~Beyond the Border~ > Daiyousei's Cold Storage
Keep reading the news!
Edible:
That's a really shitty article.
What they should have said was "absolute fuckass of a 12-year-old gets what's coming to him for physically assaulting his classmates multiple times"; one of his victims just happened to be a Muslim girl.
Quad City QBs:
I don't know if you recall my post last summer about the damages in Sony BMG v. Tenenbaum (filesharing case) being slashed, but that order went on appeal before the First Circuit today. I had the good fortune to be present.
The district judge directed a verdict on liability, so the only issue up on appeal was the damages owed by Tenenbaum for downloading songs. The discussion--which involved not only lawyers for Tenenbaum and for Sony, but the DOJ, the EFF, and a Harvard Law third-year--mainly focused on whether the statutory damages provision of the Copyright Act, which I discussed a little earlier, was intended* to apply to consumers. Tenenbaum's side argued that unlawful filesharing is done casually--like jaywalking--and that at the time the statute was passed, no consumer had ever been sued for private infringement, taking place entirely inside the home. On the other hand, Sony argued that the statute contains no home-copying exception, and that the only reason no litigation had happened until the '03 RIAA campaign was because it just wasn't worth the trouble.
* I suspect that for many of you, it's a foregone conclusion that Congress intended to hit consumers with statutory damages, because they're in the copyright lobby's pocket. Whether that's true or not, the court is usually bound to apply the law as it believed Congress meant it.
A secondary but related issue was the degree of harm that Tenenbaum actually caused. Of course, the very idea of statutory damages is to recompense the rightsholder when damages are difficult to pin down, but Sony nevertheless argued that filesharing was different in nature, and far more harmful, than previous forms of copying**--in essence making the filesharer not just a home copier, but a home distributor. Sony then went on to argue that a good test of damages in a copyright claim was the amount that the rightsholder would've charged for a license to do the conduct at issue, and that the price it would've charged for a license to "essentially make these songs public domain" would've been high indeed.
Personally, I don't buy this argument because it attributes the harm of all filesharers, taken in the aggregate, to Tenenbaum personally, in violation of State Farm v. Campbell, a point noted by Judge Gertner in the initial order reducing the damages. Tenenbaum's counterargument followed similar lines, arguing that applying the full force of the statutory-damages regime to regular consumers would be an absurd and unjust result, and thus should not be a permissible reading of the statute.
** for extra lulz, see the Sony lawyer's description of P2P to the court--e.g. "he changed file serving sharers"
Overall, I don't think it's looking good for Tenenbaum. The EFF lawyer got shut down in one question (*awkward silence* "...may I c-continue?"), and the head judge seemed eager to put the case away on narrow procedural grounds... making much, for instance, of the fact that many of Tenenbaum's arguments hadn't been raised at trial. I think the real question now is what impact an unfavorable ruling from the Circuit will have. Absent a Circuit split, I don't think it'll go up to SCOTUS, and it's possible the RIAA may be emboldened by the decision and start suing downloaders directly again. That said, if the decision is made on procedural grounds, it doesn't quite lend the RIAA the moral support it's looking for.
More:
Direct transcript of the argument
Legally Sociable
TorrentFreak
JT:
--- Quote from: Edible on April 04, 2011, 03:38:57 PM ---That's a really shitty article.
What they should have said was "absolute fuckass of a 12-year-old gets what's coming to him for physically assaulting his classmates multiple times"; one of his victims just happened to be a Muslim girl.
--- End quote ---
Yeah, let's beat that fuckass 12-year-old child into line with a felony conviction. That'll teach him.
Edible:
--- Quote from: Bad Appellant!! on April 04, 2011, 03:46:47 PM ---making much, for instance, of the fact that many of Tenenbaum's arguments hadn't been raised at trial.
--- End quote ---
Wbuh? Raised by whom?
Really though, I think the laws as they stand serve to benefit copyright holders to a fault in these situations; until laws are changed to make clear differences between corporate punishment instead of personal liability, we'll just be seeing more of this.
--- Quote from: JT on April 05, 2011, 12:34:45 AM ---Yeah, let's beat that fuckass 12-year-old child into line with a felony conviction. That'll teach him.
--- End quote ---
Kid obviously isn't learning to be a productive member of society from his parents. Let's see how a couple years in juvie sorts him out.
Quad City QBs:
--- Quote from: Edible on April 05, 2011, 04:40:51 PM ---Wbuh? Raised by whom?
Really though, I think the laws as they stand serve to benefit copyright holders to a fault in these situations; until laws are changed to make clear differences between corporate punishment instead of personal liability, we'll just be seeing more of this.
--- End quote ---
By Tenenbaum's side (because the district court refused to take his expert witnesses--a number of experts on Internet culture, why kids don't consider downloading wrong, etc). The idea is that you don't get to raise new arguments on appeal--the appellate court is just reviewing specific questions of law sent up by the trial court, it's not meant as a second bite at the apple.
(Also, relevant links added.)
Generally, I don't see a distinction between corporate defendants and individual defendants coming about anytime soon, at least not in the copyright context. Part of the point of a corporation is that it's counted legally as a person, and we've seen in cases like Citizens United that various individual rights accrue to the corporation as well. There are exceptions, like in the securities law, but those are fairly specific and mostly hard-won through a long political process.
As far as ability to pay goes, the position of the federal government seems to be that common-law remittitur is enough to prevent unjustly large payouts being levied against individuals. At least, that's what the DOJ argued in intervening in the case.