Forgot your password?
typodupeerror
The Courts Government Media Music News Your Rights Online

Copyright Scholar Challenges RIAA/DOJ Position 168

Posted by Soulskill
from the whom-some-might-call-an-expert dept.
NewYorkCountryLawyer writes "Leading copyright law scholar Prof. Pamela Samuelson, of the University of California law school, and research fellow Tara Wheatland, have published a 'working paper' which directly refutes the position taken by the US Department of Justice in RIAA cases on the constitutionality of the RIAA's statutory damages theories. The Department of Justice had argued in its briefs that the Court should follow a 1919 United States Supreme Court case which upheld the constitutionality of a statutory damages award that was 116 times the actual damages sustained, under a statute which gave consumers a right of action against railway companies. The Free Software Foundation filed an amicus curiae brief supporting the view that the more modern, State Farm/Gore test applied by the United States Supreme Court to punitive damages awards is applicable. The new paper is consistent with the FSF brief and contradicts the DOJ briefs, arguing that the Gore test should be applied. A full copy of the paper is available for viewing online (PDF)."
This discussion has been archived. No new comments can be posted.

Copyright Scholar Challenges RIAA/DOJ Position

Comments Filter:
  • hmm (Score:4, Funny)

    by nomadic (141991) <nomadicworld&gmail,com> on Friday April 10, 2009 @08:08PM (#27537931) Homepage
    University of California law school

    That narrows it down...
  • by al0ha (1262684) on Friday April 10, 2009 @08:09PM (#27537937) Journal
    The DOJ is basing their arguments on an action from 1919 where the small guy was able to be awarded appropriate damages from the BIG guy.

    How can the media companies been seen as akin to the small guy and the individual consumer the BIG guy?

    By Benjamin goggles of course!
    • The DOJ is basing their arguments on an action from 1919 where the small guy was able to be awarded appropriate damages from the BIG guy. How can the media companies be[..] seen as akin to the small guy and the individual consumer the BIG guy?

      They can't. The DOJ's brief was nonsense. For that and a number of other reasons.

      Maybe their math isn't too good. 116 times their actual damages would be around $40; they're looking for $750 to $150,000 per mp3.

      • Isn't that demand based on some theory of "collateral" and cumulative damage caused by someone sharing a media file? In other words, you share the file, which thousands of other people receive for free and thus don't pay to own, so YOU are responsible for the (theoretical/estimated) cumulative loss of profit?

        (Yes, I know there are other interpretations how that scenario actually plays out; I'm not drinking the Kool-Aid, merely pointing it out.)

        • If they want those damages they can sue the person making them. Otherwise it's using pyramid-scheme logic to justify things.
        • by Dun Malg (230075) on Friday April 10, 2009 @10:13PM (#27538639) Homepage

          Isn't that demand based on some theory of "collateral" and cumulative damage caused by someone sharing a media file? In other words, you share the file, which thousands of other people receive for free and thus don't pay to own, so YOU are responsible for the (theoretical/estimated) cumulative loss of profit?

          Yes, but that's part of why it's bullshit. You can't make one person pay for the transgressions of 100 others. That's the canonical definition of "scapegoating", and it has no place in law.

          • You can't make one person pay for the transgressions of 100 others.

            That would be the case if the RIAA/MPAA argued that you are responsible for them downloading.

            I think the MPAA/RIAA argument is that you are responsible for 100 counts of uploading (for n=100).

            I think that's a reasonable argument: if you do something wrong a hundred times, you should pay for all hundred.

            It's just that they don't provide any good evidence. ... And their legal maneuvers are dubious. Go to Ray Beckerman's site for a lawyer's argument as to why.

            • Re: (Score:3, Interesting)

              by blackest_k (761565)

              Interestingly most torrents you struggle to get people to upload to 1. Doesn't that mean you uploaded 1 copy if your ratio is 1 and your responsible for 1 Copy.

              • I don't know of any case law. I don't think the law written in the books take bittorrent into account.

                So, my (uneducated: IANAL) guess is that it'll come down to the arguments presented in some case by the two opposing lawyers.

                One could argue that the user is guilty of distribtion for each sent chunk; or for each IP address that one or more chunks are sent to; or for each unique (IP address, user-agent string), or (IP, TCP port), or per floor(chunks sent / chunk count of full file), or...

                Check what the cou

                • A really enterprising lawyer might be able to argue fair use. seriously.

                  After all if i give you a 0.001% of any file its hardly enough to be a substantial part of the original work and by itself meaningless noise. The only thing is by the nature of bit torrent each "fair use" extract tends to be of a different part of the work.

                  Common sense says is a ludicrous argument, but the law doesn't deal in common sense.
                  And if you cannot be punished for the actions of others (and this seems rather shaky to me since If

        • by scientus (1357317)

          In not one of these cases have the shown any evidence of such things, nor have they even spoken of any actual damages. If this took place then they could make that case, show proof, and provide a reasoned estimate of damages. This has not occured because no, negligble, or at least much less damages have taken place than the RIAA/MPAA would like people to presume. It is upon burden of the plaintiff to show damages, and in not a single court case have they done so.

          Mere speculation of possible future events ha

          • by macraig (621737)

            Like I said, I'm not promoting the argument, rather merely restating it for the purpose of the discussion. It's not a defensible argument in my opinion, either.

          • Re: (Score:3, Insightful)

            In not one of these cases have the shown any evidence of such things, nor have they even spoken of any actual damages. If this took place then they could make that case, show proof, and provide a reasoned estimate of damages. This has not occur[r]ed because no, negligble, or at least much less damages have taken place than the RIAA/MPAA would like people to presume. It is upon burden of the plaintiff to show damages, and in not a single court case have they done so. Mere speculation of possible future events has no place in these preceding, merely because something may happen does not mean it has. And if something has not taken place then there is no grounds.

            Well spoken, scientus.

            I.e., RIAA formula for arguing that the statutory damages are appropriate:

            1. Bring a lawsuit making unsupported accusations.
            2. Ask for outlandish statutory damages.
            3. Defend the outlandish statutory damages request by saying (a) maybe this caused us damage and (b) it's necessary to give us outlandish statutory damages to deter other people and (c) don't look at the law, judge, that will only confuse you.
            4. ???????
            5. Profit!

        • Consumer shares music, other would-be consumers become aware they can get music for free, they stop buying music in favor of free music, *even if it's different from the artists they originally sought to buy*. RIAA loses millions per year, spends millions on legal and lobbyists to get back to making those millions again. The actual ratio of damages per file shared is academic. You'll know when the gavel drops.
      • What are you using to estimate the damages?

    • by erroneus (253617)

      The answer is more simple than you have imagined!

      Everyone is JESUS CHRIST. They must ALL die for all of our sins. They know they won't get us all and they know they won't get all of our money, so now they are crucifying the few for the greater good.

  • Excellent (Score:4, Interesting)

    by maz2331 (1104901) on Friday April 10, 2009 @08:33PM (#27538069)

    This is very much a positive development, though really the whole issue is eventually going to have to go before the Supreme Court. At least they seem to have been generally pretty decent in their handling of Constitutional and "IP Law" issues the past few terms.

    • Re:Excellent (Score:5, Informative)

      This is very much a positive development, though really the whole issue is eventually going to have to go before the Supreme Court. At least they seem to have been generally pretty decent in their handling of Constitutional and "IP Law" issues the past few terms.

      In practical terms, it doesn't have to go to the Supreme Court. A few well reasoned decisions in district courts, or courts of appeals, will have sweeping effect.

      The DOJ's position -- if litigated -- doesn't have the chance of a snowball in hell of being upheld. The RIAA's statutory damages theory is flagrantly unconstitutional, under the Williams test or under the Gore test.

      • by maz2331 (1104901)

        Looking at the tactics of the *AA crowd, it will have to get to that level. Ordinarily, I'd agree with you on this one, but these people are relentless and have enough of an agenda + litigation budget to try circuit-hopping until they get favorable rulings.

        Unless they really screw up and catch massive sanctions and some of their pit bulls face the neutering of disbarrment, that is.

        • Re:Excellent (Score:5, Informative)

          these people are relentless and have enough of an agenda + litigation budget to try circuit-hopping until they get favorable rulings

          You don't know them like I do. There is no way they will let this issue get fully litigated. Whenever they run up against a lawyer like me they will fold up their tent before letting this issue get decided. When they lose on this issue, the game is over for them. Without their ridiculous, draconian statutory damages threat, they are finished.

          They might go to the mat in the Tenenbaum case, only because they look upon Prof. Nesson's unconventional legal arguments as easy prey. But I think they would be making a mistake in going to the mat even there, because Judge Gertner is not going to let Prof. Nesson control the legal parameters. She will determine them.

          Most likely you will never see these issues fully litigated in the RIAA v. end user cases at all.

          • Re: (Score:3, Interesting)

            by Andy_R (114137)

            Could a couple of concerned US citizens set up a a test case and 'fully litigate' it in order to set a legal precedent?

            I'm sure we could find a slashdotter who can write a song (quality unimportant), copyright it, and then have it pirated by another slashdotter and then press for RIAA style damages (which would be given back in the unlikely event of a win).

            • Re: (Score:3, Insightful)

              The RIAA's tactic is to intimidate the unknowing into capitulating without a fight. All it costs them is a a few bucks for a secretary to mail out the letter. Once they get into 'real' lawyering with judges and opposing counsel, then it starts to cost real money. That's why they either get a quick settlement or they cut and run.
              • You're missing the point. It doesn't matter who is involved in the suit for setting a precedent, just what points of law are discussed. there is nothing stopping two people outside the RIAA colluding such that one sues the other, using the same arguments as the RIAA, and intentionally loses. This then sets the precedent. If the RIAA were acting in good faith, rather than settling as soon as it looks like they may lose, then this would not be required.
            • (Warning! Pastiche Post!)

              On Thursday Ray gave us the idea, but we were all probably Mostly Working or burnt afterwards.

              I believe quality DOES matter because that will help the song share, and not accidentally die a Red-Herring death from apathy.

              ....

              (Pasted from Thursday's thread:
              Re:In MP3 format, so what? (Score:3, Informative)
              by NewYorkCountryLawyer (912032) * on Thursday April 09, @11:30PM (#27527709) Homepage Journal
              The MP3 is the format that's being served up by the government's website.
              The reason the

              • On Thursday Ray gave us the idea, but we were all probably Mostly Working or burnt afterwards:

                (Pasted from Thursday's thread: Re:In MP3 format, so what? (Score:3, Informative) by NewYorkCountryLawyer (912032) * on Thursday April 09, @11:30PM (#27527709) Homepage Journal The MP3 is the format that's being served up by the government's website........the Court making the determination (a) makes its own oral arguments available online, and (b) the format in which it chooses to do so is MP3's, which are freely shareable, and even remixable. This oral argument could wind up as the soundtrack for some anti-RIAA movies on YouTube.................

                ... These are the youtube copies, courtesy of another user:

                Re:Someone, please... (Score:4, Insightful) by mariushm (1022195) on Thursday April 09, @09:19PM (#27526845) Here you go: Part 1. http://www.youtube.com/watch?v=f2RHBDwlH8c [youtube.com] [youtube.com] Part 2. http://www.youtube.com/watch?v=FsHAF39JxNs [youtube.com] [youtube.com] Part 3. http://www.youtube.com/watch?v=06BJu9GVU-w [youtube.com] [youtube.com] Part 4. http://www.youtube.com/watch?v=3JcOi6htmHM [youtube.com] [youtube.com] Part 5. http://www.youtube.com/watch?v=I9idglz0ANA [youtube.com] [youtube.com] Part 6. http://www.youtube.com/watch?v=PWOAR6ZU0JA [youtube.com] [youtube.com] 9 min 10 sec each, last is 1 min 10 sec

                ... Ray's Official acknowledgement:

                Re:Someone, please... (Score:2) by NewYorkCountryLawyer (912032) * on Friday April 10, @12:05AM (#27527935) Homepage Journal mariushm, Thank you for putting it up on YouTube. I've linked to your above comment, providing the YouTube segments, in my blog post.

                ... This is what should happen next:

                Paging all nerdy internet DJs (Score:5, Insightful) by Weaselmancer (533834) on Thursday April 09, @06:45PM (#27525597) Someone needs to heavily sample this and mix it into some house music, stat! If you think the RIAA is going nuts now just wait until that shows up on P2P. .....

                At the time of this post there were no entrants posted to the Slashdot thread of such mixes. I have an idea of a starting point but I have to hope "quality does not matter" so someone more talented than I gets the idea and can do better.

                Thank you, Tao! I needed an organizer.

          • FWIW, the lawyer* whose offices I'm going to be painting tomorrow agrees with you. He laments that the same sort of precedent doesn't often apply to the DUI and non violent drug cases he works and hopes you don't have too many Pyrrhic victories.

            Cheers from *MK(said lawyer) and me and whole crazy bloody crowd of good people here at my 42nd birthday party bash where we are violating a whole helluva lot of stupid laws, reading slashdot, streaming music, arguing, and having an absolutely incredible goo

    • Re: (Score:2, Insightful)

      by mailman-zero (730254)

      This is very much a positive development, though really the whole issue is eventually going to have to go before the Supreme Court. At least they seem to have been generally pretty decent in their handling of Constitutional and "IP Law" issues the past few terms.

      Except for that whole Eldred v. Ashcroft fiasco described in Lessig's Free Culture.

  • by I_Can't_Fly (1442225) on Friday April 10, 2009 @08:56PM (#27538215) Homepage
    Come on guys...

    Whatever happened to improvisational near real time performances in the public domain.. rotfl.

    Well anyway if someone wants a recording of the bad storms that rolled through here about 3 hours ago with some guitar recorded live.. here it is.

    Tennessee Storms of April 10, 2009 and guitar [archive.org]

    Like the universe..the net has a lot of alternatives, and not just mine. Stop being force-fed what you like.

    • by earlymon (1116185)

      Nice!

      That actually made my day, Stranger.

      Many thanks....

    • by rts008 (812749) on Friday April 10, 2009 @10:11PM (#27538629) Journal

      Well Done!
      Not my normal type of music, but that was an interesting piece of work, having the storm in the background. Calm and soothing, yet with a dynamic tension that keeps it from going stale halfway through. (it reminded me of something I could have expected from Carlos Santana)

      This is a good example of why all of the "Oh No! The music is dying!" crap from the RIAA and their shills runs in one ear and immediately out the other with me.

      There are just too many people out there like you, who will make music for the enjoyment of the music...and don't mind sharing.
      Thanks for both the attitude and the music. You made my day with that!

    • by ktappe (747125)
      Well done!
    • by Reziac (43301) *

      Nice. I like the almost symphonic-percussion effect of the thunder, juxtaposed to the quiet guitar. Easy to visualize as very small man, very large thunderstorm. Could be the start of a new genre! :)

  • by Nom du Keyboard (633989) on Friday April 10, 2009 @08:57PM (#27538227)
    So the Obama Justice Department has its head up its collective RIA-A$$. And their justification for this is that the Bush Justice Department had their own heads up in the same warm dark spot so it must be right.

    So how's all the Hope and Change working out for you?
    • So the Obama Justice Department has its head up its collective RIA-A$$. And their justification for this is that the Bush Justice Department had their own heads up in the same warm dark spot so it must be right. So how's all the Hope and Change working out for you?

      I was disappointed in the low grade, obsequious briefs the Justice Department filed in SONY v. Tenenbaum and SONY v. Cloud. I was hoping for "change" but found none in this area. Nevertheless we are early in the game, and the Justice Department RIAA lawyers are all legally recused from dealing with these cases.

      • by rts008 (812749)

        Nevertheless we are early in the game,...

        Yes, this is what I am watching. The momentum this has been building will not turn nor stop on a dime. I've noticed Obama getting a lot of flack here becuase he has not chaanged everything overnight.
        Some good stuff has came out of the White House since January, and a few not so good.(wiretapping specifically)

        I will have a clearer picture after, oh, say a year has elapsed.(Jan. 2010), than now at less than 4 months.
        *toast*Here's to hoping!

        Back on topic, there seems to be increasing resistance to the RIAA's t

    • Re: (Score:3, Interesting)

      by belmolis (702863)

      Well, to be fair, Obama has a few other items on his plate. The economic mess and the war in Iraq, for example, are no doubt far more important right now. I'm hoping that this is just inertia in the DOJ on an issue to which the new administration hasn't had time to attend. That may be wrong, in which case I'll be disappointed, but I'm willing to give them a little while to fix things.

      • Re: (Score:3, Interesting)

        Well, to be fair, Obama has a few other items on his plate. The economic mess and the war in Iraq, for example, are no doubt far more important right now. I'm hoping that this is just inertia in the DOJ on an issue to which the new administration hasn't had time to attend. That may be wrong, in which case I'll be disappointed, but I'm willing to give them a little while to fix things.

        I agree. The briefs the Obama DOJ filed were cut and paste jobs from the one the Bush DOJ filed so "inertia" is a very possible explanation. It wasn't "change" but it wasn't a downward departure either. It was the same low level, not carefully thought through, trash.

  • Sweet (Score:2, Funny)

    by bikehorn (1371391)
    The RIAA sucks, but I still pay for my music, at least some of it...by buying vinyl. Mmm, delicious records and analogue sound.
  • Legal experts say the RIAA is full of shit. In other news, scientists say creationist claims are innacurate. In still other news, fire is hot.

  • The RIAA is essentially prosecuting the initial downloader for crimes that others commit by then downloading from him or her. Why isn't this being used as a defense? When you stop and think about it, it doesn't matter how many people (how many 'counts') download from this person. They are in affect prosecuting the initial downloader for the crimes of others.

    This person should be responsible only for the content he downloaded, and punished for making it 'available' to others, but he or she did not force i

"Consistency requires you to be as ignorant today as you were a year ago." -- Bernard Berenson

Working...