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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.
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
More interestingly, what if the pieces were small enough to fall under fair use standards (which is less than 20 seconds, IIRC)?
For example, 16 pieces of a 4 minute song from 16 different people, each piece containing 15 seconds of the song.
upon the advice of my lawyer, i have no sig at this time
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.)
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.