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”!