
Supreme Court Lets Stand Student's $675,000 Penalty For Downloading - marklabedz
http://www.npr.org/blogs/thetwo-way/2012/05/21/153199008/supreme-court-lets-stand-students-675-000-penalty-for-downloading
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_delirium
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...](http://en.wikipedia.org/wiki/BMW_of_North_America,_Inc._v._Gore)).
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
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.

------
brandall10
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.

~~~
jnbiche
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
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.

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

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lukev
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
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.

~~~
dpark
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.

~~~
grhino
In a peer-to-peer network, it may be the case that 10 peers each share 1/10 of
a file to 10 other peers. Would each of the sharing peers hold full
responsibility for sharing the file even though technically they only
delivered 1/10th of it. I would expect awarding damages to hinge on this kind
of hair splitting.

~~~
wmf
This case was based on the "making available" theory, not actual sharing,
right? Under that theory, if each peer was offering the whole file they could
be fully liable for infringement.

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mdkess
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.

~~~
tzs
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.

~~~
tedunangst
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.

~~~
mirkules
I was under the impression that settling after the judgment makes sense when
the plaintiff knows for a fact that the defendant cannot possibly pay off his
debt in his lifetime. I could be wrong, but I believe this is done because a)
they want to extract the biggest amount possible in the shortest amount of
time and b) because it sets a precedent for future cases

~~~
tedunangst
Settlements never set precedent. If the judgment is bigger (which would be
just about always), they're already extracting the biggest amount. "We'll take
what you have now, plus what you get later" is more than "We'll settle for
what you have now." Anyway, I don't think the RIAA's litigation strategy has
ever been about maximizing profits.

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brlewis
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.

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ollerac
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.

------
nova
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.

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

~~~
daenz
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
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.

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

~~~
_delirium
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.

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

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jamesaguilar
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.

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ajb
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...](http://recordingindustryvspeople.blogspot.co.uk/2009/03/prof-
nesson-files-notice-of-apology-in.html)

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Falling3
Depressing... thanks, Legal System.

