In SONY BMG Music v. Tenenbaum, the defendant has filed a motion to dismiss the RIAA's claim for statutory damages, on the ground that it violates due process.
Memorandum of law in support of defendant's motion to dismiss statutory damages claim on constitutional grounds
Commentary & discussion:
Copyrights and Campaigns
Groklaw
Keywords: lawyer digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property portable music player
13 comments:
Ughh. I really wish things like this would actually work. Seems like the fact that they don't know for certain how many copies he (or any other defendant) made is enough wiggle room to get out of constitutional threats to damages.
I'm still hoping someday some researcher at one of these universities will do the other hugely important experiment we need for cases like this - testing whether my theory about the relationship between popularity and file distribution is true. Namely, that the frequency any given computer on a P2P network like eDonkey (this doesn't apply to networks like BitTorrent, which function fundamentally differently) is roughly constant, regardless of the popularity of that file. While counter-intuitive at first glance, this makes logical sense. In P2P networks of the kind we're talking about, any computer that downloads a file then becomes an uploader of that file. So if there's more people requesting one file now than another, that file was also requested more in the past, meaning there are more peers that can distribute that file in the present. The increased number of seeders corresponds to the increased number of downloader, keeping the ratio constant. Unfortunately, I doubt it will be enough to bring to court unless it can be empirically demonstrated by researchers.
Defendant had no choice but to file the motion, since the judge had so directed.
But I am of the opinion that the determination needs to be made upon a full evidentiary record, including such niceties as:
-the lost revenue per download;
-the saved expenses per download;
-the knowledge and mindset of the defendant;
-the nature of defendant's activity, if any;
-the degree of reprehensibility.
My bet is that this motion, even though filed at the judge's direction will be held frivolous. Tenenbaum is headed for sanctions from this judge, who has his mind made up already.
Ray, can Tenenbaum ammend his motion to include amoung other things, your concerns, or are they locked into this motion?
Ray, the link to the PDF doesn't work for me. Is beckermanlegal.com down right now?
"Firefox can't establish a connection to the server at beckermanlegal.com."
-Jason
The Professor writes a nice brief, but I worry that his lack of courtroom experience may become his and Joel's downfall despite the force of his arguments.
ChrisP
The link is working fine.
I was disappointed in the brief, since it mentioned none of the 4 cases dealing with this issue (in the upper part of my sidebar) nor either of the 2 excellent law review articles dealing with this issue (cited in the UMG v. Lindor reply memorandum).
Justin Olbrantz (Quantam) is wrong when he says:
In P2P networks of the kind we're talking about, any computer that downloads a file then becomes an uploader of that file.
This statement would only be true when the P2P client is configured to download files to a shared directory. This is an option that not all downloaders use because it increases the risk of passing on damaged or incorrectly labeled files. A responsible downloader will download new material to a separate download directory which is not shared, verify that the file is what it's expected to be, and then if he or she decides to share it, copy it over to a shared directory. This also prevents incomplete files from being shared, and ones share directory growing larger than one may wish. It's not automatic.
{The Common Man Speaking}
Ray, thanks for checking on the link. Whatever wasn't working for me before is working for me now. Probably a problem on my end.
-Jason
This is not the argument I was hoping to see.
Based on some of their earlier statements, I was expecting the differentiator would be criminal rather than commercial infringement.
To me the fatal flaw in 504 (c) is that it in no way equates the damage award to the loss of the plaintiff.
While all the due process arguments are certainly valid, underneath it all is the ability to award damages to a plaintiff who has suffered none. This means that the defendant is being punished for performing an act, not for causing damage. To me this is criminal behavior, not a tort.
just a biased observer
TCMS:
The default behavior for many (most?) such P2P clients is to share files after downloading. But that's not the problem with what Justin Olbrantz wrote... People don't have equal bandwidth, so of course the few with a lot of bandwidth will upload more copies than the many with less bandwidth. Any calculations that don't take into account such bandwidth differences are invariably misleading.
And, it doesn't matter anyway. The RIAA hasn't yet had to show that the file was actually downloaded by anyone other than MediaSentry. Until judges require evidence of actual copying, such research is immaterial.
-yt
"People don't have equal bandwidth, so of course the few with a lot of bandwidth will upload more copies than the many with less bandwidth. Any calculations that don't take into account such bandwidth differences are invariably misleading."
By "more", my hypothesis refers to the number of copies of different files on the same computer. That is, a computer with both a popular file and an unpopular file should get roughly equal number of requests for both files. Different internet connections having different bandwidth has nothing to do with it.
Isn't it all a moot point since the plaintiffs have no record of the files actually being downloaded *FROM* the defendants computer?
That is the statutory requirement for *distribution*, no? I can put a web page up with links to lots of copyright music, but if no one downloads it there has been no infringement.
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