Are The RIAA's $750-Per-Song Fines Unconstitutional?

from the might-need-a-better-argument dept

In the past, many have questioned why the RIAA gets to request $750 to $30,000 per song fines against those they’ve charged with offering up unauthorized songs on file sharing networks. Last year there was actually a research paper published that questioned whether or not these fines were unconstitutional, since they may be excessive. That paper included some interesting case history to suggest why the fines might be a bit too high. It appears that one lawyer is finally testing a similar theory in court, and has filed a motion in one such case suggesting that $750 fines are unconstitutional. If you look at the details, it looks like the argument is based on different case law than the research paper — and the motion seems pretty weak overall in describing the details (i.e., it has very few details). The RIAA quickly filed a response that hits back pretty strongly against the original motion, saying that the case cited isn’t really relevant at all — and that the comparisons made in the motion don’t really apply. The original motion points to the money the recording industry would make from someone buying the song on iTunes, but the industry points out that buying a song on iTunes isn’t the same thing as a license to distribute it — which makes sense. It seems highly unlikely that the court will buy the unconstitutional argument, especially as presented, but it’s an interesting tactic nonetheless. It’s not clear why the original motion didn’t delver further into the issue, or use some of the info in last year’s paper as a resource to back up the claim… but maybe the lawyer decided it wasn’t that compelling.

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Comments on “Are The RIAA's $750-Per-Song Fines Unconstitutional?”

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TriZz (user link) says:

DRM & Vista

Dear Mike,

It’s a bit off topic, but one of you all should do an article about DRM in Windows Vista. I was in class last night and one group did a presentation that claimed that Vista will have something that won’t allow you to play music/videos IF you have software on your computer that would allow you to pirate it.

Imagine not being able to play DVD’s on your machine because you have DVD Shrink/Decrypter on your computer?!



On topic: The fines are outlandish – and the RIAA knows that. That’s why they settle for $3,500 – it’s a more reasonable punishment for the crime.

Anonymous Coward says:

Re: DRM & Vista

trizz, IF you choose to boot into trusted mode (and it will be your choice) then you will not be able to run untrusted software such as dvdshrink. windows has no clue whether you have it installed or not installed but sitting in a folder. but it can know when you run it, and prevent it from running.

the purpose, though, isnt to stop you from running dvdshrink. the purpose is to stop you from running other apps which can monitor a trusted, legitimate decryptor and grab the unencrypted bits.

if you want to run dvdshrink you can always boot into untrusted mode and do it.

this is the philosophy, anyway. I dont know how much of this will actually make it into vista. I can swear the following things to you though, at least:

1. booting into trusted mode will an option

2. dvdshrink will run in untrusted mode

Anonymous Coward says:

Re: DRM & Vista

If even half the things I hear about Vista are true, then it will be by far the worst pile of crud ever put out by Microsoft, surpassing even MS-DOS4 and Bob in terms of sheer awfulness.

Are people going to meekly watch their shiny new PC delete their music and movies and everything else that is not DRM approved? What happens when its installed at a company and then proceeds to delete thousands of files from a common server? Its lunacy to want to run that stinking heap.

TheMajor says:

What ever happened to...

1 – Innocent until proven guilty. Seems to me that, as recent examples show, the RIAA doesn’t care that you do not own a computer or even have internet access, they will sue you any way unless you pay up. Gee, where have I heard that before….oh yeah “I’m going to make you an offer you can’t refuse.”

2 – Common sense – The RIAA has none. They tried to kill all of the pay-per-song start ups and now that, iTunes for example, are doing well, they want a bigger cut of the pie. The people over there are just plain stupid and short sighted. A little common sense would turn their industry around.

3 – Public outcry – No offense to everyone here, but unless (US Folks) you have called your rep’s (State and in Congress), all postings like this do is…well…nothing. All we are doing is yelling “STOP or I’ll say Stop again.” (Robin Williams). I’ve called and emailed several times and even received a call back from my State rep because he didn’t fully understand the problem and wanted to know more. Most Rep’s don’t fully understand Fair Use, but they do understand “Illegal Copy”

That’s my 2 bits….

End Transmission

Andrew Strasser (user link) says:

Re: What ever happened to...

I must totally agree with you on your points stated. I also have to say it is quite a high amount, but they have to even teach the federal govt. employees not to do it. There is a serious problem with the way it works. It’s as bad as having a VCR… These sites are being punished because haha they finally found a way to actually punish someone for that big bad sermon at the begining of every movie/production made….

Anonymous Coward says:

I’m seriously thinking the best bet now is to just do away with any and all music at home, unless it’s on CD. Never buy any new ones, as just the presense of music on your PC could land you in court.

It’s easiest to just listen to the radio, or just skip it altogether.

Entertainment’s nice – but it has it’s limit on a price…

Swarmy says:

Re: So what?

throbi said: “I live in China and I do not care :-)”

Wow! what a totally salient point, thanks for adding that to the conversation. If you really don’t care then why are you A) reading the article, and B) then taking the time to comment. Here’s something for you to care about pally, go do a search for Tiananmen Square student demonstration photos. You know, the one with the guy standing down the tank? Like this:

I’ll bet you can’t find a single one, gee I wonder why?

Also, please add some words like “freedom, overthrow, revolt, anticommunist” to your posts, it will help us see less of your useless comments in the future.

On-topic: Now as to the RIAA, someone needs to challenge their proof that the defendent was actually distributing the songs, only then could they be fined equivalent to a distribution license. Mostly their proof is an IP address and songs available from it, however there is no evidence that the song was actually distributed, merely that it could have been. Unfortunately for them, “could have” is not legally actionable. Someone who can afford a [good] laywer will eventually be targeted and then we’ll see some of this crap come to light in court.

James Susanka says:

the methods are

the fines aren’t unconstitutional they can charge what they want – it is their product and they can protect it with any fines they seem fit.

what is unconstitutional is the way the are going about it and the dmca – they can go after people without a court order – that is unconstitutional – along with every provision in the dmca.

with drm and vista and the riaa they are all saying their customers are criminals by default –

this is why I will never buy music with drm in it – if I can’t rip it to ogg format then I won’t be buying it.

these companies should be selling their music in ogg format and without drm.

I mean how many times do I have to pay for the mp3 patents when I listen to a song. the media players pay for it the song makers pay for it. that isn’t even mentioning all the middle men involved – I mean it is just a song.

Joe (profile) says:

Re: the methods are

I am irritated that I can’t use purchased music anywhere else. I have a friend who bought a song online so he could put it into a family album type deal for his father and he couldn’t use the song due to it’s format and the damn digital rights crap that comes with buying a song online.

If we pay a dollar for a song we should be able to put that song in other places then our computer and put it on more than 5 CD’s. What if I want to make a mix CD for my car? I mean I have an ipod which solves that problem but what about the americans who don’t?

Anonymous Coward says:

Re: the methods are

“the fines aren’t unconstitutional they can charge what they want – it is their product and they can protect it with any fines they seem fit.”

Not so.

They can sue you for whatever they want, but how much they get in fines isn’t up to them. Fines are assessed by the law, not by the riaa.

If I were to release an image of my cat on my blog, and someone were to copy it to theirs, I couldn’t assess them for some random fine. I could threaten them to make them remove it, send them a bill and demand they pay it, or sue them for that random number. Nowhere in my options would be to level a fine at them.

Ray Beckerman (user link) says:

Your comparison of letter to scholarly law review

Dear Mike

I appreciate your critical thinking; if the Courts do as well, we’ll all be okay.

However, I must say that comparing a scholarly law review article to a letter like ours isn’t exactly fair, since (a) some poor lady has to pay for our letter; nobody has to pay for the law review article; and (b) advocacy just isn’t the same thing as pure scholarship; judges would hate it, and the lawyer’s clients would be losing more than winning, if every time there was a legal point to be made the lawyer handed the judge a law review article-type analysis discussing each and every case that ever touched upon the subject. A good advocate knows if you have a controlling case, you shut up. Parker v. Time Warner happens to be a controlling case for Judge Trager.

Additionally, your comparison is a little bit off in some respects.

1. The letter which we sent is not a “motion”, it is a letter requesting a pre-motion conference;

2. such a letter has a short page limit, and would not be used to discuss each and every authority which the writer intends to cite in his motion; even a motion would not necessarily discuss every possible authority;

3. the letter and the excellent law review article do indeed rely on the same line of cases; Parker — cited in both — is an interpretation of Campbell and Gore in the statutory damages context;

4. the Napster decision upon which we relied, which follows Parker and is the closest case on the facts to the situation described by the law review author, came out in 2005; the law review article was published in 2004.

Keep up your good work!

Best regards,


Matt says:


They can’t just charge whatever they want because “it’s their product”… hey why don’t they just charge $1 million per song and refuse to settle, then just prove that the person violated the copy agreement and the RIAA can be instant billionares.

The reason: They can’t.

If they stopped thinking that their entire music industry deserves to be millionares just for making some half-assed set of 12 songs that they call a CD, maybe the music would only be like 25¢ a song and nobody would bother getting it illegally.

I love music too but it’s really a similar problem to the oil industry. When the RIAA says they are barely making a profit, that’s because they pay their executives and probably lawyers MILLIONS UPON MILLIONS OF DOLLARS and call that an “expense”. Anyone can live on $500,000 a year, that’s more than reasonable. Any more than that is just greed. God do these people piss me off..

ConceptJunkie (profile) says:

Wouldn't it be nice...

If people would stop talking about the RIAA like it’s a branch of the Dept. of Justice? I mean, this article doesn’t really do it, but in general, it seems like the RIAA and MPAA are de facto law enforcement agencies.

These are just companies, and while companies have more rights (and fewer rules) than individuals in this country, they aren’t (yet) the government.

O RLY? says:

Re: Re:

And yet the Chinese seem to have the moral high ground when compared to such ethical paragons as the US govt, MPAA, RIAA and the like.

Its one thing for a government to ignore copyright infringement ( the Chinese ), its another thing entirely to climb into bed with the criminals and collude to screw over, jail, and steal from everyone ( the US ).

Bagpuss says:

Re: Hope you enjoy our suffering...




Wow. That’s the best one i’ve heard in a loooong time. “What did the ignorant American kid say to the guy pretending to be Chinese?”…

Neal says:

Head-em off at the pass...

1) Someone correctly determines that current fines are unconstitutional and could be successfully challenged in court

2) RIAA rigs a bogus case which, on the surface, appears to be someone challenging them on this basis – but in realityone that falls far short of making the proper arguments

3) RIAA wins case with ease sending the “message” that such arguments aren’t valid and that you can’t challenge them and win

4) Profit

Ballenger says:

Amendment VIII

“the fines aren’t unconstitutional they can charge what they want – it is their product and they can protect it with any fines they seem fit.”

The “they” mentioned above don’t decide fines as part of a pricing model. Courts do that. And on the issue of constitutionallity of excessive fines, what is in question is if the fines are excessive or not.

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

i4c says:

Depending on how you look at it

I’ll keep downloading because thats not illegal. Good luck for them to sue me on that. Downloading is no different than taping a song off the radio.

On the otherhand, if they sued someone per time the song is UPLOADED from their machine for FAIR MARKET VALUE + COST TO COLLECT ($1 per son + collection costs) then that would be justified. Anything above that is unconstitutional.

OH…one of my songs finished downloading..time to find another one to download at zero cost.

i4c says:

Re: Re: Depending on how you look at it

“actually the music played on the radio was licensed for broadcast by the radio station. the mp3s youre downloading were almost certainly not.”

so what….so you can be sued for listening to a song that a radio station broadcasted but did not have rights for? Licensing is implied when you buy the CD in the first place. Whether or not the UPLOADER has the legal rights to allow ppl to download off of his machine is strictly that users legal concern–and not the downloaders. Back to downloading free music without fear of the RIAA (Retarded Idiot Association of America).

Anonymous Coward says:

Re: Re: Re: Depending on how you look at it

you have the rights to listen to and record for fair use music broadcasted legally with proper license. You do not need any kind of license in order to listen to or fairly use this broadcast. The obligation to be licensed belongs to the broadcaster.

I’m not talking about cds or the legal technicalities of downloading or uploading.

Kaleb says:

RIAA is seriously getting on my nerves

The fact that the recording artists are being paid very little by todays hollywood standards just makes me wonder where all of the money goes. Excessive greed and a buttering up of gov. employees gives the RIAA all the power they need to blow this whole thing out of proportion. I havent bought a cd in about three years now. The indie labels are more impressive lately anyway. And when the big time record execs put out something worth buying (something creative and new, not the same old repetitive nonsense) I might have to give em’ some cash. As a musician i appreciate good music, however it’s few and far between these days. But I could be wrong and it could be a horrible tragedy! 🙂

Mr Math says:

Just a little bit.


Average CD: $14.99CAD.

Average Songs on CD: 12.

Amount for one song: $14.99 / 12 = $1.25

Minimum RIAA makes off of each song: $750.

750 – 1.25 = 754.75.

Why should anyone haev to pay 754.75 cents more than the song. if RIAA was smart they would just make it “if you download a song you don’t own you have to pay for that indiviual song with a fair price for instance…

T = tracks on cd

C = CD price

P = final price

C / T = P

Agonizing Fury says:

Re: Just a little bit.

750 – 1.25 = 754.75? And here I though that when you subtract a number greater than zero from another number that the answer would be lower. I would have expected the answer to fall somewhere aound 748.75. But then, it’s been a few years since school, so maybe it’s just one of those “new” types of math?

Drews says:


Can someone please help me understand this? I understand it is their music, but they are not a governing body and shouldn’t have the ability to fine anyone. Can Macy’s fine someone for parking overnight at their department store…. No. Can the city in which the Macy’s is located fine the driver….Yes. I don’t understand how they can fine anyone. They can sue, but not fine. Anyone???

discordia82 (user link) says:


It’s scary that on average out of 20 people, only 1 out of 19 are informed enough to make statements like this. If we keep treating businesses and lobbyist groups like government agencies, they will BECOME the government. The public as a whole need to stop being so naive and start paying attention to things other than Paris Hilton’s dogs.

Icky says:


The RIAA does not issue fines. Congress writes and passes the laws that set the allowable penalties that can be awarded in copyright infringement lawsuits. If the RIAA catches you uploading songs, they tell you they are going to file suit against you and show you how much you could potentially lose if you lose the case. It scares you. They then give you the option to settle out of court. As with any situation when two parties settle out of court, they come to a mutually agreeable settlement. No government involved.

I realize people get excited about DRM and copyright but this comment thread is so packed with well-intentioned misinformation that it does more harm than good. For instance:

>>TheMajor: “innocent until proven guilty”

There have been a handful of well-publicized cases where the RIAA sued someone who wasn’t guilty of infringement. They get their data from ISPs and that process isn’t perfect. They have, however, sued more than 20,000 people thus far and the vast majority have been legit. It is okay to hate the RIAA but misconstruing the facts is a waste of time.

>>James Susanska: “the fines aren’t unconstitutional they can charge what they want”

No. Private parties do not “invent” fines. Fines are specified in legislation that must be passed by Congress. Congress decided on the allowable minimum of $750, not the RIAA (of course, the RIAA lobbied Congress to make it a high number but it is still Congress’ decision).

I’m not fond of the RIAA but our dislike of them is largely misdirected. Capitalism being what it is, a natural evolution of a corporation is to seek all opportunities to increase wealth. The entertainment industry does it, the tobacco industry does it, the oil industry does it. Congress has complete authority to pass the legislation they see fit (and the Pres signs what he wishes). When they capitulate to corporations they do the public a disservice and our ire should be directed at them. You’ll never change the RIAA’s mind but you might persuade your Senator or Representative.

Mitch says:


Now hold on a second. If a criminal gets out of prison, and commits another crime, we ought not fault the legal system, we should fault the criminal. When the RIAA, MPAA, or any other lobbying organization writes legislation and then “contributes” to (i.e. legally bribes) Congress to encourage passage of said legislation, they are undermining our system of government. They should be held more culpable than our elected representatives, not less, because the bad acts wouldn’t exist without them. Congress is just the delivery system of the corruption.

And make no mistake, it is corruption. I own my own corporation, but I know it is not a person, despite what one widely misinterpreted court decision might say. Corporations do not have the right to vote, and so should not be able to lobby. Neither should they be treated as a “person” or have the right to vote. We capitalists can’t have it both ways: either a corporation is a person, and subject to all civil and criminal laws governing individuals, or it is not a person, and subject to different laws.

What do we do in the United States to those convicted of mass murder? Right, we execute them. But was Bridgestone/Firestone executed? What about Union Carbide? Nope. Hence, they cannot, by definition, be legal persons.

Until we clean up the oligopolies corrupting our government, we can’t hope to have a prayer for honest government.

A musician says:

To the AC who wants to give up music

I understand the sentiments to just give up on music. But that’s cutting off your nose to spite your face.

There are tens of thousands of bands and musicians out there who make music for pleasure and give it away free on the net, lots of it is very good indeed.

Sure, don’t buy, copy or propagate commercial music. Start sending a message to the RIAA creeps by boycotting all their artists. That means not listening to it, even for free. The age when we all had a common point of reference and followed the same few hundred acts has passed. I find when it comes to dinner conversation people are far more interested to hear about the new and unusual bands I have discovered than the other way about. “Have you heard the new Coldplay album?”… “Sorry, who are Coldplay?”

My interest in music and the diversity of my collection has skyrocketed since I stopped downloading and buying mainstream rubbish. I’ve never felt music was a more rich and satisfying entertainmant experience than it is today, Only difference is you have to go look for it. You’ve probably never heard of 99% of the music in my collection, because neither had I until I got into it.

jasen says:

re: Bathchain115

The day that the RIAA can show one single copyright they own I will begin to take them seriously. They own none.

Of course they don’t. But they are legally representing the labels that do own the copyrights. They’re an association remember. Their associated members gave them the right represent them in court.

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