RIAA Defendant Says Kazaa Settlement Bars Case

NewYorkCountryLawyer writes "The defendant in Arista v. Greubel has filed an answering statement. The statement says that the RIAA's case against him, since it's based upon his use of Kazaa, is barred by the RIAA's receipt of $115 million from Kazaa. Mr. Greubel also challenged the constitutionality of the RIAA's $750-per-song damages theory, saying damages should be limited to $2.80 per song. See the previous Slashdot discussion of that issue and Judge Trager's decision in UMG v. Lindor."

Comments

Has the RIAA won any court cases

[ClaraBow]

against individuals or have all of them been settled out of court? This has been going on for so long that I've lost track!

Re:Has the RIAA won any court cases

[SatanicPuppy]

They haven't won any actual cases against people, though they have won a number of suits against the companies running the file sharing software.

This is an interesting defense, though I don't think it'll fly. I think the record companies will argue that the settlement against Kazaa was for creating the file sharing software, and not for actually infringing on any copyrights.

I do think that the arbitrary value per song is long over due for a re-evaluation. 750 is nothing more than extortion unless they can prove actual value lost (which they can't) or until they actually force someone to settle for that amount, which they haven't yet.

Re:Has the RIAA won any court cases

[squiggleslash]

On the first point, I agree with you. Plus, that kind of argument doesn't fly anywhere else. Generally if more than one group commits an offense of some sort (civil or otherwise) against you, you don't have to pick just one of them to sue.

As far as the second goes: as cpt kangarooski points out, the $750 is what is legislated, not some arbitrary figure the music industry has pulled out of it's rear.

Moreover though, saying they should prove actual value lost is a nonsense and precisely that reason why a figure was legislated in the first place. You don't know how many people downloaded the song. You don't know how many of those people passed it on to others. You do know that the person put the music up for download onto a network where it was effectively available, without control, to millions of anonymous strangers.

As if to make matters worse, putting that music up for download also increased the value overall of an piracy-oriented peer-to-peer system, making it a more practical and attractive alternative to legal music. If someone can expect to be able to use such a system to find an arbitrary song that they would otherwise have to pay for, they're likely to do so.

And we haven't even begun to scratch the surface. Some have argued, for instance, that the 50-70c per song the content producers gets from the iTunes Music Store should be used as the "actual" value (as if putting up a single song to be downloaded 2,000 times works out at 70c of lost revenue.) The fact is though that this is a royalty paid for music that's already crippled using DRM and therefore of already limited utility. Would the industry have negotiated a rate that low if it were higher bitrate unencrypted MP3s that will never need to be complemented with versions on other medias?

The bottom line is that I don't actually think the $750 is quite as extortionate as people claim it is. As a fine for putting someone else's music up for download by potentially millions of anonymous strangers, it's not exactly out of line.

Do I think that it'd be fair for, say, a charge of copying a music CD for a friend to listen to? Absolutely not. But that's not what we're talking about here.

I think both arguments look like bad lawyering to me and I wouldn't be surprised if the defendant gets into more trouble as a result than if they'd just kept their mouths shut and taken a settlement. The legal fees will pile up, and someone will have to pay them.

Re:Has the RIAA won any court cases

[NewYorkCountryLawyer]

A win on either defense would probably put the RIAA litigation juggernaut out of business.

Re:Has the RIAA won any court cases

[bluefoxlucid]

Lawsuits for creating file sharing software... lawsuits for creating encryption programs... lawsuits for creating blogs, a method of saying political leaders are whores... all banned. Hacked by Chinese.

Re:Has the RIAA won any court cases

[aussie_a]

So if I stab someone to death and leave that knife in the body. And then a mentally competent adult comes across the knife and murders someone else with that knife, should I be held accountable for both murders? After all, I only murdered one person.

Re:Has the RIAA won any court cases

[aussie_a]

Wait a minute, if its per work, could I make available to everyone a song, pay the RIAA tax, and then continue making that song available to people and not get re-taxed? That sounds pretty cool to me :D (assuming the courts can be made to drop down the tax to something more reasonable, or even better rule the law unconstitutional and throw it out altogether).

Piracy Tax?

[Thansal]

hmm, does this sorta set a precedent for us to use our Zunes to hold pirated music? After all, MS Basicly setteled it premptivly by paying off one of the major labels....

Re:Piracy Tax?

[HappySqurriel]

Essentially that is what happened in Canada ...

The Recording industry lobbied the government to introduce a tax on recordable CDs (and MP3 players IIRC) which was then paid out to the recording industry; later the recording industry wanted to sue individuals in Canada for downloading music and it was ruled that people had already paid for the music through this tax.

Re:Piracy Tax?

[zxnos]

silly questions but... ...do the artists get an automatic percentage of this tax collected by the music industry in canada?

Yeah...

[webheaded]

I'd love to see someone win but there are 2 things here:

First off, who knows if what he is saying will work. If he goes into this he could be wrong and get completely fucked. They will of course offer a settlement, etc etc and everyone will be warm and cozy.

Secondly, if they actually see a threat, they will simply drag it out as long as they can until the defendant runs out of money...at which point they will probably offer another settlement.

He's fucked either way, unless he's rich or something. There is no way for a person to win against the machine.

but what if he wins?

[DynamoJoe]

If his arguments prove to be a successful defense to file sharing on Kazaa, does that mean that all users on Kazaa just got a "get out of jail free" card? (is kazaa even still around?)

Re:but what if he wins?

[Anonymous Coward]

Better question: What can someone do who was already sued and settled out of court regarding their Kazaa use?

A friend of mine was sued by three companies in the RIAA last year for songs they stated she downloaded via Kazaa. She settled as her lawyer told her to settle. They stated they had a screenshot showing what music she had downloaded. She tells me some of the songs she is listed as having downloaded were never downloaded. Songs that do not match her music style. She still settled and had to declare bankruptcy because of the settlement.

A few months ago she told me she was getting sued again. Two other RIAA companies are using the same evidence against her, only they are suing for the songs under their labels.

I did not know about the first lawsuit until she told me about the second. I gave her the advice to get a new attorney. One that knows what he is doing. To actually have someone look over what she is being charged with and to see what can actually be done. Her answer to me was "My attorney states to settle again, as we have already admitted guilt by settling before". If this is what her attorney told her and not her mis-remembering, then I don't know what else to do for her. She never should have settled last year and this year she should not be settling again. If only she had asked for advice last year we could at least have gotten them to give better evidence than a screenshot.

If (and that is a big if) this case goes to the defendent, and he is not liable to pay damages, then would she be able to file a claim for her settled case's costs and settlement money? Probably not as it was a settlement, but still... Oh well.

Just an opinion

[zappepcs]

because IANAL and other such notices, and either way, if IRCC, Kazaa was sued successfully because they encouraged the illegal downloading and sharing of copyrighted works through the use of their software, rather than being responsible for everyone's use of their software, they were found guilty of encouraging people to use their software for illicit purposes, sort of like a pipe manufacturer encouraging people to get high, rather than simply selling pipes. Its a fine line, but I think this guy might have the same chance of pleading innocence as those who became hooked on cigarettes... IF ... nothing else is given as evidence against him. It is a very thin edge he is on... as far as I can see.

They may be complicit, but I think the judge will still see this guy as having guilt regarding the 'crime' in question.

Greubel Has Sugar Daddy

[cmholm]

It would seem that Mr. Greubel has been given the wherewithall to fight the case by a Vancouver-based music producer who is looking to create a proper test case to challenge the RIAA "John Doe" lawsuits.

Re:Umm...

[shark72]

"That's $750 PER SONG. Share 1(one) CD? $7,500+."

Good point. I think the "$750 per work" language is a remnant of the old days of piracy, where people tended to pirate entire albums, books, or movies at once. It's from before today's song-by-song piracy.

"That's a hefty fee for putting something on Kazaa. (Compare to fines for reckless driving and the like.)"

Yet if your sharing that song with 10,000 people caused the rightsholders a loss of $750 of business, then it's just. Yeah, yeah, I know, the rightsholder might not need the money and might be a cocaine addict, but rich cocaine addicts have the same rights under the law as we do.

"Given the bandwidth most people have it's extremely unlikely that they've uploaded to more then 50 people. (The song itself may be shared more then 50 times, but not by just one person.)"

You've nailed it. I recall some analysis several years back that through fingerprinting or what have you, they found 16K copies of an Eminem song on a P2P network that all came from the same rip. Power in numbers.

Is bandwidth a consideration?

[Scrithy]

If the user put up 5000 songs for download for 24 hours, but their personal internet bandwidth could only support actually uploading 50 songs in that time period, shouldn't they only be liable for a maximum of AverageRetailPricePerSong * 50?

Re:Umm...

[Anonymous Coward]

Double counting damages is not exactly legit. The RIAA cannot sue me for illegally distributing a song, claiming I am responsible for "downstream" sharing, and then sue "downstream" sharers as well. Either I am responsible or the downstream user is responsible -- claiming both, at least if the RIAA benefits from it the first time, is called judicial estoppel and is grounds for their argument to be thrown out. The defendant's theory in this case is probably similar.