Ray’s wish-list for RIAA v Joel trial
p2pnet news view RIAA | P2P:- Here’s my wish list for Monday’s SONY BMG Music Entertainment v. Tenenbaum trial.
It’s a very simple, very short list.
Basically, all I ask is that the trial be in the real world rather than in the parallel universe.
1. If the plaintiffs wish to prove distribution, they should have to prove:
(a) dissemination of copies
(b) to the public
(c) by sale, other transfer of ownership, license, rental, or lending. See 17 USC 106(3).
2. If the plaintiffs wish to claim statutory damages, they should have to prove as to each work allegedly infringed that its copyright registration effective date preceded the date on which defendant allegedly began using the “online media distribution system” in question. The jury should be required to make findings as to (a) the date defendant commenced using an “online media distribution system” (Kazaa) and (b) the copyright registration effective date of each work they find was infringed. The jury should be instructed that no statutory damages could be awarded as to any work whose copyright registration effective date was subsequent to the date of defendant’s commencement of use of Kazaa. See Practice Tip.
3. Plaintiffs’ lawyers should be prohibited from making any reference in the presence of the jury to any copyright infringement by anyone other than defendant or to their business problems or anything else unrelated to a copyright infringement by this defendant.
4. If the plaintiffs have proved a basis for seeking statutory damages, the jury should not be allowed to award statutory damages of more than $750 per infringed work, absent proof of actual damages of hundreds of dollars per infringed work. (There is long standing case law under the Copyright Act that statutory damages should bear a reasonable relationship to actual damages, and that even in commercial cases the usual multiple is from 2:1 to 4:1. Unless there is evidence of defendant actually having been a distributor, the actual damages are as a matter of law something less than the maximum wholesale price of 70 cents, so in that case the jury should be instructed to award $750 per work it found to have been infringed.) See Practice Tip.
5. If plaintiffs’ counsel claim that defendant “could have disseminated” a great number of copies “to the public” they should be required to prove that technically, rather than assuming it to be true, and they should be required to prove then that it actually did happen, rather than be permitted to speculate that it might have.
6. Plaintiffs should be required to prove that the downloaded song file copies were played and listened to, and their contents verified, by a person qualified to make such determination. See Deposition of President of MediaSentry in BMG v. Doe.
7. Testimony from MediaSentry and Jacobson should be barred under Daubert:
(a) Under Fed. R. Civ. P. and Fed. R. Evid., MediaSentry is an expert (see USA v. Ganier, 468 F.3d 920 (6th Cir. 2006); therefore its testimony should be barred for failure to provide expert witness disclosure;
(b) Alternatively, MediaSentry documents and testimony should be barred for failure to satisfy Daubert and Fed. R. Evid. 702;
(3) Jacobson testimony should be barred for failure to satisfy Daubert and Fed. R. Evid. 702
8. In the event that there are multiple mp3’s from one album, the jury should be instructed that the album constitutes a single “work”. (See, eg UMG Recordings, Inc. v. MP3. Com, Inc., 109 F. Supp. 2d 223, 224 (S.D.N.Y. 2000); Rocking Chair Enters., L.L.C. v. Macerich SCG Ltd. P’ship, 407 F. Supp. 2d 1263, 1268-1269 (W.D. Okla. 2005); King Records, Inc. v. Bennett, 438 F. Supp. 2d 812, 864-866 (M.D. Tenn. 2006))
Is that too much to ask?
Is there a single thing I have said that is controversial, either as a matter of federal practice, or as a matter of copyright law?
Ray Beckerman – Recording Industry vs The People
First they ignore you, then they laugh at you, then they fight you, then you win ~ Mahatma Gandhi
July, 2009
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July 25th, 2009 at 9:20 pm
Ad-Aware just deleted my flash FXP. *@^($&*%^@*&%
Does “Recording Industry vs The People” want to sue ad-aware for me?
Grrrrrr
*$*&%^*&^@*&#^$*&@#$
July 25th, 2009 at 9:39 pm
this is the mafiaa you are dealing with, they are above and beyond the regular court system of law, they have their own laws and rules that the courts have to abide by.
it is a simple one, if you dont pay them you are a criminal and an idiot, and after all they have bought the white house already and are taking over state by state and nation by nation… they kinda remind me of the corporation in war inc.
July 26th, 2009 at 10:22 pm
The problem is in the parallel universe the defense would not have already stipulated many of these issues before the trial. In his deposition Tenenbaum already said that he installed KazaA to download music for free and that others were downloading from him. This is why they are arguing “Fair Use” and other legal issues rather than the facts which are not in his favor.
July 27th, 2009 at 12:12 am
ilike this guy…
July 27th, 2009 at 1:46 am
Admitting you use Kazaa to download music for free doesn’t automatically mean you’re guilty of copyright infringement though. There is tons of great music out there, all of it free. It is the role of the plaintiff to prove the defendant is truly guilty. This is justice 101. I’m sorry but speculation is not proof and I agree with everything Ray has written.
The last thing our society needs is someone being financially raped for downloading an mp3 file which has the name of a copyrighted file, but upon playback is nothing other than white noise. That is exactly where we are headed when the burden of proof has become so lax that it allows someone who has never even used a p2p program, such as Kazaa, to be financially ruined for life or worse. There should be absolutely no room for “maybes”. If we are going to strip people of everything they have, not the least of which is their dignity from public humiliation, then we had better be absolutely 100% for sure that they are indeed guilty of whatever they have been accused of. When I served on a jury, the judge went on at great length about the importance of reasonable doubt. Do we really want to live in a world where the burden of proof is no longer required and a jury can find you guilty even though they are full of doubt? The entertainment industry would love a world were it is guilty until proven innocent. Please tell me with all honesty how such a world would be better and why, because that is where we really do seem to be headed.
July 27th, 2009 at 9:34 am
“Admitting you use Kazaa to download music for free doesn’t automatically mean you’re guilty of copyright infringement though. There is tons of great music out there, all of it free. It is the role of the plaintiff to prove the defendant is truly guilty. This is justice 101. I’m sorry but speculation is not proof and I agree with everything Ray has written.”
Civil vs Criminal, in a civil case you only need to prove that it’s more likely the case.
July 29th, 2009 at 4:31 pm
Why do they still display the FBI warning about criminal copyright law at the beginning of movies? This got me thinking…maybe a question for a lawyer but here goes, is there any such legal defense that can be implemented based on complete ignorance? Say for instance, I have absolutely no idea which songs are copyright protected and which are not. I could probably guess but there is no warning at the beginning of a song that says: “Hey i’m copyright protected.” Or is it reasonable to assume that the way the law is written means that if someone gives me a CDR with songs on it (or emails me an MP3 file with a name goodmusic.mp3) that I must determine the artist’s name and song name and then determine, on my own, whether or not that it is under copyright protection? Of course this would all have to be done prior to my listening or even accepting ownership of the CDR?
Just because Joel brags about downloading songs off the internet doesn’t necessarily imply that he is bragging about downloading copyright protected music. Or have we now reached a point in society that the only good music out there comes from Sony?