Monday, July 28, 2008

Tenise Barker files answer to amended complaint in Elektra v. Barker

Tenise Barker has filed her answer to the amended complaint in Elektra v. Barker.

In her answer she admits that she was using Kazaa, denies some of the allegations of the amended complaint, and interposes the following affirmative defenses:

1. Plaintiffs' damages theory, which argues for statutory damages of from 2,142 to 428,571 times the actual damages, would lead to an unconstitutional result (Parker v. Time Warner Entertainment Co.,331 F.3d 13 (2d Cir. 2003); UMG Recordings, Inc. v. Lindor, 2006 WL 3335048 (E.D.N.Y. 2006); In re Napster Inc., 2005 WL 1287611 (N.D. California 2005)), so that the complaint should be construed as alleging that the use of an "online media distribution system" to infringe plaintiffs' copyrights constituted a single act of infringement, warranting a total recovery of $750 if defendant is liable.

2. In the alternative, the statute should be considered unconstitutional to the extent it could be construed as authorizing more than ten time the actual damages, and recovery should be limited to $3.50 per recording as against a single noncommercial user for a single upload or download of an MP3 file for personal use.

3. Unclean hands based upon plaintiffs' procurement of an unlicensed investigator, and commission of a Class B Misdemeanor under N.Y. General Business Law § 70, as well as unlawful pretexting and invasion of defendant's privacy.

4. Since the amended complaint makes no mention of any enumerated acts of infringement, but instead seeks recovery for a series of acts (the operation of an “online media distribution system” to infringe plaintiffs' copyrights), plaintiffs cannot recover statutory damages, costs, or attorneys fees for any sound recording copyrights registered with the U.S. Copyright Office subsequent to the date on which defendant first began using Kazaa, under 17 U.S.C. § 412. (See, e.g., Homkow v. Musika Records, Inc., 2008 U.S. Dist. LEXIS 14079 (S.D.N.Y. February 26, 2008); Irwin v. ZDF Enters. GmbH, 2006 U.S. Dist. LEXIS 6156 (S.D.N.Y. 2006); Shady Records, Inc. v. Source Enters., 2004 U.S. Dist. LEXIS 26143 (S.D.N.Y. 2004)).

5. Innocent infringement : defendant was not aware of any copyright infringement, and upon information and belief some or all of the copies which she downloaded did not bear copyright notice.
Answer to Amended Complaint
Notice of Constitutional Question

Commentary & discussion:

Daily Nonsense
Adunanza (Italian)

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


Scott said...

Wow, Ray.

IANAL, but let's see if I'm reading this right:

If the court agrees that the allowable statutory damages are limited to $750 or so, the precedent would give courts a clearer formula for determining actual damages.

What's more, the formula would establish that all of the $3,000+ settlements exacted by the RIAA's "settlement support center" were, by default, extortionate.

Would such a precedent empower the many thousands of people who overpaid (based on the RIAA's misrepresentations about the law) to go back to court to recover their overpayments?

raybeckerman said...

I rejected a post which asked a question about RIAA attorneys fee recoveries. I am not aware of any RIAA attorneys fee recoveries.

Alter_Fritz said...

Procedural Question regarding (an anticipated) Summary Judgement ("SJ") Motion:

Since defendant admitted that "on or before November 12, 2004, [she] downloaded some of the Copyrighted Recordings to her computer", I guess it is likely that Plaintiffs will move for SJ.
I further guess that it is no big question that SJ will be granted in so far that she has violated Copyrightlaw in general given her admittance.

Does however the playing of the unconstitutionality card with the defense that:
"Plaintiffs' damages theory, that it is entitled to statutory damages of from $750 to $150,000 per song file downloaded would lead to an unconstitutional construction of 17 U.S.C. § 504, which would lead to a result plainly violative of due process, since the damages awarded under any such theory would range from 2,142 times the actual damages to 428,571 times the actual damages sustained." actively prevent that the judge can grant SJ with respect to the statutory damages that plaintiffs want?

If that is the case, I must say you are a smart fox Ray:
Would plaintiffs fight that one, they risk losing their whole business modell. (+)
Instead negotiating a confidential arrangement that should clearly be "better" for her compared to the "student offers" (lets say $25 all inclusive per song times 8) with a defendant who admitted publicly on court records that she actually did the beforementioned things "without the express permission or consent of plaintiffs" seems to be the smart thing to do now.
But the rhetorical question remains: Are plaintiffs smart enough?

Regarding my allegation that these "pay per credit card, no courts, no questions asked"- littigation settlement offers are more and more like a genuine business modell for plaintiffs and/or their counsel:
Defendant here already mentioned that; "other copies of plaintiffs' sound recordings, but not those in issue, may have borne copyright notices, and denies that defendant is chargeable with copyright notices on copies which are not the copies which she has seen or copied, contrary to the holding of the U.S. Court of Appeals for the Seventh Circuit in BMG Music v. Gonzalez, 430 F.3d 888 (7 Cir. 2005)".
Let me tell you an embaressing secret:
I have a friend (f) (not the smartest one though since she still thinks evil 4 crap is worth to be listen too) that uses p2p without the express permission or consent of some rightsholders.
She does not speak english very well and has no idea/interest about the law, that under US law the coyprightnotice is a "must have"-prerequisite.
So I asked her if she can show me some metadata fields of evil 4 songs from over the last few years she downloaded via different p2p systems.
Strangely in the older records there were never ever a value in a id3 tag field for copyright or anything similar.
So it seems -at least to me from a cursory view of some metadata- clear, that "genuine pirates" did not bother to mention the copyrightowner in the files metadata in the first place.

Interestingly though could my friend show me that the more recend "shit songs" she still had on her HDD that were produced by "well-known and respected record companies" did indeed bear a mentioning as to who is the copyrightowner of the original source soundrecording.
I guess that allows for the question:
Did those pirates suddenly began feeling sorry for Evil4 and that's why they wasted some extra bytes by adding copyrightnotices in every song they "stole"?
OR isn't it more likely that such change in the appearance of the files -with something that seems to be a prerequisite for the evil4 lawyers to run their alleged business of "$3000, no court, no questions asked, our card payment processing internet site stays by to take your input"- points more to a scenario that indeed the plaintiffs themself do instruct companies like MediaSentry or specially MediaDefender (1) to flood those "unauthorised online media distribution systems" with plaintiffs songfiles themself? i.e. those songs are at least actually authorised copies explicitly put up by plaintiffs for non commercial private download if we don't want to accuse plaintiffs of even more sinister things they had in mind when they instructed to flood the different "online media distribution systems" with those copyrightnotice bearing genuine working files!

Given that pirates are generally known to be lazy guys, the second alternative seems more reasonable I say!

MediaDefender goes forward with p2p marketing


Alter_Fritz said...

what i derive from your question is that you read the denfendants answer wrong.
Defendant Barker argues that even the $750 are unconstitutional given that the actual damages are only less then $1 if not even less then $0.50 given what plaintiffs must deduce themself from the retail price of $0.99 per authorised legal download.

beside that, the courts do not determine actual damages in the first palce. So far plaintiffs have ALWAYS asked for statutory damages instead of actual damages. [ they will know why... ;-) ] So no formula we can get out of this here.

IANAL, but I guess what ever may come out of this tiny battle will not empower anyone like you mentioned in your 3rd paragraph since in the least RIAA did not misrepresented the law in so far that it covers the statutory damages. In the moment the law does indeed clearly say $750 to IIRC $30000 with the possilbility for a judge to go based on circumstances as low as $200 or as high as $150000 per infringement. So at least on that terrain does RIAA lawyers tell the law as it is sadly written indeed.

Anonymous said...

Shouldn't that read Denise? That's the way it reads on the court documents.

Anonymous said...

I'm glad to see newer defenses being leveraged against the RIAA here. I particularly like the argument where: Statutory damages are so extreme here, Plantiff must mean the act of using Kazaa (singular), rather than distribution of single files (multiple), as latter would be unconstitutional. Seems to slide right in there as a "peace offering" for the judge to bite on.

I'm really hoping the unclean hands gets ruled on. That'd make a lot of defendants happy, unless they live in one of the few states where there is no licensing of private detectives.


Anonymous said...

I would have expected defense #3 (unclean hands) to be the easiest to show. MediaSentry seems to be obviously in violation of New York's laws on private investigators. So why is it defense #3?

scott: Assume the judge finds the damages unconstitutional. It's not like the RIAA expected or knew this would happen when it made settlement offers. So, this doesn't give us any reason for settlers to get refunds. (There could be other reasons.)

raybeckerman said...

Her name is Tenise. The RIAA even got that wrong.

I am not aware of ANY state where private investigators are not required to be licensed. New York is certainly not one of them.

Anonymous said...

I am not aware of ANY state where private investigators are not required to be licensed. New York is certainly not one of them.

Ray: according to, there are a few states: Alabama, Alaska, Colorado, Idaho, Mississippi, Missouri, South Dakota, and Wyoming, that don't (apparently) have PI laws. Of course, there's also local city/county laws, so MS/SN is not off the hook in those states everywhere.

Still doesn't change their behavior in NY, AZ, and MA.


Alter_Fritz said...

Well Q,

look at the list you posted!
Do you wonder why they have allegedly no regulation regarding PI's?!

Alaska has this "series of tubes"-guy that is in trouble with FBI now, Colorado has RIAA's national lead counsel and the oterh states you mentioned have probably their skeleton in a closet somehow too.

I guess no wonder they don't regulate such businesses. :-(