Copyright Scholar Challenges RIAA/DOJ Position

NewYorkCountryLawyer writes "Leading copyright law scholar Prof. Pamela Samuelson, of the University of California law school, and research fellow Tara Wheatland, have published a 'working paper' which directly refutes the position taken by the US Department of Justice in RIAA cases on the constitutionality of the RIAA's statutory damages theories. The Department of Justice had argued in its briefs that the Court should follow a 1919 United States Supreme Court case which upheld the constitutionality of a statutory damages award that was 116 times the actual damages sustained, under a statute which gave consumers a right of action against railway companies. The Free Software Foundation filed an amicus curiae brief supporting the view that the more modern, State Farm/Gore test applied by the United States Supreme Court to punitive damages awards is applicable. The new paper is consistent with the FSF brief and contradicts the DOJ briefs, arguing that the Gore test should be applied. A full copy of the paper is available for viewing online (PDF)."

Comments

Deep pocket lobbyists will get you everything

[al0ha]

The DOJ is basing their arguments on an action from 1919 where the small guy was able to be awarded appropriate damages from the BIG guy.

How can the media companies been seen as akin to the small guy and the individual consumer the BIG guy?

By Benjamin goggles of course!

Re:Deep pocket lobbyists will get you everything

[macraig]

Isn't that demand based on some theory of "collateral" and cumulative damage caused by someone sharing a media file? In other words, you share the file, which thousands of other people receive for free and thus don't pay to own, so YOU are responsible for the (theoretical/estimated) cumulative loss of profit?

(Yes, I know there are other interpretations how that scenario actually plays out; I'm not drinking the Kool-Aid, merely pointing it out.)

Re:Deep pocket lobbyists will get you everything

[artor3]

Most of the people I know who download music either 1. would never buy it in store, so that's not money they lost

According to who? The person who pirated the music? I've got news for you. People rationalize their actions. All the time.

If tomorrow it suddenly became physically impossible to listen to music without paying for it, would these friends of yours all sit in silence for the rest of their lives? No. They'd buy some music. Not nearly as much as they're willing to take for free, but some.

The damages the RIAA sues for are obscenely inflated, but to claim that piracy does zero damage to them is simply dishonest. Maybe your friends aren't willing to be honest about it, but I'm man enough to admit that I have pirated music which I would have paid for otherwise. And I am 100% certain that I'm not alone.

Re:Deep pocket lobbyists will get you everything

[Doctor_Jest]

If it's actual damages, let them write them off on their taxes. If they truly are losses, they can claim them. If not, (which I wholeheartedly side with the "imaginary" argument), then they need just shut the hell up. It'd be subject to GAAP rules, of course. But I think they could manage that, considering how much they pay for these moronic experts and other pondscum lawyer-types.

I don't care if "piracy" (infringement is the word, not piracy) causes anything. Copyright doesn't guarantee profit. It never has. That's what the heck's been missing from this argument for quite some time. Simply making something, copyrighting it and offering it for sale doesn't guarantee a dime, but the RIAA seems to think so, and they are doing their damn level best to be sure they pay or coerce as many people as possible to believe that horseshit too. The RIAA (and other asshole AA's) want you to believe that money is it. It's not that. It's about control. You have the control on where and when you can listen to the music you own (or traded), and it bugs the shit out of them. If they had their way, you would pay for a CD, then if you wanted it on your portable device, you'd pay again. And if you wanted to listen to it in your car, you'd need another CD purchase. But that would require licensing, and it would subject them to liability they don't want (hint, the "cake and eat it too" argument fits here). So, they sell it as a commodity, don't get too up in arms about used sales, and try to squeeze the collective nuts of their customer base who shares their music. Bah. I don't see how the hell people don't just tell them to take a flying leap and let them rot. I really don't. I am as guilty of aiding these dipshits as the next guy (surprise, I buy music), but come on... this is getting ri-goddamned-diculous. I try to limit my purchases to non-RIAA member companies, but it's increasingly a lose-lose situation with recruitment (or indoctrination as the case may be) at an all-time high. It's nauseating as much as it is depressing to think about.

I'd rather see Roseanne Barr naked than have to deal with the RIAA ever again.

Re:Deep pocket lobbyists will get you everything

[NewYorkCountryLawyer]

The damages the RIAA sues for are obscenely inflated, but to claim that piracy does zero damage to them is simply dishonest.

Of course there is damage, but the courts have rejected the RIAA's theory that each unauthorized download represents a lost sale, in this recent criminal copyright infringement case.

Re:Obama Justice Department

[NewYorkCountryLawyer]

So the Obama Justice Department has its head up its collective RIA-A$$. And their justification for this is that the Bush Justice Department had their own heads up in the same warm dark spot so it must be right. So how's all the Hope and Change working out for you?

I was disappointed in the low grade, obsequious briefs the Justice Department filed in SONY v. Tenenbaum and SONY v. Cloud. I was hoping for "change" but found none in this area. Nevertheless we are early in the game, and the Justice Department RIAA lawyers are all legally recused from dealing with these cases.

Re:Support Roll Your Own Artists!

[rts008]

Well Done!
Not my normal type of music, but that was an interesting piece of work, having the storm in the background. Calm and soothing, yet with a dynamic tension that keeps it from going stale halfway through. (it reminded me of something I could have expected from Carlos Santana)

This is a good example of why all of the "Oh No! The music is dying!" crap from the RIAA and their shills runs in one ear and immediately out the other with me.

There are just too many people out there like you, who will make music for the enjoyment of the music...and don't mind sharing.
Thanks for both the attitude and the music. You made my day with that!

Re:Won't the Supremes intervene again?

[russotto]

I doubt there's a judge in the land who would rule that statutory damages of 2100 times the actual damages is constitutional.

I can name 5: Roberts, Alito, Scalia, Kennedy, and Souter. (yeah, I'm a pessimist)