The San Antonio, Texas, case of Maverick Recording Co. v. Harper, in which the RIAA is pursuing a young lady who was 16 years of age at the time of the alleged infringement, will proceed to a jury trial on November 17th over the issue of whether she is entitled to the innocent infringement defense, which might reduce the statutory damages from $750 to $200.
The judge has previously ruled that the RIAA must proceed to trial on this issue unless it were willing to accept $200 per infringement, since there are many material factual issues that must be decided by the jury.
This will be only the second known jury trial in the RIAA litigation campaign, and the first to focus on the innocent infringement defense.
The trial is scheduled as follows:
When: Monday, November 17, 2008, 9:30 A.M.
Where: John H. Wood, Jr., Courthouse
Courtroom #3, First Floor
655 East Durango
San Antonio, Texas
The trial is open to the public.
Notice of Trial
Commentary & discussion:
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Keywords: lawyer 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 portable music player
13 comments:
considering that $200 per song is still ridiculously high, compared to the ~$1 per song it should be, and that the RIAA has claimed that they are doing all of this for publicity, not for the payout, one has to question why they wouldn't take $200 per song.
steven
I'm thinking:
1. Hubris
2. Stupidity
3. Incompetence
*sigh*
I can't get excited about this. Reducing $750 per song to $200 is like deciding to only launch enough nukes to kill everyone in the world, rather than using the 10x that much you have stockpiled.
I disagree with you Justin.
This case says to those defendants who DID do the filesharing that they have a very winnable partial defense which will keep their damages exposure out of the stratosphere.
This is MAJOR.
The door remains open for jury nullification...
It certainly gives you incentive to counter the "we could settle out of court" letters you get. I agree, if she wins, it's major. Another thing, the RIAA cannot weasel out of this one. They have to go all the way to court. My understanding from the judges wording, they've already been told they cannot dismiss without prejudice in this case. The judge wants to see the legal arguments made before a jury. So, at best they can dismiss with prejudice, which opens them up to court/lawyer fees.
This case feels really important.
Probably not as important as the Lindor case, or the actual lawsuits against the RIAA for illegal practices, but definitely big.
Suing children again, now that's always good for headlines - which has long been the RIAA's goal in all this.
I, too, feel that $200 is too high since it's easily 300X any actual damages. And I'd expect the RIAA to go for the entire share directory, and not limit it just to songs they allegedly downloaded, verified, and that belong to current Plaintiffs in this case. This may have dragged them down from the insane willful damages they threatened everyone with, and the equally insane jury verdict against Jamie Thomas of ~$10,000.00/song, however, its still far beyond any believable loss to these Plaintiffs.
But what do I know anyway?
XxX
The courtroom is always a place of uncertainty and you never know the outcome when you step into it. This man feels that the RIAA is the one facing the largest risk here by far, and has the most to lose. While a finding of "innocent infringement" would reverberate across all these cases, the opposite would likely be of very limited effect. As a result, this man expects the RIAA to do the most to avoid this trial. Time will tell as the correctness of this analysis.
{The Common Man Speaking}
I often wonder if the 10X of actual damages argument can still be raised here. As has been pointed out, $200 is still 200X or more damages, which is totally out of line. I think no more than $10 per song, which is close to the wholesale cost of the CD is enough.
Of course, this is how I think they should do it if the $200 is upheld:
Number of songs proven to be downloaded by defendant by anyone OTHER than the Plaintiff's agent.
Multiplied by $200 EQUALS ZERO.
Until they can actually show damage, which means proving actual downloads from people that do not own the music, they should not be able to collect. Of course it is nearly impossible for the Plaintiffs to do so, so that kinda would end their campaign......
Of course Jury Nullification is possible too. I was once on a jury of a person accused of having ONE capsule of speed. Since the pill was in a pharmacy bottle, we agreed it very likely was lawful and voted to let the guy go. We talked to the States Attorney afterward and asked why taxpayers money was wasted on this trial. He told us they did not have enough evidence to charge him with anything else. We suggested that maybe he should spare the taxpayers next time.
Also, even if the Jury decides they should award some damages, whats to keep them from writing down say $1 on the verdict form?
Albert
Accepting $200 per song, regardless of how that option is still excessive, would be admitting to the rest of the world that the original figures of at least $750 per son were completely ridiculous, that the industry isn't losing that much money which needs to be recovered, that settlement letters should in fact demand for less money, et cetera. If $200 per song becomes the new norm, it's going to be another big blow to the RIAA's already beyond sorry credibility. And if that happens, they won't be able to deny that it ever happened, because it'll be standard procedure in court. It'll nullify all the cases where they're trying to demand for more money. Bit by bit, they'll be cornered like rats.
I couldn't find an original filing for this case... do we have any idea how many songs the RIAA alleges were copied? (Laying aside that they don't allege any actual justiciable claims on those songs.)
The Jammie Thomas jury came up with damages based on a range, not based on common sense. Common sense is to award the lowest possible amount since the damages are still hundreds of times the cost of the song.
The jury sat around and put her infringement on a scale, where $750 is the "least bad" infringement and $150k is the "worst" infringement. And that is how they came up with around $10k for a song. It was closer to the low end.
I think that the girl has a good chance here with the innocent infringement if the jury takes her age into account.
But even at $200 per song x 20 songs, that is still $4000 in damages. And you still have to pay your legal fees and legal fees for the Plaintiff.
With settlement offers around $3500, and none of the risks of a trial, the RIAA still has the upper hand here.
Albert, The Jury can't write $1 on the verdict form because the instructions are very specific in that regard.
Not Telling,
I guess the forms must require the Jury to specify the exact number of songs, and to multiply that by $200, or $750, or some other larger number not larger than $150.000.
Guess then if I were on a Jury, and I saw the damages to truely be a very small fraction of that, for example if it were 50 songs, and Itunes sells them for $1.00 each, I would see the "Real" total damage to be $50, which is a small fraction of $200, we would have to make a choice within the instructions, which would be:
1) Only find 1 song, leaving damages at $200.
or
2) Find any amount unfair and say zero songs, and award nothing.
If the trial is in fact conducted with proper Jury instructions, I would not have any guilt in finding zero songs, as it is very likely that NO proof of any downloads by anyone other than the agents of the Copyright Holders has taken place, thus the true evidence says ZERO is the number.
After what happened the last time, I doubt a "making available" instruction will be given. Instead a true "Copies or Phonorecords" instruction will be given instead, which the Plaintiffs will not be able to prove.
Albert
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