$675K Verdict in Music Downloading Case
[Guest post by DRJ]
In what is reportedly the second downloading case to go to trial, a Boston jury awarded four recording companies a verdict of $675,000 against graduate student Joel Tenenbaum.
Tenenbaum admitted illegally downloading and distributing 30 songs so the trial only concerned damages and whether his violations were willful. Potential penalties ranged from $750 to $30,000 per infringement, or $150,000 each for willful violations for a possible total of $4.5M. The jury’s award of $675,000 comes to $22,500 per song.
The quotes in the linked article suggest Tenenbaum is an interesting client:
Tenenbaum said he was thankful that the case wasn’t in the millions and contrasted the significance of his fine with the maximum. “That to me sends a message of ‘We considered your side with some legitimacy,'” he said. “$4.5 million would have been, ‘We don’t buy it at all.'”
He added he will file for bankruptcy if the verdict stands.
Tenenbaum testified that he had lied in pretrial depositions when he said his two sisters, friends and others may have been responsible for downloading the songs to his computer. Under questioning from his own lawyer, Tenenbaum said he now takes responsibility for the illegal swapping. “I used the computer. I uploaded, I downloaded music … I did it,” Tenenbaum said.
Tenenbaum would not say if he regretted downloading music, saying it was a loaded question. “I don’t regret drinking underage in college, even though I got busted a few times,” he said.
We’ve all had clients like this but, fortunately, not that often.
— DRJ
UPDATE BY PATTERICO: Ben Sheffner at Copyrights and Campaigns has been following the Tenenbaum litigation and trial like nobody else on the Web. His coverage of Tenenbaum’s attorney’s antics has been sidesplitting; check his archives to see what I mean. His latest post is an interesting interview with one of the jurors. Make sure to check it out.
I pray those jurors have kids that some day get treated the same way they treated this kid.
I hope that a lot, really.
happyfeet (42470c) — 8/2/2009 @ 2:49 amSome guy in the comments feels the same way I do and Ben says…
Me I attack the jurors. Do the jurors really think that this kid’s actions resulted in $675,000 of actual damages? If they think that they’re idiots and if they don’t think that then they’re barbarically cruel and thugly people.
happyfeet (42470c) — 8/2/2009 @ 2:58 am“Me I attack the jurors. Do the jurors really think that this kid’s actions resulted in $675,000 of actual damages? ”
I don’t think the law calls for actual damages.
imdw (de7003) — 8/2/2009 @ 5:31 amTenenbaum may be in for a rude awakening when he files for bankruptcy. Aren’t intentional torts non-dischargeable?
Sean P (3928ec) — 8/2/2009 @ 5:52 amI would not have advised this defendant to hire a high-profile law professor as his counsel.
Beldar (b152dc) — 8/2/2009 @ 7:01 amBah. Would that I could delete that comment. Apparently the defendant had no counsel, and the trial judge — with the best of intentions, I’m sure — helped him obtain the good professor’s services on a pro bono basis. I’m not in a position to second-guess how well Prof. Nesson actually performed here; maybe he was terrific. But a high-profile defense lawyer lends credence to the plaintiffs’ contention that this is an important case to “send a message,” etc. I suspect that this defendant would have been at least as well off, and possibly better off, with a lawyer whose ordinariness matched his own, and who might have done a better job of persuading the jury that they were being used as tools in a RIAA-orchestrated circus.
Beldar (b152dc) — 8/2/2009 @ 7:06 amI have to wonder what was going on in the minds of the jury and of the RIAA that enabled them to ruin the life of a kid for downloading 30 songs.
Newtons.Bit (f4099e) — 8/2/2009 @ 7:10 amThe damages aren’t for his own downloading, it’s the distribution that leads to such things.
Soronel Haetir (869810) — 8/2/2009 @ 7:32 amHe “distributed” probably a half-dozen copies. This isn’t some pirate lord in Russia: he didn’t make any money off of the distribution. Nor was he key in the song actually being available. He wasn’t the only person uploading these songs. He was using a legal program that automatically uploads what you download from other people.
Newtons.Bit (f4099e) — 8/2/2009 @ 7:38 amThis seems to be just a bit excessive. And by just a bit, I mean a whole f*ckin’ lot excessive.
JD (4e8277) — 8/2/2009 @ 8:28 amNewtons.Bit…
What would have happened to him had he not copied a half-dozen songs?
The answer is simple: nothing.
Had he bought the songs in a store, had he borrowed a friend’s CD, had he purchased the software allowing him to copy the song from a cassette, he would have legally obtained the songs.
But, he did it in an illegal way, and was caught.
You can argue that the punishment doesn’t fit the crime, yet, we are talking about copyrights and intellectual property, and who is to determine the value of your TALENTS?
reff (ee9f7a) — 8/2/2009 @ 8:29 amP.S., newton..
He admitted on the stand that he downloaded and shared over 800 songs….
A “bit” more than a half-dozen. Wouldn’t you agree???
reff (ee9f7a) — 8/2/2009 @ 8:34 am$670k for around 5 CD worth of music? Cruel and unusual.
What would he have gotten had he stuck 5 CDs in his pants at Best Buy and walked out the door?
SGT Ted (c47cc2) — 8/2/2009 @ 8:34 amSO, if he had copied the 800 songs and shared them with friends but didn’t use an internet connection it would be legal?
SGT Ted (c47cc2) — 8/2/2009 @ 8:37 amJust to clear up a few points:
1) The plaintiffs did not seek “actual damages.” Instead, they opted for statutory damages under the Copyright Act, which, as DRJ correctly points out, could range from $750 to $150,000 per song, given the jury’s finding of willful infringement. The jury had great discretion in making an award within this range, and it was entirely legitimate for them to use the award to punish Tenenbaum. See, e.g., Los Angeles News Serv. v. Reuters, 149 F.3d 987, 996 (9th Cir. 1998) (“Because awards of statutory damages serve both compensatory and punitive purposes, a plaintiff may recover statutory damages whether or not there is adequate evidence of the actual damages suffered by plaintiff or of the profits reaped by defendant, in order to sanction and vindicate the statutory policy of discouraging infringement.”).
2) The plaintiffs offered to settle for $4,000. Tenenbaum refused that offer. Instead, even knowing about the mountains of evidence against him, he lied in written discovery responses and at his deposition (which he admitted on the stand at trial), and waged a quixotic legal fight that even his own potential experts thought was a complete loser. The judge (who had indicated that she was quite sympathetic with Tenenbaum), agreed, refusing to let his completely meritless fair use argument go to the jury.
3) Tenenbaum admitted on the stand that he downloaded and distributed over 2000 songs. Plaintiffs sought damages on only 30, a small fraction of the total. Because of the way peer-to-peer software is configured, it is impossible to know how many copies of the songs he distributed, or to whom. But Tenenbaum did admit that he had looked at the “traffic tab” on KaZaA, which indicated that songs were in fact being downloaded by others from his computer by others.
4) Tenenbaum admitted that he used at least 4 different p2p systems to download and distribute songs without paying for them, starting in 1999 with Napster and continuing for almost a decade. He continued to infringe even after his father called him at college to warn him that he would get sued, even after he received a harshly-worded letter from the plaintiffs’ law firm in 2005, even after he was sued in 2007, and all the way through part of 2008. Really: he continued to download songs even after he got sued. It’s no wonder the jury came down hard on him.
Ben Sheffner (2d68f4) — 8/2/2009 @ 8:42 amAnd just to clear up any confusion about “800 songs” vs. “2000 songs”: plaintiffs discovered over 800 songs in the KaZaA shared folder of his computer in August 2004, which is what led to this lawsuit. Later, on another of his computers, they found over 2000 songs being shared via LimeWire as late as 2008 (after the lawsuits was filed). Tenenbaum admitted to all of this on the stand at trial.
Ben Sheffner (2d68f4) — 8/2/2009 @ 8:46 amMr. Sheffner,
We’re commenting on the stupidity of the ruling, not the legality – one wonders as to the lack of common sense in this day and age.
Leviticus (ced6cf) — 8/2/2009 @ 9:16 am@Leviticus:
Fair enough, but I think to understand why the jury did what it did, one needs to understand both the law on which they were instructed and the evidence with which they were presented in court.
Ben Sheffner (2d68f4) — 8/2/2009 @ 9:32 amwhy is the ruling “stupid”?
The size of the award seems unduly high, but here’s the way to avoid getting dinged by these issues: don’t distribute music if you don’t own the rights to the music.
steve miller (c5e78c) — 8/2/2009 @ 9:48 amIf the bands want their music to be free, they can do so easily – don’t sign up with a label, and distribute the music freely. They could just rip their own music and put it on Kazaa or Napster or whatever. Problem solved. (I hear there’s this thing called Youtube. That might even work.)
But if bands sign with labels, then the labels get more power over how the music is distributed and licenses. I personally do not like the power of labels to control distribution rights and fees. But the law is the law, and the bands signed away their rights willingly. The labels have the power granted to them by the bands.
steve miller (c5e78c) — 8/2/2009 @ 9:51 amnondischargeable debts in chapter 7 bankruptcy:
Section 523(a)(6) ……”for willful and malicious injury by the debtor to another entity or to the property of another entity; ”
Perhaps the defendant should not have adopted so cavalier an attitude about making this go away.
Michael D. Franco (d36ca8) — 8/2/2009 @ 9:57 amI am not sympathetic to the RIAA and the whole practice of suing kids, especially after I discovered my 13 year old daughter had downloaded about 7.000 songs through Napster. She did not distribute them and they were eventually deleted but the record industry business model has created the black market that they are now trying to defeat. Having said that, and if I had been on the jury I probably would have awarded $.99 per song, this guy did seem to invite the result he got.
Mike K (addb13) — 8/2/2009 @ 9:59 amThe labels have the power granted to them by the bands.
Comment by steve miller
The bands are learning to use the internet to market their music and I hope it results in a few bankruptcies in the music business.
Mike K (addb13) — 8/2/2009 @ 10:01 am@Mike K
You would not have been permitted to award only $.99 per song. Once there was a finding of infringement (and the court directed a verdict in the plaintiffs’ favor on the basic issue of liability), the minimum the jury could award was $750 per song. This is the law, and the court’s instructions to the jury made this crystal clear.
Ben Sheffner (2d68f4) — 8/2/2009 @ 10:34 amMy point is that it is absurdly excessive. $22,500 a song is ridiculous. Even $750 a song is still stupidly high. If they wanted to nab him for say $10 for every instance of the file that he actually uploaded that would be fair. It’s an order of magnitude more than what the media charges for buying DRM’d music and about 50 times more than what the Russian pirates charge to buy music from them. That’s punitive to anyone trying to make a business using someone else’s I.P. But then the RIAA would actually have to go through the trouble of proving that someone who “made available” these files was actually uploading them to a large number of people. But fining someone 22,500 times what it’s worth, that’s just absurd.
Would complaints that $100,000 civil punitive fine for running a red light are invalid because all you have to do is not run them?
Frankly, the copyright laws for these particular cases are stupid, and in my “I am not a lawyer” opinion, unconstitutional.
Newtons.Bit (f4099e) — 8/2/2009 @ 11:06 amYou have the option of changing the law. It’s called the ballot box, not the jury box.
I’ve served on a jury. You don’t get to bring in your own facts. You certainly can bring in your own biases, but if you are honest and the lawyers are competent, you will be discovered during voir dir.
IMHO the purpose of the trial isn’t to discover what the jury thinks about the law. It seems to be a process to discover whether the defendant did indeed break the law.
I think $750 is high, but hey, here’s the thing: this guy knew about his actions and the law. Tough for me to cry a crocodile tear.
steve miller (c5e78c) — 8/2/2009 @ 11:51 amTheft is theft.
AD - RtR/OS! (afd830) — 8/2/2009 @ 11:54 amIf you can’t do the time, don’t do the crime!
If you think they’re unconstitutional, then plead your case to the only court that can decide it, the new Supreme Sympathy Court.
What’s unconstitutional about property rights? Clearly, the music was licensed by the labels. This guy used the music and distributed it out compliance with the license. He didn’t “own” the music. He owned a license to listen to it (if he bought it); if he didn’t buy it, then he had no license to distribute it.
I don’t see the issue here. It’s like hijacking a truck carrying supplies for a McDonalds and then opening a restaurant called “McDonalds” and selling this stuff under the label “McDonalds.” It’s certainly authentic “McDonalds” food, because you stole the truck, but you don’t have a license to distribute the stuff because you weren’t granted the the license.
I agree it’s not pleasant to comply with the music license, but that’s not really what the law is about.
steve miller (c5e78c) — 8/2/2009 @ 11:55 amWhen excessive results such as this occur, and are not considerably reduced on appeal, there’s a problem with the law. When, as several IP counsel have told me, there is very little ability of Congress to alter said law (due to treaty entanglements) and the law has become absurd (95 year copyrights on software and recordings), maybe it is time to resort to jury nullification.
Frankly, I’d like to see a regime where copyright is reduced to one 20 year term (similar to patents). As it stands, nothing created in my lifetime will enter the public domain in my lifetime. Hardly seems like a limited period as the COnstitution requires.
But failing that, I won’t help them enforce it.
Kevin Murphy (0b2493) — 8/2/2009 @ 11:57 amThen you should not serve on a jury, because you would not be honest.
The way to change the law is through the ballot box.
steve miller (c5e78c) — 8/2/2009 @ 11:59 amAnd it might be excessive – and it might not. It’s not for you to determine.
We have a political process. It’s long, unfair, and doesn’t always give you the results you want or expect.
But to allow people to willy-nilly declare a law null and void because they feel bad leads to anarchy.
We’re a nation of laws, not feelings.
steve miller (c5e78c) — 8/2/2009 @ 12:00 pmCopyright isn’t really property, like gold or land. It exists ONLY because the STATE says it exists.
Without the state asserting that the right exists, there is no way that one can make a dime off of intellectual property.
Copyright is a bargain between the creator and the public: I create this kind of stuff and you grant me a LIMITED monopoly on its distribution.
Now, one could say that the current law is 95 years and go *uck yourself if you don’t like it, as Steve Miller does. Fine. Then you won;t mind if we start electing people to Congress who say: *uck you right back.
Or perhaps there;’s a better way. But right now we have a copyright law that’s about as enforceable as a 7 mile and hour speed limit. Keep giving out tickets and pretty soon, we’ll take away the ticket book.
Kevin Murphy (0b2493) — 8/2/2009 @ 12:03 pmAnd, by the way, I own intellectual property. I just don’t argue that it should be perpetual.
Kevin Murphy (0b2493) — 8/2/2009 @ 12:03 pmPlease don’t put words in my mouth. I don’t do it for you; you can return the courtesy.
Musicians are entirely free to release their music with their own license terms. No one forces them to release them through music labels.
When they do so, then their music is now subject to the license terms.
If you want to listen to the music, buy the CD or purchase a download.
If you think 95 years — or 100, or 150, or whatever it becomes — is excessive, then run to your ballot box. Write a letter to the editor. Heck, publish your own music free of license restrictions.
But serve on a jury because you lied during voir dir about following the law? If I were the defendant, I would not want you on the jury, because if you’ll lie under oath, then when do I know you’re telling the truth?
steve miller (c5e78c) — 8/2/2009 @ 12:08 pmPerhaps the defendant should not have adopted so cavalier an attitude about making this go away.
Now there’s a good idea for the RIAA: Dun the guy to the point of suicide. That should win them some converts.
Say, how’s the copyright war coming along anyway, RIAA? Sales up? Perhaps you’re not squeezing hard enough.
Kevin Murphy (0b2493) — 8/2/2009 @ 12:09 pmsteve miller:
It wasn’t $750/song. It was $22,500/song. That’s excessive.
Newtons.Bit (f4099e) — 8/2/2009 @ 12:13 pmSpeaking of putting words in someone’s mouth, I said “maybe it is time to resort to jury nullification.” Not that I surely would, or even that I would approach any given case with that in mind.
However, in this case, had I been on this panel, I would have voted against award ANYWHERE NEAR the amount returned. Now, you could way that an award of $1 would be jury nullification, or you could call it justice, or you could call it a ham sandwich. But perjury? I doubt voir dire requires one to state that they will return a large award even if the law suggests they should.
Kevin Murphy (0b2493) — 8/2/2009 @ 12:15 pmLastly, steve, you obviously did not read my preface: I assert that a number of folks have the professional opinion that copyright law is now beyond Congress’ power to limit. International Conventions have been drawn that pretty much require each state to take a maximum enforcement attitude. Even the Supreme Court punted when reviewing the Bono extension: it was the international harmonization argument that tipped it.
So, as our host has established, the moral requirements for jury nullification may exist: extreme and unwarranted decisions taken repeatedly with little or no hope of correction via normal political channels.
And if you think that life penury is not an extreme penalty for petty theft, then perhaps you need to reconsider.
Kevin Murphy (0b2493) — 8/2/2009 @ 12:24 pmI’m with Kevin on the jury nullification. If you ever get on a jury you should google that phrase and then make a cup of coffee and read and think. Really really think for real. We’ve gotten to where we value freedom so very very cheaply in our little country.
happyfeet (42470c) — 8/2/2009 @ 12:28 pm“…International Conventions have been drawn that pretty much require each state to take a maximum enforcement attitude…”
Do you then contend that it is beyond the scope of Congress to withdraw the United States from those conventions?
AD - RtR/OS! (afd830) — 8/2/2009 @ 12:42 pmThey could very easily restrict funding for the Justice Dept (and other relative Dept’s of the Federal Government, including the Courts) from being spent in support of enforcement of the provisions of those conventions.
The funding mechanism is a very powerful tool available to the Congress in restricting the activities of the Executive, and the Courts (which, absent the SCOTUS, are creations of the Congress).
AD, I didn’t way imposssible, I said very difficult. If we withdrew, we’d lose all protection overseas. It’s all or nothing, and that makes it nearly impossible to change.
Kevin Murphy (0b2493) — 8/2/2009 @ 12:46 pmIt is true that treaty obligations impose certain obligations on the US with regard to copyright law. But I’m not aware of any provision in any such treaty that pertains to the amount of statutory damages available in these cases. Anyone who believes that treaties limit Congress’ ability to reduce statutory damages should cite the specific provision in any such treaty, and I’d be happy to revise my opinion.
Ben Sheffner (2d68f4) — 8/2/2009 @ 1:19 pmBen , you are correct, the amount of damages could be reduced by several players. Including this jury. But whether the amount was $100K or $645K isn’t really the issue.
It is that international law is so horribly titled towards copyright owners and so hostile to even the concept of public domain — and there is little to do on the margin other than reduce harm — that the entire edifice can only be ignored or destroyed. The status quo is unworkable.
Should people download this year’s top songs without payment to the creators? No. Should the copyright on MS DOS 1.0 have 65 years left to run? Also no. The bargain that is copyright needs reforging. For people under 30, the current regime is about as appealing as anti-miscegenation laws. Change it or lose it.
Kevin Murphy (0b2493) — 8/2/2009 @ 3:11 pmI look at this outcome and wonder if we, as a society, are better off for it.
I look at the other likely outcome and wonder if we, as a society, wouldn’t have been better off had the law been, ahem, nullified.
Jaybird (f420c4) — 8/2/2009 @ 3:38 pmThere is a way to impose retribution on the music industry for its’ ugly behavior:
AD - RtR/OS! (afd830) — 8/2/2009 @ 3:59 pmStop buying its’ music!
No Sales…No Dividends!
When the music stops, the money stops…that is a language they understand!
Dividends…RoyaltiesSorry, brain cramp.
AD - RtR/OS! (afd830) — 8/2/2009 @ 4:00 pm“Copyright isn’t really property, like gold or land. It exists ONLY because the STATE says it exists.”
I never really understood this argument. I think it is an apples and oranges comparison. A song is a thing, and exists because it was created. Unlike gold and land, it is intangible, but it exists independent of the state.
An enforceable property right in gold or land, as with the song, “exists ONLY because the STATE says it exists.”
That is, I think we tend to use “intellectual property” as a shorthand to describe both the ownership right and the thing itself. But that is incorrect.
fat tony (9f8068) — 8/2/2009 @ 4:20 pm“We’re commenting on the stupidity of the ruling, not the legality – one wonders as to the lack of common sense in this day and age.”
We just got done having a confirmation hearing where people talked about applying the law. You’re commenting on the ruling, or the law?
imdw (bc4070) — 8/2/2009 @ 4:30 pmStill seems like a stiff punitive fine, but after reading Ben, and how ginormous of a douchenozzle this clown was/is, I feel less concerned about it.
JD (bd7f0f) — 8/2/2009 @ 4:32 pmDo those who object to this law’s use of excess and punitive damages to deter offenders also object to consumer protection legislation that imposes such damages on businesses as a means to deter violations? If not, why not?
DRJ (8d138b) — 8/2/2009 @ 5:11 pmMy objections, initially, were due to me thinking that this was just Joe Q Citizen, who just got caught up in something. Further reading dispelled that notion.
JD (bd7f0f) — 8/2/2009 @ 5:18 pmJD,
That’s a consideration but, overall, I don’t think it should matter how much we like or dislike the parties. Ideally, we should be able to live with a law’s outcome whether it applies to people we really like or people we really don’t like.
DRJ (8d138b) — 8/2/2009 @ 5:26 pmMy verdict on this verdict? Jerks sued a jerk, and both sides are going to end up with what they deserve.
The music industry is going the way of the newspaper industry, and I say they richly earned that result since they did it to themselves.
Brad (e542a0) — 8/2/2009 @ 5:29 pm“50.Do those who object to this law’s use of excess and punitive damages to deter offenders also object to consumer protection legislation that imposes such damages on businesses as a means to deter violations? If not, why not?”
– DRJ
I was waiting for some canny individual to bring up the implications for (other) tort reform cases – figures it would be DRJ. Flipping her perfectly valid argument around, I wonder if some of the people here arguing that the jury was right to hammer this guy would argue that it would right for this guy to hammer some major corporation over some perceived offense – malpractice, for instance.
imdw,
I’m talking about the ruling and the law. The law is excessive to begin with, and the jury (in my opinion) lacks a great deal of common sense for enforcing it to such a stringent degree, rather than taking it with a grain of salt in light of the circumstances.
Leviticus (44b0f8) — 8/2/2009 @ 5:37 pmDo those who object to this law’s use of excess and punitive damages to deter offenders also object to consumer protection legislation that imposes such damages on businesses as a means to deter violations? If not, why not
Why not is cause I see two… what do you call those things? Things. I see two different things that I can agree with or not. One is the law. I think the law is stupid cause of I don’t think illegal downloadings are inimical to a thriving free market in musicalness.
Two is the jurors. Heartless and cruel, these jurors are. You should be nice to kids and not slap $675,000 judgments on them. I do this all the time and I feel it makes me a better, happier person.
Sorry you stupid music people that your product is so easy to copy. Sucks for you. But I haven’t bought a cd or paid for any downloads since your fascist RIAA thugs started suing people and I don’t plan to. This is because I think you suck.
I don’t think you lawyer people get how fascist people at Warner and Sony Music are. With globalization and the realization of the fascist restrictions these loser gangsta thugs want to implement, we’re looking at the very real possibility of a single song generating a billion dollars in revenue in its first year of release.
That’s not a future what is worth ruining a kid’s life over I don’t think. Cause children are the future is why.
happyfeet (71f55e) — 8/2/2009 @ 5:38 pmGood point Mr. Leviticus.
happyfeet (71f55e) — 8/2/2009 @ 5:39 pm“The bargain that is copyright needs reforging. For people under 30, the current regime is about as appealing as anti-miscegenation laws. Change it or lose it.”
– Kevin Murphy
I agree; it seems that a lot of our major day-to-day systems need reforging – our system of electing representatives being the first of many.
Leviticus (44b0f8) — 8/2/2009 @ 5:40 pmPerhaps instead of upturning the basket of laws we have imposed upon ourselves through a deliberative history, we need a younger generation that is less full of itself, and better educated?
AD - RtR/OS! (afd830) — 8/2/2009 @ 5:49 pmCopyright is why Dancin’ Kim never gets to use the actual music for the dances she teaches you how to do. And we’re all poorer for it. As a culture.
happyfeet (71f55e) — 8/2/2009 @ 6:03 pmRegulatory Capture is something that jury nullification would counter-balance well, I’d think.
Ah, well.
Jaybird (f420c4) — 8/2/2009 @ 6:05 pmLeviticus,
In general, I favor laws that impose actual, proven damages and avoids punitive or excess damages. I feel this way about downloading cases and consumer protection legislation, as well as other areas like environmental cases. (This must be my libertarian side.) However, I also recognize that this type of legislation typically favors institutions and, without it, many valid small claims will not be pursued. So in the grand scheme of things, these laws don’t offend me as much as it bothers some here.
I would also like to add a non-legal comment: Several of the older people I know — and I’m 55 so I’m talking about people in their 80s and 90s — do not like seat belt laws. They want to decide whether they have to wear a seat belt rather than have laws that punish them for not wearing one. I suspect most young people who have grown up with seat belt laws think that attitude is silly, just as some older people may think it’s silly to get so upset about hefty punishments for those who intentionally engage in illegal downloading of music or videos. Thus, I wonder if this is a generational thing as much as a legal issue.
DRJ (8d138b) — 8/2/2009 @ 6:12 pm#58,
Perhaps the younger generation, inexperienced though they may be, should stop taking the conventional wisdom of their grumpy, get-off-my-porch elders as gospel. It’s not like you guys have done such a bang-up job with your time in the limelight. And it’s not like every deliberately imposed basket of laws is superior to the carefully considered machinations of a group of innovators – see 1776, 1787, 1964, 1989, etc.
Leviticus (44b0f8) — 8/2/2009 @ 6:18 pmI think most America systems work well and any adjustments that are needed are in the nature of tinkering rather than reforging. Americans have confidence in their military, police, and justice system. They worry about large changes in their government — which is why I think Obama could be elected (as a moderate) but his poll numbers are declining now that people see he’s acting like a liberal. Even the disapproval of politicians and the media could be resolved through legal processes. Term limits would solve a lot of political problems, and the free market is forcing the media to change.
DRJ (8d138b) — 8/2/2009 @ 6:18 pmDRJ,
In re: generation conflict,
Maybe. But I would argue (again) that it’s more a matter of common sense: most teenagers/young ‘uns I know would say that it was an individual’s prerogative to abstain from seatbelt use (as a restriction on their right to control their own personal minutiae), provided that they accepted the consequences in the event of an accident and didn’t endanger anyone else by their refusal to physically restrain themselves.
Similarly, most young people I know would say that fining anyone $675,000 for illegally downloading 30 songs is, in the colloquial parlance, retarded. Give the guy thirty hours of trash duty, or something – even a buck a song – but $675k? Jeez…
And in my opinion, common sense is the common thread between those two conclusions.
Leviticus (44b0f8) — 8/2/2009 @ 6:26 pmDRJ – I think that awards/fines should be in proportion to the incurred harm.
JD (bd7f0f) — 8/2/2009 @ 6:40 pmAlso it’s important to remember that we’re handing off an increasingly crappy, oppressive, dirty socialist and malevolent little country to these kids. Debt debt debt debt debt. These kids are in for enough punishment I think. It makes my heart hurt how much these kids are going to be punished.
happyfeet (71f55e) — 8/2/2009 @ 6:45 pmAnyone ever figure out how they decided to pay for the $2 billion they voted for so they can destroy more perfectly good cars?
I guess this guy can help pay that off when he’s done paying off the RIAA gangstas. The bright side is he can wait until the dirty socialist inflations hit and he can just pay the RIAA thugs off with Barack Obama dollars.
happyfeet (71f55e) — 8/2/2009 @ 6:49 pmThen you should not serve on a jury, because you would not be honest.
I would be honest but that doesn’t have anything to do with juries although it can get exciting with voir dire. I’ve already described my experience with jury duty when there was a mistrial in voir dire. Should I be empaneled in a case like this, I suspect there would be another mistrial.
Mike K (addb13) — 8/2/2009 @ 6:56 pmLeviticus,
The law is obviously intended as a deterrent, albeit with a less sympathetic beneficiary than (for example) the beneficiaries of lemon laws and environmental legislation. But isn’t the real problem with the legislators who wrote the laws more than the judges and juries who apply them? Courts should apply laws, not nullify them except in rare cases. I think we should amend the penalties for illegally downloading music files rather than encourage juries to nullify laws.
DRJ (8d138b) — 8/2/2009 @ 6:58 pmthere’s a cart and there’s a horse and it’s all confuzzling which one goes where
happyfeet (71f55e) — 8/2/2009 @ 7:00 pmTwo eight-year olds are playing in their apartment building’s parking lot. Another tenant has changed the spark plugs on his car and left them there. Something happens, and one eight-year old picks up a spark plug and throws it at the other, taking his eye out. The eight-year old who threw the spark plug gets sued.
The case gets dismissed. The judge calls a pretrial conference in chambers. He says, to the plaintiff’s attorney, “One child’s life has already been ruined. Let’s not ruin another’s”.
I was co-counsel for the defense and this is a true story.
nk (2ab789) — 8/2/2009 @ 7:08 pmDRJ – One can never overestimate how spectacularly craptacular legislators little little dirty rotten minds are.
JD (bd7f0f) — 8/2/2009 @ 7:11 pmLeviticus,
A few things:
1) In regard to liking or not liking someone figuring into amounts of awards. That may be, but attitude towards enforcement should be counted. JT chose to continue and possibly even escalate his actions after being served. He chose to perjure himself in his deposition (though I doubt the Commonwealth will go after him on it). This behavior is not that of someone who takes what he has done seriously and therefore a large punitive fine may well be in order.
2) If it were simply a matter of having downloaded 30 songs without distributing it would be a completely different case.
3) There is ample evidence that JT’s actions were not confined to the 30 songs that were named in the suit, but encompassed at least 800 and likely as many as 2000.
4) I do not approve of your attitude towards creators.
Soronel Haetir (869810) — 8/2/2009 @ 7:18 pmThe guy in the Ting Tings has a messed up eye and he’s internationally famous all over the world. He just wears sunglasses a lot.
happyfeet (71f55e) — 8/2/2009 @ 7:18 pmI have all his songs.
happyfeet (71f55e) — 8/2/2009 @ 7:20 pmJD,
I believe most judges and juries try to do justice but I don’t think we want them to freely nullify laws. Among other problems, that will lead to random, unpredictable results — the opposite of what good, fair laws should accomplish.
DRJ (8d138b) — 8/2/2009 @ 7:21 pmDRJ – By trying to be concise, I did not convey my intended message well. It is not possible for me to exaggerate the contempt I have for legislators. The idea of nullification is completely unappealing to me, and I save my contempt for the legislators that made such craptacular decisions. In civil trials, where there are not statutory damages, I do think that the award should be proportionate to the actual harm incurred.
JD (bd7f0f) — 8/2/2009 @ 7:28 pmOnce again, it looks like we’re basically on the same page.
DRJ (8d138b) — 8/2/2009 @ 7:37 pmIf you want to see the Law of Unintended Counsequences writ large, just do a brief history on what has occurred due to Congress’ attempt (again) to protect “the children” with the latest Product Safety legislation. For one thing, they have practically put the youth, off-road vehicle market into the dumpster – and, it probably will not save even one life.
AD - RtR/OS! (afd830) — 8/2/2009 @ 7:41 pmThis, and the downloading cases, are what comes from infantalizing the public, and the expansion of the Nanny-State.
And, BTW “L”, it is my generation that you can thank for the fact that you don’t have to speak Russian, or study Marxist Dialectic; just as I thank a previous generation for allowing me to grow up free of jack-boots and red arm-bands.
You know, experience is a great teacher, but sometimes you have to listen.
Thank you very much
[note: fished from spam filter]
hf (9bda9c) — 8/2/2009 @ 7:57 pmI’m trying to see the argument of those here who think this was a ridiculous decision.
So, I ask them to explain to me how the owner of private property, their published songs, should be allowed to protect their investment.
I see this as the simple theft of private property, some of which may have extensive value, and the distribution of that private property to others without reimbursement.
I need help here….
reff (ee9f7a) — 8/2/2009 @ 8:10 pmComment by reff — 8/2/2009 @ 8:10 pm
AD - RtR/OS! (afd830) — 8/2/2009 @ 8:21 pmYour interpretation works for me; but, I’m just a “…grumpy, get-off-my-porch elder…”, who, after building his porch, and paying taxes to the City for the privilege of having that porch, takes a dim view of those who wish to use my porch without my consent.
YMMV!
How is it a ridiculous decision? Well how about there’s no way these douchebags are ever gonna see $675,000 from this guy? And guess what? The RIAA fascists know that perfectly well. They aren’t being awarded a penny by this judgment. What the thugs are being awarded is the ruined life of a young kid.
That makes it a paragon of a ridiculous decision if you ask me. These jurors are like those power mad nazi freakos in that jailers and prisoners experiment they aren’t allowed to do anymore.
happyfeet (42470c) — 8/2/2009 @ 8:57 pmalso if you’re over 30 music is 100% fungible commodity and if it isn’t you need to grow up I think
happyfeet (42470c) — 8/2/2009 @ 9:00 pmmusic is *a* 100% fungible commodity I mean
happyfeet (42470c) — 8/2/2009 @ 9:00 pmThere are uncollectible judgments taken everyday in American courts, happyfeet. That doesn’t make the underlying lawsuits a bad idea or bad law. Plus, Tenenbaum seemed pretty happy with the decision — perhaps because he thinks he made his point and can discharge the debt in bankruptcy.
DRJ (8d138b) — 8/2/2009 @ 9:01 pmI can’t hear you I’m listening to my Ting Tings really loud.
happyfeet (42470c) — 8/2/2009 @ 9:02 pmHeh. That’s good, happyfeet. Keep dancing.
DRJ (8d138b) — 8/2/2009 @ 9:03 pmLOL
JD (bd7f0f) — 8/2/2009 @ 9:04 pm“And, BTW “L”, it is my generation that you can thank for the fact that you don’t have to speak Russian, or study Marxist Dialectic; just as I thank a previous generation for allowing me to grow up free of jack-boots and red arm-bands.”
– AD-RtR/OS!
Of course. Just like the next generation can thank my generation for the fact that they don’t have to speak Terrorese and read The Qu’ran… because a bunch of
vodka-guzzlerscamel-jockeys were going to invade the US and force everyone to pray toMarxAllah five times a day.You talk about listening? Listen to this: your generation did some good things, and I acknowledge that. But I, and my kids and grandkids, are going to be paying for your not-so-good-things for our entire lives. So don’t act like we owe you some automatic debt of gratitude.
Beyond that (that is, regarding our own prolonged sniping): you’ve never shown me anything but contempt on this site, and I’ve answered in kind… which may not be the most mature response on my part, but when you insinuate that the real problem with this country is a bunch of uneducated, arrogant young people, I’m going to respond that it’s actually a bunch of greedy middle-age careerists who drove our economy into the ground. And we’ll both be mostly (but not completely) wrong, but we’ll both feel a sense of self-righteous satisfaction about our powers of malicious diagnosis. So whatever.
Leviticus (44b0f8) — 8/2/2009 @ 9:05 pmI’m glad you’re back, Leviticus, because it gives me a chance to state my bottom line: It’s cases like this that spur citizens to seek changes in the law and that convince legislators to make those changes. I suspect the recording industry exercised undue influence when this legislation was written, but that happens sometimes and other times there are consequences we don’t foresee. I hope young and old citizens who object to this result will talk to their representatives about changing the penalties.
DRJ (8d138b) — 8/2/2009 @ 9:11 pmAnd just whose bills do you think we’ve been paying all these years?
AD - RtR/OS! (afd830) — 8/2/2009 @ 9:14 pmGeneration after generation of Americans have been paying for the excesses of earlier generations since at least WW-1, when (some would say) the country lost its’ way by moving away from a Republic, and towards a Democracy.
If you can figure out a way to pay off all outstanding debts, and force the Government to live within our means, feel free!
You will enjoy the support of millions of your fellow citizens of all ages.
But, I would think that a first step would be a repudiation of the spendthrift Congress elected in 2006 and 2008 – they make the excesses of the GOP the previous 6-years look penurious.
Oh, and BTW, I’m well past middle-aged!
AD - RtR/OS! (afd830) — 8/2/2009 @ 9:15 pmI think DRJ is right. It’s broken and my intransigence in the face of very reasonable arguments is a measure of that I think. And even if you don’t think that my intransigence in the face of very reasonable arguments is a measure of how broken copyright law is you still sure as heck don’t want me on your copyright infringement jury if you’re trying to string up a young kid cause boy would that not be a good move on your part.
happyfeet (42470c) — 8/2/2009 @ 9:16 pmPatent law is just as f*cked up, and Barcky wants to make that even worse.
JD (bd7f0f) — 8/2/2009 @ 9:19 pmI think DRJ is right, too, to an extent: I think rulings like this are valuable in that they prompt the dissatisfied to action. But I’m looking to cure what I perceive to be the disease (a screwed-up electoral process) rather than treat the symptoms (screwed-up laws that piledrive a citizen – jackass or not – over a piddling grievance, to satisfy the bloodlust of a spiteful industry).
Leviticus (44b0f8) — 8/2/2009 @ 9:25 pmScott Eric says something … well he has a quote. I will go find.
happyfeet (42470c) — 8/2/2009 @ 9:27 pm“…a screwed-up electoral process…”
So, should the Voting Rights Act be repealed?
AD - RtR/OS! (afd830) — 8/2/2009 @ 9:30 pmOr, the 26th Amendment?
How about the 17th, and 19th?
“the safety valve alone knows the worst truth about the engine” is it. From here. He credits it to a w. empson in that pretentious literary way like I would have any idea what the w meant much less the empson.
I like to think in my own small way that I’m that safety valve. Anyway, I keep picturing all these little kids downloading happy little songs in this big field of rye…
happyfeet (42470c) — 8/2/2009 @ 9:32 pmwe need a younger generation that is less full of itself, and better educated?
two thoughts:
Kevin Murphy (0b2493) — 8/2/2009 @ 11:29 pm1. This from a baby boomer?
2. Good luck with that.
#62, Leviticus, you forgot 1865
Kevin Murphy (0b2493) — 8/2/2009 @ 11:30 pmDRJ, in response to your question about applying draconian punishments to companies but not people… do you equate companies and people? Would you let companies vote?
Kevin Murphy (0b2493) — 8/2/2009 @ 11:34 pmhappyfeet wrote on 8/2/2009 @ 9:32 pm”
That’s William Empson (1906-1984). One of the greatest 20th C. literary critics, and a not inconsiderable poet IMHO.
One brilliant set of his quatrains was “Legal Fiction”, which delightfully analyzed the fiction in property law that the owner in fee simple holds title to the space above and below the property.
It begins “Law makes long spokes of the short stakes of men.”
If that makes you wonder whether he was a mathematician, you’d be right about that too.
He even used Navier-Stokes equations (or referred to them) in one of his poems about ripples on the surface of a pool.
He also saw suffering in Pre-WWII China. His almost epigramatic “Manchouli” is one compelling two line statement of that horror.
So, you are, or aren’t, of the “Holden Caulfield was an obnoxious pimple faced delinquent punk” school?
Just kidding. I usually just enjoy reading the comment threads. I don’t really want to start a flame war, but I couldn’t resist that one.
Occasional Reader (e01d18) — 8/3/2009 @ 10:19 amComment by Kevin Murphy — 8/2/2009 @ 11:29 pm
My younger siblings are Boomers.
AD - RtR/OS! (d9867d) — 8/3/2009 @ 10:37 amI, FWIW, am considered a member of the “Silent Generation”!
Leviticus posted:
Stop! You’re both wrong! In general, consumer protection laws do not impose special punitive damages rules applicable to suits by individuals, though some of them do authorize regulatory agencies to impose fines.
The fact is, appellate court decisions over the past few decades have practically made punitive damages an extinct species. Copyright cases are in one sense an exception to this rule, because damages awarded for “wilfull” violations can be totally disproportionate to any actual damage suffered by the plaintiff — but this is a special right conferred by Congress on copyright holders, and is not really part of “punitive damages” law in a general sense.
Brian K. Stanley (812189) — 8/4/2009 @ 11:25 am