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RIAA Agrees To Take $200-Per-File In Texas Case
Posted by
Soulskill
on Fri Oct 17, 2008 07:54 PM
from the how-generous dept.
from the how-generous dept.
NewYorkCountryLawyer writes "In a San Antonio, Texas case, Maverick v. Harper, in which a young woman was accused of having committed copyright infringement at the age of 16, the Judge denied the RIAA's summary judgment motion this summer, saying there were factual issues as to whether the defendant qualified for the 'innocent infringement' defense. He offered the record companies a way out, however, saying he would grant them a judgment if they agreed to take only $200 — as opposed to the $9,250 they sought from Jammie Thomas or the $750 they usually seek — per infringed recording. We have recently learned that, after the Judge denied the RIAA's reconsideration motion and scheduled a trial date, the RIAA filed papers agreeing to take the $200-per-recording amount. While $200 is still about 600 times the amount of the actual damages, it's better than paying 26,000 times the actual damages, which is what the RIAA tried to squeeze out of Ms. Thomas."
This is a reversal of the RIAA's rejection of the $200 award per song last month.
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NewYorkCountryLawyer writes "In an interesting development in a Texas case against a college-age defendant who was 16 at the time of the infringement, the Judge has denied the RIAA's summary judgment motion and ordered a trial of the damages — even though the defendant admitted copyright infringement using Kazaa — based on the 'innocent infringement' defense, which could reduce the statutory damages to $200 per song file. Relying on BMG v. Gonzalez (PDF), the reasoning of which I have criticized on the 'innocent infringement' issue, the RIAA argued that Ms. Harper does not qualify for the 'innocent infringement' defense, since CD versions of the songs, sold in stores, have copyright notices on them. In its 15-page decision (PDF) the Harper court rejected that contention, holding that 'a question
remains as to whether Defendant knew the warnings on compact discs were applicable in this KaZaA setting,' since 'In this case, there were no compact discs with warnings.' Finding that there was a factual issue as to what the defendant knew or didn't know at the time of the infringement, the Court ordered a trial of the damages unless the RIAA agrees to accept $200 — rather than the $750-plus it seeks — per infringed song."
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She'll be fine. (Score:5, Interesting)
After all, the RIAA simply suggests you drop out of school [mit.edu] to pay your fine.
So in this case, I'm sure they'll suggest she not go to post-secondary school and spends her school savings to pay them.
This is why I haven't bought an RIAA registered CD since 2001, and won't. Douchebags.
http://www.riaaradar.com/ [riaaradar.com] ftw.
Re:She'll be fine. (Score:4, Insightful)
Parent
Re:She'll be fine. (Score:5, Insightful)
After all, the RIAA simply suggests you drop out of school [mit.edu] to pay your fine.
It's a really talented and well-written article. It's things like this which need to be published on a mass scale (unfortunately, a college newspaper won't get you anywhere) before we see any change. When extortion of this level of cruelty happens legally, generating awareness is the only way to stop it.
As it is right now, politicians don't even know what the internet or a computer is, how are we supposed to make them defend our rights?
Parent
Re:She'll be fine. (Score:5, Informative)
I don't get all this talk of cruelty and extortion and peoples rights. At the end of the day, If you don't illegally download copyrighted music, you will not get into that state.
Not so. Probably the majority of people being sued did not do the file sharing for which they are being sued. The RIAA's so-called investigation goes no further than purporting to identify a person who paid for an internet access account. Most times the victims are parents, grandparents, neighbors, roommates, etc., and oftentimes they do not even have a clue as to who actually did have the filesharing account the RIAA is pursuing.
Amazingly, I manage to not be annoyed at speed cameras either, because I don't break the speed limit. Yes, life gets very complex if you think the law shouldn't apply to you, but you get caught. That is how it is supposed to work.
Assuming, for purposes of the discussion, that (1) you are as perfect as you claim to be, and never, ever, make a mistake, and (2) the only people the RIAA ever targets are people who actually did use a file sharing program..... it should still trouble you if one of your less perfect neighbors is subjected to punishment that is grossly disproportionate to any actual harm that was done. The whole subject of this article was not whether the defendant, who was 16 years old at the time, did it.... she admitted she'd done it. The question is whether she should have to pay 26,000 times the actual damage, or 2,200 times the actual damage, or 600 times the actual damage... or maybe, just maybe, something a little bit more proportionate to the actual damages sustained. The law is supposed to be about fairness and justice and reason and proportionality. When it allows shockingly disproportionate penalties, it calls the whole legal process into disrepute.
In the age of 'micropayments' for MP3 downloads of 99 cents or less, tacking on damages of $750 or more for a single song is ludicrous, and the entire world is basically laughing at the United States in the wake of the Jammie Thomas trial. I suggest you read Judge Davis's comments [blogspot.com] about the trial verdict handed down in his courtroom and his plea for Congressional action to prevent such a thing from reoccurring, or this excellent law review article [blogspot.com] on the unconstitutionality of these disproportionate damages theories, if you are interested in the subject.
Parent
It's still not really reasonable (Score:5, Insightful)
That's like going to extort a store owner:
Mafiaa: Hey buddy, You wanna keep your store safe, it'll be 30%, off the top.
Store: We can't afford that. We'll just close shop.
Mafiaa: Ok, we'll just take 3%.
Re:It's still not really reasonable (Score:5, Funny)
This is a poor analogy.
I mean, the mobsters at least won't break your store if you pay (As compared to losing service for a DRM-enabled music file). Members of the mafia work hard, and don't appreciate such an insulting comparison.
Parent
Re:It's still not really reasonable (Score:5, Insightful)
It's my understanding that the mafia actually provides the negotiated service, which would more than I could say for the RIAA. Besides, the mafia scares me on a lesser level. They might break my legs or throw me in a river, but as far as I know they can't actually devour my soul.
Parent
Re:It's still not really reasonable (Score:5, Funny)
I think that the RIAA employs soul-eating undead
I can confirm.
Parent
Woohoo! (Score:5, Funny)
I'm a Texan, and this is great news. I only owe them 2 million dollars!
What happens? (Score:5, Interesting)
Re:What happens? (Score:5, Funny)
You're forced to work as a discwasher.
Parent
Re:What happens? (Score:5, Informative)
They can take your stuff. A civil judgment also stays good for 20 years (in most states), so they can garnish your wages once you DO get some jing.
Parent
Re:What happens? (Score:4, Insightful)
Parent
Re:What happens? (Score:5, Interesting)
Parent
How generous (Score:5, Funny)
Wow! Now you're only cutting off one of my balls? You're so charitable!
- RG>
Appeal Appeal Appeal (Score:5, Interesting)
1: 600X actual damages is constitutionally excessive.
2: Attempted Distribution != Distribution. Or in other terms: Making Available != Distribution.
On a side note, while the judge seems like a nice guy here, he's a moron for buying the RIAA's line that while we can't prove she ever provided a file to anyone except our own hired, paid, and completely unlicensed investigators, she's guilty anyway.
Re:Appeal Appeal Appeal (Score:4, Informative)
1. 600X actual damages is constitutionally excessive.
Just curious, who came up with 33 cents per file as the "actual" damages and why? Accepting, as the court did, that there was harm suffered from her sharing files, the question is how much. If she shared a file with just one other person who would have otherwise bought it on itunes, the damage would be $1. How do you come up with a fraction of $1.
2: Attempted Distribution != Distribution. Or in other terms: Making Available != Distribution.
If the investigators' claim that they downloaded files shared by her are questionable then this could be a legitimate complaint. However, we are not talking about the investigators' word here. It seems easy to prove that they did in fact download them, log files etc.
The SCOTUS ruled that anything above 10x damages is automatically unconstitutional, and something like 6 or 8 times (can't remember) is enough to become questionable. (google it if your that curious)
The problem arises in that US copyright law allows for a minimum 750 dollars per infringement on statutory damages, where as through discovery we've learned the 'wholesale' cost of a song (according to the RIAA) is in the neighbourhood of 35 cents.
That gives us damages at around 2150 times actual losses (yes I'm rounding, sue me.) While following the law.
This brings up an important point that most are sadly un-aware of. Legal and illegal, and constitutional and unconstitutional, are not necessarily the same things.
The RIAA's pursuit of 750$ a song is legal, its just not constitutional.
Further these cases are complicated by the following;
You cannot violate your own copyright, it just can't happen. So then agent's empowered by the RIAA making downloads off file sharing networks are in fact authorized to do so, so the copies they obtain are legal. The copyright owner told them to go get them. Investigators downloading mp3's doesn't get you anywhere and 'making available' isn't a crime, the distribution is.
So.... wheres the crime?
Parent
Real question (Score:5, Interesting)
"While $200 is still about 600 times the amount of the actual damages"
And how do you know?
10 songs a CD, 15 dollars a CD, would equate to 1.50 a song. 600 times that would be... Wait, your using new math?
Seriously, how can someone come up with a dollar figure for copyright infringment.
I used to run a courier group. At one point, we where ranked #1 in the US, and ranked .eu fairly high, according to CWS, USCR, etc. (this is dating me).
I couldn't tell you how much damage our MP3 group did, per song. Neither can NYCL, neither can RIAA or any other entity, because you DON'T KNOW HOW MANY PEOPLE LEECHED FROM HER, AND IN TURN, FROM THE ORIGINAL LEECHERS.
I haven't had a problem with the dollar figures they put out, simply because, YOU CAN'T QUANTIFY the dollar amounts, because nobody knows.
So, seriously, how can you be taken seriously, when you are spouting dollar figures as well that don't add up?
Serious question, NYCL. I want to know where your dollar figures came from and your percentages.... If only in case someday the past comes to haunt me :) lol.
--eighteen double zero
Re:Real question (Score:4, Informative)
Someone else in this thread pointed out that the damages should not be compared to the cost of downloading a song, but to the cost of the right to upload one. Interesting point.
It's not really interesting, it's just supremely illogical. When someone buys and pays for a distribution right they then proceed to resell the item, and receive money for it, and they have the exclusive for a territory (in this case the entire internet I guess). That would be a violation of a distribution right if the whole transaction were unauthorized. And if the person who really did own the copyright was prevented from distributing the product or marketing the distribution right in the product, then his damages would be the value of the distribution right.
As you know, that did not occur here. None of that occurred here. Here, there is not even evidence that she sent anyone a copy.
In fact, in this case the defendant did not "distribute" the recording, within the meaning of the Copyright Act, at all. Under the statute for there to be distribution there has to be
-a dissemination of copies (no proof that that occurred here)
-to the public (no proof that that occurred here)
-by a sale or other transfer of ownership, or by a license, a lease, or a lending (no proof that that occurred here). So to award damages based on the value of the purchase of a distribution right would make no sense since there was no such thing.
Parent
it bears repeating (Score:5, Informative)
While $200 is still about 600 times the amount of the actual damages, it's better than paying 26,000 times the actual damages, which is what the RIAA tried to squeeze out of Ms. Thomas.
I really get tired of saying this, but the damages have nothing to do with what it costs to purchase and download a song. The case is not about a person downloading copyrighted materials (if it was, then the cost of the downloaded song would be correct to look at for damages). The case is about uploading copyrighted material. The person is basically assuming the right to distribute the material. In this case, the proper thing to look at is what the media company would charge someone if they wanted the purchase the rights to distribute the song, which is obviously going to much higher than the cost of purchasing a single download of the song.
If I call the RIAA and say that I want to purchase the right to put hit song X on my website for every visitor to my website to download for free and ask what it would cost to purchase this right, that is what the damages should be compared to. My guess is that this right would cost me much more than the cost of purchasing a single copy of the song, since I am basically buying the right to distribute as many copies as a I want. That is the right that is being infringed upon, and what the damages should be compared to.
$4.00 for infringement is more like it.... (Score:4, Interesting)
If the standard for judgment is actual damages plus treble damages, i.e $0.99 per song and $0.99 * 3 for damages, that's more like it.
While I don't mean to incite violence, but I'm really starting to think that "we the people" need to find a way to rid ourselves of these parasites who write the laws, pay the legislatures to pass the laws, pay the executive branch to sign the law, "influence" the judiciary to uphold the laws, and destroy the lives of defenseless citizens.
Sorry, but they suck, and they all need to be on a plane that crashes in the ocean.
Re:Judge can reason evidence, can he administer? (Score:5, Funny)
Home of the rave? I would assume that is in Europe some place.
Parent
Re:Wrong (Score:5, Insightful)
those are hypothetical damages. technically the recording industry didn't incur any real damages from this type of copyright infringement. making copies of electronic data doesn't cost anything.
and if you want to talk about hypothetical damages, then what about the potential losses to indie artists or labels due to the major labels' monopolistic control over music distribution/promotion? Payola is still alive and well today. the music promotion racket run by the Big Four and the Clear Channel radio network requires artists & labels to buy spin slots on top 40 playlists. this essentially prevents independent musicians from gaining any kind of public exposure. these are blatantly anti-competitive practices used to lock non-RIAA-sanctioned artists out of the industry.
and what about the ASCAP & BMI who each collect hundreds of millions in music royalties each year? any public venue that plays music--whether live, recorded, or broadcast--has to pay these RIAA-run organizations "licensing fees" regardless of who owns the rights to the music. the ASCAP even charges venues for playing foreign music that is in public domain. so they will collect licensing fees on your music whether you want them to or not. but if an artist wants to actually receive his royalty checks, he needs to pay for ASCAP/BMI membership. for most musicians, these royalties are not worth the cost of membership. it would be better to just allow public venues to play their music for free, thus promoting the band and giving them free exposure. but these extortion rings eliminate any financial incentive to play non-RIAA-licensed music since a venue is billed even for playing music by non-RIAA-affiliated artists.
file sharing is a major threat to the RIAA not because it hurts the music industry--it doesn't, it has actually boosted net profits--but because it undermines the Big Four's traditionally held control over music distribution & promotion. radio used to be the only place where consumers could sample music for free. but now consumers can explore music that actually suits their taste by circumventing traditional channels. you can sample music before you pay for it, and this gives consumers the power to only pay for music they actually like. that means no more buying $20 pop albums full of filler tracks just for one or two radio singles. file sharing actually exposes consumers to much more music than before, which has expanded people's musical tastes and increased music-related expenditures. but that spending is now distributed across a large variety of indie artists rather than concentrated in a small handful of mainstream acts. mainstream pop musicians that have traditionally been the major labels' cash cows are no longer selling because people realize that such throwaway fad music is not worth spending money on.
Parent
Re:Justice system as a revenue stream (Score:5, Insightful)
I cannot understand the usage of a public system such as the ________ system being perverted to act as a revenue stream for clearly underhanded groups of people.
I'll help you understand (insert political/educational/judicial/legislative/economic/etc in the blank):
1) People are not perfect. Therefore people do not make the perfect ________ system.
2) There are some people who do not want to accept the rules of the ________ system.
3) Some of these people try to circumvent the rules of the ________ system, fail, and are punished/suffer.
4) Others (the clever ones) are able to successfully use the imperfections of the ________ system to circumvent, or change, the rules of the system. These people, in thoroughly developed society, will have an incredible amount of control over the original system. To not think this inevitable is akin to honestly believing "The cheater never prospers".
As a side-note, the abuses and manipulations of the American judicial system, at most times, seem pretty tame compared to those of the financial/economic, or political/legislative.
Parent
Re:Punitive damages are meant to PUNISH (Score:5, Insightful)
I don't condone her actions, nor would I excuse them. In fact, I get somewhat irritated by those that try to justify stealing music. I'd actually agree that she needs to be punished to some reasonable degree.
I don't agree, however, that downloading music illegally is a crime that merits the financial destruction of someone's future. That's the issue I have here.
Let me ask you - would you consider illegally downloading music or stealing a car [nwsource.com] a more serious crime? Doesn't it seem a bit crazy to you that the penalty for downloading music is harsher than grand theft auto?
Parent