re *for* ruining lives over copyright infringement. Big media simply bought politicians to change statute; there’s zero precedent for this in common law. “Rights holders” have taken a cushy privilege and are now using it to leverage the destruction of civil society. You’ve revealed yourself to be a a vulture hoping for a feast at the death of civilization, rather than a valuable member of society.
Re: Re: @Sam I Am: sickening to see lawyers applauding dystopia.
“You’ve revealed yourself to be a a vulture hoping for a feast at the death of civilization”
Well yeah. Okay.
You got me there.
Re: Non-elected judiciary.
“It’s always rewarding to see the fanbois here applaud legislating from the bench when it happens to feed their own version of utopia.”
It’s always rewarding to see people applaud uninformed congressional decisions when they happen to feed their own version of utopia.
Re: Non-elected judiciary.
What happen to:
– This is a country of laws, if you don’t like them leave the country.
– The law is the law and you have to follow it.
You I know is a paid shill. That keep posting ridiculous statements everywhere, have you visit Ars, TorrentFreak, DSLreports yet?
What happens if they can't pay?
I am just curious. What happens if they are awarded more than the person could make in their lifetime? They get their wages garnished forever? What would be the point of working? If that’s the case, they would have to leave the country to ever make any money again. So are they being thrown out of the country for sharing mp3’s? Wow.
Re: What happens if they can't pay?
The usual scenario, since you asked: After any/all appeals are exhausted, which can take years, the party awarded the most (yes, Virginia, both parties often an award) will begin wage garnishment hearings and do real property searches to file leans against said property. More lengthy paperwork, time, and money. Its a hell of a system.
IF this process as far as the record labels are concerned could be shown to work as a deterrent I can see why the labels pursue it, but seeing as how the numbers on file sharing are actually increasing I fail to understand why they are so willing to go down the this path. Its a very expensive and time-gobbling process. Even if it doesn’t cost them in time it sure has hell costs them in billable hours. If they were even a bit creative think of all the money they could make diverting that wasted cash to creative ways to make money from music.
Re: Re: What happens if they can't pay?
Actually, it’s why the entertainment companies are pursuing the far easier route of going after gatekeepers.
Think about the 3 strikes that is in process with Youtube. Also think about the fact that ICANN has helped law enforcement in the takedown of 9 sites. It’s far easier and less time consuming (read less money) to go after those than going after individuals. Especially when said individuals are all over the country.
Re: What happens if they can't pay?
You file for bankruptcy and hope you can rebuild your life after that.
Re: What happens if they can't pay?
I believe the cap on garnishments is 25% of pre-tax income, unless it involves child support.
No Electronic Theft Act 1997
I think the lousy piece of corporate ‘bought and paid for’ legislation that RD and others are looking for is the ‘No Electronic Theft Act of 1997 (a.k.a. the Net Act)
[ https://secure.wikimedia.org/wikipedia/en/wiki/NET_Act ]
Previous to this dreadful piece of legislation the RIAA and it’s like couldn’t go after non-commercial, not for profit, infringers.
For those in the audience that like to pester our congress critters, this would definitely be a bad law to repeal.
(from the above mentioned link)
“Prior to the enactment of the NET Act in 1997, criminal copyright infringement required that the infringement was for the purpose of “commercial advantage or private financial gain.” Merely uploading and downloading files on the internet did not fulfill this requirement, meaning that even large-scale online infringement could not be prosecuted criminally.[1] This state of affairs was underscored by the unsuccessful 1994 prosecution of David LaMacchia, then a student at the Massachusetts Institute of Technology, for allegedly facilitating massive copyright infringement as a hobby, without any commercial motive. The court’s dismissal of United States v. LaMacchia suggested that then-existing criminal law simply did not apply to non-commercial infringements (a state of affairs which became known as the “LaMacchia Loophole”). The court suggested that Congress could act to make some non-commercial infringements a crime, and Congress acted on that suggestion in the NET Act.”
Re: No Electronic Theft Act 1997
“I think the lousy piece of corporate ‘bought and paid for’ legislation that RD and others are looking for is the ‘No Electronic Theft Act of 1997 (a.k.a. the Net Act)
[ https://secure.wikimedia.org/wikipedia/en/wiki/NET_Act ]”
THANK YOU! This is the exact law and line of reasoning I was trying to get across. The idea that these huge statutory damages were ever to be wielded against individuals who were sharing (infringing) for non commercial reasons is a new concept and variation of the original intent of the law that has sadly been pushed to the forefront of these lawsuits, when that was never the intent of these laws to begin with.
Re: Re: No Electronic Theft Act 1997
To be fair, the NET Act only dealt with criminal infringement. In theory, you could probably sue someone for non-commercial infringement under tort law.
I say “probably” because I don’t know of one single case where this actually happened. Not prior to 1997, anyway.
Also, only registered copyrights are allowed statutory damages. Usually a copyright is only registered when there is the expectation of commercial gain. (Prior to 1976, if you didn’t register, you didn’t hold a copyright at all.)
So yes, it does appear that statutory rates for infringement were designed solely for commercial infringers.
If you haven’t already, you should read the specific alterations to the law that the NET Act made.
A good portion of it is the institution of “victim impact statements” by rights holders. In other words, they’re allowed to grandstand on how much non-commercial infringement “hurts” them, in order to get harsher sentences, without having to back up their claims. “Victim impact statements” are usually reserved for victims of violent crimes (it originated with the Manson murders). That they would be instituted here is a joke.
As an aside: Dave LaMacchia went to MIT with my brother. He’s a nice guy.
Re: Re: Re: No Electronic Theft Act 1997
I say “probably” because I don’t know of one single case where this actually happened. Not prior to 1997, anyway.
I take that back. The non-commercial nature of infringement was central to the case of Williams & Wilkins Co. v. United States (1973).
In this case, non-commercial copying was found not to be copyright infringement. It was one of the cases that helped form fair use doctrine.
If anyone else is curious, there’s a pretty good copyright timeline at the Association of Research Libraries.
Re: Re: Re:2 No Electronic Theft Act 1997
Anyone who has studied copyright law is aware of American Geophysical Union v. Texaco (1994) – defendant was liable for copyright infringement for photocopying journal articles to use in research (noncommercial infringement).
Re: No Electronic Theft Act 1997
Do I understand the logic here to say:
Prior to 1997 “non-commercial” (an undefined term) infringement could not be prosecuted by the government under the criminal provisions of Title 17.
In 1997 the criminal provisions were changed such that under certain enumerated circumstances prosecution could take place and criminal sanctions applied (fine and/or imprisonment within certain limits).
If anything, this informs me that “non-commercial” infringement is clearly contemplated as activity subject to civil enforcement by rights holders, and that such enforcement may embrace either actual or statutory damages, at the election of rights holders.
Re: Re: No Electronic Theft Act 1997
“If anything, this informs me that “non-commercial” infringement is clearly contemplated as activity subject to civil enforcement by rights holders, and that such enforcement may embrace either actual or statutory damages, at the election of rights holders.”
That’s my read as well.
provided the judges allow the “per song” costs, plus legal fees… perhaps there is a middle ground. but the courts also need to understand that in both the thomas and tenenbaum cases, there were way more songs than the total taken to court. the court system could find itself having to deal with individual discover on literally hundreds or thousands of songs from some defendants. that wouldnt be good for anyone.
So what we are saying now is that 2250 u$s per song (that is, 225000% the cost of the song) is fair? I think 5-10 u$s per song should be ok.
Re: Re:
I’m completely agree. Lets just say they uploaded the song to 100 people (probably actually very high as most people never get over about 5). So if you figure damages as $100 give or take and even say it was willful and award treble damages your still only talking $300 per song and this reduced reward is 7.5x that.
Re: Re:
it takes but a single seeder for a song to be shared with the entire world.
$5 – $10 per song would not be a deterrent, it would just by a minor annoyance, like swatting a fly. it would not make anyone consider not sharing.
settlements in the thousands make people think. it makes them reconsider their actions. that is the entire point.
Re: Re: Re:
You are blaming that initial seeder for the actions of others. He does not force other people to download that file from him.
The only fair way would be to look at a users share ratio and the number of seeders and calculate exactly how much they contributed. Let them pay their share of it.
Re: Re: Re:
“settlements in the thousands make people think. it makes them reconsider their actions. that is the entire point.”
If that’s the point, then it’s mistaken. People who engage in this type of copyright violation will continue to do so regardless.
Even besides that, does that end justify those means? Where would you draw the line? At what point is the punishment so far in excess of the damage that it is, itself immoral? I say that point has already been passed, but perhaps you would place it differently. Where do you draw that line?
Re: Re: Re:
No, a single seeder still only shares it with about 5 other people. You cannot hold someone responsible for what other people do.
What is the fine for shoplifting? Maby $100 for a cd? About 10 tracks on a cd, about $10 per song seems do be enough of a deterrent for actually steeling the music.
Settlements if the thousands do make people think about how ridicules it is. Why not make speeding a multi million dollar crime? That might actually save some peoples lives, rather then prop up a failing business.
Re: Re: Re:
I may be wrong on this one but I was on the assumptions that damages should only be legally used to reimburse damages to the affected party and that it is illegal to use damages as a warning to others. The deterrent argument IMHO is unfair and (not sure about this) illegal.
Can you buy 100 song licenses for $18? Why yes. Yes of course.
You can buy a license from Harry Fox, as long as you aren’t sync’ing it to video or other media.
Much better deal than $2,500 a piece.
Can you buy 100 song licenses for $18? Why yes. Yes of course.
You can buy a license from Harry Fox, as long as you aren’t sync’ing it to video or other media.
Much better deal than $2,500 a piece.
Still excessive but…
I wonder if U.S. Copyright group is paying attention? Suddenly their threats of suing for $150,000 per single infringement have little teeth.
In fact, the new award imposed by the court ($2250) is even less than the $2500 settlement amount they are asking for per single infringement claim.
Back in my criminal law and criminology classes, we often talked about how punishment’s role as a deterrent requires that it be proximate to the activity. This is one reason why the death penalty is rarely considered a deterrent to crime — because it’s such an abstract punishment and generally so far in the future that doesn’t register in a way that would deter a criminal action.
These fines are the same idea. People “know” they can get dinged for this, but the risk of being caught is low and the actual punishment is so far removed from the activity and so outrageous in scope that it doesn’t serve as any kind deterrent or “educational” effect.
It’s just another ridiculous case of corporate power being exerted through the law. And people wonder why piracy exists as a form of civil disobedience.
Why are those punishments fixed and not a rate of someone incomes I will never understand.
Re: Re:
There’s so many arbitrary limits, it’s not funny.
MSRP
License fees
ASCAP
BMI
I’d go on but you get the point.
Download without getting caught!
use WI-Fi hotspots and watch the RIAA/MIAA losers sue the hotels, McDs etc.
HA HA HA HA HA HA HA HA
“The industry’s focus on higher and higher copyright damages has been a major strategic mistake that has backfired. These rulings — which the industry will fight tooth and nail — might actually be a blessing in disguise for the industry. If the actual damages weren’t so ridiculous, people probably wouldn’t be so up in arms over copyright issues.”
Agreed. But, we all know they are going to keep pushing for harsher and harsher punishments to use as deterents. To use a really bad pun. I know I sound like a broken record on this, in the past month we have heard an industry type stating/joking there should be the death penalty for infringement, ACTA includes criminalization and jail time for infringement, they wont stop until their industry suffers a catastrophic failure. Its coming sooner than they think.
Copyright
Again, Mike, excellent work.
I am moving toward believing copyright law is so hopelessly broken it should be all eliminated – though without campaign finance reform, it won’t happen – too many legislators would be unelectable without the largesse from copyright holders.
Agree with you as always.
Quick annoying request: Can you fix the tag (in this article and the follow-up) so that Tenenbaum is spelled correctly and all the articles are linked? Thanks!