Two interesting developments this past week in the ongoing transformation of copyright law and copyright principles on the Net. In Boston, BU grad student Joel Tenenbaum was found liable for willfully infringing copyright* by (admittedly) downloading copyrighted music (using KaZaa and other p2p file-sharing services) and reproducing and re-distributing the downloaded files. It's only the second of the dozens and dozens of lawsuits brought by the RIAA against individual file-sharers to reach a judgment (the other resulted similarly in a favorable verdict for the RIAA).
Tenenbaum's lawyers — Charlie Nesson of Harvard Law and colleagues/students from the Berkman Center — have announced they'll appeal, and they may have good grounds for reversal; the judge eliminated any consideration of Tenenbaum's "fair use" defense, and, though I haven't been following the litigation terribly closely, that ruling strikes me as questionable at best.
One interesting little aspect of the judgment: The jury awarded the record companies $675,000 in damages — $22,500 for each of the 30 songs on which the suit was based. As my colleague James Grimmelmann of NY Law School has pointed out, that's a curious number for the jury to have chosen. The statutory damage provisions of the Copyright Act (17 USC sec. 504) allow a jury to award damages of $750 (minimum)to $30,000 (maximum) for each work infringed (which can be raised, or lowered, by the judge in certain circumstances). The minimum amount that the RIAA could have been awarded, then, would have been a total of $22,500 ($750 x 30 songs). Could it be they got mixed up, and instead awarded plaintiffs $22,500 for each song? Why else would they have chosen that amount? Strange ...
UPDATE: Ben Sheffner has a pretty persuasive refutation, here, of the idea floated above that the jury screwed this up
But better news comes via Cory Doctorow over at boing-boing: "Record Company Embraces Use of its Music in YouTube Wedding Video, Makes Money." The Youtube video "JK's Wedding Entrance Dance," which has become something of a viral sensation, featured Chris Brown's song "Forever," used without permission. Brown's record label, instead of demanding that YouTube take the video down (which it could have done, successfully) and/or suing the folks who posted it (who now, incidentally, have their own webpage devoted to this particular video phenomenon), opted to add a link on the YouTube page where users can go to buy the original track. They have, as Doctorow puts it, "made a truckload of money." Not only have their been loads of click-through purchases from the YouTube page, but in a kind of penumbra effect, Brown's original track, and his own video, have, more than a year after release, zoomed back to the top of the iTunes and Amazon charts.
This is a story noteworthy only for its noteworthiness — that is, for the fact that this sort of arrangement is considered innovative and not Standard Operating Procedure for the record labels. The promotional opportunities presented by phenomena like this are prodigious, and have gone largely unrealized because of the labels' largely unwavering enmity towards any infringing uses of their works. This is, hopefully, a harbinger of things to come. [And thanks to Sarah Post for pointing me to Doctorow's story]
*[And thanks to reader Dave N. for correcting my earlier poor phraseology]
Tennenbaum was not found "guilty" of anything. He was found liable for copyright infringement and the jury did order he pay monetary damages. But "guilty," which denotes a criminal conviction of some kind? No, not at all.
From what I've seen they did about as much as they could with a bad client. The RIAA was willing to settle at one point for $4k but Tenenbaum's pretty much insisted on being a martyr. He also kept up his file sharing activities after being served which cannot help.
I too would be interested to know what possible fair use defense this case presents. I would think the wedding video would have a much better shot there, being both non-commercial and highly transformative.
I find it more annoying that behavior that in practical terms denied the RIAA no more than $1 (the price of the song on iTunes) is held liable for 22,500 times that amount. Statutory copyright damages in this kind of situation are just offensive.
Unless the argument is that a fair use defense should go to the jury in every copyright infringement case, everything I've read suggests that the judge ruled correctly.
...and, in addition, the video has helped to distract from/counter the other thing that Chris Brown seems to be best known for these days.
Of course, it's not sure bet, even if one accepted that the situation was similar to that with punitive damages: State Farm itself was only decided 5-3, and two of the majority are no longer on the court, while all three dissenters remain.
Possible, but hardly conclusive, and I would at least *hope* that someone would have caught that. The major "why else" scenario I can think of is that $22,500 per song is exactly three-fourths of the possible maximum. The jury could have decided on the three-fourths multiplier first based on the testimony they heard, and then calculated the amount of damages from there.
They apparently did not raise an objection when Tenenbaum was directly asked if he was liable (a question of law which Tenenbaum is not qualified to make).
I do not find this award at all unreasonable and expect that the bulk of it will withstand appeal.
However, Judge Gertner said very clearly that the $22,500 was per work, and she asked the jury whether that was accurate. They collectively said "yes." Also, I spoke with one of the jurors shortly after the verdict. From that conversation, I am very confident that the $22,500 per work figure was not an accident or mistake.
I don't think it's fair to characterize Judge Gertner's summary judgment ruling on fair use as "questionable at best." All fair use cases in the p2p context have rejected the defense. And this result is exactly what Tenenbaum's own proposed experts predicted months ago.
Every lawyer encounters bad clients with unrealistic expectations. By the way clinic clients are supposed to be "indigent" and Tenenbaum purchased a $250,000 condo (after rejecting a pre-litigation demand for $5250 and post-litigation demand for $12,000 to settle; Tenenbaum had claimed "financial hardship" and countered with $500).
At any rate, the way to deal with a bad client is not to raise a platoon of students and file frivolous counterclaims and pursue a quixotic media crusade that runs straight into an enormous jury verdict.
That said, I disagree with the implication in guest 890's statement, They apparently did not raise an objection when Tenenbaum was directly asked if he was liable (a question of law which Tenenbaum is not qualified to make). Tenenbaum's liability was not in dispute. You don't object to every possibly objectionable question in a trial.
There is criminal copyright infringement, for cases of willful infringement that can be proven beyond a reasonable doubt, with the normal safeguards of criminal trials. A fine can be imposed in such cases that is sufficiently high to deter such conduct.
I find it quite problematic, though, for statutory damages pursued via civil suits to be used as, in effect, a roundabout way of imposing fines, without having to prove the case properly or adhere to the usual safeguards. If the purpose of the suit is to compensate plaintiff for damages suffered, then civil suits are the right vehicle. But if the purpose of the suit is to impose a fine on what society considers unacceptable behavior, then criminal cases are the right vehicle.
Also note that the maximum fine was $150k, not $30k per infringement, if the infringement were determined to have been willful (which the Court apparently did decide) - and refusing to shut down his site for a year and a half after having been notified is extremely good indicia of willfulness.
Did the defense ever actually come out and say what their fair use theory was? Or was it just trying to dress up a nullification argument in something that would survive appeal if swallowed?
Bruce Hayden,
That would certainly appear to be the case here, one computer the RIAA examined had 800 songs, another 2000. But they only filed on 30.
That's precisely the argument, and it's a strong one. Let the jury decide whether the arguments the defense presents are good arguments, the court should not be in the business of gagging the defense, converting the jury into proverbial mushrooms.
Did the Tenenbaum judge actually CONSIDER the fair use defense and then reject it as an instance of summary judgement? Or did she not allow the defense to be argued at all?
If it is the latter, then there is clearly a problem here, regardless of what Ben Sheffner points to about the final outcome of past cases.
Given the lack of bright line rules in fair use doctrine and the flexibility in its application, defendants should always be allowed to present a case for fair use in copyright cases.
Personally, I think that judges should be allowed to find fair use as a matter of law, but that the rejection of a fair use defense should always be considered a question of fact for a jury. It should be similar to the way that a judge can toss out a criminal indictment as a matter of law, but should never be able to find a defendant guilty of a crime via summary judgment without sending it to a jury. [The prosecutor's point that one should distinguish between criminal and civil matters is well taken - but this is an area of the law where the rules of procedure in civil cases should follow those of the criminal ones.]
Except of course that the modern US jury is only a finder of fact. If there are no material facts in question judges have long been empowered to render a verdict as a matter of law.
Except that fair use is a statutory construction, 17 U.S.C. 1 S 107 .
http://www.copyright.gov/title17/92chap1.html#107
If fair use were solely a creature of common law such an argument might have merit.
The definition of fair use is in statute, of course, but applying it in a particular case requires determining facts about the case that can't be answered purely as a matter of law. For example, the "the purpose and character of the use" and "the effect of the use upon the potential market [for the work]" are fact-finding questions.
What's wrong with that?
But before you can even get to the factors you have to show that your use even fits the purpose list. If you aren't prepared to make such an argument what are you going to tell the jury?
Again, this just seems like a way to argue nullification in a nullification unfriendly venue and the judge was apparently having none of it.
But that's just 1 of 4 elements of the test. If either side presents any evidence about it, doesn't it become a question of fact for the jury?
Thanks for the relevant and illuminating legal analysis.
If not, I think you have to understand that in the American legal system (and certainly in federal court; it's harder in some states), judges routinely determine that no reasonable jury could find for a side on a given issue, and so grant SJ to the other side, either in whole or in part. This is true even if the standard seems vague or amorphous; the purpose of discovery is to get enough evidence in the record to show that a jury at least could rule for your side. I'm not trying to be condescending, but I feel like people are missing this point.
Not to be intentionally obtuse, but why is it a strong argument?
From Section 107:
That is the text I was referring to.
2. As a few commentators have pointed out, I am not sure why David regards SJ of no fair use as questionable. None of the four factors even plausibly cuts in favor of the defendant. You have no transformation (nature and purpose); the copyrighted works are artistic and not factual works (nature of work); he was copying the entire song (amount and substantiality); and file sharing is killing the record companies' profits (effect on market).
3. Even if you think the four-factor test is largely meaningless, it still remains that this is outright piracy in the most blatant form--he was just downloading the songs to avoid buying them. Even on his own website he offers no excuse except "art is meant to be shared." If there is no liability here, is there any worse case where liability should attach? Unless fair use somehow encompasses an "everyone else does it" test, I'd say liability was pretty straightforward.
4. If there is any argument to be made, it is for reducing damages. The district judge can still cut them back. But if it goes on appeal, my understanding is that his main argument will be that statutory damages are unconstitutional. In the abstract, it actually is not a terrible argument, since we are talking ratios well north of 10:1 mandated by State Farm. But this goes back to my first point. If you are someone hoping to change the law in this area to cut back on statutory damages, you should be cursing Tenenbaum and his lawyers, because the Supreme Court hates file-sharers. What is a plausible argument in the abstract become dead on arrival with this set of facts.
Check out Ben Sheffner's site. According to his coverage the liability issue was settled by directed verdict after JT's testimony.
Here are Tenenbaum's 2 briefs in opposition to the plaintiffs' summary judgment motion on fair use:
Opposition.
Supplemental opposition.
@Justin Levine:
Judge Gertner considered Tenenbaum's fair use argument, and rejected it on summary judgment. Of course, disposing of a fair use defense on summary judgment is commonplace.
Here's the order granting summary judgment for plaintiffs on the fair use defense:
Sure, I'm familiar with that. But those are examples, not a series of possibilities that the statute requires you to choose from.
What you said was,
But purpose itself is one of the four factors. The statute does not carve out a series of "purpose niches" which defendants must lodge themselves into.
The case history may privilege some over others, but just look at Campbell v. Acuff-Rose - even a 100% commercial purpose can still be fair use.
Parody is generally considered to be at least some form of criticism, and I didn't say that list is exaughstive. But you at least need to be in the ball park. JT's use was an entirely different game even before looking at the list of considerations.
If this is not an appropriate case for SJ then no such thing exists. I don't think you are going to get such a ruling out of any federal court.
We don't know what he would have said because the defense was never presented, no?
This isn't even true. Record company profits were declining even before Napster became popular, which was probably connected to the massive class-action lawsuit for price fixing that implicated Universal Music, Sony Music, Warner Music, Bertelsmann's BMG Music and EMI Group, plus retailers Musicland Stores, Trans World Entertainment and Tower Records. If I recall correctly, the settlement cost the companies hundreds of millions and the price of CDs dropped by 25-33% quickly thereafter.
Nowadays, it's iTunes and other digital distribution methods that's killing record companies profits, combined with the rise of other entertainment sources. The video game industry is no less susceptible to piracy, yet it's had phenomenal growth over the past 10 years. But people don't have any more leisure time than they used to - so if they're spending all this time and money on video games, is it any wonder they're not buying as much music? And if they are, they're doing it on iTunes or similar formats.
The idea that piracy was ever the cause of record company decline is overly simplistic. You're making the completely unfounded jump that an illegal download is comparable to a lost sale. They have nothing to do with one another.
Wait, I don't understand... who thinks that and what do they mean by "meaningless"?
Does nobody remember that people used to make "mix tapes" for their friends and that wasn't "piracy"? Back then "piracy" was an illegal bootleg operation that operated for profit, where 1 guy or a small group of people would mass-produce physical copies of a work and sell them on the black market for profit.
When you travel abroad and the Nigerian and Chinese street vendors have rack upon rack of unauthorized copies of works FOR SALE, that is "piracy in the most blatant form".
Really? Sounds like a question of fact for the jury to me.
See above.
Bit of a straw man and a tautology rolled into one, no? We can't know what his fair use defense would have consisted of because he never got to present it, remember?
4. If there is any argument to be made, it is for reducing damages. The district judge can still cut them back. But if it goes on appeal, my understanding is that his main argument will be that statutory damages are unconstitutional. In the abstract, it actually is not a terrible argument, since we are talking ratios well north of 10:1 mandated by State Farm. But this goes back to my first point. If you are someone hoping to change the law in this area to cut back on statutory damages, you should be cursing Tenenbaum and his lawyers, because the Supreme Court hates file-sharers. What is a plausible argument in the abstract become dead on arrival with this set of facts.
The Constitution (as interpreted by the current Supreme Court), however, may require this, at least as to copyright infringement that-- even though "willful" under the Copyright Act, doesn't rise to the level of malicious or fraudulent conduct. Further, even as to actually malicious conduct, the limit may be 10 times actual damages.
And I will say the following to content providers-- they were SURE that the Court would not apply their stupid Eleventh Amendment jurisprudence to IP infringement by states. And then they did.
Watch them do the same thing on statutory damages.
This is phony. The default setting on sharing services allows bidirectional sharing. But often the only party to download from the infringer is the RIAA.
The lower courts rejected the argument that Seminole Tribe applies to IP claims too. The lower courts are extremely copyright plaintiff-friendly.
But I suspect that the Supreme Court WILL limit damages in copyright cases-- it is only a matter of time and you really can't get away with the type of astoundingly large multiples on actual damages and the amorphous showing of willful infringement that copyright cases feature in this day and age.
But at the same time, there's no real way for them to know -- and therefore, for you to know -- that the RIAA is the only party that has downloaded from the infringer.
Also, going back to the damages issue, the RIAA doesn't bother to go after infringers for every download, because of the availability of statutory damages. (This case is an example; they ultimately pursued only 30 infringements, even though he's accused of downloading hundreds of songs.) If their ability to collect statutory damages is limited, they may decide to sue for each infringement.
And plenty of copyright lawyers think that the four factors are so malleable as to be practically meaningless. See here
First, Post argues that "the judge eliminated any consideration of Tenenbaum's 'fair use' defense." That's misleading, because it suggests a capriciousness that doesn't seem present here. They lost fair use on MSJ. Either Nesson or Tenenbaum was quoted as lamenting that they didn't have the chance to argue their fair use defense. The fact is, though, that Nesson et al argued fair use badly and lost as a result.
They didn't depose anyone. They didn't hire experts to disprove economic harm. They walked in with a pet academic theory with no evidentiary, empirical, or legal authority and got schooled.
Not to mention anyone with fleeting knowledge of copyright law will tell you that if a novel fair use argument is your only line of defense, you're probably screwed. They should have found a better test case.
Second, if, as it's sometimes claimed, they're going to go after the penalties provision of the Copyright Act, I can't imagine that's not doomed to failure. BMW v. Gore capped punitive damages because they could be too large to serve the function they were intended to serve. However, here, Congress has specifically set a level saying this is the level of damages required for them to be effective. Very, very different scenarios.
More important, a central factor in BMW v. Gore is the lack of warning to individuals of what the potential penalty for breaking the law is. Here, the penalty is clearly laid out and published... that makes it damn hard to argue lack of due process with a straight face.
That would be far preferable. If they want to prove thousands of illegal downloads at $100 damages per song, the award will be much more fair. Imagine if criminal law worked that way.
"Well, we made the penalty for minor possession of cocaine a minimum of 5 years in prison. Most people caught for it were holding far more cocaine than that, so it's fair to give them that penalty--and otherwise, we'd have to prove the actual amount of cocaine they were carrying!"
Pretty much every other tort plaintiff has to prove actual damages--fraud, trespass, patent infringement, trademark infringement, etc. What's so special about copyright that they can't be bothered to prove damages?
At a minimum, statutory damages shouldn't apply where the work was legitimately offered for sale--then the situation is akin to a patent infringer who willfully infringes rather than accepting a license, and the penalty should be a reasonable multiplier of the royalty offered, at least for civil actions. If you want to go further than that, get a prosecutor to use the criminal copyright infringement statute.
The latter. You're completely right, I unfortunately didn't look at what actually happened until after I posted, and my civ pro muscles haven't been flexed much since the bar. I was operating under the assumption that Tenenbaum hadn't completely surrendered on 3 of the 4 aspects.
Also, regarding the damages issue: the record doesn't (yet?) contain the verdict form given to the jurors. I'd be very curious to know precisely how the damages question was posed to them. If they gave them 30 lines with blanks next to them to fill in, I tend to think that helps the plaintiffs. Most lawyers I know think that psychologically, the more lines you give the jury to fill in, the better it is for your side-- whether that be a bunch of damages categories for the plaintiff, or a bunch of blanks the defendants want them to fill in.
The jury may forget the instructions, but they will spend hours staring at the verdict form.
I hope that by now you have had the opportunity to review some of the articles concerning this case that Mr. Sheffner has published on his website (http://copyrightsandcampaigns.blogspot.com/) over the past several months...not only in this case, but also the Jamie Thomas case in Minnesota. In reporting on these cases Mr. Sheffner has presented a very balanced treatment of the issues and the parties, as well as presenting an excellent study of caselaw as it pertains to the issues associated with these cases. At no time did I detect the bias that was routinely thrown at him by ardent pro-p2p, file sharing of music supporters, and the fact he retained his composure in the face of clearly offensive comments directed at him personally only serves to underscore his committment to fair reporting.
Not content to sit on the sidelines and receive information second hand, Mr. Sheffner travelled to both Minneapolis and Boston and attended the entirety of each trial. Quite frankly, his involvement with these cases served as an excellent learning tool for those of us interested in the issues but unable to participate directly.
From day one the Tenebaum case was an accident waiting to happen. The initial pre-trial argument that statutory damages should be deemed quasi-criminal in nature (and thus subject to all the trappings of a criminal trial) failed to gain any traction whatsoever. This approach falling by the wayside, the argument then shifted into what proved to be a vain attempt to cast Mr. Tenenbaum's actions as qualifying for safe harbor under fair use. Judge Gertner, contrary to what many may believe to be the case, did not treat the issue lightly. She reserved judgement until the last possible moment, and only then issued her above order after it became clear that there was nothing in the defendant's case that was even remotely pertinent to fair use.
Quite frankly, Mr. Sheffner should receive "kudos" for the enormous amount of time and effort he expended in presenting these two cases to the public, layman and lawyer alike.
Interestingly, Mr. Nesson is a believer in "open communications" and thusly published on the web internal discussions and memos between members of the defense team, emails with potential experts, draft briefs for comment in a "wiki" manner. It was a startling approach that raised many eyebrows within the legal community. Perhaps even more startling was the discussion with one potential expert in the field of copyright law who opined that fair use was an argument without merit, but who then mentioned in a passing comment the possibility of jury nullification. Frankly, I was quite surprised that a noted scholar would even dare to mention this in a written communication.
Consistent with his "open communication" predilection, Mr. Nesson consistently tried the patience of the trial judge by repeatedly recording various proceeding even after receiving stern warnings from the trial judge to stop what he was doing. He continued his recordings anyway and earned an even sterner rebuke from the trial judge that sanctions might very well be imposed because of his conduct.
At this point in time I understand that the judge has yet to consider Mr. Nesson's motion directed to the constitutionality of the in lieu/statutory damages provision of Title 17. Action on this motion was deliberately deferred until such time as an award of damages was rendered by the jury. It is not known when Judge Gertner's decision on this motion will be rendered.
Turning now to Mr. Doctorow, he should be commended for encouraging rights holders to consider alternate business approaches given the distribution potential represented by the internet. As a rights holder Mr. Doctorow is, of course, entirely free to do with his copyrighted "content" as he sees fit. The same can be said of Mr. Reznor and other rights holders who choose to follow Mr. Doctorow's approach. It is, however, quite another matter for others to seek to impose what Mr. Doctorow does by free choice upon other rights holders who choose a different path.
Again, I urge you to read Mr. Sheffner's many articles on these cases. They are filled with a wealth of information that provide thoughtful analysis of issues you appear to view as relevant to file sharing in general, and file sharing as it pertains to these two particular cases.
M. Slonecker
More likely, they won't sue at all. Even with statutory damages, these suits are costing them so much they've stopped bringing new actions. Decreasing their upside isn't going to increase their desire to bring new suits.
The reality is the decline of the recording industry was inevitable, because music is much cheaper to distribute online and the record companies' business model relied on big profit margins on CD's to pay for their considerable A&R expenses. Copyright litigation doesn't change the fundamental economics, which the RIAA is discovering after several years of pursuing it.
By the way, I should say, I am actually with Scalia and am not a fan of the Supreme Court's punitive damages jurisprudence. But the logic of it surely applies to statutory damages, which aren't even an attempt to estimate actual damages-- they are just a penalty for bad conduct. If it is legitimate to impose constitutional limitations on states' traditionally recognized common law power to set punitive damages, surely it is legitimate to impose the same limitations on statutory copyright damages, which have a much less-established pedigree.
I think that the defense forgot their 1L Civil Procedure. The respondent to a summary judgment motion has a burden of providing enough evidence that a judge can reasonably believe there to be a question of fact. The defense apparently totally failed there.
It is a nice idea trying to expand Fair Use to include other factors. But the judge here was constrained to the four factors specified by 17 USC 107 and relevant case law, none of which supported their position. Yes, they can appeal, and they may ultimately get Cert. granted after they lose at the appeals level, and the Supreme Court may intervene to add more elements to those specified by Congress. But as far as this defendant goes, I see almost no hope here, as his blatant downloading and file sharing do not make him an attractive party for changes in the law here.
I learned part way through law school about the evidentiary problems with summary judgment, and so far have managed to survive them since. I was sued in a commercial dispute, and hired someone fresh out of law school to represent me. And the other side filed a summary judgment motion that we did not properly respond to. We had the facts that should have been sufficient to overcome the motion, but my attorney argued them in the brief, and did not introduce any evidence, such as by affidavit, as support. So, the other side had facts on record, we didn't, and we lost. It ended up costing me about the cost of one year's tuition in law school (at a private school).
I am not sure if they could have survived SJ even if they had adequately fleshed out the one factor, which they apparently did not. All four factors are supposed to be weighed, and having three against them (because no evidence was apparently introduced to negate them) would have been a very hard hurdle to overcome.
Much like the employee free speech case he brought up awhile back (not the domelights one, but the one before that), it's almost enough to make me question Post's grasp on reality.
I've seen a couple of posts bringing up the $0.99 price point on itunes and the 10-to-1 ration from case law and how this particular award exceeds that by a large margin. Which perplexes me as the costs to consider aren't the retail purchase price of a particular song, but what it would cost to get an unlimited redistribution license to a particular song. My guess is that -- even for just the thirty songs in question -- such a license would exceed the award by a large margin. The ten times limitation doesn't even begin to apply here.
The lawyering in this defense was very bad, not because of lack of intellectual content or effort- the defense team put out a lot of both- but because of a colossal lack of judgment, about what is a credible argument to make vs. what is purely fanciful and near-frivolous.
That might be so, but isn't the real question whether a reasonable trier of fact would award that if instructed to award actual damages.
My suspicion is that if you limited the plaintiff to its actual damages, and perhaps some small multiplier in cases of malicious infringement, most juries would probably award the retail price absent evidence that the defendant was distributing the music for profit.
And that last point is crucial. The copyright laws were really written for the situation where someone is distributing for profit. That's why there are such huge penalties. You need to hit the defendant hard enough in such a case that it is no longer profitable to distribute infringing copies.
But where the defendant is not making a profit, and is just infringing for his own use (or perhaps his and his friends' use), copyright remedies can be quite disproportionate to the actual offense.
I don't see treating non-commercial pirates the same as commercial infringers as an unreasonable stance, especially where as here the infringing distribution is not limited to a close circle of friends.
Much like the draconian penalties attached to child porn prosecutions because the crime is difficult to detect, I can see similar theories of liability applying to copyright cases. That theory would actually apply even more in a limited distribution case, since it is unlikely such a limited network would come to the attention of the rights owners.
As I noted upthread, just because the RIAA says he made it available to others doesn't mean anyone downloaded it from his computer. The default setting on file sharing services makes the files available, and often the only downloader is the RIAA.
Much like the draconian penalties attached to child porn prosecutions because the crime is difficult to detect, I can see similar theories of liability applying to copyright cases.
The difference is, child porn is grossly immoral conduct that does tangible harm to the most vulnerable members of society.
Whereas copyright infringement is basically an administrative offense. There isn't anything immoral about it (IP is not ACTUALLY property, it is a bundle of limited rights that is analogous to property in some limited ways) and the interests which are harmed are large recording companies and mostly wealthy entertainers.
So yes, treating copyright infringement like child porn is completely disproportionate.
Cf: The struggles against ASCAP and the RIAA of Richard Berry, who composed "Louie, Louie"; and The Kingsmen, who made a hit record performing it. Neither the composer, nor the performers, got a dime from the "copyright industry", despite contracts with the respective agencies, until they sued and prevailed.
And BMI doesn't even stop there. These thugs masquerading as artists' representatives have shut down performances of material that is not even under copyright, raising false claims that they own the copyrights, of course.
thanks a lot for posting that.
I'm curious about how the closing arguments went. Damages was the only issue. Can you give us a sense of how it went- how long each side took (and how much time on willfulness vs. appropriate damages), the major themes they pursued, and the like? I'm curious as to how each side chose to spin to the jury what was a just amount of damages.
Here's my post on the closing arguments. Each side went for about 30-45 minutes, if I recall correctly. (Nesson ran out of time and was cut off by the judge.)
The plaintiffs spent much time on willfulness. Their argument was that he infringed for many years, using several different p2p networks, and even after multiple warnings, and even after he got sued. Plaintiffs did not ask for a specific dollar figure within the statutory range.
Nesson's argument was basically: what Tenenbaum did was no different from what millions of other young people did. He was not a commercial infringer, and not a member of a "release group" who initially seeded the networks with songs. Tenenbaum's "sharing" of songs had no appreciable effect on the availability of these songs on the network. He argued for a minimum award, and in fact tried to argue that the jury should make only one award of $750 -- a blatant call for jury nullification that was quickly shut down by Judge Gertner.
Nothing immoral beyond breaking the law? And yeah, those large companies and rich people, they aren't entitled to the same legal protections as the small companies and the poor.
That is my point: Actual damages are the cost of an unlimited distribution license.
1. "Breaking the law" encompasses things that are awful (murder, rape), things that are pretty bad (drunk driving, failing to filter the effluent you dump into the river), things that shouldn't be illegal at all (smoking pot), things that can be bad in certain circumstances but are harmless in others (jaywalking), and a myriad of other categories.
Copyright infringement happens to be your basic administrative offense. Copyrights are necessary to ensure that artists have an incentive to create, for copyrights to work there has to be a penalty for infringement, and a civil suit is a reasonably efficient means of imposing that penalty.
But that doesn't make copyright infringement immoral. Copyrights aren't actual property ("intellectual property" is an analogy), infringement doesn't deprive the original possessor of the use and enjoyment of the copyrighted material (unlike a theft), and the economic incentives protected by copyright can survive a fair amount of infringement.
So there's no particular reason to have disproportionate penalties for copyright infringement except in instances (such as where the defendant is a pirate who is turning a profit) where it is necessary to do so to get the incentives right.
As for unlimited distribution license being the measure of actual damages, that COULD be the measure-- you could argue that to a jury-- but a reasonable jury could also conclude that a person not distributing for profit should pay retail price. That's how damages work in most civil action. Plaintiffs argue for a broad measure, defendants argue for a narrow measure, and the jury decides it.
I would argue that you should only award the amount of an unlimited distribution license if the defendant is basically doing that for a profit. Otherwise, that's a grossly excessive measure of damages to the scope of the harm. But as I said, that's basically a jury question. One of the problems with statutory damages is the jury never gets to focus on that question and answer it.
JT admitted he knew people were downloading songs from him. I tend to think that points toward more than RIAA being the only ones to access his hardware. I would think one batch of 30 downloads would stick out more that random people taking random songs from your entire selection.
Just to be clear, I didn't say that it was always the case that the RIAA is the only downloader, just that the fact that there is uploading as well as downloading isn't a particularly compelling reason to increase the damages.
What would be a compelling reason to do so would be if the defendant were profiting from the infringement, but that is not the case in these types of cases.
As a general principle I believe that being lay abiding is moral. All the rest of it is just rationalization to get free music.
Profit has nothing to do with it. It's all about intangible benefit to the person acquiring the distribution license. J. Tenenbaum gained a benefit from gained from being an uploader in these networks (by improving his up/down ratio, by attracting other participants to the network, etc.) Similar to Pepsi wanting to give away Brittany Spears' latest single to generate good will. It goes beyond just selling bootlegs.
Perhaps not monetary reward, but many of these networks do reward people for uploading, their downloads are given priority.
I fail to see how ruinous liability awards are out of line here. These awards and the threat of suits have a lot to do with the success of online outlets like iTunes, IMO. If not for the threat of enforcement there would be no need for legitimate outlets.
Law and morality are connected, but it isn't accurate to say that abiding by laws is moral. Sometimes it is moral, sometimes it is amoral, and occasionally it is immoral.
Copyright laws are like the rule that you have to put a sign up in your business that says "this door to remain open during business hours". It's an administrative offense, nothing more, and it has little to do with morality.
Profit has nothing to do with it. It's all about intangible benefit to the person acquiring the distribution license.
That's circular, though. An infringer using copyrighted material in no way interferes with the owner using it. It is not like your car, where you can't use it if a thief is using it.
And intangibly benefitting from other's labors is common and completely unobjectionable in a capitalist economy. Ticket scalpers, for instance, benefit from the product owned by the performer or sports team. But that doesn't make what they are doing immoral or deserving of serious punishment.
There is no moral content to copyright law whatsoever. It isn't "wrong" in a moral sense to infringe. It's not "right" either. It's just something that you aren't allowed to do.
So there's no place for moral condemnation in the punishment for infringement. The punishment should be sufficient to create the correct incentives, nothing more.
I fail to see how ruinous liability awards are out of line here. These awards and the threat of suits have a lot to do with the success of online outlets like iTunes, IMO. If not for the threat of enforcement there would be no need for legitimate outlets.
Sure there would, because some people want to follow the law for its own sake, some people want the products offered by Apple and Microsoft, some people want the lack of hassle, etc.
Have CD sales gone down to zero since the downloading boom? Not at all. Because there are various reasons why some people still want to buy CD's.
In any event, ruinous liability awards are out of line here because copyright infringement may be very harmful to artists and record companies, but it isn't particularly harmful to society except when it becomes so rampant or so profitable so as to threaten the incentive to create.
I am with you at least partially. Infringement as such is not unethical. It is the use you put that infringement to.
An example of what I see as perfectly ethical infringement that the law still disallows would be the folks who buy movies, edit out objectionable material and then resell that. I see it being ethical because those companies were buying a license of the original work for each copy they then distributed. Yet they were still found in violation.
I do think that case would have been far more interesting if they were doing it with video tapes and physically altering (via cut and splice) of the magnetic media. Would that still be infringement leading to liability?
So there are cases where even commercial use isn't enough to tip the balance for me, yet JT is completely past that line.
I've defended the Clean Flicks people before. I think that's an example of courts missing the purpose of copyright-- it's to protect the economic incentives of creators, not to grant them a droit moral that nobody will ever screw with their finished work.
So there are cases where even commercial use isn't enough to tip the balance for me, yet JT is completely past that line.
He's clearly an infringer. The challenge the RIAA cases really pose is to the idea, which has been accepted for decades, that all infringers need to be exposed to massive damage awards. And when you consider the purpose of copyright law, it isn't such a strong case that they should.
There is also the whole trial penalty idea. By forcing the RIAA to trial he forced uneeded expenses and thus needed a more expensive lesson.
Would you say that the $4k and a promise to go forth and sin no more he could have gotten out of this mess with was excessive in light of his actual behavior? $4k is not a lifetime ruinous amount. JT also chose to continue his actions after being warned, even after being sued. Perhaps that is why out of all the thousands of cases he is only the second to go to trial.
The trial penalty is a reality, but it isn't supposed to be a purpose of copyright law (or any law involving civil actions for that matter). Remember, innocent people pay the trial penalty too.
Would you say that the $4k and a promise to go forth and sin no more he could have gotten out of this mess with was excessive in light of his actual behavior?
Yes, actually, I would. I think it is sick that the RIAA sued college students instead of adjusting to the new realities. And apparently the RIAA actually agreed with me-- they stopped doing it.
I do agree that it would have been smart, as a practical matter, for the guy to take the settlement. But what you have here is a set of laws that are very unjust when applied to not-for-profit infringers.
The real truth is that copyright law is screaming out either for Supreme Court intervention or congressional elimination of statutory damages. And since the latter isn't happening, the former is the only hope to pump some rationality into the system.
lulz- the penniless college student needed that 4k for his $250,000 condo, is that the idea?
I see the trial penalty as just another facet of the law, it is not animated by the purpose of any particular fact pattern but makes the system work more effeciently by getting most meritorious cases to settle because the opposing party knows they'll be on the hook for still more.
I forget the word that was used in Iqbol to refer to the ruling as being generally applicable, but I see the same thing animating trial penalties. It's a feature of the legal system, not any particular tort.
And I honestly fail to see what basis you think makes JT's actions at all ethical. And I agree with the other poster that the market to be examined would be the unlimited redistribution license, not a single download. The willful redistribution, even knowing it was exposing him to massive potential liability, is where the damage figure comes from, not his own downloads.
That's right. He profited 99 cents for every song he downloaded, and perhaps his friends on the internet profited 99 cents for every song he uploaded to them.
Those are the recording industry's actual damages, and I fully support their recovery.
And I honestly fail to see what basis you think makes JT's actions at all ethical.
They aren't ethical. They just aren't unethical either. Copyright infringement is a completely amoral activity, because copyrights are simply a mechanism for increasing creative output. They aren't written into the moral universe.
And I agree with the other poster that the market to be examined would be the unlimited redistribution license, not a single download.
No, because JT didn't make a profit. The price of an unlimited redistribution license is set by PROFIT MAKING ENTERPRISES. That is what drives the price so high.
The correct question would be how much would an unlimited redistribution license cost if you weren't allowed to resell the licensed material. And the answer to that question is "not very much".
Since you don't see copyright embodying any moral rights I guess we aren't going to come to agreement on this matter. I do see the disposal of created works being well within the typical sorts of rights people expect to have. If there were a fair way to compensate society for use of public domain work I would not mind perpetual protection for new work. I'm just not sure any such fair compensation scheme can be created not based on work eventually becoming public itself.
He was not "wrong". He certainly violated the record companies' rights under the law. But he was not "wrong".
Copyright's purpose is written into the Constitution. It exists at Congress' sufferance, "to promote the progress of science and the useful arts".
In layman's terms, that means that Congress has the power to, but is not required to, create copyrights in order to create an incentive for authors to continue to create.
It is, in other words, an administrative regime that is designed to create the correct incentives.
But morally, there's nothing wrong with using someone's work. It happens all the time-- for instance, with works in the public domain, US government works, uses that are fair uses, etc. It's not a moral issue.
So any attempt to impose moralistic punishments on a copyright infringer is wrong. If the punishment exceeds the economic justifications of copyright, it is unjust.
This guy infringed the copyrights of a clueless industry that couldn't face the future and instead engaged in a rearguard action to preserve its monopoly rents. That isn't some heroic activity-- he isn't the Joan of Arc of copyrights. There's nothing particularly noble about uploading and downloading songs that don't belong to you.
But there's nothing particularly immoral about it either. Because copyright infringement, in the end, is not theft, as it doesn't deprive the owner of the use of the original. It's just something we prohibit to get the economic incentives right. This guy should have been hit with damages that were commensurate with the economic harm he caused, i.e., not very much.
I personally think that as long as we have stupid copyright laws, they should be enforced to the fullest. So I am in favor of these sorts of verdicts and even criminal proceeding where appropriate.
There are two reasons why I say this beyond the basic rule of law argument:
1) Scaling judgements back in the courtroom reduces the chance of getting fundamental changes through Congress by assuring everyone that the current system is all right.
2) Worse, being lax on copyright infringement prevents other models of copyright use from developing. How many OpenOffice.org users would there be if it was extremely risky and difficult to pirate MS Office? Copyright infringement is, in a word, anticompetitive.
If copyright is going to change, I see it changing to remove the purpose and limits the constitution contains, not to strengthen them. It may not have been seen so at the time of ratification, but I believe there is a large segment that now sees creation as embodying some natural rights to the product of that creation.
Certainly as far as limiting the use of that creation. Look at various musicians complaining about their work being used by political campaigns they don't like for an example of that. Such complaints are generally well supported by the public (generally along lines of whether the particular candidate is supported or not, but that is beside the point.)
In reality, though, the Constitution really prohibits this. Not only does the copyright clause impose limits on copyrights divorced from economic incentives, but the First Amendment comes in pretty hard if you start expanding the universe of what is copyrightable or restricting fair use. That's the line that the Court drew in Eldred.
In any event, there's really no justification for a natrual rights conception of copyright. For one thing, natural law is complete BS anyway-- it just means "whatever I claim is an inherent right". But even if there were some way to determine what rights are actually "natural", there's no way copyright is among them. For as long as people created, people copied. Unfettered copying is clearly the norm in the state of nature.
I do agree with you that the public tends to sympathize with rights holders. They tend to be popular celebrities after all. But that doesn't mean that we should impose any further limitations on expression to benefit them.
I don't think I made myself clear enough. By removing the limitations, I was of course refering to the amendment process. That is completely outside the bounds of both copyright clause limitations and 1A issues.
David, that is a valid concern (though there are very strong counterarguments against it), but it isn't a natural rights argument (which is what I was refuting). It's more of a "living statute" argument (the analog to the "living constitution"), where you are arguing that the statutorily created copyright right should be construed more broadly because times have changed.
What I would say about this is that one of the things you are really ignoring is the social utility of infringement. Unlike a thief of personal property (where there is only one piece of property and thus the thief cannot create value by stealing), a copier is distributing the work more widely and to more people. This confers a social benefit, even if it may harm the economic interests of the creator.
So, if there is more "unfettered" copying now, that may mean that creators are in a worse place but the public is in a much better place. We benefit from all that free music available, after all, as well as from the free music driving down the cost of officially licensed material such as CD's and iTunes downloads.
The real question is why is it that the economic revenue models that disproportionately favored copyright owners should be presumed to continue when the digital revolution has made copying cheaper and more accurate?
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