RIAA Settles Kazaa Copyright Battle with Bronx Woman
Denise Barker, a Bronx woman charged with copyright infringement by downloading eight copyrighted recordings via the peer-to-peer file sharing application Kazaa, has settled a three-year lawsuit with the Recording Industry Association of America (RIAA) for $6,050. Her lawyer, Ray Beckerman admits her client’s act of file sharing but in her defense, challenges the constitutionality of the Copyright Act as quoted by the plaintiffs. According to Beckerman, the damages the act authorizes per download is unconstitutional and against the U.S. Supreme Court precedents.
The defendant filed the answer to the plaintiff’s statement on July 28, 2008 at the United States District Court, Southern District of New York, New York.
RIAA filed the lawsuit on behalf of plaintiffs: Elektra Entertainment Group, Inc.; UMG Recordings, Inc.; and Virgin Records America, Inc., owners of the said copyrighted recordings.
How Attorney Ray Beckerman Fought the RIAA
Beckerman argues that the download cost of each recording would only amount to $3.50. This means that the penalties requested by the said plaintiffs go way above a thousand times of the actual injury to the recording industry, charging fines that amount to $750 to $150,000 per recording. The U.S. Supreme Court rules that financial damages must not exceed a 9-to-1 ratio, or it would be deemed unconstitutional.
Barker admitted to the fact that she is a user of the peer-to-peer file sharing application Kazaa as of November 12, 2004 and has actively shared contents with other users in the network including the eight copyrighted recordings duly owned by the plaintiffs. This is alleged by the plaintiffs to be so by her merely making it available on her computer for other Kazaa members to download in her “My Shared Folder”. However, she denies that the plaintiffs issued appropriate copyright notices that could have avoided the lawsuit and subsequent alleged copyright infringements. Barker and her lawyer also state that there is no actual proof that the copyrighted recordings were the exact recording the defendant downloaded and made available. Such a claim was also supported by the U.S. Court of Appeals precedent in BMG Music v. Gonzales, Seventh Circuit, 2005.
Beckerman also cites that the mere joining of and participating in Kazaa, an online media distribution system, cannot be misconstrued as a specific act of copyright infringement.
It was also revealed in the case that the documents referred to by the plaintiff in their complaints were procured by an unlicensed investigator, MediaSentry, now known as Safenet, Inc. The said investigator is therefore guilty of unlawfully pretexting and invasion of defendant’s privacy making the plaintiffs who paid and asked for their services “guilty of unclean hands.”
Attorney Ray Beckerman, on behalf of his client Denise Barker, requested for a dismissal of the complaint, and asked for the defendant to be awarded costs, disbursements, attorney’s fees, and other damages applicable.
RIAA already has sued 20,000 individuals for copyright infringement via file sharing on behalf of member record labels such as the above-mentioned plaintiffs. Most of the cases were settled out of court for a few thousand dollars each. For example, Denise could have settled for $4,000 once she had received one of the RIAA’s prelitigation settlement letters. Instead, she now has to make monthly payments of $110 per month for the next four-and-a-half years plus attorneys’ fees. Of course, RIAA’s legal bills must have been astronomical.
Jammie Thomas’ case in Minnesota was the only one among the 20,000 RIAA lawsuits that has gone to trial. Thomas was sued for infringing on 24 songs downloaded via Kazaa in 2007. She denied her guilt and challenged the constitutionality of the Copyright Act but was found liable by the jury in October last year. She was ordered to pay $222,000 total damages.
How Musicians Are Causing Copyright Law Controversy
Round One: Radiohead and Nine Inch Nails v. The Music Industry (RIAA).
And so far, the public is supporting the bands.
What’s going on with Radiohead and Nine Inch Nails?
Well Radiohead recently just did a really innovative act, they’ve taken their new album In Rainbows, and placed on their website – and you can pay any price for it! Yes, that price includes absolutely nothing -as in FREE. Yes, a free Radiohead album for download online.
I just found about a survey in the United Kingdom that said that about 33% of all the people who downloaded Radiohead’s album online did pay some money to the band, up to as much as £20 ($40 in United States Dollars). There’s even reports that one downloader purchased the album for £100 ($200 USD)!
Nine Inch Nails (NIN) seems to be following in similar suit. Trent Reznor, head of NIN, has released a statement concerning their freedom from their label contract and future musical direction concerning their Year Zero album:
“Right now nine inch nails is a totally free agent, free of any recording contract with any label. I have been under recording contracts for 18 years and have watched the business radically mutate from one thing to something inherently very different and it gives me great pleasure to finally be able to have a direct relationship with the audience as I see fit and appropriate.”
What’s the result from what Radiohead did with the free albums stunt? Did they lose money?
Initial reports are that they actually may be making the same amount of money they would have made normally, with following months possibly bringing even more of a profit! Their success with this marketing may find other bands and musicians going independent, possibly bypassing major record labels and self-release their own products. This may be the beginning of a paradigm shift for musicians and the music industry. Most musicians have grown up with the classic notion:
- Make some music.
- Grind it out for years and years at clubs and bars until a major label finds you.
- Sign with the label and give over a majority of your record sale profits to them.
- Make your money from concert sales.
This turns this on it’s head. It’s known that concert ticket prices are at an all-time high. This is due to the immense failure of the RIAA (Record Industry Association of America) to protect the interests of the artists. The RIAA has the major labels as their main concern. It seems that the time has come for artists to make their own way.
Are all musicians this open-minded?
Well, did you hear about the Metallica vs Napster battle a little while ago? That created huge negative backlash for the band and the repercussions are still around today.
In 2000, Metallica noticed a demo for their song “I Disappear” was floating around the Napster P2P (Peer-to-Peer) file sharing network. After more searching, they found their entire album available for free download on Napster. Metallica filed legal action against Napster, demanded the 300,000 users with Metallica songs be banned, and they also filed legal action against Yale University, University of Southern California, and Indiana University for not doing enough to stop internet file sharing from going on in their campuses. Metallica drummer and co-founder Lars Ulrich then provided a statement to the Senate Judiciary Committee:
My band authored the music which is Napster’s lifeblood. We should decide what happens to it, not Napster — a company with no rights in our recordings, which never invested a penny in Metallica’s music or had anything to do with its creation. The choice has been taken away from us.
What about the users of Napster, the music consumers? It’s like each of them won one of those contests where you get turned loose in a store for five minutes and get to keep everything you can load into your shopping cart. With Napster, though, there’s no time limit and everyone’s a winner-except the artist. Every song by every artist is available for download at no cost and, of course, with no payment to the artist, the songwriter or the copyright holder.
If you’re not fortunate enough to own a computer, there’s only one way to assemble a music collection the equivalent of a Napster user’s: theft. Walk into a record store, grab what you want and walk out. The difference is that the familiar phrase a computer user hears, “File’s done,” is replaced by another familiar phrase-”You’re under arrest.”
This caused huge headaches for the band, as tons of parodies were produced on the internet, making fun of Metallica and “Lar$ Ulrich” and the culmination being named #17 on Blender magazine’s list of “biggest wusses in rock” for its “anti-Napster crusade”.
What gave even more ammunition to the anti-Lars Ulrich crowd is an interview where he admits to not a be a user of computers and the internet:
Everybody always attacks me on it, and I’m totally open and frank, the computer is not something that gets a lot of use in my house. The Internet is not something that I utilize very much as a tool. That’s fair enough. Now certainly I have been accused of being ignorant on certain computer things, that’s all fair enough, but once again it’s sort of sad and pathetic that it becomes the best counter argument that people come up with -how can he be against a company like Napster if he’s never been on there? It’s like, because, my fucking songs are being traded around, you know, hundreds of thousands of them a day against my free fucking will, against my wishes. I think people lose sight of that with all these arguments, all these analogies, all these things that people try to come up with and be clever.
So what’s next for the music industry?
It’s definitely going to be an interesting time in the world of copyright right and the rights of musicians to protect their creative work and interests. Will more musicians join the Radiohead side and adapt with the times? Or will more musicians join the Metallica side and attack the new wave of internet music distribution?
What do you think is the future of the music industry?
RIAA Drops File-Sharing Case
The RIAA has dropped its case against Chicagoan Paul Wilke, with the two parties moving to dismiss the case with prejudice in federal court late last week. Elektra v. Wilke was noteworthy in that the defendant vigorously contested all of the RIAA’s allegations, moving for summary judgment against the record label last month.
Wilke had been accused of the usual malfeasance by the RIAA: sharing music over a P2P network. Instead of settling the suit as many others have done, Wilke denied any wrongdoing. He claimed that he was not the “Paule Wilke” named in the complaint, had never used any filesharing applications, and that he did not own any of the songs reportedly flagged by Media Sentry.
Wilke’s argument that the RIAA did not have enough evidence for its lawsuit to go forward and subsequent motion for summary judgment apparently caught Elektra by surprise. The label responded with a motion for expedited discovery, indicating that it did not have enough evidence with which to fight the motion for summary judgment, and requested authorization for a search of Wilke’s computer in an attempt to find “evidence of copyright infringement on the defendant’s hard drive.”
Attorney Ray Beckerman, who runs the Recording Industry vs. The People blog, told Ars that the RIAA’s evidence of a name, an IP address, and a list of songs in Elektra v. Wilke isn’t enough to constitute “competent evidence sufficient to create a material issue of fact that can be used at trial.”
When asked if there had been a financial settlement, Wilke’s attorneys told Beckerman that “plaintiffs, the RIAA, and SBC [Wilke's ISP] worked cooperatively and amicably to resolve this dispute.”
This appears to have been another in a long string of cases of mistaken identity by the RIAA. Instead of merely saying that the RIAA had the wrong guy, as other defendants have, Wilke and his attorneys decided instead to attack the record label’s case, saying that the usual data the RIAA uses as the basis for its lawsuits is not sufficient to build a case on, let alone prove infringement.
Since the RIAA began filing lawsuits against suspected file sharers in 2003, not a single one has gone all the way to trial. In most cases, the defendants agree to write a four-figure check to the record labels to avoid a drawn-out court case. However, some of the accused are fighting back, and in some cases, it appears that the RIAA is dropping cases to avoid the possibility of losing. One case that bears watching is UMG v. Lindor, where the defendant accused the RIAA of using P2P networks and is expected to file a motion for summary judgment once the discovery period concludes at the end of the year. If that motion is denied, UMG v. Lindor may be headed for trial in 2007.
[thanks to arstechnica]
