May 16, 2005
Racine Man Plans to Fight RIAA
The Milwaukee Journal-Sentinel reports on Dave Bink, a Racine dad who was sued by the RIAA because of KaZaA downloads made by his 13 year old daughter. He has decided to fight the lawsuit in court because (a) his daughter did the downloading, and (b) KaZaA advertised itself as “100% legal.”
He makes the following prediction about his lawsuit: “I'll probably get chewed up and spit out.” Yes, sadly, he will. Copyright infringement is strict liability, and he is vicariously liable for his daughter’s actions.
For a demonstration of what happens when a file-sharing case gets in front of a judge, see BMG Music v. Gonzalez, 2005 WL 106592 (N.D. Ill. Jan 7, 2005). It’s not pretty. It only takes the judge one page to shred the defendant’s arguments about fair use and innocent infringement. There’s really not much to discuss.
As painful as it might be, Bink would be better off working out a deal with the RIAA than taking his arguments to court where, as the article indicates, the minimum statutory damages for 600 acts of infringement would be $450,000 (unless the judge is willing to entertain an innocent infringement defense, which would bump the statutory minimum down to “only” $120,000).
We are increasingly hearing stories of significant personal harm from people caught in the RIAA dragnet. This is not to excuse their infringing behavior, but we should not ignore these collateral consequences either.
UPDATE: John Ottaviani pointed out to me that Bink might have legal recourse (such as false advertising or misrepresentation) against KaZaA for making the "100% legal" claim. I'm not sure if this situation will meet the specific elements of such a claim, but John and I both agree that we would never advise a client to use the tagline "100% legal"!
Posted by Eric at May 16, 2005 10:51 AM | Copyright
(yeah, so I had a nice 300 word comment that I was finishing until my web browser crashed while checking some things in LexisNexis. Now, I am just getting to the point.)
Are statutory damages (504[a]/[c]) always available? (it seems so from the statute) Or, can the defendant argue for actual damages (504[a]) if they are substantially lower than statutory damages?
(the Internet is a-buzz with the fact that Yahoo $5 month subscription service devalues the RIAA's claims [none from copyright attorneys as far as I can tell])
I imagine this argument was made in the UMG v. MP3.com saga, but I couldn't find it in any of the opinion(s). Is there a resource with the UMG v. MP3.com briefs that you know of?
Or, is this something so clear that it does not warrant an argument?
Posted by: Matthew Goeden at May 17, 2005 04:19 PM
Matt, I think this is pretty squarely covered by 17 USC 504, in particular 504(c)(1), which says that the default computation of damages is actual damages plus infringer profits (504(b)) but the *copyright owner* may elect statutory damages if the owner qualifies. The defendant really has no say. The $5/mo market pricing might affect the judge's calculation of actual damages, but it shouldn't affect statutory damages at all. Eric.
Posted by: Eric Goldman at May 17, 2005 04:40 PM
Yeah, 504(c) seems very clear. I wasn't confused about what 504 says.
I was just wondering if anyone ever argues (whines) that statutory damages just aren't "fair" in particular situations.
Without doing any research into Congress's intent, I imagine that although statutory damages were meant to simplify calculating damages and act as a hefty "stick," they were probably not meant to be grossly larger than the actual damages.
Statutory damages just seem a lil' nuts to me when the actual damages are probaby, actually admittedly, quite small.
Anyways, as I mentioned above, I have done zero research into Congress's intent as far as statutory damages are concerned, but I will for fun sometime.
Posted by: Matthew Goeden at May 17, 2005 11:29 PM