AfterDawn: News

Lindor challenges RIAA '$750 per track' damages

The case, UMG v. Lindor, has just gotten more interesting. Marie Lindor is currently in a legal battle with the Recording Industry Association of America (RIAA), accused of being a web pirate. Ms. Lindor is now challenging the RIAA to explain why it demands $750 per track in damages when they are available legally to the public for just 99c. Of course, the RIAA did fight to stop this amendment to the case.

The trade group claimed it was not up to Ms. Lindor to decide the damages and that her complaint was without merit, the motion was untimely and it would prejudice the RIAA. However, Judge Trager did not agree with the RIAA on those claims nor a claim that Ms. Lindor was required to send a notice to the United States Department of Justice of her defense of unconstitutionality.



So now the RIAA needs to explain how it has come to the $750 per track figure. Lindor has already provided proof that possible damages to the RIAA amount to no more than 70c per track, which is the share record companies pick up from online retailers.

Here is a paste of the Judge's ruling from the Recording Industry vs. The People blog:

[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."

Source:
Recording Industry vs. The People

Written by: James Delahunty @ 10 Nov 2006 18:08

• Previous article

• Google denies having YouTube legal reserve

• Next article

• Your favourite Linux distro on PS3

• 18 comments

• Irish13

  Very sensible approach by the Judge. I wish a high profile individual case would have all the data the recording industry provides ripped apart by experts. Let them come up with proof instead of being always allowed to estimate how much they will lose. As a sidenote, last week I lost most of my data (before you say it, yes I'm an idiot for not backing it up)which included at least a couple of hundred mp3's that I had put on from my CD's. It really made me think of the backlash that could happen if say there was a virus spread and alot of people lost their music bought from I-tunes at a buck a shot. I would never by from this type of scenario where you don't actually own what you paid for but I almost wish there was a big problem to see the backlash by consumers.

  10.11.2006 19:09 #1

• georgeluv

  if the judge rules in her favor for only 70 cents per offence, that could very well kill the RIAA lawsuit campaign

  10.11.2006 20:19 #2

• borhan9

  Thats just crazy to ask for US$750 a track and sell it legit for .99cents I think they just want money for emotional distress :P
  
  This is just nuts IMO. These guys are frying a small fish instead of going after the big fish. Whats wrong with these people leave the lady alone.

  10.11.2006 21:07 #3

• sisph

  Instead of paying 99 cents per song via Itunes I'll just download hundreds of mp3s "illegally" and then confess and plead guilty to the RIAA and pay 70 cents per song in punitive damages. That way for every 5 songs I download I save a dollar.
  
  

  10.11.2006 22:31 #4

• kaosX

  still.. its good to see a judge favor in the side of the people opposed to the machine.

  10.11.2006 23:40 #5

• S2K

  "...Ms. Lindor is now challenging the RIAA to explain why it demands $750 per track in damages when they are available legally to the public for just 99c....
  .....
  ...So now the RIAA needs to explain how it has come to the $750 per track figure. ...."
  
  Dela,
  I don't know the news outlet(s) that you used to source this piece but they and afterdawn need to mention that the $750 per is not "made up" or calculated by the RIAA or the court.
  
  It comes verbatim from the the US code, and is the minimum in the actual code!
  
  This is a key element in understanding RIAA legal tactics. They get $750 per (ie if someone is sharing 50 songs $37,500), as a "Summary Judgment."
  
  So they never have to go for a jury trial (they sure don't want to). In a civil case the defendent has NO right to have a jury decide damages if the "actual damages" being requested are the minimum.
  
  In this case the actual damages have not been theoretical, not up to the defendant or plaintiff or an outside expert to calculate or give opinions on or argue. they are spelled out in the code ("statutory damages").
  
  A jury would get involved ONLY a) if the plaintiff were asking for either more than the minimum on "actual" damages or for punitive damages as well; or b) if the defendant were claiming no intent, knowledge that the work was copyright protected and that an infringement was occurring, in which case the damage amount spelled out in the code is $200 [again this is per violation and since a) intent on uploading is estblihsed in case law and b) the RIAA could assert huge damages of $200 x a thousand or ten thousand defendants are scared to make this an issue].
  
  The way the case law stands (so far) is that the RIAA only has to prove that a person made each song available to one other person. BANG that is $750! If you upload to two persons that either a) $1 + $1 = $2 or b) $750; *whichever is greater* = $750. Etc.
  
  Therein lies the key. The RIAA so far has not needed to prove anything other than you made the song available. a) Case law says making a song available is infringement; b) Statutory law clearly says each infringement is $750. If you ask for $750 per infringement, the only thing for a judge or jury to decide is whether the song was shared and if you are the responsible party.
  
  Summary judgment on award =no jury's in the award amount.
  
  So what Lindor is arguing is the constitutionality of the amount spelled out under the statute. Specifically if the difference between $750 and $1 or $0.70 is so much that its automatic acceptance is a violation of "due process." The defendant is saying the minimum of the statute, which is awarded absent a jury, is so high that without a jury it is inherently a violation of constitutionally guaranteed "due process" (in this case due process being right to a jury or judge deciding amount).
  
  Kudos to Lidnor for fighting but I think this effort motion will ultimately fail. Lindor is not being sued for possessing or downloading the material. In the briefs the RIAA language makes it clear she is being sued for distributing.
  If you read the full supporting brief notes her lawyers are actually arguing that she (being sued for uploading) can only be guilty of one infringement because the downloaders -- who have never been sued in any case -- need to also be assigned part (nearly all) of the $750.
  here is one of the supporting notes:
  http://yro.slashdot.org/comments.pl?sid=205926&threshold=1&commentsort=0&mode=thread&cid=16796474
  
  Either the court will have to create entirely new case law and make an entirely new assignment of responsibility to downloaders (where burden on proving intent is huge and unproven); or challenge statutory damages in US code where the amount of damage stipulated is intentionlly not supposed to be actual financial loss. Either is problematic

  11.11.2006 02:58 #6

• limelight

  Very impressive.
  
  Maybe this will keep the RIAA from being such a bully.

  11.11.2006 05:25 #7

• Dela

  S2K, thanks for explaining it better, I was very confused with my limited number of sources last night. Obviously I learned from the blog that Lindor was arguing is the constitutionality of the amount spelled out under the statute - but another fairly "high profile" source choose the wording "The RIAA has to explain" so really I was pretty much sitting down with two links that told different stories ;-)
  
  I'll make some changes to it soon, thanks again :-)

  11.11.2006 06:25 #8

• gogochar

  Typical. Always wanting more than they deserve. Down with the RIAA. Up with the private songwriters.

  11.11.2006 06:55 #9

• shadow222

  I agree with this idea, but it is not always the case in law to charge damages equal to the actual loss. For instance, many times added in with the fee is an added amount to scare off other potential pirates.
  
  Like, if one downloaded 10 songs, the damage would be 7 dollars, but the fee would be 700 dollars, since that then deters others from downloading the songs, fearing the large fee...
  
  However!!!!! I really think that to charge ONE person for EVERYONE'S mistakes is wrong, and illegal. If she created damages of 50 dollars (or whatever), opposed to 750 dollars, then the fee should be JUST what SHE CAUSED. I hope the RIAA gets nothing, they are mean!

  11.11.2006 08:10 #10

• thekingo7

  suck on that RIAA fatcats!.

  11.11.2006 12:42 #11

• tabletpc

  wow that is bull
  
  first off i am amazed that the RIAA is allowed to reques 750 dollers per track if tthey think this is bad wait for microsofts zune player which allows users to share wirelissly any music on any zune player which means free music worse DRM for windows media player has been hacked which means this pecial you can listen to songs for 3 days before purchase gives hackers the right to use sound recording software to make a unlocked recording of the free for 3 days mp3 well i guess microsoft didn't think this through now did they just wait for this law suit my question is simple the RIAA is going after this lady well why didn't they go after microsoft for illegal music sharing oh wait thats because the zune player is run by universal music not by the RIAA which in this case can go straight to heck on

  12.11.2006 21:12 #12

• ZippyDSM

  any new news on the aussy AG that questioning the 740 a song thing?
  Of coarse it wont effect our case law any sadly...

  14.11.2006 05:55 #13

• chrialex

  S2K,
  I'm a little confused now. You say that the RIAA gets $750 per song per upload, which as a criminal justice major I can see (NOT APPROVE!!!) of where they get to that ammount. But the part that I am confused is, as someone who hasnt been following all the information as I should, is what you wrote mean that according to the RIAA you can download all you want, but they will only go after you if you upload to others? I might have read that wrong, I did just get up, but is that what your post meant?

  18.11.2006 15:32 #14

• ZippyDSM

  chrialex
  nononononno
  they are charging 750$ for each song when they rape..err sue someone.

  18.11.2006 15:36 #15

• chrialex

  ZIppyDSM
  I know they charge that when they do, my question was are they just going after people who upload (redistribute for free), or are they going after anyone who (in their eyes) is part of the piracy issue? ie, if 1) I just download music, and not share it with anyone, am I ok? compared to 2) if I want to stay out of court and under their radar, dont download, share, or do anything with music on a computer that has an internet connection? extreme, but sometimes thats what it looks like...

  18.11.2006 15:48 #16

• ZippyDSM

  chrialex
  Obscure law even I am unsure about but basically they are targeting uploaders/shearers more than downlaoders but as the great beast they are they will go after anyone they have info about.

  18.11.2006 15:52 #17

• chrialex

  ok, thats what I thought, just the reply by S2K made me wonder if I was misinformed. Maybe I should have waited to read an article concerning the RIAA until I was fully awake lol

  18.11.2006 15:56 #18