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."
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.
Re:If this goes through... (Score:5, Interesting)
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)
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: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: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: (Score:3, Interesting)
Not in general stated in those terms, no.
But buying a CD from a major label causes something like $5-$10 to end up in the hands of a cartel which uses significant fractions of its income to actively figth, corrupt and lobby government in order to have laws changed or written to write their own personal agenda, one which I personally find harmful. It also results in $1 or thereabout in economical stimulus to the creative artist.
Whereas copying the same CD does neither. (neither finance the RIAAs antics, nor
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: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.
And now we wait (Score:5, 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: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:I'm not so sure (Score:4, Informative)
Copyright has the additional category of statutory damages [wikipedia.org].
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.
Re: (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:I'm not so sure (Score:5, Interesting)
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)
> 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)
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)
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)
Re: (Score:3, Insightful)
Re:Treble damages (Score:5, Insightful)
Re: (Score:3, Insightful)
Re: (Score:3, Interesting)
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
Re:Tribble damages (Score:3, Funny)
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)
Imagine if megacorps only paid damages whenever they harmed someone.
Re: (Score:3, Insightful)
Better yet, imagine if megacorps actually paid damages whenever they harmed someone.
Re:punitive fines (Score:5, Insightful)
Re:punitive fines (Score:4, Insightful)
Re: (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: (Score:3, Interesting)
>for the record, $50,000 for free coffee in a year is ~$191.57/day spent on coffee
Not even enough to provide 100 employees with a daily Grande Regular Coffee from Starbucks, at the retail price.
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: (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: (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: (Score:2)
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)
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)
Imagine if megacor
very clever, but it might not stick (Score:2)
Re: (Score:2)
The $150,000 the law says they could get would be 150,000 downloads per upload. I don't see that happening at all.
Re: (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
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:Exxon Valdez damages were limited too (Score:5, Interesting)
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.
You don't even need to go that far afield; one of the plaintiffs in Ms. Barker's case, UMG Recordings, Inc., made the very same argument [blogspot.com] when it was a defendant, saying that a jury verdict for 10 times the amount of the actual damages was excessive.
I.e., when it's a defendant a multiple of 10 is too much. But when it's a plaintiff, a multiple of 428,571 is okay.
Does the word "hypocrite" come to mind?
Re:Exxon Valdez damages were limited too (Score:5, Funny)
Does the word "hypocrite" come to mind?
Actually, estoppel came to mind first.
Only a lawyer could say that.
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:Exxon Valdez damages were limited too (Score:5, Funny)
Hey could you start one of your posts with "IAAL"? Just for me? It would make my day. :p
Nah, it would sound too much like I'm trying to pull rank. Just because IAAL doesn't make me right. Just because IAAL doesn't mean IAAGL, I could be ABL, or even AVBL.
E.g., look at the RIAAL's. They're VBL's. Theoretically, TAL's, but they don't act like L's, and they don't know their A's from their E's.
In fact, if the RIAAL's really AL's, then I'm ashamed to be a L, and maybe IANRAL at all.
Re: (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: ???
What if... (Score:3, Interesting)
... 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?
Re: (Score:2)
Re:What if... (Score:5, Funny)
Unable to go to each of the hearings, you would lose by default, and pay 1000*$3.50/1000 = $3.50...plus attorney's fees for 1000 separate lawsuits, totalling $3,000,003.50.
Re:What if... (Score:5, Interesting)
More interestingly, what if the pieces were small enough to fall under fair use standards (which is less than 20 seconds, IIRC)?
For example, 16 pieces of a 4 minute song from 16 different people, each piece containing 15 seconds of the song.
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: (Score:3, Funny)
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.
You'd have thought they'd have learnt..... (Score:2)
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)
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]
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:WRONG (Score:5, Interesting)
Neither do they, and it should be kept at a MANAGEABLE level. The thing is, even if a person does have evidence that they only distributed it *once* the RIAA still wants many times the damage they actually perceive.
Re: (Score:2, Insightful)
Re: (Score:2)
It depends on what you mean by 'illegally' distributed.
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: (Score:3, Insightful)
friends might be the wrong term...
A few other people, unknown to the individual, given teh way file sharing works.
Re: (Score:2, Funny)
Everyone on the intertubes is one big happy family.
Re:WRONG (Score:5, Funny)
You mean I'm related to all the AC trolls around here?
Damn you, as if my self esteem wasn't low enough already.
Re: (Score:3, Funny)
That is exactly what I mean. C'mon, you know I wouldn't lie to you like that -- we're family.
Re: (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.
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: (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: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: (Score:2, Redundant)
yes
Re: (Score:2)
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: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
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: (Score:2, Interesting)
I thought that because the P2P user doesn't have a license to distribute, any distribution at all is illegal. Even if the distribution is back to the person who owns the rights originally.
Maybe Mr. Beckerman can chime in? Surely this isn't an unresolved question in law still.
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: (Score:3, Interesting)
1. A record store is distributing records (by selling them).
2. Blockbuster is distributing videos (by renting them out).
3. Joe who gives copies of his CDs to friends is committing copyright infringement, but is _not_ distributing.
4. Jane who makes her CDs available to Joe for copying (who doesn't accept them) is not "making available for distribution" and therefore completely innocent.
5. Jim who makes copies of his CDs available to a record store for copying _is_ "making availabl
Re: (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
Re:WRONG (Score:4, Interesting)
Points (4) and (5) then showed one case of "making available", but _not_ for distribution, and another case that was actually "making available for distribution" in the sense of the law. The RIAA's claim that "making available for distribution" is illegal isn't bullshit at all. What is bullshit is the little detail that "for distribution" doesn't mean what they claim it means.
Re: (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 a
Your answer seems unclear to me (Score:4, Interesting)
I hold you in the deepest regard, but it seems to me that you didn't answer the point in question, which is only whether agents of the copyright owner can be legally considered "the public". My understanding, from reading a lot of the material on your blog [blogspot.com], is that they aren't.
(Your answer was equivalent to "for distribution to occur, A, B, C, and D must be all true, and they all aren't", whereas the question was whether C would be considered true for a download from Media Sentry. My apologies if you meant that none of A, B, C, and D were true.)
Re:Your answer seems unclear to me (Score:5, Informative)
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: (Score:2)
Wouldn't the damages be limited to actual damages? Meaning that the RIAA would have to prove how many people they observed her distributing it to, then multiply by the cost of the song. If it is available for $0.99, then it would be X*$0.99.
But a reasonable request such as that is probably not welcome in our courts.
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: (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 th
Re:WRONG (Score:4, Interesting)
"The RIAA mob had special exemptions made into law so they don't have to provide these proofs in copyright infringement cases."
Do you have a citation for that? I thought that the statutory damages portion of copyright law predates the RIAA, but I might be wrong.
"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."
Not true per se -- the law protects us all. It protects copyright holders in general, whether the medium is music, movies, poetry, painting, novels or sculpture, and whether the copyright holder is a person or a company, rich or poor.
Lots of boats are being floated here. The precedent set by the "making available" arguments has the opportunity to benefit you as well, even if you're, say, a self-published author trying to collect damages from someobyd distributing your ebooks.
Re: (Score:3, Interesting)
Copyright infringement attaches to the number of works distributed, not the number of copies made (except when escalating to criminal infringement).
Putting aside criminal infringement for the moment, it does not matter how many copies you distribute. That is to say, if I illegally distr
Re: (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.
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:WRONG (Score:4, Interesting)
That is a great argument, and I am on your side.
Here is my question: If I made copies of all my favorite music CDs and went to the local flea-market, and set up shop to sell the CDs, and I had not yet sold even a single one (because many people would be leery about buying pir... homemade copies), and the RIAA busted me before that first sale, then couldn't I still be considered a distributor?
Somehow, I think I would! Whether I sold anything or not, is irrelevant. But that is my initial, ill-thought opinion.
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: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: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: (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
Don't tag it that... (Score:5, Funny)
It'll be a suddenoutbreakofcommonsense when the RIAA realizes how stupid they're being...which will be when they're all dead.
An AC troll posted a nice line on an article yesterday I won't forget:
"You can stop eating to lose weight, but you'd have to stop breathing to lose stupid"
So true.
Re: (Score:2)
It'll be a suddenoutbreakofcommonsense when the RIAA realizes how stupid they're being...which will be when they're all dead.
Unfortunately, as a corporation, they are immortal. They cannot die unless you take their capital (decapitalate?), and with it their power.
Re: (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: (Score:3, Funny)
Too bad sig lines (which might identify posters) don't make it to meta-moderators.
Re: (Score:3, Interesting)
So, why do the artists keep coming to the mega-labels? Why do they keep signing on the dotted lines? Either the artists are dumb, or they want access to the unique worldwide promotional resources that the labels have, and find it to be worth the price. I'm not sure which is the case, but I'd say in either case, the artists have only themselves to blame for the results of their negotiations. If they wanted, they could have gone small-label and sacrificed the bigger pie for the bigger piece.
I think you're wrong about that. I think these 4 companies owned about 90% of the pie 10 years ago, and now earn about 70% of the pie. Major artists are declining to renew their contracts, and new artists are finding alternative ways of marketing their music -- ways designed to earn a few bucks for the artists, instead of enriching the slave masters.