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

[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

[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: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.