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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.
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.
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.
Like, yo, da judge said da chick what was dissed by da RIAA can try to prove her case, you know? The RIAA tried to make da man drop the hammer on her, but in a rare twist of fate, da man let da sister have her say. Da judge said this cuz da RIAA didn't back up it's shit, and da chick did.
Disclaimer: I'm not African-American, and I have never been to Africa or the less affluent regions of any major city.
Seriously. It WAS in English.
"If you make people think they're thinking, they'll love you; But if you really make them think, they'll hate you." - DM
I don't know about the rest of you, but I'm having a hard time thinking of a song that was worth $750. There are some really good songs out there, but I can't imagine paying $750 to listen to any of them.
Well... I did get laid to "Stairway to Heaven" in high school, but I'm not sure it was worth $750 -- sex included.
And they call us pirates? A decent, fairly honest, average person or a dishonest, greedy juggernaut of a company - who would you rather deal with, legalities or not? I know who I wouldn't want to turn my back on.
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.
A song that sells for $.70 wholesale should not automatically trigger damages of $750 if the same song is "stolen" or misappropriated. If I understand correctly, his Due Process argument is that the damages are grossly disproportionate to the loss, 70 cents or so. Another example would be if a car is valued at $10,000 and is somehow damaged or stolen, the raw value of goods stolen or damaged is $10,000, the cost of the car, not some arbitrary amount set by law.
A judge has figured out that there is no basis for the RIAA's damage claims. Took long enough to find a judge with enough brains to see that all the RIAA has ever done is intimidate and extort. I hope they do something really dumb and get fined big for pissing off the judge. Every attorny defending one of these cases needs to be informed of this step. It really could put an end to this stupidity.
Professional Politicians are not the solution, they ARE the problem.
I'm not African-American, and I have never been to Africa or the less affluent regions of any major city.
you didn't need to tell us that- it's self-evident.
It's hard to believe that's how Micronians are made. Why don't we see it right now by having you both kiss one another?
Wouldn't just shoplifting the CDs cost less in fines if you were caught?
The prosecution for a frivolous lawsuit is calling the defense frivolous? Isn't that like the pot calling the sheet of white paper black?
... and in the DRM, bind them.
Log from channel #BrooklynCourts
MarieLindor has joined the conversation.
RIAALegalWeenie has joined the conversation.
[RIAALegalWeenie] You ripped our stuff, beeyatch! Give us like 1,000x wot it's worth, or else.
[MarieLindor] Harsh, man. Ur stuff ain't worth it. Anyway u have 2 have Due Process and stuff under the CONSTITUTION! D'OH!!!1!1! Gimme all ur records.
Magistrate has joined the conversation.
[Magistrate] Fair 'nuff. You gotta do it.
[RIAALegalWeenie] No way. We're gonna go to a higher court.
FederalCourtJudge has joined the conversation.
[FederalCourtJudge] I am THE LAW.
[MarieLindor] Yo, Mr Judge Sir. Here's legal stuff that says I'm right. You got my back?
RIAALegalWeenie puts his fingers in his ears.
[RIAALegalWeenie] Not listenin'. Not listenin'. Nyaaaaah nyah.
[RIAALegalWeenie] And 'sides, she's just makin' sh*t up.
FederalCourtJudge has activated a purple lightsaber.
[FederalCourtJudge] This party's over. Go do what my man da Magistrate said, luser.
MarieLindor smiles.
RIAALegalWeenie has left in a huff.
There, I think that about covers it.
(With apologies to the poster who first made this joke, probably much better, but whose post I can't find to credit it.)
If you disagree, post your argument. (-1, Overrated) isn't your personal censorship tool for views you don't like.
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
It just shows how incompetent the RIAA is. They're so happy with all the money they're making right now that they fail to see that a system like the one you describe would actually work. An American-based AllOfMP3 that was actually backed by the RIAA, or, at least, the artists themselves, would be quite successful. I don't know about you, but I'd rather pay $2.50 for an album than spend an entire day downloading it from eMule or BitTorrent.
I certainly appreciate the legal insight, but did you actually read the interview? I'm too lazy right now to search that article for posts from you, but I certainly read it.
It was awful.
They may be wonderful, open people in person. They might also be world-renowned legal experts for all I know. However, the answers given in that interview were terse, dismissive, and generally not well targeted to their intended audience. I thank them for their contributions to our knowledge pool, but I don't think you can honestly read the article you cited and use it as an example of an ungrateful readership.
Dewey, what part of this looks like authorities should be involved?
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'm sorry, I'm Canadian, racists aren't humourous here anymore I guess.
Everything is funny.
Death.
Adultery.
Hell I have a friend who jokes about Aids and he had a few of his friends die of it.
Laughter is the best medicine.
She was like chocolate when she drank... semi-sweet at first and then increasingly bitter.
RIAA: What happen ? ....
RIAA Lawyer # 1: Somebody set up us the frivolous lawsuit.
RIAA Lawyer # 2: We get signal.
RIAA: What !
RIAA Lawyer # 2: Main screen turn on.
RIAA: It's you !!
Judge: How are you gentlemen !!
Judge: All your "relevant documents" are belong to us.
Judge: You are on the way to destruction.
RIAA: What you say !!
Judge: You have no chance to survive make your time.
Judge: Ha Ha Ha Ha
RIAA Lawyer # 1: RIAA !! *
RIAA: Take off every 'attorneys' !!
RIAA: You know what you doing.
RIAA: Move 'attorneys'.
RIAA: For great injustice.
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.
You've hit on the point exactly. The RIAA is indirectly arguing (through its high damage calculations) that if you upload a file, then you are responsible for its exponential growth in sharing -- not just what you directly shared, but the shares made of the song by others in each succeding generation.
The argument made by the parent and great-grandparent is that you should only be responsible for only your local circle of sharing, and not the further sharing of the people you shared with in the first round. In other words, just the linear spread of the song.
Something tells me the law is probably unclear on where the cutoff on responsibility lies, since the exponential spread of perfect copies is a relatively new issue. And since the RIAA cannot or will not determine what generation in the exponential spread you are, everybody is treated as if they were the primary introducer for sharing the song and hit with the high damages. That's a great example of trying to have your cake and eat it too!
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."
Having been dealing with lawyers lately on a variety of subjects. You certainly seem to have never really dealt with a lawyer. Our complex systems and their complex systems don't even begin to compare. At least in our complex systems there are right and wrong answers. In law there really isnt. Law simply is not cut and dry. The laws are vaguely worded and complex and left to the interpretation of judges (whose opinions, methods, and backgrounds in relavent fields all vary greatly). The lawyers job is to take your money, take the law, and make a best attempt at convincing the judge that the law reads in your favor, in the mean time, the other lawyers job is to take the oppositions money and try to convince the judge that THEIR interpretation is the correct one. In the meantime there are a bunch of lawyers in the legislative end of government deliberately writing vague and confusing law to ensure lawyers remain employed and that law will never be cut and dry and comprehendable by the common man. That anytime anything comes up you will be forced to get a lawyer to talk to a judge, because anything else is courtroom suicide due to the complexity and vagueness of the law. If you have a lawyer telling you things are cut and dry and its a no brainer, then you probably have an inexperienced lawyer or a dishonest one (well they are all basically dishonest, but you want them to be honest with you at least). Do you honestly believe that if law was so cut and dry easy lawyers would get paid $200+/hr to do terribly little? Do you honestly believe that if it was so simple there would be so many stupid cases constantly clogging up our legal system?
In the meantime you should start charging a $2500 retainer before fixing anyones computer. See how far that goes.
The only change I can believe in is what I find in my couch cushions.
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.