p2pnet news view RIAA | Freedom | P2P:- The Free Software Foundation has filed a second Friend of the Court brief on behalf of an RIAA victim on the unconstitutionality of the RIAA’s “statutory damages” theory, says Ray Beckerman in Recording Industry vs The People.

Record company claims, demanding $750 to $150,000 for download of a single MP3, are contrary to American law, says the brief.

If there’s any justice in the world, this new filing will be of enormous significance in stopping the RIAA litigation juggernaut dead in its tracks.

Without being able to threaten ridiculously out-sized “statutory damages” having no relationship to economic reality, the RIAA’s whole extortion scheme will go down the drain.

Extreme detail

Last month FSF filed such a brief in the Joel Tenenbaum case, in Boston.

Now it’s filed a similar, but much more detailed, document in Philadelphia in Sony BMG Music Entertainment v Cloud against Denise Cloud.

The new brief goes into extreme detail about why the RIAA, and its friend the US Department of Justice, are both barking up the wrong tree on the law.

“The government and the RIAA both contend the courts should ignore recent US Supreme Court decisions on punitive damages, saying statutory damages are different,” Ray told p2pnet.

As p2pnet pointed out yesterday, there are now at least six RIAA hired legal guns working for the Obama administration’s Department of Justice, with other vested interest parties lurking in the background.

The new document points out not only that the US Supreme Court has itself acknowledged similarities between the two briefs, but even the DOJ – the same entity filing briefs on behalf of the RIAA — has itself taken the opposite position, writing to congress that punitive and statutory damages resemble each other.

Ray, who’s one of the attorneys on the brief, says it »»»

• Reviews case law and scholarship subsequent to the Supreme Court’s decision in the State Farm case to the effect that statutory damages are subject to due process scrutiny under the test enunciated in State Farm and in the Gore case;
• Analyzes the Supreme Court cases in Gore, State Farm, and Williams, as well as the 6th Circuit’s decision in Zomba;
• Discusses other authorities for the principle that statutory damages under the Copyright Act must bear a reasonable relationship to actual damages;
  -argues that the RIAA and the Department of Justice ought not to be permitted to blur the distinction between their “downloading” claim and the labels’ “distribution” claim;
• Argues the RIAA and Department of Justice ought not to be permitted to speculate as to what the record companies’ damages might have been had they been able to prove that the defendant was in fact a distributor;
• Argues the RIAA’s theory that every unauthorized download is a lost sale for damages purposes has been discredited; and,
• Argues that even under the Williams test, which the RIAA and DOJ claim to be applicable, the RIAA’s statutory damages theory is still flagrantly unconstitutional.

That grinding sound you hear is RIAA lawyers gnashing their teeth.

Definitely stay tuned.

Jon Newton – p2pnet

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April, 2009