‘Selective jurisprudence?’
p2pnet news | Freedom:- The following quote appear on the p2pnet story, RIAA vs Tenise Barker drags on.
“So even if the RIAA can’t argue that making music in a shared P2P folder available is distribution, it does mean that the labels can allege that dropping songs into a KaZaA share is making an offer to distribute.”
As to possible DISTRIBUTION and damages caused by Tenise Barker, please read on.
In Venegas v Latin American Music Co. (LAMCO) at Puerto Rico Federal District, it was proved that LAMCO had hundreds of songs whose copyrights belonged to Venegas plaintiffs in their catalog, for the purpose of making the songs available for recording and public performance, for making a profit. LAMCO even licensed a song for the highest selling record in Latin American history, 6.5 million copies.
And what did the FEDERAL judge (Jose A. Fusté) determine and do? That THERE WAS NO INFRINGEMENT AND NO DAMAGES WERE AWARDED FOR THE MASSIVE INFRINGEMENT OF THE VENEGAS DISTRIBUTION RIGHTS. No damages were also awarded for the conspiracy by LAMCO to steal the songs, many of which were illegally registered at the US Copyright Office. The court’s decision was upheld by a Federal Appeals court.
As plaintiff in that case I am amazed how it is that the case is never mentioned by lawyers as a precedent, or is it a cover up by the court system because they are ashamed of what judge Fusté did?
Or is it selective jurisprudence, where decisions at corrupt courts (Puerto Rico Federal Court) do not count?
Again, As to possible DISTRIBUTION of the harmless variety by Tenise Barker, the problem is that she is trapped by the senseless statutory damages of up to $150,000 for each infringement.
Statutory damages were meant to cover acts where it was impossible to determine actual damages to the rights holder. It happens that the laws has a defect that allows a plaintiff to reject actual damages by simply asking statutory damages or using the trick of asking for both types of damages, whichever is greater. So while it is possible to estimate or calculate actual damages (assuming any occurred) in the harmless infringement variety, and plaintiff knows such damages are very little, say 99 cents, they ask (absurdly and routinely may I add) for the max of $150,000. And to jack up the terror, the plaintiff will always claim that the infringement was willful (as if such a thing as accidental infringement were possible).
This sorry and shameful state of affairs can turn a 99cent infringement into a case where thousands are spent on legal fees by both sides and thousands may be awarded for each infringement, as happened in the Jammie Thomas case, when Jammie was bankrupted (I assume) for having to pay $9,250 in statutory damages per song, because the infringement was “willful” or a total of $222,000 in damages.
The Copyright Act has been crafted by lobbied legislators to benefit music publishers and big record companies while ignoring the defects in the law. Statutory damages is by far the biggest defect, a sin that many consider the unconstitutional. Another sin is that the laws does not differentiate between harmless (or even helpful) infringement by kids and those that are so ignorant of copyright laws that they may not know it exists and, on the other hand, the large scale commercial grade infringement done by the expert in copyright laws.
All of what has been said forces us to ask, what can be done?
While admitting a bias, I think that the Venegas v LAMCO case should be exploited to illustrated the absurdity of the case against Tenise Barker. This can only be done by talking and writing about Venegas v LAMCO and of course, lawyers can use it as jurisprudence, in American courts. Surely a bad court decision can be turned aroud to help victims like Tenise Barker. A turn around is quicly needed before the records companies finally destroy the music industry, as time is running out.
Sorry Tenise, but for now, until the turn around, you are trapped in a corrupt law that in no way benefits songwriters and artists and is administered by a corrupt court system (reportedly the laughing stock of the legal systems) and a bunch of shareholders and artists that do not care or complain about what their companies (labels) do to their present and future customers.
Click here for more information about Venegas v LAMCO.
Rafael Venegas
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