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

[cpt kangarooski]

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.

No, that's actually the number Congress provided in the statute. It's meant to be an alternative to having to prove actual damages (similar in some respects to, say, workman's comp). In fact, $750 per work is the minimum amount they can ask for; the maximum is $30,000 to $150,000, depending on some facts in the case. Don't think that the $750 figure is them being nice; it's meant to stay away from a jury that might side with the defendant, since if the minimum is what's sought, there's nothing for a jury to decide with regard to damages, or even to need to know about.

As for settlement, that has nothing to do with anything.

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

[Astro Dr Dave]

No, that's actually the number Congress provided in the statute.

So? It may be the law, but that doesn't make it right. Indeed, the due process defense is interesting, and probably is a better solution to the RIAA lawsuits. In general, a defense based on Kazaa's payment to the recording industry is not a good idea IMO. After all, a paid-off bully has incentive to extort more money from you.

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

[terrymr]

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.

Inability to prove your claim should not be grounds to relieve you of that burden.

Re:Has the RIAA won any court cases

[HTH NE1]

How on earth is this story anything like 1984?

We have always been at war with the RIAA.

Re:Has the RIAA won any court cases

[default luser]

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

That, or else you might start getting served papers for $2.80 in damages :D

Re:Has the RIAA won any court cases

[NewYorkCountryLawyer]

The claim against Kazaa was for inducing others to infringe plaintiffs' copyrights.

Re:Has the RIAA won any court cases

[pdovy]

"On the other hand, Lindor cites to case law and to law review articles suggesting that, in a proper case, a court may extend its current due process jurisprudence prohibiting grossly excessive punitive jury awards to prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered" (from the linked article, statement by Judge Trager)

This to me implies that they don't neccesarily have to stick to the minimum, if they can show that the minimum is ridiculous.

Also - I think it isn't quite fair to say that if you uploaded 1 song to 50 people, and those 50 people upload it to 50 people, that you are responsible for all of those damages. Who is to say that they don't go after the 50 people you uploaded it to, and the 50 people they uploaded it to? If they did in fact, then they would be getting damages way in excess of the money they actually lost. Realistically, I think the defendant should only be responsible for damages *directly* caused by them - that is, their initial downloading of the song and their uploading it to others, if those others go onto share it yet again, they should pay the price, not the original seeder.

Re:Has the RIAA won any court cases

[Fulcrum of Evil]

Cool - send them a twenty and go download some more stuff.

Re:Has the RIAA won any court cases

[NewYorkCountryLawyer]

As far as I know, the score as of today in contested cases is 0-0.

The RIAA hasn't won any contested case.

No defendant has won a contested case either.

No contested case of which I am aware has been seen through to conclusion yet.

(By "contested case" I mean a case in which the defendant (a) denies having done what the RIAA claims he or she did, and (b) is fighting back and not defaulting.).

There are probably cases out there that I don't know about. If you hear of any, please let me know.

Re:Has the RIAA won any court cases

[NewYorkCountryLawyer]

Good thinking. Here is an excellent law review article which agrees with you.

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).

Re:Has the RIAA won any court cases

[aussie_a]

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.

The RIAA is not a government nor a government agency. The RIAA cannot collect fines from individuals. Sorry, but the language we use is very important or else we'll start thinking things unconsciously. That's why anti-abortion people call themselves pro-lifers.

Re:Has the RIAA won any court cases

[Emetophobe]

No defendant has won a contested case either.

Doing a quick google search for "RIAA contested case" turns up this link http://arstechnica.com/news.ars/post/20061015-7990 .html
Defendants 1, RIAA 0.

Re:Has the RIAA won any court cases

[basshedz2]

The defendant in that case didn't "win" (at least not enough to set a precedant) - the case wasn't seen through to its conclusion.

From TFA:

The RIAA has dropped its case against Chicagoan Paul Wilke...

IANAL, etc.

Re:Has the RIAA won any court cases

[rucs_hack]

loads of people refer to 1984 without actually reading it, which is interesting. It's as if the book has been boiled down into a single idea that can be easily applied to multiple situations.

It's wrong of course, 1984 is very complex, too complex for a single idea to be distilled from its pages. I love the book myself.

I more often compare the RIAA/MPAA/DMCA situation to Plato's Republic, which predates 1984 somewhat.

IANAL

[Bryansix]

IANAL but I don't care. The defendant is right in every single assertion they have made. The RIAA is wrong and should be sued out of existence. /conversation

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?

Re:Piracy Tax?

[Anonymous Coward]

in theory, yes ... in practice, no

administrative costs are excessive
industry collects revenues
system lacks proper accountability and transparency

imho, it's like many other good ideas that have been corrupted by greed

its one redeeming feature, there is less lawyer fodder

Re:Piracy Tax?

[FreakerSFX]

You are wrong - that "tax" does not protect you from music companies. You should check into it before you get sued. They have been much less litigious in Canada but the current government is passing (has passed?) legislation to make it open season on file sharers.

Re:Piracy Tax?

[wrook]

Not entirely true.

The recording industry lobbied the government for a levy (not a tax) on recordable media. The government decides what media is covered and what the amount of money is levied. The money is sent to the recording industry which is supposed to distribute it to the recordning artists (I don't believe that part has actually happened yet).

In exchange for the levy, the copyright act specifies that copying an audio musical performance for personal use is not considered infringement. This is *very* different than saying "It has already been paid for". It has not. Copying for person use is *not* infringement whether or not the must has "been paid for".

The court case in question was an injunction to get certain ISPs to release the names of accounts who had been shown to share files over the internet. In the case, the recording industry failed to show that they represented the copyright holders for those files (they had file names, not contents). And they failed to show that the copying was not for personal use. Further they failed to show that making a file available *to others* on the internet actually infringed copyright (since *they* weren't the ones who were copying it).

So, they failed to show any evidence at all that copyright infringement had occurred. And so the judge did not grant the injunction.

Right now the Canadian government is making ammendments to the copyright act. There are no details on what those ammendments will be. But one can guess. Government officials have been meeting with recording industry lobbiests to consult on the issue. The government even paid hundreds of dollars to take lobbiests out for lunch. So far they have refused to meet with pro-user lobbiests.

Re:Piracy Tax?

[GeorgeS069]

why not have the CPCC pay a tariff towards each legally purchased CD?
Kind of like a reverse tax.
They collect the money and then subsidize the CD sales.
That would make sure that the truly more popular artists receive the money according to sales and not the radio stations play lists.
just an idea but,it might work.

The RIAA Has To Sue....

[8127972]

..... Or the terrorists win.

Double dipping is why they can't sue in Canada

[metoc]

The CRIA (Canada's RIAA, or more correctly the multinational IAA as they represent no Canadian artists, producers or studios) hasn't been suing Canadians because of the tariff on CD already makes us pay for being music pirates (the CRIA/RIAA says so). The CRIA convinced the government to put the tariff in place over a decade ago, and the CRIA knows it will get its hiney kicked if it is tested it in court.

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.

Re:Yeah...

[Anonymous Coward]

There is no way for a person to win against the machine.

Especially with that attitude...

One point: computer geeks and programmers need to get used to the "feces flinging" technique of the lawyers. Write a program with multiple logically inconsistent statements and it will collapse in a screaming heap. Doing that is anathema to most programmers. But when mounting a legal defence (or attack), you're allowed make logically incompatible statements. You just keep flinging feces until something sticks. The fact you're arguing the case should be dismisseddoesn't stop you arguing that the damages awarded should be reduced 100x - EVEN THOUGH it's nonsense to talk of damages because you're arguing the case should be dismissed. Many computer geeks just don't get that. You're not programming a consistent logical system, you're feces-flinging. Remember that, and you can start to win much more often against the lawyer/CxO scum.

Re:Yeah...

[Rydia]

I like how providing people with multiple arguments about why you are right and allowing them to choose which ones they believe have merit makes someone scum.

Re:Yeah...

[miyako]

yeah, it's sort of like how you see something in code every once in a while like:

int x=5;
if(x==5)
{
doSomething();
}
else
{
doSomethingElse(); //never should happen
}

It's essentially saying, "the fact is that X, but if all logic fails we'll recover as well as possible instead of just freaking out and dying".

Re:Yeah...

[Plaid Phantom]

Suddenly all the rhetoric, philosophy, and law that I've read in school is falling into place. It's like a giant Tetris chain.

Fascinating Idea, But...

[smallferret]

Could someone who actually IS a lawyer respond about the validity of this defense? I read it and say "yeah, that makes sense," but that doesn't mean anything because I don't know all of the ins and outs of litigation.

Re:Fascinating Idea, But...

[NewYorkCountryLawyer]

Mr. Greubel's lawyers are Charles Mudd of Chicago, and John Browning of Dallas. They are two really good litigators. John Browning's the guy who got the excellent order on hard drive inspections in SONY v. Arellanes, which I predict will serve as a model for all future RIAA v. Consumer litigations.

I wouldn't bet against these guys.

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?)

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.

Re:Bad complaint

[DragonWriter]

So they're alleging that they believe something ? Shouldn't their allegation be "Defendant illegally downloaded our stuff" and not "We believe the defendant illegally downloaded our stuff".

One initiating a lawsuit is not required to have evidence establishing the truth of every claim before filing a complaint (that's what discovery to develop evidence and trials are for); those things that the plaintiff does in fact believe and will seek to establish as fact, but which the plaintiff cannot state as certain facts, are often qualified in complaints as being stated on "information or belief" or some close variation on that phrasing.

It's not bad writing, its domain-specific writing.

If I were the judge I'd be included to say "Believe whatever you want, case closed!"

Its probably a good thing you aren't a judge, then.

Re:Jury trial

[NewYorkCountryLawyer]

We don't need jury nullification. The plaintiffs have no case.

Terminology

[NewYorkCountryLawyer]

Just for the record, the document is called an "answer", not an "answering statement".

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.

Re:Bad complaint

[DragonWriter]

I'm not saying they need evidence, I'm saying they need to clearly and succintly explain what the alleged tort is. Instead they claim that they have a belief. I've seen a bunch of complaints and they aren't usually worded like this.

I've seen a bunch of complaints, and they are a mixed bag, but references to "information and belief" aren't all that uncommon. Here are a few examples from a quick googling:

Raytheon v. John Does 1-21
Roadrunner v. Network Solutions
US v. Olivia Alaw, et al.
Macromedia v. Adobe Systems
British Telecom v. Prodigy

The use of allegations on "information and belief" is very common.

Re:Bad complaint

[NewYorkCountryLawyer]

I agree with you that the complaints are defective.

They're all the same by the way, all 20,000 of them.

So far though 6 out of 6 judges have said that this vague complaint is ok for the first round.

We're still waiting for judge number 7, Judge Karas, in Elektra v. Barker.

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:Good idea

[NewYorkCountryLawyer]

On the contrary. Kazaa has no case against him. But he has a case against Kazaa for getting him into this pickle. See discussion by judge in Interscope v. Duty at Section C, pages 4-5.

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.

Re:No CD tax in the US

[Deagol]

The point is that these agencies are pro actively taking money from all of those who purchase media with the aforementioned media "tax" under the assumption that people are infringing copyright in some way with the media. If they have the omniscience to know that everyone is making unauthorized copies (and dinging us all for it when we buy media), they should suck it up and let everyone enjoy what they've already paid for, as they do in more enlightened countries like (I believe) Canada, and not be allowed to pursue downloaders/seeders. If they can't stomach loosing their settle-out-of-court-extortion income stream, they should lose any tariffs on media.

I guess my broader suggestion is that someone needs to challenge either the tariffs or the lawsuits, as the RIAA/MPAA shouldn't be able to have their cake and eat it, too.

Reminds me of my wife's granddad.

[Ungrounded Lightning]

Cool - send them a twenty and go download some more stuff.

Reminds me of my wife's granddad and the KKK.

They objected to his choice of wife. One of their members came out to his farm (as he was mending a fence with wife's pop - then a toddler - holding a tools for him) and ordered him off his land and out of the area. He waited until the guy turned around, then beat him unconscious, loaded him onto his mule-drawn wagon, and set the mules walking back home.

Sheriff came out to demand he come into town to be tried for assault. He said he'd be in the next day.

Came in and went to the judge's office. (Judge, of course, also KKK.) Judge told him the fine was something like $100 (a small fortune at the time). He laid down twice the fine.

"What's that for?" asks the judge. "I figure I'll pay for the next one in advance."

Then he beat the tar out of the judge.

(How he avoided the lynch mob is a separate story. And don't try this at home - or in court - these days, kiddies.)