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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."
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.
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
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.
> ...and that would be just as fucked up?
Well, yes, exactly --- that would be just as fucked up as RIAA's behavior.
> Honestly, I fail to see your point.
No you didn't fail, that was my point. You just didn't understand that :-)
you had succeeded in seeing it.
Perhaps you didn't read the whole thread? Here's a summary:
1) AC posts pro-RIAA flamebait
2) PunkOfLinux claims that the monetary damages that RIAA wants are out of proportion
3) larry bagina posts a flamebait-ish post in a "pro-GPL camp is just as bad" vein
4) I reply to (3) saying that the FSF only sues for distribution of source, which is
not many times out of proportion like PunkOfLinux claimed RIAA wanted
5) AC nitpicks that many times zero money is zero money
6) I reply to the nitpicking that AC is multiplying the wrong thing, that the proper
analogy would be to demand many times the number of source code distributions
as opposed to many times the price of the software (btw he ignores the fact that
the distributing company might have paid money to someone to develop or enhance
the GPL-ed software, but I didn't post about that). I did not claim this would be a
"good thing" --- analogies to bad things (RIAA behavior) are almost never good.
Sorry I didn't understand your question. In my opinion, under a long line of cases, a copyright owner's agent's making a copy for himself would NOT satisfy the third prong.
Ray Beckerman +5 Insightful
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/
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