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).
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Effective deterence requires an award et least as great as the amount of actual loss divided by the probability of getting caught. My understand is that young people routinly avoid payment for their song. If the loss to the system is $2 and the probability of prosecution is 1 in a thousand, then the award has to be at least $2,000.
It used to break my heart when actuarial students would not buy the required texts. They did not understand that their coppying the bulky material on their company’s machines constituted theft.
“If the loss to the system is $2”
Yet many successful groups GIVE their songs away as free downloads, yet remain successful. That makes it hard to argue that ANY loss has occurred.
The public library lends out books for free. Does it follow that I can steal Walter Olson’s excellent book The Rule of Lawyers from the local bookstore?
Some groups use downloads to increase their performance fees.
Maybe the actuarial students understood perfectly well, but just didn’t care!
I’m sure many people on one hand would support Microsoft prosecuting software piracy, for example, but on the other hand, have no moral qualm about doing it themselves.
Regarding William’s first comment, I don’t understand your reasoning. By this reasoning, it would seem perfectly legitimate for the record company to put all of its efforts into one suit, and ask for its total loss from a single defendant. In other words, if a million people each download one song (valued at $1), and the record company has absolute definitive proof that James Doe was one of these people, why not just sue him for its total loss of $1 million in damages? If he is the only one they can prove downloaded the song, should they be allowed to assume that he downloaded the same song one million times?
(On another note: I am an actuary, and I’ve never seen any actuarial student photocopy actuarial texts for personal use. Every company that I or my friends have worked for has paid for all of the textbooks on the actuarial syllabus, as well as additional study materials from JAM, Actex, etc. That being said, I do find it distressing when there are $200 books on the syllabus, of which only three chapters are pertinent to the exam.)
“The public library lends out books for free. Does it follow that I can steal Walter Olson’s excellent book The Rule of Lawyers from the local bookstore?”
Disengnious AND not even close to analogous.
“lend” is not remotely the same thing as “give”
Also, “create a copy that involves supremely insignificant cost (if any) to the owner” is very hard to analogize to “take a copy that was created at a noticeable cost to the owner”.
Please do try again – there very well may be a good analogy that gets your point across… just not that one.
How about this? I can pick up a free copy of the Pennysaver. Can I then swipe the New York Times?
Printing a book is a big deal so we can finance the writing of books though book sales. Since the audidence for actuaial texts is so limited, it is essential that those who benefit from Actuarial texts contribute to the cause by paying for their books.
The music industry can not put all the costs of song stealing on one person because that person is unlikly to have the assets to cover the claim. People with loads of assests don’t need to sreal songs.
“The music industry can not put all the costs of song stealing on one person because that person is unlikly to have the assets to cover the claim. People with loads of assests don’t need to sreal songs.”
So the strategy is to shotgun everybody possible in the hopes that RIAA might make legal expenses?
Biz law 101, only sue somebody that can afford to pay you! Johnny can’t afford any settlement you might gain against him! he is 13 yrs old and can’t work!
On top of that, he really does not care if you do sue him, he is as immune to your judgment as he is from his own parents beating him with a stick!
But the RIAA still pays the attorneys!
GAWD this is smart business!
The demand for $750 settlement suspiciously resembles a legal fee. How much of any collection goes to the injured party, the artist or even the record company?
The decision contradicted the Sony Beta videotaping case. The Supreme Court ruled, time shifting and personal use were deemed fair use. Indeed, videotape saved the movie biz, and helped losing movies get closer to breaking even.
The download is an advertisement. If one likes it, one buys the CD and a ticket to the live performance. The Napster should be reversed by statute, for the benefit of the record companies and artists. Despite all the intimidation, sales have dropped despite a decrease in downloading.
Most songs in existence are no longer protected. So if your Dad asks you for a favorite Portuguese song from the 1930’s, good luck trying to buy it. Someone will have converted it from the old 78, and uploaded it. This intimidation thus hurts the aged, seeking to find nostalgic music from their youth.
The only people doing well in this mistaken policy are the lawyers, who get theirs before anyone, including the record company.
“I can pick up a free copy of the Pennysaver. Can I then swipe the New York Times?”
MUCH btter analogy – thank you! I thought you probably could.
It still doesn’t actually fit (as the content and intention are COMPLETELY different), but at least the verbs are now the same.