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:5, Insightful)
it's not about downloading a song. The price of downloaded music is well established at $0.99 (or less). DISTRIBUTING is the issue and unless she has logs which show exactly how many times she distributed it, she can fuck off.
Actually, if this case is like many of the others, and the RIAA has proof that she distributed the song to Media Sentry, then they have proof that she distributed the content to 1 other person, a single copy right violation.
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...
-Rick
If this goes through... (Score:5, Insightful)
...I wonder how much pain it might become, to settle? After all, if the cost of settling my (alleged, unsubstantiated) piracy becomes a mere forty dollars per album, I might not be so disinclined to just sign a piece of paper and fork over a tiny bit of cash.
And now we wait (Score:5, Insightful)
Re:WRONG (Score:2, Insightful)
Treble damages (Score:5, Insightful)
This would fit nicely with the puntative damages model that are currently used for financial, anti-trust, and counterfeit fraud called "Treble damages" [wikipedia.org].
Since Itunes can show that the market value of a single MP3 is approximately $1, then a fraud penalty of $3 per song does not seem unreasonable, providing that the prosecution can show that the song was actually downloaded that is...
-- Scott
punitive fines (Score:5, Insightful)
Imagine if megacorps only paid damages whenever they harmed someone.
Re:WRONG (Score:5, Insightful)
Actually, if this case is like many of the others, and the RIAA has proof that she distributed the song to Media Sentry, then they have proof that she distributed the content to 1 other person, a single copy right violation.
Actually, my impression is that from a legal standpoint, the distribution to Media Sentry isn't a copyright violation because Media Sentry is the authorized agent of the copyright owner. And before everyone jumps in, remember that this is law we're talking about, so common sense doesn't necessarily apply (as we've seen in some of the other results of RIAA trials).
Re:Treble damages (Score:3, Insightful)
I'm not so sure (Score:5, Insightful)
It may be fortunate that this is the kind of rhetoric that sells to politicians moreso than courts. The extortionate damages that IP holders currently seek is clearly intended not to simply deter people from violating copyright, but from even putting up a fight in the first place--as demonstrated by the way the RIAA handles these cases by offering to settle for a few grand or face the threat of an exponential lawsuit.
Otherwise you're just stating the obvious: yes, the RIAA will find a way to fight this. And the sky is blue and birds chirp.
Re:Treble damages (Score:5, Insightful)
Re:WRONG (Score:5, Insightful)
Is the GPL violation some kid who is giving the software to a few of his friends, but not allowing them to see the source? That's what's most comparable to this case.
Or is something like a large router company using linux to power it's newest router, making a ton of money off it, and then not releasing the source? That's totally different from this case.
Nice straw man argument though.
Re:WRONG (Score:5, Insightful)
So, because she can't show that she distributed a song exactly, say five, times, she should be charged an absurdly high amount for each infringement? What happened to proving damages?
I think the problem is that the statute is not designed in a manner than can handle Napster and beyond peer-to-peer distribution. It is designed for instances in which an entity is making money off someone else's copyrighted work. Read the notes [cornell.edu] to the statute. It's pretty clear that Congress did not have in mind the possibility of someone sharing his or her individual music/movie/whatever collection with others on the Internet. Even Congress would not saddle a $150,000 fine on a person for sharing a $0.99 song.
Re:WRONG (Score:3, Insightful)
friends might be the wrong term...
A few other people, unknown to the individual, given teh way file sharing works.
Only sold one router? (Score:5, Insightful)
1) I can't remember anyone being sued for non-commercial distribution of GPL-ed software, and it's safe to assume that anyone distributing it commercially is trying to distribute it as much as possible, since every distribution is profitable.
2) The FSF, at least, will gladly settle for the distribution of the source code (in the case of GPL2 --- at least, this is what Eben Moglen claims were RMS's instructions to him while he was counsel to the FSF [geof.net]). This isn't "many times the damages they actually perceive".
Re:I'm not so sure (Score:4, Insightful)
IANAL, but is deterrence factored into civil law? I was under the impression that the only thing you can sue for is punitive and actual damages. I think civil court operates under the notion that you harmed me, so this amount of money will make me whole - I don't think it says anything about stopping someone else from harming me. Supposedly the punitive damages are to account for your bad action, not stopping someone else from doing the same.
Re:punitive fines (Score:3, Insightful)
Better yet, imagine if megacorps actually paid damages whenever they harmed someone.
Re:punitive fines (Score:5, Insightful)
I haven't seen this mentioned yet (Score:5, Insightful)
So I'll just say it on behalf of (most of) the slashdot audience.
Thank you. Thank you for doing the work that we didn't, couldn't or were unwilling to do. Thank you for carrying a heavy, unwieldy torch. Thank you. Thank you.
Thank you.
Re:punitive fines (Score:2, Insightful)
But the damages aren't "punitive", they are "statutory". They aren't intended to punish the infringer, rather the are intended to grant the appropriate relief to the plaintiffs when "actual" damages can't be easily calculated (since no one knows how many works were infringed).
Re:WRONG (Score:5, Insightful)
Forget about the number -- it's whether she distributed any at all.
The RIAA's claim is based on the idea that if you make a file available, you are distributing it, regardless of whether you actually distributed it anybody.
The problem with the RIAA's claim is that it make distributors out of everybody who happens to have a song on a shared folder, even if an official "p2p" network isn't involved. Consider Windows file sharing: if "My Documents" on your dorm computer is readable by the universe, congratulations -- you now owe the RIAA thousands of dollars. Remember, it isn't a question of whether anybody actually copied the song, or even of whether you intended to distribute it.
Consider this even more bizarre situation: Your kid installs p2p software on the family computer, sharing a directly called "music," that includes only songs he wrote & recorded. Later, you decide to rip your CD collection and, not knowing that there's p2p software, you stick it in "music." Now, you owe the RIAA a bunch of money.
Re:Only sold one router? (Score:3, Insightful)
Interesting. Perhaps you're right, but I think a better analogy would be that if the FSF were like the **AA, they'd be asking for the distribution of the source code of the illegally distributed program, and the distribution of the source code for 749 other programs of the same company, even if those other programs weren't distributed in violation of the GPL.
Re:If this goes through... (Score:3, Insightful)
Re:Exxon Valdez damages were limited too (Score:3, Insightful)
Let's see...
Exxon: Well-funded corporation backed by powerful lobbying groups.
RIAA: Well-funded lobbying group backed by powerful corporations.
You: ???
Re:WRONG (Score:4, Insightful)
Even Congress would not saddle a $150,000 fine on a person for sharing a $0.99 song.
You mean until the members of Congress had lunch with their bribers, ahem, lobbyists ?
Re:punitive fines (Score:4, Insightful)
Re:WRONG-Proving Damages (Score:4, Insightful)
There may not be any damages at all. None of those distributions, even if they occurred, may have resulted in a single lost sale because people who download files may not have bought the song had the free download not been available. Then the recording industry is out zero money overall.
Re:WRONG (Score:3, Insightful)
theoretically, everyone is at least distantly related to everyone else on the planet, though you would need an utterly huge family tree and consanguinity table to determine the relationships.
Re:WRONG (Score:5, Insightful)
Do you feel the same when GPL software being illegally distributed?
The cases are exactly the opposite. In the case of a filesharer, the public (i.e. us) benefits at the "expense" of a company (and i quote it because it's not proven that the companies lose anything).
In the case of a GPL violation, a single company benefits at the expense of the whole public, who DO have to pay for some software that should be free.
Re:punitive fines (Score:3, Insightful)
"Deterrence" doesn't require $200K or $50K.
$2000 will do. This is the approximate deterrence
involved in theft of a real CD. It's should seem
instinctively wrong to anyone that theft in the
biblical sense is treated as 1/200th the crime as
software piracy is.
Re:punitive fines (Score:3, Insightful)
It doesn't matter what the alleged rationale is: it's bullshit.
Any damages should require demonstration of harm.
That's what the whole tort system is based on.
Statutory damages against non-profit individuals are obscene.
Re:Don't tag it that... (Score:3, Insightful)
You can revoke their charter to incorporate but that's extremely rare (I think it has happened once).
It is essentially killing the corporation.
However.. i think they would have some slimy way to start a new corporation and transfer the assets and managers quickly to it.
Re:I'm not so sure (Score:3, Insightful)
IANAL either, but I think the ACTUAL damages are to "make me whole". For instance, if someone runs a red light in Illinois you are entitled to three times the doctor's bills; this pays the doctor, your lawyer, and your third is for "pain and suffering." These are "actual damages". However, if there are other factors, like the other driver has no license or is drunk, etc, you can collect punitive damages as well as a deterrent to hum driving drunk without a license.
Re:Treble damages (Score:3, Insightful)
Re:punitive fines (Score:4, Insightful)
We would be buying american cars of lower quality than Toyota if they were the $3k to $5k per car cheaper due to lower retirement and medical costs.
GM/Ford/Etc. Over promised benefits 30 years ago to avoid higher salaries then. And the end result is that young workers today will cover GM/Ford/Etc's pension benefits out of their taxes (and the benefits will be reduced to about 30-50% of what was promised). Meanwhile, the executives will keep all the money that they made along the way.
Here in Houston, they stupidly promised unreasonably high pensions to our police-- some of them are making mid six figures because they were able to gimmick their last couple years to pump the payout up. The total amount is basically impossible (I think about $1billion) so at some point Houston will either raise taxes so high that business and people flee or it will default on the pension obligations.
That is why 401k's are better- you know what you are getting. You don't end up 71 years old and suddenly have your monthly income cut by 60% without warning.
Re:If this goes through... (Score:4, Insightful)
"Paying $15-20 for a CD is ridiculous."
In the time since you've stopped buying CDs, prices have dropped dramatically. They're about $13 at retail now, and often much less online.
"It's fucking expensive, dumbshit! It costs me, a musician, exactly 1 dollar to get 1 CD pressed. In bulk, it costs less."
It's a little-known fact (at least among Slashdotters) that in the retail industry, the cost of goods is often the smallest of the costs of sale. The devil is in the details, and it's those details that have ground down Warner Music's margins to the point that they lost money last year.
If you're not sure what I mean, make a few mental notes of how much it might cost you to get that $1 CD onto the shelves at Target, along with a marketing budget that would be adequate to cause people to actually seek out and buy the CD once it's there. Those nickels and dimes add up fast.
Re:very clever, but it might not stick (Score:3, Insightful)
I believe the problem with that, though-- and the reason they always go after uploaders-- is that the downloader could plausibly say that the were merely taking advantage of a copy of a file offered to them, and it wasn't their job to determine whether the distributor was properly licensed or not (there's not much ground there, but there's some). On the other hand, the uploader is taking the action of copying and redistributing with a clear lack of upstream consent from anyone. IIRC, the RIAA has never gone after uploaders who aren't distributors as well.
Re:If this goes through... (Score:4, Insightful)
Just to throw some accurate financial information in here. I suppose I should put a flamebait/troll warning too. FWIW it's at least accurate information.
WMG has some overall increases in revenue and gross profit over 4 out of the last 5 quarters. They're also spending 3-400million *per quarter* on "research and development". Amzing how a billion dollars a year can't bring their business model to more than 5-10 years behind the modern world. Cry me a river that they posted a loss of 14c per share for 2007. For a company to behave as they (and other of the MAFIAA) have and still be in business at all is astounding.
So yes, it cost more than $1 to get a CD onto the shelf in target. How much more though is a serious question. What it comes down to is a band could easily put CDs in a store in a for $5 each and make more money than they do by feeding the MAFIAA beast and selling for $13.
Adapt or die. Darwinism. A team of over-paid lawyers should not make your company an exception to this rule.
Re:If this goes through... (Score:5, Insightful)
Yeah, unfortunately this is a discussion about copyright, a legal fiction created for economic stimulous, and not about tangible goods which can be stolen.
Should read: "a legal fiction created for cultural and scientific stimulus, and altered over the last few decades to provided an unending stream of income to the entertainment industry for work that somebody did decades ago, all at the expense of the public."
Re:WRONG (Score:3, Insightful)
1. A record store can sell CDs with no special license, thanks to the right of first sale, but can't legally make and sell copies of a CD without a specific license.
2. Renting is a copyright violation only for phonorecords. Blockbuster can legally buy DVDs and rent them out with no special license, but cannot legally do the same with CDs. No one said the law made sense.
3. Giving copies of CDs to a friend is a strange area. An actual IP layer could probably clarify.
4-5. "Making available" is BS, per this recent court ruling.
Re:WRONG (Score:2, Insightful)
Example: McDonalds with their "WARNING:Hot Contents" label on their coffee cup.
Some cases, mostly cases of human injury, the "pain and agony" damages are not someting I'd say is easy to calculate, but they are still part of the "actual damages". Then on top of the actual damages, the offending party will often have to pay statutory damages, which are often multiple times the value of the actual damages.
And this is why the American judicial system can be so easily manipulated:
1)Hurt yourself
2)Claim your specific injury was not warned about in the documentation of the product
3)??
4)Profit
As you can see, this method is because of it's simplicity, used by both corporate America and the American populace.
Re:WRONG (Score:3, Insightful)
The thing is "distribution" in the sense of selling given copy of a work, "distribution" in the sense of renting given copy of a work, and "distribution" in the sense of producing new copies of a work are each covered by different laws. There's no uniform sense in which "distribution" is legal or illegal. Also "making available for distribution" is different from "distribution".
If you serve a song in a way that a stranger can download it, that's clearly "making available for distribution", but it's just as clearly not per se evidence of actual distribution. There's no law against "making available for distribution", only against distribution (assuming the other rules aren't followed).
Re:WRONG (Score:3, Insightful)
The "average" ratio on, for example bit torrent should always be 100% since everyone downloading is getting the file from someone else that downloaded it. I guess the original seeder would put the ratio slightly above 100% but I'm sure you get my point.
The thing is that average is likely propped up by a small minority of high ratio users and your average john doe would have a low ratio. From reporting here, the RIAA has been going after average people rather than high ratio people. at a guess I'd say my ratio never topped 80%, which is pretty good IMO as my max upload was 1/4 of my max download. My point is that most people will only ever upload maximum 1 CD for each CD. Even with double dipping by charging both uploader and downloader it would make most people liable for 2X[cost of CD] not 100,000 X[cost of CD]
Re:punitive fines (Score:3, Insightful)
Imagine if megacorps only paid damages whenever they harmed someone.
Like Exxon and the civil actions against them? Oh wait, it's been 10 years since they lost the Exxon Valdez cases and they still haven't paid a penny to the people. So even when megacorps are responsible for causing harm to large numbers of people, they aren't held responsible, even when they lose court cases for billions. And yes, they are complaining because they don't want to be made an example of, and they are claiming that the damages are excessive because they were somewhere around 3 times the actual damages proven (and not made up damages, like music cases). That's how it's handled by megacorps. They get a slap on the wrist they get to defer for decades (for 3 times actual damages), while regular people get fines of 10,000 times actual damages, and people call the music sharers whiners...