The $22,500 MP3: Does The Constitution Protect People Or Just Corporations?

http://www.litigationandtrial.com/2009/08/articles/litigation/ideas/the-22500-mp3-does-the-constitutional-protect-people-or-just-corporations/

by brlewis • 17 years ago

31 37 17 years ago

litigationandtrial.com

quoderat• 17 years ago

Nominally, it protects both.

But because some corporations have vastly more money and resources than the people they wish to bully (individuals, in this case), the outcomes are distorted, not to mention the lobbying power of a corporation vs. that of an individual.

jacquesm4• 17 years ago

It's especially the latter that is the cause of a lot of problems.

Lobbying has its uses but for the most part it is simply a channel that ought not to even exist. I don't recall any modern democracy that includes a 'right to lobby' in its charter. Corporations already have an edge over us 'regular humans', they're immortal. Lobbying skews it to the point where there effectively is class justice, corporations can pay to get their laws passed and the general people get to vote who passes the laws.

It's like being able to inject something after the filtering function has already been applied.

seertaak9• 17 years ago

The author mistakes "downloading" for "sharing", and it all goes downhill from there. Based on this and a series of other false assumptions and deductions, he arrives at the conclusion that the award of $675,000 for the plaintiffs is unconstitutional.

This is pretty silly stuff, especially from someone claiming to be a lawyer.

MaxwellKennerly12• 17 years ago

Please see my reply below -- your distinction isn't relevant, because the record company elected statutory damages, thereby eliminating the need to prove any actual damages from "sharing." The downloading itself is all they needed.

jacquesm4• 17 years ago

For all we know those files were deleted by the recipients in which case there is no damage. Normally in a lawsuit where you claim damages you have to prove that those damages actually exist.

seertaak9• 17 years ago

> your distinction isn't relevant, because the record company elected statutory damages, thereby eliminating the need to prove an actual damages from "sharing."

a) The plaintiff is not a "record company", it is: SONY BMG Music Entertainment, Warner Bros. Records, Inc., Atlantic Recording Corporation, Arista Records LLC, and UMG Recordings, Inc. If you can't even get the basic facts of the case right, how can you be trusted in your opinion as to whether the damages awarded are constitutional, or anything else regarding the case, for that matter?

b) While it's true that downloading is all that is "needed" for eliciting statutory damages in a case like this (being a form of copyright infringement), it is not true to say that the "distinction" isn't relevant. As you ought to know, the jury is left considerable discretion in its decision of how large to make the damages. The nature of the infringement has an impact on the damages awarded (this wide leeway for statutory damages exists precisely because the impact of copyright infringement is hard to measure and varies widely according to circumstances), so it is ridiculous to claim that Mr. Tenenbaum's sharing of the files had nothing to do with the damages awarded. Just to underscore this point, look at Judge Gertner's order granting the plaintiffs' rule 50 motion on liability:

<snip>4 Judge Nancy Gertner: Electronic ORDER entered with respect to reconsideration of rule 50 motion: The Court has reviewed the transcript of the defendant's testimony, which had not been before the Court at the time of the earlier ruling. The last question asked by Mr. Reynolds on direct examination was Question: "Mr. Tenenbaum, on the stand now, are you now admitting liability for downloading and distributing all 30 sound recordings that are at issue and listed on Exhibits 55 and 56 of the exhibits?" Answer: "Yes." Notwithstanding the protestations of Tenenbaum's counsel, Tenenbaum's statement plainly admits liability on both downloading and distributing, does so in the very language of the statute (no "making available" ambiguity) and does so with respect to each and every sound recording at issue here. Thus, the Court reverses its earlier ruling; Rule 50 motion is granted with respect to infringement. The only issues for the jury are willfulness and damages. (Gertner, Nancy) </snip>

Note that the order specifically mentions "distributing"; not just "downloading". You can find the instructions for the jury at http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Intern... . The nature of the infringement is mentioned in the instructions, as well as the financial impact on the plaintiff. How could sharing the file possibly be irrelevant to this?

URSpider94• 17 years ago

The statutory damages for copyright infringement were put into place when peer-to-peer infringement was unimaginable. They were clearly intended to dissuade businesses from engaging in wholesale copyright infringement for profit, say by selling pirated movies.

Nonetheless, the law is the law, and I can't foresee even a committed grass-roots effort convincing lawmakers to reduce the statutory damages for willful infringement. The best bet would be to get a high court to determine that willful infringement doesn't apply when there is no profit motive for the infringer.

vaksel• 17 years ago

Napster's fines amounted to a grand total of little more than 1000 songs shared based on this compensation.

jacquesm4• 17 years ago

Exactly. This is way out of proportion. Professional pirates that operate a for-profit business were the reason these amounts were set, and their height is reflected by the potential profits of those pirates.

To use those same penalties against ordinary citizens acting without a profit motive is madness.

joshfinnie2• 17 years ago

I feel this whole issue needs to be explained more clearly. It isn't that these people downloaded the songs that are getting them in trouble. It is the fact that they allowed other people to download them from their shared libraries. If you could get in trouble for downloading illegally, then this person's argument makes sense, but he is comparing apples to oranges!

christopherolah• 17 years ago

Fortunately, we live in a legal system where one needs to _prove_ how much damage was done. The RIAA did not, according the the article, demonstrate anything beyond the value of the song, $0.99.

michael_dorfman• 17 years ago

So, you're arguing that the fine should be $0.99 times the number of people who downloaded each song this person shared, times some kind of multiplier for punitive damanges?

MaxwellKennerly12• 17 years ago

I'm the author of the article. Let me clarify (this is hinted at with the asterisk footnote at the bottom of the post) what happened here: the record company elected, under the copyright statute, not to prove any actual damages and instead use "statutory damages." At that point, they didn't need to prove anything at all other than "infringement," which would include his own use of the music and of his making them available to others, regardless of how much infringement there really was.

That's part of what's so preposterous about our copyright regime: it permits copyright holders to elect, at their discretion, to pursue an amorphous claim with fantastically huge damages that doesn't require they prove much.

It's like if a slip and fall plaintiff could elect "statutory damages" of millions of dollars if they proved nothing more than that the defendant spilled something on the floor. Such would be swiftly declared unconstitutional.

seertaak9• 17 years ago

> At that point, they didn't need to prove anything at all other than "infringement," which would include his own use of the music and of his making them available to others, regardless of how much infringement there really was.

Your logic is wrong. While it is true that all the plaintiffs needed was unauthorized reproduction, that doesn't mean that finding additional infringements won't cause a jury to award higher statutory damages: indeed, the jury is specifically instructed to take into account the nature of the infringements.

fatdog7892• 17 years ago

You clearly don't understand what statutory damages are.

Statutory damages are not punitive damages. Statutory damages are compensatory damages, for when calculation of actual harm is impossible or practically so, though harm clearly exists. Here -- it's clear that the record company lost some money from the defendant's file sharing eating into sales, but how much?

Statutory damages are the only compensatory damages that are allowed to account for the legal costs of pursuing action. Attorney's fees are not awarded as part of compensatory damages, and are usually are only available for intentional torts. Finally, Statutory damages are in lieu of all other compensatory damages, and judges will rarely if ever grant punitive damages alongside a statutory election.

In response to your arguments above: Philip Morris is a punitive ("make an example of") damages case. It only applies to punitive damages. It does not apply to compensatory damages.

grellas2• 17 years ago

This is a classic case where a law passed to deter certain very serious activity (willful copyright infringement) now finds itself being applied to new circumstances where it falls with a particularly heavy and disproportional hand.

The remedy needs to be tailored to the nature of the wrong - that is, the law needs refinement, not jettisoning. This can come from Congress or perhaps from judicial refinements via statutory interpretation.

It will not come from some wild approach striking down the concept of statutory damages as unconstitutional. The article is way off on this.

MaxwellKennerly12• 17 years ago

It's not as "off" as you think. Punitive damages limitations have already been applied to common law copyright cases, and numerous courts have considered, but not ruled on, their application to the statutory regime.

But there's a more basic issue: it doesn't matter if the damages arise by statute or common law, the constitution protects the defendant all the same. Congress has no power to override a due process protection.

grellas2• 17 years ago

I obviously agree with the basic issue that Congress has no power to override a due process protection. I just don't think this approach to the problem is going anywhere.

Mea culpa (and apologies), however, for overstating my point. There are two sides to this.

timwiseman• 17 years ago

Excellent point, but could you clarify how it could come about via statutory interpretation?

As I understand it (which could easily be entirely wrong), barring some invalidation of the law, the plain reading clearly and unambiguously supports the awards the RIAA is getting in this case.

The $22,500 MP3: Does The Constitution Protect People Or Just Corporations?

Related Stories