analoghole

I do not think that law means what you think it means

About a week ago, the New York Times ran an article by Jeff Leeds on the DJ Drama raid.  Here's how Leeds described the beginning of the investigation:

Not long before Christmas, Jeff Baker, the chief of police of Morrow, Ga., a small town just south of Atlanta, and one of his officers were walking through a local shopping mall when they happened to pass a kiosk hawking rap music CDs. One in particular caught their attention.

The CD was “Tha Streets Iz Watchin,” with songs performed by the rapper Young Jeezy and, as Chief Baker recalled, it did not carry the name or address of the owner of the music copyrights, as Georgia law requires. Rather than arrest the kiosk vendor immediately, Chief Baker said, “We’d rather go after the source of the material. And at that point we had no idea what the source was.”

"Cracking Down on Mixtape CDs" (NY Times 1/22/07) (emphasis added).[1]

In his affidavit in support of the search warrant, Det. James Callaway describes a similar scene, albeit somewhat more officiously:

On 12/19/2006 the Affiant went to Southlake Mall in Morrow, Georgia, on a complaint of pirated music being sold from a kiosk in the mall.  Affiant located the kiosk and looked at several CDs that did appear to violate the true name and address statute under the criminal sale and reproduction of recorded material.  The employees of the kiosk did state to affiant that they were in the business of selling music and not just the artwork like the insert disclaimer noted.  The kiosk has a large selection of "mixed tapes.  ... These mixed tapes also do not have the true name and address of the true owner of the music on the disc.  The true labels of the artists are Interscope Records and Def Jam recordings among others.  None of the labels have their names or addresses on the CDs as required by law. The CDs were coming from a company named, "The Aphilliates".

Affidavit of Det. James Callaway, para. 2 (emphasis added).

Some things to notice in these passages. [2]

One thing that is apparent from both the affidavit and the quotes from Chief Baker is that the police investigating the case seem quite sure that it is a violation of Georgia law to sell CDs that are not labeled with the "true name" and address of the owner of the copyright in the works contained on the disc.  But to paraphrase Inigo Montoya, "You keep using that law.  I do not think it means what you think it means."

As noted previously, the Georgia "true names" provision, Ga. Code 16-8-60(b), forbids anyone from distributing, selling, or offering for sale, a CD (or various other items):

on which sounds ... have been transferred unless such ... disc... or other article bears the actual name and address of the transferor of the sounds ... in a prominent place on its outside face or package.

Ga. Code 16-8-60(b) (emphasis added).  "Transferor" fairly clearly refers back to the "transfer[]" of the sounds to disc mention earlier in the same sentence -- i.e., the person who made the CDs by putting sounds on them.  This is how the Georgia Supreme Court interpreted the meaning of the word, and this statute, just a couple of months ago in the Briggs case.

The investigating officers seem to read this statute differently.  They appear to believe that it requires that any CDs being offered for sale must display the "true name" of the owner of the copyright in the sound recording(s) contained on the disc.

There are a few reasons why the officers' reading of the statute is almost certainly wrong.  First, there is the plain text of the statute and its interpretation by Georgia's Supreme Court (which, basically, has the last word on what the law means).  Other parts of the statute also suggest "transferor" means something besides "copyright owner"  or "owner of the music on the CD."  Subsection a of the statute, the "unauthorized distribution" part,  forbids copying or distribution without permission of the owner of the "master" recording from which a CD is made.  Although the Georgia legislature didn't use the term "copyright owner," it uses a different term (other than "transferor") when identifying who (in the legislature's view) enjoys the benefits of "ownership" and control over the music recorded on the CD.

There is also the matter of consistency with the overarching goal of the statute.  While the officer's reading might be helpful to them in this particular case, interpreting the "true names" law as they do would actually undercut the purpose of this law --  which, as the GSCt. put it, "aims to protect the public and entertainment industry from piracy and bootlegging" (Briggs, slip op. at 5.)  It does so by requiring people who produce CDs for sale to identify themselves.  It makes the job of law enforcement easier.  If all it took to make the CDs in question legal under 16-8-60 was to include a label indicating who the copyright owner was, then it would be quite easy to circumvent.  And indeed, truly counterfeit CDs -- the kinds of knock-offs of commercial CDs that include complete facsimiles of genuine CD inserts -- wouldn't be covered.  Where ambiguity exists in a statute, it rarely makes sense to resolve it in a manner inconsistent with the underlying purposes of the statute.

Finally, there is the issue of preemption.  Although a requirement that copyright owners identify themselves on any copies containing their work does not directly conflict with federal law (there is no requirement, for example, forbidding copyright owners from using such labeling), such a requirement does run smack into the intent of amendments to federal copyright law since the 1976 Act.  Specifically, the Berne Convention Implementation Act of 1988 eliminated mandatory notice requirements as a condition of copyright protection.  For a state to then mandate such notice as a condition of, well, not going to jail, would seem to raise some preemption issues, even beyond those already dispensed with in Briggs.

For purposes of this case, the issue of whether the law requires that CDs bear the name of their producer, or on the other hand, the names of the owners of the copyrights in tracks on the disc, is critical.  The affidavit indicates that the CDs did indicate the name of their producer -- i.e., "the Aphilliates" -- and sample images of DJ Drama CDs on the web all seem to show similar identifying information.

[1]  No word on whether the investigating officers were drawn to any particular track on the disc, such as the quite apropos "Come Shop With Me, Part 2" (track 6), "Southerners Ain't Slow" (track 20) (the Atlanta hip-hop scene's apparent answer to "Sweet Home Alabama"), or perhaps "Pussy Muthafuckas" (track 2), a somber love ballad.  And incidentally, it wasn't too difficult to locate these track names or information about who produced and performed on "Tha Streets Iz Watchin," since the CD appears to be available from a variety of online merchants and is even available for download through one of the more popular (legit) music services.

[2]  Whether the officers just happened upon the kiosk, as the NYT quote suggests, or went to the mall specifically due to a complaint regarding the kiosk, doesn't matter much legally, although it would certainly give us some indication of whose idea this case was.  The mention of an outside complaint in the affidavit would suggest the case was instigated by RIAA, but on the other hand, would the RIAA really phone in a complaint about a particular kiosk at a particular mall in Georgia?  Regardless, elsewhere in both the affidavit and other news coverage, it is noted that at least later on, the RIAA worked closely with Georgia authorities on the case.

DJ Drama Search Warrant

The search warrant application and supporting affidavit for the DJ Drama/Cannon/Aphiliates raid is posted over at freethedjs.com.  (Thanks FvL for pointing this out in comments.)

These documents make clear that the police are alleging a violation of Georgia Code 16-8-60 (as the underlying predicate for the state RICO charge).  The documents supporting the warrant application claim the sales of mixtape CDs constituted a "true names" violation, and also seem to suggest these sales violated the other part of GC 16-8-60 as well (subsection (a)) which criminalizes distribution of CDs without permission of whoever owns the "master" copy.  As discussed previously, the "true names" part of the statute was upheld by the Georgia Supreme Court just a few months ago (although on a different set of facts), while the "unauthorized distribution" provision seems to run counter to federal copyright law, which preempts state laws that attempt to regulate in the area of copyright.  The affidavit also seems to suggest that Georgia police may be misreading what the Georgia "true names" law actually requires, but that's a topic for another post.

Levis Using Teams of Oxen to Tear Apart Infringing Competitors

Or teams of lawyers, actually.  An article in Monday's NY Times examines how Levis is mounting an aggressive legal campaign against its competitors whose rear pocket stitiching too closely resembles Levis' own.  It's not really clear if the competitors are actually infringing, since it sounds as though few claims have even gotten so far as to be examined by a court, and Levis' claims against designer/boutique jeans companies are by and large being settled (and in some cases, at least, for quite small amounts).

Although I imagine that most everyone buying a pair of jeans, even fancy jeans, has at least heard of the Levis brand, it would be interesting to know if any of the alleged infringement (back-pocket stitching that includes two arcs, or fabric tag on left side of the right rear pocket) has caused customer confusion.  Are there many people out there buying $200 Von Dutch or Lucky Jeans who think they're getting a pair of Levis?

Maybe the Drama drama really is about "true names"

I missed it at the time, but this ran in Billboard over a week ago.  The chief of the Morrow, Georgia, police department, who was involved in the DJ Drama raid, and who discussed the origins of the DJ Drama investigation in a NY Times article mentioned earlier, is quoted in Billboard article specifically citing Ga. Code 16-8-60, in a way that sure makes it sound like the complaint here is that the DJ Drama CDs were not labeled with the true name and address of their producer:

"We have a partnership with a joint vice task force working pirated tapes in the country," says Chief James Baker of the Morrow Police Department. "We found an outlet in Morrow for the criminal sale of recorded material, breaking the OCGA, Official Code of Georgia Annotated, no. 16-8-60, which specifies that CDs must list the true name and address of their office, which these CDs didn't, nor did they [list] copyright permission. People were able to make purchases over the Internet and these guys sold the pirated discs for profit."

Huh.  If the case really is based on the "true names" provision of Georgia law, then there's the possibility that Georgia courts will view this as a replay of the Briggs case the Georgia Supreme Court decides in November, in which case DJs Drama and Cannon are out of luck.  Nevertheless, there seem to be some critical factual differences here (like the name, or at least well-known pseudonym, of the producer(s) of the discs being prominently displayed on each, which seems to undercut at least part of a "true names" claim).

DJ Dr^H^H Suspense

No drama today.  Just suspense.  According to MTV (whose answer to Nina Totenberg would be Kurt Loder, I guess), the hearing scheduled for this morning was postponed.  No new date has been set.  Hopefully some more details of the charges will emerge online soon.

Drama and "True Names"

Well, perhaps my earlier idle speculation that the DJ Drama/Cannon case wouldn't turn on Georgia's "true names" statute was wrong after all.  A Monday NY Times story suggests the impetus for the case was a lack of required labels on CDs being sold in local mall (via madisonian.net).  As Mike Madison points out, the seeds of the investigation as described in the Times don't exactly make for gripping police drama.  But hey, exciting cases often spring from mundane beginnings.

According to the story, the Morrow (Ga.) chief of police and another officer ran across a rap mix tape in a local mall, and noticed it "did not carry the name or address of the owner of the music copyrights, as Georgia law requires."  I'm not sure if this is how the police characterized Georgia law, or if some nuance has been lost in translation into a news story, but this doesn't appear to be what Georgia law actually requires for sales of CDs.

As noted previously, Ga. Code 16-8-60(b) prohibits sales of CDs (and other music, video, and similar items) "unless such [CD] bears the actual name and address of the transferor of the sounds or visual images in a prominent place on its outside face or package."   The Georgia Supreme Court had occasion to analyze this Georgia true names law last November in Briggs v. Georgia, and while noting that the term "transferor" was not defined it the statute, the meaning of the term was "clear and straightforward," and that "a 'transferor of the
sounds' is the individual who conveyed the sounds by transferring them to the article in question."  (Slip Op. at 3.)  So the statute would seem to require a label identifying not the owner of the copyright in the underlying work, but rather, a label that identifies the person or entity who actually produced the CDs by recordings sounds onto the discs being sold.

All the pics of Gorilla Grillz/DJ Drama mixtape CDs that I've run across online seem to identify the CD as being produced by DJ Drama, and/or Aphiliates Music Group, etc.  So, some more idle speculation:  Could the basis for a true names charge be that that "DJ Drama" is not Tyree Simmons's "actual name"?  Or perhaps the CDs don't list an address for Drama or Aphiliates?

There ought to be more details of the charges soon.  According to the Atlanta Journal-Constitution, a hearing is scheduled for today.

More Drama

No new developments in that DJ Drama case, really.  According to information blogger zeroday apparently got by fax from the Fulton Co. sheriff's office, the basis for the DJ Drama warrants was a RICO violation (violation of Ga. Code 16-14-4), which the warrant apparently characterizes as "related to copyright infringement."  I have my doubts as to whether that characterizations is technically true, but at least it appears possible that the state authorities are predicating their RICO charges on violations of federal (copyright) law.  According to Ga. Code. 16-14-3(9), "racketeering activity" can include any one of a multitude of state crimes (including unauthorized transfers, see below), but also some federal crimes:

'Racketeering activity' shall also mean any act or threat involving murder, kidnapping, gambling, arson, robbery, theft, receipt of stolen property, bribery, extortion, obstruction of justice, dealing in narcotic or dangerous drugs, or dealing in securities which is chargeable under the laws of the United States or any of the several states and which is punishable by imprisonment for more than one year.

Ga. Code 16-4-3(9)(B).  Federal copyright violations are not specifically mentioned.  The state authorities could try to shoehorn their allegations of copyright infringement into "theft" or possibly "receipt of stolen property," but it's unclear whether that would work.  While colloquially, many people refer to copyright piracy as "theft," infringement is a distinct concept under federal law (although criminal copyright offenses are grouped with other offenses against property).  If, however, the state's RICO theory is based on violations of federal copyright law, the case would still seem to face some serious preemption problems under Section 301.

A more likely scenario, it would seem, is that the state RICO charge is based on Ga. Code 16-8-60, and I continue to marvel at the breadth of this statute purporting to criminalize all unauthorized distribution of sound recordings or audiovisual works without the consent of the owner of the "master" (whatever that means).  It is really difficult to see how this would not be preempted by federal copyright law.  Of course, it also is not limited to creative expression (applying to any sounds or images) and lacks a fair use exception -- the two "First Amendment safeguards" mentioned in the Eldred v. Ashcroft case -- although it does offer some exceptions such as "archival use," and transfers made for the personal, non-profit use of the transferor.

Nevertheless, read literally, it raises some serious First Amendment issues.  Even more interesting, the statute requires consent of the owner of the "master" copy "from which the sounds or visual images are derived," as opposed to the actual creator of those sounds or images.  That's a significant difference from U.S. copyright law, under which the ownership of a physical copy doesn't not convey title in the underlying content.  That difference isn't sufficient for the statute to avoid preemption problems, but it raises all sorts of interesting questions on its own.  If I buy the negative of a photograph from the original photographer (perhaps because it's an embarassing pic, or maybe I just like it), does Georgia law prohibit subsequent sale of any copies of that photograph?  Even copies that are made with permission of the photographer, or even copies made by the photographer before I purchased the negative?  Wow.

Hopefully, a charging document and some more details of the state's theory will be available online soon and can settle some of this speculation.

By the way, the Georgia legislature used to make the state's law available online so that, you know, people could learn what the law is.  Oh so helpfully, they have decided that's too much trouble, and now direct web visitors  to Lexis and/or Westlaw.  Gee, thanks.

The relevant page from the Georgia legislature's site can still be found in Google's cache at http://72.14.203.104/search?q=cache:www.legis.state.ga.us/legis/GaCode/%3Ftitle%3D16%26chapter%3D8%26section%3D60
But since it'll eventually disappear from there, here is the text of the relevant Georgia law, Ga. Code 16-8-60, in all its glory: .

16-8-60.

(a) It is unlawful for any person, firm, partnership, corporation, or association knowingly to:

(1) Transfer or cause to be transferred any sounds or visual images recorded on a phonograph record, disc, wire, tape, videotape, film, or other article on which sounds or visual images are recorded onto any other phonograph record, disc, wire, tape, videotape, film, or article without the consent of the person who owns the master phonograph record, master disc, master tape, master videotape, master film, or other device or article from which the sounds or visual images are derived; or

(2) Sell; distribute; circulate; offer for sale, distribution, or circulation; possess for the purpose of sale, distribution, or circulation; cause to be sold, distributed, or circulated; cause to be offered for sale, distribution, or circulation; or cause to be possessed for sale, distribution, or circulation any article or device on which sounds or visual images have been transferred, knowing it to have been made without the consent of the person who owns the master phonograph record, master disc, master tape, master videotape, master film, or other device or article from which the sounds or visual images are derived.

(b) It is unlawful for any person, firm, partnership, corporation, or association to sell; distribute; circulate; offer for sale, distribution, or circulation; or possess for the purposes of sale, distribution, or circulation any phonograph record, disc, wire, tape, videotape, film, or other article on which sounds or visual images have been transferred unless such phonograph record, disc, wire, tape, videotape, film, or other article bears the actual name and address of the transferor of the sounds or visual images in a prominent place on its outside face or package.

(c) This Code section does not apply to any person who transfers or causes to be transferred any such sounds or visual images:

(1) Intended for or in connection with radio or television broadcast transmission or related uses;

(2) For archival purposes; or

(3) Solely for the personal use of the person transferring or causing the transfer and without any profit being derived by the person from the transfer.

(d) Violation of this Code section is a felony and is punishable upon conviction by a fine of not more than $25,000.00 or by imprisonment for not less than one year nor more than two years, or both fine and imprisonment; second or subsequent violations of this Code section shall be punishable upon conviction by a fine of not more than $100,000.00 or by imprisonment for not less than one year nor more than three years, or both fine and imprisonment.

(e) This Code section shall neither enlarge nor diminish the right of parties to enter into a private contract.

"DJ Drama" Drama

As reported in the NY Times (Jan. 18) and elsewhere, on Jan. 16, police from Atlanta (and some surrounding towns) along with investigators from the RIAA, raided the offices of DJ Drama in Atlanta, seized 81000 CDs and other items, and arrested Drama (a/k/a Tyree Simmons) and Don Cannon.  The NYT reports the two have been charged with violations of Georgia's RICO statute.  For those with more voyeuristic tendencies, you can see a video report from a local Fox affiliate here.

What's odd about this?  Well, at outlets like Boingboing, there has been much discussion of the fact that record labels and artists often provide new tracks to DJs with the intention of having the DJ include the music in one of their playlists/mixes.  It's not clear whether these arrangements are explicit or merely a tacit understanding, or limited to "live" performances vs. cranking out CD mixes, or whether any such license (even an implied one) existed in this case.  Regardless, it seems that this is not a run-of-the-mill "piracy" case.

But something else is odd.  The authorities involved in the raid were state officials, not federal agents.  And the charged filed are based on Georgia state law, not federal copyright law.  If the basis for the raid and the charges is the unauthorized sale of CDs, wouldn't state law be preempted by federal copyright law under 17 U.S.C. Sec. 301?  Well, maybe, maybe not.

Many states have "true names" laws, which criminalize distribution of sound recordings or audiovisual works that lack a label accurately identifying the producer of the copies.  Generally, these laws are designed to provide a means for local authorities to go after street vendors of pirated CDs and DVDs (without having to involve federal authorities).  California's "true names" statute was upheld against a habeas challenge (based on preemption and overbreadth) in Anderson v. Nidorf, 26 F.3d 100 (9th Cir. 1994).  The Georgia Supreme Court recently considered and upheld Georgia's own "true names" law, Ga. Code. § 16-8-60(b), against a similar challenge in Briggs v. State, No. S06A1146, 2006 WL 3422972 (Ga., Nov. 29, 2006).  (By the way, if reading this case on Westlaw, you may want to simply avert your eyes from the Westlaw-produced synopsis and headnotes.  These characterize the case as involving a copyright violation.  While the case does seem to implicate copyright, the notes don't accurately describe the issue as framed by the court.)  In both these cases, the court majorities found that the state laws in question were not preempted because the state offense included an "extra element" (lack of an identifying label) beyond the elements of a mere copyright violation.  (The "true names" provisions are also drafted so as to apply regardless of the copyright status of the underlying work, or whether the copy was authorized by a copyright owner, so arguably the state true names offenses lack some of the elements of a copyright offense as well.)

However, Georgia's state antipiracy statute goes beyond requiring "true names" labeling, treading into what clearly seems to be copyright territory.  The Georgia law makes it a crime to "[t]ransfer ... any sounds or visual images recorded on [any disc, tape, or other] article ... onto any other [disc, tape, or other] article without the consent of the person who owns the master [disc, tape, or other] article from which the sounds or visual images are derived" or to distribute (or possess with intent to distribute) copies of any article to which which sounds or images have been transferred, "knowing it to have been made without the consent of the person who owns the master [disc, tape, or other] article from which the sounds or visual images are derived." Ga. Code Ann., § 16-8-60(a).

The Briggs court really only address the "true names" aspect of Georgia's law -- with which the defendant had been charged.  And even though a majority upheld it, several dissents and concurrences raised serious concerns about the law's (over)breadth and its facial prohibition on anonymous speech.  The majority was able to avoid directly addressing the other part of § 16-8-60, subsection (a), which would seem to be far more problematic on the issue of preemption.

The DJ Drama case may bring this issue to a head.  I haven't found the specific charge against Simmons and Cannon.  The NYT says it's a state RICO charge, but doesn't mention what the underlying predicate offenses are.  Tring to find the DJ Drama indictment online is complicated by the fact that one DJ Drama's earlier mix complications was actually entitled "The Indictment" (and another, apparently, "The Indictment Papers"), making Google searches all but useless.  (Foreshadowing, perhaps.)

Presumably, the RICO predicates include 16-8-60 violations, which  are among the enumerate racketeering offenses in Ga. Code § 16-14-3(9)(A)(xx) (as Dean Rowan helpfully pointed out in a comment on the Patry Copyright blog last December, discussing Briggs).  And more specifically, it would seem likely that the violations charged would be 16-8-60(a) violations, rather than "true names" violations under 16-8-60(b).  Why?  Although I don't know for sure in this case, it is exceedingly likely that the CDs in question accurately identify both the artists who recorded the underlying content, and the names of the DJs who produced the mixtape CDs.  Unlike a typically street vendor of pirated CDs, a DJ selling mixtapes would want to identify the product as his own, and also will generally (in my admittedly limited experience) identify the various tracks included in the mix.  So a "true names" violation is unlikely.  Perhaps the Georgia authorities have other RICO predicates in mind that are unrelated to the content of DJ Drama's mixtape CDs (like state tax or licensing violations, or maybe someone has been taking DJ Drama's compilation label, "Gangsta Grillz," too literally).  But given the involvement of the RIAA in the raid, and the public statements from the RIAA's Bradley Buckles, et al., it appears that the charges are indeed based on the mixtapes themselves.

If the basis for the DJ Drama RICO charges is indeed a claim of "unauthorized distribution" under Ga. Code 16-8-60(a), then we should expect some vigorous challenges to the statute.  It would seem that Simmons and Cannon likely have the means to mount a vigorous defense, and they certainly have the incentive to do so.  And given that Georgia's "unauthorized distribution" law so closely mirrors federal copyright law, it also seems quite difficult to see how the Georgia statute could withstand such a vigorous challenge.

RIAA's piracy damage claim and the GDP of France

Over at Boingboing.net, Cory Doctorow linked to a rather obscure post on Donny's Blog noting that in its lawsuit against the Swedish BitTorrent site ThePirateBay, the RIAA's statutory damage claim suggests that the amount of music piracy tied to this one site in a single month is many times the GDP of France:

A blogger multiplied the number of music downloads from ThePirateBay in a month by the $150,000 the RIAA asks for in statutory damages for each download and discovered that the music industry believes that one month's worth of downloads costs it more than the GDP of France.

The blogger in question:

...   Lately we've been hearing more and more about the RIAA suing people over downloading music. Many people are skeptical of of the figures of lost revenue the RIAA reports, giving arguments like not every song downloaded equals a song that would have been bought. With all of this talk, I decided to investigate the cost of piracy, using the perfectly reasonable figures given by the RIAA: $150,000 per infringement.

     The Copyright Act permits a copyright owner to claim $150,000 per infringement, and the RIAA has been using that figure when they've sued individuals. However, they claim that they only lose 300 million per year due to piracy, which would equate to only 2000 songs downloaded per year. Clearly something is wrong - to find out the real cost of piracy, I went to http://www.thepiratebay.org to find out how many songs are downloaded in a month, in order to make a more accurate estimate of the losses to the music industry.
...

Now here's the thing.  Of course "Donny's" tongue is firmly in his cheek, and we can all agree that the harm to the RIAA and its members from one month of piracy at ThePirateBay, whether calculated as lost sales, or the retail price the songs would have fetched in a store, doesn't come close the GDP of France.  And certainly many would agree that the RIAA's damages claims in this lawsuit and others tend to overstate their actual losses.  But the $150,000 figure cited by Donny doesn't relate to any sort of actual loss.  It's a statutory damages figure provided for under U.S. copyright law (17 U.S.C. Sec. 504):

Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work.

The next subsection goes on to say that if the plaintiff can prove the infringement was willful then that $30K figure rises to $150K.  These statutory damages seem intended to provide the option of a nice high figure to serve the dual functions compensating the copyright owner(s) when actual damages are hard to prove, and acting as a punitive deterrent.  But an important thing to notice is that Donny not only misinterprets what a statutory damage claim means, but more importantly, he misreads the statutory damage provision.  The statutory damage amount ($30K in the paragraph above, $150K if willful) is not per infringement, but rather, per work -- "for all infringements involved in the action, with respect to any one work."  So if RIAA were to prevail, and be awarded the maximum statutory damages, the total would be $150K times the total number of individual song titles that people downloaded, not the total number of files.  In Donny's analysis, that means that, roughly speaking, RIAA would be entitled not to $11 trillion ($150K times the 73+ million individual downloads), but rather, $355 million ($150K times the 2370 torrents available that month).

Yes, it's still a staggering figure -- we're only adding up claims with respect to a single month and yet the total is roughly equivalent to a third of what the music industry claims they lose as a result of "piracy" in an entire year ($1 billion -- Donny's says the RIAA's yearly loss claim is $300 million, but actually RIAA claim they lose that much in counterfeit disc sales alone).   Put another way, if based on a single year, RIAA could theoretically win a judgment against ThePirateBay of $4 billion, or 4 times what they claim they lost to "piracy" from all quarters.  And yes that seems excessive.  But it's not the GDP of France.  It's not even the GDP of Malawi.   Moreover, there's no chance of collecting, since ThePirateBay doesn't have that much money.

More on "Distribution" in Elektra v. Barker

"You keep using that word.  I do not think it means what you think it means."

Another note on the EFF amicus argument in Barker (which is apparently an endless source of fascination -- tie a wad of shiny foil to it and it'll entertain me all day).  The authors continually refer to the process by which files are send from one Kazaa user to another as a "transmission."  An obvious reason to favor the term is that, under EFF's reasoning, it contrasts with a "distribution," and the whole point of the brief is to argue that sending files between Kazaaa users is not a "distribution."  But it's not exactly clear that this process is a "transmission," or whether being a transmission necessarily helps EFF's argument.  "To transmit" is defined in Section 101 (and it is a pet peeve of mine that Section 101 is so huge, yet has no labelling for referring to specific definitions):

To “transmit” a performance or display is to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent.

Does the stuff happening when Kazaa sends another user an MP3 (or other file meet this definition?  In some sense, sure.  "Images or sounds" are "received" somewhere else.  But they are buried in an MP3 file.  In general, the downloader can't actually see or hear those images or sounds until the file is finished downloading, and opened with a suitable application.  Kazaa transfers may be "transmissions," but then, so would Amazon.com's distributions of books and CDs to customers via UPS (which, after all, result in "images or sounds being received beyond the place from which they are sent."  If this is what "transmission" means, then it isn't exclusive of "distribution" -- rather, a "transmission" would encompass not only the types of broadcast models we generally thing of when we think "transmission" (e.g., radio, TV, live-streaming over the net), but also plain old distribution.

Other parts of the Copyright Act also indicate that a "transmission" can also be "distribution" (and thus, could violate the "distribution" right under Sec. 106)  In defining what "fixed" means (and to enjoy protection, a work must be "fixed" in a tangible medium), Section 101 notes that

A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission.

When something is "fixed ina  tangible medium," the thing in which the work is fixed is a "copy" or "phonorecord."  A reasonable reading of this definition suggests that if one were to live-stream a musical performance over the net in such a way that an MP3 of the performance ended up on another user's computer "simultaneously" with the performance, the performance would be sufficiently "fixed" for copyright purposes.  (Kazaa doesn't do this, since it just does straight-up transfers of files, but some streaming technologies, such as Quicktime, can be set to allow this kind of arrangement.)  And that means it could also be a "distribut[ion] ... in copies or phonorecords."

The idea that copyrighted works can be "distributed" electronically over the Internet jibes with the legislative history of the law that created a "digital peformance right" for audio in 1995:

Section 114(d)(4). Rights not otherwise limited

Under existing principles of copyright law, the transmission or other communication to the public of a musical work constitutes a public performance of that musical work. In addition, the digital transmission of a sound recording that results in the reproduction by or for the transmission recipient of a phonorecord of that sound recording implicates the exclusive rights to reproduce and distribute the sound recording and the musical work embodied therein. New technological uses of copyrighted sound recordings are arising which require an affirmation of existing copyright principles and application of those principles to the digital transmission of sound recordings, to encourage the creation of and protect rights in those sound recordings and the musical works they contain.

This subsection makes clear, in paragraph (4)(A), the Committee's intent that except as explicitly provided in section 114, nothing in that section limits the exclusive right to perform a sound recording publicly by means of a digital audio transmission. Paragraph (4)(B) also makes clear that section 114 does not in any way limit the exclusive right to publicly perform a musical work under section 106(4); the exclusive rights in sound recordings and musical works under sections 106(1) and 106(3); and any other rights and remedies available under title 17. Similarly, the bill does not affect any existing limitation under sections 107-113, sections 116-120, or the unamended portions of sections 114 and 115.

Paragraph (4)(C) ensures that where an activity implicates a sound recording copyright owner's rights under both section 106(6) and some other clause of section 106, the limitations contained in section 114 shall not be construed to limit or impair in any way any other rights the copyright owner may have, or any other exemptions to which users may be entitled, with respect to the particular activity. For example, where a digital audio transmission is a digital phonorecord delivery as well as a public performance of a sound recording, the fact that the public performance may be exempt from liability under section 114(d)(1) or subject to statutory licensing under section 114(f) does not in any way limit or impair the sound recording copyright owner's rights and remedies under section 106(3) against the transmitter for the distribution of a phonorecord of the sound recording. As another example, where an interactive digital audio transmission constitutes a distribution of a phonorecord as well as a public performance of a sound recording, the fact that the transmitting entity has obtained a license to perform the sound recording does not in any way limit or affect the entity's obligation to obtain a license to distribute phonorecords of the sound recording. Similarly, the bill does not affect any existing limitation under sections 107-113, sections 116-120, or the unamended portions of sections 114 and 115.

From S.Rep. 104-128 (Senate Committee report on the law adding a "digital audio transmission right" at Sec. 106(6), 1995).  This legislative history fairly plainly indicates that Congress recognized that a Kazaa-like arrangement -- where a "transmission or other communication" directly results a copy being made at the receiver end -- implicates the distribution right.  And as for this legislative history, EFF would rather not get into it -- which is one reason they assert that the "plain statutory language" dictates that Kazaa doesn't implicate the distribution right.