Wednesday, May 13, 2009

RIAA asks court not to allow FSF to submit revised amicus curiae brief in SONY BMG Music Entertainment v. Tenenbaum

In SONY BMG Music Entertainment v. Tenenbaum, the RIAA has filed papers opposing the Free Software Foundation's motion for leave to file a revised amicus curiae brief.

Plaintiffs' opposition to FSF motion for leave to file revised amicus curiae brief
Exhibit B


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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

12 comments:

Anonymous said...

Paraphrasing for those who don't want to read the whole thing: "Your Honor, we've successfully misrepresented facts to pursuade several technology-ignorant judges in other jurisdictions that making available constitutes distribution. Since the FSF disagrees with us, wants to call us out on these self-serving shenanigans, and wants you to be less susceptible to being duped by us, they are biased liars and should be ignored. Please also ignore their interpretation of a case that makes statutory damage minimums seem excessive; that case is irrelevant not because our claims are fair or based in any fact whatsoever, but because Congress was wise and unfailing when we successfully lobbied them to codify such numbers. Also, since 'potentially millions' of distributions occurred, actual damages are 'incalculable', but we're such nice people, we're willing to settle for less than the statutory minimums, so the FSF shouldn't even be bringing up the issue at all." Did I miss anything?

Ray Beckerman said...

The way I read it is :

Judge,

1. We have no response to what the Supreme Court said, or what other courts and legal scholars have said, so please don't accept the brief, which describes what those authorities have said.

2. Even though we wanted the judge in the Capitol Records v. Thomas to give a jury instruction that the jurors could award up to $150,000 per file, and he did... we didn't really mean it.

3. Even though you wrote about 10 pages in this consolidated case in your March 31, 2008, decision in London-Sire v. Doe, describing what is needed to prove a distribution, and even though we have never proved any of that in any case, and could not prove it against Mr. Tenenbaum, either, you were wrong when you made that decision.

Ray Beckerman said...

Oh yes, and...

4. Mr. Beckerman's claim that the actual damages is approximately 35 cents per unauthorized download is not true (but we're not saying how much it really is); and

5. The brief shows how strongly FSF disagrees with our damages theory.

6. We're willing to settle this case for less than the minimum statutory damages, therefore you should disregard our claim for statutory damages of $750 to $150,000 per song file.

7. The amicus brief "criticizes... the United States of America" [?!]

8. Statutory damages and punitive damages are "fundamentally different", therefore the US Supreme Court was in error when it treated 'punitive awards' of statutory damages and 'punitive awards' of punitive damages as fundamentally the same.

9. Also the DOJ must have been wrong when it said to Congress that statutory damages were similar to punitive damages.

10. Damages of up to $150,000 for download of a song file with a retail value of 99 cents is reasonable and proportionate.

11. Mr. Beckerman accused us of attempting to blur the distinction between damages for an unauthorized download and damages for distribution; our answer to that is to continue to blur the distinction, as we ignore the point made in the amicus brief that the actual damages for a download are in the neighborhood of 35 cents.

12. Mr. Beckerman accuses us of erroneously claiming that a lost download is tantamount to a lost sale; our answer to that is to continue claiming that each lost download is tantamount to a lost sale, and to ignore the caselaw rejecting that claim.

13. Mr. Beckerman says "speculation" has no place; our answer to that is to speculate on the "incalculable" harm Joel Tenenbaum has caused to us.
Did I miss anything?

RTP said...

Don't forget the obvious digs in the filing - true to the HRO (and now Dwyer & Colorra)code, if you don't have a real legal underpinning to your motion, attack opposing counsel.

Once again, it's unbelievable that the RIAA can't find competent counsel.

Ray Beckerman said...

RTP said:

Once again, it's unbelievable that the RIAA can't find competent counsel.What's so hard to believe? Why would any lawyer with any self respect take one of these cases?

What would they say at cocktail parties if someone asked them what kind of law they practice: "I sue children, single moms, and other defenseless people for extortionate amounts of money for things they usually didn't do, in order to get them to pay extortionate settlements".

Ray Beckerman said...

Sorry derivative I had to reject your lengthy submitted comment because it had some legal errors and, believe it or not, overstated the legal position the RIAA was taking. I.e., you were actually giving them MORE credit than their arguments merited.

derivative said...

That's OK. I mainly submitted it to see if I could get you to laugh, anyway.

Anonymous said...

If memory serves, I believe one of the purposes of statutory damages is to establish an equitable amount when actual losses couldn't be proven.

Here, RIAA seems to be trying to assert that their losses are so great that statutory damages are constitutional (or so I read it).

If that's the case, then why haven't we seen any evidence to support their argument? I would think their quarterly profits amortized by source of income would be enough to prove the point.

'Our net profits from sales of CD's for nth quarter 200x were $DOLLARS. We sold $NUMBER of CD's. $DOLLARS profit divided by $NUMBER of CD's comes out to $AMOUNT per CD. Our profits per CD were $AMOUNT. 750 is not more than X times $AMOUNT, and therefore, statutory damages is/are constitutional.'

Or is someone trying to hide something?

-Quiet Lurker

Ray Beckerman said...

A_F, I rejected your comment because you appear to have overlooked the wording of 17 USC 106(3) and the holding of this court in London-Sire v. Doe, March 31st decision, as to what constitutes a distribution.

Ray Beckerman said...

A_F read the damn statute. Ever hear of "sale or other transfer of ownership, or license, lease or lending"? Ever hear of fact that it has to be disseminated to "public"? Ever hear that there has to be proof of particular file being infringed for there to be a copyright infringement?



Are you trying to be their lawyer now? If you want to get more and more careless, they'll want to hire you.

Alter_Fritz said...

Ray, I have read the statute.
That's why I was so puzzled about Exhibit B and its significance.

I mean, Come on, Eve and Tim from HRO can't be so stupid, can they?

On a second thought...

Mabe they hope to trick *this* judge like they tried (in the end unsuccessful) with Judge Davis?!

Boy would I be mad with the HRO lawyers when I were the judge and got this Exhibit B from them as allegedly proof of something!

Ray Beckerman said...

Yes they can be, and are, that stupid.