Wednesday, February 24, 2010

Tenenbaum case argued, decision reserved

According to a news report in the Boston Globe, the SONY BMG Music Entertainment v. Tenenbaum motion was argued yesterday, as scheduled, and decision reserved.


Commentary & discussion:

p2pnet.net


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

7 comments:

Interested said...

Out of curiosity, have any other courts heard oral arguments on the specific question of the constitutionality of copyright damages? This is a new question in the context of file sharing cases as only Thomas and Tenenbaum have been fully tried with this issue raised. I'm not aware of defendants in any other copyright cases (e.g. commercial infringement) having raised this particular issue.

From my experience, oral argument in federal courts tends to be infrequent outside of the trial setting - especially given electronic filing. I'd be interested in finding out whether judges are becoming more willing to broach this issue.

Ray Beckerman said...

I have no knowledge of it having come up in oral argument in any other case, or of it even having ripened as an issue in any other case except Capitol Records v. Thomas-Rasset. And in Thomas-Rasset the Court did not require oral argument.

So this is the only instance of which I am aware.

I wouldn't read anything into it. Some judges like to have oral argument, some don't. Some times a judge feels oral argument will serve a purpose, sometimes they feel it wouldn't. Judge Gertner wanted it, Judge Davis didn't. That does not a trend make.

In this case I have a hunch the only reason oral argument took place was that (a) at the time it was scheduled, there were a raft of other motions to consider, so scheduling a hearing was a good way to conduct housecleaning, make sure there were no loose ends, and (b) by the time the argument was imminent the other loose ends had been eliminated, and yet it was on the calendar, so why cancel it?

If the constitutionality of the verdict was the only issue before Judge Gertner, I don't think she'd have even bothered with an oral argument, because the law is pretty clear on this issue.

It's even clearer than I initially thought, because it is my understanding that the First Circuit -- which is the appeals court for the District of Massachusetts -- has already been applying the Gore/Campbell standard to statutory damages.

Query whether the RIAA lawyers breached an ethical obligation by not disclosing that case to Judge Gertner?

Justin Olbrantz (Quantam) said...

Well, logically, the constitutionality issue is mainly specific to file-sharing, due to the nature of the copyright laws themselves. In commercial infringement there's usually a significant number of copies of each work infringed, so the actual damages is closer to the permissible statutory damages, in the hundreds or thousands of dollars (or more). File sharing is about the only place where you have large numbers of works being infringed with 1 or 2 copies each, resulting in actual damages in the dollar bills yet statutory damages in the tens of thousands to millions of dollars.

Anonymous said...

"Well, logically, the constitutionality issue is mainly specific to file-sharing, due to the nature of the copyright laws themselves. In commercial infringement there's usually a significant number of copies of each work infringed, so the actual damages is closer to the permissible statutory damages, in the hundreds or thousands of dollars (or more). File sharing is about the only place where you have large numbers of works being infringed with 1 or 2 copies each, resulting in actual damages in the dollar bills yet statutory damages in the tens of thousands to millions of dollars."

Actually, amateur mix tapes and other similar things should raise exactly the same issues. Except that record companies used to understand that mix tapes were not an appropriate thing to sue people over. There's a very strong argument that they're fair use; there is absolutely no good argument for making them illegal.

--NN

Justin Olbrantz (Quantam) said...

"Actually, amateur mix tapes and other similar things should raise exactly the same issues."

That's true. Though as you point out file sharing is still the first time this type of situation has ever been brought to court, and thus the statutory damages actually applied.

Anonymous said...

"Actually, amateur mix tapes and other similar things should raise exactly the same issues."

But for the fact that audio quality noticeably degrades with each subsequent generation of copies in a mixtape, and that the potential audience for a physical copy is limited by the number of people in a social circle and the cost of the medium used to copy it.

Whereas, with digital files, there is no financial cost to the infringer to disseminate copies, the P2P audience is essentially infinite, and the first copy or the millionth copy retain the fidelity of the original.

So in those respects, they have nothing in common.

-JR

Ray Beckerman said...

JR, your understanding of p2p filesharing software is way off base if you think you've just accurately described how it works.