Are The RIAA’s Damages From File-Sharing Unconstitutional?
Nov 11th, 2006 | By James Lewin | Category: General 
A defendant in one of the RIAA’s file-sharing lawsuits will be able to question an idea that has been a core element of the music organization’s case against thousands of others – that one shared song was worth $750 in damages.
In UMG v. Lindor, Judge Trager has granted Marie Lindor’s motion to add a defense that questions the constitutionality of the $750-per-song damages sought by the RIAA.
In doing so, Trager rejected the RIAA’s arguments that the defense was without merit, that the motion was untimely, that the amendment would prejudice the RIAA, or that Ms. Lindor was required to send a notice to the United States Department of Justice of her defense of unconstitutionality.
Judge Trager ruled:
[P]laintiffs can cite to no case foreclosing the applicability of the due process clause to the aggregation of minimum statutory damages proscribed under the Copyright Act. On the other hand, Lindor cites to case law and to law review articles suggesting that, in a proper case, a court may extend its current due process jurisprudence prohibiting grossly excessive punitive jury awards to prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered…..
Furthermore, Lindor provides a sworn affidavit asserting that plaintiffs’ actual damages are 70 cents per recording and that plaintiffs seek statutory damages under the Copyright Act that are 1,071 times the actual damages suffered. Aff. of Morlan Ty Rogers, (“Rogers Aff.”, [pars.]5, 6. See also Aff. of Aram Sinnreich, (“Sinnreich Aff.”), [par.] 2, 3 (attesting that popular music sound recording downloads and consumer license to use same are lawfully obtainable to the public at 99 cents per song, and of that 99 cents, roughly 70 cents per song is paid by the retailer to the record label). As FRCP Rule 12(b)(6) requires that this figure be taken as true for purposes of the motion, Lindor has alleged a factual basis supporting her affirmative defense.”
Although I like this defense in that it makes the RIAA spend way more money on specialized constitution lawyers (and litigation in general), I don’t think this will hold.
It is possible that the fines will be reduced, but not to $0.70. Sure I can buy the song for a dollar, but I could still infringe on the copyright by giving it away or selling it for less. The crime wasn’t possession of infringing materials it was distribution. What it will come down to is Lindor’s ability to prove that she didn’t give a song away 750 times. So if she gave song X away 10 times the damage of that act would be approx $10. However, the cost of prosecuting her is also damaging to the RIAA and therfore recoupable (sp?) and will be figured into the fine.
Good Luck to her!
I bet it is… here’s my thought.
If I pay a buck for a song on Itunes I have paid for unlimited plays of that song, so if I want to play that song 24/7 for the rest of my life then I can do that legally. Therefore the value of continues play has been established. If I play that song once then the value of that song is 1 divided by 24/7 of 20 years or so. which is .000000000001 something. That is the true value of the song and at that rate I could give it to a lot of people as a gift before I’d ever get back to the value of $1.
The RIAA has had the upper hand because they were organized and they had the money. But, nobody was really fighting back, and a lot has changed in the market place since they started their fanatical rant.
The mere fact that we are hearing about them in the news a lot more lately tells me they are about to be marginalized which is their greatest fear of all.