RIAA’s Week of Hell
Written by Ben Jones on September 26, 2008It’s been a bad week for the RIAA. First their headline campaign victory over Jammie Thomas was thrown out, and then the government said it ’strongly opposes’ a bill lobbied for by the entertainment industries.
It was a midweek battle that left the RIAA’s campaign against file-sharers reeling on the ropes. Until now, the RIAA’s approach was to throw money at attorneys, who would then take on random targets, unless money and promises were given – ‘legal mugging’ as it were.
It must have felt like an attack from behind when the RIAA heard that they lost its only major court victory, with a mistrial being declared in Capitol V Thomas. Making things worse, the Department of Justice, viewed by some to be the bully’s trusted lieutenant, turned on the content industries by soundly criticizing a bill aiming to increase copyright and patent enforcement powers.
The Thomas case is now a proverbial millstone around the neck of the RIAA. At first it looks impressive, and gives a frightening impression to anyone that thinks to challenge them, but now it’s starting to drag them down. Not only was the decision in the case thrown out, the statement by the judge in support of the mistrial reads like a critique of the legal arguments put forward by the RIAA over the last 5 years.
Yet, the millstone around the neck is not just in the refuting of legal arguments. It also extends to the excessive damages that were awarded in the first trial. The $9250 per infringement has been argued to be so far past constitutional restrictions on excessive punishments, that it has brought it into public attention. Because of this, it may end up reducing the maximum amount of damages and fines that can be awarded, which may also undermine the settlement encouragement (or ‘pay instead of fight’) strategy. The end of the judge’s order says it all:
While the Court does not discount Plaintiffs’ claim that, cumulatively, illegal downloading has far-reaching effects on their businesses, the damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs. Thomas allegedly infringed on the copyrights of 24 songs – the equivalent of approximately three CDs, costing less than $54, and yet the total damages awarded is $222,000 – more than five hundred times the cost of buying 24 separate CDs and more than four thousand times the cost of three CDs. While the Copyright Act was intended to permit statutory damages that are larger than the simple cost of the infringed works in order to make infringing a far less attractive alternative than legitimately purchasing the songs, surely damages that are more than one hundred times the cost of the works would serve as a sufficient deterrent.
While 24 songs is more like two CDs (than the three the court states), that damages should go from 4000x losses (assuming 3CDs) to 100x, means that the $222,000 would be more like $5,550. That’s quite a difference. The same could be applied to amounts demanded in pre-trial settlements, where the RIAA has often asked too much. The court’s math is far more reasonable, despite being calculated using retail CD prices, which have all manner of mark-ups and distribution costs that are not relevant to digital music included. A digital download doesn’t have to pay for the CD blank and doesn’t have to pay for transportation to the store. There are no printing costs or middlemen profit. The court gives an estimated cost of $2.25 per track, the actual cost for a download is more than seven times less than that.
Of course, other arguments, ranging from definition semantics, to trying to use criminal law as precedent, were denied as well. Some of these arguments were novel, others seemed like desperation.
The other news from Wednesday didn’t help either, especially in the muddling of civil and criminal enforcement of copyright. The Department of Justice sent a letter to Senators Leahy and Specter over the Enforcement of Intellectual Property Rights Act (EIPRA) of 2008, which passed through the Senate judiciary committee last week. It stated that the Departments of Justice and Commerce had ’strong and significant concerns’ with portions of the act. In short, they said they didn’t want to be used as free lawyers for the entertainment industry, and also felt that the position of an ‘Anti-Piracy Czar’ would be, surprisingly, unconstitutional. When even the US Justice department, which has seemed indifferent to the US Constitution in recent years, uses it as an excuse to oppose new powers, it could be likened to rats leaving a sinking ship.
Of course, the past week hasn’t been only bad news for the RIAA and its members, it’s been bad press for them too. On Monday, they elected to proceed to a jury trial in Maverick V Harper, with a date set for November. The RIAA were unwilling to accept a $200/infringement settlement offered by the judge. In taking the offer, they would have had a win, but at a lower amount, and left the potential for innocent infringement defenses. However, with the Thomas mistrial ruling two days later, negating any precedent they hoped to point to, and undermining some of the possible defenses, it may seem they have gambled on a treble-or-nothing bet.
The case in question centers around 38 songs, although only 6 were downloaded by MediaSentry. What can make this case interesting is that MediaSentry may be in violation of the law, regarding Texas based investigators, and that the age of the defendant – Whitney Harper was 16 when the infringements allegedly occurred – make an innocent infringement defence possible. Attacking a young girl for actions in her teens may not play well with a jury.
All in all, a bad week for the RIAA, and it may only be the first of many. We may never know if the article written by New York based attorney Ray Backerman did anything to to bring about a closer examination of the RIAA’s cases. Nor can it be overlooked that Wednesdays are not the RIAA’s best days – exactly a week before the Thomas and DOJ setbacks, they set themselves up as targets of ridicule by suing Beckerman. They accused him of allegedly doing what they have been repeatedly accused of doing – irony indeed. Many people are doubtless wondering what excitement October 1st will bring.
Previously: CopySense Sleek Predator, or White Elephant?
Next: Warez Scene Member Gets 3 Years Probation, $2000 Fine
43 Responses
It’s certainly about time judge’s started questioning these absurd fines, they should be charged $.99 cents per song to be more accurate, 220,000 is ridiculous
Big ups to that judge.
TF is a bunch of pedofiles!!!
Well … you’ve heard the saying *A flame flickers more violently before being snuffed out* I imagine? So … was it the RIAA flickering violently before being snuffed out or is it the law flicking back violently, one final time, before being snuffed out? Time will tell.
Heck! Just wrote on this at eZee!
Nice coincidence and good article.
Cheers!
I reckon they should just STOP looking for monetary compensation and look more into punishments by name and shame.
One possibility is that they ask for the ‘accused’ to purchase the songs/movies/whatevers at the regular retail price, and name and shame them all over the news.
I reckon this would be 1000 times more effective and time saving then the BS that’s going on now.
Sweet. Nothing I love more than seeing those bastards at the RIAA hoisted on their own petard. :P
Poor Americans…
The Australian Copyright police have just admitted that they never have and never will sue anyone for downloading/uploading copyright files in Australia.
One guy got done a few months ago for CAMMING and uploading, but I guess that’s fair. he was just slapped with a $1,000 fine and 18 months good behaviour or something.
Shouldn’t the American fines/punishments be something more like that one?
@OzEEE, the RIAA scumbags are not based in the land down under mate, where these low life’s are rooted – that’s where they do the most damage.
As a quick example, how much clout does sayyyy… the Italian Mafia have in…sayyyy… Russia? Or the Russian Mafia in Italy?
Answer: Not half as much as they have in their home countries.
Its a pretty fair comparison too, the RIAA are after all nothing more than gangsters running a protection racket.
http://www.eZee.se
@ eZee
Sorry for the long reply time =)
I understand that the RIAA has no power in Australia (and thank goodness too), but the point I was trying to make was that the fines should be ALOT smaller. I mean, (in the Capitol v Thomas case) $222,000 for 24 songs? You have GOT to be kidding me!
And I couldn’t have given a better example of them myself. =) Nice ;)
Thanks TF for a great article.
Your link to the Justice Dept. letter is borked.
@OzEEE, I get what you are saying mate, but remember this… they have so much power there that they have set it up so that she *could* have gotten dinged for MUCH more, as ludicrous as it sounds: up to 150,000 per song.
Which translates to an unbelievable $3,600,000 for 24 songs!! Same songs you could can pick up from most online music retailers for less than $25.
America has some crazy laws and lawmakers, not to mention corrupt ones who are only too happy to accept big content money and favors.
*These* are the people who give America/Americans a bad name.
Cheers!
http://www.eZee.se
No one should be paying these clowns a cent. If someone wants to charge the price of a cd, fine. The money from the sale of two cds would of course be evenly distributed to the record company (ie: RIAA) and the artist. Isn’t that what happens with every cd sold? Well, maybe, maybe not. But if the sale of one cd is considered a fair distribution, then it should be used as the yardstick for all fines.
@8
Or more like none.
I don’t know what is causing this, but I still think that it should be the common people who should be the agents of change in this. Ultimately, the battle must be fought, not in the courts, but in Congress, in order to change laws. Still, a positive development regardless.
Roze
http://www.28chan.org/apstdt/
@bLaHbLaH
There are a few problems with that
1.) They still need court cases to get names, as without a court order they can’t get names for IP addresses.
2.) Without a monetary threat, they can’t get anything from the accused, unless they take it to court. They can’t force individuals to do anything without power behind the threat, they can threaten to take something to court, however, which is what they do now.
3.) The media won’t bother reporting lists of names or constant stories.
4.) Lets pretend they could just get lists of names and have them reported, who the hell is going to care about such a list?
Thumbs up to the judge who questioned about the fines in this case.
It’s about time America woke up.
Go judge.
Whether you are for or against filesharing, you have to admit that $222,000 for 24 songs is ludicrous.
I myself advocate filesharing and think we need to change or eliminate copyright in order to adapt to p2p rather than fight it.
We file-sharers have seen some significant victories in the past few days. Let’s not give up until we win. Keep sending letters to your representatives. Keep downloading and seeding torrents. And if you happen to be a content creator, why not bypass copyright problems all together and release your work open source.
@17
Or perhaps we need more militant/aggressive action?
For everyone’s reference, civil damages in any other kind of case are typically no more than 10x the ACTUAL loss.
4000x loss = $222,000 (original figure)
100x loss = $5,550 (Judge’s figure)
10x loss = $550 (NORMAL damages multiplier)
So not only is the original verdict WAY out of the ordinary, but even the judge’s example damages multiplier is excessive.
BUT, if you buy 24 tracks on iTunes and it’ll cost you $20-$25, so the MAXIMUM the RIAA should get (if anything) would be something like $250.
when the RIAA dies, i will survive
@#6
Please Die.
I think it’s about time our government steps up to this shit. I understand that we’re at “War” and are focusing in on that(although they SHOULD be focusing in on our own country and not trying to police others)it’s been too long they’ve let the RIAA try to trample and use fear tactics on the American people. You can stop file sharing almost as much as you can stop illegal drugs. you can try…but you’ll NEVER succeed. The fines are fucked an the jail time they ask for are worse than most violent crimes. up to 10 years and over 500k in fines is more than assault on an officer of the law, rape, and armed robbery(without harming someone). That’s just crazy. This is the age of information and what’s the point of trying to STOP information when you cannot. The fines should be there as it IS illegal but 220,00 to 500,00 is over doing it.
It’s time Americans woke up to this shit.
Krius
Looks like the RIAA rolled the dice on this one and ended up getting snake eyes.
A good week for Pirates! just hope more like this starts happening in the UK.
#6 , LOL like that would work.. I would never be ashamed of sharing music online, no matter what the RIAA say. No-one listens to their bullshit anymore, most people can see through the lies.
The olden ways are falling, failing, limping like a feeble gimp.
The RIAA pay to play boy’s mount and fuck a dying beast.
The home of the music is the heart of man.
Peer to Peer, freak to freak, in unseen ether and silicon sealed.
Peer to Peer, freak to freak, in unseen aether and silicon sealed.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
I now commend this chaos virus;
whenever wherever and however the combination of the letters RIAA are spoken, written, or given voice in the mind by thought, so then shall the power, influence and capabilities of the organization known as the RIAA, perceptibly weaken, falter and fail.
Any way, Seems she has lot’s of story recently but cant tell which one is real. The newest one is she is seeking some rich guy on***** “m i l l i o n a i r eromances*********** . c o m” . Its the place to meet the classy, attractive and affluent !
very good article Ben, thanks dude
of course in the first instance the US legal system should never have been open to such abuse
the retaliation of the legal industry against the RIAA (and similarily the MPAA) will be swift and severe for the gross abuse of trust placed in these seemingly august institutions
MAFIAA you lost all your brownie points with the judicial industry by giving them a grand showing up. you misled the boys and girls and made fools of the law. big big big mistake
karma has come home to roost
http://www.h33t.com where filesharing is about leading from the front
the bill is being streamlined to pass. and has support.
http://arstechnica.com/news.ars/post/20080926-ip-bill-passes-senate-no-civil-enforcement-power-for-doj.html
LOL, Piss on the RIAA. If everyone would stop buying CDs and other forms of music and hit the industry where it hurts, these idiots would go away! Boycott the industry now.
Jiffers
http://www.privacy-center.ru.tc
These dinosaurs are in their last throes.
FilthyRichmond.com
milestone not millstone.
The RIAA used to have one successful prosecution for all the millions and millions of file sharing users in the world and in the USA. Now they have zero since this was overturned. If you divide the amount of money they spent on this campaign by the amount of convictions, you get … wait, you can’t divide by zero. Plus, the number of file sharing users has increased during this campaign. Is “RIAA lawsuit campaign” going to be the new byword for epic fail?
Example usage: “Wow, Sony came up with fool-proof DRM scheme they want the entire universe to license!” — “Oh, that’s going to be an RIAA lawsuit campaign!”
“Czar”?
@32 you’re forgetting the 25,000+ (I believe that’s a fairly old figure) people who were scared into paying $2,000/$3,000 to settle which figures out to $50,000,000. Holy fu|<, that can’t be right. Can someone get some more accurate numbers?
The FSF has been fighting the RIAA, DRM, and all like issues for quite some time now. If you want to help push back against RIAA, go here:
http://www.defectivebydesign.org
“LOL, Piss on the RIAA. If everyone would stop buying CDs and other forms of music and hit the industry where it hurts, these idiots would go away! Boycott the industry now.”
—————————————
Exactly!!! Each time that any person buys a RIAA album is supporting this criminal organization…
The perfect boycott is don’t buy any RIAA music anymore.
If one day RIAA will die, please, call me. I will gladly dance on their grave!
Record Company Greed. Reduce the price of CD’s and I’ll buy them.
Anyway, I thought the IRAA owned the DOJ?
In a decade, the RIAA will be synonymous with “reefer madness” and the Salem witch trials.
I think they RIAA serves at least one valuable function: they make the banking industry executives who are so heavily involved in the financial mess we’re in seem like pretty smart and decent human beings.
I liked the Ars Technica link, except for the fact that they resorted to the cowardly tactic of claiming that “Observers believe” the bill is unlikely to be vetoed.
What “Observers”, exactly?
RIAA scumbag-sympathizers?
Don’t trust ANY article or story which relies on obfuscations such as “scientists say” or “observers believe” or similar. Wikipedia describes that as “weasel words”, and — rightly — views it as indicative of, at the very least, sloppy reporting.
We need to start targeting the RIAA and their attack dog’s (Lawyers)
I would view a lawsuit against me for downloading anything as a violation of my privacy (I don’t give a shit about the legal meaning of privacy btw)
And find out EVERY SINGLE NAME I COULD that was against me.
Starting with their lawyers then working my way up…
I’d start finding out all the information I could about them.
Then I’d post EVERYTHING I FOUND IN THE PUBLIC MEDIUM. With the simple message “These ass holes SUE CHILDREN AND GRANDMA’S”
Post their first and last names, home addresses license plates cars whatever I could dig up.
With a simple message:They live HERE. Bored with nothing to do on Hallowen? GO FUCK WITH THESE PEOPLE. Here’s their home addresses here’s what car they drive… Make em suffer…
Have a fun Halloween and Mischief Night, Assholes.
Time to start short selling some media companies, I think these guy’s will learn the hardway for not adapting there business models.
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