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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 can see the problem with $750 penalty for stealing a 70 cent download... isn't there some ruling that says for companies they can only "gouge" them for damages with a single digit ratio to the actual damages? So to follow that for individuals, that means the largest damages should be... 70 cents times 9... $6.30?
Just a pointless gibe about the difference between treatment of companies and individuals, I guess. Forgive me if I got some details wrong of the above information, even.
Of course the RIAA's defense will be along the lines that "by downloading using P2P she enabled an estimated ~1000 other people to get the content, which translates to ~$700 in lost revenue". Nevermind anyone could have downloaded the same song from the same source that the Ms. Lindor downloaded it from, nevermind the people who downloaded the song will most likely not have paid for it if they weren't able to download it, and nevermind Ms. Lindor cannot be held responsible for the people who downloaded the song from her PC. But hey, its the RIAA, so most likely they will just settle for half the amount of damages and get away with it, with the guarantee that they cannot be sued afterwards for people who already paid their extortion settlements.
Upstream bandwidth (kBit/s) 128 (this is my own bandwidth rate)
Time to upload 1 MB (s) 64
Average song size (MB) 5
Time to upload average song (s) 320
Wholesale cost of song (USD) $0.70
Sue-value per song (USD) $750.00
Number of instances req'd 1071.43
Upload time per song sue-value (s) 342857.14
Or just shy of 4 days (3.97).
So 2 days for 256 kBit/s
And 1 day for 512 kBit/s
So basically, a value of $750 means that, if the sole means of distribution is via the network, for each and every count, the plaintiff should have to prove that the defendants computer was on, connected, and maxing it's upstream bandwidth for a period not less than 1 full day, multiplied by their upstream bandwidth divided by 512. I'd expect that also to be tempered by some reasonable fraction accounting for computer downtime, other uses of bandwidth, network overheads, etc.
Has anyone ploughed through the legal documents and found out how many counts they are sueing for, and what Ms Lindors' upstream is? Because if she has 128kBit/s and it's 1,000 counts, they should have to prove that she had her computer uploading music for 11 years straight without a break. (To quote Billy-Bob Thornton in Armageddon, "Most of us don't even have cars that old."). I doubt that much upstream was even available in most places 11 years ago....
Well, I'm not a supporter of the RIAA's tactics, so don't take this the wrong way. However I get involved on the receiving end of these complaints at times.
In every situation I have been involved, the complaint from the RIAA or MPAA has been about providing content to others, making it available for others to download from them, actually distributing the content.
The complaints are not about downloading material.
Suppose some individual only shared a file four times. And each of those four downloaders shared it four times. And so on. After only four levels of sharing, there's 256 incidences which could not have happened (theoretically) if that first individual had not shared that content.
Furthermore. we're probably not talking about iTunes-like DRM-enabled content. It's probably a bare, unencumbered media file, which is arguably more valuable than a DRM-restricted file.
Never ask for directions from a two-headed tourist! -Big Bird
"If you can't understand that, then you can be lumped into the group of ungrateful assholes, as far as I'm concerned."
No wonder our representatives are so confrontational and thoughtless. The people they're represent are the same way.
I too thought their comments were not terribly helpful, but that doesn't make them bad people. You, on the other hand, see things as either completely supporting that these guys are wonderful or if you don't, then you're an asshole.
I'm guessing you don't get along with about 1/2 the people you meet.
Suppose some individual only shared a file four times. And each of those four downloaders shared it four times. And so on. After only four levels of sharing, there's 256 incidences which could not have happened (theoretically) if that first individual had not shared that content.
Ad infinitum, or bounded by what? The total population of the world? The % of the population estimated to have computers? That have computers connected to the internet?
I mean, you can't argue for second generation damages, you should have to go after the next person who shared the song after you, its their infringement, no longer yours.
Ideally, if you're going to have such ridiculous copyright damages, the onus should be on the plaintiff to prove a specific number of infringements (uploads) multiplied by a reasonable damage claim (which should likely be nowhere near $750).
I think the Judge is right, and a constitutonal challege should be allowed. IANAL (who is?) but take this example: In Canadian tax law, if you are caught cheating on your taxes, the typical penalty is equal to the amount of oustanding taxes. (I.e. if you cheated the government of $5,000 in taxes, you pay that $5K taxes, PLUS a $5K fine.) Most other such damages are similar - 1 or 2 times the actual cost tacked on as a penalty. If you are speeding - a potentially lethal act, far more egregious than copying a song - the fine for the act is $150, say. Some proportion is in order.
.10 * 70 cents = $3.50. But, let's say 90% are leeches - then the damages would be $35. I'm pulling numbers out of my hat, but you see where the argument can go.
So what are the real damages? If we assume there are 50M people in N. America who download songs (1/6th population) and typically they download 50 songs a year (that seems a little high as an average) and the songs in question, subject of the litigation, are about say 10% of the usual downloads since this is a hit-based business - then we come out with the typical song/trader total being 5. This indicates a damage estimate of about 50 songs *
It seems to me that public song offering/trading should be something like speeding or not wearing your seatbelt(where required). A simple fine, a quick ticket written once the appropriate proof is presented, and - ta da - you get a ticket for $50. High enough to discourage, low enough that it doesn't break the bank, but high enough to get the message across, low enough to make it not worth fighting unless you really want to make a point - don't download, don't jaywalk, don't litter (All offenses of the about same caliber of "badness").
A standard burden of proof should be set and required. With speed radar practices, it's pretty difficult to fight and win a speeding ticket against radar. (Not impossible, but you better have a good argument...) Very rarely do the police get away any more with the "in my estimation he was doing 70mph in a 60 zone,your honor..." The same should be required for a "downloading" fine. And, if the level of reliability of the evidence begins to slip below "satisfactory", the judges and lawyers can certainly let the RIAA know quickly through a lack of enforcement of the fines.
We don't have those in the states. At least not that I'm aware of.
Although a judge can, I believe, force you to donate money to a charity (this is infrequent but I've heard of it happening a few times, usually when they want to eliminate someone's 'ill gotten' gains but can't really give it back to whoever it was taken from, generally stock-market stuff); that would be closest that I think you could get.
The U.S. legal system was designed so that, theoretically at least, the "system" wouldn't benefit in any way from the number of cases that it sees, or how they're adjudicated. This is so you don't get into the Spanish Inquisition-like situation where if the court "does not burn, they do not eat."
Fines, etc. that people are required to pay to the State, go back into the General Fund at the city/state/federal level, and the expenses of the courts, including court-appointed attorneys, are paid out of same by the legislature. Having the courts be self-funding in any way risks creating a juggernaut.
"Ladies and gentlemen, my killbot features Lotus Notes and a machine gun. It is the finest available."
Yes I confess to being terse and dismissive to two of the questions in the interview, which I believe were the work of RIAA trolls, and to several comments posted in the ensuing discussion which were disrespectful and troll-like. I don't think I'm a "wonderful, open" person in person. I'm the same kind of person you saw in the interview. I have zero tolerance for phonies or for liars, and I have very little patience with people who ask questions but only accept answers that fit their preconceived ideas of what they would like to hear.
I think it is more important for a lawyer to be clear than to be cuddly, at least if he's more concerned with his clients than himself.
As to targeting my target audience... well I don't play games like that. I didn't have a target audience. I don't talk up to people or down to people. I assume the people I'm talking to are no better or worse, and no smarter or dumber, than I am. I just try to be straight with people.
People who don't like that wouldn't like me, and wouldn't want me as their lawyer. That's ok. I am what I am.
Ray Beckerman +5 Insightful