Friday, November 10, 2006

Constitutionality of $750 price tag for a song

INQ reported that a P2P user is attacking the statutory damages for copyright infringement on due process grounds. She reckons that a song costs 75 cents, a $750 statutory damage amounts to a 1000x fine, which is excessive. See BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996).

However, the P2P user missed the point. As a P2P user, she was not only making a copy of the song for her own use, she was also distributing the song to others via the internet. Now, ask what the license fee is for the right to distribute a song... ( Copyright is a set of exclusive rights, beside the right to make copies, it also includes the right to display, perform, distribute, create derivative works...)

On the amount of statutory damages, the Supreme Court ruled that the damage amount can be determined by a jury. Feltner v. Columbia Pictures Television Inc., 523 U.S. 340, 118 S.Ct. 1279, 140 L.Ed.2d 438 (U.S. 1998). But that story usually ends up in tears. Initially, a judge decided that Feltner should pay $8.8 million in statutory damages. Feltner appealed all the way to US Supreme Court. The Court said he could get a jury to determine the amount. In a jury trial, Feltner ended up paying $31 million, almost 4x the original amount.

RIAA lawyers may not be as well versed and creative as I am on copyright law. But, eventually, they will figure it out.

Federal courts are littered with RIAA lawsuits. Most of these suits are quickly settled for about $3000. There are hundred of millions of folks doing P2P. If you are the lucky ones who got served a complaint, my suggestion is do a quick settlement. Otherwise, your life may be truly ruined by attorneys' fees and huge statutory damages. The worst thing is, you can't even discharge the statutory damages owed via bankruptcy if the infringement is willful. See In re Albarran, No. SC-05-1398-MaSPa (9th Cir. 07/24/2006).

25 Comments:

Anonymous Svamp said...

Independent studies have found that file-sharing has had no provable impact on the sales of music. Suck on that.

10:56 AM, November 10, 2006  
Anonymous Anonymous said...

Here we go again, Sharikou, JD. attorney at law. The Riaa lawyers are not as well versed in copyright law as he is?

Another quick legal lesson. The judge's decision was not on the merits, nor was he agreeing with the defendant in this case. The Riaa is free to make the argument of how damages should be calculated and how they were damaged.

The decision of the court was to allow the defendant to amend the answer in this case because she had met the threshold of showing that she may have a constitutional claim of excessive damages. The trier of fact, either judge or jury will make the ultimate determination at the time. The judge did not make a ruling that she had proven the requested damages were unconstitutional.

Please man, understand the legal arguments and procedural posture before you make such self serving, and in turn erroneous statements. Your thoughts and statements of granduer and superiority are mostly delusional.

11:42 AM, November 10, 2006  
Anonymous Anonymous said...

I disagree, the defendent did not distribute the song, technically speaking.

Her PC existed independent of the file existing, her P2P software existed independent of that particular file existing, and all the internet connections existed independent of that file existing.

Just because P2P software exists on a PC doesn't mean it's intent is to illegally distribute material. When she installed the P2P software she probably even stated that her intent was not to distribute illegal material.

Her intent to illegally distribute needs to be proven. For all she knows (and intends), she will not be distributing illegal material. However, the means for other people to access that material is available.

She is guilty of illegally posessing material, but that's as far as it should go. If I were her I'd fight it and defend myself, but plead guilty to possession.

If you want to make money as a musician or a movie maker in these modern days, you'd better be prepared to reap profit only by going on tour if you're a musician, or by providing a premium service by offering your movie in selected theatres.

As I've said before, anything that can easily be duplicated WILL easily be duplicated. You can't fight it by propping up 'laws'.

12:11 PM, November 10, 2006  
Anonymous SaintGreg said...

Independent studies have found that file-sharing has had no provable impact on the sales of music. Suck on that.

Does that make it any less illegal?

12:20 PM, November 10, 2006  
Blogger Sharikou, Ph. D said...

Another quick legal lesson. The judge's decision was not on the merits, nor was he agreeing with the defendant in this case. The Riaa is free to make the argument of how damages should be calculated and how they were damaged.


Dude, isn't that obvious? The fact you even mentioned Court's reasoning means you have no clue. You dude simply don't understand what I am talking about.
The defendant of course can assert an affirmative defense unless it failed to meet the pleading standard (rule 11 and rule 8). RIAA says the defense fails as a matter of law. The judge says defendant made a valid argument-- if it is not warranted by existing law, it should be considered a modification or reversal of existing law.

In fact, the Supreme Court ruled long time ago that statutory damages can be subject to jury determination. So, RIAA was simply making a legally untenable argument trying to disallow the amended answer. But, the court ruling is no victory for the P2P user, in the end, the P2P user will lose more. I resent what RIAA is doing--spreading terror among tearful moms. But for your own protection, if you got caught doing P2P, quickly setttle and don't fight. The law is clear.

If you are a lawyer, you demonstrated again most lawyers are inferior in terms of IQ.

12:41 PM, November 10, 2006  
Blogger Sharikou, Ph. D said...

Just because P2P software exists on a PC doesn't mean it's intent is to illegally distribute material. When she installed the P2P software she probably even stated that her intent was not to distribute illegal material.


First, if you are saying her PC did the work, and she didn't do it. The argument won't fly, it's like saying the bullet killed a guy, not the one who pulled the trigger.

If you are saying she is not a willful infringer in her acts, it's also a tough sale. This is civil case, not criminal, the level of proof is low... Even if she claims that she doesn't know others are downloading from her PC, the copyright owner can say she should have known... it's called constructive knowledge.

12:46 PM, November 10, 2006  
Anonymous Svamp said...

>SaintGreg said...
>Does that make it any less illegal?

It certainly pokes a hole in the arguments of the RIAA. It may be illegal, but there is nothing to support the RIAA's ridiculous claims of damages.

Laws do not define morals, anyway.

1:09 PM, November 10, 2006  
Blogger Sharikou, Ph. D said...

there is nothing to support the RIAA's ridiculous claims of damages.


I reviewed some RIAA cases, most of them just settled for a few K. My advice is don't fight against the inevitable.

1:13 PM, November 10, 2006  
Anonymous Anonymous said...

"My advice is don't fight against the inevitable."

Didn't you just say not too long ago that typical lawyers were idiots and anyone with a scientific background could beat them down - how is it inevitable? Even you have "smacked down" numerous high profile lawyers with no law experience no? What were those cases again?

1:56 PM, November 10, 2006  
Blogger Sharikou, Ph. D said...

Didn't you just say not too long ago that typical lawyers were idiots and anyone with a scientific background could beat them down - how is it inevitable?

You have to weigh the risk/benefit. Getting off hook of copyright infringement for a few K is a bargain. You can be a good lawyer, but there is the law. Copyright law is so well defined, there isn't much you can manuver around. You have to understand the upper limit of statutory damage for infringing a song is $150K. RIAA hires a whole army of cheap lawyers filing one page lawsuits, they don't expect tough fight, and anyone got caught should pay a few K and get off the hook.

2:08 PM, November 10, 2006  
Anonymous Anonymous said...

First, if you are saying her PC did the work, and she didn't do it. The argument won't fly, it's like saying the bullet killed a guy, not the one who pulled the trigger.

I'm not saying her PC did the work. In the case of P2P someone else always does the work. In every case the person who should be charged for illegal distribution is the person who ripped THAT song from a CD and propogated it in the first place. Good luck finding them though. Morally, that is the person who committed the crime though.

SHE is guilty of possession, don't get me wrong. She should be charged for the song. 75 cents. However, she's not an active distributor. Her PC and internet connections are common household tools which are not designed specifically for distributing material.

A more accurate analogy might be:
Someone stole a box of candy and gave one to her. She knew it was stolen (or maybe not?), but didn't commit the original crime. Her crime is possession.

If you are saying she is not a willful infringer in her acts, it's also a tough sale. This is civil case, not criminal, the level of proof is low... Even if she claims that she doesn't know others are downloading from her PC, the copyright owner can say she should have known... it's called constructive knowledge.

That's true. Ignorance of the law is no excuse of course. I'm challenging the law, to be more precise.

I think she's got a right to say, "Yeah, motherfuckers, like here's your 75 cents then." Plus punitive damages maybe at worst.

That'd be okay by me (because my opinion matters SO MUCH). There's no doubt she's guilty of a small crime of owning illegal material. She wanted a song for free.

You could argue that she could care less about other people copying it from her computer, and she doesn't benefit at all by someone taking it from her machine. Not sure what precedence there is for propogation, but it doesn't matter to me (since I'm arguing about the law to begin with).

I guess an analogy would be like leaving a legal or illegal CD on your car seat while you're at work and not caring to lock the car door. If someone swipes the CD, copies it, and returns it to your seat without you knowing, should you be responsible? Uh, not in my opinion.

I think you are claiming that she should give up the fight because it's not worth it - that may be true.

I'm saying she should fight it. It's morally wrong for her to be penalized so harsh for something so petty (people DO make mistakes). The punishment should fit the crime, and thousands of dollars in penalties seems ridiculous for stealing something valued at so little. Especially if it was a K-Fed song or something. Hah.

3:40 PM, November 10, 2006  
Anonymous Anonymous said...

Then how are the RIAA lawyers not as versed as you in copyright law?

3:50 PM, November 10, 2006  
Anonymous Anonymous said...

It is interesting how you change your original post as you go along to fit the comments that are made.

3:52 PM, November 10, 2006  
Blogger Sharikou, Ph. D said...

There's no doubt she's guilty of a small crime of owning illegal material.

This is a civil case, no criminal charges here. But, sometimes a civil case costs you far more...

4:00 PM, November 10, 2006  
Anonymous Anonymous said...

CDW a $6.5 "BILLION" company has just moved to the OPTERON SERVERS. BYE BYE INTEL!!!! Don't u just love these comments from us AMD boys!!!!!!!

9:18 PM, November 10, 2006  
Anonymous edward said...

"Copyright law is so well defined, there isn't much you can manuver around."

1. That doesn't prove that she had intentionally and successfully distributed the file.

2. Without such proof above, a 1000x fine is excessive.

Say I have my door open to let friends to come in and pick up some food. If someone comes in and takes away a CD of mine without my permission by without me knowing, it is he commiting a crime, not me.

RIAA has to prove that she had intentionally permitted the file distribution and successfully done so. Otherwise I don't see how it could charge her that license fee.

10:17 PM, November 10, 2006  
Blogger Sharikou, Ph. D said...

RIAA has to prove that she had intentionally permitted the file distribution and successfully done so.

Not really.
1) Copyright infringement is a strict liability. Even infringement is not willful, she is still liable and will have to pay statutory damages.

2) No. The distribution doesn't have to succeed. The mere attempt to distribute constitutes infringement of copyright. It's like someone selling a pirate CD on ebay, the infringement is committed even before the CD is sold.

3) Your example of people stealing CDs doesn't apply. In your case, people only stole your legal copy. If you make 100 copies and allow people to take it, you will be in trouble.

11:02 PM, November 10, 2006  
Anonymous Anonymous said...

Again, how are you better versed and more creative than the RIAA lawyers?

11:58 PM, November 10, 2006  
Blogger Azary Omega said...

Eventually all music will be free. You can fight it, you can - not agree with such way of thinking, but there ain't much you (or anyone else) can do about it. But we can delay such times.

I find Apple doing one dumb thing by helping dinosaurs to keep making money just a few more years (before extincting). Apple is a big and powerful company, i see just how much they've done for recording industry. They almost by themselves pulled those damn fat-rich-boys out of doo-doo. It's just too bad they don't understand that their fighting lost fight. Ohh well. I'll go reap something now....

1:11 AM, November 11, 2006  
Anonymous Anonymous said...

Quit asking how he's "Better versed". He's not. He's not even a real Ph.d.

8:10 AM, November 11, 2006  
Blogger Sharikou, Ph. D said...

Again, how are you better versed and more creative than the RIAA lawyers?

There is a law firm with buildings of lawyers doing IP litigations, and I fragged and am fragging them. The IQ differential is simply too large. As soon as you know the procedure, the law and the precedents, the rest is like computing --- you fit the input and rules to bring out a certain result. There is no way a bunch of lawyers can match that kind of precision thinking and mathematical rigor. I can see the folks here are making some good arguments, but they don't know the rules and precedents, so the arguments are inevitably wrong.

RIAA laywer are cheapo ones, they file one page lawsuit, hit and run. They don't use expensive lawyers against Joe Bloe which doesn't have much money anyway. If a case got settled for $3000, the lawyer is getting no more than $1000 for all the trouble of filing suits in federal courts. RIAA is consuming vast resources of the federal courts.

8:10 AM, November 11, 2006  
Blogger Jeach! said...

I've been working on the word's first downloadable music jukebox since 1995 (till 2005). We are the first company to ever license downloadable music... I guess I can say we opened the door for Apple and others.

I can also tell you first hand that music comapanies are complete crooks.

I totally support copyright laws and protection for IP ownsers. But these corrupt 'middle-man' such as music companies MUST be destroyed. They no longer belong and fit in this day and age!

Here is only but one example of many others on how THEY steal from artists, musicians and song writters, etc.

Some intimate details on the Google YouTube Deal

It is lengthy, but of interest is this example:

The media companies had their typical challenges. Specifically, how to get money from Youtube without being required to give any to the talent (musicians and actors)? If monies were received as part of a license to Youtube then they would contractually obligated to share a substantial portion of the proceeds with others. For example most record label contracts call for artists to get 50% of all license deals. It was decided the media companies would receive an equity position as an investor in Youtube which Google would buy from them. This shelters all the up front monies from any royalty demands by allowing them to classify it as gains from an investment position. A few savvy agents might complain about receiving nothing and get a token amount, but most will be unaware of what transpired.

Jeach!

10:07 PM, November 11, 2006  
Anonymous Anonymous said...

Isn't funny how your blog site advertises for Core 2 Duo and Woodcrest?!!!!!!!!!!

10:10 PM, November 11, 2006  
Anonymous Panther said...

With a few chosen words Sharikou, you managed to compliment yourself and insult everyone else.

And also, in one of your other threads' comments you stated that we should imagine a light bulb that takes up 80% of a power plants output. And? You are stating that because a specific location requires ~80% of an output source that it will cause the output source to explode?

Don't you know that any properly designed power source has safeties to prevent failure through too much power being drawn during spikes?

If you still think the processor is the reason that batteries explode, then why aren't power plants that are at 100% load powering an aluminum smelting plant exploding?

Why do cheap PSUs explode during full load levels while well built power supplies do not? Do the cheap power supplies explode because of the voltage spikes from processors, be careful how you answer, PSUs explode because of your precious AMD-ATI GPUs as well as nVidia GPUs and even AMD/Intel processors.

If you say that a PSU and a battery are totally different, well technically they are, but then again what fails in a power supply? The capacitors usually.

Poorly designed fail-safes on a battery are the reason that those batteries exploded, just like the poorly designed fail safes on a PSU or even a power plant. The processor and every other component is irrelevant. It's electricity in - electricity out.

You sir, are a fool.

9:53 AM, November 22, 2006  
Blogger Scientia from AMDZone said...

There are hundred of millions of folks doing P2P.

Where are they doing P2P? The last time I looked on Grokster there were only 500K users. This is down sharply from what there used to be.

BTW, a lot of what the RIAA claims is completely false. The single biggest reason why music sales are down is that the quality of music has dropped dramatically. This has been the result of massive consolidation of once independent radio stations with a resulting homogenization of programming.

I have to give credit to American Idol for bringing up new single artist talent but even this doesn't make up for the huge gap in new band talent.

People are willing to spend money on quality products. To suggest that somehow piracy is responsible for the drop in music sales overlooks the fact that people spent more money last year on ringtones than they did on music singles. Creating your own ringtones is far easier than pirating music.

3:52 PM, November 22, 2006  

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