RIAA’s statutory damage claims…
p2pnet.net news view:- As the world now knows, the Big Four Organized Music cartel in the shape of Warner Music (US), EMI (Britain), Vivendi Universal (France) and Sony BMG (Japan, Germany) have suffered a potentially grievous blow.
The Big Four have what seems to be a virtually limitless supply of so-called trade organizations to do their dirty work – ie, sue their own customers into buying ‘product’.
One such is the misnamed RIAA (Recording Industry Association of America) which has been claiming each song supposedly illegally distributed online by those wicked p2p file sharers is worth $750 in damages. And the courts have been going along with it …
… until this week, that is, when New York judge J. Trager ruled Brooklyn home health aide Marie Lindor can add to her defence her claim that the $750-per is unconstitutional.
Moreover, that’s 1,071 times too much, she says: if a value is to be ascribed at all, it should be more like 70 cents per song.
Here’s Howard Knopf on the case:
From the brave and bold Ray Beckerman – who fights the RIAA:
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.”
This is potentially hugely important. If Ray wins on this issue (RIAA would almost certainly try to get it to the US Supreme Court if he does), it would be, without a doubt, one of the most important copyright cases in modern times…because it would take away the ad terrorem aspect of copyright law from ordinary citizens and the big copyright owners would have to do what normal litigants have to do, which is to prove actual damages. As Ray argues and the Judge notes, “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.”
BTW, a lot of the problems in Canadian copyright law would go away if statutory damages were limited to purely commercial situations and could not be used to intimidate teachers, librarians, researchers, scholars, students and countless ordinary citizens who behave in ordinary ways.
At the time they were enacted in Canada in 1997, only Canada and the USA amongst major countries had the broad concept of statutory damages (i.e. minimum of $500 and $750 per work respectively).
Even in the USA, statutory damages are not available where the activity was done by an educational institution, library, archvive, public broadcaster or employee thereof “in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use”. The details are available here.
Now, THAT is something that educators should be fighting for here in Canada.
Why should Canada treat its educational user community so much worse than the Americans do? And why should our educators so passively accept this? But it seems that CMEC and others in the educational community are, rather, obsessed with their special educational exception for use of the Internet. There are so many more useful, less harmful and more achievable goals that the educators etc. could be pursuing….and curtailment of statutory damages ought to be at the top of the list.
BTW, Michael Geist now essentially agrees with me on how CMEC’s views are not much different than those of Access Copyright in key respects. Here’s his podcast of a recent talk.
Howard Knopf – Excess Copyright
[Knopf is an Ottawa-based copyright lawyer who's been lead counsel on legal challenges both at the Copyright Board and in the Courts against the excesses of the music industry establishment. He's regularly quoted in the mainstream media and acted against CRIA in the file sharing litigation, and continues to act against the CPCC, in which CRIA is still a major stakeholder, on the levy front.]
Also See:
$750-per is unconstitutional – Trouble looms for RIAA, November 10, 2006
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November 12th, 2006 at 10:24 am
Let us do some history.
In 1976 the american copyrigh law allowed these damages to be received by the owner of an infringed song. The law said:
“To pay to the copyright proprietor such damages as the copyright proprietor may have suffered due to the infringement, as well as all the profits which the infringer shall have made from such infringement…”
“$10 for every infringing performance”.
Somehow in 1976, “statutory” damages were an abuse added in the new copyright legislation, with a ridiculous cap of $150,000 for both copying and performance, wether personal or for for profit.
So what we see was a dumb law replaced by a more stupid laws. The
$10 for every infringing performance was actually dumb, as it was incentive to infringe because a license to perform a song in a concert could actually cost far more than $10. It was better to infringe and wait. If the copyrightholder protestet, the copyrightholder got a $10 check and that was it.
But the part that said
“To pay to the copyright proprietor such damages as the copyright proprietor may have suffered due to the infringement, as well as all the profits which the infringer shall have made from such infringement…”
Was very sensible and the adiition of totally arbitrary (in the law) statutory damages made no sense at all as the judge in the story seems to be saying.
Statutory damages are also misused by courts and claimants.
One of the rules for giving statutory damages is that you can only award them is if the work was copyright registered before an infringement ocurred.
But judges openly violate the rule of law. In my case against Sonolux, the RIAA record label, the songs were registered on October 2000. At trial it was proved and accepted by the court that Sonolux infringed two of our songs on 16 music records with various artists (we have since discovered it was at leat 24 records, by both Sonolux and Sony), all of which commenced well before 2000. The most recent record commenced sales on about 1997.
So as to minimize the damages the judges went against the law and gave us “statutory damages” of US$150,000 for each song, the most allowed for statutory damages. Sonolux has never paid the award even though it’s owner is Carlos Ardila Lulle, the billionaire Colombia industrialist.
And why did the court actually violate the law? Because the the other option, the only legal one, was to award the profits made from the sale of many millions of records, plus interests, and that would have been a much greater award,of about US$ one million.
See case 01cv2187 (judge Perez Gimenez) in Puerto Rico Federal District Court or
http://rafa_venegas.web.prdigital.com/sonoluxdamageaward.htm
So on the one hand statutory damages (sureley unconstitutional) are abusive when applied to non commercial file sharers, they are ignored by the courts when RIAA members are the infringers and are hurt by them.
Rafael Venegas
http://www.gvenegas.com