tag:blogger.com,1999:blog-5383512304639632735.post3888335720152403550..comments2024-01-23T07:34:52.253-08:00Comments on Copyrights & Campaigns: An interview with a Tenenbaum jurorBen Sheffnerhttp://www.blogger.com/profile/06477793715765992689noreply@blogger.comBlogger46125tag:blogger.com,1999:blog-5383512304639632735.post-22468775204220799152009-08-10T16:54:48.263-07:002009-08-10T16:54:48.263-07:00halojones-fan says copyright holders don't hav...halojones-fan says copyright holders don't have any special rights -- "They're the same property protections that any other property owner has."<br /><br />halojones-fan, if I choose to sue somebody who walked across my lawn without permission for trespass, I can get only the actual economic damages I have suffered by virtue of the trespass (or, more likely unless the trespasser's footsteps ruined a wet cement pathway, expensive freshly laid re-seeding or the like, "nominal" damages of $1.00 or less). As far as civil damages go, this is the property protection that "any" property owner has.<br /><br />To get any <i>punitive</i> damages for infringement of my property rights (other than a copyright), I have to prove that the act causing damage was committed with the intent to cause injury to me or my property and was motivated by spite or ill-will.<br /><br />If the trespassser, instead of walking over my lawn, infringed my copyright, I could get statutory minimum damages of $750 per infringement (i.e., per copying) and, if I could prove the infringement was "wilful," that amount could be boosted as high as $150,000. Cases applying the relevant federal statute make it clear that the amount awarded, from $750 to $150,000, does not have to bear any relationship to plaintiff's actual damage, because the purpose is to punish the wilful infringer.<br /><br />The copyright holder gets these minimum and punitive damages by virtue of a federal statute. No other kind of property owner enjoys similar rights.<br /><br />Also, when you're talking about copyright, the "property" in question is the right to exclude others from doing any of the things that USC Secs. 106-122 say the copyright holder has the exclusive right to do (subject to certain exceptions -- and it's Sec. 106 where the most important and generally applicable exclusive rights are defined). <br /><br />17 USC 504 (c):<br />1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work.<br /><br /> (2) In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court<br />in its discretion may increase the award of statutory damages to a sum of not more than $150,000.<br /><br />17 USC Sec. 106:<br />17 U.S.C. § 106. Exclusive rights in copyrighted works<br /><br /> Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:<br /><br /> (1) to reproduce the copyrighted work in copies or phonorecords;<br /><br /> (2) to prepare derivative works based upon the copyrighted work;<br /><br /> (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;<br /><br /> (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;<br /><br /> (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including<br />the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and<br /><br /> (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.Brian K. Stanleyhttps://www.blogger.com/profile/16848842397140134727noreply@blogger.comtag:blogger.com,1999:blog-5383512304639632735.post-80934999361387301992009-08-10T12:43:03.022-07:002009-08-10T12:43:03.022-07:00Stanley:
"Why should copyright holders get &...Stanley:<br /><br />"Why should copyright holders get "special rights"?"<br /><br />They aren't "special". They're the same property protections that any other property owner has. You're just ascribing some magic, undefinable characteristic to IP that makes it different from other property.<br /><br />Here's the thing to remember: When you're talking about copyright, the "property" in question is not actually the song itself. It's the act of distributing copies of that song. And it is neither uncommon nor artificial to have "property" and value tied up in a nonphysical instrument, as anyone with a pork-futures contract will tell you. (Or anyone involved with negotiating flight slot allocations for airports.)halojones-fanhttps://www.blogger.com/profile/05473935330204075559noreply@blogger.comtag:blogger.com,1999:blog-5383512304639632735.post-25484945657153469172009-08-04T10:40:36.475-07:002009-08-04T10:40:36.475-07:00Moran is "physician, a specialist in internal...Moran is "physician, a specialist in internal medicine at a Cambridge hospital who also teaches at Harvard Medical School"?<br /><br />Well, that explains a lot. $675K is chump change to this fellow.<br /><br />Talk about a "blue ribbon jury"!Brian K. Stanleyhttps://www.blogger.com/profile/16848842397140134727noreply@blogger.comtag:blogger.com,1999:blog-5383512304639632735.post-30355769739858547602009-08-04T10:28:48.652-07:002009-08-04T10:28:48.652-07:00Here's a topic for discussion --
Why should c...Here's a topic for discussion --<br /><br />Why should copyright holders get "special rights"?<br /><br />If I maliciously and willfully destroy Susie's toaster, she gets to sue me for (a.) her actual damages, based on the economic loss she has in fact suffered, and (b.) punitive damages, to punish me for my wilful malicious conduct.<br /><br />Why should copyright holders get statutory punitive damages when their property rights are violated "wilfully"? Why shouldn't they have to meet the same standards as any other property owner if they want to get damages over and above their actual economic loss in order to punish the wrongdoer?<br /><br />If the argument is that punitive damages are too hard to get under the standard tort system, then wouldn't the appropriate correction be to make it easier to get punitive damages in the standard system, rather than create a special right to punitive damages just for the property owner whose property happens to be a copyright?Brian K. Stanleyhttps://www.blogger.com/profile/16848842397140134727noreply@blogger.comtag:blogger.com,1999:blog-5383512304639632735.post-29236819326486589362009-08-04T08:56:47.535-07:002009-08-04T08:56:47.535-07:00All of these commentors saying "intellectual ...All of these commentors saying "intellectual property is different from REAL property" remind me of children putting blankets over their heads to make the monster go away. "If I can't see it then it doesn't exist", sort of thing.halojones-fanhttps://www.blogger.com/profile/05473935330204075559noreply@blogger.comtag:blogger.com,1999:blog-5383512304639632735.post-3040021309475333292009-08-03T13:10:44.225-07:002009-08-03T13:10:44.225-07:00This issue has been around since the invention of ...This issue has been around since the invention of a cassette deck attached to a radio, where you could record directly off the radio. This progressed to the double tape deck (remember those?) Where you could dub a persons album and make mix tapes. Everyone thought this would bring about the death of the music industry. Then CD duplication became widely available and the same argument arose. As technology advances quality goes up size and price go down. I think in this situation its about the punishment fitting the crime, and 30 stolen songs don't equal bankruptcy, this is simply not proportional.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5383512304639632735.post-62087772801424568482009-08-03T12:23:48.978-07:002009-08-03T12:23:48.978-07:00It seems to me that almost everyone's opinion ...It seems to me that almost everyone's opinion about this trial boils down to their beliefs about IP. Many members of the pre-digital generations believe -- it seems to me almost on faith -- that "Intellectual Property" is equivalent to tangible property, and deserving of the same legal protections. People also seem more amenable to this idea if they grew up in a middle class household, and thus were not denied access to recorded music by its artificially high price.<br /><br />However, most citizens who came of age after the advent of the internet do not adhere to this belief. Instead, they see "Imaginary Property" as an abusive monopoly granted by a corrupt government to its paymasters, and consequently deserving no legal protection whatsoever. Almost everyone of this generation I have spoken with, although they may fear RIAA bullying, perceive file sharing as a perfectly normal and non-criminal activity. Some even perceive sharing files to be slightly virtuous.<br /><br />Since both sides see each other as essentially criminal, I do not hold out much hope for a political compromise any time soon. This is especially so given the RIAA's committment to a brutal, scorched-earth policy of legal attack. Probably they will succeed for a few years, while they retain the sympathy of the political establishment. However, I suspect ultimately they will find technology has rendered their entire business model obsolete.Jasonhttps://www.blogger.com/profile/03008311663653598877noreply@blogger.comtag:blogger.com,1999:blog-5383512304639632735.post-29837833423034334972009-08-02T23:10:14.081-07:002009-08-02T23:10:14.081-07:00I'm taken aback by the expressed belief of sev...I'm taken aback by the expressed belief of several commenters here that, because technology has made it so easy to quickly and accurately make copies of someone's songs, something basic and essential has changed about property rights - the implication being, to me, that when the tools of theft become so easy to use that anyone and everyone can use them, theft somehow becomes acceptable, and a valid moral choice.<br /><br />Not so, children. You need to travel back to that point in your life when you somehow became convinced that "getting away with it" was an adequate substitute for morality, and ask to hear that day's lessons again, because you clearly got it wrong the first time.bobbyhttps://www.blogger.com/profile/05541153566289316156noreply@blogger.comtag:blogger.com,1999:blog-5383512304639632735.post-78951066720961555342009-08-02T22:12:40.575-07:002009-08-02T22:12:40.575-07:00A note to commenters (and one in particular):
If ...A note to commenters (and one in particular):<br /><br />If you are the kind of person who wishes death upon those with whom you disagree, you are not welcome to post here. You know who you are, and I will delete your comments without warning.Ben Sheffnerhttps://www.blogger.com/profile/06477793715765992689noreply@blogger.comtag:blogger.com,1999:blog-5383512304639632735.post-1542673048658104902009-08-02T15:35:20.512-07:002009-08-02T15:35:20.512-07:00@Kevin:
You misquoted me once again. I did not wr...@Kevin:<br /><br />You misquoted me once again. I did not write that the jury "put aside their feelings." Of course jurors bring their feelings, attitudes, backgrounds, etc. into the deliberations. But, yes, I do believe that they followed the law, which permitted them to award the damages they did.<br /><br />I don't know what the right amount of statutory damages were in this case. No doubt $675,000 is a very big number. I do know that statutory damages are about more than compensation; they're also about punishment. 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.”).<br /><br />Do I believe this will deter more than it enrages? Impossible to know. It's also quite possible that the same person could be enraged by the verdict, but, because of it, deterred from illegal p2p use.Ben Sheffnerhttps://www.blogger.com/profile/06477793715765992689noreply@blogger.comtag:blogger.com,1999:blog-5383512304639632735.post-56553196362952823562009-08-02T15:23:45.961-07:002009-08-02T15:23:45.961-07:00Ben, since you say that you are glad that the jury...Ben, since you say that you are glad that the jury, judge, etc were able to put aside their feelings and apply the law (@11:43), I just assume thios meant that you agreed with the judgement.<br /><br />If this is not the case, I apologize.<br /><br />If it is the case, however, why do you think that a life-long debt is a valid punishment for a non-violent crime that had economic damages measured maybe in 4 figures?<br /><br />Do you believe this will deter more than it enrages?caseym54https://www.blogger.com/profile/03452934303641667027noreply@blogger.comtag:blogger.com,1999:blog-5383512304639632735.post-61320334212428311682009-08-02T15:05:37.026-07:002009-08-02T15:05:37.026-07:00@Anonymous 3:02:
Is it really that hard to spell ...@Anonymous 3:02:<br /><br />Is it really that hard to spell my name correctly?<br /><br />And I really suggest you stick to what I have written, rather than what you (falsely) believe that I "think."Ben Sheffnerhttps://www.blogger.com/profile/06477793715765992689noreply@blogger.comtag:blogger.com,1999:blog-5383512304639632735.post-74949113456536238232009-08-02T15:02:33.606-07:002009-08-02T15:02:33.606-07:00This comment has been removed by a blog administrator.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5383512304639632735.post-59952011315470122242009-08-02T13:41:57.595-07:002009-08-02T13:41:57.595-07:00@Kevin 1:22:
I don't consider what Tenenbaum ...@Kevin 1:22:<br /><br />I don't consider what Tenenbaum did "petty theft." And please don't say what I "think," especially when it's not accurate. If you want to criticize something I've written, fine, but quote it directly, rather than mis-paraphrasing it.Ben Sheffnerhttps://www.blogger.com/profile/06477793715765992689noreply@blogger.comtag:blogger.com,1999:blog-5383512304639632735.post-74972079141689353042009-08-02T13:27:54.503-07:002009-08-02T13:27:54.503-07:00Does the fact that nearly everyone "put aside...Does the fact that nearly everyone "put aside their feelings" to reach the conclusion the law demanded bother you at all? Like maybe to consider that the law is unconscionable?<br /><br />Decisions like this do NOT strengthen copyright law, they just make it more brittle.caseym54https://www.blogger.com/profile/03452934303641667027noreply@blogger.comtag:blogger.com,1999:blog-5383512304639632735.post-78094982934558887782009-08-02T13:22:09.014-07:002009-08-02T13:22:09.014-07:00Ben, considering that BK may not be an option for ...Ben, considering that BK may not be an option for this judgement, could you explain why you think lifetime penury is a valid punishment for petty theft? Or even grand theft if that's what you think it is?caseym54https://www.blogger.com/profile/03452934303641667027noreply@blogger.comtag:blogger.com,1999:blog-5383512304639632735.post-26037491028413813352009-08-02T11:43:31.931-07:002009-08-02T11:43:31.931-07:00@Brent:
Your comment totally misperceives the rol...@Brent:<br /><br />Your comment totally misperceives the role of a jury in the US legal system. Contrary to your comment, juries have a specific, defined role: they are the finder of fact. They don't get to decide every issue in the case (and certainly not issues of law), and they must follow the instructions given them by the judge.<br /><br />Judge Gertner granted summary judgment on fair use (taking the issue away from the jury), because there was no dispute about the underlying material facts, and, under more than ample fair use precedent, the plaintiffs were entitled to judgment as a matter of law. (She applied a similar standard in granting a directed verdict on liability.) Even Tenenbaum's own proposed experts, who were sympathetic to his cause, unanimously agreed that his fair use argument failed as a matter of law. http://copyrightsandcampaigns.blogspot.com/2009/03/copyleft-academics-to-nesson-fair-use.html<br /><br />The fair use ruling was not a remotely close call, and a contrary ruling would almost certainly have led to reversal by First Circuit. And yes, I was impressed that Judge Gertner put aside her (publicly expressed) personal feelings about this case and applied the law, as her oath requires.Ben Sheffnerhttps://www.blogger.com/profile/06477793715765992689noreply@blogger.comtag:blogger.com,1999:blog-5383512304639632735.post-70738932062647164182009-08-02T11:38:27.367-07:002009-08-02T11:38:27.367-07:00This comment has been removed by the author.Ben Sheffnerhttps://www.blogger.com/profile/06477793715765992689noreply@blogger.comtag:blogger.com,1999:blog-5383512304639632735.post-74825060024627407512009-08-02T11:21:31.906-07:002009-08-02T11:21:31.906-07:00Sorry about misspelling your name, Mr. SHEFFNER, a...Sorry about misspelling your name, Mr. SHEFFNER, after all your hard work on this blog. <br /><br />On the question of "Settle, settle, settle!": yes, that's clearly the smart-money opinion of the legal establishment, and yes, Joel would arguably be better off owing $20,000 (if the labels stopped upping the ante at that point--hard to say) rather than $675,000. (Of course if he's really bankrupted the calculation of his best interest might change.) <br /><br />But from a larger perspective, where do all those tens of thousands of 'settled' lawsuits leave the rest of us? They prove that corporations can use their powerful legal weapon to bully most everyone into submission, but is that what we mean by 'justice,' 'rule of law,' etc.? It's easy in retrospect to say 'Mr. Tenenbaum was a fool for going to court,' but let's presume that his purpose was to demonstrate, by appealing to a jury of his peers, that the ordinary file-sharing he and millions of others engaged in (and still do) actually should be considered 'fair use.' This of course terrifies the plaintiffs, but isn't it a worthwhile question to ask, i.e., put to a jury? For my two cents, the big problem here was that Judge Gertner, for all her apparent bias towards the defendants in these suits, was unwilling to allow that demonstration to go forward. Her exclusion of fair use played straight into the plaintiffs' hand and all but settled the case in their favor--the rest was commentary. But the desire to test such a supposition in the courts, in my opinion, doesn't deserve all the scorn that's been heaped on it. Indeed, the 'smart-money' point of view that says 'pay whatever they ask and stay out of court at all costs' strikes me as deeply cynical, in fact shocking when it comes from people who claim to practice law.brenthttps://www.blogger.com/profile/16770376824847505367noreply@blogger.comtag:blogger.com,1999:blog-5383512304639632735.post-80625141600184757082009-08-02T09:44:23.202-07:002009-08-02T09:44:23.202-07:00It's my understanding that jurors cannot/shoul...It's my understanding that jurors cannot/should not consider 'facts' not in evidence.<br /><br />If Mr. T had facts to present on his own side showing his innocence, he had a chance to do so.<br /><br />That he admitted guilt means the trial wasn't necessary. <br /><br />Now we're just quibbling over the effects of the law.<br /><br />Moral of story: don't repeatedly break a law.millerhttps://www.blogger.com/profile/06288790458928188846noreply@blogger.comtag:blogger.com,1999:blog-5383512304639632735.post-20439004740219133092009-08-02T07:06:28.562-07:002009-08-02T07:06:28.562-07:00I think that the argument is not if Joel is culpab...I think that the argument is not if Joel is culpable by law, but is this law fair or not and if it should be changed. You can see my analysis here http://tinyurl.com/mpuyep from three points of view.Mark Kerznerhttps://www.blogger.com/profile/13141058882531144922noreply@blogger.comtag:blogger.com,1999:blog-5383512304639632735.post-8002703347209369322009-08-02T06:31:15.002-07:002009-08-02T06:31:15.002-07:00If the new generation is so opposed to this situat...If the new generation is so opposed to this situation, then the proper response is to push Congress for changes to the copyright law on fair use and statutory damages, not to furtively violate the law. Even a case undertaken as public civil disobedience would have more claim to the moral high ground, though the same negligible chance of courtroom success.<br /><br />I remain unimpressed with the technical and economic evidence presented by the plaintiffs. But this is not a criminial trial, where any reasonable doubt is an escape hatch. The evidence, viewed from this distance, seems more than enough to justify findings of both infringement and willfulness.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5383512304639632735.post-76655313316996979322009-08-02T03:02:01.574-07:002009-08-02T03:02:01.574-07:00The kid didn't do $675,000 worth of damages. T...The kid didn't do $675,000 worth of damages. This was an obscene judgment I think.happyfeetnoreply@blogger.comtag:blogger.com,1999:blog-5383512304639632735.post-78505458894782072432009-08-02T00:28:01.457-07:002009-08-02T00:28:01.457-07:00This comment has been removed by a blog administrator.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5383512304639632735.post-16453345383816032692009-08-01T17:58:27.161-07:002009-08-01T17:58:27.161-07:00bbliss17 -
"What older people have to under...bbliss17 - <br /><br />"What older people have to understand is that us younger people are growing up with a different mind set than what they had and they don't understand where we are coming from."<br /><br />If, by a different mindset, you mean actually thinking that one has to act responsibly and pay for the items that they consume, then yeah, what were those crazy ass jurors thinking?<br /><br />I don't care who you are or when you were born, there is no societal norm that you are entitled to the free work of others without compensation. It has never been this way throughout the history of human creation, and it certainly never will be.Anonymousnoreply@blogger.com