Supreme Court Lets Stand Student's $675,000 Penalty For Downloading

http://www.npr.org/blogs/thetwo-way/2012/05/21/153199008/supreme-court-lets-stand-students-675-000-penalty-for-downloading

by marklabedz • 14 years ago

127 60 14 years ago

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PhrosTT• 14 years ago

That's a good way to motivate somebody to never bother getting a job.

daenz• 14 years ago

I don't think the RIAA expects that they'll get paid. What they enjoy is the huge campaign of fear that results from a judgement like this, and the ineffectiveness of an appeal.

talmand• 14 years ago

Also consider that the cost of their product will probably go up to cover the costs of the legal team to get this judgement that will never be paid.

jellicle• 14 years ago

Having a low expectation of being paid doesn't mean they won't pursue it. The cost to them is trivial. Renewing the judgment from time to time is trivial. Most of the costs of collecting from the defendant get added straight on the defendant's debt.

brandall103• 14 years ago

On his website he has "More than 30,000 people have settled their cases for between $3,000 - $12,000. Were you one of them?"

Last year I led a Startup Weekend team for crowd-sourced legal defense, 1) for people mentioned above to pool together a large defense front so more cases like these would end up in court, and 2) for people already there like Joel, who are seriously outgunned financially which hurts society as a whole by allowing bad precedence to be set.

The inspiration for #2 came from George Hotz getting a mass of donations in under 2 days when he was sued by Sony for hacking the PS3, enough that he had to stop taking them.

I still think it's a great idea, although perhaps not legally tenable. In any case just throwing it out there.

newbusox• 14 years ago

That sounds like a good idea, although it looks like Joel has representation from a professor at Harvard law (Charles Nesson, http://en.wikipedia.org/wiki/Charles_Nesson) who, I would guess, is representing him for free. There are probably a non-insignificant number of attorneys who are passionate about this sort of stuff that would take on these kinds of cases pro bono, although finding them may difficult.

brandall103• 14 years ago

Nesson is no doubt brilliant but he's done some pretty maverick things:

http://www.techdirt.com/articles/20091207/1149277233.shtml

Additionally the other big case in this domain, Capital v. Thomas, has seen much of the same. Some very talented people working the case pro-bono, but seemingly doing this for the spotlight.

It's good to have options. It's good to not have these things turn into a circus if it can be helped. But then again, IANAL.

jnbiche• 14 years ago

Do you have a site up? I wish we could come together as a community and crowd-source the f* out of this issue. Something to take away the fear that RIAA is sowing and give people who downloaded or shared a few songs their lives back. I'm not wealthy, but I'd donate a respectable sum to a legitimate fundraising entity for the defense and support of RIAA targets.

AUmrysh• 14 years ago

I'd only fund it if it goes toward burning down the RIAA offices. Don't give them money and make them think what they are doing is right or just, the RIAA is scum and they screw artists out of profit for their works too. The only acceptable solution is the dissolution of the RIAA/MPAA. It looks like it's already happening as artists harness the power of the internet, but I'm sure we'll have to deal with these dinosaurs of organizations for a few more decades at least.

brandall103• 14 years ago

No, we let it slide after SW... it's funny, coming into that event my friend and I were really fired up about it, after the event we felt a bit deflated; most people didn't seem to get why people would want to put money into something like this, one of the judges even called it 'odd charity' despite me explaining it wasn't really charity at all. Also the attorneys that were there were pretty pessimistic about it and cautioned us about all sorts of legal issues.

But it is something I want to see in the world, so happy to throw the idea out if anyone wants to tackle it.

socratease• 14 years ago

It's not untenable at all. Are you familiar with investment funds that take positions on the likelihood of success in some litigation? In a nutshell, non-parties to the litigation make bets on the outcome of the suit. I believe there is at least one fund like this active in the UK. Guess who started it? A former trial lawyer.

This differs from donating to the EFF in that you have a say over what specific cases you want to invest in.

Falling3• 14 years ago

Depressing... thanks, Legal System.

iamben• 14 years ago

Have any of the artists he downloaded commented on the case?

sukuriant• 14 years ago

That would be fascinating to know, even though it probably wouldn't change anything.

rwmj• 14 years ago

What he should do is send small checks (a proportion of his pay) every week directly to the artists involved, and of course get as much publicity by blogging and writing about it, until the bad press gets to be too much.

_delirium2• 14 years ago

I haven't heard of any commenting on this specific case, but one of the tracks involved in the suit is a Nine Inch Nails track, and Trent Reznor's been pretty clear that he doesn't have a problem with fans downloading his music.

Of course, the artists can't do much about it, since they've typically signed over these kinds of rights to the labels, but it could at least produce some bad PR if they raised more of a stink about it.

They could also "vote with their feet" and sign with a non-RIAA label. That unfortunately still seems quite uncommon. Of the artists on the list (http://en.wikipedia.org/wiki/Sony_BMG_v._Tenenbaum#31_songs), two subsequently went indie, Monster Magnet and NIN.

lukev• 14 years ago

Just to clarify, the penalty was more for the sharing back out than for the downloading.

I haven't heard of a case where a defendant lost or had to pay damages simply for downloading - the "damages" are only the value of each song, rather than the value times the number of people who could have theoretically downloaded it from them.

romaniv• 14 years ago

It was a peer-to-peer network. Would they sue every single person for sharing with every other person, over and over again? (E.g. if there are 10 nodes, would every one be sued for sharing 9 copies?) That doesn't make much sense.

tedunangst6• 14 years ago

The trial (and damages) did seem to hang on the making available idea, so I guess the defense would have to prove the songs were not made available to anyone who didn't already have them. That sounds hard.

Also, it's still copyright infringement to provide a copy to someone even if they already have it. I cannot, legally, provide a rip of a CD to anyone who has a cassette tape of the same album.

dpark• 14 years ago

Yes, it's illegal to distribute copyrighted material against the copyright owner's wishes. It doesn't matter if it's a peer-to-peer network. From both a legal and technical standpoint, there's basically no difference between placing a song on a webserver for people to download and hosting it on a peer-to-peer network.

Also, if your peer to peer network has you downloading the same thing over and over again, then your peer-to-peer network is broken.

jakejake2• 14 years ago

If 10 people are sharing a file, it is kinda questionable that should result in 90 instances of pirating (9 x 10) when there's only 10 people and 1 song involved.

I guess you could argue that if 5 people worked together to steal a car, they all get charged with attempted theft of that car. In other words 1 person doesn't get charged and 4 get to go free, or they don't all get charged with attempted theft of 1/5 of a car.

I would think though that could be an argument against the supposed lost revenue. I'm sure the content companies are doing the math to show the highest figures possible.

tedunangst6• 14 years ago

Thank you. For some reason, people come out in droves to correct the notion that copyright infringement is not the same as stealing, but when someone says downloading instead of uploading, it's like, oh, that's the same thing.

bad_user5• 14 years ago

The difference between copyright infringement and stealing is that copyright infringement does not deprive the owner of his own copy, this being a really important feature of digital goods (btw, I'm not saying here that copyright infringement should be legal).

On the issue of downloading/uploading - that's just a technical detail that's being hidden away in modern protocols and clients, such as BitTorrent. When downloading torrents, everybody is an uploader.

I can see a clear difference here between a user that just wants to download some movie he likes and somebody that makes money out of it, or somebody that's interested in "sticking it to the man".

Natsu• 14 years ago

Note, however, that the damages are statutory damages for infringement. They apply no matter how you create infringing copies.

The reason the cases are like that is because they catch people by scanning for people sharing.

mdkess• 14 years ago

What happens to the person at the end of this? Assuming the individual isn't from a wealthy family, that is not a debt that they will be able to pay off over any timeframe. Since this is a fine, I imagine that they will be unable to declare bankruptcy, while assuming some wages are withheld, they also won't be able to pay rent.

patdennis• 14 years ago

Leins against real property, wage garnishments, etc.

tzs• 14 years ago

Most likely what will happen is what usually happens when the RIAA wins a big judgement: they will offer to settle for an amount that is approximately $1 to $2 per song shared.

Note that I said per song shared, which will be more than the 24 songs that were specifically in the lawsuit. Generally in these cases the person is sharing thousands of songs. The RIAA only names a dozen or so in their suits because there is no point in suing over all of them. They have to prove proper copyright registration for each song and that they are authorized by the copyright owner to sue, so suing over all of them would require a ton of evidence.

With 24 songs, if they win and if they get the MINIMUM POSSIBLE statutory damages (which only happens if the court finds that the infringer was not aware and had no reason to believe they were infringing), that works out to about $5k. If the court finds that the infringer knew or had reason to believe that they were infringing, the minimum statutory damages on 24 songs would be $18k.

So, here's the situation from the point of view of someone that the RIAA catches distributing a few thousand songs: the RIAA will offer to settle for somewhere around maybe $3-5k. That will work out to about $1-2/song. Considering that it is typically $1/song to buy a copy of the song for personal use, being asked to pay $1 or $2 for a copy that you were sharing online is quite reasonable.

If you decide that you are going to make them go to court, and they sue over just a handful of the songs, and if you actually did share the songs and so are guilty and they can prove it, then you are GUARANTEED to have damages of more than what you could have settled for.

It doesn't take a game theorist to figure out that settling is a strictly dominant strategy here.

Note that there is no question of innocence or mistake. Tenenbaum basically admits he did it, that he knew it was illegal, and that he intends to keep doing it. The other defendant who was taking their case to trial (three times now, I believe), Jamie Thomas-Rasset, also was clearly guilty, although she still hasn't admitted it. She did perjure herself, got caught tampering with evidence, and tried to blame her children and boyfriend for her actions.

tedunangst6• 14 years ago

uhh, there's no reason for them to settle after the judgment. They've already won everything they could possibly hope for, and the appeal too.

btilly• 14 years ago

You are assuming that they can, in fact, prove that you did it.

The RIAA has been sufficiently sloppy that they have pursued these cases in many situations where the facts were against them. In those it does not always make sense to settle.

And, even if the facts are against you, if you can prove that the RIAA screwed up in how they collected that information on you, they might not be allowed to actually present that evidence. The odds of this succeeding are low, but if even one person succeeds in that, the precedent will be good for everyone going forward. (Of course if you fail, you pay full costs.)

Admittedly it takes an unusual kind of person to prefer one of the latter two courses. But if they succeed, it could be very good for everyone else.

Disclaimer, I am not a lawyer, this is not legal advice, and I personally do not care much either way because I have never shared or downloaded copyrighted content in any public forum.

tedunangst6• 14 years ago

If they withhold some of your wages, they don't withhold all of them. You can still pay rent and buy food.

driverdan• 14 years ago

AFAIK garnishing wages is generally done as a percentage or fixed amount based on income. It will not prevent him from paying rent.

ghshephard• 14 years ago

There is no law, to my knowledge, that makes illegal the act of downloading. The actual law to do with the act of improperly publishing, violating the copyrights of the original artist. I've often wondered how I am supposed to know whether Amazon, iTunes, etc... are authorized to sell me the material I download from them, and whether I could be liable in any way for illegally downloading from them.

Torrents, of course, are an entirely different story altogether.

algorias• 14 years ago

That's a good question, and in fact it's precisely the reason why downloading is explicitly legal here in Switzerland.

Tangaroa2• 14 years ago

Berne Convention, Article 9

(1) Authors of literary and artistic works protected by this Convention shall have the exclusive right of authorizing the reproduction of these works, in any manner or form.

The law in the US (Title 17) is generally more restrictive. It used to be technically illegal to copy a program from disk to ram when you ran it, and Congress had to pass an amendment (Section 117) to allow that.

bryze• 14 years ago

Heartless verdicts like this make my blood boil. There is no way he caused that much damage industry profits, and now his life is basically ruined. How can a judge look himself in the mirror knowing the gavel that came down so unmercifully was his own?

dcminter• 14 years ago

If you want justice you'd better hope the Judge follows the law instead of his own opinions and prejudices.

_delirium2• 14 years ago

As far as I can tell, the trial isn't completely over. My non-lawyer understanding of the current state:

The district judge reduced the judgment from $675,000 to $67,500, citing constitutional concerns analogous to those that were found for punitive damages in BMW v. Gore (1996), which put a cap on how big a multiplier punitive damages could be over actual damages (http://en.wikipedia.org/wiki/BMW_of_North_America,_Inc._v._G...). The Appeals Court reversed on somewhat technical grounds, arguing that common-law remittitur (a process for reducing excessive awards) should've been pursued before considering the constitutional question, under a doctrine of avoiding unnecessary constitutional questions. So on remand the District Court will be able to reduce the damages as excessive on non-Constitutional grounds, but in that case, unless Sony agrees to the reduced damages, they could ask for a new trial (whereas, if Tenenbaum had prevailed on his constitutional argument, that'd be that).

People were hoping the Supreme Court would take the case mainly as an opportunity to extend the reasoning of BMW v. Gore to statutory copyright damages, rather than only punitive product-liability damages. It's possible the Court didn't want to do so. Or, it's possible they wanted to wait for at least another Circuit Court to weigh in before looking at the question. Also, it's possible they thought this issue about whether to pursue remittitur first added an unwanted complication to the case that made it too messy to hear as a test case (the court often looks for test cases that cleanly present a Constitutional issue, free of entanglement with subsidiary questions and procedural messes).

edit: The introductory section of the Appeals Court decision, which is the one the Supreme Court declined to review here, is actually fairly readable as a summary of their holding: http://www.ca1.uscourts.gov/pdf.opinions/10-1883P-01A.pdf

bradleyjg• 14 years ago

The number one factor in trying to predict whether or not the Supreme Court will grant cert (an appeal) in a given case is whether or not there is a Circuit Split on the question. The number two factor is whether or not the Solicitor General, representing the United States, suggests it grant cert.

In no circumstance should the denial of cert be considered an opinion one way or the other on the merits of the case.

jamesaguilar• 14 years ago

This is the guy who turned down an opportunity to settle at a much lower price point in hopes of creating a legal precedent. I remember at the time of the original trial people were saying that his lawyer should be disbarred for negligence. Kinda sucks that he has to pay this much, but I like to think I would have settled if it had been me.

ollerac• 14 years ago

I know this guy. We meditate together on Tuesday nights at a Shambhala Center. He just graduated from BU last Friday with a PhD in Physics.

If you have any pressing questions I could probably pass them along.

brlewis• 14 years ago

Follow the article's "the Supreme Court this morning" link. This case is one of 80 under the CERTIORARI DENIED heading. Exactly one case appears under CERTIORARI GRANTED. The Supreme Court doesn't have time to hear the vast majority of cases brought to it. IANAL, but I think the headline of this article inflates the singificance of this non-decision, especially in light of _delirium's comment.

ajb• 14 years ago

I haven't had much hope for this one since Ray Beckerman threw up his hands in despair over the lawyering on the defense side: http://recordingindustryvspeople.blogspot.co.uk/2009/03/prof...

nova• 14 years ago

Someday History will look upon us, destroying one man's life because he shared a bunch of stupid songs and will judge intellectual "property" as one of the most awful, destructive and evil bad ideas of humankind.

Supreme Court Lets Stand Student's $675,000 Penalty For Downloading

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