James Delahunty
10 Nov 2006 18:08
The case, UMG v. Lindor, has just gotten more interesting. Marie Lindor is currently in a legal battle with the Recording Industry Association of America (RIAA), accused of being a web pirate. Ms. Lindor is now challenging the RIAA to explain why it demands $750 per track in damages when they are available legally to the public for just 99c. Of course, the RIAA did fight to stop this amendment to the case.
The trade group claimed it was not up to Ms. Lindor to decide the damages and that her complaint was without merit, the motion was untimely and it would prejudice the RIAA. However, Judge Trager did not agree with the RIAA on those claims nor a claim that Ms. Lindor was required to send a notice to the United States Department of Justice of her defense of unconstitutionality.
So now the RIAA needs to explain how it has come to the $750 per track figure. Lindor has already provided proof that possible damages to the RIAA amount to no more than 70c per track, which is the share record companies pick up from online retailers.
Here is a paste of the Judge's ruling from the Recording Industry vs. The People blog:
[P]laintiffs can cite to no case foreclosing the applicability of the due process clause to the aggregation of minimum statutory damages proscribed under the Copyright Act. On the other hand, Lindor cites to case law and to law review articles suggesting that, in a proper case, a court may extend its current due process jurisprudence prohibiting grossly excessive punitive jury awards to prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered.....Furthermore, Lindor provides a sworn affidavit asserting that plaintiffs' actual damages are 70 cents per recording and that plaintiffs seek statutory damages under the Copyright Act that are 1,071 times the actual damages suffered. Aff. of Morlan Ty Rogers, ("Rogers Aff.", [pars.]5, 6. See also Aff. of Aram Sinnreich, ("Sinnreich Aff."), [par.] 2, 3 (attesting that popular music sound recording downloads and consumer license to use same are lawfully obtainable to the public at 99 cents per song, and of that 99 cents, roughly 70 cents per song is paid by the retailer to the record label). As FRCP Rule 12(b)(6) requires that this figure be taken as true for purposes of the motion, Lindor has alleged a factual basis supporting her affirmative defense."Source: