Don't Be Too Quick To Cheer On FCC On Its Net Neutrality Response

Woman Admits File Sharing; Challenges Constitutionality Of Copyright Act

from the now-that's-chutzpah dept

Tue, Jul 29th 2008 9:22am — Mike Masnick

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

43 Comments

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Anonymous Coward, 29 Jul 2008 @ 9:56am

RIAA has the courts in their front pocket! Nothen a $ won't buy.
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Willton, 29 Jul 2008 @ 9:58am

Re:
Are you saying that the RIAA is paying off judges?
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Anonymous Coward, 29 Jul 2008 @ 10:00am

So the headline should read, "No new news here."
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Anonymous Coward, 29 Jul 2008 @ 10:19am

Can't they use the recent supreme court case reducing the fine that Exxon has to pay for the Valdez spill?
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TheDock22, 29 Jul 2008 @ 10:20am

Strategy is Good
This will be a VERY interesting court case to watch. I doubt the constitutionality of the copyright law will be reversed, but I DO think the court will look into the outrageous fines the RIAA is trying to impose. Because of this, the RIAA might actually drop the lawsuit. Think about it. If the court rules that $3.50 is the most the RIAA can charge for "making available" there lawsuits go from hundreds of thousands in damages to a couple hundred dollars. This would RUIN the RIAA in court, so I bet they quietly negotiate a deal to keep the courts from ruling on this. Interesting in deed.
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Michael Long, 29 Jul 2008 @ 10:29am

Fines
Most fines or other punishments for breaking the law factor in deterrence. After all, if you got caught shoplifiting the DVD, and that simply meant that you have to pay the retail cost, then everyone would try to shoplift it first, as worst case you'd pay for what you wanted anyway.

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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Scorpiaux, 29 Jul 2008 @ 11:10am

Re: Fines
Fines and penalties are supposed to hurt. Whether or not a given fine is excessive is a matter of judgement. Certainly, a penalty of a million dollars is way out of line if the offender is an individual and the number of other parties is small, but a fine of a few hundred to a few thousand dollars seems like a fair punishment and a deterrent to some others.
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Jed, 29 Jul 2008 @ 11:10am

Re: Fines
Very true sir. But $3.50 is 2.8x the amount the RIAA would have made on the song. While I'd say that's a pretty low threshold for deterrence if the court ruled in her favor they would probably bump it to something like 7x.
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Brad Eleven, 29 Jul 2008 @ 11:31am

Re: Re: Paying off judges?
What??? I'm shocked--shocked--to find that improper influence is going on here! What's that? Oh, yes, my bribes, thank you.

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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Mike (profile), 29 Jul 2008 @ 11:41am

Re: Re: Fines
Fines and penalties are supposed to hurt.

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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Anonymous Coward, 29 Jul 2008 @ 12:00pm

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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Willton, 29 Jul 2008 @ 12:34pm

Re: Re: Re: Fines
This isn't just "a matter of judgment" as you say. It's a legal issue that has some precedent.

And this precedent is..... ?
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Anonymous Coward, 29 Jul 2008 @ 12:53pm

Fines for crimes usually go to the state. The RIAA is looking for compensation.

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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boost, 29 Jul 2008 @ 12:53pm

stop consuming content...
The only real way to teach the RIAA and the MPAA that their business model is wrong is to beat them at their own game. Stop consuming content period for a while (like a year or so). Don't go to the video store, don't go to the music store, don't download (even for free). Then when everyone has stopped buying new music and has stoped going to concerts, the RIAA and the MPAA will be shitting their pants to get content out there to entice consumers to buy anything from them.

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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Michial, 29 Jul 2008 @ 1:16pm

Re: stop consuming content...
#14, have you paid even a little attention to the price of Oil and the reasons it's going down in price? Consumption is down 2-4% over last year for the past 2-3 months.

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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chris (profile), 29 Jul 2008 @ 1:18pm

Re: Re: Re: Re: Paying off judges?
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.

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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jim bob, 29 Jul 2008 @ 1:30pm

The best way to combat this is to not buy music from this stupid people nor download it..dam them to obscurity. download dance music from euro dj's instead. Live DJ sets and podcasts are avalavble for free.
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Anonymous Coward, 29 Jul 2008 @ 1:37pm

RIAA can suck it!
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James, 29 Jul 2008 @ 1:45pm

Rob them (legally)
Like some of the others posters suggest, and I agree, cut OFF their money supply. No CDs, no downloading, no DVDs.. make them hurt financially (at least for content for major labels represented by the RIAA).

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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Willton, 29 Jul 2008 @ 1:53pm

Re: 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.

Considering that a majority of this rather liberal Supreme Court was appointed by Republican presidents, I'd say it is.
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boost, 29 Jul 2008 @ 1:55pm

Re: Re: stop consuming content...
I don't think we need to tell them why we're not buying their shit. We just need to do something to make them start thinking "out-of-the-box" (not to sound to cliche').
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boost, 29 Jul 2008 @ 1:59pm

Re: Rob them (legally)
agreed.

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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Anonymous Coward, 29 Jul 2008 @ 2:35pm

Re: Re: Fines
Fines and penalties are supposed to hurt.
Punishments should be reserved for criminal cases. Civil cases of this type should be limited to restitution.
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Anonymous Coward, 29 Jul 2008 @ 2:38pm

Re: Re: Re: Re: Re: Re: Paying off judges?
Considering that a majority of this rather liberal Supreme Court...
Huh? Has dementia got you thinking we're back in the 1960's?
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Anonymous Coward, 29 Jul 2008 @ 3:03pm

Re: Fines
After all, if you got caught shoplifiting the DVD, and that simply meant that you have to pay the retail cost, then everyone would try to shoplift it first, as worst case you'd pay for what you wanted anyway.
Imagine a shopkeeper that catches a kid stealing a candy bar. The police and the kid's parents are then called to the shop and the shopkeeper demands that the kid's parents not only pay for the candy bar but give him half a million dollars to boot. Doesn't seem quite fair does it? Well, it isn't and the law doesn't allow it either. All the shopkeeper gets is the price of the candy bar. He doesn't get to get rich off the incident and any punishment is a criminal matter. Why should the RIAA/MPAA be any different?
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Willton, 29 Jul 2008 @ 3:43pm

Re: Re: Fines
Imagine a shopkeeper that catches a kid stealing a candy bar. The police and the kid's parents are then called to the shop and the shopkeeper demands that the kid's parents not only pay for the candy bar but give him half a million dollars to boot. Doesn't seem quite fair does it? Well, it isn't and the law doesn't allow it either. All the shopkeeper gets is the price of the candy bar. He doesn't get to get rich off the incident and any punishment is a criminal matter. Why should the RIAA/MPAA be any different?

Because the statutory damages for copyright infringement do not amount to anywhere close to half a million dollars.
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Anonymous Coward, 29 Jul 2008 @ 5:28pm

Re: Re: Re: Fines
... and everyone leaving the store is accused of shoplifting. They are offered the option of paying a bribe .. errr I mean paying a fee rather than going to court.
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Anonymous Coward, 29 Jul 2008 @ 6:28pm

Re: Re: Re: Fines
Because the statutory damages for copyright infringement do not amount to anywhere close to half a million dollars.
Bag of M&M's with 54 pieces in it at $9,250 each = $500,000. File with 54 songs in it at $9,250 each = $500,000.

Seems pretty close to half a million dollars to me.
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Anonymous Coward, 29 Jul 2008 @ 6:35pm

Re: Re: Re: Re: Fines
Bump that up to 55 pieces in both cases to cover rounding.
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Willton, 29 Jul 2008 @ 7:27pm

Re: Re: Re: Re: Fines
Bag of M&M's with 54 pieces in it at $9,250 each = $500,000. File with 54 songs in it at $9,250 each = $500,000.

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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blahblahguy, 29 Jul 2008 @ 10:31pm

Re: Re: Re: Re: Re: Fines
http://blog.wired.com/27bstroke6/2007/10/riaa-jury-finds.html
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Mike (profile), 29 Jul 2008 @ 10:53pm

Re: 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.

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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PaulT (profile), 30 Jul 2008 @ 12:29am

Re: Re: Fines
The laws as written assume that any piracy taking place will be done for the sole motive of profit. The fines and penalties are meant to discourage piracy in a physical world, where any piracy incurs an inherent cost and therefore a profit motive.

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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Brandon Eubanks, 30 Jul 2008 @ 1:21am

can't put the genie back in the box
I've been saying it for years, and apparently some people listened. The problem with the recording industry is this. Their profit margin is based on fallible mediums, that then have to in no particular order: have artwork printed up, medium duplication, packaging, shipping to destination, sometimes paying retailers to stock their product. And that's a simple list. We consumers on the other hand have predominantly no I'll say totally received music on fallible mediums. Lets just say the music industry has not gone out of their way to enable the consumer to receive another copy of the music they purchased when not if the medium fails. This in addition creates a false economy. I don't know about you folks but I've had to repurchase music many times, and not just when the medium fails but also when technology moves forward sometimes. These guys are just trying to stick the genie back in the bottle. You can't do it. The whole internet thing happened. Record execs please pull your collective heads out of your arses, and realize that the people have spoken they want music: High Availability, reacquisition abilities, try before you buy, single song purchases(I don't want to buy your whole CD if every song but one is crap), fair price. Amazon has done this in my opinion. Apple your still suck, because drm sucks. Amazon is doing well in my opinion with perhaps a few others that I'm not aware of but what about people in countries where they might make say $36/year can you really even blame them for not buying a single song that would equal one 36th of their income? As for the unfair price gouging I get the feeling they got together with law makers and suggested a figure that would make it at least somewhat worthwhile to file these types of suits. All I can say is move with the time people or cease to exist
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LLdrop digg, 30 Jul 2008 @ 2:07am

get a full trial with a jury
I will repeat my subject: 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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Chad, 30 Jul 2008 @ 11:27am

Based on this whole lawyered-up extortion...
...it wouldn't be in the least bit surprising if bribery was involved at some level.
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Chad, 30 Jul 2008 @ 11:31am

Re: Re: Re: Re: Re: Re: Re: Paying off judges?
There's a very compelling argument to make about the Left-leaning nature of the court when four Justices can rule against a clearly written constitutional principle (Heller) and Kelo finding that your clearly defined right to property is secondary the right of politicians to profit by selling your land to developers.
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Anonymous Coward, 30 Jul 2008 @ 12:06pm

Re: Re: Re: Re: Re: Re: Re: Re: Paying off judges?
There's a very compelling argument to make about the Left-leaning nature of the court when four Justices can rule against a clearly written constitutional principle (Heller) and Kelo finding that your clearly defined right to property is secondary the right of politicians to profit by selling your land to developers.
In case you hadn't noticed, the Republicans are generally recognized as the major party most favorable to the interests of large corporations and the wealthy over those of lesser means. Taking from the poor to give to the rich aligns perfectly with that.
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Willton, 30 Jul 2008 @ 1:03pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Paying off judges?
In case you hadn't noticed, the Republicans are generally recognized as the major party most favorable to the interests of large corporations and the wealthy over those of lesser means. Taking from the poor to give to the rich aligns perfectly with that.

Then why did the most conservative SCOTUS justices dissent in Kelo?
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PJ, 30 Jul 2008 @ 5:12pm

Copyright is theft.
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