Woman Admits File Sharing; Challenges Constitutionality Of Copyright Act
from the now-that's-chutzpah dept
A few years back, there was a research paper released that posited that the fines sought by the RIAA for copyright infringement were unconstitutional. While this argument has been brought up in some court cases, and even considered by judges, it's yet to have been an important part of any decision. That may be about to change.In the Elektra vs. Barker lawsuits, where earlier rulings had clearly sided with the RIAA on the question of whether or not "making available" was infringement, defendant Denise Barker is taking a new tack: admitting to infringement, but challenging the constitutionality of both the fines and the Copyright Act itself for establishing those fines. Instead, Barker notes that a reasonable "loss" on a downloaded piece of music is about $3.50 (which even sounds high). Considering that the fines start at $750 and go up from there, there's a reasonable argument to be made that the fines are excessive (and there's some case law to support that).
While it's an interesting argument, the chances of a judge buying it seem slim (especially considering the court already sided with the RIAA on most of the "making available" thought process). It will be a fascinating lawsuit to watch, but the odds are pretty strong against having the court decide that the Copyright Act is unconstitutional.
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Filed Under: constitutionality, copyright, copyright act, denise barker, fines, ray beckermann
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Re: Re: Paying off judges?
I don't think they're bribing judges, just making, you know, political contributions. Judges in higher courts are usually elected, which feeds into the strategy of, you know, taking the case to a higher court.
Of course, if it pinballs up to the Supreme Court, the re-election gambit is gone.
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Re: Re: Re: Paying off judges?
I don't think they're bribing judges, just making, you know, political contributions. Judges in higher courts are usually elected, which feeds into the strategy of, you know, taking the case to a higher court.
Wow. You're amazingly ignorant. Copyright cases are heard in Federal court. All federal judges are appointed by the President of the United States, and confirmed by the Senate. There is no election.
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Re: Re: Re: Re: Paying off judges?
indeed. federal judges cannot be bought off with campaign contributions. the have to be appointed by individuals who have been bought off with campaign contributions. that's a universe of difference.
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Re: Re: Re: Re: Re: Paying off judges?
Considering that a majority of this rather liberal Supreme Court was appointed by Republican presidents, I'd say it is.
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Re: Re: Re: Re: Re: Re: Paying off judges?
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Re: Re: Re: Re: Re: Re: Re: Paying off judges?
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Re: Re: Re: Re: Re: Re: Re: Re: Paying off judges?
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Re: Re: Re: Re: Re: Re: Re: Re: Re: Paying off judges?
Then why did the most conservative SCOTUS justices dissent in Kelo?
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Based on this whole lawyered-up extortion...
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Strategy is Good
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Fines
In determining fines one also factors in the odds of being caught. As an example, there's a $1,000 fine for dumping/littering where I live. One might argue, as does the file-sharer, that such a fine is excessive and that may be true.
But very few people throw trash on the road around here. Getting caught simply isn't worth it.
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Re: Fines
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Re: Re: Fines
Yes, but there are court decisions determining *how much* they're supposed to hurt, and those that hurt too much have been considered "cruel and unusual punishment" in the past.
This isn't just "a matter of judgment" as you say. It's a legal issue that has some precedent.
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Re: Re: Re: Fines
And this precedent is..... ?
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Re: Re: Fines
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Re: Re: Fines
The problem here is that there laws do not translate to the digital world. Instead of a CD piracy operation, with specialised equipment burning hundreds of CDs a day, you have a single mother who's unaware that her open wireless is being used to download music. Or a grandparent who's unaware of exactly what their grandchildren are doing when they play with the computer that they barely understand themselves.
I know ignorance is no excuse, but these people stand to be bankrupted by a law that assumes they are hardcore pirates profiting from the infringement. Is it wrong that fines over and above the value of the music is levied? Not necessarily. Is a $9,250 per song fine justified in a world where each track is worth 99c or less, and there is no profit motive for infringement? Absolutely not.
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Re: Fines
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Re: Fines
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Re: Re: Fines
Because the statutory damages for copyright infringement do not amount to anywhere close to half a million dollars.
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Re: Re: Re: Fines
Seems pretty close to half a million dollars to me.
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Re: Re: Re: Re: Fines
Likelihood that a judge would render a judgment as high as $9,250 per song = likelihood that Masnick will become pro-copyright.
Unless, of course, you have some evidence to the contrary.
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Re: Re: Re: Re: Re: Fines
Yeah, that'll never happen... oh, whoops:
http://www.techdirt.com/articles/20071015/170440.shtml
Unless, of course, you have some evidence to the contrary.
Well, for good measure: http://www.techdirt.com/articles/20071015/170440.shtml
Does this mean I now need to be "pro-copyright"? Or does it mean that Willton will, for the first time in his life, admit that sometimes he's wrong?
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If you steal a DVD, you may be required to make restitution (the cost of the DVD) to the victim, but you would be required to pay a fine to the state.
This is different, where the RIAA is asking for the restitution AND the fine.
Also, note the difference between a criminal complaint and a civil one, which is the case here.
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stop consuming content...
Consequently, this is the same argument I use for the fuel companies too and how likely is it that people will actually consume less gasoline even though it's incredibly easy to reduce your individual usage by up to 20%.
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Re: stop consuming content...
As for the RIAA and MPAA, your right, boycotting any company that supports them is the way to beat them at their own game, but you need to make them aware of WHY you are not buying from them as well.
I have refused to buy a CD or a song since the first person was taken to court, especially since at least half of my 1700 music CDs were purchased after someone else suggested I listen to a group/song.
The music and movie industry need to be reminded that word of mouth is still the most powerful form of advertising out there.
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Re: Re: stop consuming content...
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Rob them (legally)
Imagine their whining and bellyaching if CD and DVD sales plummeted 50% tommorrow. It'd be absolutely hilarious.
Its the one perfectly legal way we can truly put them in their place and there is nothing they can do about it..... except, maybe update their business model.
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Re: Rob them (legally)
Personally, i can do without the mass-produced crap that, for the most part, comes out of the music industry these days. I think I need some blues, jazz, and classical music to keep my sane from day-day. However, I could survive without hearing the latest rock or other popular music all the time. I don't think I wouldn't be missing out, but I could survive without it. Therefor, I won't be buying anything new for a while and it would be easy for 100 million other Americans to make the same choice. The music industry does not own us.
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can't put the genie back in the box
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get a full trial with a jury
I trust many people are over this fight already and would only see it as a waste of their time, if not hope there is someone on the jury who knows about nullification and why victimless crimes are bullshit.
The RIAA should not exist because it is the industry's falt to not developing a cheaper model which will Actually PAY The real artists, or they have to admit fail and allow artists, even those under contract, the right to promote their work as a private sale, via web, directly to customer.
Napster had a plan to implement a pay-scheme as needed so it is their own fault for not embracing the technology and now all teens steal tunes.
They have gotten what they deserve. Fhuk the RIAA !
After all, most songs are shitty 128k and should be free already, with purchase or in an ad or some shit..
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Oil prices
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good
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