'Jane Doe' Lawyer Glenn Peterson Talks With GrepLaw

scubacuda writes "Glenn Peterson, attorney at McDonough Holland & Allen, represents 'Jane Doe,' one of the first to fight the constitutionality of recent RIAA subpoenas. In this GrepLaw interview, Glenn gives his thoughts on recent RIAA strong arm tactics, Matt Openheim's assertion that Jane Doe's arguments have 'already been addressed by a federal judge,' and the danger of giving subpoena power to anyone pretending to have a copyright claim."

Comments

urge overkill

[segment]

The RIAA is demanding that ISPs and universities provide it with the names and addresses of users who distribute copyrighted music online so it can sue these users for copyright infringement.

I know I will end up getting mod'ed the hell down to hell, but it needs to be said. I for one do not support the RIAA in fact I have some fuck the riaa t's however, I don't see nothing wrong with them wanting to be paid for their material. If you were on the receiving end you would too. I could see where they would go to certain uni's being that few e-diots mess a good thing up for whorish purposes, eg drive more traffic to their site or pretend to be doing for the 'cause'. Whichever case it is still illegal, and their is no excuse for someone to be sharing 10,000 songs.

Boston College and MIT challenged the RIAA's subpoenas on narrow technical grounds, arguing that the RIAA had filed its subpoenas in Washington, DC, instead of Massachusetts.

This in itself is a shaky comeback for MIT, and Boston College considering if some law was broken cross state lines, and mind you the DA's will look at the fact downloads occurred all over the world. Law is law anywhere in the US, I don't know when it stopped being so.

However, the music industry is pursuing music piracy with strong arm tactics and subpoena powers that far exceed those available against violent criminals.

Highly doubtful. Because the RIAA is taking steps to fight for what they think is right, gives no one the right to knock them for it. It's the same as if someone started badmouthing *geek*world for spending so much time on this issue. We feel it's right so we protest, the RIAA feels they're right so they do so as well. Kind of hypocritical to make that statement. But to compare the RIAA tactics and those which pertain to violent criminals, there is not one case of a swat team surrounding any student with guns drawn or the FBI or CIA or any other agency going gung ho over this crap.

Has it ever occurred to people that while protesting can at times be used for the better, at times it can also can major negative impacts on the actual thing being protested. Think about it, if I got a little ticked off that some lawyer is comparing this with violent crime, what do you think average joe is going to think.

In today's news, the MA National Guard was called in to remove a student trading MP3's... This guys reference to hardcore crime on this topic is outrageous, and leads me to believe he is simply looking for sympathy for his cause. Pretty lame, and shows his case is weak.

Re:urge overkill

[DarenN]

However, the music industry is pursuing music piracy with strong arm tactics and subpoena powers that far exceed those available against violent criminals.

Highly doubtful. Because the RIAA is taking steps to fight for what they think is right, gives no one the right to knock them for it

No, it's not highly doubtful, it's a fact. The subpoena powers the RIAA have been .... errr... granted are much, much more wide-reaching than those normally used. No Judges are involved, so subpoena's are essentially de-valued (which does not make them any less powerful, it just means that "being subpoenaed" is not as indicitave as it used to be of reasonable cause). It also means that the RIAA can issue subpoena's that would have been considered whimsical not so long ago, and it undermines a citizen's right to due process.

As has been mentioned before, there is nothing wrong, intrinsically, with the RIAA representing their members and protecting their members Copyright. It's just the methods are dubious, and I don't think the end's can justify the means

Re:Wow, nice plan, Glenn

[misterpies]

>>Psst, Glenn, in a civil suit there is no presumption of innocence, and quite literally no prejudice.

RTFDMCA. Under the DMCA willful violation of copyright is a CRIMINAL offence as well as a civil one. Thus a subpoena demonstrating the existence of infringing material may well lead to a criminal prosecution. Hence the need for presumption of innocence.

>>No, IANAL, but I'm wondering how much of a lawyer Glenn really is. He mentions constitutional issues five times, but doesn't expand on what those are, or why they'd apply in a civil suit.

More of a lawyer than you. The argument is that the LAW is unconstitutional, not that the suitor is acting unconstitutionally. Every law passed by Congress, civil or criminal, can be challenged in court and overturned if it breaches the constitution. That's what the constitution is for.

Bringing some common sense to "damages"

[The Revolutionary]

Peterson says in response to a question on damages:
"I feel especially passionate about this with respect to the "intent" factor. The intent associated with printing 1,000 counterfeit "Harry Potter" books and that associated with kids sharing music with other kids is obviously different and I can scarcely visualize a scenario where $150,000 per download would be appropriate."

I've already written "my" senators and congress people on this (we'll see what good that does...).

I am just utterly dumbfounded when I see as potential damages for a single act of infringement: $750-$150,000. Can anyone tell me what the basis is for these numbers, or at least whose ass they were pulled out of, and for how much?

Were I to distribute a copy of a track from the latest Metallica album (*shudder*) to one Mr. John Ashcroft, my doing so constitutes a single act of infringement. The theoretical maximum loss to the copyright holder due to this single act of infringement is the price of the album the song is officially distributed on; perhaps the album sells for $14.95. I don't know, I've never purchased an album (it is true!), and as such don't really keep up on prices.

While this is an obvious upper bound, the actual loss to the copyright holder will be far less than this. There a number of factors:

The electronic copy in .mp3 or .ogg format is not a full substitute for the uncompressed CD track.

John (hey, buddy!) has been distributed only 1 of (let's say) 12 tracks.

John has not received a physical duplicate of the printed CD.

John has not been distributed a jewel case.

John has not been distributed "liner notes".

The current retail price of the album may be such that, while John has no objection to being distributed a copy of a single track at no cost to himself, given John's relatively ho-hum interest in the track (understandable), and his limited means (hey, he's Attorney General, not CEO of Haliburton), John would not have acquired a copy of the track at all if it were only available to him at the current retail price.

We see that in the case John would not have been willing to pay any money at all to acquire a copy of the track (on the album), the copyright holder incurs no loss whatsoever by my act of infringing distribution.

Even if John would have been willing to pay the current retail price of the album, his receiving an infringing copy of a single track, or even several tracks, can not be said to result in a loss to the copyright holder in the amount of the current retail price of the album. It can not, beause John may still purchase the album. Given the previously presented list, this should not be at all surprising.

In fact, perhaps one of the few cases in which, although John had previously been willing or able to pay the current retail price of the album, upon hearing the infringing tracks I distributed to him he would no longer be willing to pay the current retail price, is the case in which the album fails to meet John's expectations. So yes, in this case, in the case where the current distribution model results in an uninformed and mislead consumer, perhaps my distributing to John one infringing track will result in a loss to the copyright holder in the amount of the current retail price of the album.

But even this is hardly reasonable, for the same effect could have been acheived through perfectly legal means, either by John hearing the track on the radio and realizing "it is the suck!", through word of mouth, or by Mr. Ashcroft coming over to my place for some head-banging, only to discover the album does not meet his expectations.

And so, if we want to assign a fair damage amount for each act of infringing distribution, on average I suspect it will not be more than about $0.50 a track, for an amateur-produced .mp3 of a track from a 12 track album.

What? Oh, yes, it

Re:Tired of this...

[Rick.C]

That's all well and good, but copyright protects those who do create for profit. Given that, if you are solely creating for creativity's sake, you are free to release your songs to the public domain as an independent artist. Let copyright law apply to those who require it to make a living.

It seems that those who start out thinking, "I'd like some income. I think I'll write some songs" tend to suck compared to those who begin with, "Songs are cool. I think I'll write some songs."

If the latter group finds that people actually like their songs, then they can say, "These songs are worth money. They can provide me with a source of income." It is their right, both legally and morally, to copyright their creations and profit from them.

What often happens though is that after a while they start thinking, "I'd like some more income. I think I'll write some more songs" and then they start to suck. We've seen it over and over - artists start out with a bang and then fade away after several years.

The original poster has avoided falling into this trap and I, for one, admire him/her for it.