tag:blogger.com,1999:blog-5383512304639632735.post8241118506641453862..comments2024-01-23T07:34:52.253-08:00Comments on Copyrights & Campaigns: Gertner allows limited financial discovery on fair use; again lectures Nesson on procedureBen Sheffnerhttp://www.blogger.com/profile/06477793715765992689noreply@blogger.comBlogger7125tag:blogger.com,1999:blog-5383512304639632735.post-3628144030356690912009-07-01T15:26:46.974-07:002009-07-01T15:26:46.974-07:00(different anonymous)
I think it's simpler th...(different anonymous)<br /><br />I think it's simpler than that. Look at it this way--suppose the jury comes back with a really big number (which is possible, because defense counsel appears to be a bit of a clown and the defendant himself looks.... shifty). Gertner then has to rule on constitutionality. If the award is Thomas-like, one could read this as an indication that she will set the award aside. <br /><br />If that's true, then discovery on the actual damages is necessary, because if BMW v Gore-type multipliers are in fact constitutionally required (as was argued in, for example, the Legg Mason case in the Fourth Circuit), she will have to reduce the amount to a multiple of actual damages. (This argument has always struck me as BS, but if it's right, fighting parking tickets is going to be a whole lot more fun. How much $ does NY lose for being 10 min late on a 50 cent meter?). In that case, she'll have to retry the damage phase on far narrower grounds.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5383512304639632735.post-24344633309229660832009-06-30T22:47:54.201-07:002009-06-30T22:47:54.201-07:00There is minimal constitutional protection for pur...There is minimal constitutional protection for purely economic rights, so an analysis of the constitutionality of the statutory damages clause would be under the rather lax rational basis standard of review. Having said that, the deterrence of infringing activities would presumably be a legitimate exercise of Congressional power, especially in an economy where intellectual creation comprises quite a significant portion of the country's GDP. And it falls on the shoulders of the challenger to satisfy that burden.<br /><br />I'll look on with interest to see what happens if the court orders discovery on actual damages, given the conflict with the wording in the statute itself. Afterall, how would the plaintiffs provide anything short of mere speculation when it is impossible to know just how many infringements arose out of the defendant's actions? It is for that very reason that statutory damages provisions were crafted.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5383512304639632735.post-65655952351357957682009-06-30T16:13:10.974-07:002009-06-30T16:13:10.974-07:00It's a philosophical win, not a case-outcome w...It's a philosophical win, not a case-outcome win; it's a way for Nesson to say "by the RIAA's own admission these songs only made X amount of money, and yet the RIAA(*) fined Tenenbaum more-than-X amount of money, CLEARLY this is UNCONSTITUTIONAL!!!"<br /><br /><br />(*) well, actually, the jury, but God knows that after this trial Nesson's likely to pretend that the jury never existed...DensityDucknoreply@blogger.comtag:blogger.com,1999:blog-5383512304639632735.post-90802770079172194822009-06-30T15:49:52.019-07:002009-06-30T15:49:52.019-07:00@Anonymous 2:41:
I see your point. But I also don...@Anonymous 2:41:<br /><br />I see your point. But I also don't see how the defendant gets to re-open discovery long after the discovery cut-off, and even after trial. As Judge Gertner herself made clear, Nesson simply neglected to take discovery for many months when he could have. (Remember, he was even pressing to go immediately to trial last November, before I believe he had taken *any* discovery.)<br /><br />As to whether this is "a huge win for the defendant": I think that significantly overstates the case. As I understand the order, the plaintiffs simply have to give "estimates" of "revenues generated" by each of the 7 songs from 1999-present. So Tenenbaum will now know that in 2005, song X generated revenue of $2 million physical and $1 million digital, and in 2006 $1.5 and $750,000, and so on. Well, so what? Those numbers alone tell you very little. They don't tell you profit, and they don't tell you what the numbers would have been absent piracy (Joel's or in general). Nesson may be able to argue "See, they make lots of money!" But that's not really probative of the actual issues involving fair use.Ben Sheffnerhttps://www.blogger.com/profile/06477793715765992689noreply@blogger.comtag:blogger.com,1999:blog-5383512304639632735.post-23927341853442330822009-06-30T14:41:54.747-07:002009-06-30T14:41:54.747-07:00Yes, but if the statutory scheme is unconstitution...Yes, but if the statutory scheme is unconstitutional then the scheme's intention does not matter, because it is outright invalid. IF the court finds that BMW v Gore applies to statutory damages cases, then the only way to prove unconstitutionality is to prove actual damages. To say that the statute was "intended" to obviate a showing of actual damages and should be honored as such would impermissibly put congress's intent above the constitution. The whole point of defendant's argument is that Congress's intent was unconsitutional, as applied to individual file sharers.<br /><br />This appears to be a huge win for the defendant. My understanding is that the riaa has resisted divulging revenue information about their songs ferociously and to the maximum extent of their abilities. Unfortunately, they will probably insist that this information be filed under seal, so the rest of the world will be unable to weigh in. But I wonder what riaa will do to prevent the information from falling victim to "radical transparency."Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5383512304639632735.post-10597253571079257812009-06-30T13:40:23.063-07:002009-06-30T13:40:23.063-07:00@Ben:
I agree with you that that would be the pur...@Ben:<br /><br />I agree with you that that would be the purpose of the discovery. My point is that it seems to be a back door way of forcing the plaintiffs to prove actual damages, a requirement that statutory damages is supposed to obviate.Ben Sheffnerhttps://www.blogger.com/profile/06477793715765992689noreply@blogger.comtag:blogger.com,1999:blog-5383512304639632735.post-50183609978770810932009-06-30T13:23:06.353-07:002009-06-30T13:23:06.353-07:00I think she was suggesting that she would allow di...I think she was suggesting that she would allow discovery to support an affirmative claim of unconstitutionality by the defense. Not requiring an affirmative showing of loss by the Plaintiffs.Benhttps://www.blogger.com/profile/04347088817900263283noreply@blogger.com