Friday, November 17, 2006

Law Review Article on Constitutionality of RIAA's $750-per-song Damage Theory Now Available Online

We are pleased to report that one of the law review articles referred to by Judge Trager in his decision in UMG v. Lindor, regarding the constitutionality of the RIAA's $750-per-song damages theory, is now available online.

For a direct link to the article:

"Grossly Excessive Penalties in the Battle Against Illegal File-Sharing: The Troubling Effects of Aggregating Minimum Statutory Damages for Copyright Infringement" By J. Cam Barker, 83 Texas L. Rev. 525 (2004)[Copyright Texas Law Review Association 2004][Reprinted with permission]

For a link to (a) an abstract of the article, and (b) additional servers hosting the full article for personal download (at bottom of abstract page):

http://ssrn.com/abstract=660601

Commentary and discussion:

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Keywords: digital copyright online 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

3 comments:

ankh said...

This is just one popular instance of a line of argument that is useful for the tobacco industry (damages per pack of cigarettes?) and the pharmaceutical industry (damages per number of pills taken?) and the automotive industry (damages per number of faulty vehicles?) -- in other words, this is an argument being refined to use to remove the risk of huge punitive damages to any industry and to reduce the effect of class action by large groups of people each of whom sustained small damages.

Always back off and think, now, which part of the larger business world is going to benefit from this line of argument?

Anonymous said...

I fail to see why it would be bad for the general public if the tobacco industry had to pay damages per pack of cigarettes, considering that the most obvious damage to the consumer is the cost of the addictive cigarettes themselves. If the tobacco industry had to pay total damages equal to its total income from sales, it would obviously have to shut down on the spot.

Your other two examples are quite different since the products involved (pharmaceuticals, automobiles) are, in general, not addictive.

In any case, my personal opinion is that punitive class-action damages should be awarded against industry only when it can be shown that the damage to the public was connected with malfeasance. If a drug company does all the necessary testing and a drug still gets through which severely damages 0.01% of the people who took it, the affected consumers should receive recompense, not society. On the other hand, if the company knew that there was something wrong with the drug and still released it, punitive damages are in order.

The parallel position with respect to RIAA is that if RIAA can show that the defendent knowingly published their files then punitive damages would be justified. The problem with this for RIAA is that it is not at all easy to show that your average computer user understood the consequences of using the P2P program.

Ray Beckerman said...

ankh said..."This is just one popular instance of a line of argument that is useful for the tobacco industry (damages per pack of cigarettes?) and the pharmaceutical industry (damages per number of pills taken?) and the automotive industry (damages per number of faulty vehicles?) --"

ankh, apparently you're not aware that it has already been held by the US Supreme Court that jury punitive damage awards are presumptively unconstitutional if they exceed 9 times the actual damage. What Mr. Barker is arguing for is the application of a rule which has already been very helpful to the big guys, to helping the little guy. Does that offend you?