Joel Tenenbaum Loses Again; Bad Cases With Lying Defendants Make For Bad Law

from the unfortunate dept

From very early on, we pointed out that Joel Tenenbaum's defense to being sued by the record labels was a complete and total train wreck. There were some legitimate legal issues to be raised, but on the whole, Tenenbaum's legal team either failed to raise them, or raised them so ridiculously that they were dismissed out of hand. At points, it appeared that they bet the whole game on the idea that downloading music would be seen by the court as "fair use," when that was almost certainly never going to fly (and when the court rejected it, it seemed like Tenenbaum's lawyers had no backup plan). This was all made much, much, much worse by the fact that Joel Tenenbaum was a terrible defendant. He never should have gone to trial and should have taken the first settlement offered to him for a very simple reason: he was guilty of massive amounts of file sharing, and there was no way he was going to get around that point in a trial. Even worse (much worse) he then lied, repeatedly, about this. It's stunning that he didn't just settle and move on. This was a clear cut case where he had no case, and fighting it has only served to set bad to awful precedents, each time clouded in large part by his behavior outside of just the file sharing.

So it's no surprise that, on yet another appeal, Tenenbaum has lost again, as the appeals court has sided with the second district court ruling, which said that a $675,000 award for sharing 30 songs was perfectly reasonable. There is a legitimate issue of whether or not $22,500 per song for songs that were uploaded non-commercially is constitutional. But, partly because of Tenenbaum's own bad behavior, the court has no problem at all with an award that high.
On appeal, Tenenbaum invites us to assume that he is "the most heinous of noncommercial copyright infringers." We need not go so far as to accept his offer. The evidence of Tenenbaum's copyright infringement easily justifies the conclusion that his conduct was egregious. Tenenbaum carried on his activities for years in spite of numerous warnings, he made thousands of songs available illegally, and he denied responsibility during discovery. Much of this behavior was exactly what Congress was trying to deter when it amended the Copyright Act. Therefore, we do not hesitate to conclude that an award of $22,500 per song, an amount representing 15% of the maximum award for willful violations and less than the maximum award for non-willful violations, comports with due process.
Basically, an award this high is okay because Tenenbaum was a brat. The court argues that because he was such a brat an award this high makes sense because it fits in with the "deterrent effect" intended by statutory damages awards. Of course, if you think about that logically, it makes little sense, because by Tenenbaum's own actions, it appears that nothing was going to deter him from file sharing, just as other giant awards and greater levels of punishment have done little to nothing to deter others from file sharing. But, all of that is blurred by the fact that he lied, which mucked up the entire case, combined with a really piss poor strategy in court that never seemed to reach a point that was even half-baked.

There are legitimate questions about the constitutionality of copyright's statutory damages awards, which are nowhere near proportionate with the "wrongs" they are supposedly "righting." But, you don't get good rulings on difficult cases when you have a defendant who acted badly and lied during discovery. Instead, you get a bad precedent like this one.


Reader Comments (rss)

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  1.  
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    That Anonymous Coward (profile), Jun 26th, 2013 @ 2:38am

    I'd like someone to audit the Judge's life and point out all of the ways he is violating copyright everyday.

    The insane damages are just that, insane.

    He was a horrible defendant but the damages awarded far outstrip the actual "crime".
    They are based on conjecture of how much they imagine they lost, no factual data.
    The law is still from an age when making a copy was long, involved, and costly... so that if someone were to do it, they would have a profit motive.
    Copying things is now able to be done with ease, and many people do it everyday blithely unaware they violate copyright so often.

    Awards like this backed up with, but well you were a dick too, do not do anything but make people angry. They see the insanity in the system and stare in wonder.

    Copyright Trolls, this case, and so many other stupid things happening show over and over the law is broken but no one has the will to fix it, fearing lack of "contributions". For once it would be nice if the people came before the corporations.

     

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  2.  
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    Richard (profile), Jun 26th, 2013 @ 3:05am

    Re:

    The worst of it is that he didn't even go down making a principled stand - so he is not even a
    decent quality martyr.

     

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

  3.  
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    Anonymous Coward, Jun 26th, 2013 @ 3:24am

    the only thing i disagree with is the amount of the award. no one in their right mind could find this amount acceptable in any way, shape or form. being guilty and deserving to be punished is totally different from the way these judges are behaving. it's almost as if they are punishing him for doing something personal to them. the award is insanely high and can only be because of one/both reasons, been well and truly bribed or have interests in the copyright industries themselves so are taking revenge via their position. under no stretch of the imagination can anyone possibly think that any song is worth $22,500 unless grossly 'encouraged' to do so!!

     

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  4.  
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    Ninja (profile), Jun 26th, 2013 @ 4:08am

    It's a pity that he fcked up the case. Even if he was guilty of infringement there are quite compelling arguments that could be raised here to greatly diminish the fines and even question the entire law (the non-commercial issue).

    However, regardless of it the damages imposed are way too high and certainly do not fit the supposed crime. Honestly I've yet to see any seeder that went above a 100, 200 ratio which would justify fines of $200 to $400 per song (considering the standard value of $0.99 and a 2 factor multiplier as a deterrent).

     

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  5.  
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    Anonymous Coward, Jun 26th, 2013 @ 4:16am

    regardless of whether he lied or not, whether he did the deed or not, the punishment is ridiculous and your attitude towards the guy for what he did or didn't do is fucking disgraceful, Mike. no way that sharing 30 songs is worth this amount in fines. all you're trying to do is justify the punishment because of his attitude. his attitude was never on trial and that shouldn't be punishable anyway!

     

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  6.  
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    Rikuo (profile), Jun 26th, 2013 @ 4:19am

    Re:

    You just didn't read the article at all did you? Mike agrees with you, in that the punishment doesn't fit the crime.

     

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  7.  
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    The Real Michael, Jun 26th, 2013 @ 4:22am

    Re:

    "He was a horrible defendant but the damages awarded far outstrip the actual 'crime.'"

    The justice system is broken, as are many of the laws on the books. I posted this quote a few weeks back:

    "When plunder becomes a way of life for a group of men living together in society, they create for themselves in the course of time a legal system that authorizes it and a moral code that glorifies it" - F.Bastiat

    No matter how absurd and overblown the purported 'damages,' the system is biased towards the wealthy and big business. They do it simply because they can.

     

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  8.  
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    DCX2, Jun 26th, 2013 @ 4:24am

    "he made thousands of songs available illegally"

    [citation needed]

    Last time I checked, he was only convicted of sharing 30 songs.

     

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  9.  
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    The Real Michael, Jun 26th, 2013 @ 4:39am

    Re:

    If you've been reading Techdirt for some time, you'd know just how much people like Masnick have spoken out against abusive damages, as well as a host of other legal issues. Why is it important? Because it affects everybody. These rulings set a bad precedent for other justices to follow.

     

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  10.  
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    Anonymous Coward, Jun 26th, 2013 @ 5:30am

    Cue little boy blue arguing that deterrence justifies any size monetary award in 3...2...1...

     

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  11. This comment has been flagged by the community. Click here to show it
     
    identicon
    out_of_the_blue, Jun 26th, 2013 @ 5:55am

    "nothing was going to deter him from file sharing"

    How many times have we seen that written here at Techdirt?

    Listen, kids, when YOUR notions of "sharing" are taken to court you ALWAYS lose. It's illegal to provide copyrighted content for free because you don't own it. Adult society has already worked out the limits of what you can do with someone else's property. I consider the ownership well-based in common law, and I've frequently advised that you just get on to how well the system rewards actual creators -- and how it vastly over-rewards the fat cats, middlemen, and all others who grift off the value of content -- including fat slugs like Kim Dotcom who illegally got millions.

    Guess we'll see how well it works for deterrence, starting with fanboys declaring here that "nothing was going to deter ... from file sharing"...


    Take a loopy tour of Techdirt.com! You always end up same place!
    http://techdirt.com/
    Where "I'm a pirate! You can't stop me!" is one of the more thoughtful fanboy positions.
    01:54:56[b-917-2]

     

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  12.  
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    Whosisdemol, Jun 26th, 2013 @ 6:14am

    Go America! Land of the free and home of the insanity. Great PR for those big label companies...

     

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  13.  
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    Conspircy Therorist, Jun 26th, 2013 @ 6:26am

    Thinking out loud...

    Ever wonder what lengths the **AA's will go to get a ruling in their favor? Pay-off someone to act like a brat, not accept deals, and do everything so poorly they are guaranteed to loose?

    I realize there are idiots in this world, but this seems unusually stacked in the wrong direction. Egregious offender wanting to fight to good fight, but hiring incompetent lawyers.

     

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  14.  
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    Rikuo (profile), Jun 26th, 2013 @ 6:42am

    Re: "nothing was going to deter him from file sharing"

    Why do you keep spewing that common law bullshit? I and plenty of others have corrected you on that. What you're saying is false. Copyright's origins lie in statute law, not common law.
    Yea, like the current copyright regime rewards actual creators well...which is why we get articles on Techdirt all the time about artists being screwed over in royalties, and actors from massively successful movies being told they're not being paid because their movie isn't profitable (Return of the Jedi, anyone?).

    I know you spew falsehoods. The other readers know you spew falsehoods. You know you lie. So why continue?

     

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  15.  
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    Anonymous Coward, Jun 26th, 2013 @ 6:46am

    On the bright side, this case is teaching a large number of law students how not to practice law.

    Two side notes. First, he was not "convicted" because this was a civil trial. He was held to be "liable" for his actions. Second, the 30 songs places limits on the total amount of what could be assessed against the defendant, but where within the range of possible damages for each infringement an amount could be set may be based in part upon other actions demonstrating to the satisfaction of the jury that one amount was more appropriate than another in order to curtail the defendant once more engaging in such activities. IOW, it was appropriate to note the "thousands", but the range of damages awarded for each infringement was limited to the range of the "30".

     

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  16.  
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    John William Nelson (profile), Jun 26th, 2013 @ 6:58am

    I remember when the Harvard kids got involved

    And a lot of folks wrote things like "the RIAA is in trouble now!"

    Clearly those people don't understand how poorly Harvard Law prepares folks for civil litigation and how little the Professor overseeing it knew about civil litigation.

    What an epic fail.

    This was going on during my time in law school and my friends would find me cursing loudly at the screen of my computer over the stupidity of Tenenbaum's counsel.

     

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  17.  
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    Anonymous Coward, Jun 26th, 2013 @ 7:04am

    Re: Re:

    i read it and as far as i can see, apart from stating that the fine is way too high, it seems to me that Mike is blaming Tenenbaum for that because he lied, because his legal team asked the wrong questions, because they went the wrong way, whatever. none of the above should make any difference to him being found guilty or not, but using the above as reasons for stitching him up for $22,500 per song is outrageous!! even 100 per song is high, but this amount? wow!!!

     

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  18.  
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    art guerrilla (profile), Jun 26th, 2013 @ 7:14am

    Re: Re: "nothing was going to deter him from file sharing"

    (replying to you instead of blueballs so i won't feel icky)

    (said breathlessly and with wide-eyed demeanor)
    yes, and speeding is ILLEGAL too ! ! !

    ...geez, and yet, 99.999999999% of the people do so on a regular basis and have ZERO consequences (either wrecking or a ticket) to show for it...

    *same* with IP 'theft' (sic): 99.999999% of the time we/you/us get away with it with NO consequences, EXCEPT a BETTER, cheaper media experience...

    IT IS NATURAL TO SHARE, IT IS UNNATURAL TO STOP SHARING.

    in this locked-down, EULA-ed up the ass, profit uber alles society the masters of the universe have created in their own image, WE CAN'T TAKE A BREATH OF AIR WITHOUT SOME KAPITALIST PIGGIE WANTING TO "MONETIZE" IT...

    THAT is the nub of the problem WE have, NOT promoting a prison-society where almighty mammon rules...

    art guerrilla
    aka ann archy
    eof

     

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  19.  
    identicon
    Anonymous Coward, Jun 26th, 2013 @ 7:30am

    So... how much of that $675000 will the RIAA actually see, and how much of that money that was stolen from artists will be returned to them?

    Funny how the RIAA insists that they must get each and every pound of flesh, and yet, they can't ever give a straight answer as to where that pound of flesh ends up.

     

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  20.  
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    madasahatter (profile), Jun 26th, 2013 @ 7:49am

    Re: Award Size

    I think the court is saying to Tennenbaum because you were such a lying idiot you deserve to get hammered. The real issues appear to by the scope, his refusal to change, and apparently committing perjury. Courts do not like the appearance of perjury and it is a fool-proof method to get hammered.

     

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  21. This comment has been flagged by the community. Click here to show it
     
    identicon
    Anonymous Coward, Jun 26th, 2013 @ 8:50am

    Of course, if you think about that logically, it makes little sense, because by Tenenbaum's own actions, it appears that nothing was going to deter him from file sharing, just as other giant awards and greater levels of punishment have done little to nothing to deter others from file sharing

    So we should stop meting out punishment or holding people liable for their unlawful conduct? DO you seriously think that there wouldn't be an explosion of infringing if all penalties and liability were removed?

     

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  22.  
    identicon
    Anonymous Coward, Jun 26th, 2013 @ 9:37am

    Re:

    seriously...

    IF there was a 'law' (what are those? oh yeah, those mutable, amorphous, sometimes secret things which bind 99% of us to behavior the STATE wants to impose, and lets 1% do whatever the fuck they want without consequences) that ANY/ALL plaintiffs, lawyers, and judges in 'IP' cases had to PROVE they had NEVER traduced idiotic IP laws, etc, THERE WOULD BE NO ACTIONS EVER TAKEN...

    ...its hypocrites all the way down ! ! !

    caesar's wife ? i doubt they can rise to the moral standard of caesar's assassins...

    art guerrilla
    aka ann archy
    eof

     

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

  23.  
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    Rikuo (profile), Jun 26th, 2013 @ 9:54am

    Re:

    As compared to the high levels of infringing taking place right now with the penalties and liabilities in place?

    It's simple.

    The likelihood of being prosecuted for copyright infringement through torrenting is small. The ease to do the deed is extremely high. The punishment is astronomical. Therefore, there's no actual reason for someone NOT to torrent, it's too easy to say "Nah,I'll never be caught".

     

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  24.  
    identicon
    Anonymous Coward, Jun 26th, 2013 @ 10:15am

    Re:

    No, I actually agree and so does Mike. The problem is that the defendant in this case was a lying sack of moron. Tenenbaum is being hammered for that, when he could quite reasonably be seeing jail time for perjury.

     

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  25.  
    identicon
    Anonymous Coward, Jun 26th, 2013 @ 10:15am

    Re:

    If you made sure that penalties and punishment were:

    - Fitting to the crime committed, and not ridiculously expensive
    - Actually meted out to the right people, not the sap holding onto the IP address pulled out of nowhere
    - Resultant penalties were re-attributed to the artists that were allegedly stolen from

    Then you might actually get somewhere. Right now getting RIAAed is as likely as getting struck by lightning. Actual pirates aren't bothered. Making new laws to make it easier to catch other innocent people in this dragnet like SOPA is not the answer.

     

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  26.  
    identicon
    Anonymous Coward, Jun 26th, 2013 @ 10:22am

    Re:

    It ends up in a 90/10 split between Satan and Shiva.

     

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

  27. This comment has been flagged by the community. Click here to show it
     
    identicon
    Anonymous Coward, Jun 26th, 2013 @ 10:56am

    Re:

    The amount is too high? LOL. The little douchebag committed perjury. He's lucky he's not in jail.


    As far as it appearing "that nothing was going to deter him from file sharing", how much file sharing do you think he's doing now, Masnick? Hmm?

    Once again you write the opposite of reality, and claim it as fact.

    That's called lying.

     

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  28.  
    identicon
    Anonymous Coward, Jun 26th, 2013 @ 11:00am

    Re: Thinking out loud...

    Yes, especially tin foil dolts like yourself that spell 'lose' incorrectly.

     

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

  29.  
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    Mike Masnick (profile), Jun 26th, 2013 @ 11:56am

    Re:

    regardless of whether he lied or not, whether he did the deed or not, the punishment is ridiculous and your attitude towards the guy for what he did or didn't do is fucking disgraceful, Mike. no way that sharing 30 songs is worth this amount in fines. all you're trying to do is justify the punishment because of his attitude. his attitude was never on trial and that shouldn't be punishable anyway!

    I really think you should read the post again. I am not *justifying* it. I'm explaining why it happened, and why it's bad. I agree that the punishment is ridiculous, I'm just pointing out that the court would never focus on just the absurdity of the amount, because Tenenbaum's other actions. That's what clouded the ruling.

    I'm not "justifying" it at all. I think it's terrible. What upsets me is that the *next* defendant, the one who wasn't as bad, who did't lie... still gets stuck with this precedent.

    You seem to have totally misinterpreted what I said.

     

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  30.  
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    Mike Masnick (profile), Jun 26th, 2013 @ 11:58am

    Re: Re: Re:

    it seems to me that Mike is blaming Tenenbaum for that because he lied, because his legal team asked the wrong questions, because they went the wrong way, whatever.

    No, I'm saying that it's no surprise the court ruled the way it did, because they were unable to focus on the specific issues because of all those factors. So yes, I blame him for putting himself in a position to get such an awful ruling and distorting the real issues.

    If you want a good ruling, you want a clean case: one where the court can't focus on anything else, like the fact that Tenenbaum was a twerp who lied.

    none of the above should make any difference to him being found guilty or not,

    I'm living in reality. Explaining reality. Don't attack me for explaining reality.

    using the above as reasons for stitching him up for $22,500 per song is outrageous!! even 100 per song is high, but this amount? wow!!!

    I have never said the amount is okay. Just the opposite. I'm just saying Tenenbaum never should have been in a position to have a court rule on this, because they were going to focus on his being a lying twerp, rather than the issue you raise.

     

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  31.  
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    Mike Masnick (profile), Jun 26th, 2013 @ 12:03pm

    Re:

    So we should stop meting out punishment or holding people liable for their unlawful conduct? DO you seriously think that there wouldn't be an explosion of infringing if all penalties and liability were removed?

    I didn't say all penalties and liability should be removed. Why must you always lie? It's pretty sick.

    I said that the court justified the high amount solely because of the supposed deterrent effect. But if there's no proven deterrent effect, then that entire argument goes away.

    As such it would go back to liability based on a reasonable look at the harm caused, which I think is fine.

     

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  32.  
    identicon
    Anonymous Coward, Jun 26th, 2013 @ 12:49pm

    Re: Re:

    Obviously the insane awards didn't stop him from sharing, did it? If it did, then he'd not have been in court in the first place. Just because you fail basic understanding of the English language doesn't make Mike a liar.

     

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  33.  
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    Anonymous Coward, Jun 26th, 2013 @ 2:18pm

    Re:

    Yep, when you go against the grain you are going to have a hard time.

    People continue to share and they appear to not care about the letter of the law.

    Kaplan(Warner Bros) just said in public that pirates are a proxy for consumer interest and that they are turning a blind eye to piracy(i.e. fan art).

    This has been going on for the better part of 20 years now, do you need more 20 to get that it won't stop don't matter what you do to others?

    No matter what you think about piracy, is a fact. I would like to see LoLCats disappear, but I do know its not going to happen do I get mad because funny cats are everywhere? nope I move on, I don't spend scarce resources trying to stop what others do, I find a way around those issues so I don't have to deal with them and sometimes even I post some LoLCats somewhere is funny how it grows on you if you give it a chance, you stop hating it so much, maybe you should do the same with pirates since obviously you are a closet pirate preaching against the "filth". This reminds me, do you secretly hate yourself blue?
    Life is so beautiful, look at the Sun, stop looking into the abyss.

     

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  34.  
    identicon
    Anonymous Coward, Jun 26th, 2013 @ 2:32pm

    Re: Re:

    I don't get why people keep using static monetary values.

    It hurts people who are below more and more the more they get below that line and it hurts less and less for the people who get more and more away from that line, it should be based on earnings or declared income, so it hurts everyone the same in the same proportion, with alternative means of hardship for those who don't have income.

    It hurts fairness and justice, so why people keep making up arbitrary values?

    How hard is to write:

    "The punishment shall be the value of the harm caused if known plus a deterrent factor of one year income worth, the paying of such shall be at the discretion of the judge which shall take into consideration how the subject will be able to pay in full the deterrent factor, it must be hard enough to deter somebody but not impossible to be accomplished"

     

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  35.  
    identicon
    Anonymous Coward, Jun 26th, 2013 @ 3:15pm

    Re: Re: Re:

    No.

    He did it because he thought he could get away with it. He found out the hard way that there is always the possibility that you won't.

    So having seen that the consequences are very real, how much file sharing is the little pirate douche engaging in now, hmm?

     

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  36.  
    identicon
    Anonymous Coward, Jun 26th, 2013 @ 6:07pm

    Re: Re: Re: Re:

    I would guess that he is file sharing just as much as before, but is now using a proxy or a VPN.

    Can you show that he has stopped file sharing? HMMMM

     

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

  37.  
    identicon
    Anonymous Coward, Jun 26th, 2013 @ 6:18pm

    Re: Re: Re:

    So you would be happy with $20,000 fine plus a years salary for speeding?

    It has a much higher chance of causing actual real harm, including multiple deaths, and you think that Copyright infringment should have a thousand times higher penalty?

    What reality do you live in? it is certainly not the reality the rest of us live in

     

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  38.  
    identicon
    Anonymous Coward, Jun 26th, 2013 @ 10:48pm

    Re: Re:

    John Steele and his gang committed perjury. They're lucky they're not in jail. What's your point. How much of that $675000, allegedly stolen from musicians, is going to be returned to them?

     

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  39.  
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    btrussell (profile), Jun 29th, 2013 @ 5:55am

    Re: "nothing was going to deter him from file sharing"

    Give me a $100 million and I'll make a movie you will never forget.

    Don't forget, Mike has to pay you first for your posts to become coherent, according to you.

     

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


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