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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."
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.
Maybe this is a step in the right direction at least?
...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!
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.
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.
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.
... 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...
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".
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
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.
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
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.
Aren't the RIAA demands based more on making a RIAA profit rather than a deterrence to others?
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
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. :)
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.)
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."
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'
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?"
...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)
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.
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.
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.
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.
It looks like ScuttleMonkey dropped the ball, now I'll never know what department this is from! T_T
Sendou Wave Kick!!
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.
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.
...how come Tenise Barker is doing all the effective work?