What it is today to be a John Doe defendant in an RIAA suit: Meet John Doe [pdf] [via Slashdot]
Most settlements top $3,000, and according to [the EFF’s Annalee] Newitz, some can go as high as $7,000. The RIAA wouldn’t confirm these figures, but it didn’t dispute them either. [The RIAA’s jonathan] Lamy says that of all the John Doe cases so far, “none have come to trial.” And indeed, it is hard to imagine going to trial doing much good for a hypothetical Doe, since millions of users are illegally downloading and sharing music. Frequent downloader Cecilia Gonzalez [pdf] didn’t settle against the RIAA, and on January 7, she received only a summary judgment in a U.S. District Court. Throwing out Gonzalez’s claims that she was simply “sampling” songs to see if she wished to buy them and that she was an “innocent infringer” unaware that she was violating record company copyrights, the court ordered her to pay damages of $750 for each of 30 songs she was found to have downloaded illegally, for a total of $22,500. That’s more than the poverty line income for a family of five in 2004 ($22,030), but it is worth pointing out that damages of $750 per infringement is the minimum the RIAA could have received, and that the original complaint filed against Gonzalez claimed that she had nearly 2,500 downloaded songs. Damage payments could potentially be much higher. Finally, courts have found that the “cumulative effect” of downloaders makes individual downloaders liable for damages, even if their personal downloading has only a marginal impact, so even penny-ante downloaders are potentially at risk.
[…] And downloading? Well, I’m done with it now, except for legal amazon.com freebies, but even my close friends haven’t been scared off. One scoffed at my settlement, and said that if she were sued, she’d fight the RIAA in court. For her, downloading is “civil disobedience” in protest against the legal digital music systems that just don’t have all the music she wants. Of course it’s easy to strike a rebel pose like that . . . until you become just another John Doe.
Note that I can’t find any record of the summary judgement in the Northern District of Illinois, but reading Cecilia Gonzales’ story will raise all sorts of questions:
Gonzalez’s attorney, Geoff Baker, now sees the case as something bigger than a dispute over copyright law. A founding partner of the Oak Park firm Dowell Baker, which specializes in intellectual-property matters, he’s working pro bono because he doesn’t like the record companies’ tactics. “In our view, Cecilia should have the right — does have the right — under the Seventh Amendment of the Constitution to have a jury decide whether or not she is an innocent infringer and to have a jury decide whether or not she should have to pay any damages whatsoever,” he says. In issuing a summary judgment, “the judge took that right away from her.”
[…] More important to the defense is the claim that Gonzalez used the Kazaa program to download songs she already owned on CD onto her computer. She wanted to be able to listen to them in any order, but didn’t want to manually copy her whole CD collection onto her hard drive — she and her husband own about 250. She also used Kazaa to download a few songs she didn’t own, but only to “listen to them and determine if they were something she would be interested in purchasing.” Of the roughly 1,000 songs she downloaded, Baker says, the overwhelming majority duplicated tracks on discs she’d paid for.
In her deposition, Gonzalez testified that she and her husband spent about $30 per month on CDs, and that “her ability to download music off the Internet for free did not affect how many CDs she and her husband ended up buying.” But the RIAA wasn’t interested in splitting hairs or discussing intentions. Even if Gonzalez had copied only her own CDs onto her computer, the act of making those songs available on a file-sharing network — even accidentally and for just a few days — still would’ve been illegal.
During the discovery phase, the record companies’ attorney asked to see Gonzalez’s CD collection. “I said, ‘Great, go to her house, make a list,'” says Baker. “And that was in an effort to make sure they understood that they were barking up the wrong tree here. That they were looking to go penalize one of their good customers.” Investigators photographed and catalogued each of Gonzalez’s CDs; Baker claims that the record companies narrowed their suit to include just 30 songs after realizing they’d weaken their case by pursuing judgments on downloaded music Gonzalez already owned. “If they could have gone after her on summary judgment on the other 1,000 songs, don’t you think they would have?” he says. RIAA spokesman Jonathan Lamy puts a different spin on the decision: “We moved on a smaller number so that any recovery would be modest, and to be as fair and reasonable as possible.”
[…] The appeal Baker plans to set in motion this week with the Seventh Circuit Court will likely drag on for months or even years. “At this point we haven’t seen any notice of appeal,” says RIAA VP Pierre-Louis. “Right now, we have a summary judgment motion that we’re delighted with and I think we’ll just see what happens next.”
Later: TLA has the text of the summary judgement [pdf]; also, the January issue of Hiscock and Barclay‘s IP Monthly comments on the case (Stealth File Sharing Judgement) notes the following peculiar feature of this case:
One would think that such a ruling would grab the attention of would-be music pirates. Oddly, however, there seems to have been no news coverage of this ruling or press releases issued on the part of the record companies. If deterrence is the goal such silence seems to be quite counterproductive.