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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 "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
> ...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/