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

hmm

[nomadic]

University of California law school

That narrows it down...

Re:hmm

[phantomfive]

A quick Google search puts her at Berkeley. Which isn't surprising.

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

[NewYorkCountryLawyer]

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 be[..] seen as akin to the small guy and the individual consumer the BIG guy?

They can't. The DOJ's brief was nonsense. For that and a number of other reasons.

Maybe their math isn't too good. 116 times their actual damages would be around $40; they're looking for $750 to $150,000 per mp3.

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

[W. Justice Black]

I'm man enough to admit that I have pirated music which I would have paid for otherwise.

I guess I'm not. I will NOT buy CDs or anything on iTunes, but as soon as Amazon started selling MP3s that:

• Will play on pretty much anything.
• Are unrestricted, and
• Don't absolutely require the use of a funky downloader to get

I started purchasing every song in my download folder and that was available through them (I tend to keep my collection pretty clean and delete anything I don't like after a play or two). Yes, that meant a few hundred dollars over the last several months. Yes, that also means there are some songs in there that still aren't legit (they're not available through Amazon).

Amazon, in short, has what I want the way I want it, and I'm quite willing to pay for that. I suspect that, once this silly DRM thing goes away, people will be plenty honest enough to keep the music business from dying. The days of obscene margins on an artificially-scarce product are over, but the death of the industry is not at hand.

IF the labels keep a cool head about it and don't do anything (else) stupid.

Re:Deep pocket lobbyists will get you everything

[Starayo]

I refute the claim that what the RIAA labels produce is 'music'. They make noise. Lots and lots of irritating noise.

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:Deep pocket lobbyists will get you everything

[Dun Malg]

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, but that's part of why it's bullshit. You can't make one person pay for the transgressions of 100 others. That's the canonical definition of "scapegoating", and it has no place in law.

Re:Deep pocket lobbyists will get you everything

[rdnetto]

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.

Guess again. There are now enough internet radio stations and independent artists who are willing to provide music for free that it would be quite feasible to go without buying any music.

But this serves only to demonstrate that your premise of it being impossible to listen to music without paying for it is flawed, since there is no way to regulate the actions of people who want to give their works away. If there were, I doubt that Linux would cease to exist.

Re:Deep pocket lobbyists will get you everything

[jonaskoelker]

You can't make one person pay for the transgressions of 100 others.

That would be the case if the RIAA/MPAA argued that you are responsible for them downloading.

I think the MPAA/RIAA argument is that you are responsible for 100 counts of uploading (for n=100).

I think that's a reasonable argument: if you do something wrong a hundred times, you should pay for all hundred.

It's just that they don't provide any good evidence. ... And their legal maneuvers are dubious. Go to Ray Beckerman's site for a lawyer's argument as to why.

Re:Deep pocket lobbyists will get you everything

[bzipitidoo]

Do you really believe that people shouldn't have to pay for music, movies, video games, software, etc...?

Who is saying that? It's the mechanisms we don't like. Face it, copyright is broken. There is no technically feasible way to stop copying. DRM does not work. And there isn't any social way to stop the sharing either. It's hard enough just trying to figure out whether a particular act of copying is legal or not. I think a good comparison is with so-called morality legislation, where some group attempts to have whatever sort of sex they don't like outlawed. Those sorts of laws plain do not work. Consenting adults can engage in whatever sex they like and no outsider will easily find them out. So it is with copying.

I support compensating artists for their work. I don't support the concept of "copyright" as a means to that end, because copyright has no teeth. It no longer works. It only worked in the past because copying used not to be so easy, requiring much expensive and bulky equipment that could be monitored. Today, sharing files is much, much easier than sex. It's like virtual sex.

But until we get the law caught up with reality, these MAFIAA organizations are cynically using a very favorably puffed up, monopolistic, warped version of copyright that isn't (or wasn't) supported by the actual law, to threaten and extort a very small fraction of the technically guilty public, which is pretty much everyone. Canada put a levy on blank media to settle the grievances of the entertainment industry, but for some reason which is probably the mindless pursuit of every last dollar real or apparent, the industry is still trying to sue individuals, game the legal system, or just outright renege on the deal by bribing legislators to pass more legislation doing just that.

I don't understand what the end game is for slashdotters.

For me, the eventual withering away of copyright is the goal. When we have other means of compensation in place and working, and working so well that copyright is merely a useless impediment, then we can let it die. Until then, artists will have a choice of means. Copyright will be only one of those means. There would have to be some exclusivity-- no one should be allowed to have it both ways, that is, collecting money under whatever alternative compensation scheme arises and then turning around and denying people so they can make (or think they can make) yet more money with copyright. The law can keep copyright enshrined forever, it just won't be used, not with other, superior methods in place.

Can you imagine what things would be like if people no longer had to fear the hammer of copyright violation? Want to do Star Wars or Lord of the Rings your way? Think someone else could sing and play the Beatles' songs better than the Beatles did? Think the dialog in Star Wars could stand some serious improvement? "You will never find a more wretched hive of scum and villainy", etc. Go for it, and Lucas, the Beatles, or the Tolkien estate won't have any say about it. The current situation is absurd. Save for parody, they get to dictate the value of and uses to which their "property" is put because not being in total control could somehow harm that value. I recall a boy did just that with Star Wars, and, incredibly, they considered suing the child! We might see a real flowering of the art of mashups. We might see genuine improvements of stories-- not bowdlerization but actual refinements, and the preferred version of a story could easily be something many authors worked on. Sort of like a certain work known as The Bible. As for the rest of us, we'll have the freedom to openly use our computers and networks to their fullest powers.

Excellent

[maz2331]

This is very much a positive development, though really the whole issue is eventually going to have to go before the Supreme Court. At least they seem to have been generally pretty decent in their handling of Constitutional and "IP Law" issues the past few terms.

Re:Excellent

[NewYorkCountryLawyer]

This is very much a positive development, though really the whole issue is eventually going to have to go before the Supreme Court. At least they seem to have been generally pretty decent in their handling of Constitutional and "IP Law" issues the past few terms.

In practical terms, it doesn't have to go to the Supreme Court. A few well reasoned decisions in district courts, or courts of appeals, will have sweeping effect.

The DOJ's position -- if litigated -- doesn't have the chance of a snowball in hell of being upheld. The RIAA's statutory damages theory is flagrantly unconstitutional, under the Williams test or under the Gore test.

Re:Excellent

[NewYorkCountryLawyer]

yes, because "working papers" are important agents of legal authority and change (hint: they mean jack shit to the law, which is decided inside courtrooms, not on internet blogs and uploaded PDFs).

The 'working paper' is merely an earlier stage of a law review article. This working paper will almost certainly become a law review article.

If you think law review articles are not read by the courts and considered carefully you are wrong.

In UMG v. Lindor, the only one of these RIAA cases to litigate the constitutionality-of-statutory-damages issue, the Judge referred to 2 law review articles in ruling against the RIAA.

Throughout legal history, many important decisions have been guided and informed by legal scholarship in law reviews.

Yes cases are decided in "courtrooms" but scholarship is an integral part of each practicing lawyer's work, and of each Judge's work.

Re:Excellent

[NewYorkCountryLawyer]

these people are relentless and have enough of an agenda + litigation budget to try circuit-hopping until they get favorable rulings

You don't know them like I do. There is no way they will let this issue get fully litigated. Whenever they run up against a lawyer like me they will fold up their tent before letting this issue get decided. When they lose on this issue, the game is over for them. Without their ridiculous, draconian statutory damages threat, they are finished.

They might go to the mat in the Tenenbaum case, only because they look upon Prof. Nesson's unconventional legal arguments as easy prey. But I think they would be making a mistake in going to the mat even there, because Judge Gertner is not going to let Prof. Nesson control the legal parameters. She will determine them.

Most likely you will never see these issues fully litigated in the RIAA v. end user cases at all.

Support Roll Your Own Artists!

[I_Can't_Fly]

Come on guys...

Whatever happened to improvisational near real time performances in the public domain.. rotfl.

Well anyway if someone wants a recording of the bad storms that rolled through here about 3 hours ago with some guitar recorded live.. here it is.

Tennessee Storms of April 10, 2009 and guitar

Like the universe..the net has a lot of alternatives, and not just mine. Stop being force-fed what you like.

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!

Obama Justice Department

[Nom du Keyboard]

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?

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: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)