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RIAA Must Divulge Expenses-Per-Download 305

NewYorkCountryLawyer writes "The Court has ordered UMG Recordings, Warner Bros. Records, Interscope Records, Motown, and SONY BMG to disclose their expenses-per-download to the defendant's lawyers, in UMG v. Lindor, a case pending in Brooklyn. The Court held that the expense figures are relevant to the issue of whether the RIAA's attempt to recover damages of $750 or more per 99-cent song file, is an unconstitutional violation of due process."
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RIAA Must Divulge Expenses-Per-Download

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  • by Wylfing ( 144940 ) <> on Tuesday November 27, 2007 @01:41AM (#21488817) Homepage Journal

    Wouldn't it be ironic if the lawsuits brought by the RIAA in an attempt to preserve/enhance strong copyright ended up severely diminishing U.S. copyright law instead?

  • Am I the only one? (Score:4, Insightful)

    by TheGoodSteven ( 1178459 ) on Tuesday November 27, 2007 @01:51AM (#21488861)
    Am I the only one that gets some sort of happiness from the RIAA's obvious abuse of copyright laws? The more and more they are able to stretch them, the more and more obvious it becomes that the whole deal needs an overhaul. At one point lawmakers are gonna put their foot down and make sure this comes to an end, and that it can never happen again, right?...........right?
  • Good for the Goose (Score:2, Insightful)

    by burgundysizzle ( 1192593 ) on Tuesday November 27, 2007 @01:56AM (#21488905)

    As the saying goes "What's good for the goose is good for the gander". If the RIAA can press for wide ranging discovery that is intrusive for the defendants, they have to be able to do the same to plantiffs when they're after information that is relevant to their defense.

    I would hope that a judge wouldn't accept costs more of than 70c per song since that's about how much they get from iTunes (the cost per download shouldn't include Apples cut of the 99c since of course that's Apples income not the Record Companies). I'd run whatever they come up with past an accountant though given the recording industrys penchant for creative accounting.

  • Re:$750 (Score:5, Insightful)

    by Creepy Crawler ( 680178 ) on Tuesday November 27, 2007 @02:01AM (#21488941)
    Yes, they do. They claim whatever they can get away with. And considering if you have a site license with MS, you agree in part of the license terms to be searched AT your cost.

    And if you legally fight them, they have Congress on their side: you pay THEIR lawyer bills.
  • by WorldDominationOrBus ( 1050248 ) on Tuesday November 27, 2007 @02:09AM (#21488987)
    It would probably please the ISPs too, if the RIAA could get a 'per copy uploaded' or 'per fileshared minute' type of outcome, as that would link the penalty to the transmitted datavolume.
  • Re:$750 (Score:5, Insightful)

    by shark72 ( 702619 ) on Tuesday November 27, 2007 @02:10AM (#21488989)

    "I've always been amazed by the gall they have quoting that number."

    That's the minimum statutory amount. Per S504:

    (1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just.

    Note that the record labels are asking for the minimum allowed. Could be much worse!

    "What other type of copyright infringement can claim 757.6 times the value of the product as damages?"

    Any other type of infringement where the retail value of the product is around a buck -- that is, not much. The $750 is arbitrary; ie. it'd be the statutory minimum amount if you were nailed for sharing copies of, say, PhotoShop... in which case the ratio would be much lower than 750:1.

    The $750 minimum is out-of-date; a remnant of the days before it was so easy to share so much music. It was written in a time when it took a lot of work to distribute 1,000 unique pirated songs.

    Ask 100 people and you'll get 100 answers, but I think that a more fitting statutory minimum should be in the neighborhood of $50 per work. Yes, I know, information wants to be fweeeeeeeeeeeeee, but for as long as copyright law is still around, the courts should be able to issue judgements that are an effective deterrent. If I were nailed for sharing 100 songs and the RIAA could only collect a statutory minimum of $5K from me rather than $75K (as under current law), I'd still get the point that perhaps I shouldn't have helped make other people's information so free after all.

  • by John_The_Savage ( 990442 ) on Tuesday November 27, 2007 @02:21AM (#21489039)
    While judges complain it will still not stop the problem. Judges complain all the time. They complain about silly discovery disputes that they think should not be in their courtroom. But there are still discovery disputes everyday. The bar does have a way of self regulating and keeping the most egregious ones out of court. But the lawyer is still driven by the client. And the client (the business) is driven by simple capitalism. $50 dollars in legal fees for a chance to win millions in licensing. Hell even the threat of a lawsuit might just get them to settle. In sum, judges can complain all they want but ultimately the legislature needs to step up and fix this mess.
  • by Opportunist ( 166417 ) on Tuesday November 27, 2007 @03:12AM (#21489305)
    Otherwise they could make up anything they wanted.

    But that's what they did. Duh.
  • by hedwards ( 940851 ) on Tuesday November 27, 2007 @03:17AM (#21489339)

    They were in a lose-lose situation before they started. Ignore the problem, and the copyright law is useless. Try to enforce your rights, and the legal protections degrade, as you observed.

    No, really it wasn't. The biggest problem they had was that they weren't selling a product wanted to buy, and that they weren't putting most of the money into making a compelling product. Most people are decent enough, but most people aren't sufficiently stupid to pay for an item that they don't value.

    I bought many CDs in the couple of years up until the lawsuits began, I bought a few since, but at this point I won't buy any, and I discourage people from giving me any albums. I'll still buy indie albums, or at least the ones that come from non RIAA affiliated labels, when I can be reasonably sure they aren't paying dues.

    They wouldn't be this unpopular if they were just enforcing their legal rights, they're this unpopular because what they are engaging in better resembles extortion than seeking legal relief. Their lack of interest in following typical courtroom procedures, and the very fact that their evidence is frequently unverifiable all but ensures that they will be both loathed and despised for years to come.

    They also wouldn't be this unpopular if they were prosecuting their own relatives for similar acts of infringement. I think that was one of the more egregious points, when that child of an executive was caught red handed. Rather than being forced to settle or being drug into court, he was given a stern lecture from his father.

    Honestly, how can anybody observe any of that, and still feel like it was a lose-lose. They didn't have to destroy their own image to make the pirates pay. The amount of damage they have themselves willfully inflicted on themselves has been huge. What with the random lawsuits, DRM and the rootkit ready audio CDs.
  • Re:$750 (Score:3, Insightful)

    by shark72 ( 702619 ) on Tuesday November 27, 2007 @03:26AM (#21489389)

    "It does not say $750 per song downloaded giving a sum of no less than $billions."

    The key phrase in the portion I quoted is "per work." It refers to distinct works, not multiple copies of the same work. For example, the Jammie Thomas judgment was based on the number of unique songs she was sharing, and was not a count of how many times each might have been downloaded from her PC.

  • by Solandri ( 704621 ) on Tuesday November 27, 2007 @03:58AM (#21489547)

    They were in a lose-lose situation before they started. Ignore the problem, and the copyright law is useless. Try to enforce your rights, and the legal protections degrade, as you observed.
    Yes they were in a lose-lose situation, but they themselves created that situation. What we're seeing is a disparity between the market domain (i.e. reality) and the legal domain shaking out. The market recognizes that software (including patents, music, pictures, video) has essentially zero cost of duplication and (thanks to the Internet) zero cost of distribution. It wants to drive the cost of such services towards zero. The *AA saw that, panicked, and got a bunch of laws passed which made it illegal to do what the market wanted to do; that made common sense illegal (e.g. I paid for that DRM's music, why can't I have a copy of it both on my computer and my MP3 player?). They took laws created ostensibly to crack down on commercial copyright infringers, and started (ab)using them as a sledgehammer against petty personal infringement.

    What we're seeing now is reality reasserting itself over these nonsensical laws. If the RIAA had recognized what was happening and concentrated on developing a workable business model, they wouldn't have put themselves into a lose-lose situation. But the industry as it pre-existed were so abusive of performers' rights that I'm not sure that was even possible. The Internet has made the value of the distributor nearly worthless -- anybody can distribute now, just slap your MP3s onto a web server. Since any workable business model has to accurately reflect the value the distributor adds to the music production process, their revenue would've gone from >95% of the pie to less than 5%. The MPAA is in much better shape because movie production involves a lot more capital (they add much more value to the process), and their final product is more realistically priced ($20-$30 for a DVD or BR/HD-DVD feels about right to me for the value I'm getting, so I don't have much problem justifying to myself paying for it).

  • by Eivind ( 15695 ) <> on Tuesday November 27, 2007 @04:00AM (#21489557) Homepage
    They're in the position of monks making a living from hand-writing bibles, a year -after- the printing-press has been invented. Sure, neither ignoring the problem, nor trying to sue every user of a printing-press is likely to solve the problem.

    There is however potential -- if they want to adapt. And there's signs they're -slowly- getting it. All major record-companies in Norway experimented with various DRMy non-cds, and had massive problems. They've stopped. All of them. Today, unlike 2 years ago, when you buy a CD you actually get a CD.

    Online music is also changing to plain unencumbered formats, away from DRMy ones. The DRM -doesn't- stop piracy, and it prevents a lot of otherwise honest customers from shopping. Me for example, I'm happy paying say 2/3rds of the price of a physical-cd for a downloaded-cd (I reckon it's fair the reduced distribution-costs should benefit me to some degree too), but I absolutely refuse to pay even a -single- cent for DRM-encumbered music.

    So, in short. The old-fashioned music-industry is doomed. They've got a choice though: do they want to figth the future tooth and nail until it arrives anyway and they're extinct. Or do they want to evolve and adapt and be relevant -- allthough in a different form than today -- also in the future.
  • by Erris ( 531066 ) on Tuesday November 27, 2007 @04:01AM (#21489565) Homepage Journal

    They are not trying to preserve copyright, they are trying to make it into something unAmerican that violates the US Constitution. In other words, their actions have destroyed copyright regardless of success or failure. They have used several techniques to make their exclusive franchise eternal, have redefined the meaning of the franchise from protection against commercial publication to nonsensical "making available" and "unauthorized copy," and worst of all have made a civil mater into a criminal one with unusual punishment. To do this they have trampled free speech, due process, the fourth amendment and have technically sabotaged legitimate competitors. That's not copyright, it's information and market control straight out of the former Soviet Union.

    It will be good to get back real copyright law and put it in balance with the way information really flows. The goals of copyright law is encouragement of the public domain and to advance the state of the art. People should not lose their house for sharing a few songs, books, movies and other material with their friends. Businesses that can't compete in freedom don't deserve to exist.

  • by sqrt(2) ( 786011 ) on Tuesday November 27, 2007 @04:37AM (#21489731) Journal
    Art will ALWAYS be made, there's something much deeper in ourselves than greed which drives us to create things of beauty. Humans have a will and a need to create, even if it is not profitable.
  • by mpe ( 36238 ) on Tuesday November 27, 2007 @05:57AM (#21490043)
    Online music is also changing to plain unencumbered formats, away from DRMy ones. The DRM -doesn't- stop piracy, and it prevents a lot of otherwise honest customers from shopping.

    If anything it encourages piracy. Since the pirate copies don't have DRM and are thus more valuable to the customer. It's also the case that the "pirates" don't tend to want to restrict distribution by grography, thus it can quite often be the case that the choice is between "pirate" copy and no copy.
  • by jotok ( 728554 ) on Tuesday November 27, 2007 @06:51AM (#21490269)
    Well, the problem is that the law is not a good fit for what people actually want to do. This has been a problem for a long time, at least since the labels started recording blue music: there were songs that essentially came "out of the fields," that is, they were public domain because everyone knew them and nobody knew who wrote them (and in fact they evolved through collaboration among artists). But then one person records it, and the label tries to enforce copyright.

    Basically they want to be the sole providers of a given type of or movies or whatever. In trying to maximize profits they infringe on our own fair use of the media, and they prevent the processes from occurring that benefit them AND us.

    We need BETTER copyright laws, not necessarily for them to go away entirely. They suck now because they are a poor fit and cannot really be enforced without violating other laws.
  • by QuantumG ( 50515 ) <> on Tuesday November 27, 2007 @07:52AM (#21490529) Homepage Journal
    Or, to put it another way, music made for money sucks ass anyway, it will be no loss.

  • by radarjd ( 931774 ) on Tuesday November 27, 2007 @08:21AM (#21490677)

    No, really it wasn't. The biggest problem they had was that they weren't selling a product wanted to buy, and that they weren't putting most of the money into making a compelling product. Most people are decent enough, but most people aren't sufficiently stupid to pay for an item that they don't value.

    And yet, people go right on buying CDs and downloading this product which isn't wanted, according to you. They do this despite the (however remote) possibility of legal action against them. If people honestly didn't want the music the (companies which make up the) RIAA would be out of business already. They would have no income and no means to continue their day-to-day operations, let alone the lawsuits.

    You can criticize their methods, but you can't honestly say they don't produce a product that at least some people want to buy. Perhaps you don't, and that's fine. But obviously many people do.

  • Your on-topic sig (Score:5, Insightful)

    by sm62704 ( 957197 ) on Tuesday November 27, 2007 @10:00AM (#21491455) Journal
    DRM=Digital Restrictions Management

    I think of it as "dumb record mangling." My copy of the CD of Led Zeppelin's first album (that I bought at Recycled Records) has two songs that won't play, despite the fact that there are no visible scratches or other defects.

    So I ripped all the songs to .wav and replaced the two that wouldn't play with songs sampled from my cassette copy []. As I have a very good used cassette deck I paid $50 for (that originally sold for $600), there is little audible difference between the digitally mangled CD and the cassette's sound, whether played on my home JBL three ways (12 inch woofers) or the six speaker car stereo.

    In fact, the DRM on that CD and listening to my workaround to its designed defects is what convinced me to stop replacing my tapes and LPs with CDs, and to write the above linked article.

    I'd already got a CD copy of their Presence album and it lacked presence. So I tried sampling the LP and guess what? My burned CD of the LP sounds better than the factory CD, which obviously suffers from bad remastering.

    The record companies are obviously run by idiots who think their customers are all fools. Sadly, the idiots may be right.

  • by porcupine8 ( 816071 ) on Tuesday November 27, 2007 @10:42AM (#21491889) Journal
    I'm not exactly sure what you're saying, but my understanding is that the way the lawsuits are working, people are sued for offering files in a public directory for sharing - regardless of whether there is any evidence that anyone ever downloaded the songs from them or not. That act is what the RIAA is counting as copyright infringement. They are not suing people for downloading the songs, only for uploading them. I'm not personally clear on whether or not that means that downloading isn't infringement, because you'd think if it were, they'd be suing for it, too.
  • by fwarren ( 579763 ) on Tuesday November 27, 2007 @10:59AM (#21492067) Homepage
    "They need to update their business model or face becoming extinct."

    Everyone says this but nobody actually explains WTF they mean. These guys manufacture music. How exactly can they run a business without charging people to buy the music?

    They are talking about these folks a) providing a service that people need and b) doing it at a reasonable price

    You can buy a DVD, with extras and the soundtrack for the movie for $10.00. However, if you go out and buy the CD of the soundtrack, it is $18.00? CD's cost almost nothing to make. Professional studio time is spendy. But a band, at home for $10,000.00 can make an album that sounds "good enough". So what service are the offering?

    Once they controlled all the doors, they had all the keys. Making records had some cost to it. Stores needed records, artists needed a way to record and promote those records. The middle man in this case figured out how to make all the money.

    The digital age is much like the age of the printing press. When books had to be copied by hand, they were rare and expensive. With the advent of the printing press books became cheaper. If you priced a book made on a press the same as a handwritten book. Well, someone would buy one copy, typeset it, print their own knockoff and sell it cheaper than what the original was selling for. Despite copyright law. As long as books were so overpriced that the discrepancy between what a book cost and what it was sold for was so large. There were pirates willing to make a profit on that difference.

    With the advent of digital media. You cant sell those bits like you are the only one who can make them. That you can set any price you want for them and people will have to pay. Setting the price on a digital item that high invites someone to copy and make a profit off of it. That is why they need to update their business model. Every man, woman and child now has their own printing press and free typesetting. Not a good environment to be overcharging for books in.

    What they could do now, is provide CDs at a decent price. Make downloads available. Open up the complete back catalog. Then provide a site or sites that make searching easy and finding new music and old music easy.

    However, they are not reasonably pricing their product. They are not providing a service that has "value" to it proportional to it's cost.

  • by Orange Crush ( 934731 ) on Tuesday November 27, 2007 @11:53AM (#21492817)

    Not sure how that would stand up. The other filesharers down the line would be the ones committing infringement and the RIAA would have to go after each and every one of them. IANAL, but if I run a red light and the eight cars behind me decide to run it too--I'm only responsible for one infraction, the other eight drivers made their own choice to run it after me even if I 'enabled' them to break the law by not stopping and forcing them all to stop behind me.

    (Yeah yeah, criminal is different than civil, the analogy isn't a great fit to the actual situation, etc. It's a car analogy. We like those. Just go with it.)

  • by u-235-sentinel ( 594077 ) on Tuesday November 27, 2007 @12:31PM (#21493329) Homepage Journal
    The RIAA probably holds the position that a filesharer is responsible not only for the direct downloads he generates, but for subsequent distribution of the file as well. 10 * 10 * 10 gets you over 750 pretty fast.

    But wouldn't the RIAA have to prove the songs were pulled down that many times to get that number?

    After all, we don't convict people because we think they might have done something like this... Yeah, I realize that sounds a bit naive but that's the America I was taught about in grade school :D
  • by keithjr ( 1091829 ) on Tuesday November 27, 2007 @01:09PM (#21493851)
    In the case of Jammie Thomas [], this was the defense's biggest oversight. They did not fight hard enough to get the cost-per-song down to a reasonable, sane level. Even though she didn't get charged with the full possible amount, the RIAA was still awarded $9,250 per song. At that point, the number was as shocking as it was immutable.

... though his invention worked superbly -- his theory was a crock of sewage from beginning to end. -- Vernor Vinge, "The Peace War"