More Judges Realizing That Statutory Damages In Copyright Suits Out Of Line

from the bringing-some-sanity-back dept

The heart of Charles Nessons' case against the RIAA is that the copyright law cited to attack file-sharers is unconstitutional due to the ridiculous statutory fines put on copyright infringement. The original fines were really meant for commercial copyright counterfeiters -- and the law was never intended to be used against random internet users sharing some songs off of their computer with no profit motive at all. The law also didn't anticipate songs being sold for less than $1. So, with statutory fines for each act of infringement sitting between $750 and $150,000, there are some big problems. Luckily, it appears some judges are beginning to agree with the idea that these fines are ridiculous. Ray Beckerman highlights a recent ruling by District Judge Shira A. Scheindlin in the Southern District of New York, where Schendlin stated:
"At the end of the day, 'statutory damages should bear some relation to actual damages suffered'... and 'cannot be divorced entirely from economic reality'"
Beckerman notes that a more reasonable standard would be somewhere between zero and nine times the actual damages -- with the lost profit on a single download being approximately $0.35 -- meaning damages per song should range from $0 to $3.15 per song file. Somehow, I'm guessing the RIAA will disagree.


Reader Comments (rss)

(Flattened / Threaded)

  •  
    identicon
    Anonymous Coward, Dec 1st, 2008 @ 8:05am

    Hell, even $0 - $9 would be reasonable.

     

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    Anonymous Coward, Dec 1st, 2008 @ 8:14am

    Somehow, I'm guessing the RIAA will disagree.

    As will the federal district courts. Dicta in opinions is nothing more than nonbinding observations.

    Only two things will change this state of affairs. First, Congress may choose to amend the law, but this is unlikely in the current political climate. Second, a plaintiff (if the alleged infringer) may perhaps get a lower court to declare the statutory damages portion as incorporating the concept of punitive damages, and that such punitive damages portion must bear some relationship to damages actually incurred. This second approach would in essence seek to declare at least a portion of the law as unconstitutional, which will be a hard sell given the deferrence by the judiciary in this area to Congressional action.

    Only a very few federal judges have the cojones to declare acts of Congress unconstitutional except in the most obvious of circumstances, so it would be unusual to see a decision in the near term challenging its constitutionality.

     

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      Cygnus, Dec 1st, 2008 @ 5:53pm

      Re:

      Only a very few federal judges have the cojones to declare acts of Congress unconstitutional except in the most obvious of circumstances, so it would be unusual to see a decision in the near term challenging its constitutionality.
      Seeing as how the granting of patent and copyright rights is a power specifically granted to Congress by the Constitution (see Article I, Section 8) a court's reticence to speak against Congress in that forum might be somewhat justified. IMHO.

       

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    Erv Server, Dec 1st, 2008 @ 8:28am

    RIAA

    The RIAA will always disagree with any idea other than their own. Reality is slowly but surely taking hold however.

     

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    Anonymous Coward, Dec 1st, 2008 @ 8:38am

    call it $10 per song and suddenly it seems expensive to extort your customer base. if that happens, of course RIAA/MPAA will find some way to sue groups of people at a time. maybe they'll just go to Washington and whine about needing a bailout since they could figure out how to make money, even though they now collect money for songs they have no rights too.

    whats really scary is how long its taken for us to get to this point...what? fines must be based on...reality???

     

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    Anonymous Coward, Dec 1st, 2008 @ 9:08am

    Not that I agree, I don't, but these kinds of fines have a set of factors associated with them:

    1) Damages, which would amount to the handful of change suggested ...

    2) Punitive/deterrent -- you were naughty, you oughtn't to do this ...

    3) The makeup effect - If we only catch 1 out of 100 crimes, we must fine that one guy to make up for the ninety-nine we fail to catch ...

    With file-sharing, there's a fourth factor, namely that the copyright infringement crime has a tendency to multiply ... if I share this file with two people, they share with two each ... etc.

    These four factors together combine to give you these walloping fees. I don't agree with it, but that's the thinking behind it.

     

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      Anonymous Coward, Dec 1st, 2008 @ 9:16am

      Re:

      With file-sharing, there's a fourth factor, namely that the copyright infringement crime has a tendency to multiply ... if I share this file with two people, they share with two each ... etc.

      Except the laws in question were enacted long before the Internet became public. And your specious argument conflates file sharing with pyramid schemes. Sorry, but you're making assumptions that just don't stand up to reality. If file sharing were a pyramid scheme, violators should be fined on the order of $2 billion per song.

      You should try sticking to verifiable facts, and stop making shit up. Unless you work for the RIAA.

       

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        Anonymous Coward, Dec 1st, 2008 @ 9:32am

        Re: Re:

        Actually.... it is not his thought process he is talking about it is the thought process of the **AA's. They will make up any rationalizations for their ways. I have attended meetings with some of the RIAA shills and have heard things like the pyramid scheme being laid out (obviously not in the specific terms). They did say things like if one person hares to 5 people and those 5 share to 5 more and so on... so... not so far off base.

        Stop being a shill and start helping us on this war against the **AA's and the DMCA. All of it is a sham to kill off innovation and lock technology into socialist sheep mode.

        Good thing Obama is not a socialist(yeah right).

         

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          Anonymous Coward, Dec 1st, 2008 @ 7:29pm

          Re: Re: Re:

          Good thing Obama is not a socialist(yeah right).

          Good Bush isn't either or he might have come up with something like a copyright czar. Oh, wait...

           

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          Anonymous Coward, Dec 1st, 2008 @ 7:30pm

          Re: Re: Re:

          Good thing Obama is not a socialist(yeah right).

          Good thing Bush isn't either or he might have come up with something like a copyright czar. Oh, wait...

           

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      Anonymous Coward, Dec 1st, 2008 @ 10:00am

      Re:

      3) The makeup effect - If we only catch 1 out of 100 crimes, we must fine that one guy to make up for the ninety-nine we fail to catch ...

      I don't recall ever having seen this as part of the laws and reasons involved. While I'm not a lawyer I can't believe that this would withstand ANY serious challenge. "Well, we caught you so you must pay for everyone else whom we didn't bother trying to find", can't see it flying.

       

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    Paul, Dec 1st, 2008 @ 9:18am

    If you make each song worth 1 doller, or 10 dollers, there just going to go after you for MORE songs.

    Right now thay take you to court for 10-30 songs, If this change happend they would take you to court for 100-300 songs.

    Then it becomes a paperwork mess to figure out what songs were really traded, and a big, "You did this, no I dident" war of words that still cause people to settle out of court.

     

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      Anonymous Coward, Dec 1st, 2008 @ 9:38am

      Re:

      I have awesome lawyers that will work for me until the end. Awesome thing is I'm not rich. My mother works for a copyright and IP atty. He and his staff will work for me until the case is complete and only then will they require payment. I have had discussions with him and others many times and they disagree with the way the courts have been handling the cases. There are a few cases that are starting to go in the right direction.

      The idea here is to make the RIAA hurt as bad as they think you will hurt. Let them drag it out for 10 years. Do not ever give up. After too long, the courts will get pissed and kill the case because they are wasting time.

       

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        Cygnus, Dec 1st, 2008 @ 5:57pm

        Re: Re:

        I have awesome lawyers that will work for me until the end. Awesome thing is I'm not rich. My mother works for a copyright and IP atty. He and his staff will work for me until the case is complete and only then will they require payment.

        LOL! I'm sure you do.

         

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      Anonymous Coward, Dec 1st, 2008 @ 10:48am

      Re:

      100-300 songs? At about $3 each? They'd have to go after me for several THOUSAND songs, and I havn't GOT anywhere NEAR that many.

       

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      Anonymous Coward, Dec 1st, 2008 @ 11:50am

      Re:

      What are these "dollers" you speak of, and in what land are they legal tender? Here in Uhmerikuh we calls 'em dollars, and we like how that word is spelled, not to mention "dident".

      Anonymous though I may be, I am still every bit an ass.

       

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    Anonymous Coward, Dec 1st, 2008 @ 9:41am

    I always thought the point in the huge fines was to be a deterrant (one of the points, anyway).

    Say it costs... I dunno, I don't buy stuff online, say it costs $3 for a single track from a newly released single/album. You download it illegally and get caught; the fine is $10 for each track. That's not a particularly huge problem for most people, especially considering the liklihood of being caught in the first place.

    If it's $10,000 for each track, it's a much bigger risk, and thus harder to justify downloading them.

    I think that's the point behind it. If you got fined a reasonable amount for each track, say double the market price, then considering the liklihood of you getting caught in the first place, it's worth just downloading everything.

    I still think it's pretty damn stupid, but hey, I'm willing to bet this is the line of logic they try to use.

     

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      hegemon13, Dec 1st, 2008 @ 12:03pm

      Re:

      You may be right, but you have just defined punitive damages. The size of the punitive damages, in this case, make it unconstitutional. Punitive damages this large may only be a part of criminal law, not civil law.

       

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    Anonymous Coward, Dec 1st, 2008 @ 10:11am

    Whats wrong

    No one wins unless everyone wins, and you don't win by beating up on people who can't defend themselves. That's been the approach of some of the right-wing governments and trade groups across North America.

    They pick on the people that can't defend themselves and at the same time are given financial support, tax breaks, and tax benefits when they don't need them.

     

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    Bigger Ass, Dec 1st, 2008 @ 11:58am

    Don't you know a dident is a spear with two heads? Sheesh.

     

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    Anonymous Coward, Dec 2nd, 2008 @ 11:33am

    Re: #8

    This particular mode is not in fact socialism. Socialism would have us all benefit freely from the songs. What the RIAA is depending on here is capitalism, combined with the corporatist laws currently in place.

    Please know what you're talking about before you villify something you don't understand.

     

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