Friday, July 31, 2009

RIAA awarded $675,000 in Sony v. Tenenbaum

BY MARC BOURGEOIS

Jury finds Joel Tenenbaum willfully infringed Plaintiffs copyrights in all thirty works. Awarded $22,500 per work for a total verdict of $675,000 for the Plaintiffs.

Docket entry for day 5 of trial:

Electronic Clerk's Notes for proceedings held before Judge Nancy Gertner: Jury Trial DAY 5 (Frid) held on 7/31/2009....Dft's call Wayne Marshall; PLF & DFT RESTS; Closing arguments begin; Jury Charge; Exhibits 1-59 stipulated on record; exhibits to jury room, deliberations begin. Jury Verdict Returned in favor of the Plaintiff's, see jury verdict for details. All exhibits returned to counsel, jury excused, court adjourned. (Court Reporter: O'Hara.)(Attorneys present: Atty Reynolds, Cloherty, Oppenheim, Nesson, Kamholtz, Feinberg) (Molloy, Maryellen)


Jury verdict

[Ed. note. No surprises there. See "Have any of the actual issues been dealt with in SONY v. Tenenbaum?"-R.B.]



Commentary & discussion:

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27 comments:

Anonymous said...

Not bad. Big enough to be clearly unconstitutional, but not so big that it would totally ruin the rest of Joel's life.

Good illustration of the random nature of jury decisions under present law as well.

2L student

The Common Man Speaking said...

It was a disgusting verdict and that jury should be more than ashamed of themselves for so immensely overpaying those RIAA thieves. And don't forget to add in all the legal costs which are sure to push the total value of this fiasco over $1 million to this Defendant.

That result only drives this man even harder to never give the RIAA and its affiliated companies another hard-earned dime from his own pocket. Music comes for free over the radio, is available from independent non-RIAA artists, and isn't essential in life anyway.

TheBigDW said...

Anyone think he'll will appeal?

Anonymous said...

"The plane, the plane..." Lessee, by my math $675,000/30 = $22,500. For $1 songs. At the rate of $1000/week it will take almost 13 years, at $2000 per month over 28 years... Who needs, food, clothes, or shelter anyway?

What's next, the return of debtor's prisons? Star Chamber? See also:
http://www.gnu.org/philosophy/right-to-read.html

digger

Anonymous said...

Um... question on this amount. Is it a coincidence that $750 per song would have been $22,500? I wonder that because I'm wondering if a form the jury filled out was requesting an amount per "infringement" rather than a total amount. Didn't we see something like that in Thomas-Rasset also?

- Andrew

Anonymous said...

The players have been introduced and the overture is over. Now the main act can start as we watch Charlie Nesson argue that a judgement of over 20,000 times the actual damages is unconstitutional. Let's wish him well and hope he hits the right notes from now on to climax with a stunning finale.

ChrisP.

Anonymous said...

He had the songs in a share folder on a p2p service.is it not reasonable to assume that 22,500 people took each of these songs from him given the millions of simultaneous users? That's the damages right there. If jt wasn't going to even try the various strategies laid our by ray in defending this, why try this case at all? --

Facebone

T2 said...

Joel said he did download and was aware that others were uploading from him. Maybe he knew how to turn off uploads (while still allowing downloads), maybe not: at a minimum, he could uninstall KaZaa and stop both uploads and downloads. So the uploads were willful insofar as he could -but did not take action to- stop them.

As such Joel is emblematic of many geeks of his digital generation. Technical enough to use P2P and other cutting-edge technologies, and aware of how these technologies operate at a high-level, but not so technical as the (far fewer) hackers who can hide their tracks.

This class of young people is different from the average user of KaZaa, who has little idea what KaZaa does besides being the "Google of music": they are well aware of their downloads, but very often not of their uploads. Until Joel's testimony, I had assumed he was a member of this class, but Joel set me straight.

In an odd way, I was glad to read Joel's testimony: he sets himself apart from the (many, if not most) other RIAA cases. Trials is this "parallel universe" have little that carries over to normal trials, and Joel's testimony (even admission of liability, however unqualified he is to make it) can be used to direct other judges, in other cases, to refrain from using this case as a useful precedent. And, in the same odd way, I am glad all the triable matters that Ray had listed in his posts did not come up: I would not want them botched and mishandled, creating a bad precedent.

As for Joel, well, he appears to me like the kid who smokes dope. In some circles (the Internet being a huge virtual one), everyone (meaning, in practice: enough people that one does not feel singled out) does it. And it's as harmful as drinking beer or smoking. Beer is legal, dope is not. So Prof. Nesson seems to want to argue all the way to the Supreme Court to legalize dope/P2P (or lower the sentence for using dope/P2P down to levels that enforcement doesn't pay off). Maybe Prof. Nesson is using a hapless Joel (I doubt it since Joel's mother is of the legal profession); or Joel is banking on martyrdom for the sake of his generation (at 25 or so, he may still be an idealist); or something else. I can't know; I just hope *they* do, esp. Joel, and are aware of the pitfalls in the path they have chosen. I can only wish them luck in their adventure --- they'll need it.

As for the rest of us, and those young people who use P2P without really understanding what they are doing, it's best we stay grounded to the present laws, and follow Ray's practice tips.

And, finally, as for the RIAA and the labels, they are on their way out anyway. Copyrights are not enforceable when vast troves of content can be reproduced with home or portable equipment (a computer, netbook, and, soon enough, cell phones) in minutes (soon enough in seconds), and carried in a tiny flash drive that holds multiple gigabytes. Not saying it's right or wrong, just saying it is so. Rather than being left with the memories of all the wonderful music the labels helped make last century, I'll remember them for their witch hunts and the goons they hired. Eh, their choice.

Microsofthater said...

If Neeson brings it up on appeal, the whole trial will have to be done over because of the judges directed verdict. I cannot imagine how he would not bring it up without displaying total incompetence.


It's a shame because while not everything Ray wanted to happen a few things were going to be settled. Now we are back to square one.

Ray Beckerman said...

Dear anonymous facebone

Last I heard plaintiffs were still required to prove things.

Anonymous said...

I did not realize that a judgement was rendered in favor of, and damages awarded to, the RIAA.

The Common Man Speaking said...

@Facebone

Are you totally clueless, or do you just play that role on this blog?

To have "distributed" even one song to 22,500 people let alone 30 songs (30 x 22,500 = 675,000 songs x 3MB/song = 2,025,000,000,000 bytes) is outright impossible over any home connection.

Either you know nothing about the relatively few songs even the most active P2P user on a very fat pipe could actually upload and you should just shut up, or you're just an RIAA troll who thinks he can cleverly make the unreasonable sound reasonable and you should just shut up.

Matt Fitzpatrick said...

Jury instructions may as well have read: "Here's the bottom of the dartboard, here's the top. Have fun!"

Since juries can't research other copyright offenders, such as large scale commercial infringement enterprises, is it any wonder the three RIAA filesharing juries so far have picked numbers, oh, somewhere in the middle? No context, no way to see where the Joels and Jammies of the world rank as purported menaces to the economy and the arts.

"Willful" being the confusing legalese word of the week didn't help, either.

Anyway. Constitutionality of the damages was always going to be the most important part of the case, in my opinion, so let's keep looking forward.

SK said...

I wonder if the jury even looks at the amount of money they're awarding and think about how long it'll take him to get the money to pay "the damages" (if he pays it).

Anonymous said...

"Last I heard plaintiffs were still required to prove things."

Unless you're the RIAA. It seems like they can do anything that they want with impunity.

I sometimes wonder why the judges, who appear to have a handle on what has been going on the past 5 years, all of a sudden go brain dead when faced with actually having to make intelligent rulings.

Perhaps they become afraid of "horseheads".

TomasG

Neil said...

The only thing I can hope with this case is that the Professor was hoping to lose this and setting the RIAA up for some hard round two appeals. I just can't belive he didn't once mention Daubert at least with MediaSentry without having an ulterior motive for not doing so!

Common Man you can't blame the jury! They were handed instructions, bad ones, from the Judge within which they had to make their decision.

Kevin said...

the size doesn't matter because Joel can just declare chapter 7 and get the judgment debt discharged because RIAA would have to prove willful and malicious injury, which they can't. Plus THEY will have the burden. If this doesn't get thrown out on due process grounds on appeal, thats too bad. But I don't feel bad for joe. He could have taken a reasonable settlement. Now all he will have is bankruptcy on his record, not a biggie.

Anonymous said...

Is this practise that RIAA is using that they increase the settlement amount every time they try to settle valid? It seems somehow unfair to those that gets accused of infringement. Seems if you have no money to get the first settlement(or if you refuse the first extortion demands when you have no information about details of their claims), you need to go to courts and get $675,000 instead? Most people who notice their exponential increase scheme will have no alternative except to settle to keep it from growing over the limit of what they can afford. I don't see how this can be valid, recardless of whether their liability arguments have any content in it. Courts will get defendants who have no money, instead of those who have valid reasons to oppose RIAA operation.

Jason said...

"Is this practise that RIAA is using that they increase the settlement amount every time they try to settle valid?"

This is standard practice in any litigation setting, whether civil or criminal, and isn't something made up by the recording industry plaintiffs. Settlement offers are fluid, changing by the minute based on the details happening in the litigation. They will almost always be lower the earlier they are offered, and in this case -- where the defendant wasted time by filing frivolous motions and obscuring his lies as to liability -- it's no surprise that any offers went up as time went on because it has to reflect the increased cost to the plaintiffs and the mounting strength of the evidence.

Even a law student from a bottom tier diploma mill, after seeing the evidence, would've counseled the defendant to settle immediately because anything less than 750/work would've been a smoking deal.

That nobody did this only highlights the ludicrous nature of the defense team.

Ray Beckerman said...

Not true at all.

Usually the parties move CLOSER to each other rather than FURTHER apart.

There is nothing about the process with the RIAA that resembles "settlement"; it much more nearly resembles "extortion".

MicrosoftHater said...

While I'm not happy with the verdict in either Thomas or Tenenbaum, I can't help but feel that the verdicts are in part the result of civil litigation attorney's chickens coming home to roost.

McDonalds was sued for millions for serving hot coffee, despite following National COffee Association guidelines on temperature.

Dow Corning had to declare bankruptcy because of lawsuits claiming that their silicone breast implants caused health problems. Despite later studies showing that the implants were not the cause of the problems. So women who really needed the implants ( eg mastectomy patients ) had less choice. So did the heart patients who needed stints for their angioplasties.

In areas of the country doctors practicing certain specialities have either quit practice or have moved because of the high cost of malpractice insurance, in part due to lawyers that channel unborn fetuses, leaving a desperate need for doctors.

For a long time civil litigation attorneys have preached that corporation and some people had to be punished with high awards. They have been so successful that that attitude now applies to all people.

Now don't get me wrong, I believe that entities should be held liable for their misdeeds, but to claim that they are at fault for some stupid woman holding her coffee between her knees before opening it...

Shane said...

@ MicrosoftHater, who wrote
"McDonalds was sued for millions for serving hot coffee, despite following National COffee Association guidelines on temperature."

Um, no, MSH, the McDonald's 3d degree burn case was an example of tort done right.

McDonalds's knew its undrinkablely hot 180 degree coffee was burning people, coffee they pour into flimsy coups and hand to people who are driving cars, which all but insures that if any coffee is spilled it will land on their body and instantly scald them, but McDonald's decided to pay claims rather than to lower coffee temperatures to safer levels.

The woman in question received 3d degree burns down to the bone and had to be given skin grafts. She asked McDonalds to pay her hospital bills and nothing more. They refused so she had to sue them. The jury decided to award punitive damages (designed to punish McDonald's willful behavior) by awarding 3 days worth of coffee sales profits, an award which was reduced on appeal.

That was litigation done right on behalf of a litigant who had suffered actual damages and punitive damages awarded as **punitive** damages against a recidivist defendant. That bears no relationship to the RIAA cases.

Kilz said...

Sadly the representation Joel received , at least imho was worse than if he would have just followed the advice of this (or other) site(s) and represented himself.

derivative said...

I'm still trying to figure out if Prof. Neeson is crazy, or "crazy like a fox."

Many aspects of the defense were apparently bungled. By admitting he lied earlier, admitting he shared music files, and "admitting liability", Tenenbaum aided and abetted this process. By a few of her rulings, the judge also aided this process. By being their normal cheerful selves, the RIAA certainly helped, and by general craziness, Neeson practically asked for this verdict. Apparently, the judge put Tenenbaum in contact with Neeson. Coincidence?

As others have pointed out, Joel is probably young, idealistic, and asset-free, so the award is practically meaningless.

We know that one of the overarching issues for Ray, Neeson, and everybody else who cares, is the constitutionality of the statutory damages.

We also know that courts hate to reach constitutional questions. They will do half-somersault double backflips into a dry pool to come up with reasoning that does not have to address a constitutional question.

So maybe the goal was to try to tie up all the non-constitutional loose ends in a package with a neat bow, to force an appeals court to tackle the constitutional question head-on.

So, now we have two cases (Tenenbaum and Thomas) with (apparently) relatively unsympathetic defendants, which are possibly primed for an appeals court to take on the constitutionality question. I'm sure a different lawyer could have done a much better job of not letting it get this far, and (even at this late juncture) might be able to appeal some of the more egregious aspects of either case (such as jury instruction), but maybe that's not the gameplan. Maybe the entire game is about getting into "check" so deeply that the opposition never sees the "checkmate" coming which will limit their recoverable damages to $4.00/song.

After all, at $4.00/song, the issue of what constitutes distribution becomes practically moot for most of these victims -- share 30 songs, write a check for $120.00. Annoying, but not economically devastating. To regain cost-effectiveness, the RIAA lawsuits will have to concentrate on fewer defendants (only those who shared thousands of songs), and the defense teams can then regroup and coalesce around this smaller number of defendants to tackle the actual copyright law questions.

Or maybe (and more likely) I'm just idealistically dreaming again.

Anonymous said...

@derivative:

I only hope you are right.

Kevin said...

I think this strategy of going after individual infringers will never work out, and the RIAA has finally realized that (suspending initiating anymore lawsuits).

The best way to put a dent into mass sharing of music is to go after the facilitators: namely p2p and bittorent sites. Once these people start putting safeguards in place to prevent the sharing of copyrighted files, I think the amount of filesharing will go down to a reasonable level, one the RIAA will be forced to live with.

You can't change human nature, wanting stuff for free. But you can make it difficult for the average joe to file share by forcing the middle man to put in safeguards.

Anonymous said...

Kevin, if you really think anyone can slow down filesharing, you should probably do some more research on the subject.

https://secure.wikimedia.org/wikipedia/en/wiki/Darknet_(file_sharing)

The trick would be to not try to stop filesharing but at the same time to compensate artists for what they create. If possible. Then the pointless quest of trying to stop P2P could end.

XYZZY