Tenise Barker Takes On RIAA Damages Theory 282
NewYorkCountryLawyer writes "Tenise Barker, the young social worker from the Bronx who took on the RIAA's 'making available' theory and won, has now launched a challenge to the constitutionality of the RIAA's damages theory. In her answer to the RIAA's amended complaint [PDF], she argues that recovering from 2,142 to 428,571 times the actual damages would be a violation of Due Process. She says that the Court could avoid having to find the statute unconstitutional by construing the RIAA's complaint as alleging a single copyright infringement — the use of an 'online media distribution system' — and limiting the total recovery to $750. In the alternative, she argues, if the Court feels it cannot avoid the question, it should simply limit the plaintiffs' damages to $3.50 per song file, since awarding more — against a single noncommercial user, for a single upload or download of an MP3 file for personal use — would be unconstitutional."
Re:WRONG (Score:3, Informative)
DISTRIBUTING is the issue and unless she has logs which show exactly how many times she distributed it, she can fuck off.
If the RIAA does not have proof that she distributed to the number of people they claim she distributed to, it can fuck off as well.
Exxon Valdez damages were limited too (Score:5, Informative)
The damages owed by Exxon for the Valdez oil spill were recently limited and substantially reduced because the court found the original damages excessively punitive. So if it makes sense for Exxon perhaps it also makes sense to apply a similar theory of limitation of damages elsewhere.
Re:Only sold one router? (Score:1, Informative)
"This isn't "many times the damages they actually perceive".
Umm.. yes it is. GPLed software may be distributed by anyone with a copy of it for $0.00. Zero dollars multiplied over many times is zero.
Re:WRONG (Score:5, Informative)
-it has to be of actual copies
-they actually have to be disseminated
-the dissemination has to be to the public, and
-there has to be a sale or other transfer of ownership, or a license, a lease, or a lending.
In layman's terms, the RIAA's "distribution" claim is baloney.
Re:WRONG (Score:3, Informative)
It's just a civil case, so they don't have to prove absolutely that she distributed to hundreds of people, but they have to make some effort at showing that there were more distributions than just the single unauthorized distribution that they authorized...
IANAL but I have been involved in civil court cases. Strangely in those cases you had to PROVE actually damages. That means documented evidence showing you lost the amount of money you are trying to recover due to the direct actions of the person you are trying to recover it from. The RIAA mob had special exemptions made into law so they don't have to provide these proofs in copyright infringement cases. Like everything else related to copyright these days why the hell do they get exemptions to the rules that everyone else has to follow? If it were you or me we would not only have to provide evidence showing each download we were trying to recover money for but also show evidence that each of those downloads resulted in a direct loss of revenue of the amount we were trying to collect. The RIAA has to show that there was a possibility that someone may have download the material and then gets to recover thousands of times the amount of any even remotely possible actual damages that may have resulted.
Re:If this goes through... (Score:4, Informative)
You got modded "Troll," but I'll bite, because I think it's an important point.
I stopped buying music distributed by RIAA labels for exactly two reasons:
1) I don't want to support a cartel that does what the RIAA does. I'll still buy music from independent labels, and I still do things that support artists directly, like go to live concerts.
2) It's fucking expensive, dumbshit! It costs me, a musician, exactly 1 dollar to get 1 CD pressed. In bulk, it costs less. Paying $15-20 for a CD is ridiculous. This is the same reason that I go to Blockbuster, rather than to the cinema.
Re:I'm not so sure (Score:4, Informative)
Copyright has the additional category of statutory damages [wikipedia.org].
Re:WRONG (Score:5, Informative)
That's the issue of what's being discussed here: actual damages vs. statutory damages. I may be oversimplifying, but statutory damages are values set by law and are often used when calculating the actual damages isn't feasible.
Statutory damages are tools of the law and aren't inherently good or evil. We may dislike them when bad people like record companies use them, but one day down the road, you might be involved in a civil case where statutory damages come to your aid and are instrumental in righting a wrong.
The law presently puts statutory damages at up to $750 per work. The young lady in question would like to see that number changed to $3.50.
$3.50 would be a huge boon to file sharing enthusiasts, as the law of averages would be on your side. Share as much as you want, and if you're caught, you'd pay only $3.50 per track, no matter how many times it's been downloaded from your computer. That's only 3.5X the going rate for the track, and you can look at it this way: the odds of your being caught are probably less than 1 in 3.5, so (again, looking at the averages), it's a pretty good incentive to step up your file sharing.
Not that you asked, but I think $3.50 is too low. Either torts are going to be enforced or not; if they are, then the statutory damages should provide some sort of incentive to respect others' rights. I also think $750 is too high.
Re:Only sold one router? (Score:5, Informative)
> ...and that would be just as fucked up?
Well, yes, exactly --- that would be just as fucked up as RIAA's behavior.
> Honestly, I fail to see your point.
No you didn't fail, that was my point. You just didn't understand that :-)
you had succeeded in seeing it.
Perhaps you didn't read the whole thread? Here's a summary:
1) AC posts pro-RIAA flamebait
2) PunkOfLinux claims that the monetary damages that RIAA wants are out of proportion
3) larry bagina posts a flamebait-ish post in a "pro-GPL camp is just as bad" vein
4) I reply to (3) saying that the FSF only sues for distribution of source, which is
not many times out of proportion like PunkOfLinux claimed RIAA wanted
5) AC nitpicks that many times zero money is zero money
6) I reply to the nitpicking that AC is multiplying the wrong thing, that the proper
analogy would be to demand many times the number of source code distributions
as opposed to many times the price of the software (btw he ignores the fact that
the distributing company might have paid money to someone to develop or enhance
the GPL-ed software, but I didn't post about that). I did not claim this would be a
"good thing" --- analogies to bad things (RIAA behavior) are almost never good.
Re:Your answer seems unclear to me (Score:5, Informative)
This is a great argument for her to make (Score:5, Informative)
In essence, the Supreme Court has held that awarding punitive damages that are more than 10x the amount of actual damages is out of line with the due process guarantees of the constitution. It follows that any mandatory award that is also grossly out of line with actual damages should be subject to similar constitutional problems. For those interested, check out Campbell v. State Farm, 538 U.S. 408 (2003). It was a 6-3 decision, with Scalia, Thomas, and Ginsburg as dissenters. Given the Roberts Court just gave a similar judgment in the Exxon case, it probably is still very good law. http://www.oyez.org/cases/2000-2009/2002/2002_01_1289/ [oyez.org]
Re:Exxon Valdez damages were limited too (Score:5, Informative)
No doubt the defendant and his attorneys will bring this to the attention of the judge (if they haven't already), but I must say that the levels of chutzpah, arrogance, and hypocrisy of these record labels are simply spectacular both in sheer scale and also in their wanton disregard for any semblance of fairness. Have these companies and their attorneys, at long last, no shame left?
None.
Absolutely none.
Take it from me. I deal with them every day.
Re:I'm not so sure (Score:4, Informative)
Even a statute can be declared unconstitutional by the courts. The Constitution guarantees Due Process, which has been found to preclude damages that are mind-boggling overwhelming. For instance, punitive damages may be so excessive as to violate a defendant's due process rights. The case on point is BMW v. Gore. Dr. Ira Gore was awarded $4,000 in compensatory damages because the BMW he bought as new was repainted before he bought it, and this fact was not made known to him prior to the purchase. He was awarded $4 million in punitive damages, which was reduced to $2 million on appeal to the state supreme court. The US Supreme Court held that the punitive damages was grossly excessive because (1) the defendant's conduct was not that reprehensible; (2) the ratio to the compensatory damages awarded (actual or potential harm inflicted on the plaintiff) was very high; and (3) the criminal sanctions for the behavior was only $2,000.
Single Instance? (Score:3, Informative)
a single noncommercial user, for a single upload or download of an MP3 file for personal use
As I understand it, it's never been about your providing a single instance for a single copy.
The damages figure is calculated with the assumption that an average file, made available on a file sharing network, is downloaded x number of times. Multiplying the retail value of the file by 3 (typical for punative damages) then by the assumed figure, x, you reach the default award.
That implies congress accepted the assumption that the average was 250 copies were made ($1 x 3 x 250 copies = $750).
Yes, it's terribly unfair that they "assume" you've had each file copied an average of 250 times. Then again, if they had to prove every single instance, damages would generally be so paltry as to serve no dissuasive effect.
Yes, we can argue that we feel it shouldn't be serving a dissuasive effect. We can argue that the RIAA should just have to suck it up. But, the way the law works, the legislative branch decides what should and shouldn't be the penalty, the judicial branch gets to stop it if it's grossly unfair and, if we still don't like it, we the people can vote in a different legislative branch.
It also raises the spectre, on a pay per infringement basis, that all the RIAA then has to do is write a script that downloads each file 10,000 times and they now go for $1 x 3 x 10,000 proven copies you made available for $30,000. In some ways, a fixed $750 or whatever the number may be, saves us from an even more abusable system.
And, no, as I understand it, "entrapment" isn't a defense against a civil entity - only if the police do it to you.
Re:If this goes through... (Score:4, Informative)
Actually, I'm speaking as a musician. Go to a concert, buy a CD for $10, about $5-7 of that goes to the artists. Go to iTunes, buy an album for $10, how much do you think the artists get?
Hint: It's a LOT less than $5. It's a lot less than $1.
Re:WRONG (Score:5, Informative)
In other words, the only reason they've been getting away with this for so long is uninformed judiciary.
Not really. The only reason they've gotten this far is that there haven't been more defendants fighting back. Once properly briefed, the judges are getting wise to what is going on. E.g., compare this decision [blogspot.com], against a litigant who had no representation, to the subsequent decision in the same case [blogspot.com], rendered after the litigant and the Electronic Frontier Foundation brought some of the applicable authorities to the judge's attention, or take a look at Judge Davis's painful realization [blogspot.com] in Minnesota that he had been misled by the RIAA's lawyers into committing a "manifest error of law".
Probably, neither of the initial judicial errors would have occurred had the issue been properly briefed in the first place.
Ours is an adversary system of justice; only if defendants fight back will the truth come out.
Re:If this goes through... (Score:1, Informative)
you're assuming that they will offer the you the good price without a fight. they will probably figure in the cost of hiring a lawyer into their settlement fees so that you really don't save any money.
besides, from the settlements that i've seen they don't offer immunity from future litigation. there is nothing stopping them from coming back and getting you later unless they are willing to put that into writing.
if are named in a lawsuit it would be much better to just go to court and settle everything. that way it is done and over with. at the very least have a lawyer look over the settlement before you commit.
of course far better then that is to not commit infringement in the first place. sure its not that risky, but there is still that chance that they will catch you and royally screw up your life for a long time.