Sunday, March 22, 2009

Obama's Justice Department intervenes on side of RIAA in SONY BMG Music Entertainment v. Tenenbaum

In its first opportunity to demonstrate its position on the constitutionality of the Copyright Act's statutory damages provisions as applied to mp3 files having a market value of 99 cents or less, the Obama Justice Department -- staffed by RIAA lawyers in its 2nd and 3rd highest positions -- has filed a motion for intervention and brief in SONY BMG Music Entertainment v. Tenenbaum which attempts to support the RIAA's statutory damages theory.

The brief:

1. relied upon St. Louis, IS & M Ry Co v. Williams, 251 US 63 (1919) a 1919 United States Supreme Court decision which upheld, as against due process attack, a statute awarding statutory damages against a large railroad corporation which were 116 times the actual damages sustained, in cases involving the rail carrier's overcharging of its customers, on the ground that under the circumstances the award was not so severe and oppressive as to be wholly disproportionate to the offense and obviously unreasonable;

2. relied upon the decision of the US Court of Appeals for the 6th Circuit in Zomba v. Panorama, 491 F.3d 574 (6th Cir. 2007), which held that until such time as the US Supreme Court applies the State Farm/Gore test, rather than the Williams test, to statutory damages, the less stringent Williams standard would be applied, and upheld a statutory damages award equal to 44 times the actual damages, in a case of wilful copyright infringement by a karaoke disc distributor, since 44 times actual damages was less onerous than the 116:1 multiple upheld by the Williams court;

3. conceded that statutory damages are subject to due process review for excessiveness, but argued that the less demanding Williams standard, rather than the higher State Farm/Gore standard, should be applied;

4. attempted to refute the arguments made by the defendant in his brief; and

5. ignored all of the authorities and all of the arguments cited by the Free Software Foundation in its amicus curiae brief.

Department of Justice Motion to Intervene
Department of Justice Memorandum of Law

[Ed. note. (1) Odd, don't you think, that the Government ignored the authorities cited in FSF's amicus curiae brief? Maybe they thought Judge Gertner wouldn't be able to find them, so they'd be better off not mentioning them. (2) Sad that the Obama administration, which purports to be for 'the little guy', supports statutory damages of from 2,100 to 425,000 the actual damages, imposed against 'the little guy', to be awarded to big corporations. (3) Fortunately the courts will probably not be as cooperative, since the Government's brief is noticeably weak and fails to stand up to scrutiny; if that's the best argument, and those are the best authorities, the RIAA's friends can come up with, they're dead in the water on the Due Process issue. -R.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


Anonymous said...

Ugh, this whole thing is awful. It's downright disgusting to see the new DoJ step in and try to prop up these insane damages when everybody knows they are just industry shills.

I can't believe Obama appointed those thugs. So disappointing.

Scott said...

Obama didn't campaign on helping the little guy. He only campaigned on "Change" without specifying what that change was going to be.

Now you know.

raybeckerman said...

The positives about the brief are
that (a) it asks Judge Gertner to defer ruling on the issue until the factual record is developed and a verdict handed down, and (b) it concedes that the excessiveness of a statutory damages award is subject to due process analysis.

Interestingly, the best authority it could come up with was a 1919 decision, in a very very different context and very very different type of statute, which upheld a ratio of 116:1.

Even applying that very high multiple to today's RIAA cases, the statutory damages award for downloading an mp3 file would be $40, which is a far cry from the $750 to $150,000 which the RIAA is trying to claim.

Of course one of the bizarre things about the brief is that it IGNORES Parker v Time Warner, Napster, UMG v Lindor, Atlantic v Brennan, the Texas Law Review article, and the Georgetown Law Review article. That is the kind of 'advocacy' we've come to expect from the RIAA lawyers (witness Lava v. Amurao where their reply briefs never even mentioned the recent line of authorities from the 7th Circuit which defendant had cited), but I am a bit surprised to see it coming from Government lawyers.

Anonymous said...

So where does the circus go from here?

Does Tenenbaum get to file a reply to the DoJ's brief?

Thanks a lot, Obama.

raybeckerman said...

The Court may allow the parties (plaintiffs and defendant) respond to the amicus brief and DOJ brief.

MarcWPhoto said...

Meet the old boss, same as the new boss.

Incidentally, if you saw that headline the other day which went something like:

"Press Banned From White House Press Ceremony,"

you'll already know that all this Change business was a complete and utter smokescreen. We'll close Guantanamo Real Soon Now. We'll get out of Iraq Real Soon Now. We'll stop supporting big [banks, content amalgamators, etc] over ordinary people Real Soon Now. But until then, everybody as you were. Pfft.


Anonymous said...

Well if damages are reduced to $40 each song, I can just see the RIAA citing 200 songs instead 10 to get their money. That would make the investigators work a little harder though.

Mmm (gets out KCalc) 7 MB per song times 200 songs divide 40 kB/sec upload speed is about 10 hours per sharer collecting evidence instead of 30 mins. Might not work so well after all.

Anonymous said...

Honestly, this brief has some good parts. If the statutory damages provisions in the Copyright Act are illegal, then wouldn't the statutory damages provisions in numerous consumer protection and civil rights laws also be illegal?

Anonymous said...

I'm curious about something. You've lambasted the Obama DOJ for hiring RIAA/MPAA lawyers, yet, per the Brief, I don't think any of those particular lawyers are involved with the lawsuit. Couldn't these people be Bush-era holdovers?

Anonymous said...

Ray, you may have found this action from Obama and his appointees disappointing - this man just found it expected.

Barrack Obama is proving out to be exactly what this man expected him to be from well before the election. If you're surprised, or disappointed, then quite simply you didn't know who, or what, you were voting for.

This man's only disappointment is that although he wasn't scammed by slick speeches and impossible promises from a teleprompter president, that he still now has to live in the country that was and pay the price for that until it can be corrected.

His true disappointment is with the 55M voters that actually thought this would be an improvement during these difficult times. Democracy is sometimes far less than perfect, and can require a long time to excise its overindulgences.

{The Common Man Speaking}

Anonymous said...

Sam, nobody argued statutory damages are generally unconstitutional. Here we're looking at statutory damages astronomically greater than actual damages as well as other important factors. You should probably read defendant's and FSF's briefs.


"In establishing the current range of statutory damages, Congress reasonably determined such damages are necessary to compensate copyright owners and deter infringement in the face of new computer technologies.."

In this case, actual damages are small or nothing. And large statutory damages apparently are not an effective deterrent. So I don't see how Congress could have "reasonably determined" the range of statutory damages.


raybeckerman said...

The brief has great stuff in it. It clearly concedes that statutory damages must be subjected to due process review for excessiveness. I cannot imagine Mr. Tenenbaum losing on that issue in the event that there were to be an award of statutory damages of $750 or more per mp3.

raybeckerman said...

I just rejected a comment which was patently written by an RIAA lawyer who refused to disclose his or her identity.

raybeckerman said...

BTW it could also have been rejected on the ground that it made false statements of law without substantiation.

The DOJ's brief concedes that an award of Copyright Act statutory damages is reviewable on due process grounds for excessiveness, something which the RIAA's inept lawyers have argued is "futile".

The only thing "futile" is Matthew Oppenheim's ability to learn law.

Anonymous said...

The only thing you rejected was a viewpoint different than your own held by somebody who has no problem with the copyright law being enforced against those who opnely flout it by stealing the work of others. If you choose to conflate support of the copyright law with working for the recording industry, then I find that very unbecoming.


raybeckerman said...

Above anonymous comment is from the same shill who wrote the rejected comment.

If you identify yourself, Anonymous abcdef, or if you avoid making unsubstantiated misstatements of fact or law, you are welcome to post here.

I am a lawyer. I treasure debate; I detest falsehood and deception.

Anonymous said...

Maybe this case does not have the right players to resolve this situation, but I sure wish statutory damages would go away.

I understand the concern with situations where the cost of determining damages far exceeds the actual damage, but setting a fixed minimum value is a horrible way to address this. Once you remove the requirement for the plaintiff to assert their damages, there is no way to allow for due process. When no value claim is made, any fixed value award will be an infinite amount of times greater.

If congress had attempted to allow due process, and had (hypothetically) determined that a 10 times multiplier was appropriate, then in order to claim a $ 750 award the plaintiff would have to show $ 75 in actual damages. This does not seem to be an excessive burden on the plaintiff.
Even if I still though this was excessive, at least I would not be liable for damages that never occurred.

Given how easy and how often things are copied when using a computer, and how difficult it would be to get approval from all Copyright holders in advance, I am looking for some relief from all of the liability that I have as a result of the Copyright law. Setting up a bounty system for Copyright holders is not in my best interests.

just a biased observer

raybeckerman said...

If anyone ever seriously contested these cases, it is unlikely the RIAA could recover statutory damages on each of the songs; in some of the cases they couldn't recover statutory damages on ANY of the songs.

Anonymous said...

This man questions if it is an actual positive to defer the ruling on this issue until much further down the line - provided that this case ever comes a final decision. Until it is overturned the status quo remains unchanged not only for this Defendant, but for all similarly situated defendants. As such, statutory damages remain in place until some judge somewhere finally does rule otherwise.

To this man, keeping everything as it is now in a case that is likely to be settled or dismissed rather than fully litigated only benefits these Plaintiffs in their pursuit of terror, aided and abetted by unconstitutionally excessive fines with no relationship to any actual damages, into the foreseeable future.

That does not sound like a positive to this man.

{The Common Man Speaking}

raybeckerman said...

In the real world, it is a positive.

A judge isn't going to hold a statute to be unconstitutional based on the theoretical possibility that it might lead, somewhere down the road, in some cases, to an overly large judgment.

raybeckerman said...

The practice of law takes place in the real world.

Anonymous said...

"St. Louis, IS & M Ry Co v. Williams, 251 US 63 (1919) a 1919 United States Supreme Court" ... 1919 the year that prohibition was established … BTW, wasn’t that found to be unconstitutional also?

Anonymous said...

It is sad to see the state of education these days.

Prohibition was enacted as a amendment to the Constitution.

It there for became a part of the Constitution, so it could never be found unconstitutional.

So was the amendment which repealed prohibition.