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

Zonk posted more than 7 years ago | from the their-stuff-isn't-that-good dept.

333

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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333 comments

Thank You to Ty Rogers & Ray Beckerman (5, Informative)

eldavojohn (898314) | more than 7 years ago | (#16792828)

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.

Re:Thank You to Ty Rogers & Ray Beckerman (1)

Rob T Firefly (844560) | more than 7 years ago | (#16792848)

Hear hear! Well said.

Re:Thank You to Ty Rogers & Ray Beckerman (1)

A beautiful mind (821714) | more than 7 years ago | (#16792876)

Finally an opportunity where a me too post makes sense.

Me too! Err...

Thank you!

Re:Thank You to Ty Rogers & Ray Beckerman (1)

BecomingLumberg (949374) | more than 7 years ago | (#16793010)

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.

Re:Thank You to Ty Rogers & Ray Beckerman (1)

SQLServerBen (987193) | more than 7 years ago | (#16793606)

I second that. Thanks guys -- your work and information is appreciated.

Re:Thank You to Ty Rogers & Ray Beckerman (1)

WilliamSChips (793741) | more than 7 years ago | (#16793648)

Thank you.
May your attempts succeed.

Re:Thank You to Ty Rogers & Ray Beckerman (5, Informative)

cerberusss (660701) | more than 7 years ago | (#16793654)

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... (3, Insightful)

Just Some Guy (3352) | more than 7 years ago | (#16793680)

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:Thanks, but... (2, Insightful)

Anonymous Coward | more than 7 years ago | (#16793730)

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.

No wonder (1, Interesting)

Anonymous Coward | more than 7 years ago | (#16793834)

"If you can't understand that, then you can be lumped into the group of ungrateful assholes, as far as I'm concerned."

No wonder our representatives are so confrontational and thoughtless. The people they're represent are the same way.

I too thought their comments were not terribly helpful, but that doesn't make them bad people. You, on the other hand, see things as either completely supporting that these guys are wonderful or if you don't, then you're an asshole.

I'm guessing you don't get along with about 1/2 the people you meet.

Re:Thanks, but... (0)

Anonymous Coward | more than 7 years ago | (#16793872)

"My computer's doing funny things. If you can't tell me exactly what's wrong with it based on that information then you have no business working with computers."

This is exactly the attitude that many readers took in the interview.

Re:Thank You to Ty Rogers & Ray Beckerman (1)

Zontar_Thing_From_Ve (949321) | more than 7 years ago | (#16793726)

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 why they say those things, but asking them questions and just getting "I don't know" in response didn't make them any friends here. It was just a waste of time to ask them questions to begin with and their responses were just as pointless.

Damages for companies? (4, Interesting)

kria (126207) | more than 7 years ago | (#16792870)

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.

Re:Damages for companies? (5, Insightful)

91degrees (207121) | more than 7 years ago | (#16792948)

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.

Re:Damages for companies? (5, Interesting)

Magada (741361) | more than 7 years ago | (#16793162)

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.

Re:Damages for companies? (3, Interesting)

Total_Wimp (564548) | more than 7 years ago | (#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:Damages for companies? (2, Interesting)

TapeCutter (624760) | more than 7 years ago | (#16793634)

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?).

Re:Damages for companies? (3, Informative)

FellowConspirator (882908) | more than 7 years ago | (#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:Damages for companies? (2, Interesting)

DJCacophony (832334) | more than 7 years ago | (#16793808)

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:Damages for companies? (5, Interesting)

gundersd (787946) | more than 7 years ago | (#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:Damages for companies? (1)

Billosaur (927319) | more than 7 years ago | (#16793342)

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 content has slipped slowly away. DRM is the last shriek of the dying -- trying to control the content even when it is out of their control.

So they see $750 as a justifiable figure, and given their tactics and their attempts to cripple content, it would certainly seem they need that kind of wherewithall to keep doing it. But I think this will revolve more around how fair it is to be doing this in the first place. A new age has dawned and the RIAA is going to have to come to grips with that sooner or later.

Re:Damages for companies? (4, Insightful)

sholden (12227) | more than 7 years ago | (#16793466)

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.

Yes, but she dowloaded one copy? (1)

TapeCutter (624760) | more than 7 years ago | (#16793530)

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:Damages for companies? (2, Informative)

cpt kangarooski (3773) | more than 7 years ago | (#16793748)

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:Damages for companies? (1)

archen (447353) | more than 7 years ago | (#16792978)

I'm pretty sure the "damage" that is claimed for a downloaded song because digital means you can hand off exact copies into infinity. Which means there could be a theoretical infinite loss to a music company. The reality is that even if you put songs up on kazaa I'd be surprised that it would be downloaded more than say 20 times by other peers. At $750, a 70c download would mean it had been downloaded 1070 times. I doubt anyone has ever handed out a song that much.

Reckon it in terms of upstream bandwidth (5, Interesting)

Dr_Barnowl (709838) | more than 7 years ago | (#16793532)


Upstream bandwidth (kBit/s) 128 (this is my own bandwidth rate)
Time to upload 1 MB (s) 64
Average song size (MB) 5
Time to upload average song (s) 320

Wholesale cost of song (USD) $0.70
Sue-value per song (USD) $750.00
Number of instances req'd 1071.43

Upload time per song sue-value (s) 342857.14

Or just shy of 4 days (3.97).
So 2 days for 256 kBit/s
And 1 day for 512 kBit/s


So basically, a value of $750 means that, if the sole means of distribution is via the network, for each and every count, the plaintiff should have to prove that the defendants computer was on, connected, and maxing it's upstream bandwidth for a period not less than 1 full day, multiplied by their upstream bandwidth divided by 512. I'd expect that also to be tempered by some reasonable fraction accounting for computer downtime, other uses of bandwidth, network overheads, etc.

Has anyone ploughed through the legal documents and found out how many counts they are sueing for, and what Ms Lindors' upstream is? Because if she has 128kBit/s and it's 1,000 counts, they should have to prove that she had her computer uploading music for 11 years straight without a break. (To quote Billy-Bob Thornton in Armageddon, "Most of us don't even have cars that old."). I doubt that much upstream was even available in most places 11 years ago....

Re:Damages for companies? (2, Informative)

Hijacked Public (999535) | more than 7 years ago | (#16793640)

I would be suprised if they didn't hand it out more than that.


Some of the torrent sites list the most popular torrents at any given time, virtually all of the top 100 or so are copyrighted material and they all have several hundred seeds and several hundred leeches. Given the relatively large number of users the more traditional P2P sites have I would imagine a good version of a currently popular tune could be downloaded thousands of times, particularly given the unlimited amount of time it could be made available.

Also worth considering that if this defense ends up working the next tactic by the RIAA will likely involve them downloading several hundred thousand copies of a single song and taking you to court with that.

There goes the RIAAs "legitimacy" :-) (-1, Redundant)

crovira (10242) | more than 7 years ago | (#16792996)

This could only happen under the fsckin' Democrats. (Oh wait, they weren't around when this crap was hatched.)

No law firm is ever going to work cheaply enough to make this worth their while.

If they have to prove their costs, they're dead.

If they have to prove the RIAAs costs, they're dead.

Goddamn it. If people play fair, we can't get anything done in this country.

Re:There goes the RIAAs "legitimacy" :-) (1)

powerlord (28156) | more than 7 years ago | (#16793176)

No law firm is ever going to work cheaply enough to make this worth their while.


Sure they will ... all the RIAA need todo is sue ALL of their customers (sort of a reverse Class Action suit).

I'm sure there is a lawyer being hatched right now that will take the case (for T&M plus a small contingency).

Re:Damages for companies? (2, Informative)

aadvancedGIR (959466) | more than 7 years ago | (#16793056)

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).

Englsh translation? (1)

Eudial (590661) | more than 7 years ago | (#16792884)

Can anyone fluent in Legalese translate that into English, please?

Re:Englsh translation? (2, Informative)

Gr8Apes (679165) | more than 7 years ago | (#16792958)

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....

Re:Englsh translation? (1, Funny)

Anonymous Coward | more than 7 years ago | (#16793802)

Don't give them any ideas.

Re:Englsh translation? (5, Funny)

Aladrin (926209) | more than 7 years ago | (#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.

Re:Englsh translation? (5, Funny)

stoolpigeon (454276) | more than 7 years ago | (#16793122)

I'm not African-American, and I have never been to Africa or the less affluent regions of any major city.
 
you didn't need to tell us that- it's self-evident.

Re:Englsh translation? (1)

Hijacked Public (999535) | more than 7 years ago | (#16793498)

Yes, +5 Funny.

I'm sure that will go over as a real knee slapper at the next Klan rally. Good to see racism is alive and well even outside the less affluent regions of major cities.

Re:Englsh translation? (1)

compro01 (777531) | more than 7 years ago | (#16793626)

i see A LOT more white people talking in that manner than i see black people talking in that manner.

Re:Englsh translation? (0)

Hijacked Public (999535) | more than 7 years ago | (#16793736)

Me too.

You can find white kids in the Hamptons who speak like that, but the disclaimer specifically asks that everyone forgive the poster's poor parody of some garbled version of English because he is not poor or African, which means he cannot possibly be a native speaker of the garbled English, because only the poor and the African are, which is an untrue stereotype of the racist classist variety.

Re:Englsh translation? (1)

itlurksbeneath (952654) | more than 7 years ago | (#16793708)

Wow.. Nice to see people whip out the racism card as the first response. My first thought after reading it was "Ah.. an oblique 'Airplane' reference". Are you saying Airplane was racist as well?

Re:Englsh translation? (1)

Hijacked Public (999535) | more than 7 years ago | (#16793874)

I've never seen Airplane so I have no idea.

Re:Englsh translation? (1)

itlurksbeneath (952654) | more than 7 years ago | (#16793932)

It's funny. Rent a copy.

Re:Englsh translation? (0)

Anonymous Coward | more than 7 years ago | (#16793836)

It's touchy assholes like you -- of all colors -- that keep racism alive and well.

Re:Englsh translation? (-1, Redundant)

schabot (941087) | more than 7 years ago | (#16793592)

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

No but you are ignorant. Your final statement implies that 1. People who talk like that are African-American. 2. People who talk like that live in "less affluent regions" 3. And it is the African-Americans who are living in those areas.

If you did just a litte [wikipedia.org] bit of reading you would realize that "African-American" vernacular, if it does exist, has nothing to do with money or social class. Much of the pronunciation, grammar and vocabulary comes directly from influences of West African languages, and not from a lack of education or money.

Re:Englsh translation? (1)

Dog-Cow (21281) | more than 7 years ago | (#16793788)

Actually, you are the ignorant one.

You are ignorant of the meaning of the word "humor".

Re:Englsh translation? (1)

rpjimmypop (227134) | more than 7 years ago | (#16793766)

Is that you Ali G?

Re:Englsh translation? (4, Funny)

Anonymous Brave Guy (457657) | more than 7 years ago | (#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.)

Does this mean.. (1)

MyNameIsEarl (917015) | more than 7 years ago | (#16792936)

Does this mean that the "legal" music downloads are going to cost close to $100 now? Killing the digital music market and ending any chance of "legal" downloads. This is all part of the music industry business plan, sell cheap, low quality songs that do not generate much profit and sue the hell out of the people who download "illegal" high quality versions to subsidize the cheap low quality sales.

Woohoo, that's cheaper than Wal Mart! (1)

Jay Tarbox (48535) | more than 7 years ago | (#16792970)

I can get a lot more songs for .70 than .88 or even .99 cents. Cool!

thats only fair (-1, Flamebait)

darkchubs (814225) | more than 7 years ago | (#16792982)

I mean come on

$750? (4, Funny)

dlc3007 (570880) | more than 7 years ago | (#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.

Re:$750? (1)

AcidLacedPenguiN (835552) | more than 7 years ago | (#16793308)

now if only you included a PS3 into the price. . .

Re:$750? (1)

Ogive17 (691899) | more than 7 years ago | (#16793310)

At least it was a lengthy song and not something like Blur's "Song 2" (or 4, whatever number) that was a whopping 39 seconds long.

Re:$750? (0)

Anonymous Coward | more than 7 years ago | (#16793394)

He only said he got laid to the song. He didn't say he got to the end :-)

For all you know, the two of em coulda been done before the vocals began...

Re:$750? (0)

Anonymous Coward | more than 7 years ago | (#16793398)

song 2 is exactly 2 minutes long.

What was that? (0)

Anonymous Coward | more than 7 years ago | (#16793540)

Well... I did get laid to "Stairway to Heaven" in high school, but I'm not sure it was worth $750 -- sex included.
Did somebody say "premature ejaculation"?

Re:$750? (0)

Anonymous Coward | more than 7 years ago | (#16793668)

So how much *did* you pay? (Please answer in original 1970's dollars, or adjust for inflation)

Who's the pirates, again? (2, Insightful)

jandersen (462034) | more than 7 years ago | (#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.

Re:Who's the pirates, again? (4, Funny)

aadvancedGIR (959466) | more than 7 years ago | (#16793098)

Since they obtained the right to do so by the government, you should call them corsairs.

Re:Who's the pirates, again? (1)

Jestrzcap (46989) | more than 7 years ago | (#16793286)

I like "privateers" better.

Re:Who's the pirates, again? (1)

KDR_11k (778916) | more than 7 years ago | (#16793410)

A paramilitary force? Will they count as enemy combatants in twenty years?

RIAA defense... (2, Interesting)

John Betonschaar (178617) | more than 7 years ago | (#16793058)

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 song from her PC. But hey, its the RIAA, so most likely they will just settle for half the amount of damages and get away with it, with the guarantee that they cannot be sued afterwards for people who already paid their extortion settlements.

Re:RIAA defense... (3, Interesting)

styryx (952942) | more than 7 years ago | (#16793192)

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 downloading of 1000 people plus themselves. Then 1000 people haven't broken the law because the music has been paid for?

Re:RIAA defense... (3, Insightful)

FuzzyDaddy (584528) | more than 7 years ago | (#16793544)

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.

Re:RIAA defense... (1)

styryx (952942) | more than 7 years ago | (#16793830)

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.

Re:RIAA defense... (1)

rsilvergun (571051) | more than 7 years ago | (#16793234)

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 of other terrible things to her besides ruining her financially. So even if this works out we're not out of the woods yet, and aren't likely to ever be.

Re:RIAA defense... (0)

Anonymous Coward | more than 7 years ago | (#16793846)


Hmmm... but once they've finished going after this girl, are they not also going to go after the 1000 people that downloaded the song from her and claim $750 from each of them too? Doesn't that sound like double (or, in this case, 1000-fold) dipping? am I missing something?

If they're only targetting uploaders maybe it's not quite so bad, but even then, what checks are there going to be to ensure that they haven't already received compensation somewhere further up the chain?

Re:RIAA defense... (0)

Anonymous Coward | more than 7 years ago | (#16793980)

so what happens if she is a leechy type that doesn't share any files?

Re:RIAA defense... (0)

Anonymous Coward | more than 7 years ago | (#16793568)

Well, lets consider that but use all the facts. This is P2P, so...

1000 people got PART of the song .70 / 3MB = .23 per MB
P2P probably got 512KB each (assuming not many shares) from her and the rest from others.
So that's 11 cents per person per song.

That comes to a whopping $110 per song. Where is the other $640 coming from? And this comes from an unpopular song with few shares. what about the more popular stuff with 30+ shares? price comes down from there.

Re:RIAA defense... (1)

Maxo-Texas (864189) | more than 7 years ago | (#16793620)

So then on the little private sites where you have 5 people sharing from you, the damages would be $3.50?

Re:RIAA defense... (1)

91degrees (207121) | more than 7 years ago | (#16793940)

It will prboably be more along the lines of the cost fo a licence to distribute is substantially more than $750.

Claiming nested damages may well backfire since the defendant could then demand the RIAA sue whoever she downloaded it from instead.

Seems like a valid arugment to me. (3, Insightful)

Hamster Lover (558288) | more than 7 years ago | (#16793066)

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.

Re:Seems like a valid arugment to me. (4, Funny)

aadvancedGIR (959466) | more than 7 years ago | (#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.

It's about damn time! (2, Insightful)

BCW2 (168187) | more than 7 years ago | (#16793110)

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:It's about damn time! (2, Insightful)

Zelucifer (740431) | more than 7 years ago | (#16793370)

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.

70 cents a song? (1)

emil10001 (985596) | more than 7 years ago | (#16793238)

From TFA:

attesting that popular music sound recording downloads and consumer license to use same are lawfully obtainable to the public at 99 cents per song, and of that 99 cents, roughly 70 cents per song is paid by the retailer to the record label.

I don't understand where this $0.70 comes from. There is the Chinese site [top100.cn] which has legal downloads cheaper than allofmp3.com [allofmp3.com] , and they have the support of the IFPI. So, my question then is why does a $0.70 sale in the US equal a $0.05 sale in China? And, if they offered a legal service like that over here (without the DRM) wouldn't piracy dissapear overnight?

Re:70 cents a song? (3, Insightful)

neozenkai (984151) | more than 7 years ago | (#16793638)

It just shows how incompetent the RIAA is. They're so happy with all the money they're making right now that they fail to see that a system like the one you describe would actually work. An American-based AllOfMP3 that was actually backed by the RIAA, or, at least, the artists themselves, would be quite successful. I don't know about you, but I'd rather pay $2.50 for an album than spend an entire day downloading it from eMule or BitTorrent.

Re:70 cents a song? (1)

iainl (136759) | more than 7 years ago | (#16793882)

That 5 cent sale from China is not an RIAA sale, what with the second A being for America. The RIAA itself (well, its members) have negotiated with Apple to sell tracks for 99 cents, and some of the Microsoft-based vendors for 79 cents. So they themselves are saying they should cost that much to buy in the US.

It establishes a price point (1)

rsilvergun (571051) | more than 7 years ago | (#16793894)

once you get people used to paying at a certain price point, it's hard to raise it w/o adding significant new value. Take .99 cent hamburgers. Prices rose to the point were they weren't profitable, even if you got people to buy frys and soda with them. But it took years for the larger burgers to come off the 99cent menu, and every major Fast Food joint is still obligated to have a value menu to compete. .99cents/track is overcharging now. It probably won't be 10 years from now. Certainly not 20 or 30 years from now.

Shoplifting... (2, Insightful)

Sqweegee (968985) | more than 7 years ago | (#16793288)

Wouldn't just shoplifting the CDs cost less in fines if you were caught?

Frivolous, frivolous, FRIVOLOUS!!!!!! (2, Insightful)

StarWreck (695075) | more than 7 years ago | (#16793296)

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?

Re:Frivolous, frivolous, FRIVOLOUS!!!!!! (1)

ifitzgerald (680941) | more than 7 years ago | (#16793358)

In civil suits there is no prosecution. The term for the party that initiated the suit is "plaintiff."

Re:Frivolous, frivolous, FRIVOLOUS!!!!!! (1)

Vengie (533896) | more than 7 years ago | (#16793472)

quiet you! soon you'll be talking about the distinction between law and equity, citing neri v retail marine, and joining owen fiss in having an apoplectic fit over the RIAA's tactics. pfft. real legal knowledge on slashdot. ;-)

-b

Re:Frivolous, frivolous, FRIVOLOUS!!!!!! (1)

WilliamSChips (793741) | more than 7 years ago | (#16793704)

But that doesn't make it any less like a pot calling a sheet of white paper black.

Re:Frivolous, frivolous, FRIVOLOUS!!!!!! (1)

danpsmith (922127) | more than 7 years ago | (#16793840)

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.

RIAA is too Greedy. (1)

Slagged (985600) | more than 7 years ago | (#16793436)

I think this just shows that the RIAA's policy of running thousands of cases at a time is causing them to be sloppy. I give this tactic about another year. After that, there will be enough case law to make prosecuting these cases unprofitable for RIAA.

It's so simple... (-1, Flamebait)

Anonymous Coward | more than 7 years ago | (#16793494)

Stop downloading music that you aren't paying for, and the RIAA will go away.

Get it through your thick, fucking skulls. Pay for the work of others as they ask, or do without you retards.

$750 sounds right (2, Interesting)

qwertphobia (825473) | more than 7 years ago | (#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.

Re:$750 sounds right (1)

LordEd (840443) | more than 7 years ago | (#16793684)

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?

Re:$750 sounds right (1)

qwertphobia (825473) | more than 7 years ago | (#16793722)

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:$750 sounds right (2, Interesting)

Coleco (41062) | more than 7 years ago | (#16793824)

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.

Re:$750 sounds right (2)

qwertphobia (825473) | more than 7 years ago | (#16793700)

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.

Re:$750 sounds right (1)

gsonic (885510) | more than 7 years ago | (#16793910)

What the crap are you saying... It's: 1*4=4 (1st level) 4*4=16 (2nd level) 16*4=64 (3rd level) 64*4=256 (4th level) how the fuck do you get to 4^4 then ^3 then ^2 then ^1 then ^0

Re:$750 sounds right (1)

Elminst (53259) | more than 7 years ago | (#16793790)

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, repeat.

So if the RIAA wants to prove damages this high, they have to PROVE that the defendant distributed the song over 1000 times. And if (hopefully when) they are asked to do this, then we'll see their cases stop. The only download they can PROVE is the one they made themselves to confirm that the defendant actually had the file!!

You can't prove how many times the song was downloaded, thus the 750 figure is inordinately high. And when the penalty per song falls to the single digit dollar range, their lawsuits become UN-profitable. No profit, no reason to sue.

Re:$750 sounds right (0)

Anonymous Coward | more than 7 years ago | (#16793806)

That sounds like the RIAA is attempting to make money by forcing themself to the top of a pyramid scheme. Multi-Level-Litigation!

Re:$750 sounds right (2, Informative)

Dr_Barnowl (709838) | more than 7 years ago | (#16793814)

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.

Re:$750 sounds right (1)

qigong (688252) | more than 7 years ago | (#16793906)

That argument doesn't hold water for me.

Suppose Joe is sharing a song he downloaded. It gets downloaded four times, as you suggest. One of the people who downloads it is Mary.

Joe gets sued by the RIAA and they compute damages based on their guess on how deep the tree is below Joe.
Mary gets sued by the RIAA and... wait a minute... now the RIAA is double-dipping on the damages for all of the people below Mary!

Ad infinitum... (2, Interesting)

fiendy (931228) | more than 7 years ago | (#16793960)

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 should have to go after the next person who shared the song after you, its their infringement, no longer yours.

Ideally, if you're going to have such ridiculous copyright damages, the onus should be on the plaintiff to prove a specific number of infringements (uploads) multiplied by a reasonable damage claim (which should likely be nowhere near $750).

Re:$750 sounds right (1)

styryx (952942) | more than 7 years ago | (#16794020)

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 indirectly influencing piracy by making the song available, shouldn't ALL the record companies be held the most liable. Obviously they own the copyright, but if they aren't willing to admit that indirectly, by their own argument, they cause piracy completely, surely they could be held as hypocrites.

They key word is indirectly! Surely, the 'pyramid' argument can't be used?
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