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Judge OKs Challenge To RIAA's $750-Per-Song Claim
Posted by
Zonk
on Fri Nov 10, 2006 08:37 AM
from the their-stuff-isn't-that-good dept.
from the their-stuff-isn't-that-good dept.
NewYorkCountryLawyer writes "In UMG v. Lindor, in Brooklyn federal court, the presiding judge has held that Marie Lindor can try to prove that the RIAA's claim of $750-per-song statutory damages is a violation of the Due Process Clause of the Constitution, since she has evidence that the actual wholesale price of the downloads is only 70 cents. This decision activates an earlier ruling by the Magistrate in the case that the record labels must now turn over 'all relevant documents' regarding the prices at which they sell legal downloads to online retailers, and produce a witness to give a deposition by telephone on the subject. Judge Trager rejected the RIAA's claim that the defense was frivolous, pointing out that the RIAA had cited no authorities contradicting the defense, but Ms. Lindor's attorneys had cited cases and law review articles indicating that it was a valid defense. See the Decision at pp. 6-7."
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RIAA Defendant Says Kazaa Settlement Bars Case 174 comments
NewYorkCountryLawyer writes "The defendant in Arista v. Greubel has filed an answering statement. The statement says that the RIAA's case against him, since it's based upon his use of Kazaa, is barred by the RIAA's receipt of $115 million from Kazaa. Mr. Greubel also challenged the constitutionality of the RIAA's $750-per-song damages theory, saying damages should be limited to $2.80 per song. See the previous Slashdot discussion of that issue and Judge Trager's decision in UMG v. Lindor."
[+]
RIAA Subpoenas Neighbor's Son, Calls His Employer 593 comments
NewYorkCountryLawyer writes "To those who might think that I might be exaggerating when I describe the RIAA's litigation campaign as a 'reign of terror', how's this one: in UMG v. Lindor, the RIAA not only subpoenaed the computer of Ms. Lindor's son, who lives 4 miles away, but had their lawyer telephone the son's employer. See page 2, footnote 1." From Ray's comments: "You have a multi-billion dollar cartel suing unemployed people, disabled people, housewives, single mothers, home healthcare aids, all kinds of people who have no resources whatsoever to withstand these litigations. And due to the adversary system of justice the RIAA will be successful in rewriting copyright law, if the world at large, and the technological community in particular, don't fight back and help these people fighting these fights."
[+]
RIAA Admits 70 Cent Price is 'In the Range' 210 comments
NewYorkCountryLawyer writes "In its professed battle to protect the 'confidentiality' of its 70-cents-per-download wholesale price, the RIAA has now publicly filed papers in UMG v. Lindor in which it admits that the 70-cents-per-download price claimed by the defendant is 'in the range'.(pdf) From the article: 'The pricing data really may not be all that secret. Late in 2005, former New York Attorney General (and current Governor) Eliot Spitzer launched an investigation into price fixing by the record labels, alleging collusion between the major labels in their dealings with the online music industry. Gabriel believes that making the pricing information public would 'implicate [sic] very real antitrust concerns' as the labels are not supposed to share contract information with one another ... Beckerman argues in a letter to the judge that the only reason the labels want to keep this information confidential is to 'serve their strategic objectives for other cases,' which he says does not rise to the legal threshold necessary for a protective order. The proposed order would force the labels to turn over contracts with their 12 largest customers. Most details--such as the identities of the parties--would be kept confidential, but pricing information and volume would not.'"
[+]
US Dept. of Justice May Intervene To Help RIAA 215 comments
NewYorkCountryLawyer writes "In a Corpus Christi, Texas, case, Atlantic v. Boggs, where the defendant interposed a counterclaim alleging that the RIAA's $750-per-song file damages theory is unconstitutional, and the RIAA moved to dismiss the counterclaim, the US Department of Justice has sought and obtained an extension of time in which to decide whether to intervene in the case on the side of the RIAA. What probably precipitated the issue is that the constitutional question was raised not just as a defense as it was in UMG v. Lindor, but as a counterclaim, thus prompting a dismissal motion by the RIAA."
[+]
Record Company Collusion a Defense to RIAA Case? 275 comments
NewYorkCountryLawyer writes "Is collusion by the record companies a defense to an RIAA case? We're about to find out, because the RIAA has made a motion to strike the affirmative defense of Marie Lindor, who alleged that "the plaintiffs, who are competitors, are a cartel acting collusively in violation of the antitrust laws and of public policy, by tying their copyrights to each other, collusively litigating and settling all cases together, and by entering into an unlawful agreement among themselves to prosecute and to dispose of all cases in accordance with a uniform agreement, and through common lawyers, thus overreaching the bounds and scope of whatever copyrights they might have" in UMG v. Lindor."
[+]
Lindor Attacks Record Company Copyright-Pooling 136 comments
NewYorkCountryLawyer writes "Back in March, 2006, Marie Lindor called the record companies suing her a collusive cartel, and their joint agreement to pool their copyrights "copyright misuse" (pdf). A year and a half later, the RIAA apparently got nervous about that allegation and made a motion to strike the allegations. Ms. Lindor has struck back, pointing out to the Judge not only that the RIAA's arguments had no legal basis, but also that its brief was completely silent as to any justification for the record companies' copyright-pooling agreement. Such a justification would be necessary for it to pass muster under 'rule of reason' analysis mandated by the US Supreme Court. Ms. Lindor, a home health worker who has never even used a computer, let alone infringed anyone's copyrights with a p2p file sharing program, is the same defendant who exposed, with a little help from her friends, some of the weaknesses in the RIAA's expert testimony. She also obtained a ruling that the RIAA's $750-per-song file damages theory might be a wee bit unconstitutional."
[+]
RIAA Must Divulge Expenses-Per-Download 305 comments
NewYorkCountryLawyer writes "The Court has ordered UMG Recordings, Warner Bros. Records, Interscope Records, Motown, and SONY BMG to disclose their expenses-per-download to the defendant's lawyers, in UMG v. Lindor, a case pending in Brooklyn. The Court held that the expense figures are relevant to the issue of whether the RIAA's attempt to recover damages of $750 or more per 99-cent song file, is an unconstitutional violation of due process."
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Thank You to Ty Rogers & Ray Beckerman (Score:5, Informative)
Recently, the user NewYorkCountryLawyer has provided us with many stories (bottom of the user page [slashdot.org]) 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 [slashdot.org] 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.
Re:Thank You to Ty Rogers & Ray Beckerman (Score:5, Informative)
Befriend NewYorkCountryLawyer [slashdot.org]
Thanks, but... (Score:4, Insightful)
I certainly appreciate the legal insight, but did you actually read the interview? I'm too lazy right now to search that article for posts from you, but I certainly read it.
It was awful.
They may be wonderful, open people in person. They might also be world-renowned legal experts for all I know. However, the answers given in that interview were terse, dismissive, and generally not well targeted to their intended audience. I thank them for their contributions to our knowledge pool, but I don't think you can honestly read the article you cited and use it as an example of an ungrateful readership.
Re:Thank You to Ty Rogers & Ray Beckerman (Score:5, Informative)
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.
Damages for companies? (Score:5, Interesting)
Just a pointless gibe about the difference between treatment of companies and individuals, I guess. Forgive me if I got some details wrong of the above information, even.
Re:Damages for companies? (Score:5, Insightful)
Re:Damages for companies? (Score:5, Interesting)
However, if the number of copies distributed illegally cannot be determined, there is no way to compute damages, right? What if I sue you for "numerous incidents of toe-stepping, leading to loss of income in an undetermined amount due to inability to work brought about by physical and emotional damage suffered as a result of said incidents" and demand $1000k? Should you be forced by the courts to pay the requested amount, with no recourse?
Also, remember that it's a person being sued here, not a company. The defendant did not benefit in any way, because she wasn't selling the copyrighted stuff.
Re:Damages for companies? (Score:4, Interesting)
The hard part is that whatever the decision is, it will be a guess. We have no psychic power and will never know the exact damage. That's ok by me. We're have to do the best we can. Sure, the $750 per song cost should be challenged, but the true cost should almost certainly not be a simple $.70 per song. The truth almost certainly falls somewhere in between.
TW
Re:Damages for companies? (Score:4, Informative)
It should be noted that in the US, one couldn't sue someone that simply downloaded the song. Obtaining a copy is not infringement, copying is. Case-law has already pretty much covered that the upload portion of the equation is infringing, but the download is not (nor is serializing the download from RAM to disk).
Also a point of interest with regard to calculating damages for infringement: copyright does not purport to support the making of money off copyrighted materials. The amount of damages (or lack thereof) or whether or not the infringer got financial benefit is immaterial. The testimony regarding revenue loss as a result of the infringement is basically a victim impact statement. Damages for infringement are at the discretion of the judge or jury and have certain statutory limits. If a record company loses a million dollars (and could prove it) as the result of infringement, it doesn't mean that they will get (or are due) a million dollars. Likewise, if the same company suffers no tangible monetary loss, they can still sue and receive damages.
People very often operate on the false assumption that "damages" in infringement claims are related to estimated financial loss of the rights holder. Copyright intentionally doesn't work that way. Keep in mind that the work has no owner; the only instrument here is a contract (copyright) bestowing limited monopoly rights on copies and derivatives of a work to a single party. It is the responsibility of the rights holder to argue that the accused infringer was subject to and then broke the terms of that contract (entered into by their representative, the state). Its then the court's responsibility to assess the seriousness of the infringement and seek a reasonable remedy (which isn't necessarily limited to monetary damages).
No 'poor box' (Score:5, Interesting)
Although a judge can, I believe, force you to donate money to a charity (this is infrequent but I've heard of it happening a few times, usually when they want to eliminate someone's 'ill gotten' gains but can't really give it back to whoever it was taken from, generally stock-market stuff); that would be closest that I think you could get.
The U.S. legal system was designed so that, theoretically at least, the "system" wouldn't benefit in any way from the number of cases that it sees, or how they're adjudicated. This is so you don't get into the Spanish Inquisition-like situation where if the court "does not burn, they do not eat."
Fines, etc. that people are required to pay to the State, go back into the General Fund at the city/state/federal level, and the expenses of the courts, including court-appointed attorneys, are paid out of same by the legislature. Having the courts be self-funding in any way risks creating a juggernaut.
Re:Damages for companies? (Score:5, Interesting)
Re:Damages for companies? (Score:5, Informative)
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
Re:Damages for companies? (Score:5, Insightful)
It's not the like RIAA can't buy an update to it.
Reckon it in terms of upstream bandwidth (Score:5, Interesting)
Upstream bandwidth (kBit/s) 128 (this is my own bandwidth rate)
Time to upload 1 MB (s) 64
Average song size (MB) 5
Time to upload average song (s) 320
Wholesale cost of song (USD) $0.70
Sue-value per song (USD) $750.00
Number of instances req'd 1071.43
Upload time per song sue-value (s) 342857.14
Or just shy of 4 days (3.97).
So 2 days for 256 kBit/s
And 1 day for 512 kBit/s
So basically, a value of $750 means that, if the sole means of distribution is via the network, for each and every count, the plaintiff should have to prove that the defendants computer was on, connected, and maxing it's upstream bandwidth for a period not less than 1 full day, multiplied by their upstream bandwidth divided by 512. I'd expect that also to be tempered by some reasonable fraction accounting for computer downtime, other uses of bandwidth, network overheads, etc.
Has anyone ploughed through the legal documents and found out how many counts they are sueing for, and what Ms Lindors' upstream is? Because if she has 128kBit/s and it's 1,000 counts, they should have to prove that she had her computer uploading music for 11 years straight without a break. (To quote Billy-Bob Thornton in Armageddon, "Most of us don't even have cars that old."). I doubt that much upstream was even available in most places 11 years ago....
$750? (Score:4, Funny)
Well... I did get laid to "Stairway to Heaven" in high school, but I'm not sure it was worth $750 -- sex included.
Seems like a valid arugment to me. (Score:4, Insightful)
Re:Seems like a valid arugment to me. (Score:4, Funny)
-when someone steals your car, you loose it, therefore the damage you suffer is easy to determine (the current value of the car, usually only a portion of its initial value).
-When someone downloads a song, the real damage is determined by the objective of the downloader:
*He wouldn't have bought the CD because he doesn't have the money, let's say it's free advertisement with potential long term payback (it was my case when I was student, and I then bought many CDs).
*He already has the CD but fears to put it in his PC because of the fear of rootkits or other malwares (that's currently my case), no real harm.
but of course, there is also:
*He burns CDs and sell them for a couple of bucks on markets to finance Al Quaida thermonuclear program, possible harm: millions of deaths + thousands of billions $ of damages.
So the 750$ is just the weighted average of the real potential damges, the only thing I don't understand is why the money doesn't got to the DHS.
Re:Seems like a valid arugment to me. (Score:5, Insightful)
I argue that the greatest victory of the content industry, contrary to what most would say, was not extending copyrights to 75 years or establishing the draconian protections of the DMCA. Rather, the their greatest triumph has been to define the terms of the debate.
Instead of talking about temporary monopolies, we talk about "intellectual property." Instead of focusing on the "promotion [of] the progress of science and useful arts" (both the wording and the intent of constitution), we exclusively consider the so-called "property rights" of the creator(s).
And because of this, the content industry is able to conflate established property law with completely unrelated areas of law: plagiarism and government-granted monopolies. The result is not surprisingly inconsistent and the source of confusion all-around. Illegal downloaders are labeled as "thieves" instead of what they really are, copyright infringers. The public domain is not viewed as a benefit to society but as a loss of potential profits.
And they even manage to benefit both ways. They can accuse downloaders of theft, BUT THEN use the strict penalties of copyright infringement (originally intended to punish commercial infringement) against non-commercial and non-profiting individuals.
The entire issue is the ultimate triumph of sophistry over justice. Due process is violated when the punishment ($750 per song) doesn't match the crime (non-commercial copyright infringement). The intent of the constitution lays at the wayside when our arts and sciences are actually hurt because of the increased cost and difficulty of actually bringing a product or innovation to the market. The right to free speech is trampled upon when the DMCA is used inappropriately to take down embarrassing internal memos or other evidence of public fraud/deception(ex. Diebold voting machine code).
-Grym
Acutal court transcripts (Score:5, Funny)
RIAA Lawyer # 1: Somebody set up us the frivolous lawsuit.
RIAA Lawyer # 2: We get signal.
RIAA: What !
RIAA Lawyer # 2: Main screen turn on.
RIAA: It's you !!
Judge: How are you gentlemen !!
Judge: All your "relevant documents" are belong to us.
Judge: You are on the way to destruction.
RIAA: What you say !!
Judge: You have no chance to survive make your time.
Judge: Ha Ha Ha Ha
RIAA Lawyer # 1: RIAA !! *
RIAA: Take off every 'attorneys' !!
RIAA: You know what you doing.
RIAA: Move 'attorneys'.
RIAA: For great injustice.
Re:Englsh translation? (Score:5, Funny)
Disclaimer: I'm not African-American, and I have never been to Africa or the less affluent regions of any major city.
Seriously. It WAS in English.
Re:Englsh translation? (Score:5, Funny)
you didn't need to tell us that- it's self-evident.
Re:Englsh translation? (Score:5, Funny)
Log from channel #BrooklynCourts
MarieLindor has joined the conversation.
RIAALegalWeenie has joined the conversation.
[RIAALegalWeenie] You ripped our stuff, beeyatch! Give us like 1,000x wot it's worth, or else.
[MarieLindor] Harsh, man. Ur stuff ain't worth it. Anyway u have 2 have Due Process and stuff under the CONSTITUTION! D'OH!!!1!1! Gimme all ur records.
Magistrate has joined the conversation.
[Magistrate] Fair 'nuff. You gotta do it.
[RIAALegalWeenie] No way. We're gonna go to a higher court.
FederalCourtJudge has joined the conversation.
[FederalCourtJudge] I am THE LAW.
[MarieLindor] Yo, Mr Judge Sir. Here's legal stuff that says I'm right. You got my back?
RIAALegalWeenie puts his fingers in his ears.
[RIAALegalWeenie] Not listenin'. Not listenin'. Nyaaaaah nyah.
[RIAALegalWeenie] And 'sides, she's just makin' sh*t up.
FederalCourtJudge has activated a purple lightsaber.
[FederalCourtJudge] This party's over. Go do what my man da Magistrate said, luser.
MarieLindor smiles.
RIAALegalWeenie has left in a huff.
There, I think that about covers it.
(With apologies to the poster who first made this joke, probably much better, but whose post I can't find to credit it.)
Re:Who's the pirates, again? (Score:5, Funny)
Re:RIAA defense... (Score:4, Insightful)
That would be true if the song was some sort of one of a kind trade secret. But given the availability of these "bootleg" copies, I find it hard to believe that her downloaded copy led to ANY more people not buying the song. The prevalence of this music on the internet, and the ease of making and sharing unprotected copies, means that her download of a single copy almost certainly did NOT make it available to a single person to whom it was not available before.
If you broke into my company and stole our designs and posted them on the internet, then yes, I can make a claim for huge damages. But the cat's out of the bag already - she didn't pay her $0.99, but I find it hard to believe she contributed to even a single person not paying their $0.99.
Re:$750 sounds right (Score:5, Informative)
I disagree completely. You can't hold the first sharer liable for the actions of the downloaders; they're responsible for their own actions and should be sued individually for those actions.
The first sharer should be liable only for his or her own actions, which in your example means sharing the song four times, for total damages of around $2.80. IIRC, willful infringement is subject to triple damages, so the RIAA should be awarded $8.40. Note that in the case of sharers who serve up multiple copies of each of thousands of songs, the legitimate damages would be significant.
I have no problem with the RIAA suing people who infringe their copyrights, but they approach it as a purely civil matter, and in civil matters awards are limited by actual damage. I understand that the record labels have a problem that aggregate file sharing may be costing them a great deal, but that still doesn't justify allowing them to pick out a few people and slam them for many hundreds of times the amount of damage that individual did, in the hope that making an "example" will deter others.
Criminal law is all about deterrence. Civil law is primarily about compensation, with some small multiples being applied to awards in order to help keep the number of court cases down.
If the labels want, current copyright law does have some criminal provisions, which will allow them to slam the sharer very hard ($250K per infringement, IIRC, plus jail time). Of course, they'll have to accept the higher standard of proof ("beyond a reasonable doubt"), and they'll first have to prove that the damages exceed a statutory amount ($1500, IIRC), and those damages calculations had better be provably correct.