Monday, August 18, 2008

Elektra v. Barker is settled

Elektra v. Barker, one of the leading cases repudiating the RIAA's 'making available' theory, has been settled.

Accordingly, Ms. Barker's affirmative defenses will not be adjudicated.

A copy of the stipulation and order of settlement is on file with the Court.

Ms. Barker's answer admitted Ms. Barker's having used Kazaa, but interposed the following 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 times 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.
Stipulation and order of settlement

Commentary & discussion:
Ars Technica
Daily Tech
Digital Music News
Heise Online (German)
Law Vibe: International Law News

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 portable music player


usagemayvary said...

Ray, how do you feel about this? 6 grand seems a bit excessive, plus a waived appeal? How would waiving the appeal go if the whole amount of the fees is found to be unconstitutional?

raybeckerman said...

I rejected a comment because it made unwarranted assumptions, and asserted incorrect statements of law. Sorry. Please review the comment policies for Recording Industry vs. The People.

Unfortunately, does not provide any tools for editing comments; my only choices are to publish or reject.

Your comment that this would not have been an ideal case in which to test the issues raised by the affirmative defenses is, in my view, incorrect; indeed this would have been an ideal case in which to litigate them.

raybeckerman said...

Obviously I would have loved to litigate those affirmative defenses.

Scott said...

Ray, whenever I see a case end like this, I'm always confused as to who won or lost. But considering what Jammie Thomas is going through now, I think the outcome for Tenise Barker is far better than it could have been. The RIAA was in litigation for over two years but got next to no damages for it, and they got bloodied in the process. So congratulations are in order.

Unknown said...

Well, I guess that the RIAA at least spent more on paying their lawyers than they will receive in this settlement. Does that count as a win in the greater good sense?

Anonymous said...

It is hard to call this a victory for either side. The Plaintiffs litigated for approximately 2 years to achieve only double their likely settlement offer.

The Defendant is paying double the likely original settlement offer and has lawyer bills to consider, along with 2 years lost to stress.

I failed to see any stipulation to who is paying who's legal bills, including the common statement on RIAA dismissals of each side to bear their own costs.

While it clearly could have gone worse for the Defendant, it could have also clearly gone much better. Everyone seems beaten and bruised here, but the RIAA prevails because it was never their money at stake here and they avoid an embarassing loss with much wider implications for their entire legal strategy, while clearly extracting monetary penalties from the Defendant.

Win to the RIAA by a contentious split decision, and they got off lucky with a case they could never actually take to trial.

{The Common Man Speaking}

Lior said...

While most of us (especially Ray's other clients) have loved to have the court validate Ms. Barker's affirmative defences (with her footing the bill), we should not surprised be she chose to pay $6K today rather than pay additional legal fees when that would risk a large adverse verdict. She should take of herself first.

To me (an outsider) this is the hard part of legal practice. Anyone can do legal research and write legal documents. On the other hand, not anyone can give good advice in complicated situations. Here the interests of one client might be different than those of other clients, or of the law firm (I'm sure Ray recognizes that he is prominent enough to have a personal stake in the outcome of the whole RIAA litigation campaign), but I'm sure each of Ray's clients gets advice according to what is best for that client.

Adam S. said...

I'm wondering if the defendant is liable for any attorney's fees in addition to the settlement amount?

Igor said...

"any" fees? Including to pay for her defense?

Anonymous said...

The fact that the RIAA settled after spending so much in legal fees should not be overlooked. They thought they had a case (presumably), and now they're walking away with mostly nothing.

Either they made a mistake somewhere in their amended complaint or they are afraid to see these cases unfold.

Other defendants surely will (or have) read about this, so I have no doubt we'll see the same issues defendant raised coming up in other cases, and that will tell us which it was.


Scott said...

Maybe I'm reading too much into this, but it seemed that the litigation stopped shortly after Ray again raised the issue of the constitutionality of the statutory damages.

If higher courts uphold the principle that damages greater than 10x actual damages are unconstitional, it would mean that the RIAA's "settlement support center" operation would be in actual fact an extortion operation in instances where they demanded more than they could have ever recovered in court. Victims of this extortion racket would be a natural class for a class-action lawsuit against the RIAA cartel members.

That would be so sweet. I hope it happens.