Supreme Court Rejects Tenenbaum Appeal

Categorize this as dog-bites-man news but since I’ve posted about the Tenenbaum case many times ($675k, More on Tenenbaum, More on the Tenenbaum Judgment, Tenenbaum Postscript, $.70 a Song, and Court Reinstates Tenenbaum Damage Award), and discuss it in class I’ll note that the U.S. Supreme Court, without comment, decided not to hear Joel Tenenbaum’s appeal in his music-piracy case. This is not the end of the case; the federal district court in Boston must decide whether to leave standing the jury’s award of $675,000 in damages to the recording industry.

This is a strange case whose longevity (it began in 2007) reflects its status as an ideological battleground over music piracy–however poorly chosen a field of battle it offers to file-sharing’s true believers.

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I Want My Megaupload Files*

Among the interesting legal issues raised by the U.S. Justice Department’s shutdown of Megaupload.com and criminal prosecution of its managers is whether those who used the site to store non copyright-infringing works will be able to retrieve their data. The government claims Megaupload’s legitimate data-transfer service was a front for systematic copyright-infringement, but there’s no claim that those engaged in legitimate uses were benefiting from or knowingly contributing to unlawful activity. So while the government prepares its case those legitimate users hang in limbo, unable to retrieve their data. The Electronic Frontier Foundation, with the support of Carpathia Hosting, is gathering information from those affected through megaretrieval.com and may initiate legal action to hasten the effort.

*not me personally.

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ACTA

As reported in “Meet SOPA’s Evil Twin, ACTA,” SOPA’s demise has brought the Anti-Counterfeiting Trade Agreement–ACTA–into focus. (The Office of the U.S. Trade Representative has posted ACTA’s text.)  The U.S. was among the group of nations that signed ACTA last October; 22 European countries signed it last Thursday, prompting protests throughout Europe (ars technica, “Opponents protest signing of ACTA without adequate debate“). The U.S. signed ACTA as an Executive Agreement that (the Obama administration claims) does not change U.S. law and thus need not be submitted to Congress, limiting public commentary on its provisions.  Jack Goldsmith and Larry Lessig challenged the Constitutionality of the administration’s secret ACTA negotiations in a  March 2010 Washington Post Op-Ed.

[ACTA’s] proposals [contained in a leaked January 2010 draft] might or might not make sense. But they ought at least be subject to public deliberation. Normal constitutional procedures would require the administration to submit the final text of the agreement for Senate approval as a treaty or to Congress as a “congressional-executive” agreement. But the Obama administration has suggested it will adopt the pact as a “sole executive agreement” that requires only the president’s approval.

Such an assertion of unilateral executive power is usually reserved for insignificant matters. It has sometimes been employed in more important contexts, such as when Jimmy Carter ended the Iran hostage crisis . . .

The Supreme Court, however, has never clarified the limits on such agreements. Historical practice and constitutional structure suggest that they must be based on one of the president’s express constitutional powers (such as the power to recognize foreign governments) . . .

Joining ACTA by sole executive agreement would far exceed these precedents. The president has no independent constitutional authority over intellectual property or communications policy, and there is no long historical practice of making sole executive agreements in this area. To the contrary, the Constitution gives primary authority over these matters to Congress, which is charged with making laws that regulate foreign commerce and intellectual property.

Obscured by SOPA, ACTA managed to fly under the radar to multi-national ratification. The question is whether it’s too late.

Rep. Darrell Issa (R-CA) joined the chorus of criticism this week when he called ACTA “more dangerous than SOPA” at a panel at the World Economic Forum in Davos, Switzerland. “It’s not coming to me for a vote,” he said. “It purports that it does not change existing laws. But once implemented, it creates a whole new enforcement system and will virtually tie the hands of Congress to undo it.”

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EU Rules ISP Not Required to Monitor for Copyright Enforcement

While Congress considers passing legislation that imposes duties on ISP’s to monitor for and take affirmative steps to counter copyright infringement the European Court of Justice–the EU’s high court–held this week “that Internet service providers could not be required to monitor their customers’ online activity to filter out the illegal sharing of music and other copyrighted material.”

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And Yet Again

In 2007 RIAA v Jammie Thomas-Rasset (she was just Jammie Thomas then) resulted in a jury verdict and damages of $222,000 in favor of the RIAA.  A few months later the trial judge had second thoughts about his instructions to the jury and ordered a new trial.  In 2009 RIAA v Jammie Thomas-Rasset II:  Oops I Did It Again resulted in a jury verdict and damages of $1.92 million in favor of the RIAA.  A few weeks ago the trial judge reduced the damages to $54,000.  Last week the RIAA rejected the reduced award but offered to settle with Thomas-Rasset for $25,000.   She rejected the settlement, setting the stage for RIAA v Jammie Thomas-Rasset III:  Damages, in which the only issue will be how much the RIAA receives from its suit.  Her attorney has committed already to RIAA v Jammie Thomas-Rasset IV:  Oops the 8th Circuit Affirms the Constitutionality of Copyright Damages, the Supreme Court Denies Cert, and Thomas-Rasset Has Her Legacy.

Who knows. I am Mr. Glass Half-Empty. Maybe this will turn out not to be a disaster for Thomas-Rasset.

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RIAA Damages Reduced

Jammie Thomas-Rassert of Minnesota was the first defendant in an RIAA music-piracy lawsuit to go to trial.  She lost big, appealed, the trial judge decided he mis-instructed the jury on the law and ordered a new trial, she lost again, although even bigger–$1.92 million–and appealed again.   A federal judge just reduced the “shocking” damage award to $54,000.  Good news, perhaps, for BU’s own Joel Tennenbaum and the $675,000 damage award imposed by a jury last summer.

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