The judge in the Tenenbaum case has handed the jury instructions now. It’s those instructions that are, at the very least, raising eyebrows in the legal community. the instructions basically told the jury that the defendant in the case was guilty and that it was up to the jury to basically pick a number between 750 and 30,000 and that’ll be the fine per act of infringement (not per infringing item).
In court documents (PDF – Via Ray Beckerman), the judge in the Sony vs Tenenbaum case issued instructions to the jury.
“In this case,” the judge wrote, “each plaintiff contends that it is, and at all relevant times has been, the
copyright owner or licensee of exclusive rights under United States copyright law with respect to certain copyrighted sound recordings, and that the defendant, Joel Tenenbaum, without the permission or consent of such plaintiff, used a peer-to-peer network to download the plaintiffs’ copyrighted recordings and/or distribute the copyrighted recordings to the public.”
The judge said that the plaintiff had to prove that they owned the works and that the defendant infringed on that work.
“In this case,” the judge concludes, “there is no issue as to liability.”
“Because there is no issue as to liability,” the judge adds, “you must decide on damages. When you do, you
must select a damages award within the specified statutory range.”
The judge clarified only that the statutory range is between $750 to $30,000 “per act of infringement”.
From an outsiders perspective, this is a rather shocking instruction. Perhaps Hollywood has clouded what goes on in the American court system where people mistakenly believe that a jury had the power to decide whether or not the defendant was guilty of something or not. Apparently, in an actual American court, the jury’s roll is to watch the case, pick a number and go home. In order for this to happen, the plaintiffs have to be part of the RIAA or MPAA and simply show up, and claim their millions – if the MPAAs comments about needing evidence is anything to go by. The defendant’s roll is to sit there and receive an automatic guilty verdict. At least, this is what one can learn in this case. And you thought only the Swedish justice system handling the Pirate Bay case seemed insane.
It’s hard not to mention the justice scene in Idiocracy where the plaintiff won the case simply by saying that they have a whole bunch of, pfft, evidence, and that the court should say that the defendant is guilty. It truly appears that a similar thing has happened in this case.
Already, many have condemned the Jammie Thomas fine of $1.92 million including many during Canada’s critical critical copyright consultation. Perhaps at this stage, one could add how someone could be guilty of online copyright infringement simply because the industry said so as well in an American style copyright law.
Have a tip? Want to contact the author? You can do so by sending a PM via the forums or via e-mail at drew@zeropaid.com.
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Drew, with respect to your reporting, some of us have been watching this case very closely for a long time. Joel Tenenbaum pleaded guilty to every relevant aspect of liability in this case, including the infringement itself and lying under oath; he even tried to blame it on his own sisters.
With Joel’s admission of guilt under oath there was no need for the jury to determine innocence or guilt. That’s why the Judge, an old ally and associate of Charlie Nesson, Joel’s attorney, granted summary judgment and instructed the jury to find two things, 1) whether Joel’s infringement was willful or not (they found it was) and then if it was, 2) to assign a fine of $750 minimum of a maximum $150,000 per each of the 30 admitted infractions, the range under American law. That’s where the potential of $4.5m came from. 30X$150,000.
Statutory damages are intended to send a message of deterrence when true damages cannot be calculated accurately, as in the case here. The jury comprised of regular folks from Joel’s home city and suburbs found a much lower award to be sufficient, only 15% of the possible total that could have been awarded.
So in effect, Joel pleaded guilty and the jury granted a small percentage of the potential award to the labels. That’s actually what happened. Nothing shocking about it.
There was a huge host of arguments that were made such as the simple fact that the investigation techniques used by the copyright industry were illegal. There was nothing in the court documents in question that said that this was even considered. Going through the case, there were many instances that made the plaintiffs look borderline criminal to the common person. No critical question was answered. Just a simple, slice out any court clarification on how evidence is gathered and just fine the person. That is an injustice from my standpoint.
Looks like Joel will be paying $675,000 to four record labels. Brilliant defense!!
Another case which proves the system is flawed and needs a restructuring. No one should be bankrupted for sharing 30 songs. The penalties were designed for commercial infringement, not private, and its use in such a way, is in the view of a growing public, borderline criminal. Hopefully these types of damages get ruled out as unconstitutional when the challenge by Jayme Thomas hits the courts.
“There was a huge host of arguments that were made such as the simple fact that the investigation techniques used by the copyright industry were illegal. There was nothing in the court documents in question that said that this was even considered.”
That’s not a huge host, Drew, that’s one suggestion by you that MediaSentry’s methods are illegal. If you look at the caselaw that precedes this you’d know that MediaSentry has been carefully reviewed in multiple cases in various jurisdictions, and in every case found to be sound and on solid legal ground. This wasn’t considered in Joel’s case because it’s now a false accusation and set aside in previous cases. The key is the Kazaa shared folder. It’s public and open to anyone running Kazaa, not just MediaSentry. So the fact is that you or I could have produced the exact same evidence as MediaSentry by doing what any pirate does, without “investigation” or licensing. Had MediaSentry required a warrant for a wiretap, for instance, the situation would be quite different. But the “issue” you raise is old news, Drew, long discredited and an observation with no legitimacy anymore.
“Going through the case, there were many instances that made the plaintiffs look borderline criminal to the common person.”
If you can name just one instance and provide evidence to support it, send it to Joel’s legal team. Charlie Nesson is legendary and one of the best in the business, but he may have missed something that you caught.
“No critical question was answered.”
Actually, several depositions were taken under oath prior to the trial and then five long days of critical questions were answered, and this is the second trial with many other questions asked that still produced a similar outcome. Nesson had every opportunity to ask the questions he felt pertinent. What Joel did was illegal, Drew, and he did it repeatedly then admitted everything under oath. What other question would you suggest Nesson should have asked? Not only has Judge Gertner’s honor never been questioned or evidenced in the slightest to be unjust, she is on record several times being critical of the recording industry. And she is well connected to Nesson in the past. The jury also has every appearance of being impartial and that is why Joel’s legal team approved them all. Your criticism here suggests that given the exact same trial and questions but with Joel found innocent instead of pleading guilty, you’d voice no problem with the way the justice system worked.
“Just a simple, slice out any court clarification on how evidence is gathered and just fine the person. That is an injustice from my standpoint.”
You are certainly entitled to an opinion even when it is flawed, factually incorrect and so far, unsupported. I’ve always enjoyed ZeroPaid but quality reporting is the basis of your authority. Websites like this one commit the true injustice by leading their readership away from the facts in these cases, appearing to promote misunderstanding. This is a bad strategy, for it ultimately weakens the pirates position where it may ultimately count the most, in the court of public opinion.
“That’s not a huge host, Drew, that’s one suggestion by you that MediaSentry’s methods are illegal. If you look at the caselaw that precedes this you’d know that MediaSentry has been carefully reviewed in multiple cases in various jurisdictions, and in every case found to be sound and on solid legal ground. This wasn’t considered in Joel’s case because it’s now a false accusation and set aside in previous cases. The key is the Kazaa shared folder. It’s public and open to anyone running Kazaa, not just MediaSentry. So the fact is that you or I could have produced the exact same evidence as MediaSentry by doing what any pirate does, without “investigation” or licensing. Had MediaSentry required a warrant for a wiretap, for instance, the situation would be quite different. But the “issue” you raise is old news, Drew, long discredited and an observation with no legitimacy anymore.”
Since you failed to cite the cases in question, I may as well do this for you. This case asked whether or not MediaSentry’s investigation was illegal. The plaintiffs argued that the question was answered in the Thomas case. Guess what, the Thomas case was being appealed and the question, to my knoweldge, still hasn’t been answered.
After seeing the issue raised in both cases, I see no evidence that suggested that MediaSentry’s activities were legal or not. Unless you can site another case which officially ligitimized MediaSentry being able to investigate users without a license and without violating wiretap laws, I don’t see this argument being dead.
“Websites like this one commit the true injustice by leading their readership away from the facts in these cases, appearing to promote misunderstanding.”
It’s your opinion against mine. Nothing wrong with that. You may think it’s perfectly ethical for a corporation to randomly sue teens for hundreds of thousands/millions, I would disagree. However, so far, I back myself up very regularly with hard evidence.
What is unjust is that an individual can be fined millions of dollars for sharing 30 songs while on the other hand someone can steal something of much greater value and receive a much lesser punishment. Let’s not forget how the bankers have escaped relatively easily despite destroying the economy and millions of peoples lives with it. It’s one law for the rich and another for the poor.
It’s obvious to everyone except those who support the draconian copyright industry that these fines are not commensurate with the crime. That is if those being convicted have even committed a crime in the first place. The practice of threatening lawsuits unless out of court settlements are paid goes against everything that justice stands for.
The fact is that investigators for the copyright industry have been exposed for using illegal practices on numerous occasions. They do not have a snow white record and that is what causes suspicion among the public.
Looking at this case from the UK it looks embarrassing for the US that its justice system is so obviously geared towards the wealthy and powerful. The UK’s justice system is hardly perfect to say the least but the US takes the biscuit concerning bias. The poor are treated no differently to how African Americans were treated during segregation. Anyone who is pleased with this result or thinks that justice has been served in this case really doesn’t understand the principle of democracy and justice.
“The key is the Kazaa shared folder. It’s public and open to anyone running Kazaa, not just MediaSentry”
Who still uses Kazaa?! O.o
Most “P2P” traffic is created by torrenting, fact. when torrenting, you do NOT have a shared folder; you become part of a cloud to share pieces of an individual share, that’s about as far from the idea of Kazaa library as possible.
The only way for Mediasentry to gather details on users is to become part of the cloud themselves thus undertaking illegal activities and file sharing.
All that can be had as a result of this is a users IP address anyway which IS flawed and should be laughable in the court room; there’s many ways to use fake IPs and for most ISPs, they are dynamic and change regularly anyway.
The way I see it; people are being pushed to see how far we can be milked before turning around and simply kicking these people off the edge of a cliff. The world is being run the same way as it was back in 1920; we have been through two whole era’s since then; get with the times.
The technicalities about P2P are not the point the lawfulness of this situation is the point.
Joel Tenenbaum was a fool to accept the jurisdiction of the court over his person, he obviously went into court without a bond (placing his person in contempt of court), perjured his person, and worse pleaded guilty for things which caused no real harm; what a moron!
Many people do not realise that many courts are not Common Law courts, but Admiralty/Commercial courts (games of commercial contracts), so a lot more is in play than most people assume e.g. you can turn the tables by changing your stated role in court.
The Freeman movement has so much on this, it’s scary, they are the Red Pill explorers of the bizarre fictions of the public and legal worlds, and the truth, and lies, about statute ‘law’.