Beta

Slashdot: News for Nerds

×

Welcome to the Slashdot Beta site -- learn more here. Use the link in the footer or click here to return to the Classic version of Slashdot.

Thank you!

Before you choose to head back to the Classic look of the site, we'd appreciate it if you share your thoughts on the Beta; your feedback is what drives our ongoing development.

Beta is different and we value you taking the time to try it out. Please take a look at the changes we've made in Beta and  learn more about it. Thanks for reading, and for making the site better!

Tenise Barker Takes On RIAA Damages Theory

ScuttleMonkey posted more than 5 years ago

The Courts 282

NewYorkCountryLawyer writes "Tenise Barker, the young social worker from the Bronx who took on the RIAA's 'making available' theory and won, has now launched a challenge to the constitutionality of the RIAA's damages theory. In her answer to the RIAA's amended complaint [PDF], she argues that recovering from 2,142 to 428,571 times the actual damages would be a violation of Due Process. She says that the Court could avoid having to find the statute unconstitutional by construing the RIAA's complaint as alleging a single copyright infringement — the use of an 'online media distribution system' — and limiting the total recovery to $750. In the alternative, she argues, if the Court feels it cannot avoid the question, it should simply limit the plaintiffs' damages to $3.50 per song file, since awarding more — against a single noncommercial user, for a single upload or download of an MP3 file for personal use — would be unconstitutional."

cancel ×

282 comments

WRONG (-1, Flamebait)

Anonymous Coward | more than 5 years ago | (#24371507)

it's not about downloading a song. The price of downloaded music is well established at $0.99 (or less). DISTRIBUTING is the issue and unless she has logs which show exactly how many times she distributed it, she can fuck off.

Re:WRONG (4, Interesting)

PunkOfLinux (870955) | more than 5 years ago | (#24371573)

Neither do they, and it should be kept at a MANAGEABLE level. The thing is, even if a person does have evidence that they only distributed it *once* the RIAA still wants many times the damage they actually perceive.

Re:WRONG (2, Insightful)

larry bagina (561269) | more than 5 years ago | (#24371673)

Do you feel the same when GPL software being illegally distributed?

Re:WRONG (1)

PunkOfLinux (870955) | more than 5 years ago | (#24371799)

It depends on what you mean by 'illegally' distributed.

Re:WRONG (1)

Anonymous Coward | more than 5 years ago | (#24371811)

Yes.

Re:WRONG (5, Insightful)

Anonymous Coward | more than 5 years ago | (#24371941)

That depends on the context.

Is the GPL violation some kid who is giving the software to a few of his friends, but not allowing them to see the source? That's what's most comparable to this case.

Or is something like a large router company using linux to power it's newest router, making a ton of money off it, and then not releasing the source? That's totally different from this case.

Nice straw man argument though.

Re:WRONG (2, Insightful)

ByOhTek (1181381) | more than 5 years ago | (#24371985)

friends might be the wrong term...

A few other people, unknown to the individual, given teh way file sharing works.

Re:WRONG (2, Funny)

Futile Rhetoric (1105323) | more than 5 years ago | (#24372083)

Everyone on the intertubes is one big happy family.

Re:WRONG (5, Funny)

MrNaz (730548) | more than 5 years ago | (#24372443)

You mean I'm related to all the AC trolls around here?

Damn you, as if my self esteem wasn't low enough already.

Re:WRONG (2, Funny)

Anonymous Coward | more than 5 years ago | (#24372621)

Awe, I love you too. *HUG*

Re:WRONG (-1, Flamebait)

Anonymous Coward | more than 5 years ago | (#24372865)

Fuck off you shit eating faggot

Re:WRONG (3, Funny)

Futile Rhetoric (1105323) | more than 5 years ago | (#24372875)

That is exactly what I mean. C'mon, you know I wouldn't lie to you like that -- we're family.

Re:WRONG (2, Insightful)

compro01 (777531) | more than 5 years ago | (#24372893)

theoretically, everyone is at least distantly related to everyone else on the planet, though you would need an utterly huge family tree and consanguinity table to determine the relationships.

Only sold one router? (5, Insightful)

Mathinker (909784) | more than 5 years ago | (#24371995)

1) I can't remember anyone being sued for non-commercial distribution of GPL-ed software, and it's safe to assume that anyone distributing it commercially is trying to distribute it as much as possible, since every distribution is profitable.

2) The FSF, at least, will gladly settle for the distribution of the source code (in the case of GPL2 --- at least, this is what Eben Moglen claims were RMS's instructions to him while he was counsel to the FSF [geof.net] ). This isn't "many times the damages they actually perceive".

Re:Only sold one router? (1, Informative)

Anonymous Coward | more than 5 years ago | (#24372151)

"This isn't "many times the damages they actually perceive".

Umm.. yes it is. GPLed software may be distributed by anyone with a copy of it for $0.00. Zero dollars multiplied over many times is zero.

Re:Only sold one router? (3, Insightful)

Mathinker (909784) | more than 5 years ago | (#24372283)

Interesting. Perhaps you're right, but I think a better analogy would be that if the FSF were like the **AA, they'd be asking for the distribution of the source code of the illegally distributed program, and the distribution of the source code for 749 other programs of the same company, even if those other programs weren't distributed in violation of the GPL.

Re:Only sold one router? (1)

Wo1ke (1218100) | more than 5 years ago | (#24372765)

...and that would be just as fucked up? Honestly, I fail to see your point. Yes, imjustice in the name of GPL is just as bad as injustice in the name of RIAA/MPAA.

Fine, let's pinch pennies. (1)

GameboyRMH (1153867) | more than 5 years ago | (#24372437)

Well if you want to get picky about it, the emails sent from the FSF and the browsing required in investigative work probably cost nearly as much as the bandwidth required from the offending party to upload the source code...in fact if the FSF made any long distance phone calls in the process, the offending party might be getting quite a deal.

Bloody penny pinchers.

Re:WRONG (1, Redundant)

Lobster Quadrille (965591) | more than 5 years ago | (#24372107)

yes

Re:WRONG (1)

Shakrai (717556) | more than 5 years ago | (#24372265)

Do you feel the same when GPL software being illegally distributed?

Do you think that a six or seven digit fine would really be just punishment for illegal distribution of GPL'ed software?

Re:WRONG (5, Insightful)

Spy der Mann (805235) | more than 5 years ago | (#24373045)

Do you feel the same when GPL software being illegally distributed?

The cases are exactly the opposite. In the case of a filesharer, the public (i.e. us) benefits at the "expense" of a company (and i quote it because it's not proven that the companies lose anything).

In the case of a GPL violation, a single company benefits at the expense of the whole public, who DO have to pay for some software that should be free.

Re:WRONG (4, Insightful)

RingDev (879105) | more than 5 years ago | (#24371601)

it's not about downloading a song. The price of downloaded music is well established at $0.99 (or less). DISTRIBUTING is the issue and unless she has logs which show exactly how many times she distributed it, she can fuck off.

Actually, if this case is like many of the others, and the RIAA has proof that she distributed the song to Media Sentry, then they have proof that she distributed the content to 1 other person, a single copy right violation.

It's just a civil case, so they don't have to prove absolutely that she distributed to hundreds of people, but they have to make some effort at showing that there were more distributions than just the single unauthorized distribution that they authorized...

-Rick

Re:WRONG (5, Insightful)

Mathinker (909784) | more than 5 years ago | (#24371711)

Actually, if this case is like many of the others, and the RIAA has proof that she distributed the song to Media Sentry, then they have proof that she distributed the content to 1 other person, a single copy right violation.

Actually, my impression is that from a legal standpoint, the distribution to Media Sentry isn't a copyright violation because Media Sentry is the authorized agent of the copyright owner. And before everyone jumps in, remember that this is law we're talking about, so common sense doesn't necessarily apply (as we've seen in some of the other results of RIAA trials).

Re:WRONG (2, Interesting)

man_ls (248470) | more than 5 years ago | (#24372193)

I thought that because the P2P user doesn't have a license to distribute, any distribution at all is illegal. Even if the distribution is back to the person who owns the rights originally.

Maybe Mr. Beckerman can chime in? Surely this isn't an unresolved question in law still.

Re:WRONG (5, Informative)

NewYorkCountryLawyer (912032) | more than 5 years ago | (#24372289)

The "distribution" right referred to in the US Copyright Act is a clearly delineated right "to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending". (See paragraph 2 of Ms. Barker's answer). I.e.,
-it has to be of actual copies
-they actually have to be disseminated
-the dissemination has to be to the public, and
-there has to be a sale or other transfer of ownership, or a license, a lease, or a lending.

In layman's terms, the RIAA's "distribution" claim is baloney.

Re:WRONG (2, Interesting)

gnasher719 (869701) | more than 5 years ago | (#24372467)

So does that mean:

1. A record store is distributing records (by selling them).
2. Blockbuster is distributing videos (by renting them out).
3. Joe who gives copies of his CDs to friends is committing copyright infringement, but is _not_ distributing.
4. Jane who makes her CDs available to Joe for copying (who doesn't accept them) is not "making available for distribution" and therefore completely innocent.
5. Jim who makes copies of his CDs available to a record store for copying _is_ "making available for distribution" even if the record store doesn't accept them.

Your answer seems unclear to me (4, Interesting)

Mathinker (909784) | more than 5 years ago | (#24372647)

I hold you in the deepest regard, but it seems to me that you didn't answer the point in question, which is only whether agents of the copyright owner can be legally considered "the public". My understanding, from reading a lot of the material on your blog [blogspot.com] , is that they aren't.

(Your answer was equivalent to "for distribution to occur, A, B, C, and D must be all true, and they all aren't", whereas the question was whether C would be considered true for a download from Media Sentry. My apologies if you meant that none of A, B, C, and D were true.)

Re:WRONG (1)

Rob Kaper (5960) | more than 5 years ago | (#24372403)

I wouldn't say anything was distributed at all, when no additional person/entity gains access.

If you and me were to throw dollar/euro bills to each other in Africa, we wouldn't be able to call it distribution of money. Not even if we threw around zero-cost copies of those bills.

Re:WRONG (1)

scorp1us (235526) | more than 5 years ago | (#24372005)

Wouldn't the damages be limited to actual damages? Meaning that the RIAA would have to prove how many people they observed her distributing it to, then multiply by the cost of the song. If it is available for $0.99, then it would be X*$0.99.

But a reasonable request such as that is probably not welcome in our courts.

Re:WRONG (2, Informative)

greenbird (859670) | more than 5 years ago | (#24372351)

It's just a civil case, so they don't have to prove absolutely that she distributed to hundreds of people, but they have to make some effort at showing that there were more distributions than just the single unauthorized distribution that they authorized...

IANAL but I have been involved in civil court cases. Strangely in those cases you had to PROVE actually damages. That means documented evidence showing you lost the amount of money you are trying to recover due to the direct actions of the person you are trying to recover it from. The RIAA mob had special exemptions made into law so they don't have to provide these proofs in copyright infringement cases. Like everything else related to copyright these days why the hell do they get exemptions to the rules that everyone else has to follow? If it were you or me we would not only have to provide evidence showing each download we were trying to recover money for but also show evidence that each of those downloads resulted in a direct loss of revenue of the amount we were trying to collect. The RIAA has to show that there was a possibility that someone may have download the material and then gets to recover thousands of times the amount of any even remotely possible actual damages that may have resulted.

Re:WRONG (2, Informative)

DustyShadow (691635) | more than 5 years ago | (#24371871)

DISTRIBUTING is the issue and unless she has logs which show exactly how many times she distributed it, she can fuck off.

If the RIAA does not have proof that she distributed to the number of people they claim she distributed to, it can fuck off as well.

Re:WRONG (4, Insightful)

cfulmer (3166) | more than 5 years ago | (#24372257)

Forget about the number -- it's whether she distributed any at all.

The RIAA's claim is based on the idea that if you make a file available, you are distributing it, regardless of whether you actually distributed it anybody.

The problem with the RIAA's claim is that it make distributors out of everybody who happens to have a song on a shared folder, even if an official "p2p" network isn't involved. Consider Windows file sharing: if "My Documents" on your dorm computer is readable by the universe, congratulations -- you now owe the RIAA thousands of dollars. Remember, it isn't a question of whether anybody actually copied the song, or even of whether you intended to distribute it.

Consider this even more bizarre situation: Your kid installs p2p software on the family computer, sharing a directly called "music," that includes only songs he wrote & recorded. Later, you decide to rip your CD collection and, not knowing that there's p2p software, you stick it in "music." Now, you owe the RIAA a bunch of money.

Re:WRONG (5, Insightful)

wile_e_wonka (934864) | more than 5 years ago | (#24371971)

So, because she can't show that she distributed a song exactly, say five, times, she should be charged an absurdly high amount for each infringement? What happened to proving damages?

I think the problem is that the statute is not designed in a manner than can handle Napster and beyond peer-to-peer distribution. It is designed for instances in which an entity is making money off someone else's copyrighted work. Read the notes [cornell.edu] to the statute. It's pretty clear that Congress did not have in mind the possibility of someone sharing his or her individual music/movie/whatever collection with others on the Internet. Even Congress would not saddle a $150,000 fine on a person for sharing a $0.99 song.

Re:WRONG (4, Insightful)

slashdotlurker (1113853) | more than 5 years ago | (#24372441)

Even Congress would not saddle a $150,000 fine on a person for sharing a $0.99 song.

You mean until the members of Congress had lunch with their bribers, ahem, lobbyists ?

Re:WRONG-Proving Damages (3, Insightful)

Nom du Keyboard (633989) | more than 5 years ago | (#24372885)

What happened to proving damages?

There may not be any damages at all. None of those distributions, even if they occurred, may have resulted in a single lost sale because people who download files may not have bought the song had the free download not been available. Then the recording industry is out zero money overall.

Suddenoutbreakofcommonsense (1)

I2egulus (1322013) | more than 5 years ago | (#24371523)

Maybe this is a step in the right direction at least?

Don't tag it that... (5, Funny)

GameboyRMH (1153867) | more than 5 years ago | (#24371655)

It'll be a suddenoutbreakofcommonsense when the RIAA realizes how stupid they're being...which will be when they're all dead.

An AC troll posted a nice line on an article yesterday I won't forget:

"You can stop eating to lose weight, but you'd have to stop breathing to lose stupid"

So true.

Re:Don't tag it that... (1)

HTH NE1 (675604) | more than 5 years ago | (#24371917)

It'll be a suddenoutbreakofcommonsense when the RIAA realizes how stupid they're being...which will be when they're all dead.

Unfortunately, as a corporation, they are immortal. They cannot die unless you take their capital (decapitalate?), and with it their power.

Re:Don't tag it that... (0)

Anonymous Coward | more than 5 years ago | (#24372503)

Even then if you look at the state of businesses in the US today, if the RIAA member companies were to suddenly go bankrupt, they would just get rescued by the US Government. Since the consensus in congress is that the RIAA = all music ever, they will resurrect them with our money so we can get sued by them. They aren't going anywhere, in 5-10 years time they will try to come out the hero of the day by finally getting with the business model of the internet and the masses won't even remember the Reign of Terror suing they were engaged in now.

Re:Don't tag it that... (0)

Anonymous Coward | more than 5 years ago | (#24372535)

suddenoutbreakofcommonsense maybe ... but I don't think they're unaware of how unjust their actions are. they are self-righteous for sure ... but not stupid. they're just greedy and they are going to get as much money as they possibly can for as long as they possibly can until the justice system decides to put an end to their plundering.

Re:Don't tag it that... (2, Funny)

Nom du Keyboard (633989) | more than 5 years ago | (#24372649)

WARNING: Post may contain humor. Consult your physician to find out if you have a sense of humor before moderating.

Too bad sig lines (which might identify posters) don't make it to meta-moderators.

If this goes through... (4, Insightful)

MostAwesomeDude (980382) | more than 5 years ago | (#24371603)

...I wonder how much pain it might become, to settle? After all, if the cost of settling my (alleged, unsubstantiated) piracy becomes a mere forty dollars per album, I might not be so disinclined to just sign a piece of paper and fork over a tiny bit of cash.

Re:If this goes through... (5, Interesting)

jlarocco (851450) | more than 5 years ago | (#24372181)

If you don't mind "forking over a tiny bit of cash", why don't you stop being a cheap asshole and buy your music in the first place?

Re:If this goes through... (2, Insightful)

CelticWhisper (601755) | more than 5 years ago | (#24372337)

Because it makes financial sense to settle for $40 for one infringement case if you can grab, say, 5 albums and only get sued for one of them. Not saying it's ethical or unethical, but it's sensible.

Re:If this goes through... (3, Informative)

MostAwesomeDude (980382) | more than 5 years ago | (#24372655)

You got modded "Troll," but I'll bite, because I think it's an important point.

I stopped buying music distributed by RIAA labels for exactly two reasons:

1) I don't want to support a cartel that does what the RIAA does. I'll still buy music from independent labels, and I still do things that support artists directly, like go to live concerts.

2) It's fucking expensive, dumbshit! It costs me, a musician, exactly 1 dollar to get 1 CD pressed. In bulk, it costs less. Paying $15-20 for a CD is ridiculous. This is the same reason that I go to Blockbuster, rather than to the cinema.

Re:If this goes through... (0)

Anonymous Coward | more than 5 years ago | (#24372817)

"I don't like how expensive this product is or who made it, therefore I'm stealing it" is not valid.

Re:If this goes through... (1)

jedidiah (1196) | more than 5 years ago | (#24372991)

Your slander is not supported by the facts.

Re:If this goes through... (1)

cpu_fusion (705735) | more than 5 years ago | (#24372349)

True.

And they could just price blanket licensing in such a way that I would want to just pay $40 a month for convenient access to unlimited, DRM-free content. ;-)

It would be amazing what the recording industry would accomplish if they would just make the honor system, a system they are stuck with, look like a compelling option. Most people are more than happy to spend money on music.

And now we wait (4, Insightful)

digitrev (989335) | more than 5 years ago | (#24371633)

I'm sure the RIAA will have some excuse as to why this isn't unconstitutional, and was in fact the idea the Founding Fathers had in mind when they set up copyright. Good arguments, but I'm a touch wary that the judge will just ignore any constitutional issue. And even if they do listen, the RIAA will try and get out of it so no precedent can be made.

I'm not so sure (5, Insightful)

XahXhaX (730306) | more than 5 years ago | (#24371875)

The only argument of which I'm currently aware is that they state the excessive damages are necessary to deter others.

It may be fortunate that this is the kind of rhetoric that sells to politicians moreso than courts. The extortionate damages that IP holders currently seek is clearly intended not to simply deter people from violating copyright, but from even putting up a fight in the first place--as demonstrated by the way the RIAA handles these cases by offering to settle for a few grand or face the threat of an exponential lawsuit.

Otherwise you're just stating the obvious: yes, the RIAA will find a way to fight this. And the sky is blue and birds chirp.

Re:I'm not so sure (3, Insightful)

AndersOSU (873247) | more than 5 years ago | (#24372025)

IANAL, but is deterrence factored into civil law? I was under the impression that the only thing you can sue for is punitive and actual damages. I think civil court operates under the notion that you harmed me, so this amount of money will make me whole - I don't think it says anything about stopping someone else from harming me. Supposedly the punitive damages are to account for your bad action, not stopping someone else from doing the same.

Re:I'm not so sure (3, Informative)

compro01 (777531) | more than 5 years ago | (#24372995)

Copyright has the additional category of statutory damages [wikipedia.org] .

Re:And now we wait (4, Interesting)

Goobermunch (771199) | more than 5 years ago | (#24372121)

Having brought a similar challenge to Microsoft's use of an anti-piracy statutory damages provision, I can only wish Ms. Barker good luck. The U.S. District Court for the District of Colorado issued a brief, two page ruling which essentially said that Congress has the power to impose big statutory damages because "the statutory damages remedy recognizes the difficulty in quantifying the harm that may result from the illicit distribution of [the subject of Microsoft's lawsuit] which may be used in the sale of non-Microsoft products to the confusion of the public and damage to Microsoft's goodwill and business reputation. These statutory damages are comparable to those available for copyright infringement under 17 U.S.C. s 504(c)."

Good luck Ms. Barker.

--AC

Re:And now we wait (1)

sm62704 (957197) | more than 5 years ago | (#24372507)

What worries me is the case where the EFF guy took the Bono Act to the Supreme Court, who judged that "limited time" means whatever Congress says it means. Logic and reason would dictate that if that was the case, the entire Constitution has no real meaning.

They have ruled that the "interstate commerce" clause prevents Californians from growing medical marijuana that is not intended for use outside California. I rule "WTF???"

I'm hopeful, but...

Re:And now we wait (1)

digitrev (989335) | more than 5 years ago | (#24372901)

Hopeful? You must be new here.

Huh? (0)

RManning (544016) | more than 5 years ago | (#24371659)

I have no idea what any of that means, but go Tenise!

Treble damages (4, Insightful)

Orne (144925) | more than 5 years ago | (#24371677)

This would fit nicely with the puntative damages model that are currently used for financial, anti-trust, and counterfeit fraud called "Treble damages" [wikipedia.org] .

Since Itunes can show that the market value of a single MP3 is approximately $1, then a fraud penalty of $3 per song does not seem unreasonable, providing that the prosecution can show that the song was actually downloaded that is...

-- Scott

Re:Treble damages (4, Interesting)

larry bagina (561269) | more than 5 years ago | (#24371721)

That's for downloading an individual copy. Call up Sony and ask them how much a license to distribute a song is.

Re:Treble damages (3, Insightful)

Z_A_Commando (991404) | more than 5 years ago | (#24371857)

That will be their argument. However, in order to claim distribution damages, they have to prove distribution and they've already had their "making available" == distribution theory shot down. I'm sure they'll try to come up with another way, but until they do, they can't claim damages for something they can't prove.

Re:Treble damages (4, Insightful)

Retric (704075) | more than 5 years ago | (#24371895)

Read up on the write of first sale. If you can buy something for X and ship it for y then the cost to distribute it is X + Y and you can leave Sony out of the picture.

Re:Treble damages (1)

AndersOSU (873247) | more than 5 years ago | (#24372877)

I'm reasonably certain the the right of first sale doesn't cover buying something once, making copies of it, and then distributing all the copies.

Re:Treble damages (3, Interesting)

Anonymous Coward | more than 5 years ago | (#24372115)

I know the analogy isn't identical, but bear with me.

Imagine that water was a controlled, licensed, "copyrighted" material, and you set up a publically accessible water fountain at the side of the street (whether you intended it to be "public" or not is irrelevant -- it's accessible). How do you know whether someone walked by and 1) took a few sips, 2) someone drove up a water tanker and sucked down thousands of litres for resale commercially, or 3) nobody but you drank anything, which may have been your original intention anyway?

The RIAA is arguing option #2, and evaluating potential damages on that scale: enormous. The judge in the case has effectively said, no, you have to show that damages on that scale or whatever scale is argued have actually occurred. The fact that someone else *could* have used an enormous amount is irrelevant -- you have to *show* the amount of damage incurred. The contrary claim is that a fair amount of damages are ~3x the "value" for the act that you know: in this case the copy of a track that the defendant made from the original CD or that they downloaded from someone else without permission from the copyright holder.

If the RIAA can show that someone enabled others to download millions of copies of the relevant tracks, then perhaps they could probably push for more actual damages, but they haven't done that. They just offered this lazy "making available" theory that the moment you have shared tracks via P2P (which half the people out there don't even understand involves uploading as well as downloading), you've infringed thousands or millions of times.

Re:Tribble damages (3, Funny)

urcreepyneighbor (1171755) | more than 5 years ago | (#24372259)

This would fit nicely with the puntative damages model that are currently used for financial, anti-trust, and counterfeit fraud called "Treble damages" [wikipedia.org] .

Yes, but what about the damages caused by tribbles? As we are all aware, songs are still sung on Qo'noS of the Great Tribble Hunt.

punitive fines (4, Insightful)

Khashishi (775369) | more than 5 years ago | (#24371697)

Punitive fines need to be much greater than actual damages because of the low probability of getting caught; otherwise, entities could just make a calculated decision to take the risk of breaking the law, since the expected cost is much lower.

Imagine if megacorps only paid damages whenever they harmed someone.

Re:punitive fines (0)

Anonymous Coward | more than 5 years ago | (#24371997)

Supreme court greatly diminished the punative damages assigned to Exxon due to their negligence in the Valdeze incident. Seems like the RIAA sees file downloading as something worthy of a similar judgment...

Re:punitive fines (3, Insightful)

Anonymous Coward | more than 5 years ago | (#24372057)

Better yet, imagine if megacorps actually paid damages whenever they harmed someone.

Re:punitive fines (4, Insightful)

JCSoRocks (1142053) | more than 5 years ago | (#24372087)

The trouble is... the amount necessary to dissuade a company from doing it is pretty different from an individual. $50,000 would probably convince average joe that it's a bad idea... but megacorps spend that on free coffee for employees in a year.

Re:punitive fines (0)

Anonymous Coward | more than 5 years ago | (#24372291)

(for the record, $50,000 for free coffee in a year is ~$191.57/day spent on coffee)

Re:punitive fines (3, Interesting)

fishbowl (7759) | more than 5 years ago | (#24372755)

>for the record, $50,000 for free coffee in a year is ~$191.57/day spent on coffee

Not even enough to provide 100 employees with a daily Grande Regular Coffee from Starbucks, at the retail price.

Re:punitive fines (3, Insightful)

CodeBuster (516420) | more than 5 years ago | (#24372861)

This is why punitive damages should be subjected to a means test whereby the damages are adjusted to reflect a fixed percentage of the annual income of a convicted individual. Thus, the poor working mother might only pay several hundred dollars total or perhaps a couple of thousand max whereas the mega corporation could be on the hook for millions. Fixing the absolute dollar amounts in the laws makes very little sense because the relative burdens will obviously fluctuate over time due to inflation while at the same time imposing a regressive burden of punishment when they are applied (i.e. the poor suffer more than the rich for being convicted of the same crime).

Re:punitive fines (1)

olddotter (638430) | more than 5 years ago | (#24373049)

Medium sized companies $100 Million a year in revenue some times allocate $10 Million a year (or 10% of revenue) to legal expenses.

To change the mind of a company it takes a lot. Losing $10 Million a day does not seem to have convinced the American Auto companies to make cars we want to buy. One could argue that they just don't know what American's want to buy, but really how hard is it to walk to a Honda or Toyota dealership and look around?

Re:punitive fines (2, Insightful)

salahx (100975) | more than 5 years ago | (#24372223)

But the damages aren't "punitive", they are "statutory". They aren't intended to punish the infringer, rather the are intended to grant the appropriate relief to the plaintiffs when "actual" damages can't be easily calculated (since no one knows how many works were infringed).

Re:punitive fines (1)

Trojan35 (910785) | more than 5 years ago | (#24372237)

True, but there needs to be scale.

Applying a $40M punitive damage to microsoft and to an individual for the same copyright infringement is not consistent IMO.

SC said damages-only was OK for Exxon... (0)

Anonymous Coward | more than 5 years ago | (#24372303)

http://www.cbsnews.com/stories/2008/06/25/supremecourt/main4208760.shtml?source=RSSattr=Business_4208760/ [cbsnews.com]

"Justice David Souter wrote for the court that punitive damages may not exceed what the company already paid to compensate victims for economic losses, about $500 million compensation."

Of course they chose to help out Exxon while avoiding giving help to others by specifically limiting the scope of their decision to maritime law.

Re:punitive fines (3, Interesting)

rtechie (244489) | more than 5 years ago | (#24372739)

Imagine if megacorps only paid damages whenever they harmed someone.

"Only"? I would be very, very, very happy if we could get large corporations to do this. As it is now, it's very tough to nail them for outright murder, let alone relatively petty crimes like fraud, theft, and illegal surveillance.

Woo! (1)

theaceoffire (1053556) | more than 5 years ago | (#24371773)

I think this deserves the "Suddenoutbreakofcommonsense" tag!

I mean, *not* charging thousands of dollars for each song? Brilliant!

very clever, but it might not stick (1)

postbigbang (761081) | more than 5 years ago | (#24371783)

3.50 seems like it's good, until you get to the logic that if other people downloaded it from the defendent's machine, then 3.50 per song per downloader from there might be prudent. Nice theory, though. I wonder how far it will get.

Re:very clever, but it might not stick (0)

Anonymous Coward | more than 5 years ago | (#24372027)

until you get to the logic that if other people downloaded it from the defendent's machine, then 3.50 per song per downloader from there might be prudent.

No. Because then the RIAA goes after the people who downloaded it from the defendant's machine (whose infringement would have already been paid for by the defendant technically) and get equal payments from each of those.

Re:very clever, but it might not stick (1)

sm62704 (957197) | more than 5 years ago | (#24372215)

The $150,000 the law says they could get would be 150,000 downloads per upload. I don't see that happening at all.

Re:very clever, but it might not stick (1)

Thought1 (1132989) | more than 5 years ago | (#24372275)

It gets even more interesting: The RIAA would have to provide the list of all downloads of the song from the defendant's machine, then prove that each was a distinct and separate download and not just the same person downloading it again. With P2P file sharing systems such as BitTorrent, a further complication arises: does sending the person 15% of the file still count as a full download, or should it be pro-rated proportionally?

Re:very clever, but it might not stick (1)

postbigbang (761081) | more than 5 years ago | (#24372567)

A good question. I think this gets really messy, but an enlightened judge may make sense of it. I wonder the outcome.

Re:very clever, but it might not stick (1)

Katmando911 (1039906) | more than 5 years ago | (#24372729)

That's probably fine by the judge so long as the prosecution can prove that the file was actually uploaded X number of times (Where it was uploaded to and when that act of infringement occured). So far the RIAA hasn't been doing that, they've just been arguing that it "could have" been uploaded many times.

Exxon Valdez damages were limited too (4, Informative)

karl.auerbach (157250) | more than 5 years ago | (#24371905)

The damages owed by Exxon for the Valdez oil spill were recently limited and substantially reduced because the court found the original damages excessively punitive. So if it makes sense for Exxon perhaps it also makes sense to apply a similar theory of limitation of damages elsewhere.

Re:Exxon Valdez damages were limited too (5, Interesting)

NewYorkCountryLawyer (912032) | more than 5 years ago | (#24372157)

The damages owed by Exxon for the Valdez oil spill were recently limited and substantially reduced because the court found the original damages excessively punitive. So if it makes sense for Exxon perhaps it also makes sense to apply a similar theory of limitation of damages elsewhere.

You don't even need to go that far afield; one of the plaintiffs in Ms. Barker's case, UMG Recordings, Inc., made the very same argument [blogspot.com] when it was a defendant, saying that a jury verdict for 10 times the amount of the actual damages was excessive.

I.e., when it's a defendant a multiple of 10 is too much. But when it's a plaintiff, a multiple of 428,571 is okay.

Does the word "hypocrite" come to mind?

Re:Exxon Valdez damages were limited too (1)

Nom du Keyboard (633989) | more than 5 years ago | (#24372801)

Does the word "hypocrite" come to mind?

Actually, estoppel came to mind first.

Re:Exxon Valdez damages were limited too (1)

CodeBuster (516420) | more than 5 years ago | (#24372949)

No doubt the defendant and his attorneys will bring this to the attention of the judge (if they haven't already), but I must say that the levels of chutzpah, arrogance, and hypocrisy of these record labels are simply spectacular both in sheer scale and also in their wanton disregard for any semblance of fairness. Have these companies and their attorneys, at long last, no shame left?

Re:Exxon Valdez damages were limited too (0)

longacre (1090157) | more than 5 years ago | (#24372239)

That would be nice. Except most RIAA targets don't have the same resources as a company that pulls in $40 billion in annual profits...and even then, it took Exxon's scores of lawyers 14 YEARS to win this appeal

Re:Exxon Valdez damages were limited too (3, Insightful)

Anonymous Coward | more than 5 years ago | (#24372363)

Let's see...

Exxon: Well-funded corporation backed by powerful lobbying groups.
RIAA: Well-funded lobbying group backed by powerful corporations.

You: ???

Re:Exxon Valdez damages were limited too (0)

Anonymous Coward | more than 5 years ago | (#24372597)

The damages owed by Exxon for the Valdez oil spill were recently limited and substantially reduced because the court found the original damages excessively punitive. So if it makes sense for Exxon perhaps it also makes sense to apply a similar theory of limitation of damages elsewhere.

The opinion in Exxon Shipping Co. v. Baker [supremecourtus.gov] explicitly says that "[t]he punitive damages award against Exxon was excessive as a matter of maritime common law" (emphasis added). So there doesn't seem to be much precedent there. Furthermore, the issue in the RIAA cases is statutory damages, not punitive. Conservative judges (like 4.5/9 of SCOTUS) would probably argue that determining statutory damages are a matter of public policy, so courts should generally defer to the legislature's judgment.

What if... (3, Interesting)

IAAE (1302511) | more than 5 years ago | (#24371961)

... I don't distribute a complete song? With torrents for example, if I were to upload parts of the song to 1000 people, but my share ratio were 1.00, what could they come after me for?

Re:What if... (1)

JCSoRocks (1142053) | more than 5 years ago | (#24372119)

*pinky to mouth* One MEEELION DOLLARS!

Re:What if... (1)

mathimus1863 (1120437) | more than 5 years ago | (#24372125)

I actually find this idea interesting. Clearly someone has to seed the network with the whole song, but once more than two people provide it, perhaps they only keep portions of songs on their share folder, so it's not even a whole song. It just so happens that other people sharing have different pieces. The RIAA would come up with an excuse for why this is just as bad, but technically you don't even have a working copy in your share folder to distribute so the legalease around it would be interesting.

Re:What if... (4, Interesting)

compro01 (777531) | more than 5 years ago | (#24372301)

More interestingly, what if the pieces were small enough to fall under fair use standards (which is less than 20 seconds, IIRC)?

For example, 16 pieces of a 4 minute song from 16 different people, each piece containing 15 seconds of the song.

Re:What if... (4, Funny)

VorpalRodent (964940) | more than 5 years ago | (#24372209)

You would incur 1000 separate civil suits, each alleging the partial distribution of a copyrighted work.

Unable to go to each of the hearings, you would lose by default, and pay 1000*$3.50/1000 = $3.50...plus attorney's fees for 1000 separate lawsuits, totalling $3,000,003.50.

The sad part is (1)

Theoboley (1226542) | more than 5 years ago | (#24372053)

That when a person downloads a song/cd illegally and the RIAA nabs then for it, the money pocketed from the case doesn't go to the artist that's being "ripped off" Does anyone know what a band/artist makes off of a single CD sale? it is PEANUTS compared to what the record companies are making. Now this needs citations, but i remember reading somewhere that the average artist gets a whopping 10 cents per CD sale. Bigger name artists such as a Metallica (who just so happen to be the highest grossing per/cd sale artist out there today) gets 25 cents. Now With that being said, the RIAA can piss off, and the record companies need to pay the artists more for their work, because it is, after all, the artists that keep these bastards working.

I haven't seen this mentioned yet (5, Insightful)

Sir_Real (179104) | more than 5 years ago | (#24372139)

So I'll just say it on behalf of (most of) the slashdot audience.

Thank you. Thank you for doing the work that we didn't, couldn't or were unwilling to do. Thank you for carrying a heavy, unwieldy torch. Thank you. Thank you.

Thank you.

Re:I haven't seen this mentioned yet (-1)

Anonymous Coward | more than 5 years ago | (#24372249)

AMEN!

Those jerks at the RIAA.

You'd have thought they'd have learnt..... (1)

mormop (415983) | more than 5 years ago | (#24372321)

from this lot:

http://www.mcspotlight.org/ [mcspotlight.org]

It's remarkable that large corporations don't seem to realise that after enough people cave in to their crap, someone, probably poor, with nothing to lose will turn around and deliver a legal kick in the nuts.

Good luck to this person. McDonalds won on technicality but lost massively in PR terms. If the RIAA can make a big enough arse of themselves in public people may start to realise how redundant they actually are.

Nice little earner? (3, Interesting)

Nomen Publicus (1150725) | more than 5 years ago | (#24372371)

Aren't the RIAA demands based more on making a RIAA profit rather than a deterrence to others?

Can it be really innocent infringement? (1)

imrehg (1187617) | more than 5 years ago | (#24372557)

From the article:

Innocent infringement : defendant was not aware of any copyright infringement, and upon information and belief some or all of the copies which she downloaded did not bear copyright notice.

This looks very weird - when people rip CDs and DVDs, they rarely (if ever) attach any copyright notice to the resulting mp3 and avi files... Would it mean, that because the copyright notice has been removed (it was on the CD case for sure, or the load screen of the DVD), then you don't know you are infringing? As much as I applaud the rest of the complaints, this is just silly. On the internet it is mostly: "everything is copyrighted except if it's explicitly noted", not the other way around...

On the other hand, if it gets accepted, then everyone is pretty innocent from this point on... Would be fun. :)

Load More Comments
Slashdot Account

Need an Account?

Forgot your password?

Don't worry, we never post anything without your permission.

Submission Text Formatting Tips

We support a small subset of HTML, namely these tags:

  • b
  • i
  • p
  • br
  • a
  • ol
  • ul
  • li
  • dl
  • dt
  • dd
  • em
  • strong
  • tt
  • blockquote
  • div
  • quote
  • ecode

"ecode" can be used for code snippets, for example:

<ecode>    while(1) { do_something(); } </ecode>
Create a Slashdot Account

Loading...