Technically Legal

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

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

Ringtones Infringing Copyrights, RIAA settles a case for nothing, and Apple Sued over iTunes Gift Cards.

Download the podcast here. E-mail us at podcast@technicallylegal.org.

Ringtones Infringing Copyrights

ASCAP
ASCAP and Copyright Doublespeak [EFF]
17 USC 106 - Exclusive Rights
17 USC 110 – Limitations on Exclusive Rights

RIAA Settles for Nothing

No mistakes? NH P2P case highlights MediaSentry’s issues [ars]

Apple Sued over iTunes Gift Cards

Apple sued over ‘false’ iTunes gift card promises
Owens v. Apple, complaint.

Other Stories

Pirate Bay Retrial Denied
Apple has Psystar Stay Lifted.

1 Comment Posted in: Podcast on June 30, 2009

Jammie Thomas Trial, and IE Antitrust Litigation in the EU.

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Jammie Thomas Trial

17 USC 106, Exclusive Rights.
RIAA v. The People.
Copyright Registration
Registration as a Prerequisite for Statutory Damages.

IE Anti-Trust Litigation

Europe cool to Microsoft’s offer to sell browser-less Windows system.
United States v. Microsoft.

1 Comment Posted in: Podcast on June 23, 2009

Wired’s Threat Level blog posted an article titled “High Court Nominee Mirrors Industry Copyright Stance.” The post states that President Obama’s recent nominee for Justice Souter’s Supreme Court seat “is embracing the content industry’s party line.”

As evidence, they point to a 1998 opinion in which then-District Court Judge Sotomayor wrote that, “statutory damages must be sufficient enough to deter future infringements and should not be calibrated to favor a defendant by merely awarding minimum estimated losses to a plaintiff.”

First, we need to distinguish the case in which she wrote that opinion from the RIAA cases. The 1998 case dealt with taverns showing boxing matches without a license to show them. That is a wholly commercial use, unlike in the RIAA cases. Additionally, the infringement was willful, and the defendants defaulted on the case, meaning they did not even show up to court.

No one, not even Professor Nesson, questions the right of Congress to impose statutory damages that are greater than the actual loss suffered by the plaintiff. The issue in the RIAA cases is that actual losses are anywhere between 750 times and 150,000 times actual losses. The argument against the RIAA is that there is such a disparity as to make those damages unconstitutional. That issue was not before then-Judge Sotomayor’s court in 1998.

From one case, over 10 years ago, with very different facts from the RIAA cases, it is very difficult to know how she will rule if a case gets to the Supreme Court.

Comments Off Posted in: Commentary, Links on June 2, 2009