Guilty Your Honor! But UnConstitutional Too!

Yes Dear Reader, another round of RIAA vs The People. This time with a twist. Usual routine has been admit no guilt by the defendant. But challenge on the basis or proof of distribution. Well this time, in Elektra v. Barker, the defendant is admitting guilt. The defendant is also willing to pay the fine at $3.50 per song!! –

1. Plaintiffs’ damages theory, which argues for statutory damages of from 2,142 to 428,571 times the actual damages, would lead to an unconstitutional result (Parker v. Time Warner Entertainment Co.,331 F.3d 13 (2d Cir. 2003); UMG Recordings, Inc. v. Lindor, 2006 WL 3335048 (E.D.N.Y. 2006); In re Napster Inc., 2005 WL 1287611 (N.D. California 2005)), so that the complaint should be construed as alleging that the use of an “online media distribution system” to infringe plaintiffs’ copyrights constituted a single act of infringement, warranting a total recovery of $750 if defendant is liable.

2. In the alternative, the statute should be considered unconstitutional to the extent it could be construed as authorizing more than ten time the actual damages, and recovery should be limited to $3.50 per recording as against a single noncommercial user for a single upload or download of an MP3 file for personal use.

Why would this tact be worth a hoot? Well first, it appears that federal courts have held that any penalty beyond 9x the actual damages is unconstitutional under the ‘cruel and unusal’ provisions. yeah I know so what?

Well think a minute. Can you think of anytime in your life where you could get 4 lawyers in a room for less than a $1000? The RIAA watchdog group is selffunding. They use the proceeds of one successful pay off to fund the next round of suits. Well if the best they can get is $3.50 per and have to prove number of copies distributed, they are toast from a financial perspective. Watch the judge in this one! He in a preliminary reading of the briefs suggested the alteration and amended response. This one could go appellate on the constitutionality of it.

Linky