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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'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
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).
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.
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.
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.
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".
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.
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
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
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.
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.
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
Does the word "hypocrite" come to mind?
Actually, estoppel came to mind first.
Only a lawyer could say that.
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/
Hey could you start one of your posts with "IAAL"? Just for me? It would make my day. :p
Nah, it would sound too much like I'm trying to pull rank. Just because IAAL doesn't make me right. Just because IAAL doesn't mean IAAGL, I could be ABL, or even AVBL.
E.g., look at the RIAAL's. They're VBL's. Theoretically, TAL's, but they don't act like L's, and they don't know their A's from their E's.
In fact, if the RIAAL's really AL's, then I'm ashamed to be a L, and maybe IANRAL at all.
Ray Beckerman +5 Insightful