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Judge OKs Challenge To RIAA's $750-Per-Song Claim
NewYorkCountryLawyer writes "In UMG v. Lindor, in Brooklyn federal court, the presiding judge has held that Marie Lindor can try to prove that the RIAA's claim of $750-per-song statutory damages is a violation of the Due Process Clause of the Constitution, since she has evidence that the actual wholesale price of the downloads is only 70 cents. This decision activates an earlier ruling by the Magistrate in the case that the record labels must now turn over 'all relevant documents' regarding the prices at which they sell legal downloads to online retailers, and produce a witness to give a deposition by telephone on the subject. Judge Trager rejected the RIAA's claim that the defense was frivolous, pointing out that the RIAA had cited no authorities contradicting the defense, but Ms. Lindor's attorneys had cited cases and law review articles indicating that it was a valid defense. See the Decision at pp. 6-7."
I know this is slightly off-topic but I would like to point out NewYorkCountryLawyer's donations of legal stories and advice to Slashdot.
Recently, the user NewYorkCountryLawyer has provided us with many stories (bottom of the user page) that revolve around the RIAA & music suits. On top of that, oftentimes whenever a legal issue is being discussed, they reply with often insightful/interesting/informative posts (300 since July of this year) from someone who actually spends their entire day dealing with the RIAA & law.
All this despite the shameless way we treated him when they answered questions we had about RIAA suits.
On behalf of Slashdot, I would like to thank NewYorkCountryLawyer for bringing to light some of the cases that might not make it in mainstream news & providing us with a realistic view of how things work in the legal world. All too often it is an alien landscape to me that I cannot comprehend.
My work here is dung.
Basically - $750 fine for $0.70 theft is considered unconstitutionally severe, or something like that. (IANAL etc, blah blah blah) Next the RIAA will be wanting to cut off hands....
The cesspool just got a check and balance.
You lucky b*ard, in french law, for any number of song (theorically one is enough), you can be sentenced to 3 years in jail and 300.000E fine (and that is the penal part, so the SACEM can then claim their damages in the name of the artists).
Some of the torrent sites list the most popular torrents at any given time, virtually all of the top 100 or so are copyrighted material and they all have several hundred seeds and several hundred leeches. Given the relatively large number of users the more traditional P2P sites have I would imagine a good version of a currently popular tune could be downloaded thousands of times, particularly given the unlimited amount of time it could be made available.
Also worth considering that if this defense ends up working the next tactic by the RIAA will likely involve them downloading several hundred thousand copies of a single song and taking you to court with that.
"Sacrifice for the good of The State" - The State
wrt "Similarly, the cost of a file sharer's damages would be greater than someone who simply downloaded the same song for personal listening."
It should be noted that in the US, one couldn't sue someone that simply downloaded the song. Obtaining a copy is not infringement, copying is. Case-law has already pretty much covered that the upload portion of the equation is infringing, but the download is not (nor is serializing the download from RAM to disk).
Also a point of interest with regard to calculating damages for infringement: copyright does not purport to support the making of money off copyrighted materials. The amount of damages (or lack thereof) or whether or not the infringer got financial benefit is immaterial. The testimony regarding revenue loss as a result of the infringement is basically a victim impact statement. Damages for infringement are at the discretion of the judge or jury and have certain statutory limits. If a record company loses a million dollars (and could prove it) as the result of infringement, it doesn't mean that they will get (or are due) a million dollars. Likewise, if the same company suffers no tangible monetary loss, they can still sue and receive damages.
People very often operate on the false assumption that "damages" in infringement claims are related to estimated financial loss of the rights holder. Copyright intentionally doesn't work that way. Keep in mind that the work has no owner; the only instrument here is a contract (copyright) bestowing limited monopoly rights on copies and derivatives of a work to a single party. It is the responsibility of the rights holder to argue that the accused infringer was subject to and then broke the terms of that contract (entered into by their representative, the state). Its then the court's responsibility to assess the seriousness of the infringement and seek a reasonable remedy (which isn't necessarily limited to monetary damages).
No it's not. The law increasing the amount significantly ($500 was changed to $750; $20,000 was changed to $30,000; $100,000 was changed to $150,000) was passed in 1999 when the possibility was not only conceivable it was what the law was directly aimed at.
Check the law next time, before you talk about whether it's out of date.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
But you're trying to make one person pay for the crimes of a geometric progression of other people. This is analagous to the Roman Catholic concept of "Original Sin".
While the person has responsibility for what they personally allow to be uploaded from their machine, you cannot hold her responsible for what other people do with that data after they receive it. That is their responsibility, and if the RIAA want recompense for those activities, it is that geometric progression of people that they should chase.
I disagree completely. You can't hold the first sharer liable for the actions of the downloaders; they're responsible for their own actions and should be sued individually for those actions.
The first sharer should be liable only for his or her own actions, which in your example means sharing the song four times, for total damages of around $2.80. IIRC, willful infringement is subject to triple damages, so the RIAA should be awarded $8.40. Note that in the case of sharers who serve up multiple copies of each of thousands of songs, the legitimate damages would be significant.
I have no problem with the RIAA suing people who infringe their copyrights, but they approach it as a purely civil matter, and in civil matters awards are limited by actual damage. I understand that the record labels have a problem that aggregate file sharing may be costing them a great deal, but that still doesn't justify allowing them to pick out a few people and slam them for many hundreds of times the amount of damage that individual did, in the hope that making an "example" will deter others.
Criminal law is all about deterrence. Civil law is primarily about compensation, with some small multiples being applied to awards in order to help keep the number of court cases down.
If the labels want, current copyright law does have some criminal provisions, which will allow them to slam the sharer very hard ($250K per infringement, IIRC, plus jail time). Of course, they'll have to accept the higher standard of proof ("beyond a reasonable doubt"), and they'll first have to prove that the damages exceed a statutory amount ($1500, IIRC), and those damages calculations had better be provably correct.
Note to ACs: I usually delete AC replies without reading them. If you want to talk to me, log in.
The point was, of course, that case law already exists that stipulates that the copier is the provider, not the recipient. It has been argued that reading from disk into memory is a copy, to the point that the act of moving from one chip to another is a copy at each stage. Those arguments have already been heard and decided. Semantically speaking, point-to-point transmission is copying, receipt is not. Point-to-many transmission (multicast) is broadcasting (more or less, that's less settled). In the US, at least, downloading is not copying, but upload is (for the purpose of copyright considerations, anyway).
That's exactly the kind on condescension that readers were most complaining about. Yes, we're familiar with complex systems - we deal with them every day. We were hoping to get insight about a system that we're generally unfamiliar with, even if we get the basic gist of it.
Look at this answer:
"It's hard to generalize about that, because each person's facts, each person's personality, each person's intellect and ability, are different. Generally, there is no real good way to handle these cases, so anything anyone does is a mistake, in that sense. But in another sense, there are no mistakes, because there is no right answer."
Well, no kidding. That was utterly and positively content-free. It imparted no information. If they couldn't or didn't want to answer the question, then they should have just said so.
Which leads back to my original position: that interview was awful. It's not fair to say that Slashdotters were overly ungrateful for their input in general, but you can't reasonably hold it against us for not swooning over the wonderful, in-depth answers they didn't provide.
Dewey, what part of this looks like authorities should be involved?
3 of the 4 members of its litigation cartel are foreign corporations. Do you work for one of them? Or do you work for their attorneys?
Ray Beckerman +5 Insightful
Dear gundersd:
My colleague Ty Rogers graciously pointed out to me, in reading your comment, the following excerpt from one of the Law Review articles we cited in our briefs:
"There are multiple ways in which we might measure the economic loss caused by a defendant's file-sharing activities. To illustrate one such approach, consider the following example. Suppose that file-sharer W illegally downloads to her computer Led Zeppelin's song Stairway to Heaven. The song is downloaded to a shared folder on her computer and thereby made available for others to copy. Suppose further that three other file-sharers, X, Y, and Z, subsequently download the song from W's computer. Thus, there are four people in this example who desired the song but who did not pay to obtain it. In other words, there are four lost sales. Because file-sharers are sued independently, we need a way to apportion this harm among the relevant actors. How might this be done?
A starting basis for apportioning the harm is to deem the person who initiates a file transfer (the downloader) as having caused harm by that action. This person benefits by receiving for free a work of music that must be purchased to be legitimately obtained. Allowing her to escape responsibility for causing harm is not consistent with her initiative in effecting the illegal transaction. Stated differently, this person's money would have gone to the copyright owner (if indirectly) in order for her to obtain the song, but now the money stays in her pocket as a direct result of her affirmative actions. In contrast, the file-uploader gets no economic reward from her outbound transfer and may be unaware of the sharing. [FN139] Thus, we can assign the downloader responsibility for causing one lost sale by illegally downloading the copyrighted song.
The other half of this transaction is the uploading of this song, so we might also assign to a person responsibility for one unit of economic loss per act of distribution--each time that the actor uploads a copyrighted music file, she is responsible for a lost sale. This seems satisfactory at first because the distribution of copyrighted works is illegal and is necessary for file-sharing to work. This conception, however, overstates the actual economic loss. In *547 our example, this conception would count seven units of economic harm (one for W's song download, three for W's uploads, and three more for each of X, Y, and Z's downloads). Yet the copyright owner in our example has suffered only four lost sales. This scheme, then, is flawed.
Instead, this Note adopts a conception of file-sharing's economic harm that attributes responsibility for economic loss to a person's instances of illegal downloading but not distribution. One person's distribution is another person's downloading, so counting economic loss as caused by acts of distribution, in addition to counting acts of downloading, would overstate the total amount of harm. While this Note settles upon this model of file-sharing's economic harm, it is certainly not a perfect conception. For example, this model does not account for whatever revenue is generated by persons who first illegally download a song for sampling and then later purchase it legitimately. Nor does it counterbalance this revenue by accounting for revenues lost due to a record company's impaired ability to market a collection of several songs as one unit, as on the typical album, or to collect licensing fees from online retailers that play short music samples to their customers. Thus, this Note acknowledges the existence of imperfections in its model of file-sharing's economic harm; it concedes that changes in this model will alter the separation of the punitive and compensatory portions of a statutory damage award and ultimately affect the outcome of substantive due process review.
Having explained why a file-sharer is held responsible for causing one lost sale for each copyrighted work that he or she illegally downloads, it bec
Ray Beckerman +5 Insightful
What you're saying is simply not so. Every complaint alleges "downloading, distributing and/or making available for distribution".
Ray Beckerman +5 Insightful
Yes but judge was following, not disobeying, 9th Circuit. She was well aware of 9th Circuit ruling in that very case, and did not interpret it the way the Slashdotter to whom I was responding interpreted it.
Ray Beckerman +5 Insightful
Actually it's in the personal injury cases that the issue first came up. The US Supreme Court said that jury awards for punitive damages which greatly exceeded the actual damage were violative of due process. The 2nd Circuit then held that the same analysis could be applied to statutory damages, and the district court for the Northern District of California held that it could be applied to statutory damages under the Copyright Act in p2p file sharing cases.
Ray Beckerman +5 Insightful
No, this is faulty logic:
"The logic is similar to putting a $1 bet on number 7, which comes up, putting the $36 winnings on number 2, which doesn't come up, and then claiming that you have 'lost' $36. You haven't. You've lost $1. (Since you didn't cash in after the first win, but immediately put it back in play, it was never yours)"
You absolutely did lose $36, because your $1 bet did not necessitate the subsequent bet. They are two completely seperate occurrances.
1. You make a $1 bet and win. Now you have $36 that are YOURS (albeit in the form of Roulette chips that must be cashed twice before they are in a form worthwhile to you).
That occurrance is now over. You start life fresh, with $36.
2. You make a $36 bet and lose. You have lost $36. It doesn't matter if the bet you made is 5 seconds after, or 5 years after, your first bet. You are still wagering the $36 that belong to you on a new bet.
Just because the money belonged to you in an inconvenient fashion, and making a bet was the only thing you could do with it without having it converted, does not somehow conjoin the two bets into one action. Neither does that fact that you bet on the very next spin of the wheel. It simply shows your inability to walk away from the table ahead (or your inherent laziness).
Either way, you had $36, and you lost it playing Roulette. Congratulations, you have a gambling problem.
Sorry you didn't understand that correctly. Awarding penalties that are wildly disproportionate to the actual damages is, according to legal authorities, unconstitutional.
Ray Beckerman +5 Insightful