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Tenenbaum Lawyers Now Passing the Hat

timothy posted more than 4 years ago | from the lawsuit-based-on-plot-of-the-producers dept.

The Courts 388

NewYorkCountryLawyer writes "Just when you think this case couldn't get any stranger, it now appears that the defendant's 'legal team' in SONY BMG Music Entertainment v. Tenenbaum is passing the hat, taking up a collection. Only the reason for the collection isn't to defray costs and expenses of further defending the action, but to pay the RIAA the amount of the judgment so that their client won't have to declare bankruptcy. I would suggest there might have been a much better way of avoiding bankruptcy. It's called 'handling the case competently.'"

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388 comments

obl. (-1, Offtopic)

gamefaces (1542337) | more than 4 years ago | (#28914339)

I for one welcome our new RIAA overlords

Re:obl. (3, Informative)

Bjorn_Redtail (848817) | more than 4 years ago | (#28914363)

'New' RIAA overlords? Haven't they been around since 1952 [wikipedia.org] ?

Re:obl. (2, Funny)

MaskedSlacker (911878) | more than 4 years ago | (#28914977)

Ah, but they are new to this whole overlord thing. They've been underlords for so long that they're being a bit hamfisted about it too.

I have a question (5, Insightful)

Mr_eX9 (800448) | more than 4 years ago | (#28914347)

Why does it seem that everybody involved in these cases is an idiot? The RIAA lawyers, the defendants and their representation, the judges, the juries...they all sound like total stooges. How has everything gone so completely wrong?

Re:I have a question (3, Insightful)

sopssa (1498795) | more than 4 years ago | (#28914367)

Well if you could do better, go try :)

Re:I have a question (0, Funny)

Anonymous Coward | more than 4 years ago | (#28914865)

Well if you could do better, go try :)

Oooohhhhh -- smiley, smiley.

Aren't you just the smug little son of a bitch?

Re:I have a question (5, Interesting)

NewYorkCountryLawyer (912032) | more than 4 years ago | (#28914421)

Why does it seem that everybody involved in these cases is an idiot? The RIAA lawyers, the defendants and their representation, the judges, the juries...they all sound like total stooges. How has everything gone so completely wrong?

What's gone on in the 2 cases that have gone to trial is like one long, bad dream. The root problem is economics. The defendants can't afford to go out and hire a competent lawyer, and lawyers can't afford to do these cases without getting paid. A good lawyer would have either prevented the outlandish things that occurred, or developed an impervious record for an appeal.

Re:I have a question (5, Insightful)

number11 (129686) | more than 4 years ago | (#28914493)

What's gone on in the 2 cases that have gone to trial is like one long, bad dream. The root problem is economics. The defendants can't afford to go out and hire a competent lawyer, and lawyers can't afford to do these cases without getting paid. A good lawyer would have either prevented the outlandish things that occurred, or developed an impervious record for an appeal.

I have to admit, IANAL even though I read Groklaw, and I haven't been following this case closely. But I saw that the judge's rationale was that plaintiffs had asked the defendant "are you liable" and he said "yes". It seems to me that when that question was asked, all of the defense lawyers should have levitated out of their seats screaming "Objection!" Perhaps I just don't understand the routine, or maybe reflex time is the difference between academic lawyers and lawyers who actually spend their time in the courtroom.

Re:I have a question (5, Insightful)

NewYorkCountryLawyer (912032) | more than 4 years ago | (#28914513)

plaintiffs had asked the defendant "are you liable" and he said "yes". It seems to me that when that question was asked, all of the defense lawyers should have levitated out of their seats screaming "Objection!"

You are 100% right.

Re:I have a question (3, Interesting)

Aeternitas827 (1256210) | more than 4 years ago | (#28914569)

Wouldn't the defendant have been able to refuse to answer, or at least raise concerns, regarding that sort of questioning as well?

Re:I have a question (3, Insightful)

number11 (129686) | more than 4 years ago | (#28914721)

Wouldn't the defendant have been able to refuse to answer, or at least raise concerns, regarding that sort of questioning as well?

Of course. But you can't really fault the defendant for not understanding how suicidal saying "yes" was going to be, he's not a lawyer.

Re:I have a question (3, Interesting)

commodore64_love (1445365) | more than 4 years ago | (#28914999)

I'm surprised they allowed the defendant on the stand. Maybe the rules for civil procedure are different than criminal.

I still think they should appeal the case rather than pay the fine. His sentence is equivalent to a life sentence since that's how long it would take him to work & earn the money. A "life sentence" seems cruel-and-unusual punishment (and therefore unconstitutional) for the mere act of bittorrenting 30 dollars worth of songs.

Re:I have a question (1, Informative)

Anonymous Coward | more than 4 years ago | (#28914725)

I am not a lawyer.

One can't object on 5th Amendment grounds to questions of liability in civil cases, though one can refuse to answer on 5th Amendment grounds. However, in civil cases, factfinders are permitted to infer whatever they wish when the 5th Amendment privilege is invoked. See Baxter v. Palmigiano, 425 U.S. 308, 318 (1976).

Re:I have a question (3, Insightful)

Anonymous Coward | more than 4 years ago | (#28914731)

Tenenbaum would have been wise to remember a scene from Miracle on 34th Street. The prosecutor asks Kris Kringle where he resides and he responds "That's what this hearing will determine." That should have been his answer to the question in the first place.

Re:I have a question (1)

johncadengo (940343) | more than 4 years ago | (#28914851)

Man. Something's wrong. I really was hoping this would be another case of stick it to the man civil disobedience. The kind that goes all the way to the Supreme Courts screaming out injustice. The kind that makes front page headlines about the incredibly imbalance and unfairness of the current legislation. What went wrong here and why aren't we fighting!

Re:I have a question (4, Insightful)

cliffski (65094) | more than 4 years ago | (#28914873)

But the guy *was* guilty. he clearly obviously and without any doubt DID share those songs, DID download copyrighted material, and DID know what he was doing was illegal. This wasn't a single track, he had shared hundreds of songs over a long period.
You waffle on about how "the case should have been handled better", but that's because you are a lawyer who wants his fee.
If this guy was a friend of mine, my advice would be "dude, your guilty as fuck. Settle out of court and get on with your life".
Only a friend who was a lawyer or an anti-copyright zealot would advise any differently.

Re:I have a question (5, Informative)

sumdumass (711423) | more than 4 years ago | (#28914971)

Guilty and liable are two separate things. You can actually violate a law and not be liable to any of it's consequences.

The problem here I believe was that he didn't have the money to settle out of court until after they were committed to trial. At that point, he already talked to a lawyer who saw that he was probably guilty but not liable or at least liable to the extent of the out of court settlement.

When the judge asked if he was liable, the answer should have been no all the way. The big upset here is that the judge is the trier of facts, not a prosecutor or investigator. He shouldn't be able to ask the defendant misleading questions, he is supposed to let counsel present the evidence and then determine what happened. His lawyers should have objected to the question on those grounds alone and instructed Tenenbaum that his position was they he might be guilty but not liable. In fact, that was the position of his case with the constitutionality claims on the penalties and fair use claims and so on.

The question of whether you are liable when the issue is did you do X if so then you are liable is misleading at best because of the intrinsic connection to the guilt of an action. Comming from the judge is even worse. It's like waking someone from a deep sleep to ask them for permission to do something knowing they won't fulling comprehend the question and grant permission. Except in this case, he ended up admitting he was liable under the confusion which negated all of his other claims to a defense against the liability.

Re:I have a question (3, Insightful)

commodore64_love (1445365) | more than 4 years ago | (#28915013)

>>>This wasn't a single track, he had shared hundreds of songs over a long period.

30 songs. The rest is conjectural and not proven, and therefore not relevant to this case.

Re:I have a question (0, Flamebait)

commodore64_love (1445365) | more than 4 years ago | (#28914967)

Dear NewYorkCountryLawyer:

I don't appreciate your tone towards these people (calling them "incompetent" et cetera). If I recall correctly the team was led by a law school professor, who I presume has the same intelligence as the professors who taught you & took you from being a know-nothing student to a professional. In my humble opinion it isn't proper to be insulting a man who likely has a higher IQ than you do (and better manners too). Frankly you're acting juvenile with these insults.

Yes they lost the case, but do you really think you would have been able to win? If yes, then maybe you should have stepped forward to do the job, rather than sit on your ass and be the lawyerly-equivalent of a movie critic or Monday-morning quarterback.

Re:I have a question (2, Informative)

westlake (615356) | more than 4 years ago | (#28914763)

But I saw that the judge's rationale was that plaintiffs had asked the defendant "are you liable" and he said "yes". It seems to me that when that question was asked, all of the defense lawyers should have levitated out of their seats screaming "Objection!"

In which case, the judge simply asks the attorney to rephrase his question or withdraw it.

It's a "harmless error." Changes nothing.

By that time Tennebaum had buried his defense six feet under and paved it over with cement.

Instead, over and over, Tenenbaum admitted under oath that he used KaZaA, LimeWire, and other peer-to-peer software to download and distribute music to others unknown. "This is me. I'm here to answer. "I used the computer. I uploaded and downloaded music. This is how it is. I did it," he testified before a packed courtroom, whose spectators included an all-star cast of Harvard Law School copyright scholars: Lawrence Lessig, John Palfrey, and Jonathan Zittrain.

"Are you admitting liability for all 30 sound recordings" on which the record labels brought suit, asked the plaintiffs' attorney Tim Reynolds. "Yes," said Tenenbaum.

Tenenbaum then admitted that he "lied" in his written discovery responses, the ones in which he denied responsibility.

"Why did you lie at that point?" asked Tenenbaum's attorney, Harvard Law School professor Charles Nesson. "It was kind of something I rushed through," responded Tenenbaum. "It's what seemed the best response to give." At the time he gave the admittedly false discovery responses, Tenenbaum testified that he was being advised by his mother Judith, a family law attorney who works for the Commonwealth of Massachusetts.


During Tenenbaum's testimony, plaintiffs' attorney Tim Reynolds walked Tenenbaum methodically through the evidence, extracting scores of one, two, and three-word admissions that he did exactly what plaintiffs have accused him of doing.

"You used KaZaA to download music, right?"

"You used LimeWire to get music without paying for it, right?"

"Your goal was to obtain the maximum amount of music with the minimum amount of wasted effort, right?"

"Yes." "I did." "Yes, I did," Tenenbaum said calmly, over and over and over, in response to Reynolds' questions.

Tenenbaum admitted that the screenshots captured by MediaSentry in August 2004, showing over 800 song files in his KaZaA shared folder, were accurate representations of the contents of that folder.

He admitted that he listened to his copies of all 30 songs he is accused of downloading and distributing--negating Nesson's suggestion that some of them were actually fake files, "spoofs" put on peer-to-peer networks by copyright owners to frustrate users trying to obtain music for free.

And Tenenbaum accepted all of the conclusions of plaintiffs' computer forensics expert, Dr. Douglas Jacobson, as true. "I trust he's a competent professional," said Tenenbaum. Tenenbaum takes the stand: I used P2P and lied about it. [arstechnica.com]

Re:I have a question (2, Interesting)

MaskedSlacker (911878) | more than 4 years ago | (#28915009)

There has to be more to this--if that's how the testimony went then this had to be intentional. No defense attorney would just let all that go through.

Wasn't there a story some weeks ago about how the attorneys in this case wanted to invalidate the law on appeal anyway?

Re:I have a question (1)

commodore64_love (1445365) | more than 4 years ago | (#28915037)

Fool.

He should have stayed with his written testimony that he knew nothing about downloading anything. Or better yet, invoke his Constitutional right to remain silent.

Re:I have a question (1)

blind biker (1066130) | more than 4 years ago | (#28914957)

It seems to me that when that question was asked, all of the defense lawyers should have levitated out of their seats screaming "Objection!"

Levitated? More like violently propelled, as if sitting on a rocket-powered ejection seat.

This is a disaster.

Re:I have a question (5, Insightful)

pieterh (196118) | more than 4 years ago | (#28914599)

Is there any scenario in which losing this case incompetently and ending up with an outlandish fine actually works against the RIAA? They do in the end need to win over public support and judgements like this one tell people, "piracy is dangerous but the recording industry are massively evil."

It swings the argument away from "piracy is theft and you'll be punished" to "piracy is an act of resistance against a fascist state and you'll be crucified".

The point being that there is no shortage of young guys willing to take the risk of getting figuratively killed if it potentially brings them the great glory of attacking an evil regime.

IMO the motivation of the PirateBay Three was fame and glory more than anything else.

Such judgements thus make it inevitable that the sharing of copyrighted music, movies, and TV will intensify.

Re:I have a question (1)

tsa (15680) | more than 4 years ago | (#28914643)

Why would the RIAA need a positive public opinion? Record companies have a monopoly on the music they sell. They are united in the RIAA. If you buy music, you pay the RIAA to be able to conduct these ridiculous lawsuits, wether you want it or not.

Re:I have a question (2, Insightful)

Keeper Of Keys (928206) | more than 4 years ago | (#28914683)

If you buy music from one of the "big four" labels, you pay the RIAA to be able to conduct these ridiculous lawsuits, wether you want it or not.

Fixed that for you. Not every record label is an evil extortionist.

Re:I have a question (1)

tsa (15680) | more than 4 years ago | (#28914739)

I didn't know that, but isn't there a law that says that even when you buy music from non-RIAA labels you still pay them?

Re:I have a question (1)

Keeper Of Keys (928206) | more than 4 years ago | (#28914779)

I don't think so - AFAIK the RIAA only represents the four majors.

Re:I have a question (0)

Anonymous Coward | more than 4 years ago | (#28914841)

You are thinking of Private copying levy [wikipedia.org] .

For example, here in Finland, you pay significantly extra to buy empty CDs because you might burn music to them. (Which has been made, for nearly any use, illegal. At least if you need to circumvent copy-protection.) That money is given to Teosto [wikipedia.org] which distributes the money to artists (read: record labels) who belong to Teosto. So if you buy empty CD (or hard drive or any other sort of storage device) here in Finland, you end up giving about half the money to Sony, etc...

If I interpret the "United States" section from my first link correctly, the same is true in USA to a much lesser extent. 3% of the cost of blank audio CDs sold goes to record labels.

Re:I have a question (1)

tsa (15680) | more than 4 years ago | (#28914929)

We have that here in NL too. Downloading music is legal here; sharing is not.

Re:I have a question (1)

sumdumass (711423) | more than 4 years ago | (#28914993)

Might as well ad the US to the list. Except in our case, the discs have to be labeled as music. CDs labeled as "data" avoid the tax.

Canada has the same laws but it goes to anything a song could be placed on and at one point in time, it included hard drives.

Re:I have a question (0)

Anonymous Coward | more than 4 years ago | (#28914949)

I think you're talking about SoundExchange [wikipedia.org] , formerly a division of the RIAA. They collect fees for public performance of sound recordings, not from buying CDs or MP3s. The money is distributed to the copyright holders owners of those recordings (usually the record companies).

Re:I have a question (5, Interesting)

NewYorkCountryLawyer (912032) | more than 4 years ago | (#28914653)

Is there any scenario in which losing this case incompetently and ending up with an outlandish fine actually works against the RIAA?

I'd like to think so, but in all honesty, no. When a case is mishandled this way, it will create problems for the competent lawyers representing innocent defendants all across the country. Because the RIAA lawyers will look for any way possible to capitalize on it.

From a PR standpoint, who knows?

Re:I have a question (4, Insightful)

westlake (615356) | more than 4 years ago | (#28914825)

Is there any scenario in which losing this case incompetently and ending up with an outlandish fine actually works against the RIAA?

In one word:

No.

Jamie Thomas took her case twice to a jury and was twice hammered into the ground.

Tenenbaum admits to every element of the plaintiff's case. He admits to lying under oath in his depositions.

He also gets hammered into the ground.

Three juries. Three verdicts. Not the faintest breath of sympathy for the geek taking the stand.

That ought to tell you something.

Re:I have a question (1)

NervousNerd (1190935) | more than 4 years ago | (#28914899)

Three juries. Three verdicts. Not the faintest breath of sympathy for the geek taking the stand.

I wouldn't quite call them geeks, as a geek would be far less likely to get caught.

Re:I have a question (2, Informative)

westlake (615356) | more than 4 years ago | (#28915001)

I wouldn't quite call them geeks, as a geek would be far less likely to get caught.

Excuse me for a moment. I seem to be choking on something.

Re:I have a question (3, Insightful)

MarkvW (1037596) | more than 4 years ago | (#28914833)

I don't know how Louis Nizer could have kept Mr. Tennenbaum from being found liable for copyright violation! Do you? Seriously . . .
Tennenbaum admitted to the copyright violation. A good lawyer can't undo that!

A good lawyer can advocate for mercy (like Clarence Darrow did for Leopold and Loeb), but it's gotta be hard when your client gets the RIAA warning letter and continues with his merry downloading or when your client is believed by the jury to be flat-out lying his/her ass off.

Sorry, but I don't get your "a good lawyer would have made a difference" point. I think that kind of rhetoric has the unfortunate effect of jacking up the Slashdot crowd into believing that there is a real chance of beating these copyright cases (hand-picked by the RIAA to go to trial) on the merits with the law as it stands now.

Your statement regarding an "impervious record for an appeal" suggests that there is a sure-fire winner buried somewhere in the case, but that only a "good lawyer" can preserve it so that the appeals court will ultimately save the day. The only meaningful appellate argument that I can see centers around the extreme punishment inflicted in these two cases. I'm unwilling to conclude, based on the record I've seen, that the lawyers have screwed THAT up. I expect that the Courts of Appeals will ultimately decide whether or not that argument has merit.

What other arguments did these lawyers miss that a "good lawyer" wouldn't have missed? None that would be outcome-determinative, as far as I can see.

Re:I have a question (1)

siloko (1133863) | more than 4 years ago | (#28914437)

How has everything gone so completely wrong?

In a way that's quite reassuring - if everything had gone smoothly AND the judgement remained as it is then I would start thinking of show trials and 1984 - at least with this level of incompetence you know there's no global conspiracy - just stupid people wrapped up in their own theories of 'right'.

Re:I have a question (1)

Doctor_Jest (688315) | more than 4 years ago | (#28914459)

These sorts of suits aren't about who's right and wrong anymore (or if it's even willful or not)... it's just a contest between idiots where each tries NOT to out-idiot the other. In this case the RIAA actually didn't out-idiot the defendant or his lawyers (I use that term loosely). The rest of the fiasco is merely the luck of the draw. Most judges are old enough to remember the invention of radio (I swear they feed off the blood of virgins to stay alive), so asking them to apply laws to a moving target like technology is bound to end up in some "well that stuck on the wall..." I'm surprised the judges don't equate file-sharing with that "evil technology called piano rolls." Either we make judges understand technology, or we provide a colorful handout to juries. (I'm not necessarily saying this case needed a "new technology coloring book", but most tech-related trials like this need some help...) *shrug* It's going to get worse before it gets better, I think...

Re:I have a question (0)

Anonymous Coward | more than 4 years ago | (#28914511)

If you're getting your news from slashdot it's no surprise. The side that's winning is the reviled one. The side that's supported here is losing like crazy.

So the winners aren't popular, and the popular ones are losing.

Of course they look like idiots when you consider that.

Re:I have a question (2, Insightful)

MarkvW (1037596) | more than 4 years ago | (#28914777)

The people of the USA elected representatives who passed these stupid laws. It's not the "RIAA lawyers, the defendants and their representation, the judges, the juries . . .." It's the American People who don't give enough of a damn to participate in government and save us from the stooges of the moneyed interests.

The underlying problem is the draconian punishments imposed by the copyright law. The outcome of these stupid trials are foreordained by the law.

Re:I have a question (2, Interesting)

CAIMLAS (41445) | more than 4 years ago | (#28914855)

Two words: public education. (The fact that you likely understand that statement is likely partially indicative of the total hold popular entertainment has had upon our minds - and the dearth of a literary backing to our psyche.)

The sad fact is that since shortly after (during?) World War II, popular culture (Elvis, John Wayne, the Beatles, etc.) has been the prevailing form of culturing we've received as a society. Yes, some of it's good: intelligently performed, produced, and sometimes educational to boot. But for the most part, it's insipid and a complete waste of time - mental masturbation of the least constructive kind. Before such things, prevailing culture was disseminated through books, discourse (in person and through writing), and social gatherings. Now, we just "party".

Re:I have a question (1)

johncadengo (940343) | more than 4 years ago | (#28914917)

I love how the campaign is titled "Joel Fights Back"

My friends, you call this fighting? Are you serious?

I call this bending over and taking it from behind. He might as well be in jail.

I have a BETTER question... (3, Insightful)

denzacar (181829) | more than 4 years ago | (#28914997)

Can we have a list of names of the people on "the legal team" for the defendant?

From what we've seen it appears to that it may be prudent to avoid their legal counsel in the future.
You know... the way you might want to avoid a leper colony of HIV positive fans with gonorrhea who also happen to have both avian and swine flu.

Fuck em. Time to expatriate. (3, Interesting)

linzeal (197905) | more than 4 years ago | (#28914373)

If you can't declare bankruptcy and escape the life-destroying debt it is time to go on the run. I would suggest Eastern Europe, it is not easy to make money doing TOEFL anymore but you can always sling hash and weed to the English-Speaking tourists. For some reason British/French/German tourists trust American tour guides/drug dealers more so than the average E. European.

Re:Fuck em. Time to expatriate. (-1, Troll)

Anonymous Coward | more than 4 years ago | (#28914397)

For some reason? How 'bout the fact that they're eastern European? Fuckin' slavs are worse than niggers.

Re:Fuck em. Time to expatriate. (0)

Anonymous Coward | more than 4 years ago | (#28914587)

So... to avoid life-destroying debt I should destroy my life? That makes a lot of sense! "I will kill you!" "Not if I kill me first! HAHA! Im a genious! *BLAM*"

Re:Fuck em. Time to expatriate. (1)

Gravedigger3 (888675) | more than 4 years ago | (#28914709)

Destroy your life? Slinging drugs to tourists in Eastern Europe actually sounds like much more of a life than being a wage slave here trying to dig my way out of debt. Tourists + Drugs = $$$ and the exchange rate will mean that if you are taking in Euro or American and converting it to Crown (Czech currency) you will be living like a rock star. Imagine the women.

Of course, like most things, reality would probably suck all the fun out of this fantasy if I actually tried it.

original summary is better (1)

Norsefire (1494323) | more than 4 years ago | (#28914377)

From the firehose:

it's called handling the case competently, apparently they don't teach that at Harvard law school

Re:original summary is better (1)

bertoelcon (1557907) | more than 4 years ago | (#28914393)

Where did NYCL get his law degree? I would like to know where these "good" law schools are in America.

Re:original summary is better (1, Insightful)

mpoulton (689851) | more than 4 years ago | (#28914443)

Where did NYCL get his law degree? I would like to know where these "good" law schools are in America.

They're everywhere. It's not the school that matters so much, it's the lawyer. The top third in the class from any law school will be very smart, very sharp thinkers, and excellent game players. The bottom third in the class will not know how to think like a lawyer, will not have a solid grasp of the fundamentals, and will be easily outmaneuvered by opposing counsel. The quality of the students in the middle will vary, as will the capability of the top students when matched against best from other institutions - that's where the school's reputation comes into play. Of course, a good lawyer on a losing case will still probably lose, no matter what his GPA or which his alma mater.

Re:original summary is better (1, Informative)

Anonymous Coward | more than 4 years ago | (#28914565)

It's on his website [beckermanlegal.com] .
-St. John's University School of Law, J.D., cum laude, 1978
-Herbert H. Lehman College, B.A., 1968
-The Bronx High School of Science, 1964

It agrees with what mpoulton posted. Not a bad school, not an astoundingly big name either. If you graduate with honors, you probably know what you're doing.

Re:original summary is better (3, Insightful)

NewYorkCountryLawyer (912032) | more than 4 years ago | (#28914641)

Not a bad school, not an astoundingly big name either. If you graduate with honors, you probably know what you're doing.

It is an excellent law school in terms of the quality of the education. It has much less prestige than Harvard Law School, however.

As to 'knowing what you're doing', my experience has been that this correlates neither to what law school one went to, nor to one's grades in law school.

Re:original summary is better (1)

bkpark (1253468) | more than 4 years ago | (#28914423)

CmdrTaco was probably worried about being sued for libel by ... the Harvard law school!

Does he have anything to worry about, though?

Re:original summary is better (4, Funny)

NewYorkCountryLawyer (912032) | more than 4 years ago | (#28914429)

CmdrTaco was probably worried about being sued for libel by ... the Harvard law school! Does he have anything to worry about, though?

Nah.
1. It was an expression of an opinion.
2. Truth is a defense.

Re:original summary is better (2, Funny)

rolfwind (528248) | more than 4 years ago | (#28914557)

1. It was an expression of an opinion.
2. Truth is a defense.

Don't worry, corporate lawyers are working on that.

So, instead of pushing for reason... (2, Insightful)

Boogaroo (604901) | more than 4 years ago | (#28914381)

Instead of pushing for a reasonable fine, they expect sympathy from the public?
I'm afraid they're getting neither in this case.

Re:So, instead of pushing for reason... (1)

wizardforce (1005805) | more than 4 years ago | (#28914495)

indeed. Other than that, to anyone [including myself] who knows about the case and either sympathises with the defendant or opposes the RIAA, the idea of actually giving the RIAA/Sony thieves anything is an appalling thought.

Another way (1, Insightful)

Anonymous Coward | more than 4 years ago | (#28914395)

I know it's asking for a "troll" but another option to avoid the bankruptcy would have been to avoid downloading. The music companies are being dicks and the settlements are laughable but it's kind of like complaining about the price of a speeding ticket. It's steep to stop people from speeding. Granted he was caught doing 60 in a 55 zone and they are treating it as though he was nailed for topping 200 mph in a school zone.

Re:Another way (0)

Anonymous Coward | more than 4 years ago | (#28914469)

I guess you're right. I'm not sure what the fine would be for shoplifting a chocolate bar, but if people suddenly started shoplifting chocolate bars at a massive scale, they'd have to raise the fine to crack down on the phenomenon. That's the stage we're at for illegal file sharing. People just aren't stopping, so of course the fines are high enough to wreak a life.

Re:Another way (1)

Keeper Of Keys (928206) | more than 4 years ago | (#28914727)

That is wrong in so many ways it's hard to know where to start. For one, those fines have been in place since long before filesharing was a twinkle in Shawn Fanning's eye, and are meant to act as actual compensation for losses caused by corporate pirates, not punishment to individuals.

Re:Another way (4, Informative)

wile_e_wonka (934864) | more than 4 years ago | (#28914775)

I don't know whether or not you're joking, but just in case you aren't...

The fines were not adjusted to a level that was intended to keep people from file sharing. The fines were set long before Napster was ever contemplated. The fines were set back when a lone person wasn't the target of copyright law, companies were. For example, in China, where copyright is weak, people make lots of money pirating movies and selling them without paying any royalties to the people who make the movies. They were also designed to prevent people from setting up their own movie theater and selling tickets to a movie without sharing the profits. US copyright law is intended to prevent this type of piracy--people profiting from piracy.

What we have here is that RIAA lawyers discovered that a single person pirating a song or movie (but not profiting from it) happens to fit under the same definitions as those folks that sell pirated movies for profit.

Additionally, if I recall correctly, the fine scheme is set up such that a plaintiff can demand actual damages OR statutory damages. Statutory damages being included as an option because in the type of damage caused by a person selling pirated DVDs/CDs/tickets to their own illegit theater are often extremely difficult to prove. So Congress chose a number that would shut down a piracy business.

Immense fines don't do a very good job preventing people from downloading music because it just doesn't seem realistic. Because it's absurd. Individuals are reaping fines designed for companies. It's like getting the death penalty for stealing a CD (note, by the way--downloading music is not the same as stealing a CD--that record store had to pay for that CD).

Re:Another way (2, Interesting)

Toonol (1057698) | more than 4 years ago | (#28914479)

I know it's asking for a "troll" but another option to avoid the bankruptcy would have been to avoid downloading.

Downloading isn't the problem. The defendant didn't receive any fines or punishment for downloading, and I don't believe that anybody ever has. The problems is sharing them (or downloading them with a protocol that automatically shares them, as bit torrent does... or putting them in a shared, publicly accessible folder). If you download songs from, say, a direct link on a website, my understanding is that you are not infringing copyright at all (at least in a legally actionable way). The person sharing them is.

These news stories always talk about people being sued by the RIAA for downloading music, and that's exactly what the RIAA wants people to think, but if you examine the charges, they'll always be for distributing files.

No way I would give them one penny (5, Insightful)

mr exploiter (1452969) | more than 4 years ago | (#28914415)

The money is going directly to the RIAA pockets. Be a man, declare bankruptcy and fuck the RIAA.

Re:No way I would give them one penny (2, Insightful)

siloko (1133863) | more than 4 years ago | (#28914453)

Be a man, declare bankruptcy

The world's gone wierd again - where's my urban dictionary!?

Re:No way I would give them one penny (0)

Anonymous Coward | more than 4 years ago | (#28914713)

The world's gone wierd again - where's my urban dictionary!?

Where's my English dictionary? ;)

Re:No way I would give them one penny (2, Insightful)

tacarat (696339) | more than 4 years ago | (#28914489)

If bankruptcy is declared will he be off the hook for the defense lawyer fees? It may be an effort to pay that bill with free "sympathy money" from the community so that their fees can still be met. Maybe the defense team figures he can afford either/or, but not both bills at the end of this.

Re:No way I would give them one penny (0)

Anonymous Coward | more than 4 years ago | (#28914711)

There are no defense lawyer fees. They worked for free.

Re:No way I would give them one penny (1)

westlake (615356) | more than 4 years ago | (#28914857)

The money is going directly to the RIAA pockets. Be a man, declare bankruptcy and fuck the RIAA.

You are assuming that the federal court judgment can be discharged in a bankruptcy proceeding - a proceeding that has clearly been initiated and contrived to escape the verdict.

This is what happens (5, Insightful)

davmoo (63521) | more than 4 years ago | (#28914471)

The first problem here is his legal representation was a bunch of idiots. The second problem here is he admitted under oath that he did it, he did it repeatedly, he continued doing it after being warned not to, lied about it under oath, and said all this in front of the jury. And what his clown collection representation should be doing now is asking the RIAA if they could belatedly negotiate a more reasonable settlement, which is what the RIAA offered to do after the fact in the Jammie Dumbbitch case.

This case should have never gone to trial. He should have settled for a few thousand right at the start and called it a day and lesson learned.

And the community as a whole has made a mistake in two cases now. It rallies to the support of people who really did what they were accused by the RIAA of doing. Instead of finding a way to back those being attacked by the RIAA who are in fact completely innocent, everyone and their mother throws themselves behind the guilty ones. Neither of these cases was ever "fighting the good fight".

I think it should have gone to trial (4, Insightful)

Sycraft-fu (314770) | more than 4 years ago | (#28914749)

Because with a competent defense, they have an almost unwinnable case. There are just so many areas to slam them on. One of the biggest I'd go for is proof of harm. While I wouldn't have the defense admit to anything, I'd slam them on the fact they have no proof of any harm. Currently, there's only been one scientific, peer reviewed study done on file sharing. It was done by UNC and Harvard (http://www.unc.edu/~cigar/papers/FileSharing_March2004.pdf). The result? File sharing has no statistically significant effect on sharing. Ok so you get that in to evidence. You can keep all their studies out on account of they paid for them (thus there's bias), there is no peer review, proper scientific method wasn't followed and so on.

At this point, the only piece of evidence on the harm of sharing, shows that there is none. So now you argue that it isn't even relevant if the sharing took place as it caused no harm. That wouldn't be your only argument, but would be a major one.

Another major one would be to attack the means of getting the information on what was shared and who shared it. There are so many problems with this, not the least of which that Media Sentry, the company that does the dirty work, is unlicensed as an investigator. So you can hammer them on their methods too.

In the end, what you'd likely have is no proof your client did it, just wild ass speculations, no proof of any harm, even if they did, and so on.

The defense was just amazingly incompetent. I mean they did stupid shit like wait too long to apply to have an expert witness speak, and thus got them excluded. That is pure amateur shit right that. "Oh duh we forgot there was a deadline." You aren't in high school, morons, you'd better be more competent than that.

Re:I think it should have gone to trial (2, Insightful)

cliffski (65094) | more than 4 years ago | (#28914893)

If I steal from the local corner shop, the shop shouldn't have to get peer-reviewed studies to prove that it impacted their business. The law defines theft, or in this case copyright infringement, and he was guilty as fuck.

This guy didn't 'deliberately get caught breaking an unjust law to bring down the system'
He got caught downloading music. Warned, did it again, and knowingly broke the law.
I have fuck-all sympathy, apart from the fact that he has clearly been talked into fighting an unwinnable court case by the kind of people who post about the RIAA being a 'fascist state'.

Feel free to go fight fascism. Don't pretend downloading mp3s is doing that though.

Re:I think it should have gone to trial (1)

davmoo (63521) | more than 4 years ago | (#28914911)

One of the biggest I'd go for is proof of harm.

Would you push this just as hard in a case involving the GPL and a company ignoring it?

Re:I think it should have gone to trial (1, Insightful)

Anonymous Coward | more than 4 years ago | (#28914927)

One of the biggest I'd go for is proof of harm.

Oh, cut it out. When will you bozos understand that there's no need to prove harm? That's why it's called "statutory damages". Like statutory rape. You don't have to prove harm -- both parties may have been blissful as hell over the act, but it's still "statutory" rape. It means, in effect "by law".

All the **AA needs is to prove that "the act" (in this case, mucking illegally with files) actually occurred. They don't have to go any farther than that to win the case. And their "damages".

Re:I think it should have gone to trial (1)

westlake (615356) | more than 4 years ago | (#28914963)

One of the biggest I'd go for is proof of harm.

The copyright owner has the exclusive right of distribution. The damages are assessed according to a statutory formula. He doesn't have to prove how badly he has been harmed.

You can take the UNC and Harvard study into the Congressional hearing. It's place in the courtroom is far less clear.

Considering Harvard's performance in Tenenbaum, I wouldn't be quaking in my boots if did come in.

If it does come in, the others probably will too. The only peer review that ultimately matters in court is that of the jury.

Media Sentry, the company that does the dirty work, is unlicensed as an investigator.

That only matters in cases and in jurisdictions where a "license" is required. The world of the forensics investigator is far removed from that of Spade and Archer.

Tenenbaum said flatly that MediaSentry had got it right:

Tenenbaum admitted that the screenshots captured by MediaSentry in August 2004, showing over 800 song files in his KaZaA shared folder, were accurate representations of the contents of that folder. Tenenbaum takes the stand: I used P2P and lied about it [arstechnica.com]

Re:This is what happens (1)

Keeper Of Keys (928206) | more than 4 years ago | (#28914751)

But literally millions of people are guilty of this so-called "offence". At some point you have to challenge this insane law, although one could argue whether in front of a judge and jury is the right place to do it.

Re:This is what happens (0)

Anonymous Coward | more than 4 years ago | (#28914755)

The second problem here is he admitted under oath that he did it, he did it repeatedly, he continued doing it after being warned not to, lied about it under oath, and said all this in front of the jury.

So in other words, what you're saying is, expect an appeal.

That's all you had to say.

Re:This is what happens (0)

Anonymous Coward | more than 4 years ago | (#28914849)

well, the point is not if they are guilty. of course they are guilty, we always knew that. the point is that the RIAA should not be entitled to persecute that beahviour and charge those outrageous amounts of money.

if anything, it should be handled like a civilian matter: compensation in direct proportion to unlawful enrichment, which i reckon would be equal to the retail price of the songs.

but nooooo, in legal lalaland, breach of copyright is a criminal offense, and the RIAA is entitled to fucking damages. you know, the kind of damages you sue your doctor for when he inadvertedly chops off the wrong leg...

the point is: they are guilty, these trials are nonsense, the RIAA should stop. because we are not :)

It's Such A Nice Distinction (1)

mindbrane (1548037) | more than 4 years ago | (#28914481)

While we the people believe the principles involved are moot. The RIAA believes we the people should be mute.

$20 is too much (3, Insightful)

Mistlefoot (636417) | more than 4 years ago | (#28914483)

$20 is too much for a CD of sub par music. Now you want me to pay the same people who already rip me off, and get nothing?

You want people to donate $600,000 to the RIAA?

Is this from the Onion?

Re:$20 is too much (5, Funny)

NewYorkCountryLawyer (912032) | more than 4 years ago | (#28914521)

You want people to donate $600,000 to the RIAA? Is this from the Onion?

I'm still hoping I've been pranked.

Re:$20 is too much (2, Funny)

NervousNerd (1190935) | more than 4 years ago | (#28914695)

No, no. What you do instead, is send them 600,000 CD's with the Free Software Song [gnu.org] on them.

A reasonable question (1)

hyades1 (1149581) | more than 4 years ago | (#28914485)

How can one not suspect that the defense was bought off by the RIAA? I can't conceive of a team of lawyers who could be so utterly incompetent by accident.

Re:A reasonable question (0)

Anonymous Coward | more than 4 years ago | (#28914545)

This is the some of the most fucked up shit I've ever read. I wouldn't be surprised if this whole lawsuit defendant and plaintiff was a giant farce by the RIAA.

Re:A reasonable question (1)

NewYorkCountryLawyer (912032) | more than 4 years ago | (#28914635)

This is the some of the most fucked up shit I've ever read. I wouldn't be surprised if this whole lawsuit defendant and plaintiff was a giant farce by the RIAA.

Neither would I.

Re:A reasonable question (1)

jpmorgan (517966) | more than 4 years ago | (#28914551)

You can blame his defense if you want, but he sabotaged his own case when he said in court that the RIAA's lawyers were 100% correct.

Re:A reasonable question (1)

Aeternitas827 (1256210) | more than 4 years ago | (#28914631)

You'd be amazed at the amount of incompetency that runs rampant in the world. 20-something college graduates who don't understand basic questions like, 'what's the area code of your phone number', instead giving you their fucking ZIP CODE. I'm pretty sure my child understands the difference, and she's barely old enough to piece together a sentence of more than 3 words. Look around your average shopping mall, you'll find more than your share of well-trained idiots in the world.

If you believe, honestly, that a payoff of the defense counsel was involved here, you must be like my mother-in-law, convinced that the Obama administration is setting up concentration camps to get rid of those 50+, or at least denying them healthcare, or wasting money on vaccinating a bunch of kids against the Swine Flu against their parents' will.

You've Got To Admit The RIAA's Strategy is Working (1)

Dr_Ken (1163339) | more than 4 years ago | (#28914523)

They pick and chose pretty carefully who they are gonna sue in order to gain the most publicity and spread FUD amongst the peons. And it seems to be working out just fine for them too.

Re:You've Got To Admit The RIAA's Strategy is Work (1)

tsa (15680) | more than 4 years ago | (#28914675)

Yeah. Pimp [wikipedia.org] tactics. And pimps are the lowest of the low scum.

appeal bond? (0)

Anonymous Coward | more than 4 years ago | (#28914525)

I think sometimes when someone is ordered to pay X dollars to the other party and they want to appeal the judgement, they first have to put the X dollars in escrow so the appellate court can release the money in the event that the appeal is unsuccessful.
Is that what is going on here?

Re:appeal bond? (0)

Anonymous Coward | more than 4 years ago | (#28914667)

Nah. I'd guess the escrow would be some percentage of judgment, a pretty big sum. Even if he can come up with the money, putting it in escrow would take a way the option of filing bankruptcy to avoid payment.

Though you wouldn't critique a surgery... (0)

Anonymous Coward | more than 4 years ago | (#28914679)

...you apparently are comfortable evaluating the competency of the handling of a legal case. It may not seem difficult, but we go to school for a long time to know what we're doing on these things.

Does this set a precedence for the RIAA? (1)

MrKaos (858439) | more than 4 years ago | (#28914691)

IANAL so I was wondering does this set up a precedence that the RIAA can refer to when going after someone else? Is there anyone there who can say 'IAAL' who knows the answer to this?

Or are they dealt with on a case by case basis?

Re:Does this set a precedence for the RIAA? (4, Informative)

belmolis (702863) | more than 4 years ago | (#28914765)

Only the decision of a court superior to the one making the decision is binding on it. That means that the decision of a trial court such as this does not constitute a binding precedent - only decisions of appellate courts constitute binding precedents, and then only on courts inferior to them. Thus, a decision of the Supreme Court is binding on all federal courts, but a decision of the Court of Appeal for the 9th Circuit is only binding within the 9th Circuit.

Re:Does this set a precedence for the RIAA? (0)

Anonymous Coward | more than 4 years ago | (#28914843)

And only if it has been published. The secret shame of the circuit courts is that the vast majority of their decisions aren't published. It's the whole Anastasoff mess.

Re:Does this set a precedence for the RIAA? (1)

Trepidity (597) | more than 4 years ago | (#28914803)

They'll try to use it as some sort of precedent, sure. But legally, it's basically irrelevant. They won the case almost solely on the basis that they asked the defendant if he was liable, and the defendant said "yes" in open court. All the precedent that sets is: if the plaintiff's lawyer outright asks you if you're at fault in a case, your lawyer fails to object to the question, you actually answer it, and you say "yes", then, well, you lose. But I think everyone already knew that.

Next semester at Harvard Law School (1, Interesting)

blind biker (1066130) | more than 4 years ago | (#28914923)

Probably a drop in enrollments.

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