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

5 comments:

Wondering said...

Is the RIAA actually claiming in their response that Lindor distributed millions of copies? Love to see the reasoning (and proof) behind that claim.

David Fedoruk 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

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.

rufus said...

According to the attorney representing the Allman Brothers in the suit against Sony, out of the 99 cents per download at ITunes, the artist receives a paltry 4.5 cents while Sony gets 70 cents. The lawyers claim there are no costs for distribution, packaging, nor breakage costs as is associated with CD sales but the record industry is paying out the same royalties like it is. I agree with David that the recording industry should show the actual costs for providing downloadable music. If truth be told, I bet it is very miniscule considering the low royalty. I think this factor should be considered by judges and throw out the $750 per song claim. It is becoming clearer by the day who the actual pirates really are.

rufus said...

Correction: Out of the 70 cents Sony gets per download at ITunes, they give the artist 4.5 cents and keep 65.5 cents. The article can be read at afterdawn.com.