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.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Reader Comments
Subscribe: RSS
View by: Time | Thread
DRM & Vista
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?!
Sincerely,
TriZz
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.
[ link to this | view in chronology ]
Re: DRM & Vista
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
[ link to this | view in chronology ]
Re: DRM & Vista
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.
[ link to this | view in chronology ]
What ever happened to...
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
[ link to this | view in chronology ]
Re: What ever happened to...
[ link to this | view in chronology ]
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...
[ link to this | view in chronology ]
So what?
[ link to this | view in chronology ]
China
[ link to this | view in chronology ]
Re: So what?
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: http://jml.prof.free.fr/doc/TiananMen-photo.jpg
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.
[ link to this | view in chronology ]
the methods are
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.
[ link to this | view in chronology ]
Re: the methods are
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?
[ link to this | view in chronology ]
Re: the methods are
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.
[ link to this | view in chronology ]
Your comparison of letter to scholarly law review
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,
Ray
http://recordingindustryvspeople.blogspot.com
[ link to this | view in chronology ]
No..
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..
[ link to this | view in chronology ]
Wouldn't it be nice...
These are just companies, and while companies have more rights (and fewer rules) than individuals in this country, they aren't (yet) the government.
[ link to this | view in chronology ]
Hope you enjoy our suffering...
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
yeah...
[ link to this | view in chronology ]
Re:
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 ).
[ link to this | view in chronology ]
Re: Hope you enjoy our suffering...
*breathes*
HAHAHAHAHAHA HAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHA
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?"...
[ link to this | view in chronology ]
Puh-leeeeze ConceptJunkie
[ link to this | view in chronology ]
Head-em off at the pass...
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
[ link to this | view in chronology ]
Amendment VIII
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.
[ link to this | view in chronology ]
Depending on how you look at it
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.
[ link to this | view in chronology ]
Re: Depending on how you look at it
[ link to this | view in chronology ]
Re: Re: Depending on how you look at it
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).
[ link to this | view in chronology ]
Re: Re: Re: Depending on how you look at it
I'm not talking about cds or the legal technicalities of downloading or uploading.
[ link to this | view in chronology ]
RIAA is seriously getting on my nerves
[ link to this | view in chronology ]
I dont care
[ link to this | view in chronology ]
[ link to this | view in chronology ]
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
[ link to this | view in chronology ]
Re: Just a little bit.
[ link to this | view in chronology ]
Re: Just a little bit.
[ link to this | view in chronology ]
RIAA
[ link to this | view in chronology ]
Re: RIAA
[ link to this | view in chronology ]
Re: RIAA
[ link to this | view in chronology ]
RE: RIAA
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.
[ link to this | view in chronology ]
Re: RE: RIAA
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.
[ link to this | view in chronology ]
Another theory
[ link to this | view in chronology ]
thanks for your vote of confidence
Ray
http://recordingindustryvspeople.blogspot.com
[ link to this | view in chronology ]
To the AC who wants to give up music
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.
[ link to this | view in chronology ]
RIAA...
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Where does the money go?
[ link to this | view in chronology ]
re: Bathchain115
[ link to this | view in chronology ]