That seems to be one of the premises of a curious pamphlet — education? propaganda? — produced by the National Center for State Courts for student use (David Kravets, “Nonprofit Distributes File Sharing Propaganda to 50,000 U.S. Students”, Threat Level/Wired.com, Aug. 21).
The act of making available movies for P2P copying should itself give rise to damage liability, with no need for a showing that anyone actually came along and availed themselves of the illicit property, Hollywood moviemakers are arguing. “It is technologically infeasible to determine whether the public is copying an open share folder, although the RIAA makes its own downloads from defendants’ share folders, produces screen shots and, among other things, captures an IP address. An Arizona judge ruled last month in a different case that those downloads count against a defendant, a one-of-a-kind decision being appealed on grounds that the RIAA was authorized to download its own music.” Infringement penalties can run to $150,000 per copyright violation. (David Kravets, “MPAA Says No Proof Needed in P2P Copyright Infringement Lawsuits”, “Threat Level” blog, Wired.com, Jun. 20). More: Ars Technica.
“None of the estimated $400 million that the RIAA received in settlements with Napster, KaZaA, and Bolt over allegations of copyright infringement has gone to the artists whose copyrights were allegedly infringed. Now the artists are considering suing the RIAA.” (Consumerist, Mar. 17; David Utter, WebProNews, Feb. 29).
Reader Jim Finkel writes:
Having followed the RIAA lawsuits for a while, I found this most amusing. Even though I am not a lawyer, perhaps if the funds are NOT disbursed soon, there may be a bigger fraud suit. As the RIAA has ostensibly been collecting the monies for the artists, if the RIAA does not disgorge the funds, then they have been litigating under false pretenses. If RIAA expenses are so high that they have nothing left for the artists, then the artists may have grounds to countersue the RIAA for annoying the potential customers with so many frivolous lawsuits that the record business was destroyed, by the RIAA. That might be the ultimate irony.By the way, for suggesting this suit, I would of course request my portion of the proceeds.
Earlier coverage here.
Now this could crimp the business plans of quite a few attorneys:
A Manchester lawyer who threatened to sue a Concord salon for pricing haircuts differently for men and women and then took money to settle the matter was found guilty of theft by extortion.A jury took about 1½ hours to convict Daniel Hynes, 27, on Wednesday. Assistant Attorney General Elizabeth Baker said Hynes sent letters to at least 19 salons in the state.
One arrived Dec. 20, 2006, at Claudia’s, the North Main Street hair salon owned by Claudia Lambert. In the letter, Hynes said prices should be based on the time a cut takes or on the length of hair, instead of on gender. He wrote: “I demand payment in the amount of $1,000 in order to avoid litigation,” according to court documents. …
Hynes said yesterday that he plans to appeal.
“The conviction goes against the First Amendment,” he said. “People have a right to petition the courts. In my case, I wanted to address my concern with the Human Rights Commission.”
Asked why he sent letters to salons instead of contacting the commission directly, Hynes said lawyers often settle out of court.
“I believe it’s more appropriate to attempt as amicable a resolution as possible,” he said.
… In one court document, he argued that the price structure that he saw as discriminatory had caused him stress and mental anguish, despite the fact that prices for men were less than those for women. He said he was being denied an “inherent benefit in being treated equally.”
(Chelsea Conaboy, “Lawyer guilty of salon extortion”, Concord Monitor, Mar. 21; Greenfield, Mar. 23; Above the Law, Mar. 25; Pasquale, Concurring Opinions, Mar. 24).
Prof. Bainbridge (Mar. 25) cites California’s experience with the now somewhat reformed s. 17200 unfair business practices law, which empowered freelancing lawyers to send out demand letters to businesses over a wide variety of alleged infractions. He concludes that the answer is to amend underlying laws which sweep too broadly in banning business practices, authorize damage claims unrelated to actual injury, and so forth. Although I much appreciate the kind suggestions for further reading he offers in his post, I can’t say I entirely go along with the idea that the scope for possible abuse would vanish if only the underlying laws were written properly. At Concurring Opinions, incidentally, one commenter draws a connection to RIAA’s mass production of demand letters against file-sharers, while another warns that for a target to complain to the authorities of extortion, as did the New Hampshire salon owner, might itself be construed by many courts as “retaliation” against the filer of a discrimination claim and thus as grounds for penalties on its own.
Why the case played out as a strong one for the record labels (Eric Bangeman, “How the RIAA tasted victory: a perfect storm which might not be repeated”, ArsTechnica, Oct. 7; and extensive coverage of the trial by the same author). More: Greg Sandoval, “For RIAA, a black eye comes with the job”, CNet, Oct. 9. Earlier: Oct. 7.
Good thing copyright infringement law isn’t punitive or anything (David Kravets, “RIAA Trial Produces Playlist of the Century”, Wired News, Oct. 4; more; Recording Industry vs. The People, Oct. 5; via Sullivan). Meanwhile, from the same state, same day, comes word that a school bus driver who pleaded guilty to drinking on the job has been fined $482. (”Bus driver pleads guilty to alcohol charge”, AP/Minneapolis Star-Tribune, Aug. 5; Lileks via Reynolds). More: Declan McCullagh, “Why the RIAA should have won (though the fine was too high)”, CNet, Oct. 5.
As a remedy for being sued wrongly or overzealously, malicious prosecution actions are traditionally extremely hard to win. However, should a court happen to allow a counterclaim for emotional distress, watch out — we’ve got a “thin skull plaintiff”. (Recording Industry Versus the People, Mar. 27).
This “lawsuit decision matrix” is just a parody, the real-life RIAA would never litigate abusively (BBSpot via everybody).
Needless alarmism, or logical extrapolation from RIAA’s willingness to sue small-fry individual music-sharers along with the grandparents whose computers they had borrowed?
According to some legal experts, YouTube’s uploading community could find itself in the line of fire. … Centralized source or no, Christopher Norgaard, intellectual property attorney and partner in the Los Angeles office of Ropers Majeski Kohn & Bentley, said he believes YouTube and its users face a significant risk of exposure to secondary liability for copyright infringement. Secondary liability can be either contributory, meaning inducement of infringement, or vicarious, meaning profiting from infringement while failing to exercise a right to stop it.
(Jennifer LeClaire, “Are YouTube Users at Risk in Viacom Suit?”, NewsFactor, Mar. 16).
Not only will they sue them up one side of the street and down the other for song-copying, they’ll tell their parents. (Boing Boing, Mar. 2)
Lawyers representing the recording industry have long been accustomed to demand $750 per downloaded song from alleged infringers, which cumulates into terrifying aggregate liability for many an individual defendant. In a case called UMG v. Lindor, attorney Ray Beckerman is advancing the argument that awards should instead be limited to the industry’s actual losses. (Capping awards at the level of actual damages — imagine that!) He’s also asking for discovery into the industry’s wholesale pricing arrangements by way of ascertaining what those actual damages might be. The industry really, really doesn’t want to disclose that information, so this should be interesting. (Eric Bangeman, “RIAA fights to keep wholesale pricing secret”, Jan. 3; Nick Farrell, “RIAA’s price secrets probed”, The Inquirer, Jan. 5).
The lawyers just love to sue Rockstar Games (e.g., Aug. 17; Mar. 5; Jul. 27, 2005; Feb. 19, 2005; Dec. 29, 2003); this particularly ludicrous suit alleged that “Grand Theft Auto:San Andreas,” the first part of which takes place in an ersatz parody of Los Angeles, infringed the trademark of a local strip club, “The Play Pen” because the game’s version, “The Pig Pen,” (one of hundreds of locations in the game) had a similar name and also had a parking lot and a round awning. Judge Margaret M. Morrow rebuffed the claim. But it took 100 entries on the docket, numerous depositions of game designers, expert-witness surveys, and a 55-page judicial opinion before this common-sense issue could be resolved in court. Moreover, the PlayPen attorneys say they’ll appeal, subjecting the matter to the random-legal-opinion generation of the Ninth Circuit. (AP, Aug. 8; Trademark Blog; E.S.S. Entertainment 2000 v. Rock Star Videos, CV 05-02966 MMM (C.D. Cal. July 28, 2006)).
In the weird coincidence department, one of the junior defense attorneys in the suit is not only someone who has worked on behalf of the RIAA in their oft-criticized “spamigation” suits against individuals who allegedly illegally download songs, but a co-creator of the lonelygirl15 Internet phenomenon.
Iola Scruse, 66, of Louisville, who is on Social Security and paying bills for dialysis, “must pay $6,000 for the 872 songs her grandchildren downloaded, in addition to court fees.” Scruse “said she has no idea how she will pay the fine or what her next action will be.” Self-employed engraver Michael Brown paid $5,000 “because his teenage daughter had shared nearly 900 music files with others”. And: “No lawsuits anywhere have gone to trial, said Jenni Engebretsen, a spokeswoman for the Recording Industry Association of America, a trade group that files the suits on behalf of the companies. … ‘We hope that what is coming out of these lawsuits is that parents are having conversations with their kids,’ she said.” (Amy H. Trang, “Illegal downloads create unlikely defendants”, Louisville Courier-Journal, Jul. 31). The recording industry had sued a Ypsilanti, Mich. man for unlawful downloads; after he died, “the RIAA made a motion to stay the case for 60 days in order to allow the family time to ‘grieve’, after which time they want to start taking depositions of the late Mr. Scantlebury’s children”. (new blog Recording Industry vs. the People, Aug. 13; see David Berlind, ZDNet, Aug. 14).
Relatedly, Brad Templeton (Interesting People message list, Aug. 19; via Boing Boing) has coined the term “Spamigation” for litigation or threats of litigation mass-generated by automated processes:
The RIAA strategy is an example of a new legal phenomenon that I have dubbed “spamigation” — bulk litigation that’s only become practical due to the economies of scale of the computer era. We see spamigation when a firm uses automation to send out thousands of cease and desist letters threatening legal action. We saw it when DirecTV took the customer database for a vendor of smartcard programmers and bulk-litigated almost everybody in it…The RIAA uses systems to gather lists of alleged infringers, and bulk-sues them. It has set a price that seems to be profitable for it, while being low enough that it is not profitable for the accused to mount a defence, as they do not get the economies of scale involved.
The Motion Picture Association of America (MPAA) and Recording Industry Association of America (RIAA) have filed thousands of lawsuits accusing individuals of unlawful downloading of films and music, “but largely because of the legal costs few have been contested and none have gone to trial. This has left several controversies unresolved, including the lawfulness of how the associations get access to ISP records and whether it’s possible to definitively tie a person to an IP address in the age of Wi-Fi.” That may change, however. Universal Pictures and the MPAA have told Shawn Hogan that they’re suing him for downloading Meet the Fockers over BitTorrent, but Hogan says he didn’t do it and already owned the film on DVD. Hogan happens to be a software millionaire and says he’s prepared to spend $100,000 or more in legal fees to put MPAA and Universal to their proof rather than fork over the demanded $2,500. (David Goldenberg, “Shawn Hogan, Hero”, Wired, Aug.).
The recording industry association sued Debbie Foster of Oklahoma along with her daughter Amanda for $5000, saying her broadband account had been used for song downloading. But when Foster resisted the suit, and requested to know the dates and song titles of the allegedly infringing downloads, the association failed to respond. Foster filed for summary judgment and RIAA withdrew its suit against her. A judge said Foster counted as a prevailing party under the terms of the Copyright Act and that RIAA should could apply for RIAA to pay her attorney’s fees. (Eric Bangeman, Ars Tecnica, Jul. 13). See, e.g., Nov. 4, 2005, Feb. 7, 2005. (Fixed Jul. 16 to respond to reader comment noting that the judge did not in fact order a fee shift but only declared Foster eligible to apply for one. A PDF of the ruling is here)
Point of Law Volokh