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

[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.

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.

[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.

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

[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

[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.

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

[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?

[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?

[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?

[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?

[Anonymous Coward]

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

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>

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

[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:Judge can reason evidence, can he administer?

[AngryLlama]

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

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

[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

[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.

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]

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

[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.

$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....

[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....

[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: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?

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.

The New Math?

[Digital Vomit]

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