Slashdot Mirror
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
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.
Actually, if this case is like many of the others, and the RIAA has proof that she distributed the song to Media Sentry, then they have proof that she distributed the content to 1 other person, a single copy right violation.
It's just a civil case, so they don't have to prove absolutely that she distributed to hundreds of people, but they have to make some effort at showing that there were more distributions than just the single unauthorized distribution that they authorized...
-Rick
"Most people in the U.S. wouldn't know they live in a tyrannical state if it walked up and grabbed their junk." - MyFirs
...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
Do you feel the same when GPL software being illegally distributed?
Do you even lift?
These aren't the 'roids you're looking for.
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.
Actually, if this case is like many of the others, and the RIAA has proof that she distributed the song to Media Sentry, then they have proof that she distributed the content to 1 other person, a single copy right violation.
Actually, my impression is that from a legal standpoint, the distribution to Media Sentry isn't a copyright violation because Media Sentry is the authorized agent of the copyright owner. And before everyone jumps in, remember that this is law we're talking about, so common sense doesn't necessarily apply (as we've seen in some of the other results of RIAA trials).
DISTRIBUTING is the issue and unless she has logs which show exactly how many times she distributed it, she can fuck off.
If the RIAA does not have proof that she distributed to the number of people they claim she distributed to, it can fuck off as well.
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.
That depends on the context.
Is the GPL violation some kid who is giving the software to a few of his friends, but not allowing them to see the source? That's what's most comparable to this case.
Or is something like a large router company using linux to power it's newest router, making a ton of money off it, and then not releasing the source? That's totally different from this case.
Nice straw man argument though.
... 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...
So, because she can't show that she distributed a song exactly, say five, times, she should be charged an absurdly high amount for each infringement? What happened to proving damages?
I think the problem is that the statute is not designed in a manner than can handle Napster and beyond peer-to-peer distribution. It is designed for instances in which an entity is making money off someone else's copyrighted work. Read the notes to the statute. It's pretty clear that Congress did not have in mind the possibility of someone sharing his or her individual music/movie/whatever collection with others on the Internet. Even Congress would not saddle a $150,000 fine on a person for sharing a $0.99 song.
friends might be the wrong term...
A few other people, unknown to the individual, given teh way file sharing works.
Self proclaimed typo king, and inventor of the bear destroying coffee table (patent not pending).
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".
Everyone on the intertubes is one big happy family.
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.
I thought that because the P2P user doesn't have a license to distribute, any distribution at all is illegal. Even if the distribution is back to the person who owns the rights originally.
Maybe Mr. Beckerman can chime in? Surely this isn't an unresolved question in law still.
Forget about the number -- it's whether she distributed any at all.
The RIAA's claim is based on the idea that if you make a file available, you are distributing it, regardless of whether you actually distributed it anybody.
The problem with the RIAA's claim is that it make distributors out of everybody who happens to have a song on a shared folder, even if an official "p2p" network isn't involved. Consider Windows file sharing: if "My Documents" on your dorm computer is readable by the universe, congratulations -- you now owe the RIAA thousands of dollars. Remember, it isn't a question of whether anybody actually copied the song, or even of whether you intended to distribute it.
Consider this even more bizarre situation: Your kid installs p2p software on the family computer, sharing a directly called "music," that includes only songs he wrote & recorded. Later, you decide to rip your CD collection and, not knowing that there's p2p software, you stick it in "music." Now, you owe the RIAA a bunch of money.
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
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
It's just a civil case, so they don't have to prove absolutely that she distributed to hundreds of people, but they have to make some effort at showing that there were more distributions than just the single unauthorized distribution that they authorized...
IANAL but I have been involved in civil court cases. Strangely in those cases you had to PROVE actually damages. That means documented evidence showing you lost the amount of money you are trying to recover due to the direct actions of the person you are trying to recover it from. The RIAA mob had special exemptions made into law so they don't have to provide these proofs in copyright infringement cases. Like everything else related to copyright these days why the hell do they get exemptions to the rules that everyone else has to follow? 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. The RIAA has to show that there was a possibility that someone may have download the material and then gets to recover thousands of times the amount of any even remotely possible actual damages that may have resulted.
Who is John Galt?
Aren't the RIAA demands based more on making a RIAA profit rather than a deterrence to others?
Even Congress would not saddle a $150,000 fine on a person for sharing a $0.99 song.
You mean until the members of Congress had lunch with their bribers, ahem, lobbyists ?
You mean I'm related to all the AC trolls around here?
Damn you, as if my self esteem wasn't low enough already.
I hate printers.
So does that mean:
1. A record store is distributing records (by selling them).
2. Blockbuster is distributing videos (by renting them out).
3. Joe who gives copies of his CDs to friends is committing copyright infringement, but is _not_ distributing.
4. Jane who makes her CDs available to Joe for copying (who doesn't accept them) is not "making available for distribution" and therefore completely innocent.
5. Jim who makes copies of his CDs available to a record store for copying _is_ "making available for distribution" even if the record store doesn't accept them.
Awe, I love you too. *HUG*
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.)
That is exactly what I mean. C'mon, you know I wouldn't lie to you like that -- we're family.
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."
theoretically, everyone is at least distantly related to everyone else on the planet, though you would need an utterly huge family tree and consanguinity table to determine the relationships.
upon the advice of my lawyer, i have no sig at this time
Do you feel the same when GPL software being illegally distributed?
The cases are exactly the opposite. In the case of a filesharer, the public (i.e. us) benefits at the "expense" of a company (and i quote it because it's not proven that the companies lose anything).
In the case of a GPL violation, a single company benefits at the expense of the whole public, who DO have to pay for some software that should be free.
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.
"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.
I believe the problem with that, though-- and the reason they always go after uploaders-- is that the downloader could plausibly say that the were merely taking advantage of a copy of a file offered to them, and it wasn't their job to determine whether the distributor was properly licensed or not (there's not much ground there, but there's some). On the other hand, the uploader is taking the action of copying and redistributing with a clear lack of upstream consent from anyone. IIRC, the RIAA has never gone after uploaders who aren't distributors as well.
Information wants to be free.
Entertainment wants to be paid.
You just want to be cheap.
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/
So, why do the artists keep coming to the mega-labels? Why do they keep signing on the dotted lines? Either the artists are dumb, or they want access to the unique worldwide promotional resources that the labels have, and find it to be worth the price. I'm not sure which is the case, but I'd say in either case, the artists have only themselves to blame for the results of their negotiations. If they wanted, they could have gone small-label and sacrificed the bigger pie for the bigger piece.
I think you're wrong about that. I think these 4 companies owned about 90% of the pie 10 years ago, and now earn about 70% of the pie. Major artists are declining to renew their contracts, and new artists are finding alternative ways of marketing their music -- ways designed to earn a few bucks for the artists, instead of enriching the slave masters.
Ray Beckerman +5 Insightful
1. A record store can sell CDs with no special license, thanks to the right of first sale, but can't legally make and sell copies of a CD without a specific license.
2. Renting is a copyright violation only for phonorecords. Blockbuster can legally buy DVDs and rent them out with no special license, but cannot legally do the same with CDs. No one said the law made sense.
3. Giving copies of CDs to a friend is a strange area. An actual IP layer could probably clarify.
4-5. "Making available" is BS, per this recent court ruling.
Socialism: a lie told by totalitarians and believed by fools.
Copyright infringement attaches to the number of works distributed, not the number of copies made (except when escalating to criminal infringement).
Putting aside criminal infringement for the moment, it does not matter how many copies you distribute. That is to say, if I illegally distributed "Bananaphone" by Raffi 1,000 times I'm on the hook for one count of infringement. If I distribute "Bananaphone" by Raffi and "Stinkfist" by Tool one time each, that's two counts.
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.
Statutory damages are used as a means of scaring people/companies into behaving and actually do stuff with some level of thought. If you know that a possible lawsuit from someone who's gotten hurt by using your badly designed product might cost you millions, you'll think again before putting that product on the market without proper warning labels.
Example: McDonalds with their "WARNING:Hot Contents" label on their coffee cup.
Some cases, mostly cases of human injury, the "pain and agony" damages are not someting I'd say is easy to calculate, but they are still part of the "actual damages". Then on top of the actual damages, the offending party will often have to pay statutory damages, which are often multiple times the value of the actual damages.
And this is why the American judicial system can be so easily manipulated:
1)Hurt yourself
2)Claim your specific injury was not warned about in the documentation of the product
3)??
4)Profit
As you can see, this method is because of it's simplicity, used by both corporate America and the American populace.
She: Hey, are you a traitor? Me: No, I'm atheist.
The thing is "distribution" in the sense of selling given copy of a work, "distribution" in the sense of renting given copy of a work, and "distribution" in the sense of producing new copies of a work are each covered by different laws. There's no uniform sense in which "distribution" is legal or illegal. Also "making available for distribution" is different from "distribution".
If you serve a song in a way that a stranger can download it, that's clearly "making available for distribution", but it's just as clearly not per se evidence of actual distribution. There's no law against "making available for distribution", only against distribution (assuming the other rules aren't followed).
Socialism: a lie told by totalitarians and believed by fools.
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."
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.
I've said this in a post in another story, and I like that post so here it is. This applies perfectly to bit torrent, but also to most P2P techniques:
The "average" ratio on, for example bit torrent should always be 100% since everyone downloading is getting the file from someone else that downloaded it. I guess the original seeder would put the ratio slightly above 100% but I'm sure you get my point.
The thing is that average is likely propped up by a small minority of high ratio users and your average john doe would have a low ratio. From reporting here, the RIAA has been going after average people rather than high ratio people. at a guess I'd say my ratio never topped 80%, which is pretty good IMO as my max upload was 1/4 of my max download. My point is that most people will only ever upload maximum 1 CD for each CD. Even with double dipping by charging both uploader and downloader it would make most people liable for 2X[cost of CD] not 100,000 X[cost of CD]
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