Friday, January 29, 2010

Reported that RIAA will ask for a 3rd trial in Capitol Records v Thomas

According to news reports, the RIAA has announced that it will elect not to accept a judgment for $54,000, but to instead go for a new trial, limited to the issue of the appropriate amount of statutory damages.

I checked the court's docket on PACER and found no confirmation of this.

[Ed. note. In my opinion, the Court erred in (a) failing to decide the constitutional question, and decide that even the minimum statutory damages of $750 would be unconstitutionally excessive under the due process clause as against actual damages of 35 cents, and (b) permitting a new trial at all. Even if the Court could find a permissible rationale for declining to decide the constitutional question, which it can't, there is still no way under existing copyright law any award of more than $750 could be legally sustainable. So even under that scenario the judge should be directing judgment for $18,000, not setting himself up for another circus. -R.B.]

Commentary & discussion:


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

17 comments: said...

Since this is all over the net with people who dont really ahve a clue about copyright law but still act as experts I thought I'll ask here to get some proper answers as I've confused myself by the different comments:

1. "The judge ordered the plaintiffs to either accept the remittur or schedule a trial to determine damages. Meaning, the plaintiffs actually have to prove how and why the damages they're asking for are justified."


2. "Citing Eight Circuit precedent, the judge decided that this wasn't good enough and that only actual proof of a file transfer could be counted."
Actual transfer would mean only those 24 songs to the riaa sham artists...oops, my bad, "investigators" right?
so that would be 24 x 1?

3. "The first that springs to mind is what the heck was the judge who changed the verdict thinking? Can they really do that? Take a 'final' verdict and change it just because? I find this pretty alarming. If the third trial somehow ends up in the $200 region and some judge again decides that this is too low, can he change the verdict to be $2 million or so?"

4."I think the next trial is going to be on the AMOUNT of the award, and that's it. From what I've read, the case is "done" at this point, but it's just a matter of the amount needing to be paid... hence another court date."
Is this 3rd trial ONLY for the amount or as well as something else?

Thanks in advance!

Anonymous said...

And speaking of, if actual proof of a file transfer was wanted, why wasn't there a directed verdict: plaintiff did NOT prove a file transfer in either trial; their evidence did not satisfy the standard set forth in Twombly.

Quiet Lurker

raybeckerman said...

1. Yes the RIAA has to prove that the statutory damages it seeks are 'justified'.

2. The next trial would be ONLY about damages.

3. Remittitur orders often allow the party to opt for a new trial if they don't want to accept the reduced amount.

4. Twombly is a pleading case, not a trial or evidence case. It has to do with what needs to be 'alleged' in a complaint.

5. Yes plaintiffs did not offer any evidence of a "distribution" within the meaning of the copyright act, so the "damages" should only involve the damages for a download.

raybeckerman said...

I rejected a comment because it incorrectly assumed there has been proof of a distribution. There is no such thing as a "making available" claim, as even Judge Davis has ruled.

Alter_Fritz said...


In re 3.

according to wikipedia since it would be the opposit of remititur he can not (generally spoken)

"Additur is a raising of the jury verdict. It is not allowed in the United States federal system due to Dimick v. Schiedt, 293 U.S. 474 (1935)." said...


Anonymous said...

A damages trial is doomed to fail.
The jury did not find her liable for an infringement of the reproduction right,
and they did not find her liable for an infringement of the distribution right.
They were only asked if it was one or the other.
The new jury would have to retry all of the facts to determine how the infringement occurred.

just a biased observer

T2 said...

Bypassing the question of what the defendant did or did not do, in this or other RIAA cases, here's a back-of-the-envelope attempt at calculating damages under the assumption (proven or not) that the defendant downloaded a song and let others upload it.

Say the cost to buy a song from iTunes is $x. If I download a song from a P2P network for free, RIAA has lost $x. (I am assuming I am not the first uploader of a song, and many RIAA cases include testimony that "proves" [by dubious standards] that the copies of songs at issue have MP3 matadata suggesting that they were downloads, not CD-rips by the accused party].) Now, for me to download that song via P2P, there must have been at least someone else out there who offered uploads of the same song. For popular titles, chances are there were many such uploaders on the network, say N of them. My participation as an uploader will help some other P2P user U1 obtain a copy of the same song, and thus cost the RIAA $x, but I only contribute 1/(N+1) to this activity. The moment that user U1 has downloaded the song, she offers it for upload as well, so now I am one of N+2 users offering uploads of that song. So, when user U2 comes to download, my upload costs the RIAA $x/(N+2). (I am assuming regular users who share for upload everything they download, not "leeches" who download and don't offer uploads; default configuration of most P2Ps is not "leeching".)

So the total cost to the RIAA:

$x * (1 + 1/(N+1) + 1/(N+2) + ...)

if $x is $1 (an expensive title) and N (the number of uploaders when I did my download) is 1 (way, way too small a number for popular songs but let's be conservative), and I offer uploads until 10,000,000 users have downloaded (partially) from me, then the above sum is less than
$17 ($16.7 to be precise).

The judge talked in his opinion about the exponential effect of uploading, but I hope the above very short calculation shows that this is inaccurate. Even if uploads are take into account, we are talking about actual damages at $17 per song at the most.

T2 said...

A clarifications to the above calculation: it assumes the following (pretty obvious) point: if I assist a user U to download a song by offering it for upload, I am not responsible for any damage U causes to the RIAA via her uploads: what she does is her responsibility and because I am only one of many uploaders, U would have been able to get the song with or without my participation. Still, even if you factor that cascading cost, because my role in helping U is minimal (as only one of many uploaders), the additional damage which I may have caused is in the noise, hence omitted from a back-of-the-envelope calculation.

Just for the very geeky among you who care about the nitty-gritties...

I do have a more accurate model for P2P distributions (whereby "my" copy is tagged and tracked in a simulated P2P network), by the way, and the answer is not very different.

T2 said...

I have one more calculation to share with fellow geeks...

Consider that N users have participated as downloaders and possibly uploaders (i.e. peers) in the dissemination of a song with market price $x over a P2P network. Some user F was the first to upload and, over time, N-1 others downloaded it and (some) allowed others to upload. The last one of those N-1 peers, who downloaded but never uploaded, is user L.

The total actual damages to the RIAA are $(N-1)x for the simple reason that the RIAA lost $(N-1)x of income because N-1 P2P users got a free copy of the song (user F paid for it and ripped it).

What are the actual damages attributable to each of the N peers?

Well, the RIAA reasonably states that when a user downloads a song, they lose $x they could have made if that user had purchased the song instead. So for each of the N peers except for the original seeder F (who never downloaded anything), the RIAA attributes actual damages of $x.

The RIAA (and the judge in his opinion) also feel that there is more actual damages caused by each user because of the upload. For simplicity, let's say that each peer caused the same $u upload-related actual damages (except for the last peer L who just downloaded the song).

So now hypothesize a trial in which the RIAA puts on the stand all of the above users. The total actual damages are known: $(N-1)x. And the RIAA tells the jury that it should attribute $x+$u to each user as actual damages (except for F who is attributed just $u and L who is attributed just $x). So the jury does some simple math:

Total actual damages = $(N-1)x

must equal

F's actual damages +
L's actual damages +
All other peers' actual damages =
$u + $x + (N-2)($u+$x) =
$(N-1)x + $(N-1)u

Or: $(N-1)x = $(N-1)x + $(N-1)u

From which we conclude that $u=0.
That is, uploads do not cause actual damages! And thus the jury assigns actual damages of exactly $x to each peer, except F, who is assigned $0 actual damages (after all, she paid for the CD she ripped).

Traditionally, you had one forger who made many copies and sold them. The forger collected all the income from sales, $(N-1)x, and so the copyright owner took her to court and attributed all actual damages to her, and expected to collect all that $(N-1)x from her (because she had collected it from the buyers)... punitive damages aside.

The intuitive rationale here was that the forger is attributed all the damages because they made the copies alone; once the copies were made, it was only a matter of time until they caused loss of income to the copyright owner.

P2P cannot be made to fit the same mold: there is no exchange of money for one thing, and even if there were, no individual possesses all of the $(N-1)x... The total actual damage is indeed $(N-1)x, but the RIAA has no way to set apart any of the peers involved ("Bob, you were F") and attribute any more than $x to them individually. Even if they attempted to do that, and assign more than $x to some peer(s) (e.g. F being somehow more "responsible" for the distribution), as long as they still wish to attribute at least $x to each user, then the total actual damages calculated by this method would exceed $(N-1)x as we saw above; so it cannot be done, and $x it is for actual damages for every peer other than F.

The intuitive rationale here is that the uploader does NOT make a copy: they make something available, but that is not a copy, it's the original (and "making available" is not a copyright law violation, despite what the RIAA claimed some years ago). The act of copying is done by the downloader. Hence the $x of actual damages is attributed to them...
... and because total actual damages are known and limited, sorry your Honor, there is no upload-related actual damages or "exponential effects" and such. That is RIAA drivel and as much sophistry as the "making available" theories.

(Pardon the length of my comments, Ray and fellow readers.)

raybeckerman said...

Dear Anonymous T2:

There are 3 kinds of people: those who are good in math, and those who aren't.

I'm in the latter category, so I'll have to get back to you on what you just said. said...

Ohhh why didnt i pay more attention in math class?
instead of staring at Suzie G's big... ohh never mind, i just didnt pay enough attention in class and now it comes back to bite my behind because I would have loved to have 'gotten' all that T2 wrote. ;)

Anonymous said...

T2 --

I think your reasoning is sound as far as it goes. I also think there may be some assumptions - how many bought $CD and wanted a copy of $TRACK but either could not be bothered to rip or did not know how to obtain without p2p, for example - that could have a significant impact on your maths.

Would you be willing to make your maths available generally for others to review?

--Quiet Lurker

David Emery said...

Over on Macworld I read:

>Shortly after Davis’ action, the RIAA offered to settle its case against Thomas-Rasset for $25,000, but only if the court was willing to vacate or modify its ruling

True? That sure strikes me as outrageous (and appeal-bait).

Anonymous said...

T2, the background assumptions you make are of concern.

- Seeders are not distributed evenly. In the U.S., most DSL and cable modem connections are asymmetrical. That is, uploading is slower than downloading. So people often download more than they upload. And there's not much incentive for most people to upload, so many people don't do it much.

- Universities tend to have more symmetrical traffic, or so I have observed here and there, and the international scene may be so as well, so perhaps these groups of users are more likely to be significant uploaders.

- None of this is the defendant's responsibility to show. The burden is on the plaintiffs to show that defendant was a substantive uploader, if that's what plaintiffs want to show.

- In order to even speculate about how much someone may have uploaded, we at least need to know or have good guesses as to (a) when they started, (b) when they stopped, (c) their connection speed, (d) how much they generally seed, (e) how often they leave file sharing software running, (f) how many people obtained that particular file over the time that that user was sharing it on that P2P network, and (g) probably a ton of other stuff. And that's just to make a ballpark guess, not even to make a reliable guess. Without such information, all uploading speculation is simply that -- blind speculation with no reliability, whatsoever.

- Of course, if the person had logs, or the ISP had logs, they would be much more reliable than the guesswork mentioned above. But almost nobody keeps such logs.


T2 said...

Ray: math is your friend :-)

Quiet Lurker: I have pretty much disclosed the math calculations fully above. What I have not disclosed is my rudimentary simulator of a P2P network which confirms the above back-of-the-envelope calculations. It's really simple (for a geek) to write such a (simplified) simulator and confirm (or correct) my results. Unfortunately, I cannot share the simulator as I do not own the copyright (I wrote it as a work for hire). But a college kid can easily do it...

XYZZY: you are correct on most fronts. One correction: allowing for uploads is the default setting in most P2P apps, hence many people do it; they may not do it for a very long time, but they do it.

Regardless, my point and your observations are not in conflict: when the RIAA asserts high actual damages and "exponential effects" by defendants, it assumes that uploading is common and widespread (or else there is no reason to believe, in the absence of logs, that the defendant engaged in uploading). The lawyer of defendant should obviously assert that this is an assumption that must be proven before actual damages are assumed to be "exponential". All the points you raised should be shared by said lawyer.

My point is complementary to yours. I claim that said lawyer may also state this: even if the RIAA is right, and uploading is common, and the defendant did do it, actual damages are still limited to a very small multiple of the market cost of the song (my first post). In fact, if everyone offers uploads, the multiple is 1 (my second post).

In other words, the RIAA's argument doesn't hold water either way. said...

> In other words, the RIAA's argument doesn't hold water either way.

Can I buy you a beer?