The end of RIAA litigation

The end of RIAA litigation

Summary: I spent this morning on the phone with Ray Beckerman of the Recording Industry v The People blog, who laid out why the decision is pretty much the touch of death for the RIAA's litigation strategy.Here's the scenario: The entire litigation model is based on the statutory damages under the Copyright Act.

SHARE:

I spent this morning on the phone with Ray Beckerman of the Recording Industry v The People blog, who laid out why the decision is pretty much the touch of death for the RIAA's litigation strategy.

Here's the scenario: The entire litigation model is based on the statutory damages under the Copyright Act. Those start at $750 per song and go as high as $150,000 per song. These were the damages that a jury nailed on Jammie Thomas -- $9,250 per song for a total of $222,000.

In the Thomas case, the judge went along with the "making available" theory of copyright infringement and allowed the mere presence of P2P-accessible files to be the basis for those damages. If the Howell decision is followed – and it will be, Beckerman said, by appellate courts as well as district courts – the industry will have to prove actual distribution. That will prove to be very difficult to do -- "I believe they won't be able to prove actual dissemination," he said – and thus they will not prevail on the distribution part of copyright infringement. There is another part, however – the reproduction right. Basically, the right to reproduce (think Chinese copies of DVDs) is distinct from the right to distribute. The actual damage from illegal reproduction is only about 40 cents per song, Beckerman said, counting the royalty and other costs. If the RIAA can only prove illegal reproduction, not distribution, they have a problem.

Statutory damages of $750 on a 40 cent lost profit claim is a multiplier in the thousands, which will be held unconstitutional, Beckerman predicted. In restaurant cases where the operator didn't pay performance royalties when music was played in the restaurant, the reasonable ration was found to be between three and four times. With the payoff cut down from a minimum of $750 to a couple bucks, it will no longer make sense to sue users.

In other words, he said, "making available is dying but it may take a long time before it finally dies."

Topics: Enterprise Software, Legal

Kick off your day with ZDNet's daily email newsletter. It's the freshest tech news and opinion, served hot. Get it.

Talkback

8 comments
Log in or register to join the discussion
  • About time!

    Finally one corporations abuse of people is being nipped in the bud! ]:)
    Linux User 147560
  • HA HA RIAA'S DEAD!!!

    Wasn't this yet ANOTHER No_Ax prediction that fell flat on its face, that RIAA would prevail??

    Man, the hits just keep on coming!
    itanalyst2@...
    • They are not dead yet!

      The RIAA can keep right on doing on behalf of its member organizations. There are plenty of end-users out who would be intimidated by the RIAA and will settle out of court for thousands of dollars -- mainly because they lack the resources to hire an attorney. Regardless of the legal merits of their position, the RIAA can bleed a lot of money out of a lot of people, at least some of whom did not know their minor children were stealing music -- or that Kazaa makes it so easy to do so without the user even knowing that they are stealing -- or the potential punishment -- all out of proportion to the magnitude of their crime.
      M Wagner
  • "the decision" ?

    "the decision"?

    "the Howell decision"?

    It would appear we're missing a major component of the back story in this blog entry... not all of us are lawyers and know these cases right off the top of our heads. A quick summary would be very helpful towards understanding the post.
    ejhonda
    • Scroll down

      All is explained here: http://government.zdnet.com/?p=3782

      And here: http://government.zdnet.com/?p=3783

      And here: http://www.toptechnews.com/story.xhtml?story_id=0010003B3YXN


      rk
      rkoman@...
  • RE: The end of RIAA litigation

    When entertainment turns out to be a deadly slimy snake it is time to stop the entertainment or kill the snake before it bites you and injects it's poisonous venom. If I were an entertainer I would disasociate with the snake to find a new pet like maybe a German Shepard that is controllable by it's owner. Less likely to cost you friends and family!
    Ernman
    MXIDBA4945@...
  • RE: The end of RIAA litigation

    Works for me! If Kazaa and their ilk can hide behind the argument that their tools CAN BE used legally, then Kazaa users ought to be able to hide behind Kazaa, who is actually MAKING MONEY by promoting the use of their tools for illegal purposes. (Their disclaimer aside, we all KNOW they are promoting music sharing -- which almost always involves copyrighted material.)

    Few college students are actually making money by sharing the songs they buy and vendors like Kazaa make no attempt to inform the user that they may be stealing when they get a song from another Kazaa users.
    M Wagner
  • RE: The end of RIAA litigation

    We need someone like "geico" to offer a personal liability policy to 100 million americans that would provide top lawyers, total cost to go to court against any action the RIAA takes, including harassment, or even contacting of any "policy" holder. Say $50/10 years would be a good start for a million users. RIAA concept is "If you can't make it in sales, make it in the courts".
    genez