Woman Who Claimed RIAA Infringement Damages Were Unconstitutional Settles For $756/Song

from the cheaper-to-settle-than-to-fight dept

We were a bit surprised last month when Denise Barker, who had been fighting the RIAA in a file sharing lawsuit decided to take the strategy of admitting guilt but challenging the constitutionality of the Copyright Act. That seemed like a longshot that was unlikely to play well in court — especially a court that had already decided against her in interpreting the whole “making available” thing. So, it should come as little surprise that Barker has agreed to settle, rather than fight on, even if her lawyer, Ray Beckerman was more than willing to keep fighting.

The settlement comes to $756 for each of the eight songs she’s accused of sharing, and the details of the settlement work out that she’ll be paying $110 per month for 55 months (running through February of 2013). That adds up to $6,050, which I imagine will put a crimp on Barker’s spending on actual music. While she did break the law, and admitted to breaking the law, the punishment does seem way out of line with the “crime.” It’s arguable that she did any “damage” at all to the recording industry, as there’s a decent chance that she actually helped promote certain artists.

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Comments on “Woman Who Claimed RIAA Infringement Damages Were Unconstitutional Settles For $756/Song”

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Perry Epquin says:

Is that it?

Textbook publishers have been doing this for a while (www.auctionbytes.com/cab/abn/y05/m04/i25/s02) and already recieved several substantial judgements, one against a GA Tech student here (www.pearsoned.com/pr_2007/110507a.htm). These amounts are larger. I know you’ve all heard alot about this.

Has this activity hurt their business? Well, you can decide for yourself here:(www.forbes.com/afxnewslimited/feeds/afx/2008/07/28/afx5258583.html) and here (www.bloggingstocks.com/2008/06/20/john-wiley-doubles-q4-profit-pier-1-narrows-q1-loss/).

Clearly, they want only want to protect their authors, I think they’ve done a pretty good a job, you can read about that here (www.publishersweekly.com/article/CA6522188.html).

tz (user link) says:

good for the RIAA, bad for the artist

That’s $110 she won’t have to spend on going to the shows of her favourite artists (2 people, one show a month), after downloading the latest single for free– which piqued her interest in the show in the first place. Further taking away one of the sources of near-direct sales from the musicians.

Good job looking out for your artists, RIAA.

laughing willow (user link) says:

Re: good for the RIAA, bad for the artist


i long ago abandoned paying for CDs or mp3s – i only download trade-friendly bands, and borrow CDs from friends. i never publicly share, but i wish i could.

it’s best to just enjoy live music, and leave the recorded stuff alone, because most bands make most of their money from concerts, not royalties, anyway.

Russ Grover says:

What do you mean is that it?

Your first reference is about somone who is SELLING Counterfit Coppies of Books. (MAKING MONEY) She had 8 Files SHARED on her PC and As far as I know they don’t know how many people copied the file from her, if not then there is no damage. Remember Proof of burden… Now if she COPPIED those files from someone else, then yes, but $700.00 in damages?

That’s like your dog taking a dump on my lawn and I claim there’s $10,000.00 in damages from your dog and I need compensation…

I have no PROOF that there was that much damage.
it’s just what I BELIEVE I need to be compensated, because my whole LAWN now needs to be replaced.

Unless IMO they can PROOF that she caused $700.00 in damages and thier bottom line DROPPED because of her 8 files IMO they don’t have proof of damage…

What is really STUPID is the 6K Damage. They Probably Spend 100 times that fighting her in court…

For something there is probably no PROOF to begin with…
(That she caused ACTUAL Damage)

I hope she wins on the VAUGH law of making availble…

So if anyone leaves their car or house unlocked, they are essentially Making the MEDIA Availble for theft?

For that matter if the song is played over the air. Isn’t that Making the Song Availbe to be Coppied?

Anonymous Coward says:

Re: What do you mean is that it?

“So if anyone leaves their car or house unlocked, they are essentially Making the MEDIA Availble for theft?”

No. Don’t use the RIAA’s own fallacies against them. It helps them more than it harms them.

You are comparing an infinite good (digital media) to a scarce good (physical CD/Casette).

Perry Epquin says:

Re: What do you mean is that it?

It doesn’t matter. Read copyright law. Otherwise play a DVD of your favourite movie that clearly states ‘infringement without monetary gain’. It doesn’t matter if something was being sold or not in the light of copyright law distribution is distribution.

Also, under copyright law the very minimum she could be fined is $750 per instance. In addition, that is for each item that was infringed not the number of times it was infringed. That is why the ‘making available’ argument is such a critical decision.

You are absolutely incorrect that there needs to be actual damages. Just read up on copyright law, statutory damages ($750 – $30,000) can be awarded by the court if infringement is proved. There is no burden of proof in a civil lawsuit. In a civil lawsuit you just need to be 51% right in your argument. You are constantly inaccurate in your perception of copyright law and civil litigation. She actual recieved a judgement against 28 songs. However, in this settlement they are agreeing to settle to 8. These cases are instrumental in deciding what exactly infringement is… And yes, if you keep your car unlocked and your house unlocked and someone steals from your house, its theft. Case closed. However, companies that provide you or themselves make electronic copies need to understand that they are and will likely be distributed.

People do not understand that fighting the right thing is NOT the same as fighting the legality portion of it. Therefore that kid from GA Tech with a $300,000-400,000 judgement against him is VERY unjust. And no, they are counterfeit per se. The publishers provide electronic copies of these items. Haven’t you heard of e-books the publishers are now offering? Unfortunately, when they make a release about it, since they won the case, they can claim whatever they want.

Crosbie Fitch (profile) says:

Constitutionality of the Copyright Act?

It’s pretty clear the constitution gave no sanction for the reproduction monopolies granted by patent and copyright – see Mythologising Copyright, but even if its unconstitutionality is recognised, it’s another matter entirely to have the invalidity of copyright law recognised. Some will argue that the constitution is a guide to legislation, rather than an absolute stricture.

So, unfortunately, Denise is likely to discover what a snowball feels like in hell should she persist in this challenge, but I wish her luck. 🙂

Free Thinker says:

Her name is Tenise, not Denise. The RIAA consistently mis-spelled her name. p2pnet sets the record straight, here:

“The RIAA spelled her name incorrectly from Day One, persistently calling her Denise instead of Tenise.”


Those RIAA pricks can’t even get that right. TechDirt should have picked up on this.

innocent bystander says:

Help Me Here

I don’t understand why some people think the settlement in this case means anything. As I understand it, Tenise agreed to the application and validity of the law and then settled on damages within the statutes’ structure. Isn’t that what is supposed to happen in a society that believes if you don’t agree with its laws you change it by legislation. What’s the big deal with this outcome? Sounds like those objecting to the statutory minimums did not get the outcome they wanted. Big deal.

mobiGeek says:

Re: Help Me Here

If one doesn’t agree with the existing laws, then this case does mean something as it highlights the problem that they perceive to exist.

For those people, this case becomes an example of the wrong-headedness of the existing law in that the penalty seems excessive given the accusation and the lack of proof of any actual damage.

In addition, this is one of the first cases of this type to come to a close.

What is there that is difficult to understand there?

Anonymous Coward says:

Re: Help Me Here

if you don’t agree with its laws you change it by legislation.

Our courts are also a check against wrongful legislation, which is why she was pressing the unconstitutional angle. The point wasn’t just that she (or we) disagreed with the law, but she felt the constitution precluded such a law from ever being passed. The settlement is a big deal because, in addition to what others have said, it highlights the apparent fact that regular people are at a distinct disadvantage not because of the merits of the laws or the facts of their case, but because it’s prohibitively expensive to fight a legal battle. $6,010 over five years was more palatable than arguing her case.

Ray Beckerman (profile) says:

Elektra v Barker decision

Judge Karas agreed with Ms. Barker that the RIAA’s ‘making available’ claim failed to state a claim for relief, and dismissed it, so I am not sure how you get to saying he “decided against her in interpreting the whole “making available” thing”.

Yes he gave the RIAA an opportunity to re-plead, and he did suggest a theory the RIAA might want to try in its amended complaint.

But that’s a far cry from deciding against Ms. Barker. He squarely decided the “making available” issue in favor of Ms. Barker and against the RIAA.

No one knows what Judge Karas intended by the new theory he suggested — “offering to distribute for purposes of distribution” — since (a) there is no such theory in the casebooks, and (b) the Judge was silent as to what the RIAA would have to prove in order to establish (i) an offer, or (ii) an intention of it being redistributed by the person to whom it was ‘offered’.

Mike (profile) says:

Re: Re: Elektra v Barker decision

Mike’s not very good at getting all the facts right.

Willton, I know you enjoy trying to prove me wrong, but before you claim such a thing, you might want to try looking at the actual facts. In this case, I was correct. There is almost no way to read that decision without recognizing that the judge was deciding against what Barker and Beckerman had wanted. Even the EFF complained that the ruling was a win for the RIAA.

Mike (profile) says:

Re: Elektra v Barker decision

Judge Karas agreed with Ms. Barker that the RIAA’s ‘making available’ claim failed to state a claim for relief, and dismissed it, so I am not sure how you get to saying he “decided against her in interpreting the whole “making available” thing”.

Ray, we discusssed this when the ruling first came out. The judge basically said “yes, making available isn’t infringement but….” and went on to define every other aspects of the process in a negative way for your client. The judge specifically defined publishing as the same as distribution, and then defined the actions in question as publishing. It was decided against your interpretation in almost every way, other than in name.

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