back to article Record-fine Napsterer wants retrial with RIAA

A Boston University graduate student ordered to pay record labels $675,000 for illegally sharing 30 songs on Napster and Kazaa is asking a judge to grant him a new trial or reduce damages, which he claims are "grossly excessive" and unconstitutional. Joel Tenenbaum and his copyright-shunning techno-Utopian attorney Charles …

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Pirate

I'm clearly so out of touch

"The Court reasoned that an 'unauthorized use should be considered 'more fair' when there is no ready market or means to pay for the use, while such an unauthorized use should be considered 'less fair' when there is a ready market or means to pay for the use,'"

At home I have several pieces of software that I have written. I have no intention of selling them but they are visible on my web site. I occasionally have people asking for the source code or if they can buy the software and the answer is no. So there is absolutely no means to pay for use, does this mean that if some hacker gains access to my machine and spreads the software over the internet that copyright has not been breached or that it is somehow more OK to do so?

Although the punishment seems extraordinarily high for a student I wonder what a typical artist might have expected to earn from each of these tracks. At $1 per track it seems that 25,000 copies is not all that many. The lesson to other would be copyright thieves should be that the recording industry is quite happy to ruin your life (or more likely the life of Ma and Pa in this case) if you threaten their income.

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WTF?

Slightly Different

Slightly different scenario don't you think? In the example you give, the person spreading your code has broken into your system..... Crime, Copied your software illicitly ....... Civil Offence (possibly criminal in some cases)

You chose not to make the source available, that's not quite the same as making a track available, but only so it can be played on an iPod, with the only other alternative being to buy a full album.

Having said all that, whilst I'm no fan of the Record companies, I'm not sure that the courts reasoning is entirely correct. That said, it does protect consumers to some extent (in the US at least). As an example, it's technically illegal to watch DVDs on a Linux PC because you have to circumvent the CSS. But if we had the equivalent of this judgement, you could perhaps argue that the Media Companies have no right to dictate what OS you use, and that there was no other way you could watch a DVD on your PC.

IANAL, and I'm on some pretty strong painkillers, so perhaps this doesn't make as much sense to you as it does to me!

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Pirate

25000 uploads?

"At $1 per track it seems that 25,000 copies is not all that many"

Assuming the information I found with a quick search is still correct and with a $1 track price:

Apple gets 35 cents

The record label gets 55 cents

and the artist get around 10 cents (if they are lucky and don't have producers and recording costs to pay)

I assume that your support is mainly with the artist rather than the record label so it would require a full 225,000 uploads to deprive the artist of $22,500. With a 4MB song file this would equate to a wholly unrealistic 879GB of uploaded data (per track).

Even if you just consider a full $1 loss per upload, it would still require 88GB of transfer to upload it 22,500 times. Simple common sense dictates that there is almost no chance this occurred and so the fine is grossly disproportionate to even cover the theoretical loss of 1 upload = 1 lost sale.

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FAIL

Hey, Iggle Piggle

Guess what? I can go through and upvote all the anti-copyright posts just as well as you can downvote them. Idiot.

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Has anyone ever asked RIAA...

Just how many songs were actually downloaded from this guy, or have they been allowed to flap their hands and go "BILLIONS AND BILLIONS OF SONGS COULD HAVE BEEN..."

Just curious.

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FAIL

Better idea for Tenenbaum:

get a real lawyer

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recalculate

30 songs at $1 each multiplied by the amount of downloads people made of those songs from him plus 10%.

Basically if 1000 people downloaded off him, which is unlikely, then the max fine would be $33000.

I think it's ridiculous the amount they try to fine people, any ordinary person would then have to work a lifetime and never eat or live anywhere that costs money, basically a life sentence for a bit of music sharing.

It would be simpler to tell the judge "Fuck off you wig wearing bastard, I'm not paying" get a nice custodial sentence and all done.

Or even simpler nowadays, Peerblocker and Tor.

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WTF?

Please, Mr. Judge, ...

... slap me again. And again. May I please have another one, sir?

OMG...

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Flame

Soon, murder and terrorism will be lesser crimes than sharing music.

If decisions such as this continue, soon murder and terrorism will be lesser crimes than sharing music.

Sharing music has been a part of every culture since the beginning of time - or it was up until these cultural terrorists said we couldn't do so.

So entrenched and powerful are these jackbooted authoritarian copyright bullies that nothing less than a popular worldwide revolution will unseat them. With one hand they've a gun pointed at Government's head and with the other a noose around its short-and-curlies.

If anyone needs a quintessential example of why the powerful treat Democracy as a joke or something just to be manipulated at their beck and call, then this is it. Everyone knows instinctively - or ought to - that there is something fundamentally wrong with copyright as presently constituted, and that suing kids, mothers and ordinary people for vast fortunes over comparatively minor infringements is not only counterproductive, morally wrong and humiliating for those concerned but it's also corrupting the very heart of our democracies. Yet those representatives who supposedly run our democracies are totally powerless to do anything about it - except to continue to give ever-increasing 'rights' to those who should not have them.

Simply, modern democracies are no longer democratic; at every twist and turn the average citizen finds himself undermined and debased by the very politicians who purportedly seek to serve him. No matter how bad or weak Joel Tenenbaum's defence was, he does not deserve the draconian and tyrannical 'justice' that was inflicted upon him in this way. Clearly, the normal checks and balances of the democratic process are just not working anymore. It ought to be a stark reminder or wake up call to all citizens about how really dangerous the State can be.

Nothing less will fix the problem other than shredding to dust the Berne Convention together with its all-encompassing anti-democratic WIPO add-ons. Then we can start afresh: we can ensure artists, authors and performers get fair dues for their work but also we can ensure society gets back its culture - its music, its art, its written heritage and its science.

What's at stake is huge: it's whether we citizens independently own our culture or whether it's to remain locked up in the controlling hands of a few powerful elites to be dished out not only in ways that are immensely profitable for them but also in ways that keep the masses numb and compliant as did the Roman elites 'sedate' Roman civilization with colosseums and controlled mass entertainment - a complete hardware and software package deal to facilitate easier State control. One doesn’t have to be Einstein or Chomsky to figure out history has repeated itself.

To the greedy, mindless or ill informed, let me remind you that the greatest works of humankind were produced in environments that essentially had no copyright protection. The works of Bach, Beethoven, Mozart, Shakespeare, Goethe, Vermeer, Michelangelo and Rembrandt just to mention a few. When faced with people copying their works these great artists responded with new works. For example, when faced with people copying parts of his masterpiece, Don Giovanni, Mozart responded by writing a new derivative work - a work that never would have made it into the repertoire if copyright, as we know it today, had been in force in the 1780s.

Current copyright law and the immoral international copyright - so-called intellectual property treaties that our governments have entered into to our considerable disadvantage are not only a huge restrictive obstacle to cultural development and a severe hindrance to science and development, but also they allow the privileged few upon whom are conferred such 'rights' to actually 'steal' with impunity ideas from the existing cultural corpus without whatsoever any redress to us - we the collective owners of the culture.

The one-sidedness of Copyright Law is just outstanding; it is patently obvious to everyone who gives it a modicum of thought that the Law does not require 'rights' holders to contribute one single iota - not one penny, dime or idea - back to the community from which they came. 'Rights' owners have every conceivable form of control imaginable - it's total control. And now, since an almost worldwide enactment of the 'Mickey Mouse Protection Act' [DMCA], that to the average citizen, copyright protection is now so long as to be effectively perpetual. (In one sense it simply beggars belief that things have gotten this bad without citizens rioting in the streets, but as we know 'technical' law, brought about through the lobbying of vested and special interest groups, is usually foisted on the masses who don't realise the significance* until it's too late.)

We have educated 'rights' holders in our culture, we inculcated them with our cultural and social norms and way of life; early in life we encouraged them to absorb every aspect of our rich cultural heritage - our art, our literature, our science and every aspect of human behaviour - usually at our expense. Yet, Copyright Law grants them - with absolutely no strings attached - totally exclusive 'rights' to produce DERIVATIVE works based on OUR long lineage of wonderful cultural history, yet we ordinary citizens are totally excluded from the process and without any say whatsoever. To add insult to injury, Copyright Law automatically confers all 'rights' onto the copyright holder whether he wants them or not let alone whether he can justify his total ownership of them or not.

(To say or imply that a copyright owner produces content or works out of a cultural vacuum is an absolute absurdity. For example, as brilliant as he was, Beethoven could only produce The Ninth Symphony or his Late String Quartets because Hayden, Mozart, Bach, Buxtehude, Palestrina, et al, had all gone before him. He stood on the shoulders of this cultural legacy.)

As if exclusive rights alone aren't enough. Injustice is perpetuated when any poor unfortunate perpetrator intrudes into or disturbs this exclusive 'copyright' in any way, as he will be made bankrupt by the pernicious, unjust and unfair provisions of vindictive Copyright Law, as we've witnessed the injustice inflicted on Joel Tenenbaum.

As it is currently contrived, Copyright Law is not only anti-democratic but also morally wrong and ethically obscene in that it allows non-government and third-party entities, RIAA et al, to have carte blanche to do ruin the lives of ordinary citizens. That these entities can do so with total impunity and with a level of authority that a prosecutor has at a terrorist trial, is both Orwellian and truly frightening.

Even if you do absolutely nothing, at least spend a moment to think about your own vulnerability.

_______

* At the Berne Convention(s) so ineffective was representation for copyright consumers that they essentially received nothing. Even 'fair use' provisions were so vague that just about everyone erred on the side of caution to avoid potential lawsuits.

Laws that contain simple notions such as 'good' or 'reasonable' but without adequately defining the terms or putting a measure on them are commonplace in Western democracies. Because these extents or boundaries are not adequately defined, most law-abiding people stay well within them thus their actual freedoms are effectively considerably less than the legislature actually defined. This ploy or ruse of playing off the 'defined' against the 'intended' and achieving effectively more law than actually written is clearly anti-democratic, and Copyright Law is but an excellent example--120 or so years on and we're still arguing about 'fair use' or what constitutes 'orphaned' works attests to this.

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+1

This comment needs (even) more attention than it will get as a reg comment. If I were the Joel Tennenbaum I'd want Graham Wilson as my lawyer.

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That, sir, is a bloody masterpiece.

El Reg, you need to repost Graham's comment as an article on your main page. Failing that - Graham, I would like your permission to reproduce your comment on my blog, with proper credit and a link to a website of your choice. Please let me know, if this is OK - how you would like to be credited and what link you want.

Such a well-written discourse on the obscenity that is modern copyright law deserves permanent exposure in places more easily reached than an obscure comments thread.

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Wow.

What can I say? This deserved to be reprinted on the front page of a paper and given wide circulation to try to prompt people into thinking... if the average person is even really capable of that these days. :-(

But anyway. Wow. Excellent, reasoned, logical response. Blinding.

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Happy

Steve, thanks for the encouragement.

Thanks Steve for the encouragement.

I've written stuff like this before but it rarely gets any attention, however this time the English was a little neater and the post's headline was about as good as it gets for such comments (I enjoyed writing it and the words came easily). ;-)

Unfortunately, the copyright debate has degenerated into little more than a slanging match between copyright holders and those who want to purloin, borrow, steal or license their works. The reason is that copyright holders have reached the end of the line--they have everything the legislators and the Law can possibly provide with the possible exception of copyright duration. Essentially, they've had everything since the Berne Convention of 1886 (completed Paris 1896). When you're at the end of the line, you can return or anchor yourself there, and they're anchored in with the highest tensile stuff around and with every intention of staying there indefinately. Thus, there's no real discussion or intellectual debate over copyright other than squabbles about 'rights' holders defending their turf.

It's been like this for years, long before the PC--I first encountered the absurdity and extent of the problem in the mid1970s when I was involved in setting up a radio station. That's when I came across another first-class scam. Not content with royalties alone from recordings, these bastards (middlemen who'd put Ronald Biggs to shame), extracted an extra royalty called The Mechanical Performing Rights charge. That is a government-granted exclusive right to authorize someone to stick a pickup needle into a record groove! I saw red back then and I've still not cooled down. Such charges are immoral and they're only there because the 'rights' holders got to the legislators first (as these sort of people always do). Berne was one of the biggest con jobs of all time, as Victor Hugo [the French author] and his cronies thought the whole idea up and were its main instigators. Yep, they had the show all to themselves. It stinks to high heaven.

It's a terrible shame that the press hasn't done any lateral thinking about the broader copyright issues because there are many alternatives, some of which provide artists with a better income stream than they're getting now, most, however, mean cutting out the middlemen. There are other considerations too; copyright would be better served if the laws covering printed works, software, music etc. were different. Today, one-law-fits-all is very rough and ready--unless you're the copyright holder.

For the record, I'm not against copyright, just its extreme unfairness and its ludicrous and extortionate life span.

I'm quite happy for anyone to use my comments (and attribution would be nice). Finally, this is just the overview, there's a lot more to these arguments and it would be good to have them mature by being tossed around by many minds. Contact me at your leisure (if you want a direct email address then I can arrange that).

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Happy

Ha, reckon he'd be better off with expert Silk who've learned from the stuff-up!

Thanks for your much appreciated comments, I often write to posts and I usually wonder if anyone ever reads them, it's rare for someone to take the trouble to reply.

Anyway, read my reply to Steve Roper, they're addressed equally to you too.

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Happy

Thanks very much for your comments, they're really appreciated.

To save duplication, read my reply to Steve Roper.

When one's so often out on a limb as I am, occasionally, it's really good to have company!

Thanks again.

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Anonymous Coward

Give him a new trial

Give him a new trial and this time increase the punishment to a million dollars and 5 years in prison.

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Anonymous Coward

Some just don't get it

Stealing is a crime. Punishment is meant to be painful for criminals, especially those in denial who seem to be lacking any remorse for their unacceptable behavior, in violatation of law. The more pirates they lock up the better. When pirates are squealing you know the prosecutions and punishment are having the desired impact. The only good pirate is in prison.

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FAIL

re:Some just don't get it

As is obvious in your case.

Repeat after me:

Theft is depriving a person of real property such that they can no longer use it.

Copying is just maybe depriving a person of a possible theoretical fraction of a reward for doing their job while still allowing them to charge exorbitant markups on the original that they still keep.

Do keep up, dear boy...

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FAIL

Not again ....

.... COPYRIGHT INFRINGEMENT IS NOT THEFT!!!! Never has been, never will be. In the UK at least, if anyone would try to prosecute copyright infringement as theft, they would fail. The definition of theft is "the dishonest appropriation of property belonging to another with the intention permanently to deprive".* A prosecution would therefore fail on the "permanently to deprive" requirement, probably the "property" issue, and in most cases the "dishonest" bit (since most music sharers do not consider it to be dishonest).

For the record, I know the current story is set in the USA, but the general definition of theft is very similar.

Now, please go and troll somewhere else - we don't find you funny.

*Theft Act 1968, section 1.

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WTF?

Whu??

"blaming Apple's formerly DRM-bogged music for further advancing copyright thievery"

You're kidding right, THIS is an excuse?

Methinks the appeal will not go far on this reasoning.

That's like saying that the die clips on clothing further advances shoplifting.

(not that I care at all for the RIAA and it's tactics, but seriously, this is a pretty poor defence tactic.)

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Alert

While Tenenbaum has ruined absolutely no-one's life...

The fact that his own has just been destroyed, is a serious incentive for him to act in a proportionate manner...

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Pirate

hrmm

and they wonder why citizens flip out and kill people?

(what... no ninja icon???)

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FAIL

Disproportionate fines

"Stealing is a crime."

This is not stealing it is copyright infringement -- stealing deprives the person stolen from of whatever was stolen from them. You make a great case against this ridiculous fine though. What WOULD the penalty be for stealing 30 songs? Well, theft under $300 varies by state here in the US but in general the fine is under $1000.

"Punishment is meant to be painful for criminals, especially those in denial who seem to be lacking any remorse for their unacceptable behavior, in violatation of law."

Yes it is, and I agree his request to get fined just 99 cents a song would be ridiculous. But $625,000 is more ridiculous.

"The more pirates they lock up the better. When pirates are squealing you know the prosecutions and punishment are having the desired impact. The only good pirate is in prison"

The jails in the US are overcrowded from people like you wanting to throw everyone in jail. An ACTUAL pirate? Sure people that hijack ships for money should be thrown in jail. Making some copies? Hell no. He was not even making bootlegs.

--------------------------------

It's too bad, he seems reasonably cogent when I've seen/read him speaking, but in court him and his lawyer just seem to be unable to make the same points, or any good points in his defense at all. He *IS* right that rights-restricted music is not an alternative to P2P though, if the judge did say his fine was based on alternatives existing then he should have his fine reduced by this, although the bigger point is that it's an unreasonably large fine for the amount of music distributed and that he did not make any commercial gain (i.e. he wasn't out on the street selling bootlegs.)

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Anonymous Coward

Send him to prison

This clown deserves to be in prison for wasting the courts time. He's in denial and needs a strong dose of reality. Sned him a memo he won't soon forget.

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Stop

re: Send him to prison et al

Yes, that's right, how dare he resort to recourse legally available to him. If the argument is rubbish, he's not going to get anywhere, is he? Should that mean he shouldn't be allowed the chance to appeal against a clearly, ridiculous ruling?

Repeat, copyright infringement, is a civil offence, and is not stealing...

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Anonymous Coward

Denial is futile

You'd think after getting hit with a $675,000 fine that this idiot would have gotten the message. Maybe in his next trial they'll throw him in prison for a few years and double his fine because he's so ignorant? That would teach him a lesson. They did a similar deal on another pirate in denial. Reality is a tough pill for many pirates.

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Anonymous Coward

Troll

Stop being silly and let the grown up's talk, there's a good boy.

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