http://recordingindustryvspeople.blogspot.com/2006/11/judge-grants-marie-lindors-motion-to_09.html

In UMG v. Lindor, Judge Trager has granted Ms. Lindor's motion to add a defense based on the unconstitutionality of the $750-per-song damages sought by plaintiffs. He rejected the RIAA's arguments that the defense was without merit, that the motion was untimely, that the amendment would prejudice the RIAA, or that Ms. Lindor was required to send a notice to the United States Department of Justice of her defense of unconstitutionality.

Judge Trager ruled:

[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."

"Pursuant to an earlier decision of Magistrate Judge Levy, plaintiffs are now required to produce "all relevant documents" to Ms. Lindor's attorney, and then to make a deposition witness available by telephone deposition, on the subject of the plaintiffs' wholesale sales price of downloads."