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Judge OKs Challenge To RIAA's $750-Per-Song Claim 333

Posted by Zonk
from the their-stuff-isn't-that-good dept.
NewYorkCountryLawyer writes "In UMG v. Lindor, in Brooklyn federal court, the presiding judge has held that Marie Lindor can try to prove that the RIAA's claim of $750-per-song statutory damages is a violation of the Due Process Clause of the Constitution, since she has evidence that the actual wholesale price of the downloads is only 70 cents. This decision activates an earlier ruling by the Magistrate in the case that the record labels must now turn over 'all relevant documents' regarding the prices at which they sell legal downloads to online retailers, and produce a witness to give a deposition by telephone on the subject. Judge Trager rejected the RIAA's claim that the defense was frivolous, pointing out that the RIAA had cited no authorities contradicting the defense, but Ms. Lindor's attorneys had cited cases and law review articles indicating that it was a valid defense. See the Decision at pp. 6-7."
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Judge OKs Challenge To RIAA's $750-Per-Song Claim

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  • by eldavojohn (898314) * <eldavojohn AT gmail DOT com> on Friday November 10, 2006 @08:41AM (#16792828) Journal
    I know this is slightly off-topic but I would like to point out NewYorkCountryLawyer's donations of legal stories and advice to Slashdot.

    Recently, the user NewYorkCountryLawyer has provided us with many stories (bottom of the user page [slashdot.org]) that revolve around the RIAA & music suits. On top of that, oftentimes whenever a legal issue is being discussed, they reply with often insightful/interesting/informative posts (300 since July of this year) from someone who actually spends their entire day dealing with the RIAA & law.

    All this despite the shameless way we treated him [slashdot.org] when they answered questions we had about RIAA suits.

    On behalf of Slashdot, I would like to thank NewYorkCountryLawyer for bringing to light some of the cases that might not make it in mainstream news & providing us with a realistic view of how things work in the legal world. All too often it is an alien landscape to me that I cannot comprehend.
    • Finally an opportunity where a me too post makes sense.

      Me too! Err...

      Thank you!
    • I'll 'Hear hear' that thank you as well. On /., much like in the real world, the ratio of asshats to rational people is increasing. NYCLawyer has a lot to offer the /. community that often has to revert to IANAL.
    • Thank you.
      May your attempts succeed.
    • by cerberusss (660701) on Friday November 10, 2006 @10:04AM (#16793654) Homepage Journal
      I agree, but don't forget everybody, slashdot has a system to make them Friends, so you get comments from them automatically at +5.

      Befriend NewYorkCountryLawyer [slashdot.org]
    • Thanks, but... (Score:4, Insightful)

      by Just Some Guy (3352) <kirk+slashdot@strauser.com> on Friday November 10, 2006 @10:06AM (#16793680) Homepage Journal

      I certainly appreciate the legal insight, but did you actually read the interview? I'm too lazy right now to search that article for posts from you, but I certainly read it.

      It was awful.

      They may be wonderful, open people in person. They might also be world-renowned legal experts for all I know. However, the answers given in that interview were terse, dismissive, and generally not well targeted to their intended audience. I thank them for their contributions to our knowledge pool, but I don't think you can honestly read the article you cited and use it as an example of an ungrateful readership.

      • Re: (Score:2, Insightful)

        by Anonymous Coward
        I certainly think you can. In case you're not aware, the law is a very complex maze that very much depends on the exact specifics of each case. Throughout that interview, people were bitching at him because he didn't give them a yes/no answer to complex questions that needed more information--a lot more information. If you can't understand that, then you can be lumped into the group of ungrateful assholes, as far as I'm concerned.
        • Re:Thanks, but... (Score:4, Informative)

          by Just Some Guy (3352) <kirk+slashdot@strauser.com> on Friday November 10, 2006 @11:47AM (#16794906) Homepage Journal
          I certainly think you can. In case you're not aware, the law is a very complex maze that very much depends on the exact specifics of each case.

          That's exactly the kind on condescension that readers were most complaining about. Yes, we're familiar with complex systems - we deal with them every day. We were hoping to get insight about a system that we're generally unfamiliar with, even if we get the basic gist of it.

          Throughout that interview, people were bitching at him because he didn't give them a yes/no answer to complex questions that needed more information--a lot more information.

          Look at this answer:

          "It's hard to generalize about that, because each person's facts, each person's personality, each person's intellect and ability, are different. Generally, there is no real good way to handle these cases, so anything anyone does is a mistake, in that sense. But in another sense, there are no mistakes, because there is no right answer."

          Well, no kidding. That was utterly and positively content-free. It imparted no information. If they couldn't or didn't want to answer the question, then they should have just said so.

          Which leads back to my original position: that interview was awful. It's not fair to say that Slashdotters were overly ungrateful for their input in general, but you can't reasonably hold it against us for not swooning over the wonderful, in-depth answers they didn't provide.

          • by db32 (862117) on Friday November 10, 2006 @02:53PM (#16797674) Journal
            Having been dealing with lawyers lately on a variety of subjects. You certainly seem to have never really dealt with a lawyer. Our complex systems and their complex systems don't even begin to compare. At least in our complex systems there are right and wrong answers. In law there really isnt. Law simply is not cut and dry. The laws are vaguely worded and complex and left to the interpretation of judges (whose opinions, methods, and backgrounds in relavent fields all vary greatly). The lawyers job is to take your money, take the law, and make a best attempt at convincing the judge that the law reads in your favor, in the mean time, the other lawyers job is to take the oppositions money and try to convince the judge that THEIR interpretation is the correct one. In the meantime there are a bunch of lawyers in the legislative end of government deliberately writing vague and confusing law to ensure lawyers remain employed and that law will never be cut and dry and comprehendable by the common man. That anytime anything comes up you will be forced to get a lawyer to talk to a judge, because anything else is courtroom suicide due to the complexity and vagueness of the law. If you have a lawyer telling you things are cut and dry and its a no brainer, then you probably have an inexperienced lawyer or a dishonest one (well they are all basically dishonest, but you want them to be honest with you at least). Do you honestly believe that if law was so cut and dry easy lawyers would get paid $200+/hr to do terribly little? Do you honestly believe that if it was so simple there would be so many stupid cases constantly clogging up our legal system?

            In the meantime you should start charging a $2500 retainer before fixing anyones computer. See how far that goes.
      • by Builder (103701)
        I fully agree. At one point he made statements to the effect that the RIAA was an international body (despite one of the As standing for America) and that there were only 4 companies involved.

        When I pointed out that it was an American organisation made up of hundreds of companies his response was along the lines of 'boy are you technical'.

        Yes, I can be a little technical, and I'd hope that a lawyer discussing his field of expertise would also choose to be technical in his discussions.
      • Re: (Score:3, Interesting)

        Yes I confess to being terse and dismissive to two of the questions in the interview, which I believe were the work of RIAA trolls, and to several comments posted in the ensuing discussion which were disrespectful and troll-like. I don't think I'm a "wonderful, open" person in person. I'm the same kind of person you saw in the interview. I have zero tolerance for phonies or for liars, and I have very little patience with people who ask questions but only accept answers that fit their preconceived ideas of w
    • All this despite the shameless way we treated him [slashdot.org] when they answered questions we had about RIAA suits.

      Shameless?!? Please share with us which one of the many "I don't know" answers they gave us in their responses will be helpful to anyone facing RIAA litigation in the future. For the record, my best friend of the past 22 years is a college buddy who is also an attorney, so I'm very familiar with the evasive "I don't know", "That depends", etc. language lawyers use and I do understand w
    • eldavojohn wrote: "I know this is slightly off-topic but I would like to point out NewYorkCountryLawyer's donations of legal stories and advice to Slashdot. Recently, the user NewYorkCountryLawyer has provided us with many stories (bottom of the user page) that revolve around the RIAA & music suits. On top of that, oftentimes whenever a legal issue is being discussed, they reply with often insightful/interesting/informative posts (300 since July of this year) from someone who actually spends their entire day dealing with the RIAA & law. All this despite the shameless way we treated him when they answered questions we had about RIAA suits. On behalf of Slashdot, I would like to thank NewYorkCountryLawyer for bringing to light some of the cases that might not make it in mainstream news & providing us with a realistic view of how things work in the legal world. All too often it is an alien landscape to me that I cannot comprehend."

      Dear eldavojohn:

      Thank you for your very kind words.

      Truth is I love Slashdot, and I even loved doing the interview.

      I come from a family where a good argument was the best thing. No doubt it's one of the reasons I gravitated to litigation.

      If all the world's forums were as free and open and robust as Slashdot, the world would a lot better place than it is right now.

      So it is I who thank you and my fellow Slashdotters.
  • by kria (126207) <roleplayer DOT carrie AT gmail DOT com> on Friday November 10, 2006 @08:46AM (#16792870) Journal
    I can see the problem with $750 penalty for stealing a 70 cent download... isn't there some ruling that says for companies they can only "gouge" them for damages with a single digit ratio to the actual damages? So to follow that for individuals, that means the largest damages should be... 70 cents times 9... $6.30?

    Just a pointless gibe about the difference between treatment of companies and individuals, I guess. Forgive me if I got some details wrong of the above information, even.
    • by 91degrees (207121) on Friday November 10, 2006 @08:56AM (#16792948) Journal
      The law is out of date. It was written at a time when the possibility of an individual sharing several copies of hundreds of songs was inconceivable. $750 per title as damages for a company that's churning out hundreds of copies for sale at market stalls is hardly totally unreasonable, since they could easily be, and probably would be selling several hundred even if the exact amount sold is impossible to judge. Still not a brilliantly just law but that's another matter.
      • by Magada (741361) on Friday November 10, 2006 @09:20AM (#16793162) Journal
        Hmm. Whoever modded this flamebait is not what I'd call an intelligent person.
        However, if the number of copies distributed illegally cannot be determined, there is no way to compute damages, right? What if I sue you for "numerous incidents of toe-stepping, leading to loss of income in an undetermined amount due to inability to work brought about by physical and emotional damage suffered as a result of said incidents" and demand $1000k? Should you be forced by the courts to pay the requested amount, with no recourse?
        Also, remember that it's a person being sued here, not a company. The defendant did not benefit in any way, because she wasn't selling the copyrighted stuff.
        • by Total_Wimp (564548) on Friday November 10, 2006 @09:43AM (#16793372)
          All good and fine, but if you can't compute exact damages, that doesn't mean that damage wasn't done. Although in your example we could never calculate the true cost of a toe stepping incident, reasonable people could assume that the cost would be much higher if you stepped on a dancer's toe rather than an engineer's toe. Similarly, the cost of a file sharer's damages would be greater than someone who simply downloaded the same song for personal listening.

          The hard part is that whatever the decision is, it will be a guess. We have no psychic power and will never know the exact damage. That's ok by me. We're have to do the best we can. Sure, the $750 per song cost should be challenged, but the true cost should almost certainly not be a simple $.70 per song. The truth almost certainly falls somewhere in between.

          TW
          • Re: (Score:3, Interesting)

            by TapeCutter (624760)
            If you want both justice and a deterent, how about $1/track to the RIAA and $749/track to the court "poor box" (if you have them in the states?).
            • No 'poor box' (Score:5, Interesting)

              by Kadin2048 (468275) <[slashdot.kadin] [at] [xoxy.net]> on Friday November 10, 2006 @01:02PM (#16796048) Homepage Journal
              We don't have those in the states. At least not that I'm aware of.

              Although a judge can, I believe, force you to donate money to a charity (this is infrequent but I've heard of it happening a few times, usually when they want to eliminate someone's 'ill gotten' gains but can't really give it back to whoever it was taken from, generally stock-market stuff); that would be closest that I think you could get.

              The U.S. legal system was designed so that, theoretically at least, the "system" wouldn't benefit in any way from the number of cases that it sees, or how they're adjudicated. This is so you don't get into the Spanish Inquisition-like situation where if the court "does not burn, they do not eat."

              Fines, etc. that people are required to pay to the State, go back into the General Fund at the city/state/federal level, and the expenses of the courts, including court-appointed attorneys, are paid out of same by the legislature. Having the courts be self-funding in any way risks creating a juggernaut.
          • by FellowConspirator (882908) on Friday November 10, 2006 @10:03AM (#16793644)
            wrt "Similarly, the cost of a file sharer's damages would be greater than someone who simply downloaded the same song for personal listening."

            It should be noted that in the US, one couldn't sue someone that simply downloaded the song. Obtaining a copy is not infringement, copying is. Case-law has already pretty much covered that the upload portion of the equation is infringing, but the download is not (nor is serializing the download from RAM to disk).

            Also a point of interest with regard to calculating damages for infringement: copyright does not purport to support the making of money off copyrighted materials. The amount of damages (or lack thereof) or whether or not the infringer got financial benefit is immaterial. The testimony regarding revenue loss as a result of the infringement is basically a victim impact statement. Damages for infringement are at the discretion of the judge or jury and have certain statutory limits. If a record company loses a million dollars (and could prove it) as the result of infringement, it doesn't mean that they will get (or are due) a million dollars. Likewise, if the same company suffers no tangible monetary loss, they can still sue and receive damages.

            People very often operate on the false assumption that "damages" in infringement claims are related to estimated financial loss of the rights holder. Copyright intentionally doesn't work that way. Keep in mind that the work has no owner; the only instrument here is a contract (copyright) bestowing limited monopoly rights on copies and derivatives of a work to a single party. It is the responsibility of the rights holder to argue that the accused infringer was subject to and then broke the terms of that contract (entered into by their representative, the state). Its then the court's responsibility to assess the seriousness of the infringement and seek a reasonable remedy (which isn't necessarily limited to monetary damages).
            • Re: (Score:2, Interesting)

              by DJCacophony (832334)
              Obtaining a copy is not infringement, copying is.

              And when you download a file, you are making a copy of the file, with the original being the network packets, and the copy being the file on your hard drive.

              It may be semantics, but then again, so is law.
              • Re: (Score:3, Informative)

                The point was, of course, that case law already exists that stipulates that the copier is the provider, not the recipient. It has been argued that reading from disk into memory is a copy, to the point that the act of moving from one chip to another is a copy at each stage. Those arguments have already been heard and decided. Semantically speaking, point-to-point transmission is copying, receipt is not. Point-to-many transmission (multicast) is broadcasting (more or less, that's less settled). In the US, at
            • by Kjella (173770) on Friday November 10, 2006 @12:22PM (#16795438) Homepage
              It should be noted that in the US, one couldn't sue someone that simply downloaded the song. Obtaining a copy is not infringement, copying is. Case-law has already pretty much covered that the upload portion of the equation is infringing, but the download is not (nor is serializing the download from RAM to disk).

              +4, Informative? No, -1 Bullshit. I quote A&M Records, Inc. v. Napster, Inc. [uscourts.gov]:

              "We agree that plaintiffs have shown that Napster users infringe at least two of the copyright holders exclusive rights: the rights of reproduction, 106(1); and distribution, 106(3). Napster users who upload file names to the search index for others to copy violate plaintiffs distribution rights. Napster users who download files containing copyrighted music violate plaintiffs reproduction rights."

              That is a 2001 case from the United States Court of Appeals for the Ninth Circuit. Unless you got a conflicting opinion from the Supreme court (or at the very least other circuits) I call bullshit on you.
        • by gundersd (787946) on Friday November 10, 2006 @10:34AM (#16794016)
          .. what I'm curious about is who checks that the RIAA hasn't already put a claim in for this particular song somewhere further up the chain? ie. person A shares a file that persons B,C & D download. RIAA files a suit against person A, claims $750 damages. Person A pays. RIAA now files suits against B,C & D (who are now also sharing the file) claiming $750 from each of them too, even though, in theory the claim against person A was for ALL downstream sharing too. Can someone explain the legalese behind that? I'm sure there's probably some reason why they would be allowed to get away with this, but it doesn't seem to make much sense to me at the moment.
          • Re: (Score:3, Interesting)

            gundersd wrote: ".. what I'm curious about is who checks that the RIAA hasn't already put a claim in for this particular song somewhere further up the chain? ie. person A shares a file that persons B,C & D download. RIAA files a suit against person A, claims $750 damages. Person A pays. RIAA now files suits against B,C & D (who are now also sharing the file) claiming $750 from each of them too, even though, in theory the claim against person A was for ALL downstream sharing too. Can someone explain
          • by Robber Baron (112304) on Friday November 10, 2006 @12:50PM (#16795874) Homepage
            .. what I'm curious about is who checks that the RIAA hasn't already put a claim in for this particular song somewhere further up the chain? ie. person A shares a file that persons B,C & D download. RIAA files a suit against person A, claims $750 damages. Person A pays. RIAA now files suits against B,C & D (who are now also sharing the file) claiming $750 from each of them too, even though, in theory the claim against person A was for ALL downstream sharing too.


            So maybe what P2P software writers ought to do is add a checkbox to their program that says "I've been reamed by the RIAA...you can now download all of my songs without fear of penalty as your right to do so has been paid for".
          • by NewYorkCountryLawyer (912032) * <ray.beckermanlegal@com> on Friday November 10, 2006 @01:33PM (#16796474) Homepage Journal
            Dear gundersd:

            My colleague Ty Rogers graciously pointed out to me, in reading your comment, the following excerpt from one of the Law Review articles we cited in our briefs:

            "There are multiple ways in which we might measure the economic loss caused by a defendant's file-sharing activities. To illustrate one such approach, consider the following example. Suppose that file-sharer W illegally downloads to her computer Led Zeppelin's song Stairway to Heaven. The song is downloaded to a shared folder on her computer and thereby made available for others to copy. Suppose further that three other file-sharers, X, Y, and Z, subsequently download the song from W's computer. Thus, there are four people in this example who desired the song but who did not pay to obtain it. In other words, there are four lost sales. Because file-sharers are sued independently, we need a way to apportion this harm among the relevant actors. How might this be done?

            A starting basis for apportioning the harm is to deem the person who initiates a file transfer (the downloader) as having caused harm by that action. This person benefits by receiving for free a work of music that must be purchased to be legitimately obtained. Allowing her to escape responsibility for causing harm is not consistent with her initiative in effecting the illegal transaction. Stated differently, this person's money would have gone to the copyright owner (if indirectly) in order for her to obtain the song, but now the money stays in her pocket as a direct result of her affirmative actions. In contrast, the file-uploader gets no economic reward from her outbound transfer and may be unaware of the sharing. [FN139] Thus, we can assign the downloader responsibility for causing one lost sale by illegally downloading the copyrighted song.

            The other half of this transaction is the uploading of this song, so we might also assign to a person responsibility for one unit of economic loss per act of distribution--each time that the actor uploads a copyrighted music file, she is responsible for a lost sale. This seems satisfactory at first because the distribution of copyrighted works is illegal and is necessary for file-sharing to work. This conception, however, overstates the actual economic loss. In *547 our example, this conception would count seven units of economic harm (one for W's song download, three for W's uploads, and three more for each of X, Y, and Z's downloads). Yet the copyright owner in our example has suffered only four lost sales. This scheme, then, is flawed.

            Instead, this Note adopts a conception of file-sharing's economic harm that attributes responsibility for economic loss to a person's instances of illegal downloading but not distribution. One person's distribution is another person's downloading, so counting economic loss as caused by acts of distribution, in addition to counting acts of downloading, would overstate the total amount of harm. While this Note settles upon this model of file-sharing's economic harm, it is certainly not a perfect conception. For example, this model does not account for whatever revenue is generated by persons who first illegally download a song for sampling and then later purchase it legitimately. Nor does it counterbalance this revenue by accounting for revenues lost due to a record company's impaired ability to market a collection of several songs as one unit, as on the typical album, or to collect licensing fees from online retailers that play short music samples to their customers. Thus, this Note acknowledges the existence of imperfections in its model of file-sharing's economic harm; it concedes that changes in this model will alter the separation of the punitive and compensatory portions of a statutory damage award and ultimately affect the outcome of substantive due process review.

            Having explained why a file-sharer is held responsible for causing one lost sale for each copyrighted work that he or she illegally downloads, it bec
          • by pthisis (27352) on Friday November 10, 2006 @04:37PM (#16799022) Homepage Journal
            what I'm curious about is who checks that the RIAA hasn't already put a claim in for this particular song somewhere further up the chain? ie. person A shares a file that persons B,C & D download. RIAA files a suit against person A, claims $750 damages. Person A pays. RIAA now files suits against B,C & D (who are now also sharing the file) claiming $750 from each of them too, even though, in theory the claim against person A was for ALL downstream sharing too.

            The original claim was not for all downstream sharing. It was simply the minimum statutory damage specified by Congress when they wrote the law.

            The issue here is not that the RIAA picked an unreasonable figure; the $750 is actually the _minimum_ statutory amount they can ask for. The issue is that the statutory amounts are arguably so unreasonable as to be an unconstitutional violation of due process.

            The defendant is not challenging the RIAA per se, but rather the constitutionality of the law itself.
      • by Billosaur (927319) *

        Well, at first blush, the disparity between cost and damages is enourmous. It doesn't really seem reasonable. But the RIAA bases such things on the premise that if I download a copy of a song, I will only ever have the one copy. Their whole focus is to ensure somehow that I get one copy and only one copy for my money, and that I cannot simply crank out a thousand or more copies for myself, even if my intent is benign. They don't seem to understand that as technology has advanced, their ability to control co

      • by sholden (12227) on Friday November 10, 2006 @09:49AM (#16793466) Homepage
        If the law is out of date it's still the law, right?

        It's not the like RIAA can't buy an update to it.
      • I could have some sympathy for your argument if she were uploading but how is 1000X the damages reasonable for a download?

        RTFA Disclaimer: I only read the summary, it states: "wholesale price of the downloads"
      • Re: (Score:3, Informative)

        by cpt kangarooski (3773)
        No it's not. The law increasing the amount significantly ($500 was changed to $750; $20,000 was changed to $30,000; $100,000 was changed to $150,000) was passed in 1999 when the possibility was not only conceivable it was what the law was directly aimed at.

        Check the law next time, before you talk about whether it's out of date.
      • Re: (Score:3, Insightful)

        by clambake (37702)
        The law is out of date. It was written at a time when the possibility of an individual sharing several copies of hundreds of songs was inconceivable.

        By that logic, I'd say that the law protecting the songs is out of date as well. There is no reason why a single entity should be able to control a bit of information for more than 70 years, that's just crazy. She should get off scott free!
    • Re: (Score:3, Informative)

      by aadvancedGIR (959466)
      You lucky b*ard, in french law, for any number of song (theorically one is enough), you can be sentenced to 3 years in jail and 300.000E fine (and that is the penal part, so the SACEM can then claim their damages in the name of the artists).
  • Can anyone fluent in Legalese translate that into English, please?
    • Re: (Score:2, Informative)

      by Gr8Apes (679165)
      Basically - $750 fine for $0.70 theft is considered unconstitutionally severe, or something like that. (IANAL etc, blah blah blah) Next the RIAA will be wanting to cut off hands....
    • by Aladrin (926209) on Friday November 10, 2006 @08:59AM (#16792976)
      Like, yo, da judge said da chick what was dissed by da RIAA can try to prove her case, you know? The RIAA tried to make da man drop the hammer on her, but in a rare twist of fate, da man let da sister have her say. Da judge said this cuz da RIAA didn't back up it's shit, and da chick did.

      Disclaimer: I'm not African-American, and I have never been to Africa or the less affluent regions of any major city.

      Seriously. It WAS in English.
    • by Anonymous Brave Guy (457657) on Friday November 10, 2006 @09:54AM (#16793518)

      Log from channel #BrooklynCourts

      MarieLindor has joined the conversation.

      RIAALegalWeenie has joined the conversation.

      [RIAALegalWeenie] You ripped our stuff, beeyatch! Give us like 1,000x wot it's worth, or else.

      [MarieLindor] Harsh, man. Ur stuff ain't worth it. Anyway u have 2 have Due Process and stuff under the CONSTITUTION! D'OH!!!1!1! Gimme all ur records.

      Magistrate has joined the conversation.

      [Magistrate] Fair 'nuff. You gotta do it.

      [RIAALegalWeenie] No way. We're gonna go to a higher court.

      FederalCourtJudge has joined the conversation.

      [FederalCourtJudge] I am THE LAW.

      [MarieLindor] Yo, Mr Judge Sir. Here's legal stuff that says I'm right. You got my back?

      RIAALegalWeenie puts his fingers in his ears.

      [RIAALegalWeenie] Not listenin'. Not listenin'. Nyaaaaah nyah.

      [RIAALegalWeenie] And 'sides, she's just makin' sh*t up.

      FederalCourtJudge has activated a purple lightsaber.

      [FederalCourtJudge] This party's over. Go do what my man da Magistrate said, luser.

      MarieLindor smiles.

      RIAALegalWeenie has left in a huff.

      There, I think that about covers it.

      (With apologies to the poster who first made this joke, probably much better, but whose post I can't find to credit it.)

  • $750? (Score:4, Funny)

    by dlc3007 (570880) on Friday November 10, 2006 @09:07AM (#16793034)
    I don't know about the rest of you, but I'm having a hard time thinking of a song that was worth $750. There are some really good songs out there, but I can't imagine paying $750 to listen to any of them.
    Well... I did get laid to "Stairway to Heaven" in high school, but I'm not sure it was worth $750 -- sex included.
  • by jandersen (462034) on Friday November 10, 2006 @09:09AM (#16793052)
    And they call us pirates? A decent, fairly honest, average person or a dishonest, greedy juggernaut of a company - who would you rather deal with, legalities or not? I know who I wouldn't want to turn my back on.
  • RIAA defense... (Score:2, Interesting)

    Of course the RIAA's defense will be along the lines that "by downloading using P2P she enabled an estimated ~1000 other people to get the content, which translates to ~$700 in lost revenue". Nevermind anyone could have downloaded the same song from the same source that the Ms. Lindor downloaded it from, nevermind the people who downloaded the song will most likely not have paid for it if they weren't able to download it, and nevermind Ms. Lindor cannot be held responsible for the people who downloaded the
    • Re: (Score:3, Interesting)

      by styryx (952942)
      This is how I originally understood they were able to get away with charging $750 per song, because it counts for all the people who then go the song from them.

      There are a couple of questions I have about this:
      1. Why 1000? Why not everybody with a modem considering they all in theory could potentially download the song? It seems to me this number is fabricated and I think it's about time the RIAA went back to school and lost marks for "not showing their working"! Also
      2. If 1 person pays for the downlo
      • Re:RIAA defense... (Score:4, Insightful)

        by FuzzyDaddy (584528) on Friday November 10, 2006 @09:55AM (#16793544) Journal
        This is how I originally understood they were able to get away with charging $750 per song, because it counts for all the people who then go the song from them.

        That would be true if the song was some sort of one of a kind trade secret. But given the availability of these "bootleg" copies, I find it hard to believe that her downloaded copy led to ANY more people not buying the song. The prevalence of this music on the internet, and the ease of making and sharing unprotected copies, means that her download of a single copy almost certainly did NOT make it available to a single person to whom it was not available before.

        If you broke into my company and stole our designs and posted them on the internet, then yes, I can make a claim for huge damages. But the cat's out of the bag already - she didn't pay her $0.99, but I find it hard to believe she contributed to even a single person not paying their $0.99.

        • by styryx (952942)
          I completely agree. I wasn't trying to validate the RIAA's point, I was merely reiterating what I understand to be their argument, and the flaws associated with it.
      • by ak3ldama (554026)
        2. If 1 person pays for the downloading of 1000 people plus themselves. Then 1000 people haven't broken the law because the music has been paid for?
        that's the part i never figured out. for the price they make people pay for these songs, it seems like it would only work if this upload was propogated on and you were charged for subsequent uploads. but since when is person A made to pay the penalty for the actions of persons B and C? And how come they are allowed to go after people that have allowed large
    • Their argument is likely to be that she _can_ be held responsible for people who downloaded the song from her computer, because then she's distributing it herself. What's interesting about this is, if she proves that song downloads are only worth .70 cents, the RIAA will have to prove that 1000 people downloaded the song from here to get their $700/song, and they'll have to do that for each song. OTOH, this is all kind of moot, since copyright infringement is now a crimnal offense, they can still do plenty
    • So then on the little private sites where you have 5 people sharing from you, the damages would be $3.50?
  • by Hamster Lover (558288) * on Friday November 10, 2006 @09:10AM (#16793066) Journal
    A song that sells for $.70 wholesale should not automatically trigger damages of $750 if the same song is "stolen" or misappropriated. If I understand correctly, his Due Process argument is that the damages are grossly disproportionate to the loss, 70 cents or so. Another example would be if a car is valued at $10,000 and is somehow damaged or stolen, the raw value of goods stolen or damaged is $10,000, the cost of the car, not some arbitrary amount set by law.
    • by aadvancedGIR (959466) on Friday November 10, 2006 @09:26AM (#16793214)
      There is a major flaw in your argument:
      -when someone steals your car, you loose it, therefore the damage you suffer is easy to determine (the current value of the car, usually only a portion of its initial value).
      -When someone downloads a song, the real damage is determined by the objective of the downloader:
      *He wouldn't have bought the CD because he doesn't have the money, let's say it's free advertisement with potential long term payback (it was my case when I was student, and I then bought many CDs).
      *He already has the CD but fears to put it in his PC because of the fear of rootkits or other malwares (that's currently my case), no real harm.
      but of course, there is also:
      *He burns CDs and sell them for a couple of bucks on markets to finance Al Quaida thermonuclear program, possible harm: millions of deaths + thousands of billions $ of damages.

      So the 750$ is just the weighted average of the real potential damges, the only thing I don't understand is why the money doesn't got to the DHS.
      • by Shelled (81123)
        You seem to have forgotten the part the judge didn't, or shifted it elsewhere: burden of proof. If the RIAA can demonstrate the majority of defendants download with intent to sell CDs, they have a strong case. Since it's ludicuous at face value though so is $750.
    • by Grym (725290) * on Friday November 10, 2006 @10:39AM (#16794054)

      Another example would be if a car is valued at $10,000 and is somehow damaged or stolen, the raw value of goods stolen or damaged is $10,000, the cost of the car, not some arbitrary amount set by law.

      I argue that the greatest victory of the content industry, contrary to what most would say, was not extending copyrights to 75 years or establishing the draconian protections of the DMCA. Rather, the their greatest triumph has been to define the terms of the debate.

      Instead of talking about temporary monopolies, we talk about "intellectual property." Instead of focusing on the "promotion [of] the progress of science and useful arts" (both the wording and the intent of constitution), we exclusively consider the so-called "property rights" of the creator(s).

      And because of this, the content industry is able to conflate established property law with completely unrelated areas of law: plagiarism and government-granted monopolies. The result is not surprisingly inconsistent and the source of confusion all-around. Illegal downloaders are labeled as "thieves" instead of what they really are, copyright infringers. The public domain is not viewed as a benefit to society but as a loss of potential profits.

      And they even manage to benefit both ways. They can accuse downloaders of theft, BUT THEN use the strict penalties of copyright infringement (originally intended to punish commercial infringement) against non-commercial and non-profiting individuals.

      The entire issue is the ultimate triumph of sophistry over justice. Due process is violated when the punishment ($750 per song) doesn't match the crime (non-commercial copyright infringement). The intent of the constitution lays at the wayside when our arts and sciences are actually hurt because of the increased cost and difficulty of actually bringing a product or innovation to the market. The right to free speech is trampled upon when the DMCA is used inappropriately to take down embarrassing internal memos or other evidence of public fraud/deception(ex. Diebold voting machine code).

      -Grym

  • by BCW2 (168187) on Friday November 10, 2006 @09:14AM (#16793110) Journal
    A judge has figured out that there is no basis for the RIAA's damage claims. Took long enough to find a judge with enough brains to see that all the RIAA has ever done is intimidate and extort. I hope they do something really dumb and get fined big for pissing off the judge. Every attorny defending one of these cases needs to be informed of this step. It really could put an end to this stupidity.
    • Re: (Score:2, Insightful)

      by Zelucifer (740431)
      That isn't at all what even the Summary said. The judge basically said that there may be merit to the defendants claim that damages of $750 dollars per song violates Due Process.

      I highly doubt it will end the lawsuits, however it may keep the RIAA from suing file shares with fewer than say... 5000 songs. That's about $3500 at 70 cents a song.

  • Shoplifting... (Score:2, Insightful)

    by Sqweegee (968985)
    Wouldn't just shoplifting the CDs cost less in fines if you were caught?
  • by StarWreck (695075) on Friday November 10, 2006 @09:35AM (#16793296) Homepage Journal
    Judge Trager rejected the RIAA's claim that the defense was frivolous


    The prosecution for a frivolous lawsuit is calling the defense frivolous? Isn't that like the pot calling the sheet of white paper black?
    • by danpsmith (922127)
      The prosecution for a frivolous lawsuit is calling the defense frivolous? Isn't that like the pot calling the sheet of white paper black?

      Whose pots are still black? I know mine are silver or gray in color...as are most...so is the kettle. WTF is with this analogy.

  • $750 sounds right (Score:3, Interesting)

    by qwertphobia (825473) on Friday November 10, 2006 @09:54AM (#16793534)
    Well, I'm not a supporter of the RIAA's tactics, so don't take this the wrong way. However I get involved on the receiving end of these complaints at times.

    In every situation I have been involved, the complaint from the RIAA or MPAA has been about providing content to others, making it available for others to download from them, actually distributing the content.

    The complaints are not about downloading material.

    Suppose some individual only shared a file four times. And each of those four downloaders shared it four times. And so on. After only four levels of sharing, there's 256 incidences which could not have happened (theoretically) if that first individual had not shared that content.

    Furthermore. we're probably not talking about iTunes-like DRM-enabled content. It's probably a bare, unencumbered media file, which is arguably more valuable than a DRM-restricted file.
    • by LordEd (840443)
      After only four levels of sharing, there's 256 incidences which could not have happened
      So are you saying that after the RIAA gets its money from one person, it won't go sue those other people?
      • Sure, because the RIAA may never have a way to recover from those other people. This happens all the time in other sorts of situations, like loss of potential income due to injury, etc.
        • Re: (Score:3, Interesting)

          by Coleco (41062)
          Err.. Isn't their such a thing as burden of proof? Otherwise the damage claim is based on what someone may have done, and what others may have done who have their own free will.
    • Suppose some individual only shared a file four times. And each of those four downloaders shared it four times. And so on. After only four levels of sharing, there's 256 incidences

      To correct myself, it would be 340 incidents of copyright violation. Each level adds n^4 incidents, so the total number of incidents involved would be 4^4 + 4^3 + 4^2 + 4^1 + 4^0 for a total of 341, assuming the first individual didn't have the right to copy the content to his/her computer in the first place.

      • He is only liable for the four people to whom he uploaded the song. All those other uploads are attributable to different people, each only liable for four uploads. The RIAA will have to go after all of those themselves.
    • by Elminst (53259)
      Suppose some individual only shared a file four times. And each of those four downloaders shared it four times. And so on. After only four levels of sharing, there's 256 incidences which could not have happened (theoretically) if that first individual had not shared that content.

      The problem with this statement is that the law does not work in supposition. The Law depends on FACTS (as defined legally, look it up). I present my facts. You argue my facts and present your own facts. I argue your facts. Rinse, r
      • by anandsr (148302)
        Or at least they have to prove that he was the originator of all the copies available on the network. Anybody should not be given this high penalty. Actually the high penality is the reason why RIAA is able to conduct this racket.
    • Re: (Score:3, Informative)

      by Dr_Barnowl (709838)
      But you're trying to make one person pay for the crimes of a geometric progression of other people. This is analagous to the Roman Catholic concept of "Original Sin".

      While the person has responsibility for what they personally allow to be uploaded from their machine, you cannot hold her responsible for what other people do with that data after they receive it. That is their responsibility, and if the RIAA want recompense for those activities, it is that geometric progression of people that they should chase
    • Ad infinitum... (Score:2, Interesting)

      by fiendy (931228)
      Suppose some individual only shared a file four times. And each of those four downloaders shared it four times. And so on. After only four levels of sharing, there's 256 incidences which could not have happened (theoretically) if that first individual had not shared that content.

      Ad infinitum, or bounded by what? The total population of the world? The % of the population estimated to have computers? That have computers connected to the internet?

      I mean, you can't argue for second generation damages, you
    • by styryx (952942)
      Ah, so it's a pyramid scheme. Whoever made the song available first is therefore, by that argument, responsible for ALL of the piracy that occurs subsequently.

      Let's now assume that someone, say 3 steps down the hierarchy (person B) also get's sued as well as the person at the top (person A). However, the damages for all the people below person A, including B, have been paid by A. So for everyone that B also pays for, the RIAA gets twice the money it is entitled to.

      If you want to sue people for indi
    • Re: (Score:2, Insightful)

      Ah yes. The argument that you ought to be punished for what somebody else did. Er... maybe did. Sounds pretty fair to me.
    • Re:$750 sounds right (Score:5, Informative)

      by swillden (191260) * <shawn-ds@willden.org> on Friday November 10, 2006 @10:42AM (#16794094) Homepage Journal
      Suppose some individual only shared a file four times. And each of those four downloaders shared it four times. And so on. After only four levels of sharing, there's 256 incidences which could not have happened (theoretically) if that first individual had not shared that content.

      I disagree completely. You can't hold the first sharer liable for the actions of the downloaders; they're responsible for their own actions and should be sued individually for those actions.

      The first sharer should be liable only for his or her own actions, which in your example means sharing the song four times, for total damages of around $2.80. IIRC, willful infringement is subject to triple damages, so the RIAA should be awarded $8.40. Note that in the case of sharers who serve up multiple copies of each of thousands of songs, the legitimate damages would be significant.

      I have no problem with the RIAA suing people who infringe their copyrights, but they approach it as a purely civil matter, and in civil matters awards are limited by actual damage. I understand that the record labels have a problem that aggregate file sharing may be costing them a great deal, but that still doesn't justify allowing them to pick out a few people and slam them for many hundreds of times the amount of damage that individual did, in the hope that making an "example" will deter others.

      Criminal law is all about deterrence. Civil law is primarily about compensation, with some small multiples being applied to awards in order to help keep the number of court cases down.

      If the labels want, current copyright law does have some criminal provisions, which will allow them to slam the sharer very hard ($250K per infringement, IIRC, plus jail time). Of course, they'll have to accept the higher standard of proof ("beyond a reasonable doubt"), and they'll first have to prove that the damages exceed a statutory amount ($1500, IIRC), and those damages calculations had better be provably correct.

    • The retail value of UN-DRM's files for about the same as DRM'd files ($12-20 Amazon prices for a CD containing 11-16 tracks), so you could say that an unencrypted, uncompressed file is also close to $0.70 at the wholesale level.

      And, of course, you should only be liable for the songs you distribute, not those which are subsequently distributed. Those damages would need to be litigated against the other distributers.
    • Let's say someone sells a gun illegally, and that person they sold to shoots someone with it - who then hands it off to someone else.

      By your logic the original gun owner is responsible for every murder. That is not right, a person is responsible for the actions they take and not the actions of those who receive what they distribute. The RIAA needs to find those other downloaders and sue them in turn.

      This also fits with a reasonable model of punishment, where only mass piracy is really punished and people
    • Re:$750 sounds right (Score:4, Informative)

      by NewYorkCountryLawyer (912032) * <ray.beckermanlegal@com> on Friday November 10, 2006 @01:37PM (#16796520) Homepage Journal
      What you're saying is simply not so. Every complaint alleges "downloading, distributing and/or making available for distribution".
  • A substantive due process claim in a conservative court system, when the defendant isn't sympathetic and the plaintiff is viewed (by the legal system if no one else) as good guys who support the American economy? Forget about it.
  • by d0sb00t (993011) on Friday November 10, 2006 @11:18AM (#16794570)
    RIAA: What happen ?
    RIAA Lawyer # 1: Somebody set up us the frivolous lawsuit.
    RIAA Lawyer # 2: We get signal.
    RIAA: What !
    RIAA Lawyer # 2: Main screen turn on.
    RIAA: It's you !!
    Judge: How are you gentlemen !!
    Judge: All your "relevant documents" are belong to us.
    Judge: You are on the way to destruction.
    RIAA: What you say !!
    Judge: You have no chance to survive make your time.
    Judge: Ha Ha Ha Ha ....
    RIAA Lawyer # 1: RIAA !! *
    RIAA: Take off every 'attorneys' !!
    RIAA: You know what you doing.
    RIAA: Move 'attorneys'.
    RIAA: For great injustice.
  • I think the Judge is right, and a constitutonal challege should be allowed. IANAL (who is?) but take this example: In Canadian tax law, if you are caught cheating on your taxes, the typical penalty is equal to the amount of oustanding taxes. (I.e. if you cheated the government of $5,000 in taxes, you pay that $5K taxes, PLUS a $5K fine.) Most other such damages are similar - 1 or 2 times the actual cost tacked on as a penalty. If you are speeding - a potentially lethal act, far more egregious than copying a

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