Wednesday, July 29, 2009

Judge asks for 'further argument' on definition of wilfulness in SONY v Tenenbaum

In SONY BMG Music Entertainment v. Tenenbaum, the Court has asked for "further argument" on the definition of wilfulness.

Judge Nancy Gertner: Electronic ORDER entered, requiring further argument on the question of how "willful infringement" is defined. (The Court is issuing this order so that the parties will be prepared to address the issue; no written briefing is required.) The plaintifss seek an instruction that "willful infringement is that committed with knowledge of or "reckless disregard" for the plaintiffs copyrights. (Instruction #29). Defendant counters that instruction by pointing to section 504(c)'s three levels of statutory damages: the bottom level, the "innocent infringer," is "not aware;" the middle level is arguably the opposite, one who is "aware" and "knowing." The highest level, willfulness, defendant suggests, is reserved for someone who has infringed with more than "knowledge" of the infringement. While plaintiffs' instruction tracks the language of the case law (including a decision of this Court), defendant' argument comports with the statutory structure. (Gertner, Nancy


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:

Sebastien said...

Is this a silver lining?

To me, Will full infringement would be if I downloaded music off the internet, burned it onto cd's or dvd's and sold them.

Or, if I setup a website or a service, and charged money with the express intent of having people download copyrighted material.

Though, it's pretty clear Joel does not fall under the innocent infringer, I can't see how anyone can call him a will full infringer with a straight face.

Eric said...

http://www.answers.com/topic/willful#Law_Encyclopedia_d_ans

"Intentional; not accidental; voluntary; designed.

There is no precise definition of the term willful because its meaning largely depends on the context in which it appears. It generally signifies a sense of the intentional as opposed to the inadvertent, the deliberate as opposed to the unplanned, and the voluntary as opposed to the compelled. After centuries of court cases, it has no single meaning, whether as an adjective (willful) or an adverb (willfully)."

Jason said...

"I can't see how anyone can call him a will full infringer with a straight face."

Considering that the defendant's own father warned him that he could get sued for infringing music and he did it anyway, indeed, continued to do it even after served with the lawsuit, seems to fit the very definition of wilful infringement.

T2 said...

One should be careful to separate the downloading vs. the uploading actions of Joel.

Downloading is pretty clearly willful: you actively choose a song to download, double-click on it, monitor the progress, listed to the downloaded music, etc.

Uploading is different. Beside the question of distribution, and whether it occurred, it is indeed hard to argue that Joel was willfully sharing his music collection: KaZaa turns on sharing by default during installation, and many users are unaware they are engaging in sharing with others. Since KaZaa users CAN download others' contents without offering anything for upload, there is no incentive to offer uploads "willfully" and risk a lawsuit.

Alter_Fritz said...

IMO good argument T2!

And let Judge Gertner be reminded that the plaintiffs themself stated before this senate (or congress or what ever it was) comittee back a few years that most of the users of this "online media distribution system" are indeed NOT aware that they share certain files or even the whole content of their computers with the world!
So the (not even yet proven!) distribution to 3rd parties other then plaintiffs agents could easily be considered NON willful and/or even totally unintended "innocently" jsut because of the way that the online media distribution system behaved by default!
And "innocent" infringement reduces the figure to $200! Remember that counsel for defendant!!

Eric said...

@t2, during the depositions Joel admitted that he knew people were downloading tracks.

Anonymous said...

t2, the downloading may be "willful" but it is not conduct at issue - and it is not clear that is infringing.

the upload or making available is what is at issue. like ray, I find it tragic that the fact that there is no evidence of distribution of any song to a party not already authorized to receive it is not central to this case. it seems necessary to prove damages, but what do I know.

--steve

Alter_Fritz said...

@eric
but as far as I remember from listening back then to the deposition recordings (*) Joel did not claimed he knew that the things he saw were transfers to 3rd parties.
For what we know, that could have been the (non infringing) uploads to the plaintiffs agents!

(*)
https://cyber.law.harvard.edu/~nesson/tennenbaumdeposition01.mp3 to tennenbaumdeposition06.mp3 (between 44 and 79 MB each!)

Albert said...

Even if the Defendant admitted that he knew others were downloading song files from him, I still maintain that the AMOUNT of damages should be limited by the total amount of time the Plaintiffs can prove he had the filesharing client operating, times the number of average songs that could be downloaded during this time.

Most of these cases never seem to show a range of time. To be accurate, they should be able to say something like I watched this person with this list of files from x to y o clock on date. These times should then be verified by the ISP, otherwise who is to say they monitored the same person during the entire time.

By pleading only a single time, they give the time as "zero", and thus there was NO time for any downloads to take place.

In any case, they should have to plead a range of time, the expert calculating how many MB's could be transferred during that time. The expert should then subtract the MB's of the files the agents of Plaintiffs downloaded, and then calculate the maximum number of download files that the remaining MB's of upload bandwidth, and this should be the UPPER limit on damages.

Clearly it can be shown to a degree of scientific certainty the maximum amount of transfer that can occur in a given unit of time, and thus the Defendant should never be assessed more than this amount.

If the Defendant has admitted knowledge of the uploads, that might affect the willfulness calculation, but in the average case the Defendant very likely had "ZERO" knowledge at the time about the uploads, and thus it should be considered non-willful.

Albert

Anonymous said...

And even if Joel has witnessed an upload or two, it may well have been MediaSentry!

Has anyone ever bothered to ask MediaSentry if they were sharing the files they were downloading? It'd be hilarious if they were. What are MediaSentry's KaZaA settings?

XYZZY

Anonymous said...

Shouldn't they have to prove that someone downloaded a file completely and solely from Joel's machine? Did the mediasentry files come solely from Joel's machine without parts from other kazaa users?

Marc W. Bourgeois said...

The parties will argue this point at the morning break today.