decoration decoration
Stories

GROKLAW
When you want to know more...
decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books
Your contributions keep Groklaw going.
To donate to Groklaw 2.0:

Groklaw Gear

Click here to send an email to the editor of this weblog.


Contact PJ

Click here to email PJ. You won't find me on Facebook Donate Paypal


User Functions

Username:

Password:

Don't have an account yet? Sign up as a New User

No Legal Advice

The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

Here's Groklaw's comments policy.


What's New

STORIES
No new stories

COMMENTS last 48 hrs
No new comments


Sponsors

Hosting:
hosted by ibiblio

On servers donated to ibiblio by AMD.

Webmaster
FSF Asks to File Amicus Brief in Sony v. Tenenbaum (as text)
Saturday, March 21 2009 @ 05:21 PM EDT

FSF, with Ray Beckerman serving of counsel, have asked to file an amicus brief in the Sony v. Tenenbaum case. I thought you'd like to read it. The plaintiffs oppose the motion, and Tenenbaum supports it. So that means the court will decide if the amicus will be accepted or not.

The purpose of the brief is this:

We are submitting this brief to bring to the Court's attention some of the growing body of authority suggesting that the State Farm/Gore due process test applicable to punitive damage awards is likewise applicable to statutory damages, and in particular bars the suggestion that each infringement of an MP3 file having a retail value of 99 cents or less may be punishable by statutory damages of from $750 to $150,000 -- or from 2,100 to 425,000 times the actual damages.1
So it's more support for the concept of proportionality and asking the court to consider the Constitutionality of statutory damages in copyright cases involving noncommercial individuals.

[ Update: Ray Beckerman sends a correction. He says the reasoning of the four cases and two law review articles and the brief is equally applicable to commercial copyright infringement defendants.]

Here, first, is the motion followed by the amicus brief, if the court grants the motion:

********************************

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

---------------------------------------x

CAPITOL RECORDS, INC., et al,

Plaintiffs,

-against-

NOOR ALAUJAN,

Defendant.

__________

03-CV-11661-NG
(Lead Docket Number)

------------------------------x

SONY BMG MUSIC ENTERTAINMENT,
et al,

Plaintiffs,

-against-

JOEL TENENBAUM,

Defendant.

_______

07-CV-11446-NG
(Original Docket Number)

------------------------------------x

MOTION OF FREE SOFTWARE
FOUNDATION FOR LEAVE TO
FILE AMICUS CURIAE BRIEF

1. The Free Software Foundation hereby moves the Court for permission to file the annexed amicus curiae brief in connection with the defendant's motion for dismissal on constitutional grounds.

2. We have consulted with counsel for plaintiffs and counsel for defendant as to whether they object.

3. Counsel for defendant consents.

4. Counsel for plaintiffs oppose the filing.

WHEREFORE it is respectfully requested that the within motion be granted.

Dated: Southwest Harbor, Maine
March 20, 2009

Local Counsel:

Theodore G. Fletcher
By: /s/ Theodore G. Fletcher
Attorney at Law
MA Bar Lic. No. 652452
[address, phone, email]

Of Counsel:
RAY BECKERMAN, P.C>
By: /s/Ray Beckerman
Ray Beckerman (Not admitted in this court)
(Member of the bars of SDNY, EDNY,
2d Cir., 3d Cir., US Sup. Ct.)
[address, phone, email]

2

****************************************
****************************************

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

---------------------------------------x

CAPITOL RECORDS, INC., et al,

Plaintiffs,

-against-

NOOR ALAUJAN,

Defendant.

__________

03-CV-11661-NG
(Lead Docket Number)

----------------------------------x

SONY BMG MUSIC ENTERTAINMENT,
et al,

Plaintiffs,

-against-

JOEL TENENBAUM,

Defendant.

_______

07-CV-11446-NG
(Original Docket Number)

------------------------------------x

AMICUS BRIEF OF FREE SOFTWARE FOUNDATION IN CONNECTION WITH
DEFENDANT'S MOTION TO DISMISS ON GROUNDS OF UNCONSTITUTIONALITY
OF COPYRIGHT ACT STATUTORY DAMAGES AS APPLIED
TO INFRINGEMENT OF SINGLE MP3 FILES

Theodore G. Fletcher, Local Counsel
Attorney at Law
[address, phone, email]

The Free Software Foundation (FSF), founded in 1985, is dedicated to promoting computer users' rights to use, study, copy, modify, and redistribute computer programs. The FSF promotes the development and use of free (as in freedom) software -- particularly the GNU operating system and its GNU/Linux variants. The FSF also publishes the GNU General Public License (GNU GPL), the most popular free software license. As an organization dedicated to the rights of computer users and their interaction with copyrighted works, we are concerned with the RIAA's attempt to redefine copyright law through legal proceedings against individuals who are generally unable to defend themselves.

We are submitting this brief to bring to the Court's attention some of the growing body of authority suggesting that the State Farm/Gore due process test applicable to punitive damage awards is likewise applicable to statutory damages, and in particular bars the suggestion that each infringement of an MP3 file having a retail value of 99 cents or less may be punishable by statutory damages of from $750 to $150,000 -- or from 2,100 to 425,000 times the actual damages.1

In Parker v. Time Warner, 331 F.3d 13 (2d Cir. 2003), it was held that the interplay between two statutes "may expand the potential statutory damages so far beyond the actual damages suffered that the statutory damages come to resemble punitive damages.....[S]uch a distortion could create a potentially enormous aggregate recovery for plaintiffs, and thus an in terrorem effect on defendants, which may induce unfair settlements. And it may be that in a sufficiently serious case the due process clause might be invoked... to nullify that effect and reduce the aggregate damage award.".

2

We are aware of three (3) district court cases, and two law review articles, which applied the reasoning of the Second Circuit in Parker to Copyright Act statutory damages as applied to peer to peer file sharing of mp3 files.

In In re Napster, 2005 US DIST Lexis 11498, 2005 WL 1287611 (N.D. California 1005)(Patel, J.), it was held that "large awards of statutory damages can raise due process concerns. Extending the reasoning of Gore and its progeny, a number of courts have recognized that an award of statutory damages may violate due process if the amount of the award is "out of all reasonable proportion" to the actual harm caused by a defendant's conduct.[T]hese cases are doubtlessly correct to note that a punitive and grossly excessive statutory damages award violates the Due Process Clause....."

In UMG Recordings v. Lindor, 2006 U.S. Dist. LEXIS 83486, 2006 WL 3335048 (E.D.N.Y. 2006)(Trager, J.), a case very like the instant one, brought by more or less the same group of recording companies against an individual accused of having infringed their sound recording copyrights by having used Kazaa, defendant sought leave to amend her answer to assert a defense of the unconstitutionality of plaintiffs' claim for statutory damages, on due process grounds, due to the excessiveness of the minimum statutory damages of $750. These same plaintiffs opposed the amendment on the ground that it was "futile". The court granted defendants' motion: "[P]laintiffs can cite to no case foreclosing the applicability of the due process clause to the aggregation of minimum statutory damages proscribed under the Copyright Act. On the other hand, Lindor cites to case law and to law review articles suggesting that, in a proper case, a court may extend its current due process jurisprudence prohibiting grossly

3

excessive punitive jury awards to prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered....."

In Atlantic Recording Corp. v. Brennan, 534 F. Supp. 2d 278 (D. Connecticut 2008)(Arterton, J.), another RIAA case just like the instant one, the Court rejected the plaintiffs' motion for default judgment, holding that "[t]he defenses which have possible merit include... whether the amount of statutory damages available under the Copyright Act, measured against the actual money damages suffered, is unconstitutionally excessive..."

The two law review articles of which we are aware on the subject, both meriting the Court's attention, are "Grossly Excessive Penalties in the Battle Against Illegal File-Sharing: The Troubling Effects of Aggregating Minimum Statutory Damages for Copyright Infringement" by J. Cam Barker, 83 Texas L. Rev. 525 (2004)(online at http://ssrn.com/abstract=660601) and "Due Process in Statutory Damages", 3 Geo. J.L. & Pub. Pol'y 601, 627-28 (2005).

In addition to the foregoing authorities specifically dealing with application of the State Farm/Gore test to Copyright Act statutory damages, we would also like to briefly mention some other authorities which we feel the Court should take into account.

As we were reminded recently in Yurman Studio, Inc. v. Castaneda, 2009 U.S. Dist. LEXIS 1386907 (S.D.N.Y. November 19, 2008)(Scheindlin, J.), it is a well settled principle in copyright law that "'statutory damages should bear some relation to actual damages suffered' [citing RSO Records v. Peri, 596 F.Supp. 849,862 (SDNY 1984); New Line Cinema Corp. v. Russ Berrie & Co., 161 F.Supp.2d 293,303 (SDNY 2001); 4 Nimmer Sec. 14.04[E][1] at 14-90(2005)] and 'cannot be divorced entirely from economic reality'". The RIAA's lost profits in

4

the case of an mp3 file are approximately 35 cents. Statutory damages of $750 to $150,000 are obviously divorced from economic reality, and totally out of proportion to actual damages suffered.

Also, the Court would do well to note that in common law copyright cases, where punitive damages are still recoverable, it is well settled that the State Farm/Gore test bars recoveries which do not bear such a relationship. In fact, relatively recently, one of the record companies which is a plaintiff in the instant case, when in the position of being a defendant, argued, and prevailed in convincing the Sixth Circuit Court of Appeals, that punitive damages which bore a 10:1 ratio to actual damages were unconstitutional, in Bridgeport Music v. Justin Combs Pub., 507 F.3d 570 (6th Cir.), cert. denied, 2008 U.S. LEXIS 6770 (2008): "The disparity between compensatory and punitive damages in this case further supports the conclusion that the punitive damages award is unconstitutional .... Although the Supreme Court has repeatedly rejected the use of bright-line rules, it has cautioned that "few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process," State Farm, 538 U.S. at 425, and it has noted that "an award of more than four times the amount of compensatory damages might be close to the line of constitutional impropriety." Id. (citing Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 23-24 (1991)); see also Clark, 436 F.3d at 606...... Here, defendants' conduct, although willful, was not highly reprehensible ..... [A] ratio of closer to 1:1 or 2:1 is all that due process can tolerate in this case ......"

And in Capitol v. Thomas, 579 F. Supp. 2d 1210 (September 24, 2008)(Davis, J.)(dictum), an RIAA case against an individual, where an outsized jury verdict was returned,

5

and ultimately set aside on other grounds, the Court reaffirmed the concept of proportionality: "The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer to peer network cases.... The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts..... [T]he damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs."

It is indeed logical that the State Farm/Gore test be applied to statutory damages, since the primary means used by the Supreme Court in formulating that test was to exhaustively analyze a large number of statutes authorizing statutory damages, to distill from them the fair range of penalties, and then to apply that range to punitive damages. It is unimagineable that the Court would not apply the same test to the very source of its rationale.

We take no position on whether at this early stage in the case the Court can do anything other than uphold the legal sufficiency of the defense, as it is our understanding that there is no factual record in place from which the Court could determine the plaintiffs' lost profits, or the degree of reprehensibility of the defendants' conduct, and other factors which might be necessary to determine whether in fact the remedy sought is excessively disproportionate.

Neither do we take any position on whether there is a way for the Court to avoid the constitutional question altogether, by, for example, construing the complaint as alleging a single copyright infringement, or by finding it insufficient to make out a case for statutory damages in any event.

6

Respectfully submitted,

Local Counsel:

Theodore G. Fletcher
By: /s/ Theodore G. Fletcher
Attorney at Law
MA Bar Lic. No. 652452
[address, phone, email]

Of Counsel:
RAY BECKERMAN, P.C>
By: /s/Ray Beckerman
Ray Beckerman (Not admitted in this court)
(Member of the bars of SDNY, EDNY,
2d Cir., 3d Cir., US Sup. Ct.)
[address, phone, email]


1 We estimate that the lost profits per song file are in the neighborhood of 35 cents, although this will vary based on variations in wholesale price, or in expenses, especially royalties payable.

7


  


FSF Asks to File Amicus Brief in Sony v. Tenenbaum (as text) | 68 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections thread
Authored by: Aladdin Sane on Saturday, March 21 2009 @ 06:13 PM EDT
Place corrections to the article within this thread. Thanks.

---
"Then you admit confirming not denying you ever said that?"
"NO! ... I mean Yes! WHAT?"
"I'll put `maybe.'"
--Bloom County

[ Reply to This | # ]

[NP] News Picks discussion
Authored by: Aladdin Sane on Saturday, March 21 2009 @ 06:15 PM EDT
Discuss Groklaw News Picks here.

Please mention which News Pick you are commenting on.

Thanks.

---
"Then you admit confirming not denying you ever said that?"
"NO! ... I mean Yes! WHAT?"
"I'll put `maybe.'"
--Bloom County

[ Reply to This | # ]

[OT] The Off Topic thread
Authored by: Aladdin Sane on Saturday, March 21 2009 @ 06:18 PM EDT
Place Off Topic comments here.

Use clickable links (see text in red beneath the Comment: box).

---
"Then you admit confirming not denying you ever said that?"
"NO! ... I mean Yes! WHAT?"
"I'll put `maybe.'"
--Bloom County

[ Reply to This | # ]

35 Cents
Authored by: Anonymous on Saturday, March 21 2009 @ 07:41 PM EDT
I think that number, 35 cents is what all the fuss really comes down to.

The alleged harm is $.35 x number of songs x (alleged number of uploads + 1 (the
download))

amazing.

How long must this ludicrous use of the courts go on?

[ Reply to This | # ]

  • 35 Cents - Authored by: Anonymous on Thursday, March 26 2009 @ 05:17 AM EDT
Reasoning applicable to commercial defendants as well
Authored by: Ray Beckerman on Saturday, March 21 2009 @ 10:24 PM EDT
PJ I just want to correct your statement about "noncommercial". The
reasoning of the 4 cases and 2 law review articles, and of my brief, is equally
applicable to "commercial" copyright infringement defendants. I do not
draw, and the cases do not draw, the distinction Prof. Nesson inexplicably
draws.

---
Best regards,
Ray

[ Reply to This | # ]

FSF Asks to File Amicus Brief in Sony v. Tenenbaum (as text)
Authored by: Anonymous on Sunday, March 22 2009 @ 04:14 AM EDT
I have a jurisprudence question, related to this, in a round about way...

If a person went into a retail store and stole a physical copy of some
copyrighted material, similar to the defendant in this case, who gets involved?
Only the police and the local retailer, correct? Petty theft.

How can the local retailer prove they actually own the material that was alleged
to have been stolen?
Typically, the physical medium is assumed to be owned by the retailer.

But has the actual content and the line of ownership of that material ever been
brought into question?

I am thinking along the lines of that DUI / radar source code case in Florida...

[ Reply to This | # ]

DOJ intervenes in Tenenbaum case in favor of RIAA
Authored by: digger53 on Sunday, March 22 2009 @ 03:07 PM EDT
Recently posted on Ray Beckermans site sad link. Hardly surprising, given the freedom-hating, media- and MS-folks appointed to Justice this year. How long before Stallman's book fable comes to pass? Insofar as freedom in the US goes, looks like I wasted my vote--not that the alternative would have been any better. I am profoundly disappointed. This is one of those times when I would have loved to be wrong. :-

[ Reply to This | # ]

Railroad case might go against RIAA
Authored by: Anonymous on Sunday, March 22 2009 @ 08:16 PM EDT
St. Louis, IS & M Ry Co v. Williams, 251 US 63 (1919)
is cited, where the railroad had been overcharging customers,
and was clobbered for it. The amounts were a few cents,
like these filesharing cases. Some customers were not
aware of a problem, like these filesharing cases. But the
miscreant was the big company, who it was deemed,
should have behaved better towards its customers.

The analogy starts to fray about here, since the alleged
filesharing miscreants are putative customers. The RIAA
could be deemed to be the big company who should behave
better towards its customers, and the penalty would fall
on the RIAA at 99 cents per song.

[ Reply to This | # ]

FSF Asks to File Amicus Brief in Sony v. Tenenbaum (as text)
Authored by: Anonymous on Sunday, March 22 2009 @ 09:17 PM EDT
I think the copyright law's are so out dated;
They originate from the day's that there was only print,
later applied to vinyl.
The major copyrighted products are so different consumed;
they can't by mapped under one common law.

Music: The same piece of music is consumed over and over again.
The human brain is trained to get addicted to a piece of music,
The music is plugged on the public radio, and
I can get the music free form TV channels (M/TV etc) 24x7
It's not strange the general public does not see the difference between
24x7 plugging and a download.

Movies: Normally I only watch a movie once.
So i think it's a shame if you download a movie before it has its movie
first day first show.
But it should also be a crime for the studio to leak a movie to the
public media (internet) benefit from the free publicity and later cry wolf for
the lost sales.

Games: Are consumed for a (sort) period and then the they are history.
They have the same if not bigger problems as with movie makers.
A game is already sold digital to make the first sale.
But the game makers are of the modern time and they have found a business model
that works.

My point is, making copies for commercial resale is a crime and well mapped
under the copyright laws.
But the publishers and the judges should take the new environment we live in in
account.

/Arthur

[ Reply to This | # ]

Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )