Actually it's in the personal injury cases that the issue first came up. The US Supreme Court said that jury awards for punitive damages which greatly exceeded the actual damage were violative of due process. The 2nd Circuit then held that the same analysis could be applied to statutory damages, and the district court for the Northern District of California held that it could be applied to statutory damages under the Copyright Act in p2p file sharing cases.
Yes but judge was following, not disobeying, 9th Circuit. She was well aware of 9th Circuit ruling in that very case, and did not interpret it the way the Slashdotter to whom I was responding interpreted it.
My colleague Ty Rogers graciously pointed out to me, in reading your comment, the following excerpt from one of the Law Review articles we cited in our briefs:
"There are multiple ways in which we might measure the economic loss caused by a defendant's file-sharing activities. To illustrate one such approach, consider the following example. Suppose that file-sharer W illegally downloads to her computer Led Zeppelin's song Stairway to Heaven. The song is downloaded to a shared folder on her computer and thereby made available for others to copy. Suppose further that three other file-sharers, X, Y, and Z, subsequently download the song from W's computer. Thus, there are four people in this example who desired the song but who did not pay to obtain it. In other words, there are four lost sales. Because file-sharers are sued independently, we need a way to apportion this harm among the relevant actors. How might this be done?
A starting basis for apportioning the harm is to deem the person who initiates a file transfer (the downloader) as having caused harm by that action. This person benefits by receiving for free a work of music that must be purchased to be legitimately obtained. Allowing her to escape responsibility for causing harm is not consistent with her initiative in effecting the illegal transaction. Stated differently, this person's money would have gone to the copyright owner (if indirectly) in order for her to obtain the song, but now the money stays in her pocket as a direct result of her affirmative actions. In contrast, the file-uploader gets no economic reward from her outbound transfer and may be unaware of the sharing. [FN139] Thus, we can assign the downloader responsibility for causing one lost sale by illegally downloading the copyrighted song.
The other half of this transaction is the uploading of this song, so we might also assign to a person responsibility for one unit of economic loss per act of distribution--each time that the actor uploads a copyrighted music file, she is responsible for a lost sale. This seems satisfactory at first because the distribution of copyrighted works is illegal and is necessary for file-sharing to work. This conception, however, overstates the actual economic loss. In *547 our example, this conception would count seven units of economic harm (one for W's song download, three for W's uploads, and three more for each of X, Y, and Z's downloads). Yet the copyright owner in our example has suffered only four lost sales. This scheme, then, is flawed.
Instead, this Note adopts a conception of file-sharing's economic harm that attributes responsibility for economic loss to a person's instances of illegal downloading but not distribution. One person's distribution is another person's downloading, so counting economic loss as caused by acts of distribution, in addition to counting acts of downloading, would overstate the total amount of harm. While this Note settles upon this model of file-sharing's economic harm, it is certainly not a perfect conception. For example, this model does not account for whatever revenue is generated by persons who first illegally download a song for sampling and then later purchase it legitimately. Nor does it counterbalance this revenue by accounting for revenues lost due to a record company's impaired ability to market a collection of several songs as one unit, as on the typical album, or to collect licensing fees from online retailers that play short music samples to their customers. Thus, this Note acknowledges the existence of imperfections in its model of file-sharing's economic harm; it concedes that changes in this model will alter the separation of the punitive and compensatory portions of a statutory damage award and ultimately affect the outcome of substantive due process review.
Having explained why a file-sharer is held responsible for causing one lost sale for each copyrighted work that he or she illegally downloads, it bec
gundersd wrote: ".. what I'm curious about is who checks that the RIAA hasn't already put a claim in for this particular song somewhere further up the chain? ie. person A shares a file that persons B,C & D download. RIAA files a suit against person A, claims $750 damages. Person A pays. RIAA now files suits against B,C & D (who are now also sharing the file) claiming $750 from each of them too, even though, in theory the claim against person A was for ALL downstream sharing too. Can someone explain the legalese behind that? I'm sure there's probably some reason why they would be allowed to get away with this, but it doesn't seem to make much sense to me at the moment."
Good thinking, gundersd.
You're being intelligent. Let's hope the courts will be as well.
eldavojohn wrote: "I know this is slightly off-topic but I would like to point out NewYorkCountryLawyer's donations of legal stories and advice to Slashdot.
Recently, the user NewYorkCountryLawyer has provided us with many stories (bottom of the user page) that revolve around the RIAA & music suits. On top of that, oftentimes whenever a legal issue is being discussed, they reply with often insightful/interesting/informative posts (300 since July of this year) from someone who actually spends their entire day dealing with the RIAA & law.
All this despite the shameless way we treated him when they answered questions we had about RIAA suits.
On behalf of Slashdot, I would like to thank NewYorkCountryLawyer for bringing to light some of the cases that might not make it in mainstream news & providing us with a realistic view of how things work in the legal world. All too often it is an alien landscape to me that I cannot comprehend."
Dear eldavojohn:
Thank you for your very kind words.
Truth is I love Slashdot, and I even loved doing the interview.
I come from a family where a good argument was the best thing. No doubt it's one of the reasons I gravitated to litigation.
If all the world's forums were as free and open and robust as Slashdot, the world would a lot better place than it is right now.
So it is I who thank you and my fellow Slashdotters.
Thank you for the correction. I guess I don't know the difference. In any event, all the cases I've seen involve Kazaa, Gnutella, Limewire, iMesh, and/or FastTrack.
A dilemma for RIAA victims: most of them can't shut off the 'sharing' without deleting the software altogether. The software is designed to make it impossible or next to impossible to turn off the sharing function.
I think the reason it was so fuzzy-broad was that the authors were not sufficiently conversant with the technology to understand what a burden it would be on legitimate discussion. I think there was 'another agenda' in the sense that the draftsmen were probably overreacting to a couple of annoying and ianppropriate things they'd seen, and going after them with a shotgun instead of something more targeted to the specific problems.
1. It's a lot of money you're talking about. Where are disabled people, home health aides, nursing students, college students, and all sorts of working people supposed to come up with the kind of money it woould require to litigate the issues you're talking about? In the real world a lovely scientific counterexploration of the type you're referring to would be a tragedy and a disaster for the defendant. The Arellanes order, on the other hand, keeps the costs down, and puts the onus of the costs on the RIAA, where it belongs.
2. Lawyers are held to high standards, too, but I haven't seen the RIAA lawyers living up to them. They've forgotten that someday their client will dump them just as it dumped Shook Hardy & Bacon, and they will have to rejoin the legal community and be judged by their peers for what they have done.
I'm not getting too much into the details because I don't think the rule revisions in their present format are going anywhere. See the comments of the Association of the Bar of the City of New York. I'm sure the rule revision will be much, much narrower than what they first proposed.
AVonGauss wrote: "Thank you for taking the time to reply, I am still confused, but I'm probably not the only one - at some point if I cry thief, it seems that I should have to state clearly what has been stolen or violated... Out of curiosity, was that a shared folder in the sense of a file sharing (like torrent) folder or a shared folder as in a Windows or SMB shared folder?"
1. You're certainly not the only one that's confused. The reason I know that is that I'm confused, too. Were I a judge all these cases would have been bounced on day one. These guys have no evidence of anything when they start the case. And then if they can't find some evidence in their fishing expedition, they accuse the defendant of having hid the evidence. It's a joke.
2. All the cases I have seen are Kazaa, Limewire, Gnutella, or iMesh.... i.e. FastTrack clients.
Slashdot Mirror
This defendant not only didn't do it, she doesn't even know how to use a computer.
But see 504(c)(2) offering the possibility of reduction to $200 if one did not know or have reason to believe it was a copyright infringement.
Actually it's in the personal injury cases that the issue first came up. The US Supreme Court said that jury awards for punitive damages which greatly exceeded the actual damage were violative of due process. The 2nd Circuit then held that the same analysis could be applied to statutory damages, and the district court for the Northern District of California held that it could be applied to statutory damages under the Copyright Act in p2p file sharing cases.
Yes but judge was following, not disobeying, 9th Circuit. She was well aware of 9th Circuit ruling in that very case, and did not interpret it the way the Slashdotter to whom I was responding interpreted it.
What you're saying is simply not so. Every complaint alleges "downloading, distributing and/or making available for distribution".
Dear gundersd:
My colleague Ty Rogers graciously pointed out to me, in reading your comment, the following excerpt from one of the Law Review articles we cited in our briefs:
"There are multiple ways in which we might measure the economic loss caused by a defendant's file-sharing activities. To illustrate one such approach, consider the following example. Suppose that file-sharer W illegally downloads to her computer Led Zeppelin's song Stairway to Heaven. The song is downloaded to a shared folder on her computer and thereby made available for others to copy. Suppose further that three other file-sharers, X, Y, and Z, subsequently download the song from W's computer. Thus, there are four people in this example who desired the song but who did not pay to obtain it. In other words, there are four lost sales. Because file-sharers are sued independently, we need a way to apportion this harm among the relevant actors. How might this be done?
A starting basis for apportioning the harm is to deem the person who initiates a file transfer (the downloader) as having caused harm by that action. This person benefits by receiving for free a work of music that must be purchased to be legitimately obtained. Allowing her to escape responsibility for causing harm is not consistent with her initiative in effecting the illegal transaction. Stated differently, this person's money would have gone to the copyright owner (if indirectly) in order for her to obtain the song, but now the money stays in her pocket as a direct result of her affirmative actions. In contrast, the file-uploader gets no economic reward from her outbound transfer and may be unaware of the sharing. [FN139] Thus, we can assign the downloader responsibility for causing one lost sale by illegally downloading the copyrighted song.
The other half of this transaction is the uploading of this song, so we might also assign to a person responsibility for one unit of economic loss per act of distribution--each time that the actor uploads a copyrighted music file, she is responsible for a lost sale. This seems satisfactory at first because the distribution of copyrighted works is illegal and is necessary for file-sharing to work. This conception, however, overstates the actual economic loss. In *547 our example, this conception would count seven units of economic harm (one for W's song download, three for W's uploads, and three more for each of X, Y, and Z's downloads). Yet the copyright owner in our example has suffered only four lost sales. This scheme, then, is flawed.
Instead, this Note adopts a conception of file-sharing's economic harm that attributes responsibility for economic loss to a person's instances of illegal downloading but not distribution. One person's distribution is another person's downloading, so counting economic loss as caused by acts of distribution, in addition to counting acts of downloading, would overstate the total amount of harm. While this Note settles upon this model of file-sharing's economic harm, it is certainly not a perfect conception. For example, this model does not account for whatever revenue is generated by persons who first illegally download a song for sampling and then later purchase it legitimately. Nor does it counterbalance this revenue by accounting for revenues lost due to a record company's impaired ability to market a collection of several songs as one unit, as on the typical album, or to collect licensing fees from online retailers that play short music samples to their customers. Thus, this Note acknowledges the existence of imperfections in its model of file-sharing's economic harm; it concedes that changes in this model will alter the separation of the punitive and compensatory portions of a statutory damage award and ultimately affect the outcome of substantive due process review.
Having explained why a file-sharer is held responsible for causing one lost sale for each copyrighted work that he or she illegally downloads, it bec
But see In re Napster, 377 F.Supp. 2d 796 (ND Cal 2005)
gundersd wrote: ".. what I'm curious about is who checks that the RIAA hasn't already put a claim in for this particular song somewhere further up the chain? ie. person A shares a file that persons B,C & D download. RIAA files a suit against person A, claims $750 damages. Person A pays. RIAA now files suits against B,C & D (who are now also sharing the file) claiming $750 from each of them too, even though, in theory the claim against person A was for ALL downstream sharing too. Can someone explain the legalese behind that? I'm sure there's probably some reason why they would be allowed to get away with this, but it doesn't seem to make much sense to me at the moment."
Good thinking, gundersd.
You're being intelligent. Let's hope the courts will be as well.
3 of the 4 members of its litigation cartel are foreign corporations. Do you work for one of them? Or do you work for their attorneys?
eldavojohn wrote: "I know this is slightly off-topic but I would like to point out NewYorkCountryLawyer's donations of legal stories and advice to Slashdot. Recently, the user NewYorkCountryLawyer has provided us with many stories (bottom of the user page) that revolve around the RIAA & music suits. On top of that, oftentimes whenever a legal issue is being discussed, they reply with often insightful/interesting/informative posts (300 since July of this year) from someone who actually spends their entire day dealing with the RIAA & law. All this despite the shameless way we treated him when they answered questions we had about RIAA suits. On behalf of Slashdot, I would like to thank NewYorkCountryLawyer for bringing to light some of the cases that might not make it in mainstream news & providing us with a realistic view of how things work in the legal world. All too often it is an alien landscape to me that I cannot comprehend."
Dear eldavojohn:
Thank you for your very kind words.
Truth is I love Slashdot, and I even loved doing the interview.
I come from a family where a good argument was the best thing. No doubt it's one of the reasons I gravitated to litigation.
If all the world's forums were as free and open and robust as Slashdot, the world would a lot better place than it is right now.
So it is I who thank you and my fellow Slashdotters.
What can members of the tech community do on, before, or after, election day to help ensure the integrity of the vote count?
What are the biggest differences, from a user's perspective?
We were referring to RIAA, not MPAA. MPAA investigates differently.
Thank you for the correction. I guess I don't know the difference. In any event, all the cases I've seen involve Kazaa, Gnutella, Limewire, iMesh, and/or FastTrack.
I guess you're not good at reading between lines.
A dilemma for RIAA victims: most of them can't shut off the 'sharing' without deleting the software altogether. The software is designed to make it impossible or next to impossible to turn off the sharing function.
No there wouldn't be any problem applying the same standards as would be applied to print media.
You're not being realistic. Even a millionaire doesn't want to spend $150,000 on a $4,000 case.
I think the reason it was so fuzzy-broad was that the authors were not sufficiently conversant with the technology to understand what a burden it would be on legitimate discussion. I think there was 'another agenda' in the sense that the draftsmen were probably overreacting to a couple of annoying and ianppropriate things they'd seen, and going after them with a shotgun instead of something more targeted to the specific problems.
It's here.
1. It's a lot of money you're talking about. Where are disabled people, home health aides, nursing students, college students, and all sorts of working people supposed to come up with the kind of money it woould require to litigate the issues you're talking about? In the real world a lovely scientific counterexploration of the type you're referring to would be a tragedy and a disaster for the defendant. The Arellanes order, on the other hand, keeps the costs down, and puts the onus of the costs on the RIAA, where it belongs.
2. Lawyers are held to high standards, too, but I haven't seen the RIAA lawyers living up to them. They've forgotten that someday their client will dump them just as it dumped Shook Hardy & Bacon, and they will have to rejoin the legal community and be judged by their peers for what they have done.
I'm not getting too much into the details because I don't think the rule revisions in their present format are going anywhere. See the comments of the Association of the Bar of the City of New York. I'm sure the rule revision will be much, much narrower than what they first proposed.
The judge is saying the RIAA can't have it, only a mutually agreeable neutral forensic expert can have it.
I have a list of sources for non-RIAA music on my blog, which I call "Liberated Music"
AVonGauss wrote: "Thank you for taking the time to reply, I am still confused, but I'm probably not the only one - at some point if I cry thief, it seems that I should have to state clearly what has been stolen or violated... Out of curiosity, was that a shared folder in the sense of a file sharing (like torrent) folder or a shared folder as in a Windows or SMB shared folder?"
1. You're certainly not the only one that's confused. The reason I know that is that I'm confused, too. Were I a judge all these cases would have been bounced on day one. These guys have no evidence of anything when they start the case. And then if they can't find some evidence in their fishing expedition, they accuse the defendant of having hid the evidence. It's a joke.
2. All the cases I have seen are Kazaa, Limewire, Gnutella, or iMesh.... i.e. FastTrack clients.