RIAA Agrees To Take $200-Per-File In Texas Case

NewYorkCountryLawyer writes "In a San Antonio, Texas case, Maverick v. Harper, in which a young woman was accused of having committed copyright infringement at the age of 16, the Judge denied the RIAA's summary judgment motion this summer, saying there were factual issues as to whether the defendant qualified for the 'innocent infringement' defense. He offered the record companies a way out, however, saying he would grant them a judgment if they agreed to take only $200 — as opposed to the $9,250 they sought from Jammie Thomas or the $750 they usually seek — per infringed recording. We have recently learned that, after the Judge denied the RIAA's reconsideration motion and scheduled a trial date, the RIAA filed papers agreeing to take the $200-per-recording amount. While $200 is still about 600 times the amount of the actual damages, it's better than paying 26,000 times the actual damages, which is what the RIAA tried to squeeze out of Ms. Thomas." This is a reversal of the RIAA's rejection of the $200 award per song last month.

Comments

Wrong

[Anonymous Coward]

600 times the actual damages for what she had possession of, but they don't go after people for simply having music, they go after them for making it available to others and distributing it. The actual damages could have been much more than 33 cents per song.

Re:Wrong

[Anonymous Coward]

Yes, but it is not one person distributing the files, just the only one being tried.

Re:Wrong

[lysergic.acid]

those are hypothetical damages. technically the recording industry didn't incur any real damages from this type of copyright infringement. making copies of electronic data doesn't cost anything.

and if you want to talk about hypothetical damages, then what about the potential losses to indie artists or labels due to the major labels' monopolistic control over music distribution/promotion? Payola is still alive and well today. the music promotion racket run by the Big Four and the Clear Channel radio network requires artists & labels to buy spin slots on top 40 playlists. this essentially prevents independent musicians from gaining any kind of public exposure. these are blatantly anti-competitive practices used to lock non-RIAA-sanctioned artists out of the industry.

and what about the ASCAP & BMI who each collect hundreds of millions in music royalties each year? any public venue that plays music--whether live, recorded, or broadcast--has to pay these RIAA-run organizations "licensing fees" regardless of who owns the rights to the music. the ASCAP even charges venues for playing foreign music that is in public domain. so they will collect licensing fees on your music whether you want them to or not. but if an artist wants to actually receive his royalty checks, he needs to pay for ASCAP/BMI membership. for most musicians, these royalties are not worth the cost of membership. it would be better to just allow public venues to play their music for free, thus promoting the band and giving them free exposure. but these extortion rings eliminate any financial incentive to play non-RIAA-licensed music since a venue is billed even for playing music by non-RIAA-affiliated artists.

file sharing is a major threat to the RIAA not because it hurts the music industry--it doesn't, it has actually boosted net profits--but because it undermines the Big Four's traditionally held control over music distribution & promotion. radio used to be the only place where consumers could sample music for free. but now consumers can explore music that actually suits their taste by circumventing traditional channels. you can sample music before you pay for it, and this gives consumers the power to only pay for music they actually like. that means no more buying $20 pop albums full of filler tracks just for one or two radio singles. file sharing actually exposes consumers to much more music than before, which has expanded people's musical tastes and increased music-related expenditures. but that spending is now distributed across a large variety of indie artists rather than concentrated in a small handful of mainstream acts. mainstream pop musicians that have traditionally been the major labels' cash cows are no longer selling because people realize that such throwaway fad music is not worth spending money on.

Re:Wrong

[Anonymous Coward]

-1, Pro-RIAA.

Re:Wrong

[Anonymous Coward]

You said it.

Man, I wish this could be modded up +10 and placed at the top of the thread.

Re:Wrong

[d_jedi]

Wow. A perfectly reasonable and absolutely correct comment gets modded as flamebait because it goes (however slightly) against the Slashdot groupthink that the RIAA is teh devil.

Re:Wrong

[jebrew]

Yeah, but regardless of the stance, the comment is likely to generate some flaming...almost as though it were someone baiting others into doing so.

--

--

I agree on principal though and would rather see it as insightful given the audience...even though I disagree with the argument.

Re:Wrong

[Dan541]

Thats still

$10,192,200.00 that I would owe to the RIAA.

Instead of the normal

$441,662,000.00

Good luck RIAA,
do you accept cheques?

Re:Wrong

[mpe]

mainstream pop musicians that have traditionally been the major labels' cash cows are no longer selling because people realize that such throwaway fad music is not worth spending money on.

There's also the little matter of the state of the economy. Which is currently rather FUBAR. In a recession people are likely to have less money to spend on things such as entertainment.

She'll be fine.

[drunkennewfiemidget]

After all, the RIAA simply suggests you drop out of school to pay your fine.

So in this case, I'm sure they'll suggest she not go to post-secondary school and spends her school savings to pay them.

This is why I haven't bought an RIAA registered CD since 2001, and won't. Douchebags.

http://www.riaaradar.com/ ftw.

Re:She'll be fine.

[Anonymous Coward]

Well, at least all that money is all going to the starving artists who she ruthlessly stole from. Right?

Re:She'll be fine.

[elashish14]

After all, the RIAA simply suggests you drop out of school to pay your fine.

It's a really talented and well-written article. It's things like this which need to be published on a mass scale (unfortunately, a college newspaper won't get you anywhere) before we see any change. When extortion of this level of cruelty happens legally, generating awareness is the only way to stop it.

As it is right now, politicians don't even know what the internet or a computer is, how are we supposed to make them defend our rights?

Re:She'll be fine.

[Anonymous Coward]

It's a really talented and well-written article.

It's got a voice like an angel and legs like Ginger Rogers.

Re:She'll be fine.

[dontmakemethink]

After all, the RIAA simply suggests you drop out of school to pay your fine.

Well at the same time, it's hearsay from an unapologeticly biased source. Wouldn't surprise me that an overzealous RIAA agent said that, but that's a far cry from proof of RIAA policy. Yes, they're douchebags, but this accusation only warrants an allegation. Try divorce court custody hearings. Lots of weakly-supported allegations everywhere, proving that both parties are douchebags, but not necessarily as attrocious as the allegations describe.

In case you missed it, I loosely implied that the author was a douchebag for publishing his weakly-supported accusation. Online rags like that are corrupting journalistic integrity far faster than the RIAA could ever kill music. I at least understand the difference between an implication, an allegation, and an accusation, all of which are leagues away from fact.

Re:She'll be fine.

[Anonymous Coward]

I don't get all this talk of cruelty and extortion and peoples rights. At the end of the day, If you don't illegally download copyrighted music, you will not get into that state.
Amazingly, I manage to not be annoyed at speed cameras either, because I don't break the speed limit.
Yes, life gets very complex if you think the law shouldn't apply to you, but you get caught. That is how it is supposed to work.

Re:She'll be fine.

[Anonymous Coward]

I don't get all this talk of cruelty and extortion and peoples rights. At the end of the day, If you don't illegally download copyrighted music, you will not get into that state.

You wanna bet your life on that one? In the link, I reference something that falls under fair use. There was no illegally downloaded stuff, but a DMCA filing, etc. was made against a home movie of a baby being cute with a Prince song in the background.

No piracy- but they were in court over all of it all the same. In the same sort of way the "downloaders" are.

If you think that you can avoid this sort of problem by "just don't download", think again.

Re:She'll be fine.

[mdwh2]

What country do you in where students have to drop out of college in order to pay a speeding fine?

Indeed, what an excellent (car) analogy: If you speed in a car, something that risks putting lives at danger, you might have to pay $150 (e.g., http://www.speedingticketkiller.com/ - and that's a site that is saying how high it is). But if you make a single mp3 available that might, oh I don't know, cause a few lost sales, resulting in a few dollars less profit (remember how the RIAA tell us most of the cost of a CD is costs, and only a tiny amount is profit, right?), they're after $750.

Glad to see they have their priorities straight.

Note also that the RIAA openly brag about going after college students.

Re:She'll be fine.

[NewYorkCountryLawyer]

I don't get all this talk of cruelty and extortion and peoples rights. At the end of the day, If you don't illegally download copyrighted music, you will not get into that state.

Not so. Probably the majority of people being sued did not do the file sharing for which they are being sued. The RIAA's so-called investigation goes no further than purporting to identify a person who paid for an internet access account. Most times the victims are parents, grandparents, neighbors, roommates, etc., and oftentimes they do not even have a clue as to who actually did have the filesharing account the RIAA is pursuing.

Amazingly, I manage to not be annoyed at speed cameras either, because I don't break the speed limit. Yes, life gets very complex if you think the law shouldn't apply to you, but you get caught. That is how it is supposed to work.

Assuming, for purposes of the discussion, that (1) you are as perfect as you claim to be, and never, ever, make a mistake, and (2) the only people the RIAA ever targets are people who actually did use a file sharing program..... it should still trouble you if one of your less perfect neighbors is subjected to punishment that is grossly disproportionate to any actual harm that was done. The whole subject of this article was not whether the defendant, who was 16 years old at the time, did it.... she admitted she'd done it. The question is whether she should have to pay 26,000 times the actual damage, or 2,200 times the actual damage, or 600 times the actual damage... or maybe, just maybe, something a little bit more proportionate to the actual damages sustained. The law is supposed to be about fairness and justice and reason and proportionality. When it allows shockingly disproportionate penalties, it calls the whole legal process into disrepute.

In the age of 'micropayments' for MP3 downloads of 99 cents or less, tacking on damages of $750 or more for a single song is ludicrous, and the entire world is basically laughing at the United States in the wake of the Jammie Thomas trial. I suggest you read Judge Davis's comments about the trial verdict handed down in his courtroom and his plea for Congressional action to prevent such a thing from reoccurring, or this excellent law review article on the unconstitutionality of these disproportionate damages theories, if you are interested in the subject.

Re:She'll be fine.

[Dan93]

Not necessarily. People who have never owned a computer have been sued by the RIAA.

It's still not really reasonable

[Anonymous Coward]

That's like going to extort a store owner:

Mafiaa: Hey buddy, You wanna keep your store safe, it'll be 30%, off the top.
Store: We can't afford that. We'll just close shop.
Mafiaa: Ok, we'll just take 3%.

Re:It's still not really reasonable

[BakaHoushi]

This is a poor analogy.
I mean, the mobsters at least won't break your store if you pay (As compared to losing service for a DRM-enabled music file). Members of the mafia work hard, and don't appreciate such an insulting comparison.

Re:It's still not really reasonable

[Korbeau]

If I can't pay, I wouldn't mind to ... give a finger or two ... to some female artists .. ;)

Re:It's still not really reasonable

[Just Some Guy]

It's my understanding that the mafia actually provides the negotiated service, which would more than I could say for the RIAA. Besides, the mafia scares me on a lesser level. They might break my legs or throw me in a river, but as far as I know they can't actually devour my soul.

Re:It's still not really reasonable

[Anonymous Coward]

"Law" and "the right thing" aren't the same, fucktard. Learn the difference.

Re:It's still not really reasonable

[Raenex]

You actually think being robbed at gun/bomb point is ok, but paying for somebody's music kills your soul? Pretty fucked up. Why don't you and everybody else just listen to off-label music?

Re:It's still not really reasonable

[Just Some Guy]

No. I think that the RIAA employs soul-eating undead in the literal sense, and has satellite offices in R'Lyeh and other convenient locations.

Re:It's still not really reasonable

[NewYorkCountryLawyer]

I think that the RIAA employs soul-eating undead

I can confirm.

Re:It's still not really reasonable

[Raenex]

Unlike those completely innocent people you represent, right?

Re:It's still not really reasonable

[NewYorkCountryLawyer]

Very much unlike.

Re:It's still not really reasonable

[nsaneinside]

Sexism in America is not the topic being discussed, thanks.

Re:It's still not really reasonable

[jhfry]

Ironically... it is a bad example... the Mafia is usually actually concerned about your business' success. Even they know that it's important to be even handed and fair. If they extorted every last cent, they would run out of store owners to extort. Sure some bad bosses may have operated that way... but as understand it, most mature organized criminal organizations that used the "protection" racket also "encouraged" the surrounding community to frequent the businesses they protected.

Most mature organized criminal organizations are actually led by shrewd and skilled business men... if you look at the successes that organized crime has brought to the Irish, Italian, and many other communities, and you will realize that it's one way that a discriminated-against minority can pool it's resources and force the surrounding communities to respect and even value relationships with them. Just think about the Italian climb from a depressed immigrant community to basically owning law enforcement and construction in NYC... without organized crime they probably would still be discriminated against.

I don't mean to defend it at all, only to point out that most mature organized crime organizations are more concerned with the well being and success of their "customers" than the RIAA.

Re:It's still not really reasonable

[powerspike]

i do, but i'm afraid they'll still sue me for downloading it....

Re:It's still not really reasonable

[Raenex]

You're afraid they'll sue you for music they don't own the rights to? I think you're a little caught up in this "oh my god the RIAA is the devil" thing.

Judge can reason evidence, can he administer?

[Anonymous Coward]

Looks like there isn't much difference between damages in excess of U$9k or U$750 or U$200.

What kind of country are you retards running when there is no injury and pursuant to your own Copyright Act this was all non-commercial non-profit non-profit private? The data didn't come from one of their distributions, it arrived by someone that pre-payed for it onto the intraBlawgb Tubespheres!

Re:Judge can reason evidence, can he administer?

[EllynGeek]

Hey you foreign weirdo, this is the land of the fee and the home of the rave, and don't you forget it. Surely you are not suggesting that the MAFIAA ruin a perfectly good legal extortion scheme by being forced to prove actual damages? Why, that's un-American. Or un-CorporateAmerican, anyway. CorporateAmericans are a protected minority, the poor things have had such a rough time of it. Nobody likes them.

Re:Judge can reason evidence, can he administer?

[morgan_greywolf]

What kind of country are you retards running when there is no injury and pursuant to your own Copyright Act this was all non-commercial non-profit non-profit private?

Sorry. We don't run the government anymore. The government sold out to corporate interests years ago. There seems to be nothing we can do short of pulling out all our guns and start shooting the ultrarich fat-cat bastards.

Wanna help?

Re:Judge can reason evidence, can he administer?

[AngryLlama]

Home of the rave? I would assume that is in Europe some place.

Justice system as a revenue stream

[nfc_Death]

I cannot understand the usage of a public system such as the justice system being perverted to act as a revenue stream for clearly underhanded groups of people. Its scary how twisted and shackled all our legal systems have become.

Re:Justice system as a revenue stream

[Anonymous Coward]

You just described 90% of all civil legal actions.

Re:Justice system as a revenue stream

[Hairy Heron]

Just wait until the DoJ lawyers become lackeys of the RIAA/MPAA

Re:Justice system as a revenue stream

[Arthur Grumbine]

I cannot understand the usage of a public system such as the ________ system being perverted to act as a revenue stream for clearly underhanded groups of people.

I'll help you understand (insert political/educational/judicial/legislative/economic/etc in the blank):
1) People are not perfect. Therefore people do not make the perfect ________ system.
2) There are some people who do not want to accept the rules of the ________ system.
3) Some of these people try to circumvent the rules of the ________ system, fail, and are punished/suffer.
4) Others (the clever ones) are able to successfully use the imperfections of the ________ system to circumvent, or change, the rules of the system. These people, in thoroughly developed society, will have an incredible amount of control over the original system. To not think this inevitable is akin to honestly believing "The cheater never prospers".

As a side-note, the abuses and manipulations of the American judicial system, at most times, seem pretty tame compared to those of the financial/economic, or political/legislative.

Woohoo!

[guyminuslife]

I'm a Texan, and this is great news. I only owe them 2 million dollars!

What happens?

[saladpuncher]

So what happens if they win? I am not a lawyer but if someone sues you for a trizzillion dollars and you don't have it...what happens? They can't throw you in jail. They can't take your stuff...or can they? They can screw your credit rating up and maybe garnish your wages in the few states that allow it. I have won civil suits before and never got a dime. The judge slaps his gavel down, says "you owe the that dude 500 dollars" and then nothing happens. So what happens if you don't or can't pay the RIAA?

Re:What happens?

[Anonymous Coward]

You're forced to work as a discwasher.

Re:What happens?

[Anonymous Coward]

They can take your stuff. A civil judgment also stays good for 20 years (in most states), so they can garnish your wages once you DO get some jing.

Re:What happens?

[Anonymous Coward]

You're forced to work as a discwasher.

DRM'd high density DVDs with RIAA'd b-class content I reckon. :)

Re:What happens?

[Anonymous Coward]

They can have all my stuff. We'll start with the bullets.

Re:What happens?

[Pichu0102]

So, in other words, you are technically forced to work just so the RIAA can take everything you make, leaving you homeless and not a penny to your name for 20 years? How exactly do they plan for you to survive for 20 years with no food, water or shelter due to not having any money whatsoever?

Re:What happens?

[morgan_greywolf]

The courts can seize wages, property, etc., in most states. Unfortunately, unless you have a good lawyer and lots of money, you're up a creek if without a paddle.

Re:What happens?

[narcberry]

Maybe not the best we've heard, but seriously mod parent up, you laughed just like I did.

Re:What happens?

[supernova_hq]

Umm, garnishing your wages does not mean the take everything...they simply take a percentage. Just think of it as a second income-tax :p

Re:What happens?

[cydnub]

Or your could just do what Bernie Goetz did when he couldn't (wouldn't) pay: file for bankruptcy. He had a $43M judgement against him in 1996 and in 2004, "hasn't paid a penny yet".

Re:What happens?

[JackieBrown]

In Texas your wages can only be garnished for taxes, student loans, and child support.

Re:What happens?

[Thinboy00]

They can take your stuff. A civil judgment also stays good for 20 years (in most states), so they can garnish your wages once you DO get some jing.

I thought you'd just declare chapter 7 bankruptcy, ruin your credit rating, lose assets (other than your house and sometimes your car, and some others), and if they are insufficient to pay the creditors, the government simply wipes the debt out...

Re:What happens?

[davolfman]

One which often leaves you with less than living expenses these days. It's not as if anyone actually gives 40 hours a week with the economy like this, they're too busy trying to keep existing employees on the payroll.

Re:What happens?

[hldn]

i dont own anything and i dont ever plan on working, so im not too worried about what they could take from me.

Re:What happens?

[Anonymous Coward]

You didn't get the memo. You can't do that anymore.

Re:What happens?

[Wowsers]

Umm, garnishing your wages does not mean the take everything...

This is the RIAA we're talking about, so think of it as a never-ending divorce settlement from the bitch that took you to the cleaners.

Re:What happens?

[Anonymous Coward]

So you're voting for Obama, I take it?

Re:What happens?

[Agent__Smith]

So you're voting for Obama, I take it?

Now THAT should be modded funny. Good satire is always based in truth, and that is definately true!

Re:What happens?

[Anonymous Coward]

Bankruptcy laws were "upgraded" in 2005.

Re:This just in...

[Anonymous Coward]

Anonymous Coward Agrees To Take 5 Cents-Per-Blowjob To Suck CmdrTaco's Two-Inch Dick

That's all, AC? You must really be a fan!

How generous

[RealGrouchy]

Wow! Now you're only cutting off one of my balls? You're so charitable!

- RG>

Re:How generous

[Hairy Heron]

Is that what Tom Green said before his surgery?

Re:How generous

[SL Baur]

Vince: "Well one day I was at home threatening the kids when I looks out through the hole in the wall and sees this tank pull up and out gets one of RIAA's boys, so he comes in nice and friendly and says RIAA wants to have a word with me, so he chains me to the back of the tank and takes me for a scrape round to RIAA's place and the RIAA's lawyer is there in the conversation pit with Doug and Charles Paisley, the baby crusher, and two film producers and a man they called 'Kierkegaard', who just sat there biting the heads of whippets and RIAA says 'I hear you've been a naughty boy Clement' and he splits me nostrils open and saws me leg off and pulls me liver out and I tell him my name's not Clement and then... he loses his temper and nails me head to the floor."

Interviewer: He nailed your head to the floor?

Vince: At first yeah

Presenter: Another man who had his head nailed to the floor was Stig O' Tracy.

Interviewer: I've been told RIAA nailed your head to the floor.

Stig: No. Never. He was a smashing bloke. He used to buy his mother flowers and that. He was like a brother to me.

Interviewer: But the police have film of RIAA actually nailing your head to the floor.

Stig: (pause) Oh yeah, he did that.

Interviewer: Why?

Stig: Well he had to, didn't he? I mean there was nothing else he could do, be fair. I had transgressed the unwritten law.

Interviewer: What had you done?

Stig: Er... well he didn't tell me that, but he gave me his word that it was the case, and that's good enough for me with old RIAA. I mean, he didn't *want* to nail my head to the floor. I had to insist. He wanted to let me off. He'd do anything for you, RIAA would.

Interviewer: And you don't bear him a grudge?

Stig: A grudge! Old RIAA. He was a real darling.

Interviewer: I understand he also nailed your wife's head to a coffee table. Isn't that true Mrs O' Tracy?

Mrs O' Tracy: No, no, no, no, no, no, no, no, no, no.

Stig: Well he did do that, yeah. He was a hard man. Vicious but fair

How much would I have to pay?

[quinks]

10000 songs times $200. Yeah, I'd only owe $2 million. Someone who fills their iPod pays only $400,000. Better than the old one, which would be $93 million.

Re:That's still too high.

[Anonymous Coward]

Okay, tagged "thievingcunts" because of the people stealing music. They are bastards.

Appeal Appeal Appeal

[Nom du Keyboard]

This should be appealed on at least two grounds:

1: 600X actual damages is constitutionally excessive.

2: Attempted Distribution != Distribution. Or in other terms: Making Available != Distribution.

On a side note, while the judge seems like a nice guy here, he's a moron for buying the RIAA's line that while we can't prove she ever provided a file to anyone except our own hired, paid, and completely unlicensed investigators, she's guilty anyway.

Re:Appeal Appeal Appeal

[maharvey]

They have her confession as proof.

Re:Appeal Appeal Appeal

[clarkkent09]

1. 600X actual damages is constitutionally excessive.

Just curious, who came up with 33 cents per file as the "actual" damages and why? Accepting, as the court did, that there was harm suffered from her sharing files, the question is how much. If she shared a file with just one other person who would have otherwise bought it on itunes, the damage would be $1. How do you come up with a fraction of $1.

2: Attempted Distribution != Distribution. Or in other terms: Making Available != Distribution.

If the investigators' claim that they downloaded files shared by her are questionable then this could be a legitimate complaint. However, we are not talking about the investigators' word here. It seems easy to prove that they did in fact download them, log files etc.

Re:Appeal Appeal Appeal

[Anonymous Coward]

They have her confession as proof.

Teh MAFIAA beat it out of her.

Re:Appeal Appeal Appeal

[Anonymous Coward]

1. 600X actual damages is constitutionally excessive.

Just curious, who came up with 33 cents per file as the "actual" damages and why? Accepting, as the court did, that there was harm suffered from her sharing files, the question is how much. If she shared a file with just one other person who would have otherwise bought it on itunes, the damage would be $1. How do you come up with a fraction of $1.

  2: Attempted Distribution != Distribution. Or in other terms: Making Available != Distribution.

If the investigators' claim that they downloaded files shared by her are questionable then this could be a legitimate complaint. However, we are not talking about the investigators' word here. It seems easy to prove that they did in fact download them, log files etc.

The SCOTUS ruled that anything above 10x damages is automatically unconstitutional, and something like 6 or 8 times (can't remember) is enough to become questionable. (google it if your that curious)

The problem arises in that US copyright law allows for a minimum 750 dollars per infringement on statutory damages, where as through discovery we've learned the 'wholesale' cost of a song (according to the RIAA) is in the neighbourhood of 35 cents.

That gives us damages at around 2150 times actual losses (yes I'm rounding, sue me.) While following the law.

This brings up an important point that most are sadly un-aware of. Legal and illegal, and constitutional and unconstitutional, are not necessarily the same things.

The RIAA's pursuit of 750$ a song is legal, its just not constitutional.

Further these cases are complicated by the following;

You cannot violate your own copyright, it just can't happen. So then agent's empowered by the RIAA making downloads off file sharing networks are in fact authorized to do so, so the copies they obtain are legal. The copyright owner told them to go get them. Investigators downloading mp3's doesn't get you anywhere and 'making available' isn't a crime, the distribution is.

So.... wheres the crime?

Re:Appeal Appeal Appeal

[NewYorkCountryLawyer]

Just curious, who came up with 33 cents per file as the "actual" damages and why?

It's my estimate.
Wholesale price 70 cents.
-Expenses ~35 cents.
Lost profit ~35 cents.

There was evidence of copying. She admitted it. The damages for that would be at best ~35 cents.

There was no evidence she disseminated a copy to anyone else, or that she did so pursuant to a "sale or other transfer of ownership" or "license, lease, or lending." It's rule number 1 that you can't award damages based on speculation.

Re:Appeal Appeal Appeal

[Fastolfe]

You cannot violate your own copyright, it just can't happen. So then agent's empowered by the RIAA making downloads off file sharing networks are in fact authorized to do so, so the copies they obtain are legal. The copyright owner told them to go get them. Investigators downloading mp3's doesn't get you anywhere and 'making available' isn't a crime, the distribution is.

I think you've answered your own question. When Bob downloads a copyrighted song from Alice, two acts of infringement occur: Alice redistributed the work, and Bob made a copy and stored it on his hard drive. The RIAA doesn't go after Bob, they go after Alice. If it turns out Bob works for the copyright holder, his act of infringement isn't really infringement, as you say. But Alice's still is. Entrapment only applies to law enforcement.

At least that's the way I see it.

Re:Appeal Appeal Appeal

[Nom du Keyboard]

just curious, who came up with 33 cents per file as the "actual" damages and why? If she shared a file with just one other person who would have otherwise bought it on itunes, the damage would be $1. How do you come up with a fraction of $1.

Out of a 99 cent iTunes download the profit to the record company (their share) after expenses is approximately 33 cents. This has been established by documents provided by the record companies. As it is the record companies doing the suing, they can only reasonably recover their own damages.

However, we are not talking about the investigators' word here. It seems easy to prove that they did in fact download them, log files etc.

The "investigators" are employed by the RIAA, and hence the record labels. It's a legal given that you cannot infringe your own copyright therefore their downloads, if any, don't count as proof of actual distribution. They might well be the only people who ever downloaded the tracks in question given the large availability of them otherwise. This Defendant can't be held libel for the acts of all infringers - only her own, if any. And there is no proof of that.

Re:How generous-Gender Specific Here Plz

[Nom du Keyboard]

Wow! Now you're only cutting off one of my balls? You're so charitable!

I think in this case you mean boobs.

Real question

[Anonymous Coward]

"While $200 is still about 600 times the amount of the actual damages"

And how do you know?

10 songs a CD, 15 dollars a CD, would equate to 1.50 a song. 600 times that would be... Wait, your using new math?

Seriously, how can someone come up with a dollar figure for copyright infringment.

I used to run a courier group. At one point, we where ranked #1 in the US, and ranked .eu fairly high, according to CWS, USCR, etc. (this is dating me).

I couldn't tell you how much damage our MP3 group did, per song. Neither can NYCL, neither can RIAA or any other entity, because you DON'T KNOW HOW MANY PEOPLE LEECHED FROM HER, AND IN TURN, FROM THE ORIGINAL LEECHERS.

I haven't had a problem with the dollar figures they put out, simply because, YOU CAN'T QUANTIFY the dollar amounts, because nobody knows.

So, seriously, how can you be taken seriously, when you are spouting dollar figures as well that don't add up?

Serious question, NYCL. I want to know where your dollar figures came from and your percentages.... If only in case someday the past comes to haunt me :) lol.

--eighteen double zero

Re:Real question

[Anonymous Coward]

I was typing the same question when I noticed yours. Not sure why you're being modded troll, it's a valid question.

Re:Real question

[91degrees]

because you DON'T KNOW HOW MANY PEOPLE LEECHED FROM HER, AND IN TURN, FROM THE ORIGINAL LEECHERS.

Averages to 1 copy of each infringed file per person. If the person who got the files from her also shared then sue them. They're the infringer in that case. Not her.

Re:Real question

[remmelt]

Isn't that the entire point though? No-one knows what the actual damages are. Not even the RIAA!

So, how can they stick a number on and get away with it in a court of law? Especially when it's not fixed, the summary speaks of the usual $750, but also mentions $9250 and $200. That's a bit wild, isn't it? It almost seems like they're making those numbers up.

You are calling out NYCL for his dollar figures; I am calling out the RIAA for the same thing. Let them prove, without a doubt, that there even were damages, and then we can get on with it.

Re:Real question

[Anonymous Coward]

Here is a long, unecessary post. If you disagree, good for you.

I would assume it would be based on actual cost, not based on sales price. Like any other cost of damages suit.

By the way, its $200 per infringement, which would be per song, not per cd. That would, under your theory, put the cost at $5 a cd, which sounds about right if you include such things as shipping, shrink, r&d, overhead (employee salaries, warehousing and such), cost of litigation, marketing, purchasing store sales space (yes, even if the cd can be purchased online).

To be fair, "making available" is not illegal. It is making available with the intent to distribute that the RIAA is obligated, on behalf of its shareholders, to fight back against. Distribution, however, is a legal gray area. To begin with, the artist has the contract for distribution, so the artist should be bringing forth distribution lawsuits, not the RIAA. The artist is contracting the RIAA to distribute, market, etc, exclusively. If you contract with an accountant to do your taxes, but then someone else does, you should sue your accountant. If you hire a caterer for your wedding, but on the big day a lesser caterer shows up, you sue your caterer. These distribution lawsuits are being brought against the wrong defendent. But what if I have purchased the item I am distributing? Of course I should be allowed to download and share with others who have also purchased. If I go on vacation and forget my toothbrush, my hotel will provide one for me. The cost is negligible, and it is not forseeable to the hotel that I am lying about staying there explicitly to get a toothbrush for free. Along the same lines, If I forget my cd when I go on vacation, why shouldn't I be able to download that cd? And in a sense of fairness, I should be able to distribute that same cd to someone else who has the right to it. Certainly, I will not go around assuming that people do not have the right to use a legal file sharing service, anymore than I will lower the volume of my xm radio account so that only I hear the music (unless one of my coworkers asks me to lower the volume because I am disturbing them).

If you would argue against this method, then you claim that purchase of music does not = ownership. In this case, people should outright steal from the RIAA. Honestly, if you can't own something through a purchase agreement (which cannot be determined whether it is purchase or lease until after money has exchanged hands, and right of return is known to be false), then you cannot show any damages for "theft" of that item. It isnt possible.

The total cost of distribution is a variable cost. As more people buy the product, the cost per item goes down. Especially since the cost of distribution depends on the method. It could be as high as $1 to ship a cd somewhere (using private mail labels, like fedex or UPS) or it could be about 10 cents for bandwidth costs (again, per album, not per song).

The RIAA knows exactly what they are doing in charging $20 for a new cd. They are propping up a false value to a marginal product. They keep the vast majority of the money. And it is their right to do so. It is your right to purchase or not purchase.

If you listen to music 12 hours a day, 7 days a week, and dont like repeating songs, then you most certainly cannot afford to buy RIAA music. Think for a minute here, you aren't entitled to do so.

Dont misunderstand, if you actually pay the $20 for your cd, you damn well better be able to use it however you want. If you want to put it on any music player, you should be able to do so. If you want to resell the item, in such a way that you no longer have access to it (under right of first sale), then by all means, sell it for what the market will give you. If you want to take your media with you to a friends house and let them listen to your music (but not burn a copy), then you are in the right to do so.

Personally I have an XM radio account. I can listen to whatever music they want to distribute, and I get access to

Re:Real question

[gnasher719]

Isn't that the entire point though? No-one knows what the actual damages are. Not even the RIAA!

We could reasonably say that the actual damage for every download is about 70 cents. That is about the amount that you pay at the iTunes Store, minus the 30 percent that Apple keeps. (If you found a clever way to download music from the iTunes Store without paying, then the damage would be 99 cent per song).

Now we would need a reasonable estimate for the number of songs downloaded from one computer. As I understand it, with peer-to-peer file sharing networks, everyone is supposed to not only download, but also to upload in an equal amount. So on the average, one million downloaders are matched by one million uploaders, not by a single uploader. So on the average, every song that is made available for downloading from some computer will be downloaded once.

The total revenue from music sales in the USA is less than $10 billion. So if everyone stopped buying music right now and exclusively changed to downloading music from peer-to-peer networks, the total damage would be $10 billion. Actually a lot less, because that $10 billion revenue produces a lot of cost as well. A woman, very casual file sharer, was recently convicted to pay more than $200,000 in damages (although the case is going back to trial again). Just 50,000 such cases would pay for the total revenue of the music industry, and there are a lot more than 50,000 file sharers.

Re:Real question

[remmelt]

Someone else in this thread pointed out that the damages should not be compared to the cost of downloading a song, but to the cost of the right to upload one.
Interesting point.

Re:Real question

[NewYorkCountryLawyer]

Someone else in this thread pointed out that the damages should not be compared to the cost of downloading a song, but to the cost of the right to upload one. Interesting point.

It's not really interesting, it's just supremely illogical. When someone buys and pays for a distribution right they then proceed to resell the item, and receive money for it, and they have the exclusive for a territory (in this case the entire internet I guess). That would be a violation of a distribution right if the whole transaction were unauthorized. And if the person who really did own the copyright was prevented from distributing the product or marketing the distribution right in the product, then his damages would be the value of the distribution right.

As you know, that did not occur here. None of that occurred here. Here, there is not even evidence that she sent anyone a copy.

In fact, in this case the defendant did not "distribute" the recording, within the meaning of the Copyright Act, at all. Under the statute for there to be distribution there has to be
-a dissemination of copies (no proof that that occurred here)
-to the public (no proof that that occurred here)
-by a sale or other transfer of ownership, or by a license, a lease, or a lending (no proof that that occurred here). So to award damages based on the value of the purchase of a distribution right would make no sense since there was no such thing.

Re:Real question

[Joe Jay Bee]

I can't fail to agree with anything you've said. Nice one.

Wondering why there's no replies though. Maybe the "piracy ftw" crowd can't think of a decent rebuttal?

Re:Real question

[dwpro]

I couldn't tell you how much damage our MP3 group did, per song. Neither can NYCL, neither can RIAA or any other entity, because you DON'T KNOW HOW MANY PEOPLE LEECHED FROM HER, AND IN TURN, FROM THE ORIGINAL LEECHERS.

Perhaps we don't know exactly, but it wouldn't be that hard to put an upper maximum based on upload throughput records from the ISP, and I imagine it wasn't in the hundreds of gigabytes. If you estimate ~3 megs a song, she would have to upload 421.87500 gigabytes worth of data to equal 144,000 (RIAA's famous number) downloads. If she is like me, that would take a while at 40kbps upload cap. I would think that she should not be culpable for derivative downloads in the digital age, but that is certainly a possibility.

Regardless, you seem to be using the same faulty math as the RIAA to calculate damages. Mainly, that each download represents a lost sale. Based on your generous $1.50/song, solely by her making the song available 130 fewer people purchased a song than would have already. I have my doubts that the numbers were that high.

Re:Real question

[mpe]

Isn't that the entire point though? No-one knows what the actual damages are. Not even the RIAA!

Whereas you'd usually expect that the party claiming can come up with at least some kind of figure and some evidence to back it up.

So, how can they stick a number on and get away with it in a court of law?

Without a judge simply dismissing the case...

Especially when it's not fixed,

Whilst you can sue for a non fixed amount there generally has to be some reasoning, understandable to the judge, involved.

You are calling out NYCL for his dollar figures; I am calling out the RIAA for the same thing. Let them prove, without a doubt, that there even were damages, and then we can get on with it.

Unless damages can actually be proven then the amount per damage isn't relevent. Multiplying anything by zero gives the same result :) With the onus being on the plaintiff to present actual evidence.

Re:Real question

[mpe]

The total revenue from music sales in the USA is less than $10 billion. So if everyone stopped buying music right now and exclusively changed to downloading music from peer-to-peer networks, the total damage would be $10 billion. Actually a lot less, because that $10 billion revenue produces a lot of cost as well.

It's also more complicated since it is not the case that "downloaders" would otherwise be customers. Whilst the industry likes to claim that if people couldn't download they would otherwise buy this is simply a false dichotomy. Since there are plenty of alternative forms of entertainment. Nor does "buying music" equate to buying a music recording.

Re:Real question

[photomonkey]

Here's how you can put a dollar amount on things:

I'm a professional commercial photographer. I do advertising work, editorial (newspaper/magazine) and documentary work.

For an in-the-clear commercial infringement, I typically seek the cost of the shoot plus 5x the 'market rate' for the run of the photo; and any lawyers' fees I'm entitled to recoup.

Why? To get fairly compensated for what was taken from me, and to make it painful enough to the infringer (usually a company, occasionally a mom-and-pop publisher/advertiser) to realize that next time, they're better off paying market value than 'borrowing' someone else's work to make a buck.

But then, I'm not a parasite. I wouldn't sue you for downloading a picture and making it your desktop wallpaper. I would sue your ass off if you downloaded an image, and used it to sell your business, illustrate your book/publication or sell art prints of the same.

Technically, I would be legally in bounds to sue for infringement if the work appeared on your Web site under a lot (granted, not all) of circumstances. Most of the time, I don't care. Unless you're directly or indirectly profiting from having the work there, toss me a credit, link and an email asking permission.

Copyright is an act of moderation, and I firmly believe in letting the punishment fit the crime/infraction.

Re:Real question

[NewYorkCountryLawyer]

Here's how you can put a dollar amount on things: I'm a professional commercial photographer. I do advertising work, editorial (newspaper/magazine) and documentary work. For an in-the-clear commercial infringement, I typically seek the cost of the shoot plus 5x the 'market rate' for the run of the photo; and any lawyers' fees I'm entitled to recoup. Why? To get fairly compensated for what was taken from me, and to make it painful enough to the infringer (usually a company, occasionally a mom-and-pop publisher/advertiser) to realize that next time, they're better off paying market value than 'borrowing' someone else's work to make a buck. But then, I'm not a parasite. I wouldn't sue you for downloading a picture and making it your desktop wallpaper. I would sue your ass off if you downloaded an image, and used it to sell your business, illustrate your book/publication or sell art prints of the same. Technically, I would be legally in bounds to sue for infringement if the work appeared on your Web site under a lot (granted, not all) of circumstances. Most of the time, I don't care. Unless you're directly or indirectly profiting from having the work there, toss me a credit, link and an email asking permission. Copyright is an act of moderation, and I firmly believe in letting the punishment fit the crime/infraction.

A rational voice.

How refreshing these days.

Re:Real question

[photomonkey]

Thanks, Mr. Beckerman. That means a lot coming from a guy like you.

Buy your music

[Anonymous Coward]

I know I'll get modded down for this, hence AC. There is a simple solution you can take to avoid the RIAA and their evil ways... buy your music? The DRM arguement is pretty weak since Amazon offers DRM free music... (They might not have some obscure artists but most everything you need they have) and the money arguement is weak as well. $.99 for a song... it's reasonable... quit whining about it. I don't agree with the RIAA and how they handle their business (especially these "damages..." give me a flippin break) but there's 2 sides to every battle... piracy is illegal plain and simple.

Re:Buy your music

[Anonymous Coward]

How is $0.99 a song reasonable?

I don't know about most people, but if I wanted to hear the same 20 songs over and over I would just turn on the radio. The reason I have an iPod is to have a much greater variety of music with me.

At $0.99 a song, it would cost me around HALF A MILLION dollars to fill up my iPod, which cost less than $300.

Oh, and the $300 iPod is SCARCE goods, that is, it actually costs something to make each and every one, as opposed to music, where the cost is pretty much the same if you have 1 copy of a song or 1 billion.

5 to 10 cents per song is reasonable, and would be a lot of money if the artists actually got more than 0.00000001% of the total. Eliminate the worthless RIAA executives, give 95% of the money to the artists, and let the public pay $1-2 an album, downloadable in flac, 320, 192 and 128kbps mp3's. If they did that for every artist, piracy would drop. Not sure how much, but I would certainly start buying albums again and I bet I would hardly be alone.

Re:Buy your music

[Anonymous Coward]

So, it's not reasonable now that's it's an issue, but back when music piracy wasn't at the forefront of the news paying $15 for an album was not an issue? Sounds like you are picking your battles.

Re:Buy your music

[Anonymous Coward]

I NEVER paid $15 an album.

I have bought a few $1-3 CD's at pawn shops/second hand stores, but never once paid over $5 for a CD.

And also, making CD's costs money. Having them available for online purchase is MUCH MUCH less "overhead", so $1-2 each now really doesn't sound unreasonable.

Re:Buy your music

[Anonymous Coward]

So what's to stop you from buying CD's for "$1-$3" in pawn shops and second hand stores since it is just that easy, get all the songs on an album DRM free for the price of one, and skip the pirating all together? I do believe you just proved my point. There are other options that are DRM free and frugal... sooooooooooooooooo stop pirating?

Re:Buy your music

[91degrees]

Fine, but sue for actual damages. $0.99 per song. Willful infringement so triple damages. that works out to $2.97 per song.

How can the RIAA claim to lose $200 per song from this person, since they would also claim that anyone who downloaded the song from her cost them $200, and anyone who she downloaded the song from cost them $200.

Re:Buy your music

[gnasher719]

At $0.99 a song, it would cost me around HALF A MILLION dollars to fill up my iPod, which cost less than $300.

Your maths is way off. The largest iPod could hold about 40,000 songs at 4 MB per song; the largest iPod currently sold holds 30,000. And yes, I would expect to pay substantially more for the actual music than for a little gadget that plays it.

I have a 320 GB hard drive on my MacBook. Any idea how much it would cost me to fill that 320 GB hard drive with software, when it is big enough to hold about 500 copies of Microsoft Office?

it bears repeating

[dirk]

While $200 is still about 600 times the amount of the actual damages, it's better than paying 26,000 times the actual damages, which is what the RIAA tried to squeeze out of Ms. Thomas.
I really get tired of saying this, but the damages have nothing to do with what it costs to purchase and download a song. The case is not about a person downloading copyrighted materials (if it was, then the cost of the downloaded song would be correct to look at for damages). The case is about uploading copyrighted material. The person is basically assuming the right to distribute the material. In this case, the proper thing to look at is what the media company would charge someone if they wanted the purchase the rights to distribute the song, which is obviously going to much higher than the cost of purchasing a single download of the song.

If I call the RIAA and say that I want to purchase the right to put hit song X on my website for every visitor to my website to download for free and ask what it would cost to purchase this right, that is what the damages should be compared to. My guess is that this right would cost me much more than the cost of purchasing a single copy of the song, since I am basically buying the right to distribute as many copies as a I want. That is the right that is being infringed upon, and what the damages should be compared to.

Re:it bears repeating

[SL Baur]

If I call the RIAA and say that I want to purchase the right to put hit song X on my website for every visitor to my website to download for free and ask what it would cost to purchase this right, that is what the damages should be compared to.

That's an interesting question. A related question is how much do they charge for licensing if you wish to allow downloading for a fee?

I don't know, but I'm curious.

Re:it bears repeating

[TehZorroness]

A lot, as it would put them out of business. Doesn't make them not fucking peices of shit though.

Re:it bears repeating

[Anonymous Coward]

I wonder how much the National Guard paid to distribute to any numpty with a modem that execrable 'Warrior' song by Kid Rock.

Probably not very much, but any amount is too much. There needs to be accountability in government I say! I resent the waste of my tax dollars!!!!

Re:it bears repeating

[SL Baur]

Whatever.

They're FPOS because their methods are unsound. See: http://recordingindustryvspeople.blogspot.com/2007/03/deposition-of-riaas-expert-available.html

Re:it bears repeating

[bit01]

If I call the RIAA and say that I want to purchase the right to put hit song X on my website for every visitor to my website to download for free and ask what it would cost to purchase this right

In a true free market that price might have some meaning. In the current oligopoly that price is meaningless and insulting. Those dinosaurs need to die.

---

It's not piracy, it's sharing. Didn't your parents teach you to share?

Re:it bears repeating

[91degrees]

The person is basically assuming the right to distribute the material. In this case, the proper thing to look at is what the media company would charge someone if they wanted the purchase the rights to distribute the song, which is obviously going to much higher than the cost of purchasing a single download of the song.

But it's kind of ridiculous to believe that a 16 year old would ever buy a distribution licence and then give the songs away for free. So that means that they have lost $0 through this.

Re:it bears repeating

[dontmakemethink]

Hear hear. I've had clients of mine pay upwards of $1500 for the right to include a cover (their own recording) of a copyrighted song on their album. What that latest cover I heard on the radio, someone doing Micheal Jackson's Beat It. Think they got the rights for that for $200?

Pirates need to learn the affect they have on songwriters. In the end, it's not worth it, unless you want to listen to rehashings of the same unoriginal crap for the rest of your lives. Don't believe me? Turn on the radio!

Re:it bears repeating

[cliffski]

well its ridiculous to think I could afford a Ferrari, but it f I swipe one anyway, or joyride one and return it (effectively assuming the right to drive it) I still get rightfully prosecuted.

You can't base a society around "if you can't afford to buy something, you can have it anyway". Not a capitalist society anyway. Other systems are available, but most people find them not to their liking.

Re:it bears repeating

[jcgf]

I can't make a copy of your Ferrari instantly and without depriving you of yours. Your analogy sucks and people should stop using it.

Re:it bears repeating

[Fastolfe]

In this case, the proper thing to look at is what the media company would charge someone if they wanted the purchase the rights to distribute the song, which is obviously going to much higher than the cost of purchasing a single download of the song.

So if I had my own record label and did my own distribution, I could offer to sell redistribution rights for $1M per song and sue everyone sharing my song for that amount?

The purpose of a civil suit is compensation, not forced licensing. That compensation should be based on the damages caused. How much money did the copyright holder lose because of this person's actions? They would not have signed up for a redistribution license, so it's ridiculous to say that this is what they lost. What they lost is potential sales. Every person that downloaded a song might have paid someone else for that same song had it not been available for download. This means the record label was "harmed" by the wholesale price of the song multiplied by the probability that the downloader would have purchased it at market price.

Re:it bears repeating

[Anonymous Coward]

The person is basically assuming the right to distribute the material. In this case, the proper thing to look at is what the media company would charge someone if they wanted the purchase the rights to distribute the song, which is obviously going to much higher than the cost of purchasing a single download of the song.

That sounds a lot like defective logic. Presumably anyone buying a license to upload music (eg Apple) is doing so to make a profit. If they were paying the RIAA more than they were charging the public, they would be losing money. And in any event we already know what Apple pays the RIAA to upload their music: ~0.70/copy.

Re:it bears repeating

[91degrees]

If I did that I'd be arrested and charged with theft. If it could be proved that I genuinely believed that the car was mine to do with as I liked, then I'd have a valid defence.

Should the defence be accepted the owner would be able to sue for the loss of the use of his car. He would have to prove damages. If his argument for damages was that people would pay $200 to drive it, then it would only be fair if it was reasonable that I would have paid that much had I not realised it was mine. So what's your point?

You can't base a society around "if you can't afford to buy something, you can have it anyway". Not a capitalist society anyway. Other systems are available, but most people find them not to their liking.

Nope. People are only applying this rule to something that is an unlimited resource. As it happens I'm not arguing this at all, so this is something of a non-sequitur.

And Stop. Comparing. Copyright. Infringement. With. Theft.

Re:it bears repeating

[Anonymous Coward]

When you distribute songs without permission you are depriving the RIAA members of exclusive distribution. Yes, it's not the same as theft, but they are clearly being deprived of something.

Re:it bears repeating

[Stray7Xi]

And what you say is still wrong.

The cost to purchase does determine damages. 30 distributions of a $1 song is $30 damages. It's insane to say the RIAA can make up whatever number they want because that's what they'd want to charge for these circumstances, they have no reason to be honest or fair. The only way to do it fairly is go off the fair market value that the market has decided.

By your notion, should Prince sue that baby one billion dollar because his baby-dancing video license is 1 billion dollars?

Re:it bears repeating

[Anonymous Coward]

If I call the RIAA and say that I want to purchase the right to put hit song X on my website for every visitor to my website to download for free and ask what it would cost to purchase this right, that is what the damages should be compared to.

That's an interesting question. A related question is how much do they charge for licensing if you wish to allow downloading for a fee?

I don't know, but I'm curious.

Well, of the $0.99 Apple charges per song, roughly $0.65 goes straight to the record company. So, to compare damages, the RIAA would like $200/track for distribution of songs worth $0.65/track, which is 308:1

Information from discovery has shown that the "wholesale" cost is claimed to be $0.35/track, which would give us a ratio of 571:1

The Supreme court has ruled that anything over ~10:1 is unconstitutional, which, if we believe the RIAA's figures, gives an upper damages limit of $3.50/track.

Punitive damages are meant to PUNISH

[mi]

While $200 is still about 600 times the amount of the actual damages

Punitive damages are meant to punish the offender, not just compensate the victim for their loss (which, because of the legal fees and the costs of investigation are still way higher). The young woman infringed knowingly — not by accident.

She was not even stealing bread, medicine, or other vital sustenance — it was just entertainment. I have no sympathy for her, and neither should you... And yet, puzzlingly, there will, no doubt, be angry follow-ups (and negative moderations) here claiming that:

1. the stolen entertainment was crappy and therefor stealing it is Ok — the most befuddling illogic in this long-running debate;
2. copyright violation is not exactly like stealing tangible goods — and therefor there is nothing wrong with it;
3. it is only the middlemen like RIAA, who worry about infringement — like it matters, or like actual musicians and other content-creators don't give a damn.

Re:Punitive damages are meant to PUNISH

[Dutch Gun]

I don't condone her actions, nor would I excuse them. In fact, I get somewhat irritated by those that try to justify stealing music. I'd actually agree that she needs to be punished to some reasonable degree.

I don't agree, however, that downloading music illegally is a crime that merits the financial destruction of someone's future. That's the issue I have here.

Let me ask you - would you consider illegally downloading music or stealing a car a more serious crime? Doesn't it seem a bit crazy to you that the penalty for downloading music is harsher than grand theft auto?

Re:Punitive damages are meant to PUNISH

[mi]

Let me ask you - would you consider illegally downloading music or stealing a car a more serious crime? Doesn't it seem a bit crazy to you that the penalty for downloading music is harsher than grand theft auto?

Actually, stealing a car is a felony — except, evidently, in Seattle, where it is a "gross misdemeanor". One's life is much more likely to be ruined by such a conviction, than by "financial destruction of a future" — which is a waaaay too pessimistic a term for $10-20K.

Re:Punitive damages are meant to PUNISH

[Dutch Gun]

Actually, stealing a car is a felony -- except, evidently, in Seattle, where it is a "gross misdemeanor". One's life is much more likely to be ruined by such a conviction, than by "financial destruction of a future" -- which is a waaaay too pessimistic a term for $10-20K.

This is what I mean when I talk about "financial destruction".

Re:Punitive damages are meant to PUNISH

[91degrees]

Punitive damages are meant to punish the offender, not just compensate the victim for their loss

These are statutory damages. Since they were reduced to $200, she was deemed not aware that she was infringing. So why is she being punished? Well, she's not. Statutory damages are different from punitive damages.

Re:Punitive damages are meant to PUNISH

[meringuoid]

The young woman infringed knowingly ... the stolen entertainment

Very slick. You begin by talking about things being infringed, in order to get people off their guard, then shift seamlessly into talking about things being stolen, as if they're quite the same thing. Of course you know the difference full well.

Re:Punitive damages are meant to PUNISH

[mpe]

Let me ask you - would you consider illegally downloading music or stealing a car a more serious crime? Doesn't it seem a bit crazy to you that the penalty for downloading music is harsher than grand theft auto?

Especially considering that someone's car being stolen tends to lead to actual hardship to people. Such as higher insurance premiums and having to manage without the machine they usually use. Whereas downloading music may simply deprive a highly profitable business of a trivial amount of money.
IMHO this isn't a meaningful comparison of scale. Better would be between "downloading" and someone stealing a CD from a store.

Re:Punitive damages are meant to PUNISH

[Anonymous Coward]

Hold on a second, I don't see anyone (or at least anyone credible) arguing ANY of those three points you generalized the Slashdot response to. I at least see where you could have gotten (1) from, but for (2), nobody is saying it's completely ok to violate copyright, just that it's completely NOT ok to completely ruin somebody's life over it. Neither the crime nor the losses suffered by the "victims" (more on that later) are very severe, and the perpetrators don't deserve a (financial) life sentence over it. Your third point is actually quite the opposite of what most Slashdotters believe, if I'm reading the forums right--the article you cited shows METALLICA, one of the few artists who actually see sizeable profits from their music, telling people not to reduce those profits. A majority of artists don't benefit from the current scheme, so violating the copyright doesn't actually hurt them, it hurts an organization that did not create the music.

Final note: if I took a picture of some small-time painter's work, and posted it on the internet where other people can freely look at and enjoy it, should I really have to pay thousands of dollars to the art museum, of which the artist will see nothing? Not entirely analogous, but I feel like the cases are similar enough to bear consideration.

Re:Punitive damages are meant to PUNISH

[Anonymous Coward]

Punitive damages are meant to punish the offender, not just compensate the victim for their loss (which, because of the legal fees and the costs of investigation are still way higher). The young woman infringed knowingly â" not by accident.

Let's try a non-car analogy then. I don't like your face and so I throw a rock through the plate glass window in your house. You have to pay $750 to get it fixed. Therefore, you sue me for $1,500,000 in punitive damages -- 2000 times the actual damages, like the RIAA. At this point you get laughed out of court and possibly sanctioned.

Damages, including punitive damages, have to be proportional to the harm.

Re:Punitive damages are meant to PUNISH

[Anonymous Coward]

She wasn't stealing music and she isn't being punish for downloading it. She's being punish for distributing it without a license. To me there's a huge difference. People here can't seem to tell the difference between the three.

Forget RIAA, listen to indy labels

[Anonymous Coward]

RIAA constantly sues the incorrect parties and still gets settlements (because not all people can afford attorneys). The gov't does nothing to help. After all, government is sold out to the highest corporate bidder. When the gov't needs illegal wire-taps, Verizon allows them secret rooms to listen in on calls. When Haliburton (and KBR) need more revenue, the gov't hands out no-bid contracts. When the gov't dislikes literature, Amazon, Wikipedia and Facebook ban the book "America Deceived". The corporations own our government, not the people.
Final link (before Google Books caves to pressure and drops the title):
America Deceived (book)

Bad time to be King John screwing the serfs

[gelfling]

Trust me **AA in this bleak economic frontier you are months away from one of your people getting murdered over this. Probably outside a courthouse right after one of your lawyers congratulates him/herself over how wonderful it is to fuck people over, poor people. Let me know how that works out for your legal department.

Re:Bad time to be King John screwing the serfs

[gelfling]

Mod me a troll? Do you light your cigars with $20 bills or are you just inherently opposed to reasonable behavior?

Still.. it is progress...

[Plekto]

$200 a song can easily be arbitrated down to half or 1/4 of that amount that they would actually pay. Yes, it's excessive, but this alone sets a ceiling for such claims in the future. And every time that they accept less, they set that bar lower. I suspect that it'll end up being closer to $50 a song by the time this all blows over a few years from now. Yes, that is punitive, and hugely so, but it's never going to go down to the actual cost.

And, technically they DO have you dead to rights if you are file sharing music, as it is re-distributing music and the single purpose of the copyright is to give them the only legal right to distribute the music. But only for the files that you share. That's the tricky part, since their monitoring system doesn't seem to do a very good job of figuring that out.

$4.00 for infringement is more like it....

[mlwmohawk]

If the standard for judgment is actual damages plus treble damages, i.e $0.99 per song and $0.99 * 3 for damages, that's more like it.

While I don't mean to incite violence, but I'm really starting to think that "we the people" need to find a way to rid ourselves of these parasites who write the laws, pay the legislatures to pass the laws, pay the executive branch to sign the law, "influence" the judiciary to uphold the laws, and destroy the lives of defenseless citizens.

Sorry, but they suck, and they all need to be on a plane that crashes in the ocean.

Re:$4.00 for infringement is more like it....

[qzulla]

Your price is based on the cost of the song for one copy. If it is shared and downloaded by two we now have $6. If it is downloaded by three it is... you see where this is going. That is what they base the cost on though I do think their numbers are skewed and they should have to provide some proof as to how many times it was downloaded. It would really slow them down.

I know, I know, they have no proof how many times it was downloaded but you have no proof it was only once.

I don't like the RIAA any more than you do but your reasoning does not help the cause.

qz

Re:$4.00 for infringement is more like it....

[cliffski]

So we should grab a pickaxe and run into the streets?
Because we want the right to take music for free.

Not because of Enron and the Bank bailout, or because of the tax breaks for billion dollar oil companies, or the state of US healthcare, or the False premise behind the war in Iraq, the costs of that war both in lives and money...

Oh no. Those things are only minor annoyances that we can just grumble about.

But we should *totally* be rioting in the streets because we can't copy mp3s without paying...

Re:$4.00 for infringement is more like it....

[kramerd]

I believe we have one, called voting.

Just vote your current house/senate member out of office. Cite this as the reason why. If you can remove one, half of the remainder will change their stance.

See tobacco industry for examples (too lazy to look up right now).

Re:$4.00 for infringement is more like it....

[Anonymous Coward]

Of course you can prove it was not downloaded x times.

Simply take the average portion of an item that was shared, your share ratio (or, if you didnt download initially, the file size), divide by the average portion of the shared file downloaded, and multiply by the number of leechers to determine the maximum that could have downloaded the entire file.

For example, a 5 mb file, 200 leechers, your share ratio is 3. The average amount downloaded per leecher was 0.2 mb.

5mb/.2mb = 25

200 leechers/25 = 8 distributions.

Share ratio = 3 = 15mb distributed.

You could have distributed between 3 and 8 people, but they odds of you having distributed even 1 are statistically insignificant.

  The avg amount of a song distributed was 15/8 mb (less than half of a song). The standard deviation is (15/8 mb /6). In order to have been required to have distributed a full song, assuming normal distribution, would require you to be 5 standard deviations outside the mean. 98% of all cases will be within 3 standard deviations.

To be fair, the distribution is just as likely to be 0 as it is 1 with any given leecher in this case. If your share ratio isnt sufficiently high (lets claim materiality, since the RIAA wants to show damages, so we need 5%), in the preceding example, it would need to be 10.

Additionally, you have to factor the number of people who are legally downloading when you are distributing. The RIAA certainly has to show that both members of the seed/leech section did not have the right to distribute ( the right to distribute to those who already have purchased the product is implied if you bought the album under both fair use and right of first sale).

Going back to original point, if you are distributing for a fee, you absolutely need the RIAA's permission. If you are distributing for free, you just need a license. That license could be a percentage of ad revenue (or other revenue from your website), or a fixed fee (either per time or per user), but in order to set that, you would have to negotiate individually with the RIAA. No ifs, ands, or buts about it. This exists, however, only if you are distributing to those who do not already have the right to use the item being distributed. One could argue that the RIAA acknowledges that the vast majority of people who download and that they sue have the right to do so, since they generally charge less than 0.01 per listener for websites they have contracted with, under this very premise.

In this case, a $200 fine for distribution to a small number of users (lets say 100) is 200 times actual damages. Reasonably, $4 a song is above the treble damages limit per song.

Re:$4.00 for infringement is more like it....

[seeker_1us]

They damn well should have proof for how many times it was downloaded. "making available" is NOT making a copy.

Re:$4.00 for infringement is more like it....

[cliffski]

Ah yes, I see anyone who doesn't support copyright infringement still gets marked as troll.
How mature.

Re:$4.00 for infringement is more like it....

[NewYorkCountryLawyer]

Actually I think you were marked "troll" because you were overreacting to, and/or mischaracterizing, the post to which you were responding. He didn't say he 'supported copyright infringement', he said that he thought the damages awards were excessive, and something more like actual damages plus a penalty of treble damages would be more like it. To extrapolate from that that he was in favor of copyright infringement is unfair.

Re:$4.00 for infringement is more like it....

[Anonymous Coward]

I like the way nobody even pretends to embarrass themselves by pretending the defendant is innocent. Not even you. And that's saying something.
If you can't pay the fine, don't distribute and steal copyrighted music. Why can't people get this through their heads?

Re:$4.00 for infringement is more like it....

[Stray7Xi]

I know, I know, they have no proof how many times it was downloaded but you have no proof it was only once.

No but it's easily possible to prove that the sharers on average are responsible for 2 copies, their own and one upload. Since there can't be more uploads then downloads, on average people will have a 1:1 ratio.

Also that'd be based on idea of suing both the downloader and uploader of a single transfer, otherwise it'd only be 1 copy.

Invalid point

[Anonymous Coward]

They are going to sue those three others as well.

Or are the RIAA going to stop suing for those 24 tracks because Jammie paid for a distribution license?

NOTE: if you're caught on a bus the fine gives you the ticket to ride, so this is already done in infringement cases.

so they won't sue two hundred others?

[Anonymous Coward]

'cos I'm certain "I got it off Jammie" won't be a defense.

copyright infrigement != stealing

[cpghost]

Test your logic:

A. Stealing == mv(1). (as in: mv /riaa/somefile.mp3 /home/mycollection)

B. Infringing copyright == cp(1). (as in: cp /riaa/somefile.mp3 /home/mycollection)

C. mv(1) != cp(1). (because with mv, /riaa/somefile.mp3 is gone, while with cp, it's still there)

Ergo: Stealing != Infringing copyright.

Really Wrong

[Anonymous Coward]

The damages are 0 unless otherwise proved. Let's talk about that..

RIAA agrees to be totally greedy

[Snaller]

As opposed to being totally greedy times 2

Wow, fantastic story.

The New Math?

[Digital Vomit]

600 x $0 = $200? Gee, math is hard...

What about bootlegs?

[okmijnuhb]

Suppose you share bootleg files that are unavailable for sale anywhere?

Can they sue you for monetary damages?

Better?!

[aaandre]

It's not better, as it's still extortion, just with lower numbers. Agreeing to discuss numbers is agreeing to assume fault, and then the numbers can easily be manipulated.

Copyright law is broken. The music industry is broken. Changing its business model from exploiting musicians to exploiting musicians and extortion is not an improvement.

It's like the story about the old ugly man and the hot girl at the bar:
Man: Hi there. Would you suck me off for $20?
Girl: What???
Man: $200?
Girl: How do you dare to talk to me like that!
Man: $2000?
Girl: You are being ridiculous.
Man: $20,000? He opens his bag, it's full with $100 bills.
Girl: F*ck it, for $20k I'll do it.
Man: I can't afford $20,000 but if you'd do it for $20 I'm game.
Girl: What?! I am not this kind of girl!
Man: We already determined what kind of girl you are, now we're just bargaining.