District Court: $675,000 For Non-commercially Sharing 30 Songs Is Perfectly Reasonable

from the pay-up dept

Let's be clear on one thing: Joel Tenenbaum should never have allowed the record label lawsuit against him to go forward. As with Jammie Thomas before him, he was not a good defendant, and had too many factors that clouded the key questions concerning the statutory damages rates in copyright law. Even worse, he lied to the court and his lawyers seemed more focused on making a point than mounting a defense. As we said all along, he needed to find better lawyers (and he probably shouldn't have fought this in the first place). Even the judge, who clearly was sympathetic to Tenenbaum's side of the story, rejected his basic argument, on which his legal team seemed to bet their whole strategy -- and then berated his legal team for their dreadful handling of the case.

Given all of that, it's easy to conflate all of those other issues with the important one: are the statutory rates for copyright infringement, especially in cases of non-commercial, personal use, Constitutional? The original judge, Nancy Gertner, argued that they were unconstitutionally excessive, which became the focus of the appeals process. The appeals court rejected the process Gertner used to come to that conclusion, saying that she should have used "remittitur" to reduce the award and offer the RIAA a chance for a new trial (as happened in the Jammie Thomas case). Instead, Gertner effectively tried to jump the line, by going straight to a Constitutional argument. The appeals court noted that it was too early in the process for that, and she should have used remittitur first. As such, it reinstated the original jury award of $675,000 for sharing 30 songs. The Supreme Court then refused to hear the case, which wasn't a huge surprise either.

So... back down at the district court, with a different judge, who doesn't seem nearly as sympathetic. Given that the judge is 80-years-old, it's perhaps not a surprise that she seemed to spend more time talking about what a naughty kid Tenenbaum was, rather than the actual reasonableness of the rates. The court has now said, not only does it not find $675,000 constitutionally excessive for sharing 30 songs, but that it doesn't even qualify for remittitur, because $675,000 is not "grossly excessive, inordinate, shocking to the conscience of the court." In other words, a $675,000 judgment is perfectly reasonable for sharing 30 songs. The judge, not surprisingly, focuses on many of the elements that we discuss above in arguing why it's not excessive, with Tenenbaum's continued use of file sharing and his lies, to support the supposed reasonableness of the ruling. She never actually looks at whether the numbers make sense, but merely suggests that because he didn't revere copyright law, that such an award is perfectly reasonable.

Unfortunately, it seems that Tenenbaum's behavior -- which we agree was not good at all -- clouds the larger issue of just how insane the statutory damages are. Some, of course, will point out that he's been accused of sharing a lot more than 30 songs, but that doesn't matter. The trial was about 30 songs. We don't punish people in a court for stuff they're not charged with and which they can't defend against. If you want to say that $675k is reasonable for thousands of songs, then he should have been charged with infringing on that many songs.

The judge argues that one of the factors that makes this "reasonable" is that if Tenenbaum had wanted to license the songs for distribution himself, the cost would have been "enormous," according to the labels. But that's a silly comparison, because this wasn't a commercial venture and he wasn't looking to set up a service -- he was just doing what millions of people around the world do -- whether you think it's right or wrong. As such, any thinking person should recognize that a $675k fine for the personal sharing of 30 songs seems offensive to the senses, even if you agree that Tenenbaum is not particularly apologetic for what he did. It really is a situation where tons of people were doing it, and right or wrong, it had become the norm. Something is wrong with a legal system that burdens people with such out of proportion awards for doing what everyone's doing.

And despite the RIAA cheering on this decision, claiming that it's "pleased" with the decision, it actually hurts them too. When ordinary people see $675,000 judgments for sharing 30 songs, they respect copyright less, because it seems so out of proportion with reality.

This case probably isn't over yet, and there will likely still be an appeal to get at the Constitutional questions. But, I'm worried that Tenenbaum's own bad actions, separate from what he's accused of, are clouding the water here, and actually make this a bad and potentially dangerous case. That the court has upheld the $675,000 isn't a surprise, but it should still be worrisome to people in terms of the precedent it will set for the next group of people accused in this manner, who didn't act the same way Tenenbaum did.


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    DannyB (profile), Aug 24th, 2012 @ 5:51am

    It's as reasonable as the $74 TRILLION in purported damages that is being done by piracy.

    They need to collect that $74 Trillion, one outrageous judgement at a time.

    Why not just set the retail price of music at $675,000 for 30 songs and offer them in internet downloadable format? That would work.

     

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      gorehound (profile), Aug 24th, 2012 @ 6:11am

      Re:

      RIAA can lick a Dog's Dirty Asshole !!! Bunch of FRakkin Creeps & Thieves.They are never going to see a dime out of my pocket and same goes to the MPAA SCUM.
      I do not care who is coming out or what movie or what new TV Show.All of these Big Content A-Holes have lost me as a Customer for life.
      If I decide to spend any of my cash it will either be on Local Art or it will be on something INDIE.
      Let the Mindless Stupid Consumers flock to the A-Hole Copyright Maximalists.

       

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        Anonymous Coward, Aug 24th, 2012 @ 8:35am

        Re: Re:

        Ooohhhh, something INDIE! Fight the man! This makes you look so cool and everyone wants to be just like you! Yeah!

        Fucking moron. Take your cash where you want. No one wants your tens of dollars anyway you homeless tard. The "Mindless Stupid Consumers" outnumber you and will continue to outnumber you. Rather than making fun of those people, you'd serve your cause better by trying to change minds. Instead you just want to be different and stick it to the man because you're trapped in the mind of a 12 year old emo kid who hates authority.

        You were beat before you ever started your rally. Take your tens of dollars elsewhere because we don't want them.

         

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          BigKeithO, Aug 24th, 2012 @ 8:57am

          Re: Re: Re:

          Can I have your tens of dollars? I want them.

          Step 1 - Take lots of "fucking morons" tens of dollars
          Step 2 - ???
          Step 3 - PROFIT!!

           

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            Anonymous Coward, Aug 24th, 2012 @ 9:04am

            Re: Re: Re: Re:

            Make something bad that sounds like industrial equipment running over cats and farm animals, call it INDIE (in all caps apparently) and gorehound will gladly give you his tens of dollars.

             

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          RadialSkid (profile), Aug 24th, 2012 @ 6:12pm

          Re: Re: Re:

          This is too funny...first you industry pole-smokers whine when your noise gets pirated, saying "If you don't want to pay for it, just go without it!" Now met with someone who is going without it, your response is akin to "Well, who cares? We didn't want your money in the first place! And we'll say the exact same thing to the thousands of people who start following you!"

          Bed. Made. Lie.

           

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      Forest_GS (profile), Aug 24th, 2012 @ 6:57am

      Re:

      Don't forget, all that money is going right back into the frey, fighting for copyright! (none of the artists will see a dime, though some gatekeepers might)

       

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        RD, Aug 24th, 2012 @ 7:13am

        Re: Re:

        "Don't forget, all that money is going right back into the frey, fighting for copyright! (none of the artists will see a dime, though some gatekeepers might)"

        Oh its a lot worse than that. What actually happens is, the RIAA charges ALL costs back to the label, who then charges back those costs to the artist(s) against their "recoup" costs. So, the money collected stays with the RIAA, with none being disbursed to the artist (whom, the RIAA and labels claim, is who the prosecutions and fines are for), but ALL costs are charged ultimately to the artist.

         

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          Anonymous Coward, Aug 24th, 2012 @ 7:35am

          Re: Re: Re:

          IE, artists foot the bill, RIAA keeps the spoils.

           

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          Marquee Mark, Aug 24th, 2012 @ 7:51am

          Re: Re: Re:

          Okay, if I follow your logic, the real problem is Charlie Nessen. If he had let Joel Tennenbaum roll over, pay the fine and get on with his life, the artists would have gotten something from the settlement. All of Nessen and Tannenbaum's fighting was taking money away from the artists by letting the lawyers bill more.

           

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            Anonymous Coward, Aug 24th, 2012 @ 8:25am

            Re: Re: Re: Re:

            Methinks the artists wouldn't have seen one dime of any amount of settlement because 1) the RIAA has openly stated that money from settlements goes right back into the litigation machine and 2) if anyone thinks Tennebaum has over 600,000 USD to pay up just lying around they are out of their tiny minds.

             

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            jupiterkansas (profile), Aug 24th, 2012 @ 9:16am

            Re: Re: Re: Re:

            If the RIAA hadn't gotten their court case, they would probably still be shaking hundreds of people down for thousands of dollars.

            Needless to say the only case they let go to trial was the one they felt they could easily win, and they had thousands of people to choose from.

             

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              Anonymous Coward, Aug 24th, 2012 @ 11:29am

              Re: Re: Re: Re: Re:

              The RIAA hasn't promised not to resume its settlement shakedowns. Getting this precedent is very important to them, because then very few file-sharing cases will ever get to the trial stage; any deep-pocketed file-sharers accused of copyright infringement will be advised by lawyers and judges to just settle.

               

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            Anonymous Coward, Aug 25th, 2012 @ 9:12am

            Re: Re: Re: Re:

            You're an idiot if you think any of the money from fining college students for music downloads ever made it into the pockets of artists.

            The RIAA have made it extremely clear that any money from these endeavours are to be thrown back into the machine to sue more people. Artists won't be seeing a dime.

             

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        New Mexico Mark, Aug 24th, 2012 @ 7:53am

        Re: Re:

        Unless Tenenbaum is pretty wealthy, the RIAA won't get a tithe of that judgment. It will probably only ensure he remains below poverty level and legally harassed for the rest of his life.

        Sometimes, a person or organization is primarily defined by what they are willing to do to others in order to "win" and their attitude in so doing. The RIAA could have turned around right after the judgment and said, "We think we've made our point, and it isn't our goal to destroy people over this. We'll unilaterally forgive 99 percent of his debt if Mr. Tenenbaum will sign an agreement not to appeal this any further." That was their opportunity to show themselves to be something other than villains.

        I'm saddened but not at all surprised.

         

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          Sean, Aug 27th, 2012 @ 8:19pm

          Re: Re: Re:

          The problem is RIAA has probably spent $1,000,000 in Attorneys fees. The problem is not just with RIAA it is with any person who will do anything for money, no matter what affect it has on the law or society. These lawyers have made the choice they will request maximum damages and maximum fees because they think they look awesome, when in fact other attorneys look at them and question their ethics. Is requesting $675,000 for downloading and privately listening to 30 songs, even if he continued to share the songs to others, a reasonable interpretation of the law, or even a reasonable request for an extension of the law.

          I look at this case and I hope the outcome is that it is appealed, the Court of Appeals finds that the case is now ripe for the Constitutional question, finds the amount egregious and finds the attorneys actions unconscionable and contrary to the candor and good faith in dealing with the court and sanctions them for there participation in such a miscarriage of justice.

          With that said does Tenenbaum deserve to loose, yes. Does he deserve to pay, yes. We can all agree that sharing music is against copyright law. Whether there should be a fair use or other exception is debatable.

          The fundamental problem is that until the public starts to motivate their representatives in Congress nothing will change about copyright. To me the first thing to change about copyright is to limit the term. Make copyright do what the Constitution intended, permit an artist to profit from their creativity for a LIMITED time, then bring the created work to the public so that it may be enjoyed by the entire public, not just those wealthy enough to afford it, and utilized to create more and better works.

           

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    Zakida Paul (profile), Aug 24th, 2012 @ 5:55am

    I wonder how much I owe for copying my CDs and handing them out to friends and family?

     

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      Ninja (profile), Aug 24th, 2012 @ 6:03am

      Re:

      Well, considering my HDD failed and I lost over 8k songs (no I haven't listened to them all, I just have the bad habit of downloading entire albums and getting only 1 song to my mp3 players without deleting the rest) it seems I just had a 180 million dollars loss. I think I should send an invoice to the MAFIAA.

       

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        Zakida Paul (profile), Aug 24th, 2012 @ 6:11am

        Re: Re:

        The importance of keeping your music in multiple locations. Mine is all on my external HDD, my iPod and my laptop.

        I spend an absolute fortune on music so I have to make sure it is all backed up. Thankfully, the few times I have lost music, Amazon were good at making them available for me to re-download.

         

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      Josef Anvil (profile), Aug 24th, 2012 @ 6:50am

      Re: easy answer

      Well since you admit to knowingly violating copyright, you owe no less than $30k per infringed file.

      Let's go with 10 songs per CD and assume you've handed out 20 of those CDs. You owe a minimum of $6 million.

       

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      Milton Freewater, Aug 24th, 2012 @ 9:59am

      Re:

      "I wonder how much I owe for copying my CDs and handing them out to friends and family?"

      Nothing. The Tenenbaum case is about mass distribution, which is why the big numbers.

      A good law is being applied inappropriately due to the courts' ignorance about technology (and with the help of some unscrupulous lawyers)- sort of the theme of this whole discussion over the years.

       

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    Vidiot (profile), Aug 24th, 2012 @ 6:09am

    Restitution

    Proceeds of the judgment should be used to correct the terrible conditions that led to this crime: re-establish a system where music is sold only as a shrink-wrapped, physical product, in brick-and-mortar stores. That ought to end this hooliganism.

     

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      Anonymous Coward, Aug 24th, 2012 @ 6:32am

      Re: Restitution

      It's going to take a lot more than $675,000 to buy every computer on the planet, fire it into the sun, and then buy the rights to wipe the memory of every human on earth of the last century of progress.

       

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    Ninja (profile), Aug 24th, 2012 @ 6:10am

    Well, regardless of the epic fails from Joel Tenenbaum and his defense, it is a life that's being destroyed for the past few years due to corporate greed. There isn't a single person around me (including my much more conservative parents and grandparents) that isn't outraged about the amount of money he's being ordered to pay. Even when it was slashed down to a few thousand dollars they are still outraged because even shoplifters don't get that hammered down with insane fines.

    All the MAFIAA achieved was to anger even the older people with Jamie and Joel (and many other cases they trumpet as justice being done). There's no justice in this. There's no wrong in sharing and the great majority of society nowadays accept it to some point (which leads to hilarious stances where ppl condemn file sharing but they don't mind getting a copy from a CD that belongs to a friend).

    It's a shame, it's disgusting. It's business as always for the MAFIAA.

     

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      Marquee Mark, Aug 24th, 2012 @ 7:45am

      Corporate greed?

      Corporate greed? He didn't have to just take the music without paying for it. I realize it's frowned upon to actually say that he stole the music. Is it fair to say that he was greedy to just take it? Or are we just pretend that he was singing Kumbaya while he took without paying?

      And how about reputational greed? He could have settled from the beginning, but he wanted to be the cool dude, the macho man who stood up to those evil folks at the RIAA. He and his pothead lawyer wanted to be celebrated and toasted by the everything-must-be-free crowd back at the commune/university. It was a monsterously greedy form of ego gratification that lead them to march into court and (1) admit guilt and (2) say that the facts didn't matter.

      Face it. The record companies and their execs may be greedy, but they were never on the same vain, greedy ego trip as Misters Tennenbaum and Nessen.

       

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        jupiterkansas (profile), Aug 24th, 2012 @ 9:14am

        Re: Corporate greed?

        Pothead lawyer? Seriously?

         

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        Ninja (profile), Aug 24th, 2012 @ 9:58am

        Re: Corporate greed?

        lol I should just ignore your trolling but so be it.

        Is it fair to say that he was greedy to just take it? Or are we just pretend that he was singing Kumbaya while he took without paying?

        First and most important we don't know if he had legit music or not. Also, if memory serves he was a student when all that started so I am fairly sure he had no money for vanity as it was my case when I was still in college a while back. And even in the event we find out he is a complete prick and won't pay a dime for music it does not justify the insane amount he was fined with.

        And how about reputational greed? He could have settled from the beginning, but he wanted to be the cool dude, the macho man who stood up to those evil folks at the RIAA.

        He did it the wrong way but If anything he is the martyr here. I'd go for a full scale fight too if I were in his place. Because I don't agree with the current copyright system, it's bad and it does not do what it's supposed to do in the first place. All it accomplishes is destroying ppl lives. If you have anything bad to say about him, please enlighten us with your wisdom on many other cases where the same thing happened (ppl went to trial and got awarded insane penalties). I'm sure you can think all sorts of twisted reasons to smear moms, grandmas, retired firefighters and so on. Oh, don't forget the printer.

        In the end I agree with Mike that he and his defense incurred in a few blunders that damned the thing in the end. But you? No sorry, I completely disagree with your idiotic trolling.

        Face it. The record companies and their execs may be greedy, but they were never on the same vain, greedy ego trip as Misters Tennenbaum and Nessen.

        Oh no, they are greedy in a much more evil and rotten way because they think it's ok to destroy the lives of a few innocent to make them an example for the masses that they can't control. Because file sharing is the norm. But since you can't put the entire population behind bars let's just fuck up a few ones so the others will fear and stop doing what we think it's not ok because it doesn't give us easy money. Flash news: FILE SHARING IS NOT GOING AWAY, IT'S SOCIALLY AND MORALLY ACCEPTED. Money for vanity is scarce and availability is great. And more than ever people are willing to throw money at their favorite artists. Why don't the industry in all its glorious and infinite greed can't just face it and workout things without fucking up the artists and the people at the same time?! Wanna talk about greed? Then be prepared to have your own greed thrown back at you.

         

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        MrWilson, Aug 24th, 2012 @ 10:05am

        Re: Corporate greed?

        Regardless of the ineffectiveness of the defense, Tennenbaum didn't do anything that warrants the financial destruction of his life. The error was in not recognizing the odds against him of winning in court with his approach to a defense.

        Take the actual numbers out of the scenario and think of it by its effective result. Tennenbaum will be lucky to get a job that pays $40k/yr in this economy. Even if he didn't need to pay for anything else in life like food, shelter, clothing, etc., and was able to funnel all his earnings to pay the fine, he'd basically be spending more than fifteen years of his life paying money as if he were making mortgage payments on an expensive house, only he doesn't get to live in it or sell it, etc., after it's paid for.

        Does sharing 30 songs you didn't pay for warrant having to buy someone else an expensive house as punishment? He didn't burn down anyone's house. The family members of murdered victims don't always get that much in civil suits against the murderer. Tennenbaum shared music. He didn't kill anyone. No amount of arrogance or bad defenses in court or even malicious intent warrants financial slavery that you can only hope to escape from within your lifetime.

        This is why it's an excessive amount.

         

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        Goyo, Aug 24th, 2012 @ 10:22am

        Re: Corporate greed?

        "Is it fair to say that he was greedy to just take it?"

        He didn't take $675000. If what he did makes him greedy then we have to create a new word for the record companies and their execs.

         

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        The eejit (profile), Aug 24th, 2012 @ 11:36am

        Re: Corporate greed?

        When the Chief Executive of a bank can get a multi-million dollar payoof for essentially corporate malfeasance, and a person orignally gets hit for many hundreds of thousands of dollar in fines for sharing scontent through the Internet (something which almost everyone did with vinyls and tapes and CDs, I might add) then it might be time to shoot the laws likie the rabid fuckwitteries they are.

         

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    Anonymous Coward, Aug 24th, 2012 @ 6:15am

    Considering the average yearly wage for a U.S. employee is ~44k in 2010, before taxes, how does any sane person think that requiring that person to give up 16+ years of this salary is acceptable punishment? For sharing 30 songs?

    Just think, if he was sharing 500 songs, he would have to give up every dime he makes the rest of his life.

     

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      AzureSky (profile), Aug 24th, 2012 @ 7:46am

      Re:

      I have said this before, if they could they would call for the death penalty for file sharing, after all, the guys running the MAFIAA companies could afford a new car every 3 months rather then having to wait 6 months between new over priced cars...

       

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    RonKaminsky (profile), Aug 24th, 2012 @ 6:19am

    Works both ways

    but it should still be worrisome to people in terms of the precedent it will set for the next group of people accused in this manner, who didn't act the same way Tenenbaum did.
    I also, unfortunately, have little hope that the legal system will correct itself in this case. The new judge explicitly cited the issues Mike raises in her decision (Tenenbaum's bad behavior), as opposed to focusing on the more fundamental issue that the previous judge focussed on --- whether the damage award was reasonable.

    On the other hand, my gut feeling is that, after all is said and done in the judicial arena, it very well might take Tenenbaum a not so very long time to just crowdfund the money. And if that happens, where exactly does all of the supposed "deterrent effect" which RIAA wanted to generate go? Right down the drain! Precedents can work both ways.

     

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      Ninja (profile), Aug 24th, 2012 @ 6:27am

      Re: Works both ways

      Well, if I had 16 years of my life taken away from me like that I'd either go live under a bridge with donations from generous people for subsistence needs (food). Or turn to crime after all I have nothing to lose.

       

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        Anonymous Coward, Aug 24th, 2012 @ 8:04am

        Re: Re: Works both ways

        I really don't see how an insane settlement that the guy will likely never be able to pay off would prevent him from continuing to share. Whats the worse they could do to him? Another insane settlement that he will never be able to pay off?

         

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          Anonymous Coward, Aug 24th, 2012 @ 9:34am

          Re: Re: Re: Works both ways

          Exactly, just like how multiple life sentences don't mean as much when you've already got one.

           

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          Ninja (profile), Aug 24th, 2012 @ 10:04am

          Re: Re: Re: Works both ways

          Once you have such sentence on your head you are marked. It's very much unlike he'll ever manage to have his own house, good computers or an internet connection. He'll probably be freeloading on open wireless and cheap machines. I haven't gone through this hell but it's pretty much that. He'll be bound to that debt till he pays it. Meaning never. Will you really work just to know everything but the minimum for your subsistence will be taken away from you? Will you really care? Do you really think he gives a damn about if he can or cannot share anymore?

          Luckily he'll be another Peter Sunde who'll have support from other means while he himself will remain "miserable".

           

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            MrWilson, Aug 24th, 2012 @ 11:30am

            Re: Re: Re: Re: Works both ways

            I'd just go off-grid or escape to Europe or something. If the (in)justice system and the corporations want to ruin your life, you have no obligation to heed the judgment.

             

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    Anonymous Coward, Aug 24th, 2012 @ 6:21am

    So, $22,500 per song. That means just three 'sales' of a single song would make someone more then my entire annual salary in the best of times where I make all of my profit goals. That's clearly insane.

    Lets say these are really expensive songs to, like $20 for a single song. That makes it more then 1,125 times more expensive then the normal value (but that number would be much worse if I actually used a reasonable per song cost). That's much higher a punitive rate then any corporation faces for putting the public in actual danger, like illegal marketing for the benefits & risks prescription drugs.

     

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      Goyo, Aug 24th, 2012 @ 10:59am

      Re:

      That's not just punition but damages. Since the main damage appears to be lost sales, that's roughly $25,000 in lost sales just because Joel shared a song.

      Let's say that's not a very popular song so about 100 people are sharing it. That's $2,500,000 in lost sales due to file sharing for a single, not very popular song.

      Now ypu can see how bad file sharing is, how it's ruining the economy and why it must be stopped at all costs.

       

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    Anonymous Coward, Aug 24th, 2012 @ 6:30am

    an 80 year old judge, that has little or no clue of what has happened? sounds about right to me. i wonder how long before the entertainment industries run out of 'out of touch' judges that continue to rule in this ridiculous way? i am curious as to how that judge would feel if she were fined $million for taking too long to cross the road?

     

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    Anonymous Coward, Aug 24th, 2012 @ 6:44am

    So now that the people see this massive fine and realize the dangers of piracy, piracy has stopped now, right?

     

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      Marquee Mark, Aug 24th, 2012 @ 7:49am

      Re:

      Actually, it is much less prevalent than it was. That's a big judgement and I can see many parents say to their kids, "I don't want to lose my house just so you can share songs with everyone on the Net."

      This has a huge effect. It may not stamp it out. It may drive it further underground. But every little bit helps.

       

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        techflaws (profile), Aug 24th, 2012 @ 8:20am

        Re: Re:

        Actually, it is much less prevalent than it was.

        Right, so no need for new laws or agreements between rightsholders and ISPs. Good to know.

         

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        ezeq, Aug 24th, 2012 @ 12:32pm

        Re: Re:Helps what and who?

        Does it help in the end?

        (1) The kid (obviously not)

        (2) The artists- No probably not. The artists recieve none of this money and probably lost fans over this.

        (3) The RIAA- Maybe if you are more into symbolism than commercial or financial success. 650k probably means very little to this industry business, other than symbolic values. They probably spent millions on the legal costs of this alone. Therefore, finacially this is a total loss in the books. They still look like a villian which hurts them more in the public than helps them overall. They are still losing money and have not solved a single problem with this result and publicly look worse in the eyes of their consumers. In the end they may have pushed additional consumers away from legal purchases over symbolic or mindset "justice".

        (4)Troll laywers- Yes this is an emerging field in a legal economy that has a 50% employment rate at graduation. We are promoting the creation of troll lawyers with these legal victories. The trolls are the big winners here and no one else.

        In the end the kid loses, the RIAA loses, the defense lawyers lose, the artists lose, and the only winner is the troll prosecution lawyers.

         

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        JEDIDIAH, Aug 24th, 2012 @ 1:22pm

        Won't stop it. Will just keep it out of sight.

        No. People will just do it the old fashioned way and not broadcast what they're doing to the whole world. They will use the modern equivalent of FTP servers or sneaker.net or just do the same things we were doing before the Internet.

         

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        KandiH (profile), Aug 24th, 2012 @ 1:39pm

        Re: Re:

        "Actually, it is much less prevalent than it was. That's a big judgement and I can see many parents say to their kids, "I don't want to lose my house just so you can share songs with everyone on the Net."

        This has a huge effect. It may not stamp it out. It may drive it further underground. But every little bit helps."

        I disagree. If I didn't read techdirt, I would have no idea that this happened. It would have had no impact on me or my kids whatsoever.

         

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          Tip rip, Aug 24th, 2012 @ 1:56pm

          Re: Re: Re:

          Can't be civilly liable for activity that you did not perform and were unaware of....parents are common carriers and facilitate a connection and nothing else...

          Sue the parents and they did not perform the act. Sue the 7 year old and you should be laughed out of court...

           

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        RonKaminsky (profile), Aug 24th, 2012 @ 3:42pm

        Re: Re:

        > Actually, it is much less prevalent than it was.

        How on earth would _you_ know?

        I suspect that the vast majority of people haven't even heard of Tenenbaum, or this ongoing trial. And the majority of parents who might say that to their kids don't know how to prevent their kids from infringing on copyright. In fact, it's probable that the vast majority of people infringe on copyright every day.

        Tell me, exactly, what songs do you sing at your children's birthday parties (assuming you have children)?

         

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        JMT (profile), Aug 24th, 2012 @ 10:21pm

        Re: Re:

        "Actually, it is much less prevalent than it was."

        The record labels, their lobby group, and a large selection of politicians are claiming the exact opposite, and demanding even more laws be introduced. Are you wrong, or are they? You can't both be right. Please clarify your position.

         

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    Nick, Aug 24th, 2012 @ 6:59am

    If I went into a music store and stole several CDs, would I be fined thousands of dollars (or pounds in my case)? I doubt it. If they're always going on about how internet piracy is the same as theft, why don't people who steal CDs from stores get treated the same as people who click a few buttons and download music straight to their computer?

     

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      Anonymous Coward, Aug 24th, 2012 @ 7:09am

      Re:

      Well, I have a friend who actually got caught shoplifting 3 cds. I happened to be with him at the time and unaware of what he was up to, so I stuck around to see what was going to happen. The store manager/security personnel called the cops, who eventually showed up and after some huffing and puffing on the part of the younger officer (the senior one went off to eat popcorn at the snack bar), the senior one returned and said basically, "I'm sorry, but as wrong as theft is, we're not going to charge you or arrest you. It's not worth the paperwork. Here's a ticket, go to the PD by this date so you can pay the fine or work out a payment plan."

      The fine/ticket was for $180 total. My friend couldn't pay it all at once (like he figured he'd have to), so they put him on a payment plan. Because he paid it in 3 payments (within a month) they went so far as to "refund" him $30. (Not even sure how that worked.) And his total fine was $150 for ACTUALLY STEALING (or trying to, unsuccessfully) 3 cds from a store. I can't remember the albums anymore (one was a soundtrack), but total songs on the 3 cds was about 30 or so.

      Funny system of justice. Actually steal the physical equivalent, slap on the wrist and a refund. Share the digital equivalent (with no verifiable losses to anyone), get ridiculousness like this. (Which some ACs will say "hurrah" to, not thinking how ridiculous this is or the fact that it leads others to even further have a lack of respect for copyright or those seeking to enforce it.)

       

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        DannyB (profile), Aug 24th, 2012 @ 8:02am

        Re: Re:

        Yeah, he was shoplifting and got caught.

        But there's a big difference here that is important.

        Shoplifting some CD's deprives the store of physical property that they have paid for and could have sold. Therefore it is important that the shoplifter have to pay $150 fine.

        File sharing does not deprive anyone of any physical item and there must be punished with $675,000 fine. The RIAA wants to teach people to stop playing 'piracy' on their computers in their mom's basement, and go outside in the sunlight and learn to do something useful like real stealing the old fashioned way. Work for the skill of stealing.

        Want to steal, learn from the masters, the RIAA.

         

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    Anonymous Coward, Aug 24th, 2012 @ 6:59am

    You know, you go on and on about how you know about the law, how much the rest of us don't know, and then you spout this:

    "any thinking person should recognize that a $675k fine for the personal sharing of 30 songs seems offensive to the senses"

    IT'S NOT A FINE! A fine is what you get in a criminal case. This is a judgement, a settlement in a civil case, not a criminal case.

    As for the judgement, I think the judge was making clear that while Joel was tried for 30 songs, he could have easily been tried for hundreds or even thousands. His arrogance in this case, and the incredibly poor legal strategy leaves him where he is today.

    You guys better hope he stops appealing, because this one is likely to set the bar for these types of judgements and end your whining about the limits set by congress.

     

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      Anonymous Coward, Aug 24th, 2012 @ 7:05am

      Re:

      Ok, you had me nodding on the correct semantics on the first part, but then lost me on this silliness:

      ...he could have easily been tried for hundreds or even thousands.

      Punishment for things not brought to trial?

       

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      fiestachickens (profile), Aug 24th, 2012 @ 7:09am

      Re:

      Okay, we can replace the word "fine" with "settlement". Over half a million dollars for the sharing of 30 songs. Still well within the bounds of my definition of insanity.

      As noted by Nick up above, if digital and analog goods are the same, would I get a settlement / fine / whatever word you'd like of $675k for shoplifting 3 albums (assuming each has 10 songs on it)? If not, why not? It's "stealing" either way, and the damages should be in sync since they are the same thing, right?

      If you agree, then I think I'll be inclined to note that you're crazy for thinking someone should be charged $675k for stealing 3 physical items that cost about $15 apiece. If you disagree, then you'll need to explain how digital and analog are different and that this isn't "stealing", but still is stealing, somehow, kind of.

       

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        Anonymous Coward, Aug 24th, 2012 @ 7:43am

        Re: Re:

        Not to degrade your argument, but the act of stealing 3 CD's is not the same as what Joel was charged with. It wasn't just downloading, it was making available for anyone.

        First you'd have to steal the 3 CD's then make a large number of duplicates, set up a stand in the park, and leave them on a table.

        No sign, no advertising, just rely on people searching for those CD's to look in the park to find them. Then it is more comparable.

         

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          Marquee Mark, Aug 24th, 2012 @ 7:47am

          Re: Re: Re:

          Exactly. He may have made 675,000 copies. It's entirely conceivable when you look at how BitTorrent works. And if you include all of the other copying, it's much more than 30 disks.

           

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            Anonymous Coward, Aug 24th, 2012 @ 7:50am

            Re: Re: Re: Re:

            Actually there's no way he made 675,000 copies with bit torrent. People downloading from him made the copies.

             

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              Anonymous Coward, Aug 24th, 2012 @ 7:59am

              Re: Re: Re: Re: Re:

              OK, true, so Joel left the single copies on the table and had a massive collection of blank CD's and duplication machines that people could just press a button and obtain a copy.

               

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                Anonymous Coward, Aug 24th, 2012 @ 8:28am

                Re: Re: Re: Re: Re: Re:

                Still not quite right. The people brought their own duplication machines and media.

                It's not like the bittorrent users made a local copy on his computer and then copied it, that all happens on the other computer.

                 

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                Anonymous Coward, Aug 24th, 2012 @ 8:34am

                Re: Re: Re: Re: Re: Re:

                So then those people who made the copies are guilty of infringement, not Tennebaum.

                If you did the exact same thing - left single copies on a table with innumerable blank CDs - and people made copies with them, would you expect to be on the hook for what they did?

                 

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                RD, Aug 24th, 2012 @ 9:39am

                Re: Re: Re: Re: Re: Re:

                "OK, true, so Joel left the single copies on the table and had a massive collection of blank CD's and duplication machines that people could just press a button and obtain a copy."

                Wow, are you kidding? That isnt remotely like the analogy. He left a single copy on the table, and people came TO the table with their OWN equipment and made their OWN copies. That is the analogy.

                Just, wow.

                 

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            techflaws (profile), Aug 24th, 2012 @ 8:22am

            Re: Re: Re: Re:

            It's entirely conceivable when you look at how BitTorrent works

            You mean, like, noone ever downloaded a complete song from him but only bits here and there completing the songs from other members of the swarm?

             

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          Anonymous Coward, Aug 24th, 2012 @ 7:55am

          Re: Re: Re:

          Close, I think the closer analogy would be:

          He stole 3 cds, didnt duplicate them, but left them on a park table for other to borrow and copy.

           

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          RonKaminsky (profile), Aug 24th, 2012 @ 1:18pm

          Unlikely to be true

          > a large number of duplicates

          You obviously don't understand how P2P works. The average number of times any work is redistributed by people using P2P is exactly 1. Everyone, on the average, uploads information equivalent in size to exactly one whole copy of the work.

          This doesn't mean that Joel couldn't have distributed massive amounts of copies (since there are always leechers who redistribute less than 1 copy), but it does mean that it is rather unlikely.

           

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      Anonymous Coward, Aug 24th, 2012 @ 7:59am

      Re:

      You know, you go on and on about how little Mike actually knows about the law, how a fine only comes from a crinimal case, and then you spout this:

      This is a judgement, a settlement in a civil case, not a criminal case.

      A judgement and a settlement are two very different things.

      From Wikipedia:

      Judgement: synonymous with the formal decision made by a court following a lawsuit.

      Settlement: resolution between disputing parties about a legal case.

       

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      Mike Masnick (profile), Aug 24th, 2012 @ 8:42am

      Re:

      As for the judgement, I think the judge was making clear that while Joel was tried for 30 songs, he could have easily been tried for hundreds or even thousands.

      Could have. But wasn't.

      If someone is on trial for shoplifting, you don't sentence him based on the fact that he "could have" murdered someone too.

       

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        Anonymous Coward, Aug 24th, 2012 @ 8:51am

        Re: Re:

        "If someone is on trial for shoplifting, you don't sentence him based on the fact that he "could have" murdered someone too."

        Weak argument. Even someone as arrogant as you knows that while he was tried for 30 songs, his actual catalog of shared music was much larger. These cases, to avoid the size of the lawsuit and the amount of paper work getting out of hand are done with a representative number of songs, not the total songs being shared at the time.

        I quote (from hxxp://beckermanlegal.com/Lawyer_Copyright_Internet_Law/sony_tenenbaum_120213DeftPetCert.pdf )

        "At one point in time in 2004 alone, Tenenbaum had 1153 songs on his “shared-directory” on the Kazaa network."

        So really, the number is at least 1000, and thousands (plural) might not be out of the question considering the time frame and songs being added and removed.

        So come on Mike, don't play stupid. I know you like to try to be coy, but admit you got this one wrong (again).

         

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          Anonymous Coward, Aug 24th, 2012 @ 9:00am

          Re: Re: Re:

          I tend to agree. Even though nominally there were 30 songs, the fact that there were thousands more factors into the assessment of statutory damages. So do other things like the fact that he lied under oath, failed to take responsibility for his wrongdoings, infringed for 8 years even after being warned repeatedly (including a C&D), etc. All of those things factor into to determining whether the award is reasonable. It's incorrect to say that it's $675K for only 30 songs. It's $675K for a host of other reasons too. Take away everything else, and the award probably wouldn't have been as high. Personally, I think he got off easy all things considered. Why he let this crazy professor turn the case into a circus with arguments that don't even pass the laugh test is anyone's guess. He could have settled years ago and gotten on with his life, but he chose to take this route. Now he's reaping what he's sown.

           

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            Anonymous Coward, Aug 24th, 2012 @ 10:37am

            Re: Re: Re: Re:

            "Now he's reaping what he's sown."

            Yes. As mentioned elsewhere (in my reply to RD's lies), he was offered a settlement that was quite low considering the risk and the expense to claim innocence that he was unlikely to prove. $12,000 - or about $2000 a year since. Instead, this guy now has a life crushing judgement hanging over his head, and no way to get out of it.

            He can't blame the RIAA. He can't blame the courts. He only has his own actions and those of his legal team to look at and consider now.

            He needs to stop digging and start looking for a settlement he can live with.

             

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              Anonymous Coward, Aug 24th, 2012 @ 12:02pm

              Re: Re: Re: Re: Re:

              He can't blame the RIAA. He can't blame the courts.

              No worries, the rest of us have that covered for him.

               

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              rip tip, Aug 24th, 2012 @ 2:00pm

              Reaping

              No this is how terrorists are made....someone has nothing to lose and extreme hate for an individual or group. What might happen under those conditions? It doesn't take a genius and it is only a matter of time till something extreme happens....

               

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                Anonymous Coward, Aug 24th, 2012 @ 9:13pm

                Re: Reaping

                Yup, so by your standard, we should change America to be a muslim state with 6 prayer breaks per day because otherwise we cause terrorists.

                Sorry, but I am not going to bend over and kill a business just to make Tenenbaum (and the rest of the freeloaders) happy. Fuck that, they can become terrorists, and get locked up for it.

                 

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            Milton Freewater, Aug 24th, 2012 @ 3:04pm

            Re: Re: Re: Re:

            "I tend to agree. Even though nominally there were 30 songs, the fact that there were thousands more factors into the assessment of statutory damages."

            You DISAGREE. You are clear the amount is for 30 songs, and you're right. Nothing "nominal" about it.

            I think I know what you're trying to say - they threw the book at him. That's indisputable.

            Mike's point is that you generally shouldn't sentence someone for a violation they haven't been found guilty of, EVEN IF YOU SAW THEM DO IT. A certain amount of doing so is human nature and fair, but is this?

            http://arstechnica.com/tech-policy/2009/07/o-tenenbaum-riaa-wins-675000-or-22500-per-song/

             

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          Ninja (profile), Aug 24th, 2012 @ 11:15am

          Re: Re: Re:

          And it would not change a thing. He could have 8k, 10k songs in his HDDs. Doesn't change the fact that he won't be able to pay the insane fine. And doesn't change the fact that no sane person that has an average income will spend 10k+ in music. I had 8k songs on my HDD before I lost them, do you really think that I ever listened to them all? Nop, I didn't. Do you really believe I"d pay for all that? Nop, no money.

           

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            Anonymous Coward, Aug 24th, 2012 @ 11:36am

            Re: Re: Re: Re:

            ". Doesn't change the fact that he won't be able to pay the insane fine."

            Repeat after me: "It's not a fine, it's a judgement".

            Now, after that, perhaps you can come to realize that the ability to pay the judgement out isn't really material in the deal, rather the legal judgement is important. The point is to work the legal logic through, get the case settled, and move on from there.

            As for having 8k songs, all I can say is that you are clearly someone with few morals. Congrats of being a big time thief.

             

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              Sean, Aug 27th, 2012 @ 9:10pm

              Re: Re: Re: Re: Re:

              Wow, please remove head...it is a fine..."FINE:Punish (someone) by making them pay a sum of money, typically as a penalty for breaking the law." It is a fine, it is levied through a judgement.

               

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          Sean, Aug 27th, 2012 @ 9:03pm

          Re: Re: Re:

          Lawyers do not shortcut to save paperwork. As an attorney if I can list every song, even if it requires killing a forest I would and should do so. If they can show that he had 1153 songs in his shared directory they should have been able to determine what songs they were. According to the verdict the only thing they proved was that he had illegal copies of 30 songs. Did he have more, obviously, but as Mike has said, you don't get punished for what was not proved.

          How would you feel if when you are stopped for speeding and you are found guilty, the judge (or jury if you request a jury trial) says we are going to fine you for speeding for every time you were in your car, because even though you may not have been speeding and it was not proven here, we will just assume you were...

           

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      JEDIDIAH, Aug 24th, 2012 @ 1:25pm

      A fine by another name.

      No. This is much more like a fine. It's not actual damages. It's something made up out of thin air in order to try and give the relevant law some teeth. It might need those teeth for a real criminal enterprise (or not).

      A normal tort judgement is about making the victim whole.

      This judgement has nothing to do with that and is entirely punitive.

      It's a larger punishment with a lower burden of proof.

       

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        Milton Freewater, Aug 24th, 2012 @ 3:08pm

        Re: A fine by another name.

        "It's something made up out of thin air in order to try and give the relevant law some teeth. "

        IMO, it's a poor application of an irrelevant law. Infringement law was never intended to apply to the sort of copying that goes on in the course of everyday noncommercial online activity. This is like suing someone for infringement because they played a song over the phone.

         

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          Anonymous Coward, Aug 27th, 2012 @ 2:03pm

          Re: Re: A fine by another name.

          Well of course you wouldn't sue them for infringement...

          That would be a public performance without acquiring the appropriate rights....

          Come on get up to date on your Imaginary Law, before someone imagines up some new ones...

           

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        Anonymous Coward, Aug 24th, 2012 @ 4:17pm

        Re: A fine by another name.

        Yes, there is a punitive element, but the same can be said of other torts and the award of "punitive damages".

         

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      Sean, Aug 27th, 2012 @ 7:46pm

      Re:

      Ummm... if you have a properly authorized copy of a Websters Dictionary you could read that fine means "Punish (someone) by making them pay a sum of money, typically as a penalty for breaking the law." Since the damages awarded were statutory and the purpose of the statutory damages is to deter or punish for copyright infringement, the "award" for Sony, is a FINE for Tenenbaum.

       

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    sheenyglass (profile), Aug 24th, 2012 @ 7:03am

    Nesson

    "his lawyers seemed more focused on making a point than mounting a defense."

    So true. I remember reading about the strategy they were using and I was appalled. It would have been a perfectly good academic argument (and a good policy to enact). But as a defense at trial, it bordered on frivolous. I think this goes beyond a question of Tenenbaum needing a better lawyer (in the sense of more skilled). Using your client as a vehicle for your own arguments at the expense of his legal defense is a pretty clear breach of your duty as counsel.

     

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    Chuck Norris' Enemy (deceased) (profile), Aug 24th, 2012 @ 7:03am

    he was not a good defendant

    he lied to the court

    with Tenenbaum's continued use of file sharing and his lies, to support the supposed reasonableness of the ruling.

    Tenenbaum's behavior -- which we agree was not good at all -

    you agree that Tenenbaum is not particularly apologetic for what he did

    I'm worried that Tenenbaum's own bad actions

    who didn't act the same way Tenenbaum did.


    Pirate Mike, admit you are a dirty pirate apologist. Clearly these weasel words prove it.

     

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    anon, Aug 24th, 2012 @ 7:16am

    Humph ...

    What he was trying to show is that copyright does not protect an artist or there music from being shared, just as people have been sharing everything they buy since money was invented. I buy something and I can do what I want with it , nobody can stop me, in fact in England it has just been confirmed by a law that states software sales are the same as physical sales where a file is sold and anyone buying it can sell or trade or give it to anyone else. Yes the studios say that it does not give you the right to make a copy but it does and if I want to give that copy away I will.

    The only problem in this case is the way the problem was attacked and the reasoning. If he had better lawyers who understood the principle of ownership and used that to fight for the change needed things might have gone better, probably not, but if the case was put forward in a simple way and all arguments were proven to be wrong he could have changed the law and made it legal to torrent.

    I don't care how artists make money, only a tiny percentage of actors and musicians and authors make enough money to make a living from it, For this reason alone copyright should be cancelled no laws at all or only laws that prevent individuals or businesses from profiting without compensating the artist with at least 80% of any money made. And how do they make that money, I don't actually care, as has been discussed on this website and many others there are ways to monetise music and video and books without charging for them, but any law that involves preventing anyone from sharing that material or content is wrong.

    I will continue to share with others , nobody can stop that , I will send a song to my mother if I want her to tell me what she thinks or if I think she will like it. I will share anything I have purchased with others if I want and no law will stop me doing that.

    It is the law here that is wrong not people sharing, it is the law that needs to be changed not human nature to share with others.
    And yes this time around the MPAA and courts are looking like idiots and they are encouraging even more people to share, they are proving to everyone that copyright law is very very wrong. Thank you MPAA for helping our cause.

     

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    JWW, Aug 24th, 2012 @ 7:21am

    This is disgusting

    The jury in this case should be ASHAMED of themselves. There are people who are at fault accidentally killing other human beings who receive less punishment than they are handing out for someone "stealing" 30 songs.

    The verdict handed down in this case is a life destroying verdict for a young man. That the RIAA keeps appealing for its huge award is DISGUSTING.

    Giant corporate entities are working at utterly destroying one person's life. The RIAA deserves every ounce of contempt and disdain it gets from the people.

    For companies that like to believe that they create things that move human emotions and make people think, the RIAA collectively is a horribly dark, twisted, and evil group of people (and the MPAA is even. worse.)

     

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    John Doe, Aug 24th, 2012 @ 7:25am

    I am an automotive pirate

    I bought a car and gave my friends and family rides; does that make me a pirate of the highways? Do I owe the automaker and gas company money for "lost revenue" because the other people didn't buy a car and gas?

     

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    jupiterkansas (profile), Aug 24th, 2012 @ 7:31am

    All this shows is how much copyright law needs to be reformed for an age when anybody can easily share anything with anybody else on the planet.

    The old laws don't work any more than the old business models work.

     

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    Anonymous Coward, Aug 24th, 2012 @ 7:44am

    Thanks to Joel Tenenbaum and his idiotic Star-Trek-villain lawyer for making all this great precedent. Kudos! Please take this one to the Supreme Court so we get even more great precedent. You guys are doing such a bang up job. And kudos to the judge who applied Williams and not Gore. That was bothering me.

     

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    Anonymous Coward, Aug 24th, 2012 @ 8:00am

    When ordinary people see $675,000 judgments for sharing 30 songs, they respect copyright less, because it seems so out of proportion with reality.

    Honestly, this, imho, is a classic example of Conflict Escalation from psychology that the RIAA, MPAA, etc just can't seem to grasp. We have been driven to a point where two opposing camps exist, copyright maximalists and the Piratbyrån. (I'll use the pirate party name for convenience.) As this back and forth drive for power continues, the issue no longer is about copyright legislation, but a moral obligation by both sides of the issue.
    Similarly, moral conflicts often lead to conflict escalation because the opponent is viewed as wrong in principle and not merely on the wrong side of some specific issue.
    Further reading and you can see where this may lead: link (Think back to the Vietnam war protests.)

     

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    btrussell (profile), Aug 24th, 2012 @ 8:16am

    Everyone just needs to keep a "pending" list handy to show to authorities.

    That is how the labels do it.

     

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    John Q Public, Aug 24th, 2012 @ 8:19am

    Fines, Highway Robbery & other Legal Crimes

    Traffic fines such as $500 tickets issued by traffic cameras for running a yellow-to-red light; ridiculous (but legal) confiscatory laws such as having a $150,000 truck seized because a benzedrine tablet was found in the ashtray (doesn't matter how it got there) at a vehicle (stop and frisk) point; fat cat bought-and-paid-for judges fleecing the sheep, er... public, in arbitrary and unreasonable (the fine doesn't fit the crime) rulings; the fact that (with few exceptions) the greater the crime, the less liklihood of doing time (or a fine of like proportion... When highway robbers become the "law" - and we call it freedom (Mit the Wit: "just borrow the money from your parents," never mind that the price of "education" is inflated beyond all real value and the cost is mostly to pay for parasite administrators and overpriced books which could be had for free online, except for restrictive laws disallowing sane behavior, and the fact that what is now passing for an education these days may not even qualify one for flipping burgers (better to opt for OJT). Ah... the joys of civilization (sorry, my rant got away from me).

     

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    Anonymous Coward, Aug 24th, 2012 @ 8:26am

    Even after a jury verdict is rendered, it is quite common for the parties to the lawsuit to negotiate a settlement for a lesser amount than the court award. No doubt this is what the plaintiffs want to pursue, with the negotiated amount being nominal in relation to what was awarded. Of course, Tenenbaum will tell them to pound sand since he is on a "Don Quixote" quest with the urging of his Harvard "legal team".

     

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      RD, Aug 24th, 2012 @ 9:46am

      Re:

      "No doubt this is what the plaintiffs want to pursue, with the negotiated amount being nominal in relation to what was awarded. Of course, Tenenbaum will tell them to pound sand since he is on a "Don Quixote" quest with the urging of his Harvard "legal team"."

      Citation on all of this specious dribble please. The RIAA has proven time and again that they have ZERO interest in negotiating a lower fine, especially after they have won. They have even gone back, after winning, and asked the fine to be INCREASED in at least one case.

      So, put up or shut up.

       

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        Anonymous Coward, Aug 24th, 2012 @ 10:13am

        Re: Re:

        RD, you are so full of shit your eyes are brown.

        First off, it's a judgement, not a fine. Can you get the basics right?

        Second of all, the RIAA has repeatedly tried to settle every case that has gone to court. Example, the thomas case:

        hxxp://news.cnet.com/8301-31001_3-10442482-261.html

        They had a million plus dollar judgement in hand, and were willing to settle at 25k.

        Tenenbaum? From Wikipedia:

        "In a pre-trial conference in June 2008, Tenenbaum's mother stated "my son was offered $12,000, your Honor, and every time we appear that goes up." The plaintiffs responded that Tenenbaum had filed several motions with the court, and that "as our legal fees go up, so will the settlement amount that we offer."[6]"

        So please, if you are going to lie, at least don't be so obvious.

         

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        Anonymous Coward, Aug 24th, 2012 @ 11:29am

        Re: Re:

        1. Awards are not "fines". They are awards for civil damages based upon either actual or statutory damages, at the election of the rights holder.

        2. The RIAA was not the litigant. It is but an industry association. The plaintiffs in these cases are the labels themselves in their individual capacities as rights holders.

        3. The only case of which I am aware where higher damages were argued involved a case where the lichpin issue was "innocent infringement". Where the "innocent infringer" defense is sustained, a court or jury, as aplicable, may reduce the award to not less than $200 per work. When the defendant appealed the trial court finding of infringement, the plaintiffs cross-appealed that the trial court erred as a matter of law in sustaining the defendant's "innocent infringement" defense. The defendant's appeal was rejected, and the plaintiffs' appeal concerning the "innocent infringement" defense was upheld and the trial court was reversed.

        4. Apparently you are not an attorney, otherwise you would be quite familiar with post-verdict negotiations.

         

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          Sean, Aug 27th, 2012 @ 9:22pm

          Re: Re: Re:

          "Awards are not "fines". They are awards for civil damages based upon either actual or statutory damages, at the election of the rights holder."

          Haha, you mean judgments maybe? well either way:

          Definition of fine: "Punish (someone) by making them pay a sum of money, typically as a penalty for breaking the law."

          The Judgment was a fine awarded to Sony and the other labels.

           

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      Anonymous Coward, Aug 24th, 2012 @ 10:14am

      Re:

      Exactly! If only the facts didn't show the exact opposite to be true ...

       

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    Josef Anvil (profile), Aug 24th, 2012 @ 10:38am

    Apples and Oranges

    The statutory damages for infringement were clearly designed to compensate commercial levels of infringement, which is probably why we never heard of lawsuits against consumers for sharing music and movies before.

    Digital file sharing DOES resemble commercial infringement once its on the network, but to the end user it just looks like sharing a file.

    If you are a judge in these cases, I can see where it would be difficult to come to a fair ruling. From the file sharers point of view, there is generally no intent to profit, but from the content creator's point of view there is definitely an impact on sales. Are statutory damages even remotely reasonable? NO they are not.

     

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    Karl (profile), Aug 24th, 2012 @ 11:13am

    Joel's "Enormous" License

    The judge argues that one of the factors that makes this "reasonable" is that if Tenenbaum had wanted to license the songs for distribution himself, the cost would have been "enormous," according to the labels.

    What, seriously?

    Let's try to actually figure out what the licensing deal would cost.

    First, we'll assume the iTunes model - which is one of the highest out there, so it favors the RIAA. For a $.99 MP3, iTunes takes $.30, so the remainder is $.69 per track.

    Next, we'll assume that each of these 30 songs was shared 1000 times. Now, that number is extremely high - most people on P2P networks don't share a track with nearly that many other people. But it's not out of the question, so again, we'll choose a number that favors the RIAA.

    30 songs x 1000 downloads each x $0.69 per download = $20,700.00. So, actual damages would be about twenty thousand dollars. And that's the maximum that he would have had to pay, the number that favors the RIAA the most.

    Which means the awarded damages are over 32 times the actual damages.

    This is pretty clearly unconstitutionally excessive, in my opinion. Gertner got it right the first time.

     

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      Anonymous Coward, Aug 24th, 2012 @ 11:32am

      Re: Joel's "Enormous" License

      "Next, we'll assume that each of these 30 songs was shared 1000 times. "

      This is where you fail.

      When Joel chose to seed those songs, to give them away online, he started a chain of events, and made it possible for others to do the same. File sharing is pretty much a pyramid deal. You share it with 100, who each share it with 100, who each share it with 100... 3 levels down, you have 1,000,000 copies made from a single source.

      Now, the standard argument is that each step down the line is someone choosing to break the law, and this would be true. However, without the initial breaking of the law, without the initial distribution, the rest would not have happened. Remember, most people don't actually rip music themselves.

      It is incredibly dishonest to try to establish actual losses when the number of resulting downloads is potentially infinite.

      It's already been shown in the past where software torrents, with a single license key, have been used millions of times. That suggests that a single seeding source was directly and indirectly responsible for all of those infringing copies. it's not hard to imagine Mr Tenebaum's extensive music share file as being the source for literally millions of infringing copies.

       

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        Anonymous Coward, Aug 24th, 2012 @ 11:58am

        Re: Re: Joel's "Enormous" License

        This is where YOU fail!

        In 2004, Joel was using Kazaa, which is P2P, not bitTorrent, so no "seeding" was done.

         

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          Anonymous Coward, Aug 24th, 2012 @ 12:22pm

          Re: Re: Re: Joel's "Enormous" License

          IIRC, files were made available for transfer by means of shared folders on the machines of K users.

           

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          Anonymous Coward, Aug 24th, 2012 @ 12:41pm

          Re: Re: Re: Joel's "Enormous" License

          Actually you failed in reading comprehension.

           

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            Anonymous Coward, Aug 24th, 2012 @ 12:45pm

            Re: Re: Re: Re: Joel's "Enormous" License

            How so?

            Seeding is intentionally placing the songs available for bitTorrent, that's where the term applies.

            By default, Kazaa placed songs in a shared folder, and in some cases tried to find your music folders and share them with the P2P network.

            The question is, which I don't know, did Joel knowingly place files in the folder Kazaa shares or configure Kazaa to share his music folder?

            If not, then the concept of seeding does NOT apply!

             

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              Anonymous Coward, Aug 24th, 2012 @ 9:16pm

              Re: Re: Re: Re: Re: Joel's "Enormous" License

              Seeding, or putting the files on a shared directory for others to take doesn't really change anything.

              Joel puts the file in his shared directory. 100 people download it and keep it in their shared directory. 100 people go to each of them and do the same.

              1 - 101, 10,001, 1,000,001... the progression is very fast and very powerful. Given a couple of more iterations, and pretty much the entire population of the planet has had access.

              Stop worrying about the technical jargon - go look at the effects/

               

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                Karl (profile), Aug 25th, 2012 @ 2:32pm

                Re: Re: Re: Re: Re: Re: Joel's "Enormous" License

                Joel puts the file in his shared directory. 100 people download it and keep it in their shared directory. 100 people go to each of them and do the same.

                So, Joel's act of infringement is infringement by copying. He also infringes by distributing those files to 100 people.

                The notion that he should be held responsible for what those 100 people then do is ridiculous. The amount of actual damages can, should be, and are legally required to be the damages caused spcifically by Joel's infringement. That means caused by the infringement that Joel actually participated in.

                Especially since there is zero evidence (and it's not alleged) that Joel was the sole source of those files. Joel got those files from somewhere else - and in your example, 99 other people did too. Those 100 people that got the files from Joel could have just gotten them from one of the other 99 sources instead. Or from Joel's source. Or, for that matter, from among any the other 99 people that (would have) downloaded from Joel, who are now sources themselves.

                Despite your insistence, file sharing is not like a pyramid. Once the initial file exists anywhere in a file sharing network, any one of the downloaders can become a source. It's not a pyramid, it's a soup.

                To say Joel "caused" or "enabled" those 100 people to also share those files is beyond ridiculous. He didn't cause those infringements; they would have happened even if Joel never existed. If Joel never shared files, there would be exactly one less infringing copy - Joel's.

                 

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          Karl (profile), Aug 24th, 2012 @ 1:11pm

          Re: Re: Re: Joel's "Enormous" License

          In 2004, Joel was using Kazaa, which is P2P, not bitTorrent, so no "seeding" was done.

          I may have "failed" in this way myself. I knew that he was using Kazaa, but I assumed that it used a protocol that is similar to torrents.

          If it was a literal "peer-to-peer" protocol, where each user only copies a file from one other user, then he would probably be responsible for far fewer infringements. Given the upload speeds that existed before 2003, sharing even a single file with 1000 individuals would take years.

          In fact, the P2P protocol that Kazaa used is called FastTrack - the same protocol used by Grokster and Morpheus. It is not a one-to-one P2P protocol, but is in fact closer to how torrents work. That is, each file may have thousands of users downloading, and also thousands of users uploading. Those users are connected via "supernodes," which are (AFAIK) a centralized equivalent of "swarms."

          At least, that's what I've been able to work out. The FastTrack protocol details are not exactly helpful in this matter.

          In any case, there's no way in Hell that Joel ever shared each file more than 1000 times. It is likely that this figure is much too high.

           

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        Karl (profile), Aug 24th, 2012 @ 12:47pm

        Re: Re: Joel's "Enormous" License

        This is where you fail.

        When Joel chose to seed those songs, to give them away online, he started a chain of events, and made it possible for others to do the same.


        There's no evidence (and I don't believe that it was even alleged) that Joel was the initial source of those songs. In fact, the lawsuit alleges that he "downloaded" those songs. He was simply another "step down the line."

        If you're counting all users in all swarms when figuring damages, then you can only count these users if you sue the initial source of the files. In this case, you wouldn't be able to declare any actual damages if you're suing anyone "down the line." Otherwise, you're counting a single infringement hundreds of times - it's not even remotely close to calculating actual damages.

        If you are suing someone "down the line" (like Joel), you must do the numerically correct thing, and only count the number of infringements that the seeder actually participates in.

        Even here, that number is larger than it actually should be. If a swarm has 100 seeders and 400 leechers, then there is a grand total of 500 infringements. So, the actual damages must be calculated using those 500 infringements. If you sue one of those 100 seeders, then each seeder would be responsible for five infringements each.

        In other words, the 1000 number is even higher than it really should be, since I counted each person in his swarm as a leecher (and not a seeder themselves). I was being generous to the RIAA.

        So, basically, it's you who fail.

         

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          Anonymous Coward, Aug 24th, 2012 @ 9:19pm

          Re: Re: Re: Joel's "Enormous" License

          Karl, every link in the chain is also a source. Joel could have chosen to download the music and NOT put it in a shared directory (or remove it), and he did not. He made over 1000 songs available in his sharing directory. In each case, for at least some people, he is the initial source.

          It's the nature of p2p file sharing. Each is a receiver, and each is also a transmitter. Denying Joel's implication in the acts is to deny reality.

           

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        Anonymous Coward, Aug 27th, 2012 @ 2:11pm

        Re: Re: Joel's "Enormous" License

        FTFY - It is incredibly dishonest to try to establish actual losses when the verifiable number of resulting downloads is potentially zero.

         

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      Rekrul, Aug 27th, 2012 @ 2:10pm

      Re: Joel's "Enormous" License

      You forgot the $1 million+ it costs to license each song for distribution, above and beyond the royalty payment to the RIAA.

       

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    nospacesorspecialcharacters (profile), Aug 24th, 2012 @ 11:15am

    I think to myself, if I were facing a $675k lawsuit over sharing 30 songs, it may as well be $675 billion as I couldn't afford that figure.

    So you know what, every day the trial continued, I'd declare to the court I just shared those same 30 songs again on BitTorrent the night before. Bing! $675k bing! another $675k bing! Bing! Bing! I'd just keep doing it.

    I'd basically try to find out if the judge is daft enough to keep a running total or make the MAFIAA file separate lawsuits; if so, how high could I rack up the total?!

    It would make a complete mockery of the system. I'd keep a running total myself and tell them "Today I owe you guys a bazillion dollars!"

    If you're going to be made bankrupt anyway, make it worthwhile!

     

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      btrussell (profile), Aug 24th, 2012 @ 6:25pm

      Re:

      They charged him like he licensed the songs for distribution.

      They are free for everyone now. Unless Joel wants some money for them, since he now has the distribution rights.

       

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    Dave Slater, Aug 24th, 2012 @ 11:49am

    You don't know what you are talking about

    Dear Writer,
    You are not qualified to write an article on a topic like this, in this way.
    I'm sorry for the ones reading and buying what you have stated.
    Get professional.

     

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      Karl (profile), Aug 24th, 2012 @ 3:07pm

      Re: You don't know what you are talking about

      Dear Writer,
      You are not qualified to write a comment on an article like this, in this way.
      I'm sorry for the ones reading and buying what you have stated.
      Get professional.

       

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    Keii (profile), Aug 24th, 2012 @ 11:57am

    Sharing songs is SO EVIL it's worth destroying someone's life and future.

     

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    Matt, Aug 24th, 2012 @ 12:33pm

    Phew...

    The RIAA must have hated mixtapes in the 80s and 90s...

     

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      Anonymous Coward, Aug 24th, 2012 @ 12:38pm

      Re: Phew...

      They tried to stop that too, but because copying wasn't as easy and didn't have as large of a potential audience, it was struck down.

       

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        Karl (profile), Aug 24th, 2012 @ 2:58pm

        Re: Re: Phew...

        They tried to stop that too, but because copying wasn't as easy and didn't have as large of a potential audience, it was struck down.

        Actually, it was more than "struck down." The Audio Home Recording Act made non-commercial copying completely legal:
        No action may be brought under this title alleging infringement of copyright based on the manufacture, importation, or distribution of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings.

        It was considered a trade-off for requiring copy protection and royalty payments.

        This could possibly mean only actions against manufacturers are prohibited, but it says explicitly "under this title," meaning "under Title 17," the entire copyright statute.

        So making mixtapes, even digital ones, is legal (or at least not "actionable").

         

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    Anonymous Coward, Aug 24th, 2012 @ 12:45pm

    A person can loan out a CD to friends an unlimited number of times, but if done online it's suddenly becomes theft.

     

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    Anonymous Coward, Aug 24th, 2012 @ 12:46pm

    A person can loan out a CD to friends an unlimited number of times, but if done online it suddenly becomes theft.

     

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    Anonymous Coward, Aug 24th, 2012 @ 12:46pm

    A person can loan out a CD to friends an unlimited number of times, but if done online it suddenly becomes theft.

     

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    Re:Re:Re:Re:Re:Re: (profile), Aug 24th, 2012 @ 4:29pm

    So he's out $675,000...

    How's he going to pay for music legitimately? Might as well pirate them now, he has a good excuse for not having the dosh.

     

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    Joe Blow, Aug 24th, 2012 @ 4:42pm

    slavery

    While working for minimum wage (which the same courts find acceptable) that will take the next ~45 years to pay off after taxes. That is if he is homeless and eats nothing but ramen and dandelion leaves for the rest of his life. The court has sanctioned his indentured servitude to corporate profits for the rest of his natural life. The only sane response to this decision is "Eff you and the courts you rode in on." Is life so dear and peace so sweet to be purchased at the price of chains and slavery?

     

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    Anonymous Coward, Aug 25th, 2012 @ 2:53am

    There is something very wrong here

    What I see is a travesty of a judicial system.
    Regardless of the details of the case, a whole
    justice system (Judges, jury , supreme court) exhibit
    behavior so far from common sense that, if exhibited
    by an individual, he would end up in a psychiatric hospital.

    What recourse has a citizen when he sees his country's judicial system go insane?

    This is the only real question this unbelievable case begs us to answer.

     

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    Andrea, Aug 25th, 2012 @ 1:03pm

    Why obeying to the rules by this unfair film- and musicindustries?

    hi people,

    I have already had also stress with this film- and musicindustries. Here in Germany we have the same problem because of the GVU (a private association, which works together with this film- and musicindustries for getting us filesharers fined).

    But: I have found some tricks round this fine and do filesharing without getting fined!!

    How I do this??
    It's really just easy. First: secure your Browser with the recommended Addons: NoScript, BroserProtect, AdblockPlus, DoNotTrack Plus and Better Privacy (agains these LSO-Cookies).

    Then I also secured my System with Truecrypt and installed Tor-Button on my Linux. Tor-Buttons secures your IP-Adress, so that these detectives of this film- and musicindustries do not get my real IP-Adress!

    Then I also do not use Bittorrent-Cliensts, but I use Browser-Addons like DTA (DownThemAll), ProxTube(to unlock these locked Videos by GEMA), youtube-Downloadhelper and FlashGot.

    Then furthermore, there is the method of not useing WLAN or LAN but UMTS! I do not use WLAN for my download-activities but I use UMTS-Net for that. For this purpose, I bought me a prepaid usb-Stick for UMTS. These little sticks are at a price of 40 € with Amazon and are not simlocked!! :-) And so I trick this film- and musicindustries out twice!.

    Another way is a harddrive-videorecorder. These machines are cheap in the electronic-stores and also have an internal burning-rom-device!! So I can download my film from TV and directly burn it to disc. So there one can also trick this film- and musicindustries out!!

    And a third trick is a software-trick. I use VLC-Player in combination with MediathekView. Thes two programs are opensource. And MediathekView makes it possible to download all films or other content of the public german TV-stations directly to your computer!!

    As long as this film- and musicindustries does not obey to rulings of our european Highcourt, there is no other way than letting this film- and musicindustries feel or anger this way!!! This court ruled, that preventive filters are illegal! But: the film- and musicindustries does not obey. They seem to give money to the courts so that they get their shitty rulings to make us fine!! But: we users also do no longer accept these fines so we trick them out!! And the other pain for this film- and musicindustries also was, that this ACTA-laws had been swept off Europe by the working together of the worldwide Internet-Users-Community!!

    So: why obeying to this fining?? I do not look into this!! As long as this film- and musicindustries does not offer us users a legal platform for downloading films and music, they shall feel our anger and as long as they put down our own set up platforms, we will not give in or even give up!! The film- and musicindustries declared the war on us, so we react back!!

     

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      Karl (profile), Aug 25th, 2012 @ 2:49pm

      Re: Why obeying to the rules by this unfair film- and musicindustries?

      I have found some tricks round this fine and do filesharing without getting fined!!

      Nobody here is interested. I'm not the site owner, but I'd personally appreciate it if you didn't post "how-to's" here.

      This is not a site about getting away with file sharing; it's about how to deal with it, from a business perspective.

       

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      Anonymous Coward, Aug 26th, 2012 @ 9:03am

      Re: Why obeying to the rules by this unfair film- and musicindustries?

      I'm with Karl on this one. You shouldn't post such a "how-to" on this site. First off, it's off topic. Secondly, it's bad enough we have certain ACs going out of their way to paint this site in a bad light and forwarding anything and everything they can to various authorities to further continue on that bad light painting (see the time one forwarded a harmless comment to the U.S. Marshals, along with the various "I'm sending that to this Congressperson"/DOJ/ICE comments), we don't need that kind of thing here because of that comment.

      You do the site harm with such postings. Please avoid doing so.

       

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    identicon
    Norman, Aug 25th, 2012 @ 7:35pm

    Piracy?

    In the old, old days there weren't 'albums' you bought a 45 with an A and B side. Then the record companies decided 'screw you' and only put out albums, and they ALL did it. There was no anti-trust case ever brought against them yet they all did it, not one would ever put out a single.

    Steve Jobs solved that problem with forcing them into 99 cent downloads.

    So, now they are viciously bringing lawsuits that cannot be properly defended against people who are not personally profiting from their 'sharing'. The music business has been coddled. I'm hoping that they get stompted on in some way.

     

    reply to this | link to this | view in chronology ]

  •  
    identicon
    Anonymous Coward, Sep 18th, 2012 @ 7:28am

    I don't buy movies. I don't buy music. I find most of it boring and it puts me to sleep. I don't go to movies because I inevitably have to pee and miss at least 20 minutes of it. Waste of time. I hate record companies, RIAA, MPAA and all of the other AA's. None of them contribute to my well being. I find them to be a blight on society that I believe needs to be erased.

     

    reply to this | link to this | view in chronology ]


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