Slashdot Mirror
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.
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.
Since they obtained the right to do so by the government, you should call them corsairs.
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?
There is a major flaw in your argument:
-when someone steals your car, you loose it, therefore the damage you suffer is easy to determine (the current value of the car, usually only a portion of its initial value).
-When someone downloads a song, the real damage is determined by the objective of the downloader:
*He wouldn't have bought the CD because he doesn't have the money, let's say it's free advertisement with potential long term payback (it was my case when I was student, and I then bought many CDs).
*He already has the CD but fears to put it in his PC because of the fear of rootkits or other malwares (that's currently my case), no real harm.
but of course, there is also:
*He burns CDs and sell them for a couple of bucks on markets to finance Al Quaida thermonuclear program, possible harm: millions of deaths + thousands of billions $ of damages.
So the 750$ is just the weighted average of the real potential damges, the only thing I don't understand is why the money doesn't got to the DHS.
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....
I argue that the greatest victory of the content industry, contrary to what most would say, was not extending copyrights to 75 years or establishing the draconian protections of the DMCA. Rather, the their greatest triumph has been to define the terms of the debate.
Instead of talking about temporary monopolies, we talk about "intellectual property." Instead of focusing on the "promotion [of] the progress of science and useful arts" (both the wording and the intent of constitution), we exclusively consider the so-called "property rights" of the creator(s).
And because of this, the content industry is able to conflate established property law with completely unrelated areas of law: plagiarism and government-granted monopolies. The result is not surprisingly inconsistent and the source of confusion all-around. Illegal downloaders are labeled as "thieves" instead of what they really are, copyright infringers. The public domain is not viewed as a benefit to society but as a loss of potential profits.
And they even manage to benefit both ways. They can accuse downloaders of theft, BUT THEN use the strict penalties of copyright infringement (originally intended to punish commercial infringement) against non-commercial and non-profiting individuals.
The entire issue is the ultimate triumph of sophistry over justice. Due process is violated when the punishment ($750 per song) doesn't match the crime (non-commercial copyright infringement). The intent of the constitution lays at the wayside when our arts and sciences are actually hurt because of the increased cost and difficulty of actually bringing a product or innovation to the market. The right to free speech is trampled upon when the DMCA is used inappropriately to take down embarrassing internal memos or other evidence of public fraud/deception(ex. Diebold voting machine code).
-Grym
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.
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.
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."