Wednesday, January 09, 2008

Petition for Certiorari filed in Zomba v. Panorama (6th Cir. Karaoke case) involving statutory damages 44 times actual damages

In Zomba v. Panorama, a 6th Circuit karaoke copyright infringement case which was cited in the papers in Capitol v. Thomas, on the issue of unconstitutionally excessive statutory damages, a petition for certiorari has been filed with the United States Supreme Court.

The petition maintains that a statutory damages award which is 44 times the actual damages is unconstitutional.

At page 32 of the brief the petitioner describes the flood of 'statutory damages' litigation that has descended upon the federal judicial system:


C. Copyright holders are flooding the courts with statutory damage cases.


This case illustrates an alarming trend – large disproportionate civil statutory damage awards in copyright cases. Professional copyright trade organizations and lobbying organizations like the RIAA (Recording Industry Association of America),
NMPA (National Music Publishers Association ), and MPAA (Motion Picture Association of America), along with foreign or multinational trade organizations, like the International Federation of the Phonographic Industry (IFPI) , and the World Intellectual Property Organization (WIPO), have engineered increases in
statutory damage limits all over the world, including 17 U.S.C. §504, and have at the same time, mounted well financed and highly publicized campaigns against
both professional and consumer infringers.

One example of this was the well publicized case of UMG Recordings, Inc. v. MP3.com, Inc., 92 F. Supp. 2d 349, 351 (S.D.N.Y. 2000), in which the RIAA, on behalf of the five major recording labels, brought suit against website MP3.com and sought in excess of $250,000,000 in statutory damages. In granting partial summary judgment in favor of the RIAA, the judge observed that internet companies “may have a misconception that, because their technology is somewhat novel, they are somehow immune from the ordinary applications of laws of the United States, including copyright law,” but that “[t]hey need to understand that the law’s domain knows no such limits.” UMG Recordings, Inc. v. MP3.com, Inc., 92 F. Supp. 2d 349, 351 (S.D.N.Y. 2000). See also http://archives.cnn.com/2000/LAW/09/06/mp3.lawsuit.01/.

Another example was the well publicized campaign of RIAA-sponsored copyright litigation against thousands of individual music downloaders, which recently spawned a statutory damage award of $220,000 for downloading 24 songs that had a retail
value of less than $24. Capital Records v. Thomas, supra. See also http://recordingindustryvsthepople.blogsot.com, a website that tracks RIAA instituted
litigation. Of note is the admission made by the RIAA in Capitol Records v. Thomas that most of the proceeds of these litigations are earmarked to file more litigations by the RIAA on behalf of its members.
The defendant is represented by Lawrence E. Feldman, located in Elkins Park, Pennsylvania.

Petition for Certiorari
Alternate link*

* Document published online at Internet Law & Regulation

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






3 comments:

Anonymous said...

Another example was the well publicized campaign of RIAA-sponsored copyright litigation against thousands of individual music downloaders, which recently spawned a statutory damage award of $220,000 for downloading 24 songs that had a retail value of less than $24.

As much as I want to see the RIAA slammed over this, and hope that by implication that if the SCOTUS decides in the instant case that 44X damages are unconstitutional that this will carry-over to Jamie Thomas, I must point out the error here.

Jamie Thomas was not found guilty and fined $220,000.00 for downloading 24 copyrighted songs. Neither was she found guilty and fined $220,000.00 for actually distributing any of those 24 songs. Jamie Thomas was found guilty and fined $220,000.00 for having those 24 songs on her hard drive and simply visible to some other investigator on the Internet, who may well have used methods of discovery and intrusion far outside what any normal file trader would use.

Of course, the real error is from the downloading itself. The shoplifting penalties for having stolen those songs on CD's from any music store would have been far lower, meaning that the RIAA's true message is:

Steal physical CD's from record stores, because it will cost you so much less when you're caught!

Also take note from this week's news that that some states are now considering licensing requirements for computer forensic experts. How that might impact RIAA hard drive investigations is an interesting question to ponder.

Additionally, I wonder what the impact of Doug Jacobson's investigations would be if he found drafts of blog comments for this blog on a hard drive he investigated for the RIAA. Would this be "proof" of criminal intent that he would testify to at trial?

Have a nice day!

XK-E

Friendly Slashdotter said...

What do you make of their odds of having cert. granted, Ray? I'm certainly very glad that they'll at least try to appeal to the Supreme Court, I just don't think they're very sympathetic to correcting copyright abuses.

That said, it's been a very long time since I took that one class on them, and all I really remember is that it's hard to get them to grant cert. It's too bad I'm not still in college; my professor was one of those who argued Ring v. Arizona and he wrote a book on predicting how the Supreme Court was likely to rule on any given case.

Anonymous said...

It's a decent petition. There is the trouble of Williams, which the petition gets around by saying the fine there was de minimus. That's a step in the right direction, but it's important to continue along that path and note the role of aggregation of damages, as in Parker. Also, unfortunate that there are typos (e.g., "judgment"). Is anyone consulting with law professors on these petitions before filing?