morning mail – ray beckerman

in response to the memo i filed yesterday following last friday’s oral argument before judge nancy gertner (unrecorded except by stenographic transcript i can get typed at $6 plus a page), Ray Beckerman commented:

[Ed. note: My usual admonition to law students and beginning lawyers: do not emulate anything you see from either side in this case. Very little of it is remotely connected to what normal lawyers do when engaged in the practice of law. Usually I don't pity federal judges, because they are fairly privileged people with a lot of power and a lifetime job. But in this case my heart goes out to Judge Nancy Gertner because she and her staff attorneys are the only normal lawyers working on this case, so they have to do all the heavy lifting themselves, with no help from counsel for either side. They cannot trust or rely upon, and are never helped in doing their jobs, by anything either side submits. -R.B.]

From: Charles Nesson
Date: Tue, Jun 9, 2009 at 5:57 PM
To: Ray Beckerman

what did you find so bad?

———-
From: Ray Beckerman
Date: Tue, Jun 9, 2009 at 7:25 PM
To: nesson

Since you ask for my opinion:

In general you are trying to make some kind of statement instead of focusing on the particular case at hand, and the cards which you have been dealt.

The purpose of a brief is to try to win the case for the client; not to give vent to one’s personal beliefs. If you want to run a holy war against the RIAA’s litigation campaign then do what I have done: take on different cases, for different people, with different factual situations, and try to win each one, or do the best you can with each one. Just because you’ve chosen to confine yourself to one case doesn’t mean you should use it as a platform for changing the world. The judge has her own problems, and she has a job to do; and you’re not helping her to help you when you submit a brief like that.

To me the whole brief was problematic throughout; if one of your students, when in practice, submitted a brief like that, the judge would be laughing at him or her under his or her breath.

1. Stylistically, in my opinion the style was inappropriate throughout.

2. Substantively, I don’t see (a) asking the judge to make up new law on federal abuse of process, (b) asking the judge to hold that it is an abuse of process under state law to sue for damages authorized by the Copyright Act, (c) asking the judge to conclude that congress delegated anything to an industry association, (d) asking the judge to hold that some statutory damages can’t be applicable to noncommercial users, and (e) asking the judge to show favoritism to an admitted copyright infringer.

You’ve made a series of arguments for which you have no basis other than emotion. And you’re arguing the case as if you are in the Commonwealth of Moot. And you’re arguing the case as if Joel is Jesus.

In this case you have a couple of valid substantive arguments: (a) innocent infringement; (b) the inability to collect statutory damages if Joel’s use of an ‘online media distribution system’ predated the effective date of the copyright registrations; and (c) the potential excessiveness of a statutory damages award under Gore/State Farm/Williams. I haven’t seen you seriously brief any of these, although in reality they are all you have.

You’ve done well to get the hard drive protective order. In my view you ought to come down from your pedestal and concentrate on real world, doable accomplishments like that one.

You should concentrate on real lawyering, not treating motion practice to a judge as if it’s a television drama closing statement to a jury.

[Remember: You asked for my opinion]

———-
From: Charles Nesson
Date: Tue, Jun 9, 2009 at 9:13 PM

nicely written.
[snip]

- 1. Stylistically, in my opinion the style was inappropriate throughout.

was i offensive in any way?

2. Substantively, I don’t see (a) asking the judge to make up new law on federal abuse of process,

do you think riaa is abusing federal process?

(b) asking the judge to hold that it is an abuse of process under state law to sue for damages authorized by the Copyright Act,

so abusing someone in massachusetts with federal process is ok with massachusetts?

(c) asking the judge to conclude that congress delegated anything to an industry association,

the power of deterrence, the power to pick and choose on whom to impose punishment

(d) asking the judge to hold that some statutory damages can’t be applicable to noncommercial users,

why would you not ask for this?

- and (e) asking the judge to show favoritism to an admitted copyright infringer.

when did i do that?

———-
From: Ray Beckerman
Date: Wed, Jun 10, 2009 at 12:23 AM
To:  nesson at law.harvard.edu


— 1. Stylistically, in my opinion the style was inappropriate throughout.

– was i offensive in any way?

offensive no, unprofessional yes

2. Substantively, I don’t see (a) asking the judge to make up new law on federal abuse of process,

– do you think riaa is abusing federal process?

do you have legal authority for view that it is a tort

(b) asking the judge to hold that it is an abuse of process under state law to sue for damages authorized by the Copyright Act,

– so abusing someone in massachusetts with federal process is ok with massachusetts?

suing someone under a fedl statute for a remedy provided in a fedl statute is definitely ok

— (c) asking the judge to conclude that congress delegated anything to an industry association,

– the power of deterrence, the power to pick and choose on whom to impose punishment

congress delegated nothing whatsoever to an industry assoc

(d) asking the judge to hold that some statutory damages can’t be applicable to noncommercial users,

– why would you not ask for this?

because there’s nothing statute or caselaw to suggest it

and (e) asking the judge to show favoritism to an admitted copyright infringer.

– when did i do that?

you’re asking the judge to adopt your sympathy for Joel
she’s not in that business
what she does has to be within the law

———-
From: Ray Beckerman
Date: Wed, Jun 10, 2009 at 12:26 AM
To: nesson

nicely written. say more about your defenses: (1) innocent infringement, what makes joel’s infringement innocent, and is the objective of asserting this reducing the statutory damages to $200 per?

that he didn’t know it was a copyright infringement

yes it would reduce to $200 per infringement (ps there is caselaw that 2 songs from 1 album may be 1 infringement not 2)

(2) is there law saying that the copyright registration had to have preceded the infringement?

yes it’s in 412 … i guess you don’t read the things i send you or my blog.. look at my practice tip on the subject

(3) what do you think has not been done w/r/t to the gore disproportion argument?

well like for example you left out all the leading authorities from your brief, for one
and you left out all the winnable arguments, for another

:<)

2 Responses to “morning mail – ray beckerman”


  • “well like for example you left out all the leading authorities from your brief, for one
    and you left out all the winnable arguments, for another”

    Oh SNAP. Son, you got SERVED.

  • The argument regarding “delegating powers to the RIAA” isn’t right legally.

    A better legal argument which gets at what you’re thinking is that *if* the “damages” are legal — which they aren’t under Gore, State Farm, etc. — they are so large that they are substantively equivalent to criminal penalties, and that this is effectively a criminal case in civil clothing. Other evidence that it’s a criminal case in civil clothing are the blanket assumptions made by Congress, with no evidence submitted, that a particular act constitutes an “injury” — in a normal civil case, proving injury is *mandatory*, but in this case there was no requirement that any injury be proven — whatsoever. If there is no actual injury, there can be no just civil case whatever Congress may say. The application of strict liability based on arbitrary rules unrelated to actual harm makes the case effectively criminal.

    If the case is effectively crminal, it is in violation of the excessive fines clause of the US Constitution; it is also conducted under improper presumptions, improper rules of evidence, and with an improper prosecutor (since private prosecutions are not allowed in the US). If it is in fact the civil case it pretends to be, it is clearly absurd and unjust to allow punitive damages which would be unconstitutional if they were fines, and to allow such to be imposed tears a hole in the Fourth Amendment; the Bill of Rights is not to be evaded by pretending that criminal actions are civil cases.

    This is what you’re trying to get at with the idea of Congress delegating authority to the RIAA. The judge may not buy it, but even if the judge doesn’t buy it, it *will* cause the judge to look at those “excessive punitive damage” rulings in a new light, with reference to the “excessive fines” clause.

    Unfortunately to do this properly, you must first push the “excessive punitive damages” line of argument with a strong list of caselaw and references — and then pile up caselaw about criminal cases pretending to be civil cases (yes, there is quite a bit of it), and then pull out the caselaw on the excessive fines clause, and the basic law of torts.

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