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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."
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
That's for downloading an individual copy. Call up Sony and ask them how much a license to distribute a song is.
Do you even lift?
These aren't the 'roids you're looking for.
... 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...
I know the analogy isn't identical, but bear with me.
Imagine that water was a controlled, licensed, "copyrighted" material, and you set up a publically accessible water fountain at the side of the street (whether you intended it to be "public" or not is irrelevant -- it's accessible). How do you know whether someone walked by and 1) took a few sips, 2) someone drove up a water tanker and sucked down thousands of litres for resale commercially, or 3) nobody but you drank anything, which may have been your original intention anyway?
The RIAA is arguing option #2, and evaluating potential damages on that scale: enormous. The judge in the case has effectively said, no, you have to show that damages on that scale or whatever scale is argued have actually occurred. The fact that someone else *could* have used an enormous amount is irrelevant -- you have to *show* the amount of damage incurred. The contrary claim is that a fair amount of damages are ~3x the "value" for the act that you know: in this case the copy of a track that the defendant made from the original CD or that they downloaded from someone else without permission from the copyright holder.
If the RIAA can show that someone enabled others to download millions of copies of the relevant tracks, then perhaps they could probably push for more actual damages, but they haven't done that. They just offered this lazy "making available" theory that the moment you have shared tracks via P2P (which half the people out there don't even understand involves uploading as well as downloading), you've infringed thousands or millions of times.
Having brought a similar challenge to Microsoft's use of an anti-piracy statutory damages provision, I can only wish Ms. Barker good luck. The U.S. District Court for the District of Colorado issued a brief, two page ruling which essentially said that Congress has the power to impose big statutory damages because "the statutory damages remedy recognizes the difficulty in quantifying the harm that may result from the illicit distribution of [the subject of Microsoft's lawsuit] which may be used in the sale of non-Microsoft products to the confusion of the public and damage to Microsoft's goodwill and business reputation. These statutory damages are comparable to those available for copyright infringement under 17 U.S.C. s 504(c)."
Good luck Ms. Barker.
--AC
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.
You don't even need to go that far afield; one of the plaintiffs in Ms. Barker's case, UMG Recordings, Inc., made the very same argument when it was a defendant, saying that a jury verdict for 10 times the amount of the actual damages was excessive.
I.e., when it's a defendant a multiple of 10 is too much. But when it's a plaintiff, a multiple of 428,571 is okay.
Does the word "hypocrite" come to mind?
Ray Beckerman +5 Insightful
If you don't mind "forking over a tiny bit of cash", why don't you stop being a cheap asshole and buy your music in the first place?
Maybe not
Aren't the RIAA demands based more on making a RIAA profit rather than a deterrence to others?
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.)
Imagine if megacorps only paid damages whenever they harmed someone.
"Only"? I would be very, very, very happy if we could get large corporations to do this. As it is now, it's very tough to nail them for outright murder, let alone relatively petty crimes like fraud, theft, and illegal surveillance.
>for the record, $50,000 for free coffee in a year is ~$191.57/day spent on coffee
Not even enough to provide 100 employees with a daily Grande Regular Coffee from Starbucks, at the retail price.
-fb Everything not expressly forbidden is now mandatory.
The only argument of which I'm currently aware is that they state the excessive damages are necessary to deter others.
Correct. The reason for the statutory minimum and and punitive damages in general are to say "hey what you did was wrong, don't do it again." This is why stealing a Britney Spears CD has a more serious penalty than payback of the $8 price tag.
However, the law was written with an eye to punishing 'single offenses'. e.g. If a business photocopies some pages out of a book and passes them around at a meeting, that might be a 750 fine. If they do it for a few books, it might run into a couple thousands. If a restaurant uses a song in their training videos... same deal. Only organized criminals would ever be systematically infringing thousands of works...
Nobody ever envisioned a 12 year old with the capability to obtain and re-distribute 5,000 songs with 5 minutes of spare time in the family room... and bringing down a potential fine of $5,000 x 750 = 3.75 million dollar fine on his parents.
This is essentially the thrust of the argument... that one computer sharing thousands of songs (esp. for noncommercial purposes) should really be treated as a single act of infringement, not thousands of individual infringements. And that the punitive damages amount should be applied once for the whole collection, not once for each track.
After all... when you shoplift 2 physical CDs, you are still only charged with one count of theft... not once for each track on each CD, not even once for each CD.
"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.
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 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."