Gertner’s Ruling on Damages
Posted by Debbie Rosenbaum
Almost five months after we last sat in Judge Gertner’s courtroom requesting that she either reduce the damages or award a new trial, Judge Gertner finally made a long-awaited ruling today.
In our motion to the court, we argued that that the jury’s award of $675,000 in statutory damages was grossly excessive and thus violated the Due Process Clause. In her decision, Judge Gertner agreed, and reduced the damages Joel owes to $67,500 — one-tenth the original sum.
“Reducing the jury’s $675,000 award,” she wrote, “also sends another no less important message: The Due Process Clause does not merely protect large corporations, like BMW and State Farm, from grossly excessive punitive awards. It also protects ordinary people like Joel Tenenbaum.”
Judge Gertner noted that $675,000 was far greater than necessary to serve the government’s legitimate interests in compensating copyright owners and deterring infringement. In fact, she called the damages previously awarded “simply unprecedented and oppressive.”
We feel vindicated that Judge Gertner agreed that $675,000 was an unconstitutional award. But it is only a step along the way toward recognizing the abusiveness of the RIAA’s litigation campaign. The next step is to demonstrate that Joel was denied a fair jury trial when Judge Gertner told the jury in her instructions that it could award an unconstitutionally excessive amount.
A $67,500 pricetag for 30 songs is still a bill Joel cannot afford. Even Judge Gertner added, “Significantly, this amount is more than I might have awarded in my independent judgment.”
Songs on iTunes are about $.99-$1.29 a piece. What do you think of Judge Gertner’s decision? Chime in under comments or email us at joelfightsback@gmail.com.
Judge Gertner seems to be a fine example of a typical judge of this era: dumb as a box of rocks and ready to hand down legal decisions that are nonsensical, medieval and guaranteed to be thrown out on appeal. These pigs think nothing of wasting taxpayers’ money litigating cases that should have been thrown out of the first court they appeared in. Now this case gets kicked upstairs to be reviewed yet again and hopefully a more reasonable fine could be imposed: $30.00. Fair market value for the infringement.
If Gertner thinks she is being fair by imposing a fine that is 2250 times the market value of the 30 songs, then she’s an idiot.
What a waste of time and money for everyone involved! How much money has the RIAA already spent litigating this case? Now they stand to reap a tiny fraction of that cost. Congratulations, morons! If only the brain trust at the RIAA had spent their time creating an “iTunes” 10 years ago instead of scheming to rig the law to allow the wholesale robbery of people who want to share their music libraries with their friends. But that would be too much to expect from scum like the RIAA.
Keep me posted on the case if you would be so kind. In the meantime, let’s get 67,500 people ready to send in 100 pennies each to the RIAA’s offices on Joel’s behalf in the event that the appeal fails.
Thank you all for fighting this naked attempt to use the judicial system to allow the music industry to destroy the lives of their prospective customers.
Mark Donaghey
Chicago, IL
Mark Donaghey said: “Thank you all for fighting this naked attempt to use the judicial system to allow the music industry to destroy the lives of their prospective customers”.
Gee Mark, perhaps you’re a bit slow … opportunistic thieving people who engage in this type of bilking aren’t “prospective customers”. Your type are not any type of customer at all, and were that not the case, then Joel wouldn’t be in the predicament he’s in. You guys are the anti-customers, the antithesis of a customer. You have a lot of chutzpah calling yourselves CUSTOMERS at all. How about YOU go to work for FREE every day Mark? Or perhaps you’re just too GREEDY to work without remuneration?? Can’t practice what you preach? What kind of a scumbag expects a musician to spend his life honing his craft only to have done it sans monetary compensation? It’s a rhetorical question Mark …. it’s your kind. And Joel’s evidently.
Leif, I hate to break it to you, but the *AAs are not able to take the moral highground in this situation.
You’re defending the same group on the receiving end of a class action suit over putting songs on mix disks without authorization or compensation.
http://www.techdirt.com/articles/20091207/1201017234.shtml
First of all, I can’t believe how few comments this site gets.
Second of all, DAMN YOU LEIF WILLIAMS. The money you pay for on CDs or iTunes goes straight to the labels and not the artists! By downloading music, I’m able to help the artists earn money through radio/TV royalties, advertisements, concerts and merchandise WITHOUT ANY MONEY GIVEN TO THE LABELS OVER OTHER PEOPLE’S WORK (which is similar to selling pirated DVDs, only legal…downloading by the way is non-profit). To quote Kid Rock, “Wait a second, you’ve been stealing from the artists for years. Now you want me to stand up for you?”
Last of all (maybe I should have used firstly, secondly and lastly) if downloading is stealing, then so is borrowing a CD/book because lending deprives the content creator/labels of a potential sale! I mean, who’s gonna buy if everyone borrows? It’s like photocopying a book. You can return a book/CD, but you can’t return intellectual property by the way.
And thank you for those inspirational words Mark Donaghey. The RIAA has spent so much for 67,500, but obviously, it expects a boost in sales such that they would be compensated for the money the spent on this trial minus 67,500 they MIGHT get. They are DEAD WRONG. By trying to achieve something it cannot by failing to adapt with the times, it has ultimately caused its own downfall. People are going to buy less and download more because of their pathetic SLAPP.
To quote Magneto, “Mankind has always feared what it doesn’t understand.”
And one more thing to Leif Williams, the car industry put out the horse and carriage business. Why didn’t the horse and carriage business sue? I’ll tell you why — that’s just life! You HAVE to adapt.
The only permanent thing in this world is change. It’s do or die for the RIAA. It has to change their distribution model (like the one suggested by Mark D. Pesce — youtube.com/mpesce), or artists and consumers alike will soon be independent of it.
you knew it was illegal, you knew there was the penalty when you broke the law. dont whine about the fine. you gambled…you lost. you cant ask the dealer for your chips back.
I thought the argument for the lower amount was very good. Joel, smile next time you are in a restaurant, bar, or other businesses that plays unlicensed music.
Andy,
Yes, he was found guilty of infringement, but how much do you want to penalize him for it? The plaintiffs went for around 2,000 to 3,000 times the actual damage caused by Joel’s behavior, which if I remember correctly falls under the “no cruel and unusual punishment” clause.
Joel only caused about $30 in loss, so he should pay for the rest of his life????
IMHO, Judge Gertner should have smacked down the penalty to around $2,000. That would be more in line with what I would consider acceptable. But the way the law is written (which is again IMHO) is out of date with the times.
The only reasons the paRIAA’s want ( or need ) to have a huge financial judgement against anyone they take to court is so:
1. They can to recoup the expense of the attorneys (read scumbag lawyers) they use. These high priced hitmen don’t come cheap.
2. They have to scare people into using a distribution channel that they control, but is seriously outdated by current technology.
3. They can maintain their strangle hold on new and current artists. Do you think that even a penny of this judgement would go to any of the artist? If you do, I have some beach front property for sale in Arizona ( it even includes a deep water dock ).
I think that the tide is really turning, albeit very slowly, against the paRIAA. It’ll take a few more of these cases to go to court ( if there are any that are still outstanding ) before we see any real change.
Until then, keep it up Joel!
Awww, I was hoping he’d be fined even more!!! BOOO JUDGE!!!
“With this decision, the court has substituted its judgment for that of 10 jurors as well as Congress,” RIAA said in a statement.
Hate to interject a little reality here but, the damages are set by Congress and the award was determined by an impartial jury.
Interesting to hear the usual, ‘oh so 2003′, railing against the labels when both parties went to court, in front a judge who was very sympathetic to Joel. He had a laughable defense, as was Jamie Thomas’ by the way, and once again p2p’rs couldn’t muster a legal argument that swayed anybody. Your activities are illegal. If you don’t like the rulings, go to DC and change copyright law (aint gonna happen) or amend the constitution (aint gonna happen) or cease the illegal activity. That how things work in America. We have a constitution with an article 1 section 8. Read it sometime. It gives the author and inventor –not Joel–the exclusive copyright — ‘right to copy’ if you need clarification. Joel copied, got on the wrong side of the constitution. End of story.
To the nameless chicken$hit who signed on as “Leif Williams Hater”, first of all, it’s interesting to banter w/12 yr. olds here. I didn’t realize your demographic was ‘on top’ of this one. Let me clue you in to a few realities re: royalties since you’re oblivious. OF COURSE royalties aren’t paid directly from CD’s or iTunes to the artist’s (typically). You don’t think the artist’s writing the music, spending month’s recording it, and touring the recording is enough? What do you think publishers and Harry Fox are for?? It’s their job to collect the royalties, and that’s what they do so the artist’s can get paid. There are relatively few problems with mechanical royalties (look it up); there are more issues with artist royalties (again, look it up … you’re only worth so much time). The conflicts dealing w/artist royalties usually mean that an artist is getting a LESSER royalty than they are due; yes, there ARE crooks in the music biz. What YOU and your ilk would rather do is ensure the artist’s get NOTHING AT ALL … EVER for their recorded output … by completely STEALING their goods. Then, and here’s the good part, to ASSUAGE your guilt, you tell yourself that you’re doing them a FAVOR because your STEALING their music helps them earn money w/radio and ads, etc. Are you BRAIN DEAD? The mind boggles. Your true objective is to fabricate a scenario that will absolve you of any wrongdoing. Why not face facts … you’re a unconscionable scumbag who doesn’t mind stealing from others’ lively-hoods. Does that bother you? Of course not; you wouldn’t do it to begin with if it did. At least Joel doesn’t do it anymore.
Guess I wan’t over it after all.
To Lief Hater;
One comment to which I have to respond. “the car industry put out the horse and carriage business.” That is an absurd analogy. The product, recorded music, has not changed or been replaced by a superior product. It is still in high demand. Lots of money is still being made, just not by the creator. What has changed is the distribution model. Now, according to you, it should be free regardless of the cost of creating it. If, in the early 1900’s there had been a way to steal cars as they came off the assembly line would that have been OK? I guess by your logic it would be because you disapproved of the dealership system.
1 Artists != Cartels
Joel Tenenbaum infringed on the copyright of the CARTELS. The ARTISTS are not losing from file sharing. In fact, they have much to gain. When purchasing CDs or songs on iTunes, the money go straight to the cartels. Kid Rock confirms this. The artists are earning A LOT MORE from file sharing. How? Concert attendance, TV and radio royalties,
Examples: Radiohead, Lily Allen, Green Day, Joss Stone, Kid Rock, System of a Down, Paulo Coelho, Nine Inch Nails AND NOW METALLICA
2 Copying
If copying a song is stealing/infringing, then so is photocopying a book or even lending a book/CD.
It’s the same as Betamax. That’s why Grokster won twice before it lost. Greedy capitalist cartels and their obstruction of justice…
3 Inevitable
The legality or morality of file sharing is irrelevant compared to its inevitability.
4 Outrageous
Is 67,500 dollars really a just punishment if ever Joel did something immoral/illegal at all? It was JUST 30 SONGS! Come on! The RIAA is making Joel suffer on behalf of the world’s file sharers.
5 By the way, to overit, I think Lief Hater meant that the car was a new transportation model. File sharing is the new distribution channel. It’s not analogous in product but probably in…I dunno something.
Leif Williams, the fallacy you are committing is that file sharing is the same as stealing from a store. However, isn’t borrowing a DVD the same thing as downloading the torrent from ThePirateBay? 1.) I watch the movie and 2.) I don’t pay for it. The lender may get back the DVD, but I still REMEMBER the movie.
http://www.techdirt.com/articles/20100712/23482610186.shtml
Who here knew of Rick Astley before a random person decided to *commit copyright infringement* on YouTube and start the Rickroll phenomenon? Do you think Rick Astley would have been able to make an appearance in the Macy’s Day Parade, nighttime talk shows, go on tour, and jumpstart his career again were it not for copyright infringement?
Copyright holders themselves use fake copyright infringement on the internet on sites such as YouTube as a form of marketing. For example, in the Viacom vs. Google/YouTube lawsuit it was revealed that Viacom used tactics such as uploading their content from Kinkos and using third party marketing firms to upload their content to hide the ultimate origin, but then they turned around and sued Google for the presence of their content on YouTube. In fact, this practice was so prevalent Viacom actually filed take down notices on content they themselves were responsible for uploading.
What about mashups like user-created music videos? They generally have an untouched song at full length and unrelated video set to that song. Do I owe the RIAA and Japanese animators thousands of dollars for all the AMVs I’ve watched over the years? Nonsense. AMVs have encouraged music purchases and rentals via Netflix from me by introducing things I had never encountered before.
This issue is not as black and white as it is with theft of real physical goods. A song downloaded is not a sale lost; it’s a sale potentially lost, but it’s also a potential customer gained if that song then encourages album, merchandise and concert sales.
It seems to me that large copyright holders want it both ways: they want to use modern distribution platforms as means of anonymous viral marketing when it suits them, but they don’t want the average person to be able to do the same; do as I say, not as I do. Then they expect the law and the consumer to be on their side.
Bypasser, Isaac, you both, as is the case with most in search of rationale to ease their sense of guilt, are not being realistic. For ‘megastars’ with millions in the bank, national/international touring itineraries, merchandise, and all the other bells and whistles, the brunt of decreased income from digital theft will be relatively marginal (though still existent, and wrong). The fact is, they are the relative few; MOST of us don’t mount national tours, sell t-shirts, do TV, etc. Ergo, that is a red herring. For the rest of us, that loss of income hurts immeasurably. The millionaire superstars can take the hit; the rest of us ‘fringe’, ‘breaking’, or downright newbie acts will very simply be screwed out of what should rightfully be precious income. Anyone not sympathetic to the plight that will befall the lesser names in ‘the business’ can number themselves amongst the dregs of musical ‘fandom’. Come on Joel, this is your blog ……. STEP UP AND ADVOCATE to preserve your sense of ethical stature. It’ll make you feel good.
Leif Williams, you are the one who has no ethical stature. By buying music, you are supporting the conglomerates and not the artists.
http://techdirt.com/articles/20100712/23482610186.shtml
http://www.techdirt.com/articles/20100201/0234157986.shtml
Kid Rock:
The performer—whose real name is Robert Ritchie—said his record company Atlantic had asked him to “stand up for illegal downloading” a few years ago because it told him “people are stealing from us and stealing from you”.
“And I go: ‘Wait a second, you’ve been stealing from the artists for years. Now you want me to stand up for you?’
“I was telling kids—download it illegally, I don’t care. I want you to hear my music so I can play live.”
Also: “iTunes takes the money, the record company takes the money, and they don’t give it to the artists.”
And Paulo Coelho: “A person who does not share is not only selfish, but bitter and alone.”
youtube.com/watch?v=bdvL3FBwHEc
Leif, I’ll note that you completely ignored my statement about Rick Astley. He was a forgotten NOBODY in the year 2007 when COPYRIGHT INFRINGEMENT put him in to a global spotlight. Rickroll has been viewed tens of millions of times, by your logic YouTube must owe Rick and his contracted companies umpteen quadrillions of dollars by now. Yes, this is a fringe case, but it — and all the other cases like it — demonstrate that draconian copyright laws are NOT the answer.
Again you’re assuming that a song downloaded is a dollar lost. It’s NOT.
I get the impression that you’re in the music business. Do you offer sample songs available for streaming or download for free? If so, do you consider it a loss of a sale every time somebody listens to one of those free songs? Are you against public libraries where one can get books, music and movies in their entirety completely free? What about user-created remixes on sites like YouTube? What about copyright holders that subvertly upload content that baits people in to piracy? (See Viacom above) Do we get to reverse-sue them for entrapment?
I think you’re letting your surface fairness reaction to guide your opinion in this matter. At first glance the ability to consume content such as music for free logically should affect sales, but the reality of studies show that it doesn’t. There are even people here such as myself offering personal anecdotes where it doesn’t. To me, the most important factors in determining whether I’m interested in something enough to buy it is the quality of the product and my personal attachment to the person(s)/group/etc. that is producing the product.
More personal examples:
I’m a fan of The Minibosses. They are a niche music group that offers their music 100% free. Whenever I see them offer merchandise I buy some of it because I think they’re awesome and deserve my support. I wish I could pay to see them in concert locally.
I’m a fan of The Oatmeal. I can view his comics 100% free on the web. I could even print them out on my own if I wanted. But I just bought a poster of one of his comics that I particularly enjoy. I wanted to support the guy behind the content, and I got a physical product of higher quality than I would be able to produce for free on my own.
I’m a fan of A Perfect Circle. Many years ago I pirated one of their albums before it was released in stores. I even gave this pirated copy to a friend. And you know what both of us did when the CD hit the shelves? We both went out and bought it. We both bought all of their albums in fact. And saw them in concert together twice.
I’m not somehow unique. Everybody I know is like this. They wear their pirate costume while handing over money for content they want and love.
Do I condone the activities of pirates that go out of their way to never pay for any content they consume? No. Do I support laws that lead to $67,500 judgments for downloading 30 songs and stifle innovation for fear of such judgments? Absolutely not. There has to be a balance and the way the law works now is not it, and the attitude of large copyright holders and their apologists are also not it.
Good you went to the concerts but buying CDs is just positive reinforcement for the labels to sue random people. The labels get over 90% of CD/iTunes sales.
You can always post your music online and flood the viewers with ads. It’s what free-tvshows.com is doing. Yes, it’s illegal. But imagine if Joss Whedon, well Fox actually or whichever conglomerate owns the copyright, placed all Buffy and Angel episodes up online? They would be raking in ad revenue that free-tvshows is getting illegally.
What the HELL?! 67,500 dollars for 30 songs? It’s fucking capitalism!
I think it goes to show that merely selling music is an old method of distribution.
Until the copyright terms are set back to something realistic, I don’t care how many people pirate, or how much the artists earn or don’t earn. Life plus 70 years? Are you frickin kidding me?
1.) Who cares about public domain? Nobody’s gonna stop piracy/file sharing.
2.) The artists aren’t losing anything. The labels are. When you buy a song on iTunes, majority of the revenue goes to the RIAA. With file sharing, we can promote the artist for free while they profit off concerts.
“If you’re selling water in the desert and it begins to rain,” said Nesson, “you need a new business.”
The music industry is like one guy with a pistol being set upon by an incomprehensibly massive army - his pistol won’t do any good but he will still fire it before they get him. You are just the unlucky bastard that the bullet hits. — gabrielcasey
I think Judge Gertner did a good job of reviewing applicable law on the appropriate range of statutory damages.
I think she overstated the amount of actual damages by saying it was $1 per infringed work. As I calculate it, the damage is 70 cents wholesale price minus 35 cents saved expenses times the percentage of unauthorized downloads per lost sale. If the percentage is 15%, which would be ballpark, the damage is 5 cents.
But her most grave mistake is her leap to an award which is 2250 times what she believes is the actual damage. I don’t see how she made that leap, after discussing numerous cases which found the appropriate proportion to be from 2 to 6 times actual damages.
Tom Robinson = Joel Tenenbaum
Atticus Finch = Charles Nesson
Bob Ewell = RIAA
Jem and Scout = Pirates everywhere
Bob Ewell humiliatingly wins then comes after Jem and Scout. Of course, we don’t need a Boo Radley because as Leif Williams Hater said, “The music industry is like one guy with a pistol being set upon by an incomprehensibly massive army - his pistol won’t do any good but he will still fire it before they get him. You are just the unlucky bastard that the bullet hits. — gabrielcasey”
Yes, the RIAA should sue my classmate for lending his radio to the class for our Christmas party even though he bought the CD. Oh wait, it’s a violation of copyright. Only ONE person should be able to here the song on the CD? These fucking RIAA bastards
There will always be something new. Radio, TV, Betamax, Internet…next thing you know peer-to-peer file sharing can happen just by linking each other’s fingers like in E.T. These companies will NEVER stop us!!
I apologize for my mistaken views on file sharing. It is not stealing. I see that now.
I apologize for my mistaken views on file sharing. It is stealing. I see that now.
What do I think about that Judge’s ruling? BIASED AND EVIL. $67,500 for 30 songs? WTH!! It’s as if the recording industry is so desperate to maintain its existence in a world where they are obsolete!
I’m not arguing that it’s legal, I’m saying it’s not theft. The distinction is important. Reimbursement is not property. He does not lose his property, therefore it’s not theft. End of story. I don’t see how you can’t understand that.
Also, you can scream about how it’s illegal all you want, it’s still gonna happen. People are saying loud and clear that they do not want CDs. The record labels have failed to provide an alternative method of distribution and until they do, piracy will continue.
The legality or morality is irrelevant. It’s gonna happen, it’s inevitable. CDs are obsolete, people don’t want to buy them. Record labels have resisted internet distribution and have insulted customers with DRM. They are trying to suppress technological solutions rather than embrace them. They’re trying to milk every last dollar from a system that is no longer necessary and they’re failing. They’re sticking with a distribution method that no longer works. — Freecell82
Ok 1 song is about 1 dollar. 30 songs is about 30 dollars. Distribution would be about 100 per. so 3000. WHERE DID THEY GET 67,500?!
Fuck this copyright shit and these RIAA fucktards. If I want to download a song, I’ll do it! They can’t stop me!
To sum it up: “If Gertner thinks she is being fair by imposing a fine that is 2250 times the market value of the 30 songs, then she’s an idiot.”
Fuck you Leif Williams you capitalist RIAA ass-kisser. go rot in the flames of Hell!
What is wrong with you people? Joel Tenenbaum is a liar and a thief PERIOD. He got off easy. He should have been fined for a million, if you ask me!
John Mendes, copying isn’t stealing. It’s borrowing. It’s the same thing as taping a song off the radio.
It’s stealing because I work for the RIAA. I love depriving the artists and forcing consumers from advancing to the future, even though our methods are outdated.
“copying isn’t stealing. It’s borrowing.”
To borrow necessary implies that one is in temporary possession of something that they intend to give back. Considering you clearly don’t intend to return any works you illicitly download, then you’re not borrowing anything.
“It’s the same thing as taping a song off the radio.”
No, it’s not. When you tape a song off of the radio, you immediately get a decrease in quality. Moreover, there is a single hard copy, so even if you did choose to lend it to a friend, it’s ability to get disseminated is extremely limited. Moreover, any additional copies of it continually degrade the quality.
This is in stark contrast to the perfect fidelity with which an illicitly ripped and distributed digital file can be disseminated simultaneously to potential millions.
Ray Beckerman -
Nobody cares what you think. You’ve been on the wrong side of the copyright law for ages now. And the very nature of statutory damages means that it is irrelevant what you consider the actual damages might be.
When you download, you are making the artists more popular without funding the RIAA.
Paying -> Popular + Funding Capitalist Conglomerates
Downloading -> Popular + Popular + Popular
Artists get more percentage of merchandise, concerts and TV/radio royalties than they do for album sales.
Downloading -> Popular + Popular + Popular
Popular -> Merchandise
-> Concerts
-> More viewers on MTV for them to watch the music videos so the artists earn from the advertisers. Same thing with Google Adsense on their music videos on YouTube.
P.S. Kid Rock, Joss Stone, Paulo Coelho, Nine Inch Nails, Radiohead, Green Day, Avril Lavigne and Metallica (YES, METALLICA) are all in favor of file sharing.
Burning a DVD is no different from photocopying a book.
Legal way to steal (RIAA) = immoral
Illegal way to steal (Pirates) = moral
Sounds like George Orwell’s 1984 or Alan Moore’s V for Vendetta
Big Brother = RIAA = Adam Sutler/government
Winston Smith = V = Joel Tenenbaum/pirates
To quote more:
Dan on February 22nd, 2009 at 9:54 pm
Asked of any RIAA witness:
1) May I, without attracting the wrath of your organization, hand the copy I have bought of my favorite CD to my friend sitting next to me at the defense table for him to enjoy for the weekend? (Yes.)
2) May I, without incurring multi-million dollar fines, make a backup copy of the CD I just bought, in case my friend loses the copy I’m about to give him? (Yes.)
3) May I, safe from subpoena and threats of litigation, hand that backup copy to another friend if my first friend loses the one I loaned him? (Yes.)
4) Must I not, then, take on good faith my first friend’s assertion that he lost the CD? (Perhaps/I suppose/What are you getting at?)
5) If my friend in fact did not lose the CD, am I acting in bad faith when I listen to my backup copy and/or loan it to a second friend? (No.)
5a) Is my second friend, playing that CD, acting in bad faith? (No.)
6) What is the fundamental difference between loaning the original CD and loaning the backup CD? (None, except that the first and the second must not be “active” simultaneously.)
7) Define “active”.
Regardless of the reply to question #7 there’s always a perfectly-legal corner case. Effectively, the shared MP3 is a backup copy of the song, the original copy on CD having been long since forgotten in someone’s dusty attic. A significant portion of the filesharing community owns a CD of the song. The only reasonable answer to question #7 is that no more than one person can play the CD at the same time. Can MediaSentry prove that more copies were being *played* simultaneously than the number of legitimate licenses owned by the filesharing community? If not, the P2P network is effectively a very fast, free-to-use version of NetFlix, distributing well-liked CD’s amongst friends for their listening enjoyment.
Slightly-alternate argument: There is no difference between loaning someone an MP3 and loaning someone a physical CD because there’s no such thing as “moving” a file in the computer world–only copy and delete. Thus, everyone’s taking it on good faith that the file they’re receiving is being deleted, or at least never again accessed, after being sent.
Last suggested argument: Can the prosecution prove, based on the preponderance of evidence, that the accused never held a license to the songs, the sharing of which he is being accused? Can the prosecution prove that the accused accessed the file for his personal use after having shared it with others; i.e., that’s he’s not just offering a convenient backup service?
Let me know what you think; IANAL.
William Burns on July 29th, 2009 at 9:54 am
Just because something is deemed against a law does not, in fact, make it right. For instance, it is illegal to mispronounce Arkansas in the state of Arkansas. While it seemed like a good idea at the time of writing, and I am sure many have been prosecuted on that law, it does not make it correct. A more prominent example would be the case of Prohibition in the United States, whereby alcohol was made illegal for consumption. Again, a great many people were prosecuted under the law, and many more people were duped into believing that if it’s a law then they have no choice but to adhere to it.
It was only through mass civil disobedience that such a law was repealed.
The original intention of Copyright Law is to grant the holder of works (owner) a limited time frame by which to expect exclusivity and profit. Originally, this time frame was proposed as an ample fourteen years, after which such works were relegated to public domain in the interest of furthering innovation and competition.
It was concluded that to grant a holder of works an exclusivity into perpetuity would do more harm than good for future innovation and competition, virtually stunting said growth and expansion, and severely damaging the economy as time progressed as it became exponentially harder to create new works, thus removing the incentive to produce “new” works.
Within the United States, copyrights are common for 75 years after the death of the creator, with intermediary holders carrying exclusivity far into the future through the act of re-releases in many formats. The very idea of a “back catalogue” which spans nearly one hundred years is preposterous in light of the scope and intention of copyright as it was originally conceived.
Again, copyright is meant to foster a limited time frame by which the creator of said works may expect exclusivity and profit from their works. It is the threat of public domain which spurs said creator to continue their works in order to continue their revenue. Unfortunately, Copyright has been warped and twisted through lobbying factors in order to benefit both the creator but moreso themselves (being representing entities such as RIAA), in that the original scope and intention of Copyright no longer holds the value it was originally conceived to enforce. If copyright has the intention of limiting the exclusivity of the creator to a limited time frame by which they were granted sole distributorship, then what value does this have in an era whereby the death of a creator does not pass said works into public domain, and whereby such works are held in exclusivity by third parties for lengths of time which can feasibly be an entire generation?
I take into account the written works of George Orwell, specifically Nineteen Eighty-Four. This book was written in the year 1949, while the author passed away years later. The book, despite the death of the creator, is still held under copyright and will remain so under United States law until the year 2044, whereby such works will pass into public domain.
My date of birth is 1979, and as such, this work was created thirty years prior to my birth. For a written work that was created thirty years prior to my birth, I will not see such in public domain until I have reached the ripe old age of 65, or in a different light - this written work will have survived nearly the span of two lifetimes under current copyright. As originally intended, a span of fourteen years, this work will benefit from a span of exclusivity which is measured as nearly 600% longer than originally intended.
This is a far cry from the scope and intent of copyright law as it was put forth and conceived. If a work can be held in exclusivity for a span of time which makes the intention of the law which governs it negligible at best, then the law which governs it has been rendered without jurisdiction or justification and must be repealed in its current form.
The purpose of a law is to serve and protect the interest of a society as a whole, and not a select group of individuals. Within a democracy it is the will of the society which is to govern said laws which are created on behalf of the society, and to implement laws which directly contradict the will of the society which it governs has no place in any country which rules “For the people, by the people”.
For direct and incontrovertible proof that such laws are in direct contradiction to the will of the societies which they are established to govern, we need only look at the litigation firestorm that is the RIAA around the world, and to the population of this planet who continue to openly defy such laws on an escalating basis.
This is a worldwide civil disobedience against laws which have been abused and shaped in the benefit of the few while literally eroding the rights of the many.
No amount of propaganda or litigation will stop this civil disobedience, and it will only continue to get worse until such time as these laws are brought under control and returned to the state by which they were intended; Serving not only the creators of works, but doing so in the overall best interest of the societies by which they participate.
FUCK YOU, HARPER LEE FAN IS AN IDIOT
Permit me to highlight:
The purpose of a law is to serve and protect the interest of a society as a whole, and not a select group of individuals.
That was most likely not Ray Beckerman. But to the guy who dissed the guy pretending to be or actually being Ray Beckerman, fuck you. Downloading is precisely the same as taping or borrowing. It doesn’t matter whether or not you return it. You can’t “forget” about the movie whose DVD you returned. And usually pirates just delete the file after watching. It takes up too much space.
And Ray Beckerman is a LAWYER
Ray, I did a Google search on you, and there are over 34,000 references. You are without doubt the biggest pain in the butt to the RIAA. How did you get involved in this debacle?
In late 2004 or early 2005 I learned of these lawsuits from the EFF. I thought to myself “I’m a litigator, I’m a copyright lawyer, and I hate bullies. So maybe I can help some of these folks.”
Then in Summer or Spring 2005 I got my first client who wanted to fight back. It occurred to me that one of the RIAA’s strategic advantages was information. It had one law firm controlling all 25,000 cases, and knew what was going on in each one. A defendant’s lawyer, on the other hand, had no information at all except what the RIAA wanted us to know. I didn’t know what was going on in other cases, or, indeed, if there were any other cases where defendants were fighting back. So decided to set up the blog as a place to collect information.
The RIAA seems to think that suing their own customers is a good idea. I can not think of another industry that has played this game and won. Are they just a school yard bully?
Yes. The ugliest and cruelest school yard bully I have ever encountered, and I have seen some bad ones.
Does the RIAA understand the concept of freedom of choice?
The people running this lawsuit are not exactly human. They understand nothing. They are like the bad robots in RoboCop.
Some might say that the bully-boy tactics actually encourage people to “rebel” and go for illegal downloads? I guess the analogy here would be being told by your mom not to touch something, and of course you, as the 5 year old are now galvanized into action!
I don’t agree with that, but the bully-boy tactics have created a whole new class of consumer — people who seek out independent music not tainted by the ghouls and freaks running the Big 4.
The RIAA make the argument that music piracy is killing the music industry, and they can back that claim up with statistics. My view is somewhat different. If you like something, you will buy it. Is music piracy the reason that sales are flat?
I think their sales are declining because the companies are being run by morons who have been hypnotized by some unscrupulous lawyers, who have never had any imagination as to how to sell music on the internet, and who are bringing lawsuits — and trying to blame others — strictly to cover up their failure to capitalize on one of the greatest money making opportunities ever.
Why do they actively attempt to blur the line before legal downloads approved by bands/put up by bands and those that are merely thieving?
I’m sorry, don’t understand the question. Their goal is to try to monopolize digital music. They will say and do anything to try to make that happen.
Why do they do it? Because these robots don’t understand competition. They do everything as a collusive pack of 4.
What do you see the RIAA doing in future as they become even more desperate?
Chapter 11.
I realize that you can not discuss cases that you are involved in, but maybe you could share some general thoughts about the way you see this issue moving. There are noises about taxing internet access, as a way of recompensing the music industry. This idea, at least in my mind, is about as sensible as invading Iceland. What are your thoughts?
The courts are starting to reject the RIAA’s stupid theories and starting to get irked at its lawyers’ frivolous behavior, and more lawyers and defendants are choosing to fight back, and are doing so in a better informed way. So the cost of pushing this madness forward is increasing.
Meanwhile, the shareholders can’t be happy to see the value of their stock declining so drastically, so I would imagine they’ll eventually wake up and stop the madness, even before the Courts — which move slowly — get around to it.
There are not many lawyers that can talk the talk, and walk the walk, when it comes to the computer world. Yet you talk happily about IP addresses, wireless routers, DHCP, and even the basic structure of the Internet. Was this a huge learning curve?
Yes of course I have had to learn a lot about the technology to keep up with the RIAA’s lies. If the RIAA’s lawyers weren’t professional liars, I might not have had to learn so much.
Recording Industry v The People has been a very successful and useful site. But it must take an enormous amount of time and effort to keep it up to date. How many folks work on it?
One.
“it’s ability to get disseminated is extremely limited”
so distributing one copy is ok but distributing a million copies isn’t? where do you draw the line then? How many grains of sand makes a heap of sand? FAIL.
Either distributing one and distributing a million are ok or distributing one and distributing a million are not ok.
Betamax was ruled fair use. Grokster was not.
Why?
Betamax was an invention of Sony, a major corporation. Grokster was a small software company. Justice is unfortunately only for those who can afford it.
[...] wanted to take a moment and share some reflections on the robust debate from our blog over the effects of file-sharing. Along with my unrelentingly dedicated team, we [...]
Oh hey Tenenbaum, you jerk of a thief. The labels are acting in favor of the artists, not themselves. Do you really think that the Supreme Court is that much of an idiotic council as to let the RIAA get away with trying to preserve their distribution model, if that was the case? Of course not. By denying the consequent, the RIAA is acting on behalf of the artists.
By the way, Trent Reznor is a disgrace to the music industry.
And what the Hell is this “specialized packaging” you mentioned on your interview the New Yorker or whatever? Tenenbaum, just declare bankruptcy and fund the RIAA. Repent for your sins, or await eternity in Hell.
Come to think of it, the RIAA is like a label of angels who are reposing at the rebellious demons that you pirates all are.
Just to clarify,
if the labels are acting selfishly, as in, not in favor of the artists and solely for preserving their distribution model or whatever crap, then the supreme court would not let them win.
The supreme court let them win.
Modus tollens. Denying the consequent.
Therefore, the labels are acting in the best interest of artists and morality.
John Mendes, you are so presumptuous. Have you even considered the fact that the RIAA has financial influence over justice in the eyes of the Supreme Court?
File sharing is still stealing because even though you are not actually taking anything from the RIAA and/or artists, you are taking away potential sales. I’ll admit it’s not the same kind of stealing as taking it from a store, but it’s still morally wrong.
Jack Stone, scroll up. Reimbursement is not property.
Everyone, I apologize for being a complete idiot and kissing the ass of the RIAA. You see, one of my relatives is working with the RIAA so emotion prompts me to attempt to hinder technology from advancing.
Those carjackers and robbers - at least they KNOW that what they’re doing is wrong. You try to JUSTIFY downloading music without paying for it. The labels deserve money just as the artists do. Those artists wouldn’t have been popular if not for the labels’ distribution right?
And that was clearly not Leif Williams
Learn to read.
Dan on February 22nd, 2009 at 9:54 pm
Asked of any RIAA witness:
1) May I, without attracting the wrath of your organization, hand the copy I have bought of my favorite CD to my friend sitting next to me at the defense table for him to enjoy for the weekend? (Yes.)
2) May I, without incurring multi-million dollar fines, make a backup copy of the CD I just bought, in case my friend loses the copy I’m about to give him? (Yes.)
3) May I, safe from subpoena and threats of litigation, hand that backup copy to another friend if my first friend loses the one I loaned him? (Yes.)
4) Must I not, then, take on good faith my first friend’s assertion that he lost the CD? (Perhaps/I suppose/What are you getting at?)
5) If my friend in fact did not lose the CD, am I acting in bad faith when I listen to my backup copy and/or loan it to a second friend? (No.)
5a) Is my second friend, playing that CD, acting in bad faith? (No.)
6) What is the fundamental difference between loaning the original CD and loaning the backup CD? (None, except that the first and the second must not be “active” simultaneously.)
7) Define “active”.
Regardless of the reply to question #7 there’s always a perfectly-legal corner case. Effectively, the shared MP3 is a backup copy of the song, the original copy on CD having been long since forgotten in someone’s dusty attic. A significant portion of the filesharing community owns a CD of the song. The only reasonable answer to question #7 is that no more than one person can play the CD at the same time. Can MediaSentry prove that more copies were being *played* simultaneously than the number of legitimate licenses owned by the filesharing community? If not, the P2P network is effectively a very fast, free-to-use version of NetFlix, distributing well-liked CD’s amongst friends for their listening enjoyment.
Slightly-alternate argument: There is no difference between loaning someone an MP3 and loaning someone a physical CD because there’s no such thing as “moving” a file in the computer world–only copy and delete. Thus, everyone’s taking it on good faith that the file they’re receiving is being deleted, or at least never again accessed, after being sent.
Last suggested argument: Can the prosecution prove, based on the preponderance of evidence, that the accused never held a license to the songs, the sharing of which he is being accused? Can the prosecution prove that the accused accessed the file for his personal use after having shared it with others; i.e., that’s he’s not just offering a convenient backup service?
Let me know what you think; IANAL.
When you burn a CD, a copy is made. When you lend a CD, only one of you has it.
Jesse Alexander, co-producer of Lost and Heroes is in favor of file sharing. I also found this very helpful article. http://jakonrath.blogspot.com/2010/05/piracy-again.html
In the past 24 hours, four separate writers have emailed me to tell me my books are being stolen online.
Well… no duh.
The internet was created to share and distribute data. It’s the whole reason the world wide web exists.
Of course some of that data is going to be copyright-protected work. If it can be digitized, it can, and will, be shared.
What continues to amaze me is how freaked-out authors are by this. The thought that someone is sharing their work–without paying for it–seems to evoke the same reaction as having someone hack your bank account and drain your life savings.
As you see by the recent picture, I’m being pirated. Google pointed to 8880 different sites where my work is being illegally shared. And these are just torrent sites. This doesn’t count file lockers, which I believe account for many more downloads than torrents.
And yet, I’m not worried. I’m currently selling 220 ebooks per day, and that rate shows no signs of slowing down.
So everyone needs to take a big, collective breath, let it out slow, and stop worrying about illegal file sharing. Here are some reasons why.
1. Copyright is unenforceable in a digital world. Period. Exclamation point. At no time in history has any individual, company, or industry been able to stop file sharing. No country or law has been able to stop it. No technology has been able to stop it. Which brings us to…
2. People want to share files. There is this much file sharing going on for a reason. It’s what people want. Fighting piracy is fighting human nature. This is a battle no one can win. Getting your undies in a bunch at the thought of someone copying your ebook is a waste of a good ulcer. Worry about some problem that eventually will be solved. Like world hunger. Or cancer. Or war. Those will be conquered before file sharing is.
3. There is ZERO reliable evidence that file-sharing hurts sales. A shared file does not equal a lost sale, any more than someone reading a library book is a lost sale.
My ebooks that I’m selling on Amazon and Smashwords are available for FREE on my website. As in “they cost zero dollars.” And yet the ebooks keep selling. Clearly, being able to get something for free doesn’t inhibit sales.
4. The more people who know who you are, the better. File sharing certainly helps spread brand awareness and name recognition, and it does so without any effort on your part.
Now we’ll take some questions.
Q: But Joe, if everyone steals your ebooks, how will you make money?
A: Show me an artist bankrupted by piracy, and we’ll revisit this question.
Q: No, seriously, in a future where everything is free, how will…
A: We’re not in a future where everything is free. But I’ll play the “let’s pretend” game. Let’s pretend that all ebooks are free. How will writers make money? The same way all media makes money. Advertising, merchandising, and licensing.
Q: But I don’t want ads in ebooks.
A: I don’t want ads in anything. But that’s how capitalism works. Deal with it.
Q: Piracy is immoral, and illegal. We need to spread awareness, then people will stop doing it.
A: Sure… that’s how religion was able to successfully put a halt to masturbation, pre-marital and extra-marital sex. And why the US successfully won the war on drugs.
Illegal doesn’t matter. People do what they want to do. Immoral is subjective. And teaching people to behave in a way contrary to human nature DOES NOT WORK.
Q: If I create something, I should have the right to do what I want with it, and make money from it. Piracy takes that right away from me.
A: No it doesn’t. The vast majority of piracy doesn’t monetarily benefit the pirate. It’s simply sharing, where no one makes a profit.
Q: That’s not true. The sites that host piracy make a lot of money.
A: So does Google. So does any popular website. But those sites aren’t making money off the illegal sales of your material. They simply facilitate sharing.
Q: Why doesn’t anyone close those sites?
A: They try. Then new sites come up. It is unstoppable.
Q: But I don’t want my writing to be shared.
A: Then don’t write. Simple as that. JK Rowling has lost millions of dollars, because she refused to let Harry Potter come out in ebook form. Newsflash: you can get ebooks of all the Potter books from pirate sites. She didn’t cater to her fans, so her fans catered to themselves. And if Rowling can’t stop it, with her billions and armies of layers, you can’t either.
Q: Piracy is theft, pure and simple.
A: That’s not actually a question. And that’s not actually true. First of all, the stealing of a physical object deprives the owner of that object, which is a monetary loss. Copying a file does not deprive the owner of that file–the owner still has it.
Q: It’s the theft of intellectual property.
A: Okay, even though I think this point is pretty much useless, I’ll play.
Have you ever read a library book? Recorded a song off the radio? Tivo’ed a show and zipped through the commercials? Lent a CD to a friend? Rented a movie or videogame? Bought a used book?
Guess what–you just experienced someone else’s intellectual property without compensating the artist.
We could play “gray areas” and “where to draw the line” all day. It ultimately comes down to what constitutes ownership of intellectual property–actually owning a tangible object, or experiencing it sensually?
If the IP argument is that every time you sensually experience a work of art you should compensate the artist, then we’re all thieves. But if stealing isn’t about the experience, it’s about the tangible object, then sharing intangible objects, such as data files, is not stealing.
Q: Look, it’s stealing, no matter how you try to justify it. We need to create better technology to make sure that pirates can’t steal.
A: There’s a reason iTunes no longer uses DRM (digital rights management, the industry standard for copy protection.) Because PEOPLE DON’T WANT DRM.
Do you know who wants DRM? Artists and companies who don’t know what the hell they’re doing because they have knee jerk reactions to the word “piracy.”
If you really fear piracy, educate yourself. Read about it. Learn how it’s done. Hear both sides defend their positions.
If you have an ounce of brains in your head, you will quickly realize that piracy is always going to be here, that nothing can be done to stop it, that artists can still make money, and that you’d be much better off worrying about something you have control over, like writing more and better books.
And next time you see your ebook on a file sharing site, don’t say, “Oh no! I’m being stolen!” Instead say, “Cool, I’m being read.” That’s what I do.
Addendum:
There are some dissenting opinions in the comments thread, so I just wanted to clarify and distill some of my thoughts. I’m not sure how I went from “don’t worry about piracy” to being a full advocate for piracy, but I’d like to make it clear that I believe piracy is stealing. I simply do not equate it with stealing something tangible.
I’d also like to offer my final (for the moment) thoughts:
1. You CANNOT assume that a downloaded free book is a lost sale. It isn’t 1 for 1.
In some cases, the pirate would have never bought the book in the first place.
In some cases, the pirate does buy the book, and other books by the author.
In some cases, the book languishes on a hard drive, never read at all.
In some cases, the pirate would have never even been aware of the book or the author without finding it on the file sharing site.
And so on.
2. It is impossible to prove the effect of file sharing on sales without actually interviewing every single pirate and having them answer truthfully about their sharing and buying habits.
3. Industries can lose money for many reasons. There is no study that clearly shows piracy is the only cause, or even proves it is part of the cause.
4. Piracy is big business for groups that make money studying and combating piracy. Fair, unbiased reports are hard to come by, especially when capitalism and politics are involved.
5. I have shown significant growth in the face of freebies and piracy. So have many others.
While it is impossible to prove a direct link between piracy and sales, showing rising sales in the face of piracy is a damn good indicator that piracy isn’t harmful. Or if it is harmful, it isn’t enough to impact growth.
This isn’t opinion. It is fact. And it is repeatable.
You cannot prove piracy has harmed you. But I can prove it hasn’t harmed me. Ergo, my argument is sound.
6. Don’t worry about what you can’t control. You’ll sleep better.
7. The only way to combat piracy is with cost and convenience, which I have blogged about before.
Joel Tenenbaum, please just kill yourself. You do not deserve to exist as a human being. You are a disgrace. This website is a disgrace Joel “fights back.” Why would you fight back if you did something illegal AND IMMORAL knowingly?! Fuck you!
Learn to read, idiots.
I am a complete idiot.
Through this exploration you can reveal thoughts and memories that would otherwise be hidden under normal circumstances. With the help of a hypnosis mp3 it is easy to explore and reveal your subconscious mind.
The legalities of file sharing are obviously complex and the minutiae of the defence and prosecution cases have taken the argument away from something most of us can easily comprehend .
However, I would like to state that the idea that the record labels in anyway benefit the artists is flawed.
Consider their marketing strategies….every week on Spotify (legally free) a label launches a “new” artist with their “amazing” debut album. That is one of their strategies i.e. paid advertising telling the record buying public how “amazing” is the new artist . 99 out of 100of these artists slips back into anonymity… because the public is not fooled. Artists that develop a career do so through either hard work, or uniqueness or a combination of both. The label pays them an advance but the real promotion is done by the band/artist.
Therefore in earlier times the label were bankrolling the artists success and thereafter providing a distribution channel…i.e. records.
In the digital age…..this has surely changed.
1) Artists no longer need month long lock out sessions in studios to create an album
2) Artists no longer need the label’s distribution channel - are there many music shops left….?
3) Artists have never needed the label’s publicity machine because mostly all the label did was fuel a buzz that already existed. I don’t know if there are many instances where the buzz and the success were created by the label.
4) Artists probably still need the bankroll (advance)…but actually it is inequitable…..you’d get better rates from a commercial lending organisation (if you could be confident that you’re music had a market - even in these credit crunch times). In actual fact if you borrowed a record label advance of say $1m over 10 years…..you would only pay back a fraction of your earnings as a middle earning band that you would if you signed to a label.
ergo…labels have missed the boat…(around 1998)
ergo they have to take action against file sharers because their business model is crumbling - raining in the desert taking business from the water sellers
In fact what they should have done, as one of the lines of defence intimated…is use file sharing as a promotional tool, not solely an income stream.
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A couple of years ago a NC police officer who was RECORDED discussing downloading for free. The officer named the name Kazaa which has appeared in numerous lawsuits and talked about how the songs were arranged in groups and you choose the songs and just click and get them. He said it was the thing to do everybody was doing it. He bet his daughters had downloaded a THOUSAND SONGS on his computer. He said he had to get a new computer his old one FILLED UP WITH MEMORY. He laughed and said he hoped the federal government did not come in and investigate him.
Shortly after this conversation we began reading the news articles people were being sued by RIAA and the FBI. They were calling piracy a crime of stealing and calling these people thieves. The RIAA and the FBI on their websites encourage people to report piracy. The FBI Anti Piracy Warning says they investigate. At that time we reported the officer’s conversation as well as his name to the RIAA and the FBI. It was ignored. A few months ago we were still reading news article people still being sued. Three of these cases that stood out were Joel Tennenbaum, Jammie Thomas and Whitney Harper all having to pay outrageous monetary amounts. Now feeling ignoring the officer’s conversation was unfair we began reporting the conversation to the RIAA the FBI the PD and several other anti piracy organizations along with the officer’s name asking why this was not investigated. Again it continues to be ignored. If piracy is a crime as the FBI the RIAA and others proclaim why was this conversation ignored. Considering piracy is being called a crime and the thousands of people that have been sued shouldn’t this conversation be investigated to see where the THOUSAND SONGS this officer talks about came from, who the everybody is that is doing this police officer’s conversation be investigated to see where the THOUSAND SONGS he talks about came from, who the everybody is that is doing it, and if he or his daughters may have committed what they are calling a crime. Ignoring this conversation seems to be an injustice to all the people that have been sued as well as to us as a citizen reporting it and it being ignored. How can they sue some and ignore a high ranking police officer discussing downloading music in this way. I feel this is wrong and don’t understand how this is allowed.
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