We were fortunate to get a chance to speak with New York attorney Ray Beckerman recently on the topic of P2P litigation. Mr. Beckerman is well known for his analysis and commentary on the RIAA litigation campaign and was nice enough to answer some of our questions.

Copygrounds: In both the Tenenbaum and Thomas-Rasset cases the statutory damages have been lowered—though for different reasons. Why did the judges employ different legal reasoning to arrive at similar results? What are the differences in the cases? And does this prevent the cases from being joined and sent to the Supreme Court?

Ray Beckerman: Neither judge provided satisfactory reasoning consistent with the law. Neither thought it through correctly. Judge Davis declined to decide the constitutional issue at all, for reasons which are not clear to me. He then awarded damages which were far beyond the normal range of copyright statutory damages. Were he correct in declining to decide the constitutional question, his copyright law answer should have been that the maximum recoverable was $750 per infringed work, not $2250 per infringed work. Judge Gertner demonstrated strong familiarity with all of the applicable case law, and then jumped into similar murky water to that in which Judge Davis had become immersed.

There is simply no precedent in either (a) copyright law or (b) constitutional law for deciding the maximum range of statutory damages as a multiple of the minimum statutory damages, as opposed to a multiple of the actual damages. The cases do involve similar issues and could wind up together if they get to the Supreme Court. But it seems to me you’re putting the cart before the horse, as both are district court decisions.

Copygrounds: The Tenenbaum, Thomas-Rasset, and Harper cases all seemingly hinge on lowering the allowable damages in file-sharing cases. Is that the pivotal legal issue for this litigation campaign?

Ray Beckerman: There is no single pivotal issue. There are quite a few pivotal issues. This is just one of many. It’s an important one because the RIAA has followed a terroristic strategy, one which would be blunted by reasonable damage awards as opposed to outlandish damage awards.

Copygrounds: Is this the issue which is most likely to gain traction and make it no longer cost effective for groups like the RIAA to file suits en masse against individual file sharers?

Ray Beckerman: It could be, but my credentials as one who can see into the future are… well… nonexistent.

Copygrounds: Why did you start “Recording Industry vs The People“?

Ray Beckerman: I started it because I thought having a centralized place for reporting information on these cases would soften one of the RIAA’s many advantages, which was a monopoly of information. The RIAA had a single firm handling 25,000 + cases. They were the only ones who knew what was going on in the cases, or indeed if there were any cases … i.e. if anyone else was fighting back. I created the blog to give attorneys representing defendants a chance to share information.

Copygrounds: Who was your intended audience?

Ray Beckerman: My intended “audience” was other lawyers representing other defendants in the RIAA cases. But audience isn’t the right word, because I also expected them to contribute to the body of documents and other information. I looked on it as me being a catalyst for lawyers representing the RIAA’s victims to assist each other.

Copygrounds: Is fair use a relevant legal issue in the defense of P2P file sharers accused of copyright infringement? Or does fair use only get raised in cases where the copyright industries have targeted the firms who market P2P platforms (cases like Grokster)?

Ray Beckerman: There are numerous behaviors in the use of p2p file sharing software, some of which would definitely qualify for fair use, some of which would definitely not qualify for fair use, and some of which would represent a gray area. It is impossible, and misleading, to try to speak to the overly broad question is whether fair use is applicable to p2p file sharing. I have not seen a single case in which any logical fair use issue has been properly framed. I have never discussed, and will not discuss, any of those behaviors, and how fair use might or might not be applicable to them, because I am a practicing lawyer first, rather than an academic or theoretician or writer, and it is not inconceivable that I may someday be called upon to litigate the fair use defense in a p2p file sharing context. I only discuss issues like that AFTER, never BEFORE, I have briefed them, because I have no interest in giving the RIAA a free look at my thinking.

Copygrounds: Has the RIAA litigation model been adopted by other industries?

Ray Beckerman: Not industries, but there is a massive group of new motion picture cases adopting, and abusing to an even greater extent, the RIAA model.

Copygrounds: On that note I would like to get your thoughts on something Fritz Attaway of the MPAA said to us on Copygrounds. I asked if the RIAA litigation might serve as a model for future litigation by the movie studios. He responded that while the MPAA has filed some end-user suits they have determined that, in general, this tactic is too expensive for them and there are other routes for them to pursue which will provide better returns. So my question is this: To what extent has the motion picture industry pursued civil cases against individuals accused of copyright infringement over P2P networks?

Ray Beckerman: Use of the term “motion picture industry” is not helpful, because there are different segments. The MPAA—with which Attaway is affiliated—never followed the RIAA model of mass lawsuits. It did pursue people, but it appeared to have (a) much fewer cases and (b) a different investigative method. Lately there is a new wave of ‘motion picture’ litigation which does not involve the MPAA, which does involve smaller less major studio type films, and which is brought by contingent fee lawyers (which the RIAA and MPAA did not use). This one does follow the RIAA model but carries it to extremes even the RIAA did not employ.

Copygrounds: Has the number of new RIAA cases dropped off?

Ray Beckerman: RIAA cases appear to have dropped off. The contingent-fee, small movie, cases are already in the tens of thousands within a matter of months.

Copygrounds: I would also like to get your opinion on something Mr. Oppenheim stated on Copygrounds. The exchange was something as follows:

Brett Caraway: If the average settlement amount is in the neighborhood of $4000, is there a real expectation that an indigent defendant could achieve an equitable settlement amount after incurring attorney fees as part of the negotiation process?

Matt Oppenheim: The record industry has always been acutely aware that indigent defendants would likely not be able to pay standard settlement amounts. For this reason, defendants without the resources to pay a traditional settlement were asked to discuss with the record companies what they could pay and how. Often the settlements in those circumstances were for dramatically lower amounts of money, frequently paid over time. In some instances no payment was required at all. But, those settlements were handled individually with the particular facts and circumstances of each defendant taken into consideration.

Ray Beckerman: I consider his statement to be a crock. But he makes sure to keep the settlements secret so that we can’t verify it. There were some settlements below the standard average amount, but they were extremely difficult to get, even for many people who had nothing. I’m sure if there were any settlements where no payment was required, they were cases in which the RIAA had wrongfully sued someone and should have been reimbursing them for attorneys fees. The “average” settlement was in and of itself an abomination, as it usually represented thousands of times the RIAA’s actual damages.

Copygrounds: To what extent could defendants without the financial means for legal representation achieve an equitable settlement?

Ray Beckerman: Never. I’ve never seen an “equitable” settlement with him. With or without the means for obtaining legal representation.