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Tenise Barker Takes On RIAA Damages Theory 282

Posted by ScuttleMonkey
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."
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Tenise Barker Takes On RIAA Damages Theory

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  • by MostAwesomeDude (980382) on Monday July 28, 2008 @12:25PM (#24371603) Homepage

    ...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.

    • by jlarocco (851450) on Monday July 28, 2008 @01:00PM (#24372181) Homepage

      If you don't mind "forking over a tiny bit of cash", why don't you stop being a cheap asshole and buy your music in the first place?

      • Re: (Score:3, Insightful)

        by CelticWhisper (601755)
        Because it makes financial sense to settle for $40 for one infringement case if you can grab, say, 5 albums and only get sued for one of them. Not saying it's ethical or unethical, but it's sensible.
      • by MostAwesomeDude (980382) on Monday July 28, 2008 @01:34PM (#24372655) Homepage

        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.

        • by shark72 (702619) on Monday July 28, 2008 @02:42PM (#24373701)

          "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.

          • by torkus (1133985) on Monday July 28, 2008 @03:18PM (#24374287)

            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.

  • And now we wait (Score:5, Insightful)

    by digitrev (989335) <digitrev@hotmail.com> on Monday July 28, 2008 @12:27PM (#24371633) Homepage
    I'm sure the RIAA will have some excuse as to why this isn't unconstitutional, and was in fact the idea the Founding Fathers had in mind when they set up copyright. Good arguments, but I'm a touch wary that the judge will just ignore any constitutional issue. And even if they do listen, the RIAA will try and get out of it so no precedent can be made.
    • I'm not so sure (Score:5, Insightful)

      by XahXhaX (730306) on Monday July 28, 2008 @12:42PM (#24371875)
      The only argument of which I'm currently aware is that they state the excessive damages are necessary to deter others.

      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:I'm not so sure (Score:4, Insightful)

        by AndersOSU (873247) on Monday July 28, 2008 @12:52PM (#24372025)

        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:I'm not so sure (Score:4, Informative)

          by compro01 (777531) on Monday July 28, 2008 @01:56PM (#24372995)

          Copyright has the additional category of statutory damages [wikipedia.org].

          • Re:I'm not so sure (Score:4, Informative)

            by darkmeridian (119044) <william...chuang@@@gmail...com> on Monday July 28, 2008 @04:28PM (#24375359) Homepage

            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.

        • Re: (Score:3, Insightful)

          by sm62704 (957197)

          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:I'm not so sure (Score:5, Interesting)

        by vux984 (928602) on Monday July 28, 2008 @02:27PM (#24373469)

        The only argument of which I'm currently aware is that they state the excessive damages are necessary to deter others.

        Correct. The reason for the statutory minimum and and punitive damages in general are to say "hey what you did was wrong, don't do it again." This is why stealing a Britney Spears CD has a more serious penalty than payback of the $8 price tag.

        However, the law was written with an eye to punishing 'single offenses'. e.g. If a business photocopies some pages out of a book and passes them around at a meeting, that might be a 750 fine. If they do it for a few books, it might run into a couple thousands. If a restaurant uses a song in their training videos... same deal. Only organized criminals would ever be systematically infringing thousands of works...

        Nobody ever envisioned a 12 year old with the capability to obtain and re-distribute 5,000 songs with 5 minutes of spare time in the family room... and bringing down a potential fine of $5,000 x 750 = 3.75 million dollar fine on his parents.

        This is essentially the thrust of the argument... that one computer sharing thousands of songs (esp. for noncommercial purposes) should really be treated as a single act of infringement, not thousands of individual infringements. And that the punitive damages amount should be applied once for the whole collection, not once for each track.

        After all... when you shoplift 2 physical CDs, you are still only charged with one count of theft... not once for each track on each CD, not even once for each CD.

        • Re: (Score:3, Funny)

          by Zoxed (676559)

          > This is why stealing a Britney Spears CD has a more serious penalty than payback of the $8 price tag.

          Too right: it becomes a matter of public record, and so then you have to live with the shame that you wanted a copy !! (Saying it was for your kid sister will cut no ice !)

    • Re:And now we wait (Score:5, Interesting)

      by Goobermunch (771199) on Monday July 28, 2008 @12:57PM (#24372121)

      Having brought a similar challenge to Microsoft's use of an anti-piracy statutory damages provision, I can only wish Ms. Barker good luck. The U.S. District Court for the District of Colorado issued a brief, two page ruling which essentially said that Congress has the power to impose big statutory damages because "the statutory damages remedy recognizes the difficulty in quantifying the harm that may result from the illicit distribution of [the subject of Microsoft's lawsuit] which may be used in the sale of non-Microsoft products to the confusion of the public and damage to Microsoft's goodwill and business reputation. These statutory damages are comparable to those available for copyright infringement under 17 U.S.C. s 504(c)."

      Good luck Ms. Barker.

      --AC

  • Treble damages (Score:5, Insightful)

    by Orne (144925) on Monday July 28, 2008 @12:29PM (#24371677) Homepage

    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

    • Re:Treble damages (Score:4, Interesting)

      by larry bagina (561269) on Monday July 28, 2008 @12:32PM (#24371721) Journal
      That's for downloading an individual copy. Call up Sony and ask them how much a license to distribute a song is.
      • Re: (Score:3, Insightful)

        by Z_A_Commando (991404)
        That will be their argument. However, in order to claim distribution damages, they have to prove distribution and they've already had their "making available" == distribution theory shot down. I'm sure they'll try to come up with another way, but until they do, they can't claim damages for something they can't prove.
      • Re:Treble damages (Score:5, Insightful)

        by Retric (704075) on Monday July 28, 2008 @12:44PM (#24371895)
        Read up on the write of first sale. If you can buy something for X and ship it for y then the cost to distribute it is X + Y and you can leave Sony out of the picture.
      • Re: (Score:3, Interesting)

        by Anonymous Coward

        I know the analogy isn't identical, but bear with me.

        Imagine that water was a controlled, licensed, "copyrighted" material, and you set up a publically accessible water fountain at the side of the street (whether you intended it to be "public" or not is irrelevant -- it's accessible). How do you know whether someone walked by and 1) took a few sips, 2) someone drove up a water tanker and sucked down thousands of litres for resale commercially, or 3) nobody but you drank anything, which may have been your o

    • 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].

      Yes, but what about the damages caused by tribbles? As we are all aware, songs are still sung on Qo'noS of the Great Tribble Hunt.

  • punitive fines (Score:5, Insightful)

    by Khashishi (775369) on Monday July 28, 2008 @12:31PM (#24371697) Journal
    Punitive fines need to be much greater than actual damages because of the low probability of getting caught; otherwise, entities could just make a calculated decision to take the risk of breaking the law, since the expected cost is much lower.

    Imagine if megacorps only paid damages whenever they harmed someone.

    • Re: (Score:3, Insightful)

      by Anonymous Coward

      Better yet, imagine if megacorps actually paid damages whenever they harmed someone.

    • Re:punitive fines (Score:5, Insightful)

      by JCSoRocks (1142053) on Monday July 28, 2008 @12:56PM (#24372087)
      The trouble is... the amount necessary to dissuade a company from doing it is pretty different from an individual. $50,000 would probably convince average joe that it's a bad idea... but megacorps spend that on free coffee for employees in a year.
      • Re:punitive fines (Score:4, Insightful)

        by CodeBuster (516420) on Monday July 28, 2008 @01:47PM (#24372861)
        This is why punitive damages should be subjected to a means test whereby the damages are adjusted to reflect a fixed percentage of the annual income of a convicted individual. Thus, the poor working mother might only pay several hundred dollars total or perhaps a couple of thousand max whereas the mega corporation could be on the hook for millions. Fixing the absolute dollar amounts in the laws makes very little sense because the relative burdens will obviously fluctuate over time due to inflation while at the same time imposing a regressive burden of punishment when they are applied (i.e. the poor suffer more than the rich for being convicted of the same crime).
      • Re: (Score:3, Insightful)

        by jedidiah (1196)

        "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: (Score:2, Insightful)

      by salahx (100975)

      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: (Score:3, Insightful)

        by jedidiah (1196)

        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.

    • by Trojan35 (910785)

      True, but there needs to be scale.

      Applying a $40M punitive damage to microsoft and to an individual for the same copyright infringement is not consistent IMO.

    • Re:punitive fines (Score:4, Interesting)

      by rtechie (244489) * on Monday July 28, 2008 @01:38PM (#24372739)

      Imagine if megacorps only paid damages whenever they harmed someone.

      "Only"? I would be very, very, very happy if we could get large corporations to do this. As it is now, it's very tough to nail them for outright murder, let alone relatively petty crimes like fraud, theft, and illegal surveillance.

    • Re: (Score:3, Insightful)

      by AK Marc (707885)
      But that's cruel to the ones caught. If someone breaks the law once in their life, and it happens to be one of these "example" laws where they try to make an example of you, the punishment for that one violation exceeds the resonable punishment for you. Your logic only works if you assume everyone is a criminal and they just haven't been caught yet. Excessive punishments have been ruled unconstitutional. Excessive punishments to make an example of someone aren't going to work either.

      Imagine if megacor
  • 3.50 seems like it's good, until you get to the logic that if other people downloaded it from the defendent's machine, then 3.50 per song per downloader from there might be prudent. Nice theory, though. I wonder how far it will get.
    • by sm62704 (957197)

      The $150,000 the law says they could get would be 150,000 downloads per upload. I don't see that happening at all.

  • by karl.auerbach (157250) on Monday July 28, 2008 @12:45PM (#24371905) Homepage

    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.

  • What if... (Score:3, Interesting)

    by IAAE (1302511) on Monday July 28, 2008 @12:48PM (#24371961)

    ... I don't distribute a complete song? With torrents for example, if I were to upload parts of the song to 1000 people, but my share ratio were 1.00, what could they come after me for?

  • by Sir_Real (179104) on Monday July 28, 2008 @12:58PM (#24372139)

    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: (Score:3, Funny)

      by Xeth (614132)

      It's time that someone had the courage to stand up and say: "I'm for that guy everybody loves".

      Thank you, Sir_Real. Thank you for doing the work that we didn't need to do for the karma. Thank you. Thank you.

      (Now, where's my sarcasm mark... [wikipedia.org])

      • Re: (Score:3, Funny)

        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.

        It's time that someone had the courage to stand up and say: "I'm for that guy everybody loves". Thank you, Sir_Real. Thank you for doing the work that we didn't need to do for the karma. Thank you. Thank you.

        And thank you, Xeth. Thank you for doing the work I didn't have the time to do which was to to thank Sir_Real.

        And thank you Sir_Real, both for your kind words, and for inspiring Xeth.

        And most of all, let's not forget to thank the RIAA lawyers, who give me all my best material.

  • from this lot:

    http://www.mcspotlight.org/ [mcspotlight.org]

    It's remarkable that large corporations don't seem to realise that after enough people cave in to their crap, someone, probably poor, with nothing to lose will turn around and deliver a legal kick in the nuts.

    Good luck to this person. McDonalds won on technicality but lost massively in PR terms. If the RIAA can make a big enough arse of themselves in public people may start to realise how redundant they actually are.

  • Nice little earner? (Score:4, Interesting)

    by Nomen Publicus (1150725) on Monday July 28, 2008 @01:12PM (#24372371)
    Aren't the RIAA demands based more on making a RIAA profit rather than a deterrence to others?
  • by bigskank (748551) on Monday July 28, 2008 @02:54PM (#24373915)
    Give the U.S. Supreme Court's recent decisions regarding punitive damages and due process, she has a pretty strong argument.

    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]
  • Single Instance? (Score:3, Informative)

    by nick_davison (217681) on Monday July 28, 2008 @05:20PM (#24376269)

    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.

10.0 times 0.1 is hardly ever 1.0.

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