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Tenise Barker Takes On RIAA Damages Theory
NewYorkCountryLawyer writes "Tenise Barker, the young social worker from the Bronx who took on the RIAA's 'making available' theory and won, has now launched a challenge to the constitutionality of the RIAA's damages theory. In her answer to the RIAA's amended complaint [PDF], she argues that recovering from 2,142 to 428,571 times the actual damages would be a violation of Due Process. She says that the Court could avoid having to find the statute unconstitutional by construing the RIAA's complaint as alleging a single copyright infringement — the use of an 'online media distribution system' — and limiting the total recovery to $750. In the alternative, she argues, if the Court feels it cannot avoid the question, it should simply limit the plaintiffs' damages to $3.50 per song file, since awarding more — against a single noncommercial user, for a single upload or download of an MP3 file for personal use — would be unconstitutional."
Maybe this is a step in the right direction at least?
Neither do they, and it should be kept at a MANAGEABLE level. The thing is, even if a person does have evidence that they only distributed it *once* the RIAA still wants many times the damage they actually perceive.
Show this to your friends and family that don't know what a real hacker is
it's not about downloading a song. The price of downloaded music is well established at $0.99 (or less). DISTRIBUTING is the issue and unless she has logs which show exactly how many times she distributed it, she can fuck off.
Actually, if this case is like many of the others, and the RIAA has proof that she distributed the song to Media Sentry, then they have proof that she distributed the content to 1 other person, a single copy right violation.
It's just a civil case, so they don't have to prove absolutely that she distributed to hundreds of people, but they have to make some effort at showing that there were more distributions than just the single unauthorized distribution that they authorized...
-Rick
"Most people in the U.S. wouldn't know they live in a tyrannical state if it walked up and grabbed their junk." - MyFirs
...I wonder how much pain it might become, to settle? After all, if the cost of settling my (alleged, unsubstantiated) piracy becomes a mere forty dollars per album, I might not be so disinclined to just sign a piece of paper and fork over a tiny bit of cash.
~ C.
I'm sure the RIAA will have some excuse as to why this isn't unconstitutional, and was in fact the idea the Founding Fathers had in mind when they set up copyright. Good arguments, but I'm a touch wary that the judge will just ignore any constitutional issue. And even if they do listen, the RIAA will try and get out of it so no precedent can be made.
Cynical Idealist
It'll be a suddenoutbreakofcommonsense when the RIAA realizes how stupid they're being...which will be when they're all dead.
An AC troll posted a nice line on an article yesterday I won't forget:
"You can stop eating to lose weight, but you'd have to stop breathing to lose stupid"
So true.
"When information is power, privacy is freedom" - Jah-Wren Ryel
I have no idea what any of that means, but go Tenise!
Do you feel the same when GPL software being illegally distributed?
Do you even lift?
These aren't the 'roids you're looking for.
This would fit nicely with the puntative damages model that are currently used for financial, anti-trust, and counterfeit fraud called "Treble damages".
Since Itunes can show that the market value of a single MP3 is approximately $1, then a fraud penalty of $3 per song does not seem unreasonable, providing that the prosecution can show that the song was actually downloaded that is...
-- Scott
Imagine if megacorps only paid damages whenever they harmed someone.
Actually, if this case is like many of the others, and the RIAA has proof that she distributed the song to Media Sentry, then they have proof that she distributed the content to 1 other person, a single copy right violation.
Actually, my impression is that from a legal standpoint, the distribution to Media Sentry isn't a copyright violation because Media Sentry is the authorized agent of the copyright owner. And before everyone jumps in, remember that this is law we're talking about, so common sense doesn't necessarily apply (as we've seen in some of the other results of RIAA trials).
I think this deserves the "Suddenoutbreakofcommonsense" tag!
I mean, *not* charging thousands of dollars for each song? Brilliant!
I steal signatures. This one used to be yours.
3.50 seems like it's good, until you get to the logic that if other people downloaded it from the defendent's machine, then 3.50 per song per downloader from there might be prudent. Nice theory, though. I wonder how far it will get.
---- Teach Peace. It's Cheaper Than War.
It depends on what you mean by 'illegally' distributed.
Show this to your friends and family that don't know what a real hacker is
Yes.
DISTRIBUTING is the issue and unless she has logs which show exactly how many times she distributed it, she can fuck off.
If the RIAA does not have proof that she distributed to the number of people they claim she distributed to, it can fuck off as well.
The only argument of which I'm currently aware is that they state the excessive damages are necessary to deter others.
It may be fortunate that this is the kind of rhetoric that sells to politicians moreso than courts. The extortionate damages that IP holders currently seek is clearly intended not to simply deter people from violating copyright, but from even putting up a fight in the first place--as demonstrated by the way the RIAA handles these cases by offering to settle for a few grand or face the threat of an exponential lawsuit.
Otherwise you're just stating the obvious: yes, the RIAA will find a way to fight this. And the sky is blue and birds chirp.
The damages owed by Exxon for the Valdez oil spill were recently limited and substantially reduced because the court found the original damages excessively punitive. So if it makes sense for Exxon perhaps it also makes sense to apply a similar theory of limitation of damages elsewhere.
That depends on the context.
Is the GPL violation some kid who is giving the software to a few of his friends, but not allowing them to see the source? That's what's most comparable to this case.
Or is something like a large router company using linux to power it's newest router, making a ton of money off it, and then not releasing the source? That's totally different from this case.
Nice straw man argument though.
... I don't distribute a complete song? With torrents for example, if I were to upload parts of the song to 1000 people, but my share ratio were 1.00, what could they come after me for?
I'm critical, not cynical...
So, because she can't show that she distributed a song exactly, say five, times, she should be charged an absurdly high amount for each infringement? What happened to proving damages?
I think the problem is that the statute is not designed in a manner than can handle Napster and beyond peer-to-peer distribution. It is designed for instances in which an entity is making money off someone else's copyrighted work. Read the notes to the statute. It's pretty clear that Congress did not have in mind the possibility of someone sharing his or her individual music/movie/whatever collection with others on the Internet. Even Congress would not saddle a $150,000 fine on a person for sharing a $0.99 song.
friends might be the wrong term...
A few other people, unknown to the individual, given teh way file sharing works.
Self proclaimed typo king, and inventor of the bear destroying coffee table (patent not pending).
1) I can't remember anyone being sued for non-commercial distribution of GPL-ed software, and it's safe to assume that anyone distributing it commercially is trying to distribute it as much as possible, since every distribution is profitable.
2) The FSF, at least, will gladly settle for the distribution of the source code (in the case of GPL2 --- at least, this is what Eben Moglen claims were RMS's instructions to him while he was counsel to the FSF). This isn't "many times the damages they actually perceive".
Wouldn't the damages be limited to actual damages? Meaning that the RIAA would have to prove how many people they observed her distributing it to, then multiply by the cost of the song. If it is available for $0.99, then it would be X*$0.99.
But a reasonable request such as that is probably not welcome in our courts.
Slashdot's rate-of-post filter: Preventing you from posting too many great ideas at once.
That when a person downloads a song/cd illegally and the RIAA nabs then for it, the money pocketed from the case doesn't go to the artist that's being "ripped off" Does anyone know what a band/artist makes off of a single CD sale? it is PEANUTS compared to what the record companies are making. Now this needs citations, but i remember reading somewhere that the average artist gets a whopping 10 cents per CD sale. Bigger name artists such as a Metallica (who just so happen to be the highest grossing per/cd sale artist out there today) gets 25 cents. Now With that being said, the RIAA can piss off, and the record companies need to pay the artists more for their work, because it is, after all, the artists that keep these bastards working.
Stupidity only gets you so far, then you've gotta try
Everyone on the intertubes is one big happy family.
yes
"The cup is in turn designed for holding hot or cold liquids, and has an open rim and closed base." --US Patent #5425497
So I'll just say it on behalf of (most of) the slashdot audience.
Thank you. Thank you for doing the work that we didn't, couldn't or were unwilling to do. Thank you for carrying a heavy, unwieldy torch. Thank you. Thank you.
Thank you.
I thought that because the P2P user doesn't have a license to distribute, any distribution at all is illegal. Even if the distribution is back to the person who owns the rights originally.
Maybe Mr. Beckerman can chime in? Surely this isn't an unresolved question in law still.
Forget about the number -- it's whether she distributed any at all.
The RIAA's claim is based on the idea that if you make a file available, you are distributing it, regardless of whether you actually distributed it anybody.
The problem with the RIAA's claim is that it make distributors out of everybody who happens to have a song on a shared folder, even if an official "p2p" network isn't involved. Consider Windows file sharing: if "My Documents" on your dorm computer is readable by the universe, congratulations -- you now owe the RIAA thousands of dollars. Remember, it isn't a question of whether anybody actually copied the song, or even of whether you intended to distribute it.
Consider this even more bizarre situation: Your kid installs p2p software on the family computer, sharing a directly called "music," that includes only songs he wrote & recorded. Later, you decide to rip your CD collection and, not knowing that there's p2p software, you stick it in "music." Now, you owe the RIAA a bunch of money.
This would fit nicely with the puntative damages model that are currently used for financial, anti-trust, and counterfeit fraud called "Treble damages".
Yes, but what about the damages caused by tribbles? As we are all aware, songs are still sung on Qo'noS of the Great Tribble Hunt.
"The fight for freedom has only just begun." - Geert Wilders
Do you feel the same when GPL software being illegally distributed?
Do you think that a six or seven digit fine would really be just punishment for illegal distribution of GPL'ed software?
I want peace on earth and goodwill toward man.
We are the United States Government! We don't do that sort of thing.
The "distribution" right referred to in the US Copyright Act is a clearly delineated right "to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending". (See paragraph 2 of Ms. Barker's answer). I.e.,
-it has to be of actual copies
-they actually have to be disseminated
-the dissemination has to be to the public, and
-there has to be a sale or other transfer of ownership, or a license, a lease, or a lending.
In layman's terms, the RIAA's "distribution" claim is baloney.
Ray Beckerman +5 Insightful
http://www.cbsnews.com/stories/2008/06/25/supremecourt/main4208760.shtml?source=RSSattr=Business_4208760/
"Justice David Souter wrote for the court that punitive damages may not exceed what the company already paid to compensate victims for economic losses, about $500 million compensation."
Of course they chose to help out Exxon while avoiding giving help to others by specifically limiting the scope of their decision to maritime law.
from this lot:
http://www.mcspotlight.org/
It's remarkable that large corporations don't seem to realise that after enough people cave in to their crap, someone, probably poor, with nothing to lose will turn around and deliver a legal kick in the nuts.
Good luck to this person. McDonalds won on technicality but lost massively in PR terms. If the RIAA can make a big enough arse of themselves in public people may start to realise how redundant they actually are.
Hmmmmmm..... Deep fried and look like Squirrel.
It's just a civil case, so they don't have to prove absolutely that she distributed to hundreds of people, but they have to make some effort at showing that there were more distributions than just the single unauthorized distribution that they authorized...
IANAL but I have been involved in civil court cases. Strangely in those cases you had to PROVE actually damages. That means documented evidence showing you lost the amount of money you are trying to recover due to the direct actions of the person you are trying to recover it from. The RIAA mob had special exemptions made into law so they don't have to provide these proofs in copyright infringement cases. Like everything else related to copyright these days why the hell do they get exemptions to the rules that everyone else has to follow? If it were you or me we would not only have to provide evidence showing each download we were trying to recover money for but also show evidence that each of those downloads resulted in a direct loss of revenue of the amount we were trying to collect. The RIAA has to show that there was a possibility that someone may have download the material and then gets to recover thousands of times the amount of any even remotely possible actual damages that may have resulted.
Who is John Galt?
Aren't the RIAA demands based more on making a RIAA profit rather than a deterrence to others?
I wouldn't say anything was distributed at all, when no additional person/entity gains access.
If you and me were to throw dollar/euro bills to each other in Africa, we wouldn't be able to call it distribution of money. Not even if we threw around zero-cost copies of those bills.
Well if you want to get picky about it, the emails sent from the FSF and the browsing required in investigative work probably cost nearly as much as the bandwidth required from the offending party to upload the source code...in fact if the FSF made any long distance phone calls in the process, the offending party might be getting quite a deal.
Bloody penny pinchers.
"When information is power, privacy is freedom" - Jah-Wren Ryel
Even Congress would not saddle a $150,000 fine on a person for sharing a $0.99 song.
You mean until the members of Congress had lunch with their bribers, ahem, lobbyists ?
You mean I'm related to all the AC trolls around here?
Damn you, as if my self esteem wasn't low enough already.
I hate printers.
So does that mean:
1. A record store is distributing records (by selling them).
2. Blockbuster is distributing videos (by renting them out).
3. Joe who gives copies of his CDs to friends is committing copyright infringement, but is _not_ distributing.
4. Jane who makes her CDs available to Joe for copying (who doesn't accept them) is not "making available for distribution" and therefore completely innocent.
5. Jim who makes copies of his CDs available to a record store for copying _is_ "making available for distribution" even if the record store doesn't accept them.
From the article:
Innocent infringement : defendant was not aware of any copyright infringement, and upon information and belief some or all of the copies which she downloaded did not bear copyright notice.
This looks very weird - when people rip CDs and DVDs, they rarely (if ever) attach any copyright notice to the resulting mp3 and avi files... Would it mean, that because the copyright notice has been removed (it was on the CD case for sure, or the load screen of the DVD), then you don't know you are infringing? As much as I applaud the rest of the complaints, this is just silly. On the internet it is mostly: "everything is copyrighted except if it's explicitly noted", not the other way around...
On the other hand, if it gets accepted, then everyone is pretty innocent from this point on... Would be fun. :)
Awe, I love you too. *HUG*
I hold you in the deepest regard, but it seems to me that you didn't answer the point in question, which is only whether agents of the copyright owner can be legally considered "the public". My understanding, from reading a lot of the material on your blog, is that they aren't.
(Your answer was equivalent to "for distribution to occur, A, B, C, and D must be all true, and they all aren't", whereas the question was whether C would be considered true for a download from Media Sentry. My apologies if you meant that none of A, B, C, and D were true.)
That is exactly what I mean. C'mon, you know I wouldn't lie to you like that -- we're family.
There may not be any damages at all. None of those distributions, even if they occurred, may have resulted in a single lost sale because people who download files may not have bought the song had the free download not been available. Then the recording industry is out zero money overall.
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
theoretically, everyone is at least distantly related to everyone else on the planet, though you would need an utterly huge family tree and consanguinity table to determine the relationships.
upon the advice of my lawyer, i have no sig at this time
Do you feel the same when GPL software being illegally distributed?
The cases are exactly the opposite. In the case of a filesharer, the public (i.e. us) benefits at the "expense" of a company (and i quote it because it's not proven that the companies lose anything).
In the case of a GPL violation, a single company benefits at the expense of the whole public, who DO have to pay for some software that should be free.
Lawsuit Ouroboros?
While I certainly agree that the simple act of making a copy of something available shouldn't constitute copyright infringement, what about the making of that copy in the first place? I mean, it's pretty hard to argue that making something publicly available qualifies as personal or private use of that thing, and I don't think you could make an argument that making it available constitutes research, criticism, or parody, so I doubt fair use would apply either. If neither of those conditions apply to a copy, then according to the Copyright Act, one requires permission from the copyright holder in order to legally make a copy, which I don't think Barker ever actually got. Obviously, if it was an original copy of the work that she made publicly available, there's no copyright infringement, since that copy was made by an organization expressly authorized to make copies for distribution. If, however, _she_ made a copy of the work to place on her computer system, which in turn was what was shared, wouldn't the making of that copy in the first place still be copyright infringement on account of the copy not being either authorized or the intended usage of that copy otherwise making it exempt from infringement? Unless the argument is that she never intended to publicly share the work (although I know that one's actual intent can be virtually impossible to prove in court without a confession, it's not uncommon for there to be aspects of one's intent that can still reasonably be inferred based on the circumstances that surround the act being examined), I'm therefore inclined to think that this suit was actually won against the RIAA on some sort of technicality that the RIAA's lawyers were ill equipped to respond to rather than an actual analysis of whether or not copyright infringement actually applied in the first place.
File under 'M' for 'Manic ranting'
I would imagine their logic as, "They distributed an illegal copy to Media Sentry, so it's highly likely they distributed copies to other users."
Which of course doesn't actually prove that a copy was distributed to anyone else, but does seem highly likely.
That's my take...
That's the issue of what's being discussed here: actual damages vs. statutory damages. I may be oversimplifying, but statutory damages are values set by law and are often used when calculating the actual damages isn't feasible.
Statutory damages are tools of the law and aren't inherently good or evil. We may dislike them when bad people like record companies use them, but one day down the road, you might be involved in a civil case where statutory damages come to your aid and are instrumental in righting a wrong.
The law presently puts statutory damages at up to $750 per work. The young lady in question would like to see that number changed to $3.50.
$3.50 would be a huge boon to file sharing enthusiasts, as the law of averages would be on your side. Share as much as you want, and if you're caught, you'd pay only $3.50 per track, no matter how many times it's been downloaded from your computer. That's only 3.5X the going rate for the track, and you can look at it this way: the odds of your being caught are probably less than 1 in 3.5, so (again, looking at the averages), it's a pretty good incentive to step up your file sharing.
Not that you asked, but I think $3.50 is too low. Either torts are going to be enforced or not; if they are, then the statutory damages should provide some sort of incentive to respect others' rights. I also think $750 is too high.
Sitting in my day care, the art is decopainted.
"The RIAA mob had special exemptions made into law so they don't have to provide these proofs in copyright infringement cases."
Do you have a citation for that? I thought that the statutory damages portion of copyright law predates the RIAA, but I might be wrong.
"If it were you or me we would not only have to provide evidence showing each download we were trying to recover money for but also show evidence that each of those downloads resulted in a direct loss of revenue of the amount we were trying to collect."
Not true per se -- the law protects us all. It protects copyright holders in general, whether the medium is music, movies, poetry, painting, novels or sculpture, and whether the copyright holder is a person or a company, rich or poor.
Lots of boats are being floated here. The precedent set by the "making available" arguments has the opportunity to benefit you as well, even if you're, say, a self-published author trying to collect damages from someobyd distributing your ebooks.
Sitting in my day care, the art is decopainted.
What level of damages have the FSF ever demanded for a GPL infringement?
Also FatPhil on SoylentNews, id 863
Give the U.S. Supreme Court's recent decisions regarding punitive damages and due process, she has a pretty strong argument.
In essence, the Supreme Court has held that awarding punitive damages that are more than 10x the amount of actual damages is out of line with the due process guarantees of the constitution. It follows that any mandatory award that is also grossly out of line with actual damages should be subject to similar constitutional problems. For those interested, check out Campbell v. State Farm, 538 U.S. 408 (2003). It was a 6-3 decision, with Scalia, Thomas, and Ginsburg as dissenters. Given the Roberts Court just gave a similar judgment in the Exxon case, it probably is still very good law. http://www.oyez.org/cases/2000-2009/2002/2002_01_1289/
... how to spell, "Denise?"
That means documented evidence showing you lost the amount of money you are trying to recover due to the direct actions of the person you are trying to recover it from.
The RIAA are recovering statutory damages, which are punitive to discourage other from committing the same offense. I'm not saying that the RIAA hasn't bought and paid for the laws which have established these exorbitant penalties, but the application of statutory damages in court is quite common.
I don't think statutory damages are uncalled for in this case, since otherwise they would have no legal recourse against downloaders even if they had incontrovertible proof, but the amounts they can impose are obscene. It's refreshing to see from time to time that something so obviously unfair turns out to be unconstitutional as well. I hope that happens in this case.
Those are my principles. If you don't like them I have others. -Groucho Marx
...could only ever be a problem waiting to happen if undifferentiated application of it were made to totally dissimilar media. This is the problem, and as long as congress allows itself to be bought cheaply and what politician doesn't, it won't change.
We're lucky actually. They could go stupid^2 and say that since the bits must stream through our CD player's circuitry, that it amounts to an unavoidable copying of the data, however temporary and ephemeral, because theoretically you could modify the buffer to copy the stream to another storage device. In that case, they'd demand a per-play fee each and every time. Make no mistake the **AA are equally moronic outfits.
The problem is not that the industry is rightfully defending against losses to thieves, it is that they are defending against theoretical losses based on unreasonable definitions, illogical reasoning, and just plain grandiose imagining. They imagine the most generous and profitable definitions and reasoning, like the insane example above, and then count those imagined might-have-been profits as losses.
They truly are insane. And they are unabashedly greedy in terms of artist abuse, making no secret of the pathetic share allotted to those who truly originate the intellectual property without whom the *AA people would have no income whatsoever. I have no problems ripping off slave-owners with delusions of grandeur.
If my grammar and spelling are off, I am [distracted/tired/careless] (take your pick)
1. A record store can sell CDs with no special license, thanks to the right of first sale, but can't legally make and sell copies of a CD without a specific license.
2. Renting is a copyright violation only for phonorecords. Blockbuster can legally buy DVDs and rent them out with no special license, but cannot legally do the same with CDs. No one said the law made sense.
3. Giving copies of CDs to a friend is a strange area. An actual IP layer could probably clarify.
4-5. "Making available" is BS, per this recent court ruling.
Socialism: a lie told by totalitarians and believed by fools.
A painting of a picture is not a copy. A set of numbers that might, if carefully translated according to a specific algorithm, produce a different but somewhat similar sound is not a copy either. In fact, with a decent string of random numbers and sufficient time to search out the algorithms, that one string of random numbers can be translated to sound quite like all the music ever recorded.
Same for movies. Transcoded content is a new work. This is opinion, net legal advice. If you want legal advice call a lawyer.
Help stamp out iliturcy.
Wow, dude, you got modded "funny". You can't catch a break, can you?
mcgrew's razor: Never attribute to stupidity that which can be explained by greedy self-interest
Copyright infringement attaches to the number of works distributed, not the number of copies made (except when escalating to criminal infringement).
Putting aside criminal infringement for the moment, it does not matter how many copies you distribute. That is to say, if I illegally distributed "Bananaphone" by Raffi 1,000 times I'm on the hook for one count of infringement. If I distribute "Bananaphone" by Raffi and "Stinkfist" by Tool one time each, that's two counts.
You missed the point completely. In points (1)-(3) it was irrelevant whether something was legal or illegal, the question was whether it is "distribution". When a record store sells CDs, that is _distribution_. Most record stores have the right to sell the records, so it is legal distribution, some might not, then it is illegal distribution, but whether legal or illegal, it is distribution. When you give a CD to a friend, that is _not_ distribution. Again, whether it is legal to give him the CD (it was your property, you kept no copies) or illegal (you just burned it from an illegal P2P download), it is _not_ distribution.
Points (4) and (5) then showed one case of "making available", but _not_ for distribution, and another case that was actually "making available for distribution" in the sense of the law. The RIAA's claim that "making available for distribution" is illegal isn't bullshit at all. What is bullshit is the little detail that "for distribution" doesn't mean what they claim it means.
That can't possibly work, can it?
As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
When the Supreme Court won't even do anything about medical malpractice damages limits, in a case like this where RIAA lobbyists have "relations" with senators and congressmen all over the place, the Supreme Court will *never* do anything to help out the average consumer.
Statutory damages are used as a means of scaring people/companies into behaving and actually do stuff with some level of thought. If you know that a possible lawsuit from someone who's gotten hurt by using your badly designed product might cost you millions, you'll think again before putting that product on the market without proper warning labels.
Example: McDonalds with their "WARNING:Hot Contents" label on their coffee cup.
Some cases, mostly cases of human injury, the "pain and agony" damages are not someting I'd say is easy to calculate, but they are still part of the "actual damages". Then on top of the actual damages, the offending party will often have to pay statutory damages, which are often multiple times the value of the actual damages.
And this is why the American judicial system can be so easily manipulated:
1)Hurt yourself
2)Claim your specific injury was not warned about in the documentation of the product
3)??
4)Profit
As you can see, this method is because of it's simplicity, used by both corporate America and the American populace.
She: Hey, are you a traitor? Me: No, I'm atheist.
The thing is "distribution" in the sense of selling given copy of a work, "distribution" in the sense of renting given copy of a work, and "distribution" in the sense of producing new copies of a work are each covered by different laws. There's no uniform sense in which "distribution" is legal or illegal. Also "making available for distribution" is different from "distribution".
If you serve a song in a way that a stranger can download it, that's clearly "making available for distribution", but it's just as clearly not per se evidence of actual distribution. There's no law against "making available for distribution", only against distribution (assuming the other rules aren't followed).
Socialism: a lie told by totalitarians and believed by fools.
That is a great argument, and I am on your side.
Here is my question: If I made copies of all my favorite music CDs and went to the local flea-market, and set up shop to sell the CDs, and I had not yet sold even a single one (because many people would be leery about buying pir... homemade copies), and the RIAA busted me before that first sale, then couldn't I still be considered a distributor?
Somehow, I think I would! Whether I sold anything or not, is irrelevant. But that is my initial, ill-thought opinion.
"They said I probly shouldn't fly with just one eye," "I am Bender. Please insert girder."
a single noncommercial user, for a single upload or download of an MP3 file for personal use
As I understand it, it's never been about your providing a single instance for a single copy.
The damages figure is calculated with the assumption that an average file, made available on a file sharing network, is downloaded x number of times. Multiplying the retail value of the file by 3 (typical for punative damages) then by the assumed figure, x, you reach the default award.
That implies congress accepted the assumption that the average was 250 copies were made ($1 x 3 x 250 copies = $750).
Yes, it's terribly unfair that they "assume" you've had each file copied an average of 250 times. Then again, if they had to prove every single instance, damages would generally be so paltry as to serve no dissuasive effect.
Yes, we can argue that we feel it shouldn't be serving a dissuasive effect. We can argue that the RIAA should just have to suck it up. But, the way the law works, the legislative branch decides what should and shouldn't be the penalty, the judicial branch gets to stop it if it's grossly unfair and, if we still don't like it, we the people can vote in a different legislative branch.
It also raises the spectre, on a pay per infringement basis, that all the RIAA then has to do is write a script that downloads each file 10,000 times and they now go for $1 x 3 x 10,000 proven copies you made available for $30,000. In some ways, a fixed $750 or whatever the number may be, saves us from an even more abusable system.
And, no, as I understand it, "entrapment" isn't a defense against a civil entity - only if the police do it to you.
Would distribution of an iTunes track (where no physical media ever existed) constitute an actual copy? How about a transcoded file? If I convert a music track from Apple's format to an MP3 ... is that still an actual copy, legally speaking?
The higher the technology, the sharper that two-edged sword.
I've said this in a post in another story, and I like that post so here it is. This applies perfectly to bit torrent, but also to most P2P techniques:
The "average" ratio on, for example bit torrent should always be 100% since everyone downloading is getting the file from someone else that downloaded it. I guess the original seeder would put the ratio slightly above 100% but I'm sure you get my point.
The thing is that average is likely propped up by a small minority of high ratio users and your average john doe would have a low ratio. From reporting here, the RIAA has been going after average people rather than high ratio people. at a guess I'd say my ratio never topped 80%, which is pretty good IMO as my max upload was 1/4 of my max download. My point is that most people will only ever upload maximum 1 CD for each CD. Even with double dipping by charging both uploader and downloader it would make most people liable for 2X[cost of CD] not 100,000 X[cost of CD]
It looks like ScuttleMonkey dropped the ball, now I'll never know what department this is from! T_T
Sendou Wave Kick!!
Wow!! Way to propagandize it!! Too bad you're a few decades late for the war - Hitler would've been impressed by your skills.
Oh, wait, nevermind - you didn't come up with that argument. You're just regurgitating someone else's.
What are you babbling about, and how exactly is my post incorrect or attributable to someone else?
It's not enough to bash in heads, you've got to bash in minds. - Captain Hammer
it's not about downloading a song. The price of downloaded music is well established at $0.99 (or less). DISTRIBUTING is the issue and unless she has logs which show exactly how many times she distributed it, she can explicative deleted.
If she has residential Internet service, it is easy to prove a maximum transfer that could have possibly happened. So far the awards using your logic would have been for 100% upload saturation 24X7 for many decades. This is very unlikely. The case is about excessive damages far beyond any possible reality.
The truth shall set you free!
In other words, the only reason they've been getting away with this for so long is uninformed judiciary.
In other words, the only reason they've been getting away with this for so long is uninformed judiciary.
Not really. The only reason they've gotten this far is that there haven't been more defendants fighting back. Once properly briefed, the judges are getting wise to what is going on. E.g., compare this decision, against a litigant who had no representation, to the subsequent decision in the same case, rendered after the litigant and the Electronic Frontier Foundation brought some of the applicable authorities to the judge's attention, or take a look at Judge Davis's painful realization in Minnesota that he had been misled by the RIAA's lawyers into committing a "manifest error of law".
Probably, neither of the initial judicial errors would have occurred had the issue been properly briefed in the first place.
Ours is an adversary system of justice; only if defendants fight back will the truth come out.
Ray Beckerman +5 Insightful
Incest is wrong.
-- I ignore anonymous replies to my comments and postings.
That is a great argument, and I am on your side.
I don't belive you, because you use an obviously flawed analogy that seems to lean to the opposite side.
Here is my question: If I made copies of all my favorite music CDs and went to the local flea-market, and set up shop to sell the CDs, and I had not yet sold even a single one (because many people would be leery about buying pir... homemade copies), and the RIAA busted me before that first sale, then couldn't I still be considered a distributor?
You should be busted.
Now, someone that has a legal copy on their computer has made 0 copies. In your example, the person made actual illegal copies themselves. In the post you are responding to, no one took an action with the intention of distributing copyrighted material. In your example, the person went to a distribution center and "set up shop" to distribute them. In the previous post, any infringement would be not for profit, in your example, you are intending to sell them.
So, because you analogy is wrong on almost every point, it proves nothing with regard to unintentional non-commercial "distribution" when no copies can be shown to have been illegally made. It just tends to make me think you are a liar when you claim you are on his side. Otherwise, you'd have been able to see all the flaws in your analogy. If you are hung up on whether "distribution" took place in your analogy, it's simple. Copies were illegally made. In the previous one, no copies were illegally made. If you were on his side, I think that point wouldn't have snuck by you.
Learn to love Alaska
this really isnt flamebait; its the truth. if i had modpoints you would have them. cry all you like the punishment isnt for downloading its for uploading and spreading it. who knows how many people take the file you give them and share that around?
I hate the RIAA, but the same thing applies to software, and guess what I'm a software dev, and I imagine many of you might be. What would you do if everyone started giving away your product for free without your consent?
I don't care for the methods they take, I don't care for the prices they charge. But my recourse isn't to share their stuff with others, its to not buy the product. If you stop buying it and everyone else does the market takes over.
There's a reason punishments aren't nice, because they are a DETERRENT. If the fine was only 3.50 do you think that would stop anyone from doing it?
If the punishment for drunk driving was just a 500 dollar fine do think that would deter people? (not that the current punishment seems to be enough either...)
It's really simple, you don't want a speeding ticket, you don't speed. If you don't want late fees from bill collectors, just pay your bills on time. And if you don't want to get sued by the RIAA don't engage in illegal activity.
If everyone who complains that its illegal and downloads and uploads the quetionable media spent HALF of that time doing something proactive about the problem like letter writing to public officials or protests, boycotts of purchasing RIAA products etc something might actually get changed.
"Jazz isn't dead, it just smells funny" ~Frank Zappa
EdelFactor
You're right--there's no doubt that they're hypocrites.
What I wonder is whether they won that argument when the shoe was on the other foot? I don't have any way to see whether or not they won that particular point.
i tend to doubt it; wouldnt that be some parallel to "intent to distribute"
isn't that why despite knowing that a drug dealer HAS drugs in mass quantities that the cops need to catch them in a sale in the ACT OF DISRIBUTING.
busting someone for merely having a file sitting a shared folder sounds a lot like pre-crime to me. And we all know how well that worked out :-P
then again we are exagerating a little here; private use in your own home is going to be next to impossible for them to enforce / prove even forgetting the fair use aspect.
personally I think we should have some fun testing the reasonability of some of these copyrights.. anyone familiar with Cage's 4'33" ? I would love to see the RIAA try to prosecute someone for "distributing" that. too bad its probably in public domain now
"Jazz isn't dead, it just smells funny" ~Frank Zappa
EdelFactor
Why would someone illegally distridute something that is avalible to the public for free?
An SQL query goes to a bar, walks up to a table and asks, "Mind if I join you?"
you can distribute technically INFINITE copies. You may have to pay Sony 60% of your sale price, but, as MS showed Looking Glass, just give it away and pay them 60% of $0.
The rhetoric for asking the statutory damages so high was, when the law was debated, put down as the warehouses making *and selling* thousands or millions of copies illegally pressed. When you're selling a thousand CD's for a dollar, statutory damages of $150,000 per isn't over the top.
But if one P2Per is sharing with 1,000 people, then how many sharers do you need to get the world sharing?
1->1,000
1.000->1,000,000
1,000,000->1,000,000,000
So you could give 1.6th THE ENTIRE WORLD a copy with 1,001,001 filesharers.
But the damages are set as high as 500,000. If that's the upper limit, then it goes:
1->500,000
500,000->250,000,000,000
Hmm. So you run out of people to share to with a little over 50,000 sharers.
Well, if you prefer, what if I post an unmodified GPLed program on my personal website, but don't publish the source as well?
Hell, I've actually done that before, packaging 2-3 tools I use to pass along to some friends who asked for them. The files just happen to lie there available for basically anyone, though.
IANAL, but yes, for a couple of reasons. First, the performance itself is copyrighted, so it cannot be distributed, no matter the encoding. Second, even if you could somehow produce something that wasn't an equivalent performance from the original, then the result would likely be a derived work under copyright law and still be owned by the original rights holder.
...how come Tenise Barker is doing all the effective work?
My position is that this is not distribution. You're still liable for copyright infringement, however, because you created the copies.
The copyright statute differentiates between distributing a work and offering to distribute it. In 17 U.S.C. 101, for example, "publication" is defined as either actual distribution or "offering to distribute." The two are not the same thing.
A copyright holder has several exclusive rights -- create copies, distribute a work, public performance, etc.... There is no exclusive right to "offer to distribute." There is only actual distribution.
That's my view -- the RIAA has a different view and courts have held both ways.
Bill Patry, copyright scholar, has a good post on the topic at his blog: http://williampatry.blogspot.com/2008/04/recent-making-available-cases.html
I hate the RIAA, but the same thing applies to software, and guess what I'm a software dev, and I imagine many of you might be. What would you do if everyone started giving away your product for free without your consent?
People are already giving away others software for free.
The software industry's response to that is to riddle the software with crippling copy protection that doesn't deter the pirates but annoys the legitimate buyer and drives them to pirate the software instead because it causes less hassle.
Yes punishments are there as a deterrent, yes they should hurt.
What the deterrents shouldn't do is completely devastate the deviant, destroy any chance they will ever have at a decent life and send them into eternal debt.
Any deterrents should be in proportion to the actual crime. If you drive drunk you risk other peoples lives and wellbeeing that is something very serious and should naturally carry a MUCH steeper deterrent than depriving somone of $0.99 no matter the number of infringements in the latter case.
Get serious. In every fucking discussion regarding the RIAA, someone plays spin doctor and tries to twist the intent of copyright law as some evile corepirate nazi tool to rake in the dough. In this discussion, it was your turn. Just be happy with the fact that you were successfully able to whore yourself out for 5 shiny new karma points by doing so.
I would have suggested that if you read /. more, you would have been familiar with this argument, but I saw no need to point out what you just demonstrated.
GPL software is not about making money, but about sharing ideas. When GPL software is illegally distributed, there is no financial damage, but the intercourse of ideas is damaged. The remedy is to force the violating party to share. Of course, there need to be punitive damages--if there's only a 90% chance of getting caught, then you are better off trying to get away with it. So punitive damages could be financial (and therefore somewhat arbitrary) or maybe forcing the violating party to place between 2,142 and 428,571 times the originally GPLed code of its own, proprietary code, under the GPL.
"The biggest problem with communication is the illusion that it has taken place."
Ok, good points. Except, I was not really trying to make an analogy; I was asking a question.
No, I really am on his side. I think the whole thing is crap anyway. Just posing questions.
But, let me modify the hypothetical just a little, to make it like an analogy:
Suppose instead I had a booth at the flea market, with a large library of all original CDs, and a duplication machine. I have a sign on the booth that says: "CD library - access $5/hour. Duplication machine rental - $3 per hour. Bring your own blank CDs."
Now am I a distributor? Bustable? I made it available for duplication. Is that more analogous to sharing files?
"They said I probly shouldn't fly with just one eye," "I am Bender. Please insert girder."
Get serious. In every fucking discussion regarding the RIAA, someone plays spin doctor and tries to twist the intent of copyright law as some evile corepirate nazi tool to rake in the dough. In this discussion, it was your turn. Just be happy with the fact that you were successfully able to whore yourself out for 5 shiny new karma points by doing so.
I would have suggested that if you read /. more, you would have been familiar with this argument, but I saw no need to point out what you just demonstrated.
I practically quoted the Constitution as to the intent of copyright law. How is that twisting it? The fact that the public has to keep giving longer and longer terms and more draconian restrictions on copyrighted works, for no apparent benefit, is the problem. Come back when you can dispute that.
It's not enough to bash in heads, you've got to bash in minds. - Captain Hammer
Now am I a distributor?
Is the library a distributor for having a copy machine next to all those books with a little slot that takes a dime per copy? The courts have ruled no.
I made it available for duplication. Is that more analogous to sharing files?
Yeah, and has been ruled explicitly legal in the context of a library providing a copy machine next to lots of copyrighted material. I'm sure the courts would try to find fault with your example, but in everything that's actually be found in relation to someone actually doing that (libraries) it was perfectly legal.
Learn to love Alaska
...let me modify the hypothetical just a little, to make it like an analogy:
Suppose instead I had a booth at the flea market, with a large library of all original CDs, and a duplication machine. I have a sign on the booth that says: "CD library - access $5/hour. Duplication machine rental - $3 per hour. Bring your own blank CDs."
Now am I a distributor? Bustable? I made it available for duplication. Is that more analogous to sharing files?
Good hypothetical (at least I hope it's hypothetical).
Ray Beckerman +5 Insightful
Paying has little to do with it. It's fine to charge for Free Software so long as the source is available at reasonable duplication costs.
In reality, a GPL violation is closer to the use of unlicensed samples of copyrighted works to produce a derived work. Or at least producing a compilation album consisting of unlicensed copyrighted tracks.
In practice, if people put the binary disks from any given Linux distro up as a torrent or other p2p, they have exactly zero chance of ever being sued.
If a kid makes some changes to GPL software and makes those binaries (only) available, there's a tiny chance he'll get a nice email politely explaining the GPL to him and asking that he also post the source. Otherwise, nothing will happen at all.
The kid's p2p program is sharing /home/kid/music. Your ripped music collection is in /home/you/music. You don't owe the RIAA money, because you never shared any of their stuff.
Do you feel the same when GPL software being illegally distributed?
Considering that In all suits I am aware of over GPL, the objective was a cessation of the violation (implicitly part of losing against the RIAA) and making it right for example, by offering up the source and perhaps legal costs, then yes, this would be entirely consistent.
So, in short: YES, exactly the same.
Certainly a hypothetical. But: here is where I was going with it: suppose we constructed a carefully thought-out lawsuit bait that was directly applicable to what people know, but very analogous to what happens with computers online?
Then, we could "trick" the courts into rendering a clear and sane decision (but not necessarily the one we want) that could be applicable to the computers and the file-sharing world as well. And, it would be a simple enough situation for any jury to understand.
So, I go to the flea market as I said, and wait for the RIAA to bust me; but make sure everything is done correctly, so as not to taint the results.
Then maybe it'd put a stop to this mess once and for all.
"They said I probly shouldn't fly with just one eye," "I am Bender. Please insert girder."
I practically quoted the Constitution as to the intent of copyright law. How is that twisting it?
Really?? Didja?? Let's see, now - you said:
Should read: "a legal fiction created for cultural and scientific stimulus, and altered over the last few decades to provided an unending stream of income to the entertainment industry for work that somebody did decades ago, all at the expense of the public."
Kinda sarcastic tone for practically quoting the constitution, dontcha think?? Can you copy and paste that part into your reply for me please? I'm having a hard time finding it in my copy.
The fact that the public has to keep giving longer and longer terms and more draconian restrictions on copyrighted works, for no apparent benefit, is the problem.
Hmmm, Draconian, ehh?? (By the way, it is properly capitalized, since they are named after a person, Draco.) You should know how overused that word is here. Sounds to me, like you're copying other people's posts again. Stop, you're only digging your hole deeper, you fucking tool.
And what are Draconian restrictions? Draconian refers to the severity of the punishment for breaking the law. Maybe you should actually look up the word in the dictionary, before trying to use it.
Come back when you can dispute that.
Come back when you can actually give me an example of why you think they are Draconian laws. It's easy to make a blanket statement and call them Draconian when you don't actually have to support why you think they are, innit? When you do that, I'll actually have something to dispute.
And, if you're not too scared to try, remember it should be in the form of a statement (ie. - I feel they are Draconian laws because . . .) and not in the form of a question (ie. - Duhh, why should they, uuh get, like, free money, like, forever??). The former is an example of your opinion; The latter is just an attempt to deflect the question back to your opponent so you don't have to provide one.
In the meantime, I'll just continue to assume what I've assumed all along - that you're a cheap bastard who's looking for a way to score some free shit.
heh.. go away troll..