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Sotomayor's Position On Copyright Damages 456

Posted by kdawson
from the not-chump-change dept.
Too Lazy to Login writes "Wired reports that, based on her previous decisions, Sonia Sotomayor will likely affirm high damages (read: RIAA excessive) in cases where copyright claims are at issue. Good thing I'm not a betting man, because I'd have guessed the exact opposite." We discussed the nominee's cyberlaw record in general last week.
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Sotomayor's Position On Copyright Damages

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  • by MindlessAutomata (1282944) on Tuesday June 02, 2009 @04:14PM (#28187055)

    What did you expect given Barack Obama's political philosophy and how he's acted in office?

    • by siloko (1133863) on Tuesday June 02, 2009 @04:19PM (#28187131)
      It is a bit annoying that we always fall for the bread and fishes scam . . . will we ever learn!? A politician is a politician because he has two skills, one is his ability to use convincing rhetoric and the other is putting that rhetoric to the defence of the powerful, no matter they be the military, industry or some other interest group.
      • by Shakrai (717556) on Tuesday June 02, 2009 @04:29PM (#28187263) Journal

        It is a bit annoying that we always fall for the bread and fishes scam . . . will we ever learn!?

        But, but... change and stuff! Surely we won't see the Federal Government still beholden to the well connected at the expense of John Q. Public, right? It's not like the Democrats just represent a different set of freedoms that will be eroded, is it?

        • by bhima (46039) * <Bhima,Pandava&gmail,com> on Tuesday June 02, 2009 @05:02PM (#28187801) Journal

          As far as I am concerned that is exactly the choice I made when I voted: a different set of freedoms to be eroded. I thought I made a good choice. The policies Obama has been supporting lately leave me to question my decision. Either he is making a deliberate effort to force the courts to acknowledge and rule on unconstitutional policies of, and the war crimes perpetrated by, the Bush Administration or I made a erroneous decision.

          The way I see things, I will not know that for a while... at least until these issues run their way through the judicial system.

          In any account... let me know when I can I vote for a someone running with Pirate Party in the US.

          • Re: (Score:3, Insightful)

            by Xonstantine (947614)

            How's that hope and change working out for you?

            Like I told people...you were going to get what you asked for but not what you wanted.

            • by ari_j (90255) on Tuesday June 02, 2009 @05:37PM (#28188279)
              I paid my taxes in hope this year. Unfortunately, the IRS sent me a nasty letter demanding immediate payment of the amount I owed in US legal tender. Hope is useless, it turns out. Unfortunately, the postal service charged me a pretty penny when I re-filed my tax returns and paid the amount I owed with change.
            • by ksheff (2406) on Tuesday June 02, 2009 @06:06PM (#28188691) Homepage
              No kidding. Once the universal health care fees start to be levied and businesses start passing on C02 taxes to their customers, there will be a lot of people thinking "WTF did I buy into?".
              • Re: (Score:3, Informative)

                by Xonstantine (947614)

                I think for some folks, it will set in when their private insurance perks above whatever standard the government sets is stripped of it's tax break.

                For the elderly, it'll set in when they go to have their glaucoma fixed and put on a 1-year waiting list like they are in the UK, or a 50 year old goes in for a kidney transplant and is told he's too old to receive a transplant under the government health plan or the elderly patient with the broken hip is told that they are too old for the government to pay for

                • Re: (Score:3, Insightful)

                  by Xonstantine (947614)

                  And of course, by then it will be too late.

                • by Celandro (595953) <celandro@NoSpAM.gmail.com> on Tuesday June 02, 2009 @07:12PM (#28189459)

                  The most expensive year of your life is almost always your last one. The multiple 'heroic' attempts to save the life of grandma are extremely costly and have a very small benefit to society. Yes, I was extremely saddened when my grandmother passed away, but the last year of her life after her stroke was extremely costly and unjustifiable. This is not a unique event. My great aunt post-Alzheimer had the exact same costly treatments and same end result.. Uncured dementia and prolonged death at great expense to US taxpayers.

                  We have forgotten as a society how to die gracefully. Just because you have the technology to keep someone alive well past the time their brain has died doesnt mean you should. And it certainly doesnt mean that the government should pay for it. If you want to pay $100,000 to keep your brain dead grandmother alive, feel free. But dont expect everyone else to pay for you.

                  If we dont get old age expenses under control, there will be no Social Security or Medicare for the young.

      • by spottedkangaroo (451692) * on Tuesday June 02, 2009 @04:42PM (#28187483) Homepage

        This is one of the more insightful things I've read in the comments on slashdot... I wish I had mod points today. I *do* forget the above, but it's true. Also, the kind of person that would go through the trouble to be a president isn't the kind of person you'd ever want to be your president.

      • Re: (Score:2, Insightful)

        by erroneus (253617)

        That does not explain George W. "Nukyuler" Bush. If anything, it goes to serve as evidence for how completely useless the office of the POTUS actually is. It is my opinion that Obama did win because of his powerful rhetoric and charisma, but like JFK, is now being introduced to the dark forces that actually run and influence the government. JFK was planning to act against any number of those forces and paid the price. (Yeah, yeah, yeah... save the conspiracy theory nut crap. The crap that we all know a

      • by skelterjohn (1389343) on Tuesday June 02, 2009 @04:56PM (#28187685)

        It's not like Obama ran on a platform of copyright abolition.

        There is no misrepresentation going on here, even if you had hoped that since you agreed with him on one thing that he would agree with you on another.

      • by Jurily (900488) <jurily AT gmail DOT com> on Tuesday June 02, 2009 @05:01PM (#28187791)

        A politician is a politician because he has two skills, one is his ability to use convincing rhetoric and the other is putting that rhetoric to the defence of the powerful, no matter they be the military, industry or some other interest group.

        No, they don't defend the powerful with words. At least, Saddam didn't die of their words after he offered to sell oil for EUR too, instead of USD only.

      • by Arthur B. (806360)

        More precisely, the politically influential.

    • by tnk1 (899206) on Tuesday June 02, 2009 @04:25PM (#28187215)

      Honestly, I think that this issue doesn't have the visibility that Obama would take into account. It's probably making his media buddies happy, but that's probably just a happy coincidence.

      Basically it's:

      Loose constructionist: check

      Woman: check

      Hispanic: check

      High court experience: check

      Anything else, as I said, is likely to simply be a bonus. Not to mention that it can be hard to pin down a Supreme Court justice to a general game plan that you think he's going to play *cough*Souter*cough*, let alone specifics on damages, etc.

    • by TinBromide (921574) on Tuesday June 02, 2009 @04:29PM (#28187261)
      Yup, seeing as he already put some top RIAA lawyers into top DOJ spots, who's surprised? Really, raise your hand if you're surprised at Obama's copyright preferences. Come on, we won't laugh... Hard
  • by avandesande (143899) on Tuesday June 02, 2009 @04:16PM (#28187077) Journal

    People who don't understand the concept of diminishing return shouldn't be allowed to graduate high school, much less become a judge.

    http://www.foxnews.com/politics/2009/06/01/sotomayors-record-environmentalists-hope-business-leaders-pause/

    • Re: (Score:2, Insightful)

      by Anonymous Coward

      People who don't understand the concept of making a hyperlink shouldn't... uh... throw rocks. Or something. I really didn't think this joke through to a punchline.

      In any case: Sotomayor's Record Could Give Environmentalists Hope, Business Leaders Pause [foxnews.com]

      I find it quite disheartening the number of replies you've gotten trying to explain it away as "strict interpretation of the law" given that it's one of the many cases of hers that were overturned the instant it hit the Supreme Court. So obviously if it was "

      • Re: (Score:3, Interesting)

        given that it's one of the many cases of hers that were overturned the instant it hit the Supreme Court

        When did three cases become "many"?

  • by nweaver (113078) on Tuesday June 02, 2009 @04:16PM (#28187083) Homepage

    The case quoted involved businesses who were wilfully infringing, and the decision was that the fines should be punative to act to disuade others.

    This may not be true for the RIAA and dealing with individuals, but its probably true when dealing with businesses.

    • Re: (Score:3, Insightful)

      by Artraze (600366)

      Umm... Wut?

      The entire point of the RIAA cases* is to increase the risk of file sharing so that it becomes less common. If they only sued for a couple hundred bucks, then no one would care. These cases are all about punitive action and would be worthless without it. If Sotomayor supports punitive infringement suits, she will almost certainly support the RIAA's.

      * Certainly part of the RIAA's plan is to also leverage the life-crushing nature of their lawsuits to extort money out of others, but that doesn't

  • by eldavojohn (898314) * <eldavojohn@gmFREEBSDail.com minus bsd> on Tuesday June 02, 2009 @04:16PM (#28187085) Journal

    Wired reports that, based on her previous decisions ...

    Huh, that's odd, I only found the article to list one case -- the TopRank suing the host of a tavern in 1996. And the statement she added as:

    "A willful infringement, which the magistrate judge found, combined with a willful default, however, warrant an award greater and more significant than one which corresponds so closely to an estimated loss to the plaintiff,"

    Are there more decisions I missed? Are we basing our image of this woman off of one action and one statement?

    It's not a good indication but it's hardly conclusive. Things have changed with the advent of the internet since then. Here's to hoping, I guess, but I think we're being a bit unfair and too hasty.

    • You can also base it on the fact that she has always ruled in favor of giving the government more power and the fact that Obama has been filling the Justice Department with RIAA lawyers (see signature).

      • Re: (Score:3, Interesting)

        by Bassman59 (519820)

        and the fact that Obama has been filling the Justice Department with RIAA lawyers

        You do realize that a lawyer's job is to vigorously argue his client's case, regardless of whether he "believes in the cause" or not. An attorney can vigorously defend a murderer, while all the time believing that his client is indeed guilty. Hey, the lawyer on "The Wire" knew all of Stanfield's gang were guilty, right?

        Point being that just because these guys represented the RIAA in a previous life, it doesn't mean they actually support or like what the RIAA does. Maybe with the inside info, they are more l

    • by Anonymous Coward on Tuesday June 02, 2009 @04:29PM (#28187273)

      Are we basing our image of this woman off of one action and one statement?

      Of course not. There's a lot of blatant prejudice and paranoia too.

      • because the method of intimidation favored is to claim the opposing views are only driven by prejudice and paranoia.

        Figuring her panel's overturn rate by the Supremes is probably a better indication of why she should not be on the Supreme Court but is fine where she is.

        The real problem, she was selected for what she is, not who she is or how she ruled... at least according to the speech the teleprompter provided.

        • Re: (Score:3, Insightful)

          by Omestes (471991)

          because the method of intimidation favored is to claim the opposing views are only driven by prejudice and paranoia.

          Agreed.

          Figuring her panel's overturn rate by the Supremes is probably a better indication of why she should not be on the Supreme Court but is fine where she is.

          Its lower than the average, actually. And the issue is more complicated than that, since the SCOTUS only reviewed THREE of her thousands of cases. Three does not a valid sample make.

          The real problem, she was selected for what she is,

    • Are there more decisions I missed?

      I just assumed they were talking about her decision to ignore reality.

    • "A willful infringement, which the magistrate judge found, combined with a willful default, however, warrant an award greater and more significant than one which corresponds so closely to an estimated loss to the plaintiff,"

      I don't know anything about the facts of this one case, but by itself, this seems reasonable enough to me. I mean, if you download a music album and happen to get sued for it, and the court forces you to pay the $15 that the CD would have cost in a store, that's virtually no risk at all. I would support punitive damages equal to two, three, or perhaps as high as ten times the retail value of the CD.

      Which, of course, doesn't even come close to the tens of thousands of dollars that the RIAA thinks is fair. Th

    • Wired reports that, based on her previous decisions ...

      Huh, that's odd, I only found the article to list one case -- the TopRank suing the host of a tavern in 1996. And the statement she added as:

      "A willful infringement, which the magistrate judge found, combined with a willful default, however, warrant an award greater and more significant than one which corresponds so closely to an estimated loss to the plaintiff,"

      Are there more decisions I missed? Are we basing our image of this woman off of one action and one statement? It's not a good indication but it's hardly conclusive. Things have changed with the advent of the internet since then. Here's to hoping, I guess, but I think we're being a bit unfair and too hasty.

      eldavojohn, you are quite right to be skeptical of the Wired article. In fact, there is no basis for the author to have drawn the conclusion he did. The Top Rank case is a garden variety, 'bar and tavern' case, in which the statutory damages awarded are usually 2 to 4 times the actual damages. The Magistrate's decision was below the normal range, despite his finding of wilfulness. Judge Sotomayor merely raised the award to within the typical range. It appears that she awarded between 2 and 3 times the actual damages.

      In RIAA-land that would translate to from 70 cents to $1.00, as opposed to from $750 to $150,000.

      No reason in the world to think Judge Sotomayor would disregard a hundred years of Supreme Court precedent and dance to the RIAA's tune.

  • Revolution (Score:5, Interesting)

    by nurb432 (527695) on Tuesday June 02, 2009 @04:19PM (#28187133) Homepage Journal

    Is the only answer. Throw them all out.

    • by Shakrai (717556) on Tuesday June 02, 2009 @04:32PM (#28187317) Journal

      Is the only answer. Throw them all out.

      That's a good idea. A revolution is long overdue! I'll bring the tar and feathers. You bring the pitchforks and torches. We'll get started tonight.

      Oh wait, American Idol is on tonight. Hmm, can we do the revolution tomorrow? What were we talking about again? I remember being angry about something.... hmm, Kris Allen is cool isn't he?

      • Re: (Score:3, Insightful)

        by tjstork (137384)

        kinda hard to cry oppression when you can pop back a cold one and watch a bunch schmoes battle it out on a cheesy singing contest on hdtv, then fire up the xbox 360 for some video games.. write whatever we want on slashdot... what is it that we were revolting over again? oh, Obama might take my guns away but lucky high powered lasers are getting pretty affordable. why would I want an assault rifle when I can cut a stadium full of people in half from 500 miles away.

        • Re:Revolution (Score:5, Insightful)

          by SwordsmanLuke (1083699) on Tuesday June 02, 2009 @06:49PM (#28189191)

          I can cut a stadium full of people in half from 500 miles away.

          I bet not... According to some back of the envelope calculations, there's a vertical divergence of approximately 8 miles (due to the earth's curvature) over a distance of 500 miles. So, even if you were firing said laser from the top of Mt Everest (~5.5 miles tall) your hypothetical stadium would still have to be in a valley over 3 miles deep with nothing of significance between your emitter and it.

          Alternately, you'd need to be in an airborne vehicle 8 miles or so above the planet's surface. That's about a mile higher than most commercial jet traffic, so you'd need some serious wings (think fighter jet) to get high enough to hit your target. So, yeah, I bet you can't. 8^)

          Note for (other) pedants: I know the parent wasn't being literal, but I thought this looked like a fun problem to work out anyway.

      • by nurb432 (527695)

        Never said that the people at large have the balls to do it, but i think many agree that its the only true answer.

        Be it armed revolution or voter revolution ( if you haven't lost total faith in the system yet ) its the only way out.

  • No surprise (Score:5, Insightful)

    by smchris (464899) on Tuesday June 02, 2009 @04:23PM (#28187173)

    One more time:

    Republicans: Oil and gas

    Democrats: Hollywood, the movies and recording industry

    _Never_ be surprised at Democratic support for DRM, the RIAA or MPAA.

    • Re:No surprise (Score:5, Informative)

      by harryandthehenderson (1559721) on Tuesday June 02, 2009 @04:36PM (#28187373)
      Yeah because no Republicans have ever supported DRM, the RIAA/MPAA and the DMCA. Oh wait, only 1 Republican obstained from the DMCA vote and the rest all voted for it in the Senate. Oh and I won't even bring up that the DMCA was introduced in the House by a Republican and considering how the House at the time had a Republican majority that they would have had to have backed it in a significant amount for it to pass. And I also won't mention how in 2003, Republican Mitch Bainwol become the CEO of the RIAA in 2003. Yep those Republicans sure are anti-DMCA, DRM and RIAA/MPAA. *rolls eyes* Or maybe we can stop with the stupid rhetoric and recognize that both parties are in bed with the copyright interests.
    • Re: (Score:2, Redundant)

      by Shakrai (717556)

      Republicans: Oil and gas, banks

      Democrats: Hollywood, the movies and recording industry, banks, unions, Detroit

      Fixed that for you. You were missing a few. Funny how the bankers appear on both lists, isn't it? I don't know if I should complement them for being such clever bastards or hope that they are the first ones up against the wall if the brown stuff hits the fan.

    • Re: (Score:3, Insightful)

      by houstonbofh (602064)

      One more time:

      Republicans: Oil and gas

      Democrats: Hollywood, the movies and recording industry

      _Never_ be surprised at Democratic support for DRM, the RIAA or MPAA.

      You still miss the point...
      Republicans - Get all the power they can while paying lip service to conservitives.
      Democrats - Get all the power they can while paying lip service to liberals.

      They just play off each other to distract the public. There is no difference between them.

    • by Jaysyn (203771)

      The good news is I can completely ignore Hollywood & the RIAA & have been doing so for almost a decade. They need us waaaaay more than we need them. We just have to show them that.

  • RIAA (Score:4, Interesting)

    by Narpak (961733) on Tuesday June 02, 2009 @04:24PM (#28187197)
    I reckon RIAA and those persuaded by their arguments will continue to try to tighten their grip as much as they can wherever they can. Whether or not Sotomayor will decide in ways that favour RIAA or not is something I hesitate to speculate about. However if people want their government representatives and judges to understand their reservations about RIAA's way of doing business they have to continue to speak up; not only to protest but also to try and find solutions to the situation we are at now.

    What should be the principles behind music and movie distribution? I for one would hope for something that those purchasing and creating such material would both find acceptable. Though it is hard for me to say what that would be. At the moment what we have are many reacting to what they see as negative trends, and some saying so in well argued ways, but as long as RIAA can claim even an inch of legitimate concern for the artists and their rights they will continue to resist reforms they cant adequately, in their eyes, influence.
    • by Narpak (961733)
      Adding a speculation. As technology evolves and knowledge (guides, e-books, videos, forums etc) continue to proliferate I could become (and already is according to some musician mates of mine) easier for independent bands and musicians to gain access to people with the equipment and knowledge of how to record and mix music at a high level of quality. While such equipment is by no means cheap it is cheaper, and easier to get than it has been in the past. For those with the drive and ambition to push their ow
    • Re: (Score:2, Funny)

      by VGPowerlord (621254)

      The more they tighten their grip, the more star systems will slip through their fingers.

      er... I mean pirates!

  • by Todd Knarr (15451) on Tuesday June 02, 2009 @04:32PM (#28187315) Homepage

    First, the case quoted involved willful infringement by a business and other aggravating circumstances. Also, from a strict-construction viewpoint the law does specify the amount of statutory damages so her finding that, if infringement occurred and the claim qualified for statutory damages, damages in the amount defined by the law were to be awarded would hardly be unexpected.

    The big question is how she views the whole question of whether infringement occurred. That's the area where the RIAA and MPAA tend to part company with the rest of us. It's pretty clear that mass copying and distribution of unauthorized copies is infringing behavior, whether or not it's done for commercial gain. Note please that making 10,000 copies of a tape and handing them out on the street-corner is a far cry from copying a couple of songs off a tape so your friend can listen to them. To my mind there's three categories: copying that's not infringing period (eg. the copies needed to listen to anything on a computer), copying that's clearly infringing (the aforementioned making copies in bulk for anybody who comes along), and an intermediate range where the copying's technically infringing but so inoffensive that we view it as unreasonable for the owner to complain about it absent some additional problems. Making a copy of a few songs for a friend falls into that third category, it's technically infringing but the general reaction to an owner complaining about just that would be "Jeesh, get a life, dude.". The usual way the courts handle things like this is to award some token amount of damages, like the retail price of the songs copied, and then deny any request for costs by the plaintiff. What I'm interested in is exactly where Judge Sotomayor draws the lines between those three categories.

    • Re: (Score:3, Interesting)

      by DaveV1.0 (203135)

      Note please that making 10,000 copies of a tape and handing them out on the street-corner is a far cry from copying a couple of songs off a tape so your friend can listen to them. To my mind there's three categories: copying that's not infringing period (eg. the copies needed to listen to anything on a computer), copying that's clearly infringing (the aforementioned making copies in bulk for anybody who comes along), and an intermediate range where the copying's technically infringing but so inoffensive tha

  • I don't see anything in the Top Rank decision which justifies the conclusion the Wired author has drawn. The only decision referred to was Top Rank v. Allerton Lounge, a typical 'bar and tavern' case. In those cases the statutory damages are frequently from 2 to 4 times the actual damages. The Magistrate appears to have awarded statutory damages on a 1:1 ratio. Judge Sotomayor raised the damages, but not wildly to some extreme multiple like what the RIAA looks for. It appears that her award was between 2 and 3 times the actual damages, which is within the usual range.

    The RIAA seeks from 2,200 to 450,000 times the actual damages. It is well settled law that statutory damages awards have to bear a reasonable relationship to the actual damages, and in keeping with economic reality. And it is well settled law that excessive disproportion to the actual damages is unconstitutional, as a violation of the due process clause.

    There is no reason in the world to think that Judge Sotomayor would consider imposing statutory damages of $750 to $150,000 as against plaintiff's 35-cent loss for the download of a single mp3 file.

    In the unlikely event that the RIAA could prove the defendant was a "distributor" -- i.e. someone who disseminated copies to the public by selling them, or by other transfers of ownership, or by rentals, leases, or lending -- then of course the actual damages would be higher than 35 cents. But the RIAA would have to prove its actual damages, and then the court could award statutory damages greater than that sum, but -- under established Supreme Court precedent -- the award would be constitutionally suspect were the ratio greater than single digits.
    • Re: (Score:3, Insightful)

      by CodeBuster (516420)
      Perhaps you can correct me if I am wrong NYCL, but I was under the impression that the $750-$150,000 damages were specially established in the copyright laws as a special category of statutory damages for willful copyright infringements. However, it probably also true that copyright should NOT be a special case, or at least not so special when compared to other willful types of damages as to require 2,200+ times more damages. I hope that the Capitol vs Thomas case does eventually (although I do feel for Jam
  • by Dyinobal (1427207) on Tuesday June 02, 2009 @04:45PM (#28187515)
    I'm just waiting for Sotomayor's Paris Hilton style homemade porn video to be released. I hope that long forgotten boyfriend held onto that tape they made that one rather forgetful night.
  • by cybereal (621599) on Tuesday June 02, 2009 @04:50PM (#28187589) Homepage

    Granted, the damages do seem high, but these are only applied where the conclusion has already been made that a proper case was brought about and the crime proven without a reasonable doubt.

    Why focus on this after-the-fact nonsense? In a perfect judicial world where only copyright violators were convicted, I would whole-heartedly support brutal monetary punishments to these self-entitled jackasses.

    But in reality, shouldn't this crowd-sourced angst be directed at the flawed proceedings and discovery that is the real issue here? Please, for everyone who cares about "justice" and fair use and other copyright issues, let's focus the energy, however fickle it is, on what really matters here.

  • by snitty (308387) on Tuesday June 02, 2009 @05:01PM (#28187767) Homepage

    The folks at TechnicallyLegal (disclaimer, I'm a writer and podcaster there) wrote up a post as to why her decision in the copyright case will have little bearing on the outcome of the RIAA cases. And why her reasoning there isn't really indicitive of what her reasoning may be in those cases.

    http://www.technicallylegal.org/de-fud-sotomayors-stance-on-copyright-infringement/ [technicallylegal.org]

  • by MarkvW (1037596) on Tuesday June 02, 2009 @05:26PM (#28188133)

    Eisenhower nominated Earl Warren, a Republican governor of California to the Supreme Court. Warren was a centrist with broad support on both sides of the aisle. Warren led the Supreme Court through a remarkably liberal period. Eisenhower later publicly rued the choice he made. Bush the Elder nominated Souter as a conservative, and got something quite different.

    The Court of Appeals judges (like Sotomayor) are bound by existing law and precedent. They never get the opportunity to be the final word on the Constitution. Once they go to the Supreme Court, they have the complete, unobstructed freedom to change--and they often do.

    TFA is just speculative nonsense. /. is just putting it out because it starts little flame wars between the piracy lovers and the piracy haters. Aargh, matey.

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