Recording Industry vs The People: Constitutionality of $750-per-song title damages claim challenged in UMG v. Lindor

Tuesday, May 02, 2006

Constitutionality of $750-per-song title damages claim challenged in UMG v. Lindor

The constitutionality of the RIAA's claim of entitlement to $750-per-song title damages, for songs on which it normally receives approximately 70 cents per-song-title in fees, has been challenged by the defendant in UMG v. Lindor.

Marie Lindor's Request for Pre-Motion Conference*
RIAA Response*

* Published online at Internet law & Regulation

Keywords: copyright download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

2 comments:

recordjackethistorian said...: Of course its meant to be punitive. But I believe that they base the $750.00 per track on an initial offer made to the defendant of $7.50 per track.

This number is what I am guessing that the whole album is worth wholsale in US dollars. In Canadian dollars, it would be somewhere between $6.00 and $12.00 to the retailer before any free goods, contra and advertising special discounts. (those numbers are guess-tamates at best)

They will also base it on the belief that it is new catalogue, for which there would be production costs. For something like a Bessy Smith track, where there would be no production costs or very few, their number becomes even more outrageous.

Wait! There's more! Didn't I jsut see mention that the Allman Bros. and others were suing the RIAA for back royalties on downloaded music? The Distribution companies charge *the artists* a percentage fee for packaging, shipping and another one for breakage.

As well they are claiming that the deals with Apple iTunes and others amount to distribution deals which is not part of the artists contract with the recording and distrubution companies. If the deal with online music sellers is indeed a distrubution deal, then another part of their contract kicks in and the amount in royalties goes up drastically.

So you see the consumer isn't the only one being ripped off. The artists get it to ... and are striking back.

Something else just struck me. The RIAA should be asked to show the true cost of those songs, not just the royalties they are conractualy obligated to show. That would indeed be forcing the industry to reveal things is would rather not have exposed.

Surely if you are being sued for the value of some merchandise you are entitled to know its true value!

Slowly, layer by layer more and more of the deciet and duplicity is being pealed away. The general public and the artists are not so gullable after all!

So the true *cost* of a song isn't what it looks like. Not by a long shot!

Wow! thats a lot of information. If some of this doesn't make sense, ask me, and I will try to explain the inexplicable. You can actualy eventually get the gist of it and figure out what's going on. It leaves a bad taste in your mouth.

As always, you realise this is just my opinion on the whole business, others may differ with me on some points. I have also not actually seen any of the contracts in question.

Cheers,
David; May 2, 2006 at 9:30:00 PM EDT
StephenH said...: I think the RIAA's position for the potential of millions of copies is unrealistic. First of all, the UPLOAD bandwidth of a cable modem is only between 256K and 768K bits/sec usually. To upload a song it would take 96 seconds at at a full 384K uplink for a 4 1/2 Megabyte song. The average time to download a song under non-ideal conditions is more than that, and if a user had a 28.8 modem it would be a lot more than that. Usually when I download from P2P, the average time per song is about 3-5 minutes per download.

There are 31,536,000 seconds in a year. At the very best case, if a song was downloading every second, and a song could be downloaded or uploaded in 96 seconds, it woulde be at max 328,500 uploads. At the average rate, of 4 minutes per song, it would be at max 131,400 songs. This is assuming her P2P client is connected and downloading or uploading songs at every second of the year! It is very unlikely that this case would ever happen because usually people turn off their computers at night, and don't leave their P2P client running all the time, and not everyone is interested in every song at every moment, much less uploading it!

In reality, it is likely that each tune was only uploaded a few times, if it all by Marie Lindor. After all, most decentralized search broadcasts do not go over the entire network, but timeout after a while. Additionally, with computers turned on and off, the P2P network changes constanly. This means that someone may try to download the same song, but it comes from different computers, and not all got it from the same place.; May 3, 2006 at 2:03:00 AM EDT

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JUDICIAL QUOTATIONS

"[T]he Court is concerned about the lack of facts establishing that Defendant was using that IP address at that particular time. Indeed, the [complaint] does not explain what link, if any, there is between Defendant and the IP address. It is possible that Plaintiff sued Defendant because he is the subscriber to IP address .... As recognized by many courts, just because an IP address is registered to an individual does not mean that he or she is guilty of infringement when that IP address is used to commit infringing activity." -Hon. Barry Ted Moskowitz, Chief Judge, S.D. California. January 29, 2013, AF Holdings v. Rogers
"The complaints assert that the defendants – identified only by IP address – were the individuals who downloaded the subject “work” and participated in the BitTorrent swarm. However, the assumption that the person who pays for Internet access at a given location is the same individual who allegedly downloaded a single sexually explicit film is tenuous, and one that has grown more so over time." - Hon. Gary R. Brown, Magistrate Judge, E.D.N.Y. May 1, 2012, K-Beech v. Does 1-37
"The concern of this Court is that in these lawsuits, potentially meritorious legal and factual defenses are not being litigated, and instead, the federal judiciary is being used as a hammer by a small group of plaintiffs to pound settlements out of unrepresented defendants."
-Hon. S. James Otero, Dist. Judge, Central Dist. California, March 2, 2007, Elektra v. O'Brien, 2007 ILRWeb (P&F) 1555
"The University has adequately demonstrated that it is not able to identify the alleged infringers with a reasonable degree of technical certainty...[C]ompliance with the subpoena as to the IP addresses represented by these Defendants would expose innocent parties to intrusive discovery....[T]he Court declines to authorize discovery and quashes the subpoena as to Does # 8, 9, and 14" -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, November 24, 2008, London-Sire Records v. Does 1-4
"[C]ounsel representing the record companies have an ethical obligation to fully understand that they are fighting people without lawyers... that the formalities of this are basically bankrupting people, and it's terribly critical that you stop it...." -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, June 17, 2008, London-Sire v. Does 1-4
"Rule 11(b)(3) requires that a representation in a pleading have evidentiary support and one wonders if the Plaintiffs are intentionally flouting that requirement in order to make their discovery efforts more convenient or to avoid paying the proper filing fees. In my view, the Court would be well within its power to direct the Plaintiffs to show cause why they have not violated Rule 11(b) with their allegations respecting joinder. [I]t is difficult to ignore the kind of gamesmanship that is going on here.....These plaintiffs have devised a clever scheme... to obtain court-authorized discovery prior to the service of complaints, but it troubles me that they do so with impunity and at the expense of the requirements of Rule 11(b)(3) because they have no good faith evidentiary basis to believe the cases should be joined." -Hon. Margaret J. Kravchuk, Magistrate Judge, District of Maine, January 25, 2008, Arista v. Does 1-27, 2008 WL 222283, modified Oct. 29, 2008
"[N]either the parties' submissions nor the Court's own research has revealed any case holding the mere owner of an internet account contributorily or vicariously liable for the infringing activities of third persons.....In addition to the weakness of the secondary copyright infringement claims against Ms. Foster, there is a question of the plaintiffs' motivations in pursuing them..... [T]here is an appearance that the plaintiffs initiated the secondary infringement claims to press Ms. Foster into settlement after they had ceased to believe she was a direct or "primary" infringer." -Hon. Lee R. West, District Judge, Western District of Oklahoma, February 6, 2007, Capitol v. Foster, 2007 WL 1028532
"[A]n overwhelming majority of cases brought by recording companies against individuals are resolved without so much as an appearance by the defendant, usually through default judgment or stipulated dismissal.....The Defendant Does cannot question the propriety of joinder if they do not set foot in the courthouse." -Hon. S. James Otero, Central District of California, August 29, 2007, SONY BMG v. Does 1-5, 2007 ILRWeb (P&F) 2535
"Plaintiffs are ordered to file any future cases of this nature against one defendant at a time, and may not join defendants for their convenience."
-Hon. Sam Sparks and Hon. Lee Yeakel, District Judges, Western District of Texas, November 17, 2004, Fonovisa v. Does 1-41, 2004 ILRWeb (P&F) 3053
"The Court is unaware of any other authority that authorizes the ex parte subpoena requested by plaintiffs."
-Hon. Walter D. Kelley, Jr., District Judge, Eastern District of Virginia, July 12, 2007, Interscope v. Does 1-7, 494 F. Supp. 2d 388, vacated on reconsideration 6/20/08
"Plaintiffs contend that unless the Court allows ex parte immediate discovery, they will be irreparably harmed. While the Court does not dispute that infringement of a copyright results in harm, it requires a Coleridgian "suspension of disbelief" to accept that the harm is irreparable, especially when monetary damages can cure any alleged violation. On the other hand, the harm related to disclosure of confidential information in a student or faculty member's Internet files can be equally harmful.....Moreover, ex parte proceedings should be the exception, not the rule."
-Hon. Lorenzo F. Garcia, Magistrate Judge, District of New Mexico, May 24, 2007, Capitol v. Does 1-16, 2007 WL 1893603
"'Statutory damages must still bear some relation to actual damages." Hon. Michael J. Davis, Dist. Judge, U.S.District Court, Dist. Minnesota, January 22, 2010, Capitol Records v. Thomas-Rasset
"[T]his court finds that defendants' use of the same ISP and P2P networks to allegedly commit copyright infringement is, without more, insufficient for permissive joinder under Rule 20. This court will sever not only the moving defendants from this action, but all other Doe defendants except Doe 2."
-Hon. W. Earl Britt, District Judge, Eastern District of North Carolina, February 27, 2008, LaFace v. Does 1-38, 2008 WL 544992
"[L]arge awards of statutory damages can raise due process concerns. Extending the reasoning of Gore and its progeny, a number of courts have recognized that an award of statutory damages may violate due process if the amount of the award is "out of all reasonable proportion" to the actual harm caused by a defendant's conduct.[T]hese cases are doubtlessly correct to note that a punitive and grossly excessive statutory damages award violates the Due Process Clause....."Hon. Marilyn Hall Patel, Dist. Judge, N.D. California, June 1, 2005, In re Napster, 2005 US DIST Lexis 11498, 2005 WL 1287611
"[P]laintiffs can cite to no case foreclosing the applicability of the due process clause to the aggregation of minimum statutory damages proscribed under the Copyright Act. On the other hand, Lindor cites to case law and to law review articles suggesting that, in a proper case, a court may extend its current due process jurisprudence prohibiting grossly excessive punitive jury awards to prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered....."-Hon. David G. Trager, Senior District Judge, Eastern Dist. New York, November 9, 2006, UMG v. Lindor, 2006 U.S. Dist. LEXIS 83486, 2006 WL 3335048
"'[S]tatutory damages should bear some relation to actual damages suffered'....(citations omitted) and 'cannot be divorced entirely from economic reality'". -Hon. Shira A. Scheindlin, Dist. Judge, Southern Dist. New York, August 19, 2008, Yurman v. Castaneda
"The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer to peer network cases.... The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts..... [T]he damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs." -Hon. Michael J. Davis, District Judge, Dist. Minnesota, September 24, 2008, Capitol v. Thomas
"If there is an asymmetry in copyright, it is one that actually favors defendants. The successful assertion of a copyright confirms the plaintiff's possession of an exclusive, and sometimes very valuable, right, and thus gives it an incentive to spend heavily on litigation. In contrast, a successful defense against a copyright claim, when it throws the copyrighted work into the public domain, benefits all users of the public domain, not just the defendant; he obtains no exclusive right and so his incentive to spend on defense is reduced and he may be forced into an unfavorable settlement." US Court of Appeals, 7th Cir., July 9, 2008, Eagle Services Corp. v. H20 Industrial Services, Inc., 532 F.3d 620
"Customers who download music and movies for free would not necessarily spend money to acquire the same product.....RIAA’s request problematically assumes that every illegal download resulted in a lost sale."
-Hon. James P. Jones, Dist. Judge, Western Dist. Virginia, November 7, 2008, USA v. Dove