Slashdot Mirror

Jay Maynard writes "The judge in Capitol Records v. Thomas said today he's thinking about granting a new trial because he may have committed a 'manifest error of law' in his jury instructions. He says that his instruction that simply uploading music to a P2P network without any proof that anyone actually downloaded it may conflict with a case in the Eighth Circuit Court of Appeals that said 'infringement of [the distribution right] requires an actual dissemination.' Briefs are due by May 29, with oral argument July 1. The judge invited friend of the court briefs by May 29, as well." NewYorkCountryLawyer links to the Judge's order itself (PDF), in which the Judge notes that he may (in NYCL's words) "have overlooked controlling Eighth Circuit authority, the case of National Car Rental v. Computer Associates, which held that you can't have a violation of the 'distribution right' without an 'actual dissemination of copies or phonorecords.'" Update: 05/15 18:54 GMT by T : Note that while the linked story as well as Jay Maynard's summary use the term "upload," Thomas wasn't uploading the files themselves, only making them available.

NewYorkCountryLawyer writes "The RIAA is going to have to face the music in Tampa, Florida, and answer the charges of extortion, trespass, conspiracy, unlicensed investigation, and computer fraud and abuse that have been leveled against them there. And the judge delivered his ruling against them in in pretty unceremonious fashion — receiving their dismissal motion last night, and denying the motion this morning. The RIAA's unvarying M.O., when hit with counterclaims, is to make a motion to dismiss them. It did just that in one Tampa case, UMG v. Del Cid, but the judge upheld 5 of the 6 counterclaims. The RIAA quickly settled that one. When a new case came up in the same Tampa courthouse before the very same judge, and the same 5 counterclaims were leveled against the record companies, I opined that 'it is highly unlikely that the RIAA will make a motion to dismiss counterclaims,' since I knew they'd be risking sanctions if they did. Well I guess I underestimated the chutzpah — or the propensity for frivolous motion practice — of the RIAA lawyers, as they in essence thumbed their nose at the judge, making the dismissal motion anyway, telling District Judge Richard A. Lazzara that his earlier decision had been wrong. The judge wasted no time telling the record companies that he did not agree (PDF)."

NewYorkCountryLawyer writes "At Fordham Law School's annual IP Law Conference this year, Slashdot member NewYorkCountryLawyer had a chance to square off with Kenneth Doroshow, a Senior Vice President of the RIAA, over the subject of copyright statutory damages. Doroshow thought the Jammie Thomas verdict of $222,000 was okay, he said, since Ms. Thomas might have distributed 10 million unauthorized copies. NYCL, on the other hand, who has previously derided the $9,250-per-song file verdict as 'one of the most irrational things [he has] ever seen in [his] life in the law', stated at the Fordham conference that the verdict had made the United States 'a laughingstock throughout the world.' An Australian professor on the panel said, 'The comment has been made a few times that America is out of whack and you are a laughingstock in the rest of the world. As the only non-American on the panel, that's true. We do see the cases like Thomas in our newspapers, and we think: "Wow, those crazy Americans, what are they up to now?" This whole notion of statutory damages is not something that we have within our Copyright Act. You actually have to be able to prove damage for you to be able to be compensated for that.' NYCL also got to debate the 'making available' issue, saying that there was no 'making available' right in US copyright law, despite the insistence of the program's moderator, the 'keynote' speaker, and a 'majority vote' of the audience that there was such a right. The next day, two decisions came down, and a month later yet another decision came down, all rejecting the 'making available' theory."

NewYorkCountryLawyer writes "In Atlantic v. Howell, the judge has totally eviscerated the RIAA's theories of 'making available' and 'offering to distribute.' In a 17-page opinion (PDF), District Judge Neil V. Wake carefully analyzed the statute and case law, and based on a 'plain reading of the statute' concluded that 'Unless a copy of the work changes hands in one of the designated ways, a "distribution" under [sec.] 106(3) has not taken place.' The judge also questioned the sufficiency of the RIAA's evidence pointing towards defendant, as opposed to other members of his household. This is the Phoenix, Arizona, case in which the defendant is representing himself, but received some timely help from his friends. And it's the same case in which the RIAA suggested that Mr. Howell's MP3s, copied from his CDs, were unlawful. One commentator calls today's decision 'Another bad day for the RIAA.'"

NewYorkCountryLawyer writes "BusinessWeek magazine has gone medieval on the RIAA, recounting in grisly detail the cruel ordeal to which the RIAA has subjected a completely innocent defendant, Tanya Andersen of Oregon. Nobody can read the story and come to any other conclusion than that the RIAA and its lawyers are total jerks. Of course we've been reading about Atlantic v. Andersen on p2pnet.net and on my blog, and discussing it here, but there's something extra special about a mainstream publication like Business Week really letting them have it."

NewYorkCountryLawyer writes "An ISP in Ireland has been sued by the Big Four record labels because its subscribers have engaged in P2P sharing of the record companies' song files. The record companies claim the ISP should be buying Audible Magic's CopySense, the software being peddled by the RIAA's expert witness, which supposedly would filter out copyright infringement. Of course, not everyone agrees."

NewYorkCountryLawyer writes "Marshall University, in Huntington, West Virginia, has become just the second US college or university to show the moxie to stand up for its students instead of instantly caving in to RIAA extortion. In February, Marshall, represented by the Attorney General of the State of West Virginia, made a motion to quash the RIAA's subpoena for student identities, pointing out in exquisite detail in its long-time IT guy's affidavit (PDF) the impossibility of identifying copyright 'infringers' based on the RIAA's meager evidence. Unfortunately, the Magistrate — under the mistaken impression that the RIAA isn't going to sue the identified students, but merely wants to talk to them — recommended that the subpoena be okayed by the District Judge (PDF). It is not yet known whether Marshall will be filing objections. The first US college or university known to have attacked the RIAA's subpoena was the University of Oregon, which — also represented by its state's Attorney General — made a motion to quash last November, and even questioned the legality of the RIAA's methods. The Oregon motion is still pending."

NewYorkCountryLawyer writes "In a Manhattan case, Warner v. Berry, the RIAA sued a man who lives in a homeless shelter, leaving a copy of the summons and complaint not at the homeless shelter, but at an apartment the man had occupied in better times, and had long since vacated. The RIAA's lawyers were threatened with sanctions by the Magistrate Judge in the case, for making misleading representations to the Court which the Magistrate felt were intentional. The District Judge, however, disagreed with imposing sanctions, giving the RIAA's lawyers 'as officers of the Court the benefit of the doubt,' and instead concluded — in his 6-page opinion (PDF) — that the RIAA's lawyers were just being 'sloppy' and had not made the misstatements for an improper purpose.'"

NewYorkCountryLawyer writes "On January 2, 2008, the Massachusetts State Police ordered MediaSentry, the RIAA's investigator, to cease and desist from conducting investigations in Massachusetts without a license. Based on what appears to be irrefutable proof that MediaSentry has been violating that order, the Boston University students who tentatively won, in London-Sire v. Doe 1, an order tentatively quashing the subpoena for their identities, have brought a new motion to vacate the RIAA's court papers altogether, on the ground that the RIAA's 'evidence' was procured by criminal behavior."

NewYorkCountryLawyer writes "Remember those pesky student attorneys from the University of Maine School of Law's Cumberland Legal Aid Clinic, who inspired the Magistrate Judge to suggest monetary fines against the RIAA lawyers? Well they're in the RIAA's face once again, and this time they're trying to shut down the RIAA's whole 'discovery' machine: the lawsuits it files against 'John Does' in order to find out their names and addresses. They've gone and filed a Rule 11 motion for sanctions (PDF), seeking — among other things — an injunction against all such 'John Doe' cases, arguing that the cases seek to circumvent the Family Educational Rights and Privacy Act which protects student privacy rights, are brought for improper purposes of obtaining discovery, getting publicity, and intimidation, and are in flagrant violation of the joinder rules and numerous court orders. If the injunction is granted, the RIAA will have to go back to the drawing board to find another way of finding out the identities of college students, and the ruling — depending on its reasoning — might even be applicable to the non-college cases involving commercial ISPs."

NewYorkCountryLawyer writes "In a 25-page decision (PDF) which has been awaited for two years in Elektra v. Barker, Judge Kenneth M. Karas has rejected the RIAA's 'making available' theory and its 'authorization' theory, but sustained the sufficiency of the complaint's allegations of 'distribution' and 'downloading,' and also gave the RIAA 30 days to cure the defects in its complaint by filing a new complaint. The judge left it open for the RIAA to allege that defendant made an 'offer to distribute,' and that the offer was for "'the purpose of further distribution,' which, the judge held, would be actionable."

NewYorkCountryLawyer writes "According to commentator Therese Polletti at Dow Jones MarketWatch, 'the RIAA's tactics are nearly as bad as the actions of mobsters, real or fictional. The analogy comes up easily and frequently in any discussion of the RIAA's maneuvers.' Among other things she cites the extortionate nature of their 'settlement negotiations' pointed out by Prof. Bob Talbot of the University of San Francisco School of Law IP Law Clinic. His student attorneys are helping private practitioners fight the RIAA, and the the illegality of the RIAA's use of unlicensed investigators. She goes on to cite the fact that the RIAA thinks nothing of jeopardizing a student's college education in order to make their point, as support for the MAFIAA/Mafia analogy."

NewYorkCountryLawyer writes "Recommended reading for all interested in the RIAA's litigation war against p2p file sharing is the amended class action complaint just filed in Oregon in Andersen v. Atlantic. This landmark 109-page document (pdf) tells both the general story of the RIAA's campaign against ordinary folks, and the specific story of its harassment of Tanya Andersen, and even of her young daughter. The complaint includes federal and state RICO claims, as well as other legal theories, and alleges that "The world's four major recording studios had devised an illegal enterprise intent on maintaining their virtually complete monopoly over the distribution of recorded music." The point has been made by one commentator that the RIAA won't be able to weasel its out of this one by simply withdrawing it; this one, they will have to answer for. If the relief requested in the complaint is granted, the RIAA's entire campaign will be shut down for good."

NewYorkCountryLawyer writes "Is Warner Music, EMI, Vivendi Universal and Sony BMG 'investigator' MediaSentry operating illegally in your state?. The Massachusetts State police has already banned the company, and it's been accused of operating without a license in Oregon, Florida, Texas, and New York. Similar charges have now been leveled the organization in Michigan. Michigan's Department of Labor and Economic Growth, in response to a complaint, has confirmed that MediaSentry is not licensed in Michigan, and referred the complainant to the local prosecutor."

NewYorkCountryLawyer writes "A technology battle is raging in UMG v. Lindor, a court case in Brooklyn. The issue at hand is whether the RIAA's investigator SafeNet (the company that acquired MediaSentry) now needs to disclose its digital files, validation methodology, testing procedures, failure rates, software manuals, protocols, packet logs, source code, and other materials, so that the validity of its methods can be evaluated by the defense. SafeNet and the RIAA say no, claiming that the information is 'proprietary and confidential'. Ms. Lindor says yes, if you're going to testify in federal court the other side has a right to test your evidence. A list of what is being sought (pdf) is available online. MediaSentry has produced 'none of the above'. 'Put up or shut up' says one commentator to SafeNet."

NewYorkCountryLawyer writes "The RIAA's litigation campaign has met resistance from the academic community before, but now it's been taken to a whole new level: the defense of RIAA victims who are not part of the college community. First the University of Oregon lashed out on behalf of its students, then it was the University of Maine's Cumberland Legal Aid Clinic on behalf of its undergrads. Now, the University of San Francisco School of Law has taken the fight a giant step further. Its Intellectual Property Law Clinic's attorneys-in-training, working under the supervision of law professors, are going to bat against the RIAA by helping outside lawyers to defend their clients, pro bono. They reached out 3000 miles to get involved in Elektra v. Torres and Maverick v. Chowdhury, two cases going on in Brooklyn, NY, against non-college defendants. Two of the law students in the USF's legal program assisted in the research and preparation of briefs in these cases, opposing the RIAA's motion to dismiss the defendants' counterclaims. Thousands of honor students throughout United States law schools, most of them digital natives who actually understand the legal fallacies and technological missteps the RIAA is taking, and who can't wait to expose them, make a pretty good resource for the poor and middle class people trying to defend these cases."

NewYorkCountryLawyer writes "MediaSentry, in an attempt to stonewall discovery in UMG v. Lindor, has turned over nothing other than a collection, apparently a complete collection, of its publicly filed affidavits. However, these do make interesting reading indeed, and as comments started trickling in on my blog, I realized that for the technically minded among you there are probably a number of good laughs in these materials. So in keeping with the Slashdot community's analysis of the RIAA's not very expert, 'expert' witness, I thought you might like to take a shot at its not very factual, 'fact' witness."

NewYorkCountryLawyer writes "Angered at the RIAA's 'gamesmanship' in joining multiple 'John Does' in a single case without any basis for doing so, a Magistrate Judge in Maine has suggested to the presiding District Judge in Arista v. Does 1-27 that the record companies and/or their lawyers should be fined under Rule 11 of the Federal Rules, for misrepresenting the facts. In a lengthy footnote to her opinion recommending denial of a motion to dismiss the complaint (PDF, see footnote 5), Judge Kruvchak concluded that 'These plaintiffs have devised a clever scheme to obtain court-authorized discovery prior to the service of complaints, but it troubles me that they do so with impunity and at the expense of the requirements of Rule 11(b)(3) because they have no good faith evidentiary basis to believe the cases should be joined.' She noted that once the RIAA dismisses its 'John Doe' case it does not thereafter join the defendants when it sues them in their real names. Arista v. Does 1-27 is the same case in which student attorneys at the University of Maine Law School, "enthusiastic about being directly connected to a case with a national scope and significance", are representing undergrads targeted by the RIAA."

NewYorkCountryLawyer writes "The Motley Fool investment Web site warns investors to beware of 'Sony, BMG, Warner Music Group, Vivendi Universal, and EMI.' In an article entitled 'We're All Thieves to the RIAA,' a Motley Fool columnist, referring to the RIAA's pronouncement in early December in Atlantic v. Howell, that the copies which Mr. Howell had ripped from his CDs to MP3s in a shared files folder on his computer were 'unauthorized,' writer Alyce Lomax said 'a good sign of a dying industry that investors might want to avoid is when it would rather litigate than innovate, signaling a potential destroyer of value.'"

NewYorkCountryLawyer writes "In an interview with Jon Newton of p2pnet, Prof. Deirdre Smith of the University of Maine says that 'our students are enthusiastic about being directly connected to a case with a national scope and significance'. The UM Cumberland Legal Aid Clinic is the first law school legal clinic in the U.S. to have taken on the RIAA, to have the opportunity for hands-on experience fighting the RIAA's effort to rewrite copyright law. Smith went on to say that the case is probably one of the first intellectual property cases the clinic has ever taken on, and that if it proceeds further, she expects to also 'draw on the considerable expertise in IP among members of our faculty and the Maine Center for Law and Innovation, another program of the Law School'. "

NewYorkCountryLawyer writes "The defendant in a Tampa, Florida, case, UMG v. Del Cid, has filed counterclaims accusing the RIAA record labels of conspiracy and extortion. The counterclaims (pdf) are for Trespass, Computer Fraud and Abuse (18 USC 1030), Deceptive and Unfair Trade Practices (Fla. Stat. 501.201), Civil Extortion (CA Penal Code 519 & 523), and Civil Conspiracy involving (a) use of private investigators without license in violation of Fla. Stat. Chapter 493; (b) unauthorized access to a protected computer system, in interstate commerce, for the purpose of obtaining information in violation of 18 U.S.C. 1030 (a)(2)(C); (c) extortion in violation of Ca. Penal Code 519 and 523; and (d) knowingly collecting an unlawful consumer debt, and using abus[ive] means to do so, in violation of the Fair Debt Collection Practices Act, 15 U.S.C. 1692a et seq. and Fla. Stat. 559.72 et seq."

NewYorkCountryLawyer writes "After 2 years, the RIAA has finally dropped its longstanding case against disabled single mother Tanya Andersen in Oregon, Atlantic v. Andersen. The dismissal (pdf) relates merely to the RIAA's claims against Ms. Andersen, and does not relate to her (a) claim for attorneys fees or (b) counterclaims against the RIAA, which are presently before the Court on a motion to dismiss. The counterclaims were first interposed in December 2005. This is the same case in which the RIAA insisted on taking a face to face deposition of a 10 year old girl. Prior to the case, neither the mother nor the child had ever even heard of file sharing."

You had some excellent questions for attorneys Ty Rogers and Ray Beckerman, who maintain the Recording Industry vs The People blog. Here are their answers, verbatim, as they were sent to us by Mr. Beckerman.

1) Guilty?
(Score:5, Interesting)
by PrinceAshitaka

If you are completely guilty and are sued, but do not have the money to pay, what are your options?

Beckerman:

One option is to defend yourself, relying on the affirmative defenses. If you can find a pro bono lawyer, great. If not, go in to the pro se clerk at the courthouse and ask for a jury trial. Another option, if it's acceptable to you, is to default. They will usually get a default judgment against you for the exhibit A list (the songs they downloaded) x $750 plus court costs.

2) Biggest Mistake?
(Score:5, Interesting)
by eldavojohn

What's the biggest mistake you've seen people make historically in cases where they're charged by the RIAA?

Beckerman:

It's hard to generalize about that, because each person's facts, each person's personality, each person's intellect and ability, are different. Generally, there is no real good way to handle these cases, so anything anyone does is a mistake, in that sense. But in another sense, there are no mistakes, because there is no right answer.

3) How can we prevent needing your services?
(Score:5, Interesting)
by Software

What should we do to prevent needing your services? Another way of putting this is, how do we avoid getting sued by the RIAA?

Beckerman:

All of the cases that I have seen stem from people who are using a Fast Track sharing program such as Kazaa, Imesh, Gnutella, LimeWire, etc., having a shared files folder with copyrighted songs in it, even if the song files were obtained legally. So even making sure to pay for all of your downloads wouldn't protect you from a lawsuit. The only way I know to avoid the present litigation wave is to avoid having shared files of copyrighted songs.

4) Systemic Problem?
(Score:5, Interesting)
by ZachPruckowski

Do you see the current situation as a systemic problem in the current torts system? Specifically, do you think we need legislative intervention to correct the "money bias" in our legal system?

I mean, there doesn't seem to be much of a way to fight an RIAA lawsuit money-wise. It always seems to end quickly: Either the defendant ist so obviously innocent they drop the case or he/she settles for "pennies on the dollar". When do you think we'll see a few definite trials to answer the hanging legal questions about investigative tactics and what an IP proves?

Beckerman:

I think some good rulings by the judges would shut the whole thing down, so no I don't think it's necessary to revise the statutes. I do think it's important for our society to get behind the defendants financially, because if they don't there are going to be a lot of wacky rulings by judges which are going to dismember the internet as we know it.

5) Lawyers from outer space?
(Score:5, Funny)
by hawkeye_82

You guys are lawyers AND like to help people? What's it like on your home planet ;) ?

Beckerman:

Lawyers are just like any other people. There are good people and bad people. The people who come out the strongest against 'trial lawyers' are the big corporations' PR departments. They want the 'common folk' to think ill of lawyers, because the law -- as imperfect as it is -- is the only equalizer left. And it's being eroded rapidly. And people dissing lawyers all the time helps that process.

6) allofmp3
(Score:5, Interesting)
by giafly

What's the position of Americans who buy from legal offshore music sites, such as allofmp3 [allofmp3.com]?. Is this safer than downloading "free"?

Beckerman:

I don't know what you're talking about. The litigation wave is worldwide. The RIAA isn't American. 3 of the 4 members of the cartel are "offshore corporations". There are different versions of the RIAA everywhere. In France, and certain other places, they bring CRIMINAL cases, not civil ones.

7) Gray Area Questions
(Score:5, Interesting)
by Four_One_Nine

Over the years I have attempted to educate some of the 'younger' generation about the do-s and don't-s of music copying and sharing. The following questions have come up out of real experiences and I have never had anyone provide a reasonable (justifiable) answer.

1. If I purchase a CD and it is subsequently stolen (along with my 5 disc changer *@$#!!) do I retain any rights to listen to that music?

. a. Are the .mp3 files of that CD on my computer legal or do they now belong to the thief too?

. b. Can I re-burn a CD from the .mp3s and is that legal?

. c. Does me having a backup copy of the files on my computer mean I can't make an insurance claim?

. d. What if it is destroyed (for example by a fire) rather than stolen?

2. If I purchase a CD and it is subsequently scratched or broken to the point where it is not playable, can I legally download the songs from that CD from a file-sharing network?

3. If I purchase the DVD for a movie, could I legally download songs from the soundtrack for that movie from a file-sharing network?

4. If I purchase a CD that our entire family listens to, and then my daughter leaves for College, can she legally take a copy of an .mp3 ripped from that CD with her on her computer? or - similarly - could she take the disc and could I keep the .mp3 on my computer?

Beckerman:

Isn't this kind of a multiple question?

You shouldn't be trying to educate the younger generation about this stuff. The law is unsettled. Even lawyers don't know how it's all going to play out. Plus you seem to have a general misunderstanding about the basic principles of copyright law. When you buy a copy of something you have rights in the copy, that's it. No metaphysical rights to listen, reproduce additional copies, etc. I don't know what gives you this idea.

1. There's no such thing as a listening right, I don't know where you get that from.

a. I don't know what MP3 files you are talking about, how do you know you were entitled to make those copies legally?

b. See b above

c. Ask your insurance co.

d. Same answers.

2. I doubt it.

3. I doubt it.

4. I don't know.

8) Why aren't you going on the offensive?
(Score:5, Insightful)
by Civil_Disobedient

Instead of playing Whack-a-Mole by defending clients that are being extorted by these thugs in Gabardine, why aren't you doing anything about stopping it in the first place? Why haven't you petitioned the Attorney General to bring RICO charges against the members of the RIAA?

Beckerman:

I'm an ordinary lawyer doing the best I can. How do you know who I've gone to or spoken to? As far as going to the Attorney General, haven't you been reading? The US Attorney General is on the RIAA's side. See Statement of Interest of U. S. Dept. of Justice in Elektra v. Barker.

9) Evidence?
(Score:5, Insightful)
by eldavojohn

I hear a lot that the RIAA has the weakest evidence ever in these cases. Such as screen shots of dynamic IP addresses - http://www.cdfreaks.com/news/13747 - taken from Kazaa. How the hell do judges across this country uphold these cases with such lack of concrete evidence? I mean, give me five minutes in photoshop and I'll make you a "screenshot" of Kazaa with www.whitehouse.gov's IP address listed over and over on it. Can't an expert witness cause this evidence to be thrown out quickly?

Beckerman:

I've tried, eldavojohn, I've tried. Look at our court papers in Motown v. Does 1-149. The judge didn't want to hear a word I was saying. You are absolutely correct that the entire underpinning of each case is a joke. An astute judge would laugh them out of court, as the Netherlands and Canadian courts have done.

10) Other drive content and RIAA fishing expeditions
(Score:5, Insightful)
by BenEnglishAtHome

When I heard that the RIAA wanted to physically take possession of the equipment belonging to people they sued for discovery purposes, I was less than happy with that prospect. I use a hardware-encrypted hard drive that requires a bootup password. Without my cooperation, no one will every see what's on my drive. Given that the revelation of other content on my drive would place me in far greater jeopardy than anything having to do with pirated music (Assume the worst if you wish; you wouldn't be correct), I would never cooperate with such discovery.

Is there any mechanism by which the court can compel my cooperation and are there any penalties for steadfastly refusing to provide it?

Beckerman:

There will probably be a lot of litigation over privacy issues in the hard drive inspection thing. But if you just want to play hardball, the judge would probably just strike your answer and give the RIAA a money judgment by default.

You had some excellent questions for attorneys Ty Rogers and Ray Beckerman, who maintain the Recording Industry vs The People blog. Here are their answers, verbatim, as they were sent to us by Mr. Beckerman.

1) Guilty?
(Score:5, Interesting)
by PrinceAshitaka

If you are completely guilty and are sued, but do not have the money to pay, what are your options?

Beckerman:

One option is to defend yourself, relying on the affirmative defenses. If you can find a pro bono lawyer, great. If not, go in to the pro se clerk at the courthouse and ask for a jury trial. Another option, if it's acceptable to you, is to default. They will usually get a default judgment against you for the exhibit A list (the songs they downloaded) x $750 plus court costs.

2) Biggest Mistake?
(Score:5, Interesting)
by eldavojohn

What's the biggest mistake you've seen people make historically in cases where they're charged by the RIAA?

Beckerman:

It's hard to generalize about that, because each person's facts, each person's personality, each person's intellect and ability, are different. Generally, there is no real good way to handle these cases, so anything anyone does is a mistake, in that sense. But in another sense, there are no mistakes, because there is no right answer.

3) How can we prevent needing your services?
(Score:5, Interesting)
by Software

What should we do to prevent needing your services? Another way of putting this is, how do we avoid getting sued by the RIAA?

Beckerman:

All of the cases that I have seen stem from people who are using a Fast Track sharing program such as Kazaa, Imesh, Gnutella, LimeWire, etc., having a shared files folder with copyrighted songs in it, even if the song files were obtained legally. So even making sure to pay for all of your downloads wouldn't protect you from a lawsuit. The only way I know to avoid the present litigation wave is to avoid having shared files of copyrighted songs.

4) Systemic Problem?
(Score:5, Interesting)
by ZachPruckowski

Do you see the current situation as a systemic problem in the current torts system? Specifically, do you think we need legislative intervention to correct the "money bias" in our legal system?

I mean, there doesn't seem to be much of a way to fight an RIAA lawsuit money-wise. It always seems to end quickly: Either the defendant ist so obviously innocent they drop the case or he/she settles for "pennies on the dollar". When do you think we'll see a few definite trials to answer the hanging legal questions about investigative tactics and what an IP proves?

Beckerman:

I think some good rulings by the judges would shut the whole thing down, so no I don't think it's necessary to revise the statutes. I do think it's important for our society to get behind the defendants financially, because if they don't there are going to be a lot of wacky rulings by judges which are going to dismember the internet as we know it.

5) Lawyers from outer space?
(Score:5, Funny)
by hawkeye_82

You guys are lawyers AND like to help people? What's it like on your home planet ;) ?

Beckerman:

Lawyers are just like any other people. There are good people and bad people. The people who come out the strongest against 'trial lawyers' are the big corporations' PR departments. They want the 'common folk' to think ill of lawyers, because the law -- as imperfect as it is -- is the only equalizer left. And it's being eroded rapidly. And people dissing lawyers all the time helps that process.

6) allofmp3
(Score:5, Interesting)
by giafly

What's the position of Americans who buy from legal offshore music sites, such as allofmp3 [allofmp3.com]?. Is this safer than downloading "free"?

Beckerman:

I don't know what you're talking about. The litigation wave is worldwide. The RIAA isn't American. 3 of the 4 members of the cartel are "offshore corporations". There are different versions of the RIAA everywhere. In France, and certain other places, they bring CRIMINAL cases, not civil ones.

7) Gray Area Questions
(Score:5, Interesting)
by Four_One_Nine

Over the years I have attempted to educate some of the 'younger' generation about the do-s and don't-s of music copying and sharing. The following questions have come up out of real experiences and I have never had anyone provide a reasonable (justifiable) answer.

1. If I purchase a CD and it is subsequently stolen (along with my 5 disc changer *@$#!!) do I retain any rights to listen to that music?

. a. Are the .mp3 files of that CD on my computer legal or do they now belong to the thief too?

. b. Can I re-burn a CD from the .mp3s and is that legal?

. c. Does me having a backup copy of the files on my computer mean I can't make an insurance claim?

. d. What if it is destroyed (for example by a fire) rather than stolen?

2. If I purchase a CD and it is subsequently scratched or broken to the point where it is not playable, can I legally download the songs from that CD from a file-sharing network?

3. If I purchase the DVD for a movie, could I legally download songs from the soundtrack for that movie from a file-sharing network?

4. If I purchase a CD that our entire family listens to, and then my daughter leaves for College, can she legally take a copy of an .mp3 ripped from that CD with her on her computer? or - similarly - could she take the disc and could I keep the .mp3 on my computer?

Beckerman:

Isn't this kind of a multiple question?

You shouldn't be trying to educate the younger generation about this stuff. The law is unsettled. Even lawyers don't know how it's all going to play out. Plus you seem to have a general misunderstanding about the basic principles of copyright law. When you buy a copy of something you have rights in the copy, that's it. No metaphysical rights to listen, reproduce additional copies, etc. I don't know what gives you this idea.

1. There's no such thing as a listening right, I don't know where you get that from.

a. I don't know what MP3 files you are talking about, how do you know you were entitled to make those copies legally?

b. See b above

c. Ask your insurance co.

d. Same answers.

2. I doubt it.

3. I doubt it.

4. I don't know.

8) Why aren't you going on the offensive?
(Score:5, Insightful)
by Civil_Disobedient

Instead of playing Whack-a-Mole by defending clients that are being extorted by these thugs in Gabardine, why aren't you doing anything about stopping it in the first place? Why haven't you petitioned the Attorney General to bring RICO charges against the members of the RIAA?

Beckerman:

I'm an ordinary lawyer doing the best I can. How do you know who I've gone to or spoken to? As far as going to the Attorney General, haven't you been reading? The US Attorney General is on the RIAA's side. See Statement of Interest of U. S. Dept. of Justice in Elektra v. Barker.

9) Evidence?
(Score:5, Insightful)
by eldavojohn

I hear a lot that the RIAA has the weakest evidence ever in these cases. Such as screen shots of dynamic IP addresses - http://www.cdfreaks.com/news/13747 - taken from Kazaa. How the hell do judges across this country uphold these cases with such lack of concrete evidence? I mean, give me five minutes in photoshop and I'll make you a "screenshot" of Kazaa with www.whitehouse.gov's IP address listed over and over on it. Can't an expert witness cause this evidence to be thrown out quickly?

Beckerman:

I've tried, eldavojohn, I've tried. Look at our court papers in Motown v. Does 1-149. The judge didn't want to hear a word I was saying. You are absolutely correct that the entire underpinning of each case is a joke. An astute judge would laugh them out of court, as the Netherlands and Canadian courts have done.

10) Other drive content and RIAA fishing expeditions
(Score:5, Insightful)
by BenEnglishAtHome

When I heard that the RIAA wanted to physically take possession of the equipment belonging to people they sued for discovery purposes, I was less than happy with that prospect. I use a hardware-encrypted hard drive that requires a bootup password. Without my cooperation, no one will every see what's on my drive. Given that the revelation of other content on my drive would place me in far greater jeopardy than anything having to do with pirated music (Assume the worst if you wish; you wouldn't be correct), I would never cooperate with such discovery.

Is there any mechanism by which the court can compel my cooperation and are there any penalties for steadfastly refusing to provide it?

Beckerman:

There will probably be a lot of litigation over privacy issues in the hard drive inspection thing. But if you just want to play hardball, the judge would probably just strike your answer and give the RIAA a money judgment by default.

Attorneys Ty Rogers and Ray Beckerman maintain a blog called Recording Industry vs The People, subtitled, "A blog devoted to the RIAA's lawsuits of intimidation brought against ordinary working people," which was most recently linked from Slashdot on Sept. 10. They've agreed to answer your questions about RIAA suits -- and they obviously will not preface their answers with "IANAL," although we must note that they cannot give specific legal advice about specific cases. For that you need to engage an attorney yourself. (Luckily, their site contains a directory of lawyers willing to defend against RIAA suits.) In any case, these guys obviously know more than the average bear (or lawyer) about how the RIAA goes about suing music fans, how to keep from getting sued by the RIAA, and how to fight back if you do get sued, so we're glad they're willing to help us learn more about this apparently endless legal mess. Usual Slashdot interview rules apply.

Attorneys Ty Rogers and Ray Beckerman maintain a blog called Recording Industry vs The People, subtitled, "A blog devoted to the RIAA's lawsuits of intimidation brought against ordinary working people," which was most recently linked from Slashdot on Sept. 10. They've agreed to answer your questions about RIAA suits -- and they obviously will not preface their answers with "IANAL," although we must note that they cannot give specific legal advice about specific cases. For that you need to engage an attorney yourself. (Luckily, their site contains a directory of lawyers willing to defend against RIAA suits.) In any case, these guys obviously know more than the average bear (or lawyer) about how the RIAA goes about suing music fans, how to keep from getting sued by the RIAA, and how to fight back if you do get sued, so we're glad they're willing to help us learn more about this apparently endless legal mess. Usual Slashdot interview rules apply.