RIAA Told To Provide Breakdown Of Expenses Per Each Downloaded Song

Over the Thanksgiving weekend, a Brooklyn judge made a defendant in an RIAA lawsuit very happy when he ordered the RIAA to document the actual expenses incurred per downloaded song.

Copyright law says the RIAA can elect to seek statutory damages “instead of actual damages and profit.” The law also says that $750 is the minimum amount per infringement if you go the statutory route, which explains where the RIAA came up with that ridiculous figure.

But the defendant is claiming that $750 per song counts as an unconstitutional violation of due process because the figure is unreasonably high when compared against the actual value of a downloaded song—and that she should pay the wholesale price per song, which she estimates at 70 cents. By her argument, the $750-per-song fee is 1,071 times higher than the actual damages suffered by the RIAA.

From the judge’s order:

[Plaintiff] shall set forth with more specificity the categories of expenses they incurred in making the song recordings, such as, for example, royalties. Plaintiffs shall also state with specificity which categories of expenses, if any, (a) they are unable to quantify or (b) they cannot quantify without unreasonable burden or expense–and in the latter event, they shall explain why.

The RIAA has two weeks to comply—we’re curious to see what they’ll come up with, or if they’ll just get their legal team (who probably work for two-thirds of a downloaded song per hour) to come up with some really elaborate excuses.

“RIAA Must Divulge Expenses-Per-Download” [Slashdot]

pdf of electronic filing of the judge’s order [Pike & Fischer]
“§ 504. Remedies for infringement: Damages and profits” [Cornell University Law School]
(Photo: Getty)


Edit Your Comment

  1. darkclawsofchaos says:

    those charges fall under cruel and unusual punishment, one cannot pay an absurd fine or overpay damages, and comingto think of it, the money the RIAA gets from these people they sue never ever return to the artists, so what the hell is going on?

  2. Andrew says:

    Mark another strike against the RIAA. Surely, this is not the end, but it says that no song is worth what they have been claiming.

    The RIAA, MPAA, CRIA, BREIN, IFPI, et al need a good thrashing, if you ask me. How about all the people they’ve targeted get together and sue for malicious prosecution or something? I’d donate money to a cause like that.

  3. doctor_cos wants you to remain calm says:

    Out of this ’70 cents per song’ the artists get what, 2-3 cents?
    Out of the $750 per song they want, the artists still get 2-3 cents.
    The record companies today are theiving talentless commercial thugs who couldn’t recognize real talent if it bit them in their fat slimy corporate ass.
    Stealing is wrong unless you have the victim under contract.

    Interesting fact for those not paying attention: For DIGITAL DOWNLOADS, the record companies nick a chunk of the profits for ‘physical media’ including pressing and printing costs (which in the case of downloaded media DO NOT EXIST). Look it up.

  4. greatgoogly says:

    Don’t you worry, the RIAA will still get to collect their $750 per song. There are always appeals courts, and if that doesn’t work there are a slew of Californian Congress people who line their pockets while doing the bidding in congress of the RIAA.

  5. shan6 says:

    “…come up with some really elaborate excuses.”

    That is exactly what I think we are going to see at the end of their deadline. Honestly I am interested to read what it is, surely it will be good for a laugh, I just hope the judge doesn’t go for it.

  6. bravo369 says:

    I hope this works out. I’m surprised there aren’t more RIAA articles on consumerist. The way that industry is continually trying to screw the people with their blackmail letters is wrong. It appears more and more judges aren’t giving in to the RIAA anymore and when judges actually making them show cause, the RIAA is scrambling. Read the articles about how the RIAA has been misusing the CCPA and DMCA against college students. I’m glad the judges finally actually READ those laws and starts squashing RIAA’s attempts to sue college students.

  7. alfista says:

    I have about 500 CDs that I’ve converted to MP3s and stored in the basement. About 80% are RIAA-backed. I’m thinking of selling them on ebay and donating the proceeds to fighting these lawsuits or directly funding the independent or RIAA-oppressed artists I like and support. Sadly, that would mean that I couldn’t listen to the MP3’s under fair use, but it seems to me like a good way to protest beyond not buying new RIAA releases.

  8. RumorsDaily says:

    I’m not a big fan of the RIAA’s tactics, but this argument is faulty on two levels.

    1. She’s not being sued (I assume) for downloading, she’s being sued for uploading. The RIAA never sues anybody for merely downloading content. Even if we assume the cost is 70 cents per song, the damages, from a court’s point of view, would be 70 cents times the number of times the song was uploaded. Obviously you would need to upload each song over 1000 times in order to hit that $750 statutory damages number, but that’s not impossible to imagine. Additionally, the fact that the statutory damages are 1000 times higher than the actual cost is simply not correct assuming she uploaded the song even twice — two uploads and the multiplier drops to 500 times, four downloads and it drops to 250 times… it suddenly doesn’t seem so outrageous.

    2. Statutory damages are designed to be dramatically higher than actual damages. If it’s unconstitutional here, it’s going to be unconstitutional in a lot of other places and I don’t recall ever having heard a statutory damages case being thrown out in copyright world. Statutory damages are system devised to give relief when the actual damages are either too small or too difficult to accurately calculate, but when we still want to find a way to compensate one party or punish another. Uploading songs falls into the category of things that are difficult to quantify in terms of precise damages, making them especially ripe for statutory damages.

  9. savvy999 says:

    @alfista: Or… donate those CDs to your local library– make sure you get an itemized receipt for the donation listing each and every disc– then go to Amazon and look up the value of each CD… you have a sweet charitable deduction sitting in your basement, about $5k worth. Help the community, help yourself.

    /threadjack over

  10. Tux the Penguin says:

    @savvy999: That’s a great point but there are a few other things: first, you have to use itemized deductions and that can be a great pain in the butt. For most people, itemizing is worthless, the standard deduction is greater. But I do like the idea…

  11. HRHKingFriday says:

    Huzzah! Now that the legal system is finally coming to its senses, all I have to worry about now is my connections being monitored my DHS!

  12. HRHKingFriday says:

    @RumorsDaily: That’s all very true- sometimes people forget that. However, I would then argue that sometimes people use malicious programs for legitimate file sharing. Take Limewire, for example, older versions of the program would allow access to your music files if you didn’t opt out. I’m sure that only accounts for a very small proportion of people, but could be applied to most light file-sharers as well.

  13. SpdRacer says:

    I scoff in the general direction of the RIAA. Scoff, Scoff! I still laugh when I think of the old lady they sued for this and she didn’t even own a computer. They are just greedy and don’t really care about finding a way to make this work for them instead of against them. FTRIAA

  14. Buran says:

    @shan6: Except if they do that they’ll be guilty of contempt of court which is a serious charge. The court says do it, you say “how fast?”.

  15. cde says:

    @RumorsDaily: Statutory damages are normally capped at 9 times the actual damages. Not 1000, 500, or 250 times.

  16. Morgan says:

    @RumorsDaily: The thing is that they’re not really suing based on uploading, either, since they can’t prove that she ever uploaded a song to anyone that wasn’t an agent of the RIAA (and therefore authorized to have a copy of the file, meaning it’s not copyright infringement to give them a file). They’re suing her just for making the files available, which has never, until recently, counted as infringement. The recent jury trial of an RIAA case ended in the RIAA prevailing because the judge instructed the jury that making files available counted as copyright infringement, but the case is being appealed based on faulty jury instructions, since case law has always shown that making available doesn’t constitue infringement in and of itself.
    So what you really have is the RIAA claiming that making songs available, whether or not you can prove that any songs were downloaded by unauthorized people, is worth $750 in damages- when they may not have suffered even the $0.70 we’re estimating if the song was one she’d bought on CD or through iTunes or the like.

  17. JiminyChristmas says:

    @RumorsDaily: As for your point #2, you’re absolutely right.

    As for point #1, a couple of things: Yes, the music files uploaded by the defendant could have been downloaded 100s of times…or it could have been downloaded 0, 1, or 5 times. The point is, the RIAA has no way of knowing and it’s totally reasonable for the judge to ask the plaintiffs to make an effort to quantify their actual damages.

    Also, in cases where actual damages serve as a baseline for claims an award of 250x actual damages definitely would be outrageous. As would 100x, 50x, or 25x. Except in the most heinously egregious cases, you would be hard pressed to find awards of that scope in any area of civil litigation. There are many areas of law that expressly allow for multiples of actual damages where the intent of the law is to have a punitive effect. Even in those cases you rarely see a multiple higher than 3x.

  18. Spiny Norman says:

    I really want to see the accounting that comes out on this one. It’s going to be a real CPA circus. If the RIAA is only going to claim damages on uploads, then all of the downloaders cases will go on appeal again.

  19. Freedomboy says:

    Day 3456 and so far I have yet to buy a new CD and unless the vault at Abbey Road cracks open and a lot of lost Beatles falls out I likely never will.

    Fair is fair and RIAA are a**holes.

    Who needs the current “music”?

  20. KJones says:

    Does anyone else here remember the computer hacker Kevin Mitnick and the witch hunt he endured? His case was a lot like this.

    Mitnick was accused of stealing and destroying millions in computer software. The judge made the companies account for the full cost of what Mitnick accessed. It amounted to a $15.00 file that AT&T was *selling* and Mitnick merely copied (without destroying) software that Digital owned; Mitnick never sold it, he was playing “king of the castle”, seeing if he could do it. Mitnick was convicted, but the financial hype was exposed for as greed by corporations.

    And as an aside, his arrest and eight months of solitary without trial, plus a farcical “computer terrorist” trial were an ominous precursor to what’s gone on at Guantanamo Bay and the violation of human rights by government persecutors (not a typo) since 9/11.

  21. aikoto says:

    That lady is a freaking hero for fighting them so hard for us.

  22. HOP says:

    why don’t people just record the stuff off the radio or tv and convert the files to whatever???????

  23. lincolnparadox says:

    If this goes through, everyone who was sued by the RIAA and lost can appeal for the lower price per up/download.

    However, anyone who just rolled over and paid a fine is SOL.

    Litigation can be a consumer’s best friend.

  24. doctor_cos wants you to remain calm says:

    @alfista: Where do you get this idea?
    If I buy a CD and copy it, I have to keep the stupid CD to legally listen to the copies?
    Fuck that!
    What if I lost the CD? If it was stolen? If it sat in the sun and melted?
    How is it anybody’s business anyway if I lost it or sold it or just plain threw it away?
    If this is in fact the law, then the law is in fact, bullshit.

  25. alfista says:

    Speaking very generally: If your rip a copy as a backup of your original, and the original is lost or destroyed, you have a right to the copy (although the RIAA would disagree with this statement – wanting you to buy a replacement).

    If you make a copy and then sell the original you have transferred ownership/licensing and no longer have a right to use your backup (the RIAA would strongly agree with this statement). Feelings about the RIAA notwithstanding, the artist behind the work deserves the additional sale even though, as we all know, however, most of the proceeds from this second sale will never make it into the hands of the artists.

    I have friends and relatives in the music industry and loathe the RIAA but think its best to fight them by playing by the rules instead of sinking to their levels. I suggest finding alternative ways to support the artists who enrich your life without funding the RIAA’s practices.

  26. drjayphd says:

    @savvy999: Goddammit, I just dropped off about 600 CD’s to Goodwill. Woulda gone that route if I’d seen this earlier.

  27. stinerman says:

    Actually, the case cites the 14th amendment, rather than the 8th. See BMW v. Gore.

    She was sued for both … sorta. Morgan got it pretty much right. It is certainly possible she had uploaded many copies of the file, but usually we need proof that she uploaded x copies to get damages for x. She could have made any number of copies, but the RIAA never had to prove she made even one to claim infringement. Even then, under copyright law, it doesn’t matter how many copies you make illegally, the penalty is the same. It’s a minimum of $750 per work infringed, not per copy.

  28. savvy999 says:

    @drjayphd: IANATaxLawyer, but I believe you can still claim the deduction for the market value of the CDs, regardless of where you donated them– library, Goodwill, community center, etc. As long as you received a paper receipt of the transaction for proof– somewheres I read that the IRS is increasingly wishing to see a paper trail for charitable donations.

  29. drjayphd says:

    @savvy999: The receipt just has name, address, estimated value, and check boxes for categories: clothing, electronics, miscellaneous. Hope that’s enough…

  30. endlessendres says:

    Any update on this?