Thursday, May 28, 2009

Court sets July 20th trial date in SONY BMG Music Entertainment v. Tenenbaum

In SONY BMG Music Entertainment v. Tenenbaum, the Court has set a July 20th trial date.

The order states that the schedule is contingent upon: (1) the plaintiffs' motion to dismiss counterclaims being granted, thus eliminating the need for additional discovery, and (2) denial, or deferral until after trial, of the defendant's constitutional challenge until after trial.

The order fixes the close of discovery as May 30th (this coming Saturday) and leaves June 5th at 2:30 PM as the scheduled date and time for the argument of the various non-discovery motions.

May 28, 2009, Scheduling Order

[Ed. note. It is unclear to me how the May 30th discovery date interrelates with (a) the hard drive inspection, and (b) the discovery that would be needed into plaintiffs' revenues and expenses, to ascertain their actual damages in connection with the constitutional challenge. -R.B.]



Commentary & discussion:

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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

8 comments:

Anonymous said...

It is insane to this man that you have to lose your case before the constitutionality of it can even be considered.

{The Common Man Speaking}

Anonymous said...

"It is insane to this man that you have to lose your case before the constitutionality of it can even be considered."

The point is to teach us all lessons. Their preferred teaching method seems to be to destroy peoples lives. Nothing else, including the law, the constitution, or the question of actual guilt seems to matter. Teaching lessons: "Fear us!". If innocents are ruined, so what? Maybe they think its even better if innocents are ruined, after all, fear is fear. These are some of the same creatures who wantonly inflicted rootkits on their paying customers.

Ray Beckerman said...

Anonymous anonymous. Please in future either log in when you post or give us something to call you.

Anonymous The Common Man Speaking: there's a difference of opinion on that issue. Larry Feldman, the defendant's lawyer in SONY v. Cloud, thinks the issue can be resolved early. Me, I'm not so sure. If you're relying on the Gore/State Farm/Williams line of cases, I personally don't see how you can determine the constitutionality without seeing whether statutory damages are in fact awarded, whether they are 'innocent infringement' damages or what, what actual damages the plaintiffs can prove, and what factors are at play in determining the reprehensibility of the conduct, such as (a) commerciality, (b) knowledge of infringement, (c) intent to profit, etc. I don't know how you can ascertain these things until the trial.

Ray Beckerman said...

Also if there was an infringement, it needs to be ascertained clearly what kind of infringement was proven:
(a) was it making a copy, and thereby infringing the distribution right; (b) was it disseminating copies to the public by a sale or other transfer of ownership, or by a rental, lease, or lending, in which case there might be a violation of the distribution right.

Anonymous said...

Mr. Beckerman,

While this man will never presume to question your legal expertise - and specifically expertise in this area where you have now practiced a great amount over the last few years - he sees the issue in simpler terms. Those terms are: What amount of damages are the Plaintiffs suing for, and is that amount constitutional on the face of it?

Are the Plaintiffs asking for the minimum $750/song - which amounts to easily 1000X actual damages, and bears absolutely no relationship to the fines which would be imposed if those same songs were shoplifted out of a store on CDs?

Are the Plaintiffs admitting to innocent infringement and willing to settle for $200/song, which could easily be seen as 500X actual damages?

Are they going for the whole enchilada of $150,000/song, which is an astronomical 300,000X actual damages assuming a conservative $0.50/song wholesale selling price?

Or will they demand a jury trial and ask the jury to pick a number, any number, between $750 and $150,000?

Even the lowest possible value still equates to 500X any actual damages - and such damages are hardly provable since in no way in the world does a download equate to a lost sale. If anything at all, it equates to music at retail being too expensive still.

So given that there are any actual damages at all (i.e. lost sales), one can easily argue the issue now on whether even the lowest amount, which equates to approximately 500X (if music wholesales at $0.33/song, which has some basis in reality) any actual damages is constitutional, or not.

And this is a favor to the Plaintiffs as much as the Defendant to know this answer before proceeding any further in this costly trial. Settlement talks can hardly take place without some reasonable knowledge of what damages could actually be awarded. And if the value is much closer towards bearing some reasonable relationship to actual damages - say $10/infringed track, which is 10X the Retail price of each track - Plaintiffs can determine if the case is even worth pursuing any further.

This man does believe that these questions can, and should, be answered before the trial on the issues should commence. Otherwise the very claim for damages is bogus because they would never be allowed to be assessed in the end in such a putative manner with, in truth, no ability to prove that actual damages even exist.

{The Common Man Speaking}

Anonymous said...

It might be easier to argue based of the record of an actual case, but the damages will always be theoretical. In these cases the transactions in question have always been done at an economic loss rather that at a gain.
I may be over simplifying, but the RIAA has always argued that they deserve $750 in statutory damages even if they suffered no loss. If the copyright law allows this (and apparently it does) then the statutory damage becomes entirely punitive and there is not even an attempt to relate it to an actual loss or damage.
Copyright items have been seen to be traded in ranges from a small fraction of a cent to many thousands of dollars. Any attempt by law makers to set the value of those items would be absurd. In my opinion the copyright law as it is now does not even attempt to allow for due process.

Just a biased observer

Ray Beckerman said...

I rejected a comment for a number of reasons: (1) it wildly misstated what I have said; (2) it created homework for me; (3) it contained numerous unsupportable ideas; (4) it attributed to me an argument that someone else has made but not that I have ever made.

I don't have time to sit here and spend hours correcting comments like that.

And I can't make flippant remarks about legal issues that are in litigation. I have plenty of enemies who read this stuff every day and would like nothing better than to take something I have said and use it out of context.

So either do your homework before commenting, or don't comment.

And don't assign work to me. I have my hands full.

And don't misstate what I have said and tell me to 'correct you if you are wrong'. That way, if I don't correct you, it appears as though what you said might have had some validity while it was, in fact, from outer space.

Yes what you said was 100% wrong.

Ray Beckerman said...

If you want to know what my view is on the unconstitutionality of the statutory damages all you have to do is read the revised amicus curiae brief in SONY v. Tenenbaum. It's all in there.