Technically Legal

Episode 40: Goin Gaga

Innocent infringement off the table, Apple sues HTC, and is it illegal to poach tickets?

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Comment on this post Posted in: Podcast on March 9, 2010

The RIAA has rejected re remittitur in the Jammie Thomas case, meaning that there will be a third trial, this one only for damages. One wonders what this trial will look like, when the Judge has already ruled at $54,000 was the maximum that any jury could reasonably award for these damages.

Similarly, the RIAA opposed Joel Tenenbaum’s motion for remittitur, which is in no way surprising.

Comments Off Posted in: Links on February 9, 2010

RIAA Offers Thomas-Rasset Settlement, T-R Rejects

The RIAA offered to settle Jammie Thomas-Rasset’s case for $25,000 this afternoon. An offer which Thomas-Rasset quickly rejected. From her lawyers:

[A]s our response makes clear, Jammie is standing on principle here, and will not accede to payment demands that the RIAA is making thru an unconstitutional statutory scheme (that they lobbied for the creation of) and we will ride this train to it’s appellate end no matter how many future remittiturs are rejected.

At this point, any amount that the RIAA is likely to collect, through the actual amount imposed, or through bankruptcy proceedings of Thomas-Rasset (at the end of all the litigation and appeals), is going to be far less than they’ve paid their lawyers for the endless motions and two trials. There’s no question in my mind that this litigation was a money loser for the RIAA. Removing DRM from MP3s probably converted more people to music buyers than the threat of litigation.

Comments Off Posted in: Commentary on January 27, 2010

Podcast 34: Some Relation

FBI Spying, Jammie Thomas gets a Break, and Joel Tenenbaum Tries to Reduce his Verdict.

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FBI Takes Phone Records

FBI broke law for years in phone record searches
The statute

Jammie Thomas-Rasset Gets a Break

The opinion

Joel Tenenbaum Asks for a Break

Department of Justice defends constitutionality of $675,000 award against Tenenbaum; p2p user caused ‘great public harm’

UPDATE: We’ve switched to a new recording system that results in a better quality, but for some reason, lower volume podcast. We’re aware of this, and looking in to it. In the meantime, if you have iTunes, turn the volume adjust on the mp3 to 100%, or download it directly from the website. Either of these seem to help solve the problem.

Comments Off Posted in: Podcast on January 25, 2010

We didn’t consider that

In Podcast 34 (to be released later tonight), we talked about the order lowering damages in the Jammie Thomas-Rasset case. As you will hear, we discussed whether the RIAA would challenge the order. What we failed to talk about is whether Jammie Thomas-Rasset would challenge the order. The judge’s ruling, which reduced the amount Jammie Thomas-Rasset owed to 1/36th the original verdict is still too high in the view of her lawyer. The main issue seems to be that the judge didn’t squarely decide whether or not statutory damages here are unconstitutional. A topic we address on this week’s podcast.

Comments Off Posted in: Commentary on January 25, 2010

Damages Reduced for Jammie Thomas-Rasset

The judge in the Jammie Thomas-Rasset case just reduced the damages owed from $1.92 million to $54,000. The RIAA can now choose to accept the lower damages, or schedule a new trial on the issue of damages.

We will certainly discuss this more, either in a post or podcast, but we wanted to get this up now.

1 Comment Posted in: Links on January 22, 2010

Tenenbaum Trial: Directed Verdict Granted

Judge Nancy Gertner granted a motion for directed verdict (also known to as a judgment as a matter of law) for the plaintiffs in Sony v. Tenenbaum. The fatal blow to the trial was dealt after Tenenbaum himself took the stand and admitted “us[ing] P2P” and “lied about it” in response to a cross-examination question. The remaining issue in this portion of the litigation is a determination of damages.

A Judgment as a Matter of Law is a procedural device under the rules of Federal Civil Procedure (see F.R.C.P 50) whereby a party may make a motion requesting a verdict be granted by the judge. The key inquiry is whether based on the evidence presented up to the point the motion is made, is there any way a reasonable jury could only come to one conclusion. To ensure some measure of fairness, the motions are evaluated by the judge in “a light most favorable to the non-moving party.” The judge must find that a “reasonable jury would not have a legally sufficient basis to find for the non-moving party on the issue.”

In a copyright infringement case, a key matter is whether the defendant was in fact responsible for a violation of the exclusive rights to a copyright holder. At several points during the litigation, Tenenbaum has attempted to shift the blame to other people, claiming he was not responsible himself for the acts of infringement. Once Tenenbaum admitted to using P2P software in his testimony it was a nail in the coffin on this particular issue. This empowered the plaintiffs to move for a judgement as a matter of law; and, in effect, this killed the disputed factual elements of the case.

The next portion of the proceedings moves on to a determination of damages. The jury will be responsible for this determination and must come up with an amount of damages based on the statutory scheme of the Copyright Act. The Act provides a spectrum of figures that guide damage awards: $750 minimum to $150,000 maximum per infringement. In this case, that means at a minimum Tenenbaum will be found liable on 30 songs for $22,500, and at maximum $4.5M.

What remains now is still a significant question: what amount will the jury award? At this point we’ve seen one other case go to a jury on a determination for damages (Jammie Thomas) which returned an award of $1.92M based on an infringement of 24 recordings. Many critics of the statutory damages have challenged the nature of high damage rewards based on infringement of a small number of sound recordings, particularly where statutory damages are grossly disproportionate to the amount of actual damages suffered by a plaintiff. Indeed, a ripe issue on appeal will be whether such damages can pass Constitutional muster. This is sure to be hotly contested by Tenenbaum’s counsel following the damage award.

Update: As of 2 P.M. Friday, July 31, the case was handed off to the jury. More to follow.

Update 2: The jury came back with the damages award, only a few hours after deliberations began. Here’s the bad news: $675,000 ($22,500 per song).

Comments Off Posted in: Analysis on July 31, 2009

Judge Takes Fair Use Defense Off Table

At 1:37 this morning Judge Gertner denied Joel Tenenbaum the right to bring up fair use as a defense at his trial, which starts today. The court reasoned that the Defense had shown no facts that would lead to a conclusion that the defendant’s use was fair, other than the fact that it was non-commercial. That, in the eyes of the court, was not enough.

It seems like the only major issue in this trial, then, is damages, not whether or not the defendant infringed, like the Jammie Thomas case.

Comments Off Posted in: Links on July 27, 2009