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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  1. identicon
    Ray Beckerman, 3 May 2006 @ 6:08am

    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,


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