AfterDawn: News

Defendant says RIAA damages unconstitutional

The file sharing case of Tenise Barker has been going on for nearly three years now. Despite their best efforts, and even a brief in support of their case from the Department of Justice, all recording industry lawyers have managed to accomplish is to get their claim that simply sharing files is copyright infringement denied by the judge.

In response to an amended complaint filed in April she's now challenging the financial award RIAA lawyers are asking for. Her lawyer, Ray Beckerman, is arguing that the amount of $750 to $150,000 per song, which is several thousand times any real damages claimed, would be a violation of her constitutional right to due process.



According to Mr. Beckerman there are several options available to the judge, any of which would be likely to drastically increase the number of defendants who refuse to settle and choose instead to make the RIAA prove their cases in court.

One option offered would be to treat the entire case as a single act of infringement and assign an automatic $750 award to remain consistent with the letter of the law. Another alternative listed would be to award a total of $3.50 for each song in order to keep the amount less than 10 times the actual damages claimed (ie a single download of the song).

A third suggestion recommends treating the plaintiffs (labels) as having "unclean hands" due to their use of unlicensed private investigators (MediaSentry) in building their case.

If the judge agrees with any of these remedies it would be a crushing defeat for the RIAA's campaign of file sharing lawsuits. They depend on defendants settling to avoid paying more money than they make in a year if they lose.

Written by: Rich Fiscus @ 29 Jul 2008 18:38

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• 17 comments

• iluvendo

  I want to see how the how the riaa is going to spin this.

  29.7.2008 19:01 #1

• DDR4life

  The riaa must be treated as having "unclean hands." They're use of unlicensed private investigators and extortion tactics are illegal.
  
  I.e.: If one person (A) were to rob a bank and get away with $200K. Then afterward that person is himself robbed. He can not file suit against that thief (B) and claim damages of any kind because the money was not his (A) in the first place. What would his basis for the lawsuit be?
  
  "Your Honor, I'm here in court today, suing this man, because he stole $200K from me that I had previously stolen from such-and-such bank."
  
  Unclean hands I say. If Your Honor happens to read this, imho, I say dismiss the case with prejudice. Teach those riaa bastards a well deserved lesson.

  29.7.2008 20:14 #2

• windsong

  This is what happens when you reply to one of those RIAA threat letters folks. The minute you respond, you become a target.

  29.7.2008 22:21 #3

• 7thsinger

  Originally posted by iluvendo: I want to see how the how the riaa is going to spin this.Ditto.
  

  
  
  Learn To Backup DVDs Here
  And Here.

  29.7.2008 22:24 #4

• DXR88

  i Hope she wins.

  29.7.2008 22:47 #5

• logan1957

  You can bet your bottom dollar they'll try to have a judge agree that their so called "awards" are justifiable. I would love to know how these morons come up with the figure of anywhere from $750.00 -$1500.00 per song. But it looks like they're going down in a rapidly sinking ship now that this judge has denied their claim that sharing files is copy right infringement.
  
  So far they've lost their making available claim which they used to launch the majority of these useless lawsuits, and now they can't even claim that sharing files is wrong. I want to see the day when everyone who was sued by this bunch of thugs gets together and files a major class action lawsuit against them for harassment, illegal hacking to obtain files on the defendants computers by Media Sentry, who despite their best efforts to try and avoid being found out as being unlicensed private investigators and hatchet men for the RIAA, and who when called upon to present proof that a defendant they are suing has said song files on their computer cannot because they don't know how to read a hard drive to recover any information what so ever and have admitted as much in one trial already.
  
  The RIAA is shooting itself in the foot and biting the hand that feeds it at the same time by suing the very people it owes it's existence to, the fans who buy their crappy music, and who want only to be able to enjoy good music without having to buy a dozen CD's to get one good CD out of all the songs that are there for that artist.
  
  Also blaming P2P networks for their losses is nothing more than a bunch of greedy, archaic morons, who have a dead business model and can't get it thru their heads that they have to change with the times. Online music stores have taken the majority of their brick and mortar store business away as you can pay a small fee and download all the tracks you want by your favorite artist then either upload them to your MP3 or i Pod player and have the music YOU want to hear not what the labels want you to have.
  
  The only people they have to blame are themselves and maybe the DOJ ought to be looking at the tactics used by the RIAA to obtain their information instead of agreeing with them. If they did so this whole thing would be over as the RIAA would be found guilty of illegal hacking, coercion, threats, illegally obtaining information thru false pretenses, price fixing in regards to the price of CD sales as well as using non-licensed private firms as investigators and then trying to claim that they are merely being used as expert testimony to prove their cases.
  
  This is just another example of them being backed into a corner where they have no way out and then trying to slide by saying that they have the right to make their claims without proof and that the courts should agree with their assertions even tho they can't be proven.

  30.7.2008 00:07 #6

• svtstang

  I would love to read your post logan....please add some spacing for us! I feel like the wall of text is going to eat me!
  
  On topic
  
  This is interesting. Finally somebody standing up pointing out how the damages do not equal the crime. I will be interested to see how this one turns out.

  30.7.2008 01:07 #7

• logan1957

  Hi, svtstang, Give it a try now.

  30.7.2008 07:48 #8

• mspurloc

  Originally posted by iluvendo: I want to see how the how the riaa is going to spin this.Particularly since the RIAA is NOT a government agency! Anything above actual value of the tracks is punitive damages, no matter how you label it. Judges legislating from the bench and unconstitiutional victories by bloodsucking lawyers aside, only the government has the constitutional right to punish.
  
  In America, we fought two wars to protect our citizens from mercenaries and hired collectors. Now a crop of liberal judges and globalist lawyers have made us slaves to non-governmental agencies again.

  30.7.2008 11:26 #9

• tin23uk

  dont get me wrong im all for the RIAA burning but i do understand why they want so much in damages per song. this isnt a case of the defendant downloading a song she didnt pay for and therefore should be forced to buy the song at its normal value. this is a case of file sharing so what they are saying is how many people could have potentially downloaded the song(s) from her PC , they are forcing the defendant to pay the cost of a copy for everyone she uploaded to, as there is no way of knowing how many copies she could have shared they just hit her with the max feasable.
  
  wow now i feel dirty and need to go shower lol, just thought i would post this for anyone miss reading and thinking how the hell could they get away with charging this person between $750 and $1500 for a song.

  30.7.2008 12:04 #10

• ZippyDSM

  At best they should get 2-5X the price of the indavendaul song at a cap of per song and hand them a receipt saying they now own the song for their personal collection and be done with it.
  
  Scare tactics and bullying FAIL!

  30.7.2008 14:54 #11

• 1bonehead

  Unclean hands, now that's a novel concept for the riaa.
  

  The BPI Are: SONY, UNIVERSAL, WARNER GROUP, EMI.
  The RIAA Soundexchange Are: SONY, UNIVERSAL, WARNER GROUP, EMI.
  The IFPI Are: The same anti consumer lot as listed above!
  The MPAA Are: SONY, UNIVERSAL, WARNER GROUP, DISNEY, PARAMOUNT, FOX.

  30.7.2008 16:51 #12

• sgriesch

  If you steal 5 items from a store, you don't get charged with 5 counts of theft. Just 1 count.
  Also, if you steal $200 worth of stuff, you can't be blamed for $300 (which is a felony).
  But the RIAA's fuzzy math says if you illegally download $20 worth of music, then you should pay back $3,000,000(20 x $150,000) Now who is the real crook here?

  31.7.2008 19:15 #13

• Tashammer

  Originally posted by sgriesch: If you steal 5 items from a store, you don't get charged with 5 counts of theft. Just 1 count.
  Also, if you steal $200 worth of stuff, you can't be blamed for $300 (which is a felony).
  But the RIAA's fuzzy math says if you illegally download $20 worth of music, then you should pay back $3,000,000(20 x $150,000) Now who is the real crook here?You are being illogical and unreasonable you do not expect lawyers to work for peanuts do you? They have slaved over hot text books for years to hone their innate skills as bastards and are now trying to reap the rewards of "Crime By Law" or "Legal Crime" - interesting paradox - you have to know the law in order to break the law and they seem to think that they do.
  
  Recipe:
  1.Take 1 small tube of KY
  2.Add blunt shoehorn
  3.Acquire retractors
  4.Insert retractors up the lawyers
  5. Begin to pour large leather bound legal volumes into lawyers and their adherents.
  6.Splat with teeny amount of KY and prod with shoehorn but not enough to cause any reduction in pain or fissure formation.
  7.Slash liberally with vinegar.
  8. Video
  9. Copyleft
  10.Distribute.
  
  11. Be polite and show no meaness of spirit, instead offer sympathy and a half-chewed chocolate cookie.

  1.8.2008 23:39 #14

• Mez

  I do believe Tenise has gone through all this at the urging from the EFF. They have provided all her legal counsel. They have the tiger by the tail and it looks like the tiger may actually lose. The RIAA will be in deep doodoo if this case falls through. At the very least their reign of terror will be greatly hampered.
  
  It looks at if it will. At the trial the thrust was to proving that the shared files were on a computer owned by Tenise. They won that argument. They failed to see the venomous snake in the wood pile. It goes to show they were out lawyered by the EFF. The RIAA contended it did not matter that she didn’t know she was sharing. Her software stayed active even after she shut it down.
  
  I suspect I know where they are going with this one. Copying pages from a book in a library or backing up purchase material is legal. Down loading music is not punishable since the public has been doing it for decades. That bus already left the station. They are after her for distributing. They will contend this case is like backing up something and leaving it on a table. If someone takes it when your are not looking you are really not distributing. To distribute you have to give it away. The RIAA did not try to prove Tenise that she intended to distribute. They claimed it was a moot point. That was a fatal mistake!
  
  The hackers are not merely hatchet men for the RIAA. They are bounty hunters! They only get paid if they find wrong doing. The legal system really does not like that concept. If they were unlicensed private investigators paid a fee to check out an IP address that would be one thing. Paying them only if they find fault is something way different. I am sure the defending attorney will claim the RIAA paid these sleezeballs to find fault and will be correct.
  
  Off topic…
  In the US, the average MPG has gone down 20% in the last 25 years. This is when we realized we were going to run out of oil. Our law makers subverted laws by allowing SUVs to be rated as trucks. The guilty ones ought to be voted out. It really pisses me off to hear a fool driving an SUV claim the gas prices are a plot to take their money.

  6.8.2008 08:11 #15

• DXR88

  [qoute]
  Off topic…
  In the US, the average MPG has gone down 20% in the last 25 years. This is when we realized we were going to run out of oil. Our law makers subverted laws by allowing SUVs to be rated as trucks. The guilty ones ought to be voted out. It really pisses me off to hear a fool driving an SUV claim the gas prices are a plot to take their money.oi i like me LandRover,and my El Camino with the 396 V8 takes two gallon to crank.

  6.8.2008 14:21 #16

• FredBun

  RIAA, I'll respond, you suck, now go ahead and make me a target, ask me if I give a crap. You big time moguls make me sick, most of you are legal thieves anyway.

  7.8.2008 00:56 #17