The RIAA's war against reasonableness continues. As totally and completely expected after Judge Michael David reduced the jury award against Jammie Thomas-Rasset from $80,000 per song shared to a still ridiculous $2,250 per song shared, the RIAA has now appealed the case to the Eighth Circuit appeals court. Now is when the case finally starts to get more interesting. The RIAA is actually challenging three parts from the three prior trials (as you may recall, the first two were tossed out). Specifically, the RIAA is asking:

Whether the District Court erred by concluding that making a copyrighted work available for download on an online file-sharing network is insufficient to constitute a 'distribution' under 106(3) of the Copyright Act, and therefore refusing to enjoin Defendant from making Plaintiffs' copyrighted sound recordings available to the public.

Whether the District Court erred by concluding that it had committed an error in instructing the jury that making a copyrighted work available for download on a online file-sharing network constitutes a "distribution' under 106(3) of the copyright Act and therefor vacating the jury's verdict and ordering a new trial.

Whether the District Court erred by holding that the jury's award of statutory damages for defendant's willful copyright infringement violated the due process clause even though it was well within the range of damages awards authorized by 504(c) of the Copyright Act.

All three are interesting legal questions. The last one may be the biggest, but the hardest to succeed on. The reasoning used so far by two different judges in dropping jury awards is that the jury awards were so out of line with reality that they violated due process. The RIAA is scared to death that any sort of reasonable awards be associated with copyright law, because they're still under the ridiculously misguided belief that absolutely insane judgments for millions of dollars will scare people into no longer sharing files. The thing is, it's likely they have this misjudged in a big, bad way. The awards in the millions of dollars for just a few songs seem so incredible and so unfathomable, that most people simply think it's impossible. I honestly believe that they'd have a lot more luck if the fines were seen as much lower and much more within the grasp of the average file sharer. But the RIAA is not known for thinking logically.

The first two issues are actually important as well, though they'll get less attention. It's a key fighting point by the RIAA: which is whether or not a copyright holder needs to prove actual distribution to show an infringement of the distribution right under copyright law... or if merely "making available" constitutes distribution. This has been a major point of contention. The RIAA relies on a case about library books to say that merely "making available" is a violation of the distribution right, but other rulings and basic common sense on what constitutes distribution, suggest that merely making available is not, in fact, distribution by itself.

Check out Judge Michael Davis. After the second Jammie Thomas-Rasset case had a jury return an award of $1.92 million for her sharing of 24 songs, the judge reduced the award from $80,000 per song to three times the statutory minimum of $2,250 per song. Of course, this resulted in a wild freakout by the RIAA... and a third trial. In the third trial (just on the award amount), the jury went with $62,500 per song shared, or $1.5 million total. Considering the massive freakout last time, you might think that Judge Davis would just be done with this, but instead, he's sticking to his guns, once again reducing the award to the same $2,250 per song. This really makes it the third time he's overturned the jury (though, the first time was because he felt he gave improper jury instructions).

Of course, the RIAA will once again freak out and this will be appealed. The judge's ruling, though, is well worth reading, calling the jury award of $1.5 million "appalling":

The Court concludes that an award of $1.5 million for stealing and distributing 24 songs for personal use is appalling. Such an award is so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable. In this particular case, involving a first-time willful, consumer infringer of limited means who committed illegal song file-sharing for her own personal use, an award of $2,250 per song, for a total award of $54,000, is the maximum award consistent with due process.

This reduced award is punitive and substantial. It acts as a potent deterrent. It is a higher award than the Court might have chosen to impose in its sole discretion, but the decision was not for this Court to make. The Court has merely reduced the jury’s award to the maximum amount permitted under our Constitution.

He notes that, given the past experiences with this dispute, he's "loath" to do this again, but "the Constitution and justice compel the Court to act."

Judge Davis is clearly aware that the RIAA would freak out about this, and lays out, in great detail, his arguments for why the original awards are unconstitutional (as a violation of due process) and why the maximum fine he believes is allowed under the Constitution would be the $2,250 per song he changed the award to.

The RIAA, of course, will continue to claim that the ridiculous million dollar plus awards for sharing 24-songs are perfectly appropriate. They'll claim, as they have in the past, that the fact that multiple juries came up with this amount shows that the public agrees such ridiculous fines are normal. As per usual with the RIAA, they're being misleading. The reason that juries reach such disproportionate awards is because of the way the choices are framed to the jury. There are all sorts of studies on how framing influences a jury, and how juries don't actually consider the proportional response of the offense to the punishment.

There's one other interesting bit in the ruling that won't get much attention. That is that the RIAA asked for an injunction barring Thomas-Rasset from infringing any further, and the court grants it... in part. It's the part that it doesn't grant, which is interesting. The RIAA asked for the court to say Thomas-Rasset should be barred from "making available" any copyrighted works via file sharing programs, but the court, correctly (despite the RIAA's long-term effort to pretend otherwise), points out that there is no "making available" right within copyright law. The Court is short and sweet on that point:

Plaintiffs further request that the Court include language in the injunction barring Defendant from making any of Plaintiffs’ sound recordings available for distribution to the public. Plaintiffs argue that, if Thomas-Rasset makes Plaintiffs’ copyrighted works available on a peer-to-peer network, she will have completed all of the steps necessary for her to engage in the same illegal distribution of Plaintiffs’ works for which she has already been found liable. Because the Court has held that the Copyright Act does not provide a making-available right, it will not enjoin Thomas-Rasset from making the copyrighted sound recordings available to the public.

While there's nothing really new here, it's nice to see that point reinforced once again. Making available, by itself, is not copyright infringement, despite the industry's attempts to portray it as such.

Yesterday, we had a story about how the Winklevoss twins had finally realized that they had no chance to get a Supreme Court appeal of their own attempt to back out of a "settlement deal" with Facebook that made them at least $160 million richer (probably more by now). Like most people who read that story, we assumed that the Winklevii and partner Divya Narendra, had simply decided to take their millions and sulk. Instead, it looks like they are simply trying again with a different legal strategy.

Yes, a day after admitting that they wouldn't file a Supreme Court appeal, they instead made a new filing in the district court in Boston, once again attacking the settlement agreement (which they had agreed to), asking the judge to investigate if Facebook "intentionally or inadvertently suppressed evidence."

It is true that some instant messages that Zuckerberg wrote while he was supposed to be working with the Winklevii emerged after the settlement had been agreed to. The Winklevii didn't focus on those in their original attempt to back out of the settlement, instead claiming that Facebook had mislead them about the value of Facebook shares. However, now it appears they're starting again using the instant messages as evidence, and claiming that Facebook withheld the relevant evidence, and saying that they wouldn't have settled if they'd seen that evidence.

The thing is, while the evidence does make Mark Zuckerberg look like a jerk, I'm not sure it actually helps the Winklevii's overall argument. And, frankly, the whole thing remains totally pointless. The Winklevii failed to build a serious competitor, but we're talking about what was effectively the first few months of both companies (Facebook and ConnectU). Nothing about that means that they should get any credit whatsoever for what Facebook became. The fact that they already got $160+ million out of this is more than enough for their own failure to build a successful company. They should drop this effort, and maybe spend some time -- and maybe some of their piles of money -- looking into ways to deflate their massive sense of entitlement for something they had nothing to do with.

When the Winklevoss twins lost at the appeals court for the second time, I had hoped that someone would sit them down and explain to them that there was simply no freaking way the Supreme Court would bother to hear an appeal on their case, in which they complain about how they settled for "only" $160 million for building a company that wasn't Facebook and wasn't very popular. And yet, they still insisted that they would appeal. I'm not sure who did it, but it appears that someone finally sat them down and explained to them how the Supreme Court works, what kinds of cases it takes, and how it would almost certainly react to a petition to hear their case... and it's finally dawned on them that this would be a good time to take the money (which is probably worth even more now thanks to Facebook's continued growth) and say, "thank you." Yes, it's true, the Winklevii have finally realized what the rest of the world realized a while ago: the case is done and there will be no appeal to the Supreme Court. I guess that storyline is now out of the running for the sequel movie to The Social Network. Thankfully, we've still got Paul Ceglia running around, and his story is a lot more entertaining anyway.

Well, that didn't take long at all. We noted that the tone deaf Winklevoss twins would probably appeal their latest legal "loss," which "only" entitles them to the $160 million or so from their original settlement with Facebook and Mark Zuckerberg. Even while I said I expected them to appeal since they'd already gone this far, there was still a little voice in the back of my head saying they couldn't possibly think that the Supreme Court could see a Constitutional issue to consider in their case. And yet... hours later, the Winklevii lawyer has announced plans to appeal to the Supreme Court. And I will announce plans to not laugh out loud when the Supreme Court turns them down.

Well, this is hardly a surprise. A month ago, Judge Kozinski told the Winklevoss twins (the "Winklevii") that they couldn't back out of their settlement agreement with Facebook and Mark Zuckerberg, which was worth "only" $160 million, saying, "At some point, litigation must come to an end. That point has now been reached." However, the Winklevii apparently couldn't just take their money and cry all the way to the bank, but asked the court for an en banc hearing (basically a rehearing of the appeal with all of the judges, rather than just a panel of three). As I stated at the time, I thought it would be a surprise if the court accepted this... and that was an easy call. The court has rejected the request without comment, meaning the only thing left to do is to appeal to the Supreme Court (well, or just take their $160 million...). Given how the Winklevii have acted up until now, it wouldn't surprise me at all to see them try to take this to the Supreme Court, though I can't fathom a situation under which the Supreme Court would care. This case was over a long time ago. It's just the Winklevii who haven't realized it yet.

As was widely expected, the Winklevi have decided not to listen to Judge Alex Kozinski on the 9th Circuit appeals court, who told them that the "time is now" to end their ongoing lawsuit against Facebook, and that they should just be happy with the approximately $160 million they ended up with for totally failing to compete in the market place with Zuckerberg. Frankly, even if Zuckerberg really had "copied" their idea, $160 million seems like more than ample compensation. It wasn't the Winklevoss's idea that made Facebook successful (not by a long shot). It was the specific ways in which Zuckerberg and his team executed (combined with an element of luck). In fact, with a reward so ridiculously high for failing, all this sort of lawsuit does is encourage more silly lawsuits from other competitors who failed in the marketplace.

However, despite the court and plenty of commentators telling the Winklevi to cry all the way to the bank with their money, the twins and partner Divya Narendra, have in fact filed for an en banc hearing, asking the full slate of 9th Circuit judges to rehear the case, rather than just the standard three judge panel who heard the original. To be honest, I'd be surprised if the court agreed to the rehearing, but you never know. Typically, they'll do a rehearing where there really are serious questions of law, and significant conflict in how the judges view things with the case at hand. I just don't see the specifics of this dispute rising to that level. If that fails, the only choice left will be to appeal to the Supreme Court, who we can also hope will recognize more important issues at hand and pass on hearing the case.

Incredible. After being told to shut up and take their $160 million from Facebook, the Winklevoss twins are apparently still planning to appeal the ruling from the 9th Circuit. They're filing for an en banc hearing (basically asking all of the judges on the court to rehear the case, rather than the typical panel of three). On issues where there is some disagreement among the judges you'll see en banc hearings. Frankly, I'd be pretty surprised if the 9th Circuit is willing to rehear this case. And, at that point, their only resort will be to appeal to the Supreme Court, who I really doubt would find this a pressing matter of Constitutional importance. What's amazing to me is how much these guys seem to be hurting their own reputations here. Seriously, take the $160 million or so and move on.

The latest in the ongoing trial of Joel Tenenbaum, the student who was found guilty of sharing 30 songs online, and told to pay $675,000 for it, until the judge unilaterraly reduced the amount to $67,500. As we noted at the time, it really seemed like Tenenbaum had horrifically bad legal counsel, in the form of Harvard law professor Charlie Nesson, who still seems more focused on making the case a circus, rather than focusing in on the key issues. That does not, however, mean there aren't key issues here, with the big one being the appropriate standards for determining how much one should have to pay if found guilty of file sharing.

The appeal was just heard on Monday, and you can listen to the oral arguments (mp3) from the court's website. It's definitely an interesting hearing and worth listening to. As with most appeals court situations, the bulk of the work is done in the briefs that were filed prior to the hearing, and which everyone is familiar with. The oral hearings get right to the point and drill down on where the panel of judges has questions. The hearing opens with a representative of the US Department of Justice, which stepped in on the case, because it was concerned that the court might rule that the statutory rates for copyright infringement (which, of course, can go up to $150,000 per infringement in cases of willful infringement) were not meant for cases like a person sharing copyrighted music for their own pleasure, rather than any commercial purpose. The Justice Department sides with the RIAA (of course), in saying that it's just fine to apply copyright law -- which really was designed for commercial cases of infringement -- to kids sharing files. At least one of the judges appears skeptical of this, asking directly:

Was file sharing in existence at the time the statute was passed?

The Justice Department tries to get around this by pointing to the legislative record from the last time the statutory damage rates were changed, but the judge is not buying it. He immediately points out that if this is what Congress intended, it's quite odd that no such cases (or perhaps one other case -- by which they're referring to the Jammie Thomas case) have been tried, involving file sharing for non-commercial means. The judge clearly seems skeptical that copyright law was intended for such cases. While the lawyer tries to explain all of this away, with some claim about how everyone makes choices in who they sue, another judge chimes in and points out that for all the claims that Congress meant for these damages to cover non-commercial file sharing, wouldn't Congress also know that the law had never been used that way.

The lawyer again goes on to insist that since file sharing "greatly multiplies the harm" to the copyright holder (um... citation needed on that one...), Congress must have meant for such ridiculous statutory rates to cover file sharing as well. Again, the judges seem skeptical, pointing out that in this particular case, the only evidence was that Joel Tenenbaum downloaded 30 songs, and the RIAA presented no evidence that anyone else copied from him. In other words, they immediately push back on the claims of "harm." The lawyer, again says that there's lots of other evidence, even though the labels chose not to bring it.

Once again, the court is skeptical. They ask the DoJ lawyer: if Tenenbaum had sat down in a single setting and downloaded 1,000 songs, would it be appropriate under the law to claim he owed $75,000 for each download. And the lawyer says, effectively, yes, after going through the specific statutory rates ($750 to $30,000 for non-willful, and up to $150,000 for willful). Realizing how ridiculous this sounds, the lawyer tries to focus on the fact that the judge can tell the jury about mitigating factors and be specific in the jury instructions.

From there, the lawyer for the record labels, Paul Clement, steps in, and claims that the ridiculously high damages are fine because Congress wanted to send a message about the harm of "willful" infringement. He then goes on to rail about how Tenenbaum's downloading destroyed "the value of the copyright," and complains about how the district court judge likened downloading to public performance rights. At that point, another judge interrupts, and says that he basically doesn't understand "the mechanics" of infringement, and would like more specific info.

After explaining (somewhat misleadingly, but carefully) how file sharing works, Clement goes on to rail against file sharing as being incredibly damaging, because it pushes people who download to also upload... and immediately a judge cuts to the heart of one of the key legal questions:

Is "making available" the same as distribution?

Clement sidesteps this, by noting that while the RIAA obviously thinks it is, that's "not an issue in this case." The judge doesn't want to give up, though, and asks him if the record labels "have the technological capacity to determine if distribution was actually effectuated?" Again, Clement tries to get around this, by saying it doesn't matter in this case.

Another judge asks a pertinent question about damages, wondering if the actual damage to the record labels was just "the lost sales" from people not buying the music, and Clement, quite ridiculously, then tries to pin the entire demise of copyright law on Tenenbaum:

"It's more than that, your honor. It's really the complete undermining of the copyright. What I mean by that is you can't just isolate what's going on here as if it's an individual's, by copying it, has not gone and bought the work on iTunes or not bought the work in a record store when we used to have record stores. What happens is, by distributing it to others, there are... the viral nature of this technology, really has a substantial impact on the value of the work. And the way I'd ask you to think about it is this: one, I think, relevant question in a statutory damages case is, what would it cost to get a license for what the defendant has done. And, if all the defendant had done was making a copy and that was it, then maybe an analogy to just getting a copy off of iTunes would be appropriate. But here, by distributing it... if someone wanted to go to one of the record companies and say 'we'd like to do what the defendant did in this case,' the value of that license would be essentially the value of the entire copyrighted work. Because the effect of putting this work up on peer-to-peer technology is essentially you take a copyrighted work, and put it in the public domain."

He goes on to blame the poor financial state of the record labels on file sharing, and seems to indicate that we should blame Tenenbaum for this.

After a brief, and somewhat inconsequential, discussion by Julie Ahrens, representing the EFF (which the judges clearly didn't have much interest in, pointing out that any of the issues raised should have been raised to the jury, not to them -- even though that would have raised questions by the RIAA folks of an attempt at jury nullification...), we move on to Tenenbaum's own defense, which was handled (with permission) by a Harvard Law student, Jason Harrow. He kicks off his talk by pointing out that the Justice Department's claim that companies didn't bring such lawsuits for non-commercial infringement in the past because it wasn't cost effective, is on its face ridiculous. After all, if you can get $150,000 per infringement for someone infringing on a $1 work, how is it not cost effective to bring that lawsuit over and over again (just ask the various mass file sharing lawsuit filers...). Instead, he notes that the better explanation is that "no one thought that the statute would apply to such consumer usage."

One of the judges immediately jumps in and says that Congress could have made an exception, but didn't. Harrow points out that perhaps it didn't because the result would naturally be absurd: the idea that someone sitting at home, listening to music, would suddenly be liable for billions of dollars, doesn't make any sense. The judges' questioning of Harrow seems focused on the specific standards and jury instructions, rather than on the larger issue.

Finally, Charlie Nesson presents, and goes through the history of copyright law, and how statutory damages were clearly, originally intended for commercial infringement, not non-commercial. One of the judges points out that the RIAA began these lawsuits in 2003, and if Congress was upset about them, it's had eight years to amend the statute to specify that statutory damages don't apply to non-commercial use. Of course, that ignores the reality, which is that it's effectively impossible for Congress to change copyright law in a manner that benefits consumers, since the entertainment industry would go ballistic. The court also chides Nesson a bit for "pushing the bubble" very far in some of his arguments.

Clement then comes back for a brief rebuttal, trying to claim that the very first Congress put in place statutory damages for copyright... which is immediately shot down by one of the judges, who notes that the Congress felt that statutory damages should not be punitive, which Clement tries to sidestep around (not very successfully, in my opinion).

And that's about it. If you had asked me prior to the oral hearing, I would have said that the court would almost certainly uphold the statutory damage rates as being perfectly reasonable. It just seems like the sort of question that the courts don't want to touch -- especially (as mentioned by one of the judges in the case) noting that Congress has said nothing on the issue in the last decade. However, I have to admit that I was surprised at how (I believe) two of the judges really seemed to dig in against both the Justice Department lawyer and the RIAA/labels lawyer, on the big key questions, and suggested, repeatedly, that they're not buying the overall claim. I'm still guessing that the court won't say that the award was unconstitutionally excessive, but I'm not nearly as certain after listening to the hearing as I was before it...

Here's some big news. You may recall a few years ago that the courts more or less said that the ACLU had no standing to file a lawsuit over the government's warrantless wiretapping program, because they weren't the people being spied on. Of course, that left people in quite the catch-22 situation. The wiretapping was entirely secret, and no one could sue unless it was known that they were being wiretapped. So how could you possibly question the legality of the program? The only case that was able to move forward was the one where the government accidentally revealed it was wiretapping, but otherwise the wiretapping program has continued. In fact, to deal with this, Congress even passed a law that explicitly stated that warrantless wiretapping was okay (and also granting telcos retroactive immunity for helping out prior to the law being passed).

Of course, with the passage of the new law, the FISA Amendments Act, there was a new issue to sue over, and the ACLU and some others brought a new suit, challenging the specific law. The lower court, again, said that the ACLU had no standing, but the 2nd Circuit appeals court has now reversed that ruling and sent it back to the lower court, saying that the ACLU and the others have made a strong case that they should be able to challenge the constitutionality of the law:

plaintiffs have good reason to believe that their communications in particular, will fall within the scope of the broad surveillance that they can assume the government will conduct. The plaintiffs testify that in order to carry out their jobs they must regularly communicate by telephone and e-mail with precisely the sorts of individuals that the government will most likely seek to monitor – i.e., individuals “the U.S. government believes or believed to be associated with terrorist organizations,” “political and human rights activists who oppose governments that are supported economically or militarily by the U.S. government,” and “people located in geographical areas that are a special focus of the U.S. government’s counterterrorism or diplomatic efforts.” The plaintiffs’ assessment that these individuals are likely targets of [FISA Amendments Act] surveillance is reasonable, and the government has not disputed that assertion.

As the report linked above notes, it's expected that the US government will do its usual "state secrets!" claim to try to get away from having to actually defend how this law meets the requirements of the 4th Amendment. Hopefully the courts will actually stand up to the government for once on such a claim.