RIAA Calls Another Critic Vexatious After She Points Out Flaw In RIAA Logic

from the time-to-get-a-thesaurus dept

Mon, Oct 20th 2008 8:11am — Mike Masnick

It appears that someone in the RIAA's legal team discovered the word "vexatious" lately and now likes to use it. First, the RIAA declared lawyer Ray Beckerman vexatious, and now it's trying to pin the same word on a woman who is demanding a jury trial in her battle against the RIAA. We had written about this case back in August, where the woman used an innocent infringement defense to try to get the fines for file sharing decreased. That is, she admitted that she had shared the files, but rather than accepting the $750 to $150,000/per song fines that might entail, she claimed that she had no idea what she was doing was illegal, and that the law allows for such cases to be reduced to a $200/song fine.

The RIAA initially pushed back on this, but eventually relented and let the judge set a $7,400 total fine, thinking that the case was pretty much wrapped up. Except... there's the problem of the Jammie Thomas mistrial ruling, which added to a long list of rulings that claimed that "making available" files wasn't necessarily infringement. So, the woman in this case, Whitney Harper, is now pointing out that the number of files she's "guilty" of infringing should be reduced based on the Thomas ruling. She notes that while she made 37 songs available for download (hence the $7,400 fine), the RIAA only has evidence that six songs were downloaded. Thus, she believes the fine should be reduced to $1,200, and would like a jury to hear the case. You can understand why the RIAA might be frustrated, but considering how quickly it rushes out to tell other judges in ongoing cases whenever one judge rules in its favor, it seems only reasonable to have a court reconsider this case in light of the Thomas ruling.

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Filed Under: innocent infringement, lawsuits, riaa, vexatious, whitney harper

41 Comments

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Anonymous Coward, 20 Oct 2008 @ 8:33am

...
$1200 for 6 SONGS?
This is insane!
Why do we allow them to do business?
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Ima Fish, 20 Oct 2008 @ 8:36am

"You can understand why the RIAA might be frustrated..."

I can't. Her request is completely reasonable to me. The RIAA wants to rush because it wants this loser of a case over with. But the defendant wants justice, which is her right.
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mike allen, 20 Oct 2008 @ 8:58am

$1200
surely the fine should be what the download cost would be at six songs this amounts to $0.70 per download X 6 = $4.20 that would be fair assuming that ach was downloaded once.
though to quote a regular commenter on here MY ANSWEAR IS....
NOT ONE CENT
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PRMan, 20 Oct 2008 @ 9:02am

This fine seems too high still
The idea is not to say 6 songs X 99 cents = 6 bucks. There has to be a deterrent.

But courts have already ruled that 100x market value is excessive. $1200 is 200x market value, so anything over $600 is clearly excessive according to case law.
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Anonymous Coward, 20 Oct 2008 @ 9:14am

RIAA robbing Peter to pay Paul
I support the reduced fine. If you are going to sue, you better have evidence that the crime was indeed committed.

How would you like it if you had been charged for something you did. I hope they consider a countersuit. It could possibly include fancy terms such as "Wrongful lawsuit", "Subornation of perjury", which may have consequences of "Undue Hardship" It could be a good court case if she can prove undue hardship. I'm sure she probably had to take some time off from work.

Why people don't favor dis-barring people like Ray Beckerman is beyond me. After all, it's a surprisingly easy process which just requires a little digging into their professional or private life to find something such as "Subornation of perjury" or something else that is unethical per Bar Association Standards. Once you find this, you just ring up the State Bar Association to find out when their next review is, and show up.
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NullOp, 20 Oct 2008 @ 9:19am

Justice?
Make no mistakes. The law has NOTHING to do with justice. The law is simply the law. And many companies/orgs make a tidy sum by beating up people and other companies with the law.

So, RIAA is simply greedy. They have no interest in an artist receiving their royalties the RIAA wants ITS cut, period.

Its easy to beat-up on individuals but if a class action suit ever gets started it might be a different tune the RIAA sings!
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Mojo_Death, 20 Oct 2008 @ 9:19am

Fines and the LAW
It seems to me that if you do not break the law, it does not much matter what the fine would, could, should be.

I'm amazed at how many people think it is OK to hold in their possession, and redistribute someone's intellectual property without the thought of compensation.

Seems like an illogical, emotional, liberal argument of "screw the big mean corporation" - after all, they do not need to make a profit to stay in business in order to provide jobs, do they?

Thinking this way is akin to saying, "I think Target should be forced to sell everything in their store at their exact realized cost."

The argument does not hold water in a capitalist society. The same capitalist society that allows you to earn a living and pay your bills. Just remember, your time and talents have no inherent value either. It's not a far leap, with this logic of piracy is victimless, to argue that the company you work for should not be required to pay you for your time.

Then your reply would be, "Then I would stop going to work." - which emphasizes my point exactly. If the RIAA is unable to protect their property, and sell it for a profit, they will simply stop "going to work" and you will have no music at all.

The laws of nature in a capitalistic society prevail here. Just because the product is digital, does not change the economics involved.
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Anonymous Coward, 20 Oct 2008 @ 9:20am

Sorry not a lawyer but to me the judge is attempting to seize power he does not have.

To whit the web sites are not located in Kentucky which makes the issue federal not state while the judge is state not federal. Also, the alleged seized websites may not be even located in The US which would mean that US law is not applicable so even a federal judge would be out of his jurisdiction. That is not even to mention that proper legal course of action would be to give the parties the right to appear in court before their property is seized.
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Anonymous Coward, 20 Oct 2008 @ 9:21am

RIAA = Real Idiot Assholes or America!

Not 1 cent!
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Anonymous Coward, 20 Oct 2008 @ 9:29am

Re:
Wow are you a member of that association, because your post makes you look like a member.
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Anonymous Coward, 20 Oct 2008 @ 9:47am

"I support the reduced fine."

This is the issue. A fine is payable to the state not to a litigant who has not proven damages

Damages of $6.00 allows the plaintiff to collect $6.00 anything above $6.00 are punitive damages which requires intent to do damage to the plaintiff before becomming applicable.
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Mojo_Death, 20 Oct 2008 @ 9:49am

Re: Re:
Don't get me wrong... I'm all about stealing music. I just don't think it's correct logic to whine and moan about the penalties if/when you get caught. ;)
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mike allen, 20 Oct 2008 @ 9:53am

Re: Add me to your delicious
WTF has that site to do with the post jeeeesseeee
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Jesse, 20 Oct 2008 @ 9:55am

Here's what it comes down to. Proponents of "intellectual property" want to be allowed to profit from infinitely low reproduction and distribution costs, but do not want the consumer to also benefit from infinitely low distribution costs. I don't want to benefit from someone else's work with out contributing, but I also don't want to pay somebody for nothing (ie an unreasonable profit margin). What's worse, I don't want to pay somebody for something they did 20, 30, 40 years ago, particularly if they have already been more than adequately compensated. IP proponents, in these regards, are just as greedy as those individuals that pirate to avoid supporting any artists in any circumstances.

You talk about capitalist society: the business' need a profit margin, but the consumers are also always pushing for the price to drop. When demand and supply is high, equilibrium is pretty much at cost.

Every business wants to increase their margin as much as possible. If piracy didn't exist, if everyone were good little consumer and paid what they were asked to pay, what do you think the pricing would look like? The way I see it, piracy isn't about ripping off people who do legitimate work (though it may be for some), it is a natural check and balance on the businesses trying to benefit from 0 distribution cost and not pass that on to the consumer.
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mike allen, 20 Oct 2008 @ 9:56am

Re: This fine seems too high still
According to your argument when i play music on my radio show i should be fined because someone records it. Even though the station pays copyright on that music mmm weird logic.
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Anonymous Coward, 20 Oct 2008 @ 9:57am

Fuck the RIAA & MPAA
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Anonymous Poster, 20 Oct 2008 @ 9:57am

Re:
"But the defendant wants justice, which is her right."

And THAT is why the RIAA is frustrated.
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bob, 20 Oct 2008 @ 9:59am

Re:
Wrong Topic Dude.
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Bob, 20 Oct 2008 @ 10:01am

Re: Add me to your delicious
OK We Wont you spam asshole.
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ulle, 20 Oct 2008 @ 10:06am

No place in this article does it say anything about someone "stealing" anything, the lady was found to have had several music files in a folder in her computer that were available for other people to access. That is all the judge ruled on, there was no charge of "stealing" and there was no verdict concerning "stealing". She just had some files in her computer that were in a folder that was open for sharing and in the USA file sharing is not stealing.
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DanC, 20 Oct 2008 @ 10:15am

Re: Fines and the LAW
It seems to me that if you do not break the law, it does not much matter what the fine would, could, should be.

Of course, if we follow this logic, the people who should be setting the fines would be the criminals themselves.

I'm amazed at how many people think it is OK to hold in their possession, and redistribute someone's intellectual property without the thought of compensation.

I'm amazed how many people think that the same business model should always work in every circumstance, and when that business model shows obvious signs of failing, it should be propped up by the legal system instead of being forced to adapt.

Thinking this way is akin to saying, "I think Target should be forced to sell everything in their store at their exact realized cost."

This is another flaw in your logic - comparing physical property and "intellectual property" as if they have the same characteristics. Strawman arguments are easy to throw up, and easy to tear down.

The same capitalist society that allows you to earn a living and pay your bills. Just remember, your time and talents have no inherent value either. It's not a far leap, with this logic of piracy is victimless, to argue that the company you work for should not be required to pay you for your time.

Except you're comparing two different things here. A digital music file, like an MP3, is an end product with essentially no scarcity and zero reproduction cost. You're attempting to compare that to the actual act of working. Your example doesn't work.

If the RIAA is unable to protect their property, and sell it for a profit, they will simply stop "going to work" and you will have no music at all.

Not sure if you're aware of this, but the RIAA is a trade organization - they don't make music.

The laws of nature in a capitalistic society prevail here. Just because the product is digital, does not change the economics involved.

Correct - the economic laws don't change. By being digital, the products availability is essentially infinite, since it can be reproduced at virtually no cost. That would naturally push the price to zero. Being digital doesn't change the economics, but it does change scarcity.

But you're referring to compensation for the artist, which you seem to believe can only be accomplished by directly selling the end product. Artists should definitely be compensated for their work - but the current system does not work for digital goods. So an alternate method needs to be used.
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Tony, 20 Oct 2008 @ 10:20am

Re: Fines and the LAW
"It seems to me that if you do not break the law, it does not much matter what the fine would, could, should be."

So you don't see any reason for the punishment to fit the crime?

Caught speeding? Go to jail for 25 years. After all, if you don't break the law, it doesn't matter, right?
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Get your facts straight, 20 Oct 2008 @ 10:31am

Re: RIAA robbing Peter to pay Paul
Wrong person, idiot. Ray is of counsel for Whitney Harper, who is the person RIAA is suing. Let me make it a little clearer for your pea-sized brain: Ray is working for the people.
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Anonymous Coward, 20 Oct 2008 @ 10:39am

FUCK THE RIAA
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Uneducated Consumer, 20 Oct 2008 @ 10:47am

Re: Fines and the LAW
The RIAA doesn't produce anything. They don't sell a product and are sustained by suing people who don't pay for downloading music, but justify themselves by claiming to represent the artists that produce the music for which they are happy to collect a fee as well. I can't cite any statistics but I'd be willing to bet a limb that the artist that produced any of the songs subject to lawsuits will never see a penny from the settlements. If RIAA "stopped going to work" there would still be music and there would still be channels to distribute the music.

The knee-jerk to this argument (especially on Techdirt) is to say "but their business model sucks, they should change... radio head... Trent Reznor... blah blah blah." While their business model might be slowly dying with every court decision against them it appears to still be working which in mafia-speak I believe they refer to as "earnin'". In fact I think they have a really good business model. They Don't produce anything, have No responsibility to anyone and will sue the hell out of anyone they can point a finger at for downloading music. They make an astronomical request and then badger anyone who doesn't pay until they finally give up. They employ an army of fresh young lawyers who are happy to work for peanuts and will do anything they are asked. Okay, so maybe it's not a sustainable business model but it's worked for a while and why would they change a moment before they absolutely had to? As long as they can squeeze the public they're going to and I don't blame them.

Don't confuse my not blaming with thinking they should still exist without change. They're another hand in the pot and if the people on both sides would realize and adapt, we wouldn't have to hear about all these cases and how everyone should be like Trent Reznor and Radiohead.

Their resistance to change is completely natural because any type of change for them would result in their obsolescence. There would be no change they could make to remain relevant as they don't really DO anything as it stands. A change in business model would have to be as drastic as H&R Block if we ever nixed the income tax. There would be nothing they could do and they would simply fade into irrelevance with Joe's Typewriter Corp. and The Abacus Superstore Inc.

Well in short, milk it while you can.
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Killer_Tofu (profile), 20 Oct 2008 @ 11:03am

Re: Fines and the LAW
Several others have already replied, so I will skip most points that they made, since I agree with them.
Taking a quote of yours from a different perspective though:

"I'm amazed at how many people think it is OK to hold in their possession, and redistribute someone's intellectual property without the thought of compensation."

You are right, how dare they care about your work so much that they want to share it without you paying them. Now you go search out all those trying to spread your message / music / literature and compensate them for the free publicity they have been giving you.

On a more serious note, I think DanC said just about everything that I thought of while reading your post. I also like how you toss in the word liberal there about being against the large corporations. Like being "liberal" really has anything to do with the other character traits you mention or standing up against the RIAA for their flimsy lawsuits usually based on nothing.
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interval, 20 Oct 2008 @ 11:21am

Re: Justice?
Its a little different from greed. Its actually fear. The old methods of making money are waning; the artists don't really need the record companies any more, so the companies are lashing out like dying wildebeests at their customers. Cornered and fearing extinction. I wish a big hammer would come along and deliver the final blow.
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another mike, 20 Oct 2008 @ 12:00pm

Re: ...
It gets better. The RIAA were the only ones downloading the songs!
If that's not enough, keep reading, it gets better. It's her family's computer; she didn't uninstall Kazaa when she went away to college a couple years ago.
Now ask again why the RIAA is allowed to file lawsuits.
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another mike, 20 Oct 2008 @ 12:02pm

vexatious
We need that screencap from Princess Bride of Inigo saying, "I do not think that word means what you think it means."
Inconceivable!
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Matt, 20 Oct 2008 @ 12:59pm

Re: Re: Fines and the LAW
I agree that the punishment should suit the crime.

I agree that the selling CD business model is rather antiquated and I haven't bought a CD in years.

However, where I've got to take objection with Techdirt, and most of the commenters on this blog is where they say, "supply is infinite, therefore value should be zero." Or where they look at any patents & IP as a bad thing, and something that should be done away with completely. Is there abuse and junk patents, yeah of course. But a patent is only as good as it is enforceable in court, so most junk patents are worth nothing.

What it comes down to is that whoever created the MP3, software or other digital stuff should be able to decide how they want to sell it. If they are charging too much, people won't buy it. It doesn't make sense to say, "They're charging too much (i.e. "it isn't free"), therefore I'm going to steal it." Just because there isn't something physical that is being stolen doesn't make it any less stealing.

People will hold up various different business models where software is free, and something else is charged for (ex: tech support, installation services, ads are incorporated with the software, etc...). That's fine. That's that business' choice on how to make money. Who are you to say that some business must adopt that type of a model for how they sell their IP? If you don't like their model, don't buy their software. Don't steal it and then get up on your high horse and say they shouldn't be charging money for it--it's their decision!

Also, the requiring proof that a crime happened by proving someone actually downloaded the music (after it was made readily available for download using software that is designed to make it hard to trace) seems a bit unnecessary. (I'm going to make an analogy that lots of you will tell me is wrong, but here goes.) It'd be like if someone put meth in a publicly available vending machine, and the cops would be required to witness someone actually buying some meth in order to prosecute the person stocking the vending machine...

I know I'll get flamed for this one big time, but at least keep it to arguments, not name calling.

PS. I don't sell software, so I don't have any stake in this.
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Matt, 20 Oct 2008 @ 1:00pm

Re: Re: Fines and the LAW
I agree that the punishment should suit the crime.

I agree that the selling CD business model is rather antiquated and I haven't bought a CD in years.

However, where I've got to take objection with Techdirt, and most of the commenters on this blog is where they say, "supply is infinite, therefore value should be zero." Or where they look at any patents & IP as a bad thing, and something that should be done away with completely. Is there abuse and junk patents, yeah of course. But a patent is only as good as it is enforceable in court, so most junk patents are worth nothing.

What it comes down to is that whoever created the MP3, software or other digital stuff should be able to decide how they want to sell it. If they are charging too much, people won't buy it. It doesn't make sense to say, "They're charging too much (i.e. "it isn't free"), therefore I'm going to steal it." Just because there isn't something physical that is being stolen doesn't make it any less stealing.

People will hold up various different business models where software is free, and something else is charged for (ex: tech support, installation services, ads are incorporated with the software, etc...). That's fine. That's that business' choice on how to make money. Who are you to say that some business must adopt that type of a model for how they sell their IP? If you don't like their model, don't buy their software. Don't steal it and then get up on your high horse and say they shouldn't be charging money for it--it's their decision!

Also, the requiring proof that a crime happened by proving someone actually downloaded the music (after it was made readily available for download using software that is designed to make it hard to trace) seems a bit unnecessary. (I'm going to make an analogy that lots of you will tell me is wrong, but here goes.) It'd be like if someone put meth in a publicly available vending machine, and the cops would be required to witness someone actually buying some meth in order to prosecute the person stocking the vending machine...

I know I'll get flamed for this one big time, but at least keep it to arguments, not name calling.

PS. I don't sell software, so I don't have any stake in this.
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Killer_Tofu (profile), 20 Oct 2008 @ 1:48pm

Re: Re: Re: Fines and the LAW
with Techdirt, and most of the commenters on this blog is where they say, "supply is infinite, therefore value should be zero."
Mmm, no. We say Price should be zero, not Value. Price and value are two different things. The music is valuable, otherwise nobody would download or share it. However, it is basic economics that once something is infinitely available, its price will be driven to zero. That is why most sites that sell music do not try to force a whole CD down your throat when you only want one song. They can sell it for a much cheaper price because they are not selling the whole disc. And the rest of the CD is not valuable to the buyer, so they are quite unlikely to pay a price higher than what they value it at.

What it comes down to is that whoever created the MP3, software or other digital stuff should be able to decide how they want to sell it.
Yes the creator should be able to choose how to sell it. That doesn't mean they are always going to make the most intelligent decision though. Here I often see suggestions for how they could make money. Nowhere is it stated that those are the only business models. You yourself pointed out you no longer buy CDs. The business model of selling plastic discs is decreasing. Other business models should be allowed to take their place based on market demand, not on government protectionism.

." Just because there isn't something physical that is being stolen doesn't make it any less stealing.
Actually, yah it does. It is not stealing, we are talking about copyright infrinement here. The law says, the courts have said, and we here say it is copyright infrinement, not theft. For it to be theft, or stealing something, the original holder of said item has to no longer possess it. If I go to your driveway in the middle of the night, and make an exact duplicate of your car, and drive the duplicate away, I have stolen nothing. You still have your car. It is not stealing.

Who are you to say that some business must adopt that type of a model for how they sell their IP?
We never suggest they must. We suggest they can, and that it would be intelligent to go that route and NOT treat your customers like criminals. Treating everybody like criminals is bad PR. Just ask the RIAA. Everybody hates them. And again, it isn't stealing.

As for your analogy, Drug dealing and copyright infringement are very far apart items. One is a felony, and the other is a civil dispute. That alone makes an ocean of a difference. If you ask me, making it available AND people downloading it should not be enough for infringement. If I buy a song, CD, anything like that, I have a right to back it up. In most cases, for anything semi-popular or more, it will be faster to download it than to take the time to rip it myself. I may have downloaded it, but they have in no way even distributed an infringing copy because I own it and have a right to it. So, if you ask me, the bar needs to actually be raised to prove infringement, not lowered.

I believe there was no name calling in there. And we are talking about music, not software. =P
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Mike (profile), 20 Oct 2008 @ 2:12pm

Re: Re: Re: Re: Fines and the LAW
Killer_Tofu, thanks for saving me the trouble of responding to Matt. Perfect response -- pretty much exactly what I would have said.
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BigKeithO, 20 Oct 2008 @ 2:21pm

Re: Re: Fines and the LAW
Techdirt does tend to be full of people who think that the music business needs to find a new way to make money, but are they so wrong? How many people do you know who do/have downloaded music? I know quite a few, if the general population thinks that it is okay to download music shouldn't the music industry attempt to find a way to make money off of that? How does it make sense to go around and sue anyone and everyone that you can? At some point people need to realize that perhaps the LAW is wrong.

Both sides of the argument make sense to me, people seem think that music is too expensive and don't want to buy CD's anymore. The music industry wants to sell music but is unwilling to try to give the people what they want, that is the basis behind a lot of comments on Techdirt I believe. You may argue that it is the businesses decision on how to make money, and you would be right, but when you see how widespread file sharing has become does it not make sense to pursue a different business model? It seems like they are wasting resources fighting an un-winnable battle against file sharers. This "battle" has been going on for how long now? 10 years or so? File sharing isn't going away any time soon. Maybe it is time to stop fighting it and time to start finding a way to make money off of it.

My $0.02.
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Realisticman, 20 Oct 2008 @ 2:41pm

Re: Fines and the LAW
Come on, while I am all for the death penalty for graffiti artist, at some point the penalty has to fit the crime. Get a grip.
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Also Not A Lawyer, 20 Oct 2008 @ 3:11pm

Re: Anonymous Coward
The judge does have the power to hear this case. And the court is a federal court in Texas, not a state court. Copyright disputes are handled in federal court, so if this action was attempted to be filed in state court by one party, the other party could assert that there was no subject matter jurisdiction and have the case removed to federal court.
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Nobody, 20 Oct 2008 @ 4:12pm

Rosa Parks and Copyright Infringement
For everyone who loves to equate copyright infringement to sharing, I have another analogy for you. Would you tell Rosa Parks that if she doesn't want to sit in the back, don't ride the bus, just walk or take a cab? That the law is the law, and everyone should deal with it until it gets changed? Or maybe we should actually do something until it becomes a reason enough for politicians to rewrite it.
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Anonymous Coward, 20 Oct 2008 @ 9:20pm

Re: Re: Fines and the LAW
Actually,
The RIAA is now just a false front for the major music corporations so their brand names don't take the heat for this bad behavior.

We really need to stop letting EMI, Sony BMG Music Entertainment, Universal Music Group and Warner Music Group
get away with redirecting our anger at the shell.

In other words, never use the word RIAA without the words EMI, Sony BMG Music Entertainment, Universal Music Group and Warner Music Group
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Lyrael, 21 Oct 2008 @ 7:04am

Re: Re: Re: Fines and the LAW
'Don't steal it and then get up on your high horse and say they shouldn't be charging money for it--it's their decision!'
Killer_Tofu already beat me to most of what I wanted to say, but I would like to add that Techdirt has never advocated piracy in any way, shape or form. Mike merely points out the laws of economics and the fact that the free market will naturally do such a thing to counterbalance the outrageously high profit margins the music industry is trying to shove down their throats. You can't blame him for the natural order of things.
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Anonymous Coward, 21 Oct 2008 @ 8:23am

If I may ask a question, does the case in Texas discussed in the article even involve "making available"? It is my understanding that the basis for liability was the defendant's using KaZaa to make unauthorized copies for her own listening pleasure.
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Evan Carslake, 28 Oct 2008 @ 7:34am

Re: Re: Fines and the LAW
I found this to be the most level headed response to each argument.

I completely agree with everything you said.
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