RIAA Agrees To Take $200-Per-File In Texas Case 154
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.
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.
Re:What happens? (Score:3, Informative)
The courts can seize wages, property, etc., in most states. Unfortunately, unless you have a good lawyer and lots of money, you're up a creek if without a paddle.
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.
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?
Re:it bears repeating (Score:3, Informative)
Whatever.
They're FPOS because their methods are unsound. See: http://recordingindustryvspeople.blogspot.com/2007/03/deposition-of-riaas-expert-available.html [blogspot.com]
Re:$4.00 for infringement is more like it.... (Score:3, Informative)
Your price is based on the cost of the song for one copy. If it is shared and downloaded by two we now have $6. If it is downloaded by three it is... you see where this is going. That is what they base the cost on though I do think their numbers are skewed and they should have to provide some proof as to how many times it was downloaded. It would really slow them down.
I know, I know, they have no proof how many times it was downloaded but you have no proof it was only once.
I don't like the RIAA any more than you do but your reasoning does not help the cause.
qz
Re:$4.00 for infringement is more like it.... (Score:3, Informative)
I believe we have one, called voting.
Just vote your current house/senate member out of office. Cite this as the reason why. If you can remove one, half of the remainder will change their stance.
See tobacco industry for examples (too lazy to look up right now).
Re:Appeal Appeal Appeal (Score:3, Informative)
Just curious, who came up with 33 cents per file as the "actual" damages and why?
It's my estimate.
Wholesale price 70 cents.
-Expenses ~35 cents.
Lost profit ~35 cents.
There was evidence of copying. She admitted it. The damages for that would be at best ~35 cents.
There was no evidence she disseminated a copy to anyone else, or that she did so pursuant to a "sale or other transfer of ownership" or "license, lease, or lending." It's rule number 1 that you can't award damages based on speculation.
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.
Re:$4.00 for infringement is more like it.... (Score:3, Informative)
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.