Thursday, November 09, 2006

Judge Grants Marie Lindor's Motion to Amend Answer to Add Affirmative Defense of Unconstitutionality of Damages

In UMG v. Lindor, Judge Trager has granted Ms. Lindor's motion to add a defense based on the unconstitutionality of the $750-per-song damages sought by plaintiffs. He rejected the RIAA's arguments that the defense was without merit, that the motion was untimely, that the amendment would prejudice the RIAA, or that Ms. Lindor was required to send a notice to the United States Department of Justice of her defense of unconstitutionality.

Judge Trager ruled:

[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.....Furthermore, Lindor provides a sworn affidavit asserting that plaintiffs' actual damages are 70 cents per recording and that plaintiffs seek statutory damages under the Copyright Act that are 1,071 times the actual damages suffered. Aff. of Morlan Ty Rogers, ("Rogers Aff.", [pars.]5, 6. See also Aff. of Aram Sinnreich, ("Sinnreich Aff."), [par.] 2, 3 (attesting that popular music sound recording downloads and consumer license to use same are lawfully obtainable to the public at 99 cents per song, and of that 99 cents, roughly 70 cents per song is paid by the retailer to the record label). As FRCP Rule 12(b)(6) requires that this figure be taken as true for purposes of the motion, Lindor has alleged a factual basis supporting her affirmative defense."
November 9, 2006, Order Granting Leave to Amend Answer to Include Unconstitutionality Defense*
(Alternate link - 2006 WL 3335048)
Second Amended Answer, Filed November 9, 2006*

Pursuant to an earlier decision of Magistrate Judge Levy, plaintiffs are now required to produce "all relevant documents" to Ms. Lindor's attorney, and then to make a deposition witness available by telephone deposition, on the subject of the plaintiffs' wholesale sales price of downloads.
August 28, 2006, Order of Hon. Robert M. Levy*

Copies of the underlying motion papers upon which Judge Trager's decision was based are listed below:

Notice of Motion to Amend Answer*
Ty Rogers Affidavit*
Aram Sinnreich Affidavit*
Memorandum of Law*
RIAA Memorandum in Opposition*
Reply Memorandum in Support of Defendant's Motion*
Reply Affidavit in Support of Defendant's Motion*

"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]* (One of law review articles referred to by Judge Trager in November 9th decision)

Link to Abstract of Article

Commentary & discussion:

English language:
Ars Technica
The Inquirer
Digital Music Weblog
Beta News
Tech Report
Digital Music News Insider Blogs
"Excess Copyright" by Howard Knopf
Outside the Beltway
p2pnet (article on Howard Knopf discussion)
All Headline News
Elephants or Donkeys
TuneLab Music
Digital Media Thoughts

Other languages:
The Inquirer (German language edition)
Heise Online
Punto Informatico
Yahoo! France Actualites
IT News

* Document published online at Internet Law & Regulation

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


Matt Hendry said...

Wonder why the RIAA doesnt ask someone like Eric Garland to from BigChampagne a media measurement company that specialises in collecting data from appear as an expert witness on thier behalf to show how many songs are shared in reality .

Could it be that the labels use BigChampagne's file sharing data for their own purposes when promoting a given artist or when a album is leaked "accidentally" on p2p networks .

Adam Wasserman said...

Another possibility is that BigChampagne is not anxious to have their "patent-pending systems for observing peer-to-peer ("P2P") file sharing and searching" and subsequent analysis methodology made public and subjected to scientific scrutiny...