…I had a few thoughts. The April 4th, 2001 1st U.S. Circuit Court in Boston Massachussettes 9:30am docket agenda was only for an oral argument regarding the proprietary of such and enormous award reduction by Judge Gertner’s reduction of the $675,000 original jury verdict to $67,500.
The basic overview was that Jeffrey Clair for the U.S. Council, and Paul Clement, a prior solicitor general (can you say revolving door?) voiced their arguments based on Williams that allows them to circumvent violating the 7th Amendment concerning Statutory Damages Provision to excess. Mr Clair argued that Remittitur was not even an option that should be heard by the court, and that the excessive damages do not create a Constitutional issue.
Mr Clement, however, was much more colorful in framing the debate around the devastation the recording industry has suffered, and apparently it is all Joel’s fault. He completely side stepped the issue of performance rights violations and focused on the distribution angle. “It’s taking copyrighted work and putting it in the public domain”, he stated. He wrongly advised the court that ALL file sharing technology forces you to share a folder, thus making available.
One of the judges called him on this by asking, “is making available equate to distribution?” He quickly moved the argument over to Joel’s behavior being reprehensible and “we [RIAA] are devastated by file sharing distribution”, making it sound like the entire music industry’s woes are due to Joel downloading 30 songs. “We have technology that could prove distribution, your honor, but the defendant admitted his guilt, so that is proof enough”, “we can prove it, we just don’t know how many times the work in question was distributed”, he continued.
If you can prove it, then why can you not know how many times, and for which work was infringed upon? I would say you can’t. The EFF got to speak, a Ms Jule Aarons, who seemed scared shitless, again affirmed the defenses taken by Joel and others. Because Joel endured a civil trial, there was no jury, only during the damages portion of his trial was there a jury, and the EFF was not allowed to participate in education of the jury. Joel’s motion for fair use was denied, he was not allowed any witness, there was no proof provided by the plantiffs, and the EFF brief to the jury was denied because the plaintiffs argued that would be considered nullification.
Nesson spoke, what a beatnik, anyway, he started his 3 minutes quoting some obscure, irrelevant book, and then goes on to accuse the RIAA of “[they] articulate the statute as expansively as possible in their own interests”. That in 1909 Statutory Damages were introduced for commercial infringement ONLY, there was even a menu of specific infringements and specific damages for each. Even after the amendment in 1976, they changed the ranges of damages, removed the menu, and still maintained the target was commercial infringement, and not to bankrupt consumers. He compared willful file sharing to willful jaywalking.
It was good to actually sit thru the hearing and listen to these bright minds spew mindless drivel arguing that screwing over our customers with astronomical damage awards is just fine, nothing new here. The level of audacity heard in the plaintiffs voices is unmistakable. I believe the Constitution is clear on this, and that the Statutory Damages Provision was implicitly designed for commercial infringement.
File sharing is copyright infringement, nothing more, a civil offense. It is not theft, it is not even a lost sale. The rhetorical propaganda, outright lies of damages, and the abundance of self worth has done nothing to help an industry in the spirals of death. As more and more real research is done on the affects of file sharing, less and less of it is being heard, considered, or even reviewed during any copyright legislation.
So the question remains, will Joel be responsible for $675,000 in damages the greedy RIAA are demanding, or will he owe $67,500 that Judge Gertner imposed, or will the 1st Circuit Court reduce it to $30, which is what Joel believes he owes.
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