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'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."
The tactic of any defense suit should be to challenge the DMCA on fourth amendment grounds. Nowhere in the US constitution is the right to subpoena, search, and seize given to corporations or their representatives.
HOWEVER, this doesn't mean that the RIAA are in the wrong necessarily. If they want to enforce the copyrights that they hold, they have to do something. I have always preferred the idea of targeting individuals who were infringing rather than mass lawsuits against "P2P", which was their tactic until recently. The method for doing this should be through normal legal channels though, not based on "PR".
Curb CO2 emissions: Kill yourself today!
A pretty decent piece at the Detroit Free Press with an example: here shows exactly why there's due process for these things.
Greplaw is a technology law and policy news/discussion site at the Berkman Center for Internet and Society (Harvard).
Groklaw is a site about the ongoing SCO law suit, hosted by a paralegal.
They are not the same.
"No doubt, music piracy is ... certainly no more a societal concern than elder abuse, drunk driving, vandalism, violence, identity theft, investor fraud, and a host of other behaviors."
Relieved, the one-eyed pirates are.
Flourescent (adj): smelling like ground wheat.
"Copyright Act prevents against unauthorized reproductions, alterations etc. etc. So dl'ing your mp3's is illegal, plain and simple"
Just remember that, if you don't had any special new limiting right, the basis of (Int'l) copyright law is the Bern Convention.
On the basis of this convention, this is NOT illegal to dwl MP3, event the local RIAA-like institutions officially agree with that and put it on their website or in the letters sent to 'uploaders' (which is always illegal, if not within a _small_ _private_ circle of friends)
And this should be the case in most european countries (at least, for sure, BE, CH, FR)
#include "coucou.h"
Rather than defining what P2P is, lawmakers should focus on what "fair use" is, especially related to "sharing" of digital "works" versus flat-out copying for distribution. We all know that a vcr can tape any TV show, but SUPPOSEDLY, you'll only really get in trouble if you turn around and sell those episodes you taped of the Simpsons. Casette tapes have been able to record for years -- and the musical world has not ended. Again, this points to the fact that good/popular albums are still going platinum, but the "single with 10 fluff songs" albums, the bad albums by good bands, etc are getting reamed, and RIGHTLY SO. if the whole album sucks, why should people have to buy it to find that out?
stuff |
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.
MoFscker
... if i post here including my copyright, and somebody answers cutting out some of my text in his reply, can i sue him for obscene amounts of money (of course at a court in the state of NY).
does anybody know?
".Sig Stealer" was here
As far as i know, i read in an earlier RIAA story that no AOL users have been handed subopenas. Are they trying to scare people to switching to an "isp" in which they have an interest.
This selectivity demonstrates exactly why nobody should be given the power that they currently have.
Based on this interview, he's going to argue that people can't be identified in a civil suit until we know that what they're being sued for is actionable.
Psst, Glenn, in a civil suit there is no presumption of innocence, and quite literally no prejudice. The result of the suit is the indication of whether the case is actionable. There's no stigma attached - in the eyes of the law - if it fails, and if you believe otherwise, your response should be a counter-suit to show that, not an argument that a suit can't be brought against you.
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.
I wish him and Jane the best of luck, but on this basis, they're really going to need it.
If you were blocking sigs, you wouldn't have to read this.
Quoth the article "There are interesting similarities between the RIAA's campaign, Prohibition, the War on Drugs, and the 'War on Terrorism.' ".
Really well put, what do all of these things have in common, they will all, in the end, be failures. I've gone in to this a thousand times before, but sometime soon governments/organizations will have to learn that no matter how hard you try you cannot manipulate everyone into thinking the way you want them to. There is an innate ability in some humans to make their own decisions, and although it is more sparce today than say 20 or 30 years ago, there are those who use this ability and formulate their own decisions. The gov't/RIAA hate this.
During prohibition there was a massive (failed) propaganda campaign. The war on drugs, I think everyone who realizes that it is easier to buy pot/coc/crack/heroin/pcp/lsd than alcohol on a sunday in most states will agree that this has been/is/will continue to be a failure. I know I'll get at least ten proud citizens that will argue with me on this one, but the War on Terrorism will fail too.
The reason the war on terrorism will fail is because we (the US) are using the wrong methods. Again we've fired up the propaganda machine, I saw an interview with the new "Big Cheese" of Fort Bragg. In it, he said the reason that terrorists attack is because they are "jealous of our way of life". This could not be a more callous, arrogant, and ethnocentric lie. These terrorists, especially the 9/11 group and friends, weren't jealous of our way of life. They were irrational because they were religious extremists and a 1,000 years ago christians returned to a land they had given up years ago, slaughtered indiscriminantly, and claimed to have "retaken the holy land", which coincidentally, is the muslim holy land too. So began the feud between the extremist muslims and the extremist christians. Fast forward a few hundred years and we see that even though the US has a supposed separation of church and state (don't even get me started on that nutcase holy roller 10 commandments uber-conservative closed minded judge in Alabama) the US gets involved in this war and picks (of course), the judeo-christian side. That series of events is (predominantly) why the 9/11 attacks happened. Back to the war on terrorism failing, so we're attacking this thing in the wrong way. The gov't is spreading falsities about the people involved, we're insulting everything from their land, to their culture, to their names, which does not bode well for diplomacy and mutual respect. To add insult to injury, we're killing anyone who gets in our way while we try and kill a few of our personal favorites as well. The apparent reasoning behind the killing is the "cut off the head and the body dies" logic, which DOES NOT WORK WITH NON-CENTRALIZED organizations. Due to this piss-poor technique, the war on terrorism will, in the end, create MORE TERRORISM.
It's a similar logic failure which is afflicting the RIAA's battle. Rather than scaring users into paying full price and not pirating, they're simply angering and frustrating them into adapting to new ways to achieve the same result, sometimes worse. I wasn't boycotting the RIAA until about 5 months ago, so from me alone they've sold around 15-20 less CDs (for some reason some indie bands end up on RIAA labels), and I've increased my downloading (and uploading) levels, yeah, good strategy here.
Let's get one thing perfectly clear, I did not vote for George W Bush, and I do not endorse what he does or says.
"
From the interview:
Wow, it looks like he reads Slashdot.
why dont they just start lawsuits, then settle out of court for the people to pay subscription fees into one of thier music websites?
that way, they keep thier customer base, the consumers dont get up in arms, legal music grows in users... etc
instead of suing them for $250,000 each song...
Frankly, I'm tired of reading the same recycled comments on this issue, and I've never really interjected my opinion for the simple reason that very few of you will probably agree. Many might think I'm insane. But I'll go ahead and kill my karma right here. Take this as a criticism to Slashdot for discussing this article.
Copyright law is bullshit. First off-- to make those of you that actually care understand that I have some standing on the issue-- I'm an artist, among other things. I write, act, and direct both for free and for money. The pay is little, and I honestly am only concerned with making back the money I put into a performance. I can and do find money elsewhere, doing the meaningless things that our labor-as-commodity economy provides and occasionally finding the job that really provides me with satisfaction. Would it be nice to devote more time to my creative work? Sure, except I find being an automaton provides just as much time to space out and file ideas away in my head as sitting in front of a computer thinking ever could. It certainly provides me with more inspiration.
I don't care if people tape my shows. I don't care if people show them to all of their friends. I don't care if people make as many copies as they possibly can give them away. I doubt I'd even care if people sold those tapes for $1000 a piece. There's really only one thing I really care about: a little bit of credit. If someone's taking my writing and performing it (whether or not for pay), I'd like to receive just a note of thanks for putting some effort into writing it, exactly as I appreciate it when my girlfriend thanks me for bringing her lunch at work. Common courtesy is all I ask.
I don't create for money. I create because I have to. It makes me happy. At most of my free shows, we break fire code. And when I manage to take all of those people and force them into the exact mix of emotions I'm aiming for--when a nervous, uncomfortable laughter rides over the crowd--that's a better feeling than anything. Like the MasterCard commercials, money can't buy some things.
Some of you will say, "Yes, but you have a right to be paid for what you do." I don't see it. I have a right to do what I want to do, and in a perfect world, I'd be able to work my ass off doing that and not have to worry about paying the bills and whatever. I have no right to be rich, and that's all royalties and pay-for-play is about. I perform for people because I want to connect with them, to make them laugh, to simply make them glad that they took 2 hours out of their day to sit back and enjoy something. Charging only limits my audience, and frankly, the reason I do what I do seems to me to be far more important than getting paid to do it, particularly when I consider how disgusted I am with what the pursuit of money has brought this country.
I have no reservation about "stealing" from record companies, software companies, or whatever. No, I don't want to see artists starve, but really, the revolutionary that's too careful about stepping on toes doesn't do shit. I want to keep hearing Aesop Rock, but I want, more than that, to tear down the barriers that reinforce elitism. I want to see everybody "pirate" music and software. I want to see Microsoft's profits dwindle until they disappear and force it to fold. I want the creative work of the world come to a screeching halt under capitalism so that people realize free is the only way to go-- that creation implies ownership no more than discovery. I want this because the system we have is fucking stupid. It's so fucking stupid that we get article after article posted about the latest lawsuit the RIAA's intellectual-property-rights claiming jerkoffs are waging against somebody that really just wants to share the creative wealth of human achievement.
Noam Chomsky sums it up well: "It is sometimes argued that constructive and creative work will cease unless it leads to material reward, so that all of sociey gains when the talented receive special rewards. For the ma
Peterson suggests that this can be abused by swindlers, child abductors, and terrorists to name a few.
Here's an example of an abuse.
Someones posts a negative comment as anonymous to a public trading board or somewhere like FC. The company sues for the AC's information claiming some interpetation of a copyright violation. Who can stop this AC's information from changing hands? Who reviews a case like this to determine if a copyright violation actually occured or not? No one under the current system. The RIAA wants to run by a different set of rules and regulations and under the existing political pressure (money), they are getting special treatment. If you want to look at the exact opposite power of what the RIAA gets, search Google for the horror stories that people have with identity fraud and how hard it is for them to get thier own information from a company or track down accounts opened in thier own fucking name and SSN. The difference? RIAA has lobby money, identity fraud victims do not.
Bad boys rape our young girls but Violet gives willingly.
The battle between the RIAA and listeners appears to be very similar to the battle between software vendors (Micro$oft et al) and end-users.
Since the combination of technology (DRM) and law (DMCA, EULA's) give unreasonable amounts of leverage to the IP producers, the only real alternative for the end-user is to avoid winding up a criminal by choosing something with less restrictive licensing.
Can someone respond by explaining the alternative licensing arrangements available to artists? What sites post media created under these licenses?
If large numbers of these files started showing up on P2P networks, this could have the potential to legitimize their content, benefit non-RIAA artists, and share some good music/art with the world all without supporting the RIAA.
Of course, you've got to stop buying the RIAA's latest boy-band fad, but that shouldn't be a problem here...
Oh, and lastly, is SCO challenging any of these artistic licenses yet?
"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.
.mp3 of a track from a 12 track album.
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
What? Oh, yes, it
.sig Realistic fines for copyright in
A week ago I was at a party where several six-year-old children were running around. They started painting things on paper. One of them came up to me and showed me a painting she liked that had been done by another child. It was of a bear. She said "I like this painting, I wish I could do a bear." When I asked her why she didn't, she said "oh no, I can't, Laura already painted a bear so only she can do it." I told her that she could go ahead and paint the same bear, a different bear, or anything she wanted. She was delighted.
- First they ignore you, then they laugh at you, then ???, then profit.
What I mean is this. These high damages assume that I rip and share a track (through the magic of Congressional mathamatics) with 10 people who share to an additional 10 people each etc. until through the power of P2P my single ripped track has become $150K of lost sales/damages. So I'm sued for that $150K/each track.
But wait...
What if the track I'm sharing (assuming that I do this at all for purposes of illustration only) came from not my own rip, but instead from an original infringer only one level up from me. Since he owes the $150K, does that mean he has already paid for me too?
In short, how can they legally or morally claim that every sharer has damaged them for the entire $150K as they are now doing? Yes it is nearly impossible to trace who got which shared file from whom, however I would expect any reasonable court to throw out such ludicrous claims of attempting to charge everybody for the same entire infringment.
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
It didn't create itself in a downloadable form. SOMEONE had to do work to rip the the track/song into an MP3, thus it is a derivative work. It is a work by the ripper to produce a reasonable facsimilie of the original. Thus, the ripper is an artiste.
In Bushworld, they struggle to keep church and state separate in Iraq as they increasingly merge the two in America.
Ultimately the problem comes down to quality and convenience versus cost. Half the albums you buy are crap and you only really want that one song. Really cool artists, who put out full package, nice albums, top to bottom, I buy. I just don't buy crap anymore. Ultimately I think the record industry is homogenized by Clear Channel and other such conglomerates. They aren't serving my needs. Swapping files would stop for me if they offered an affordable, convenient system that empowered my lifestyle. All they see are $$$ and so they try to rape my wallet. RIAA, NO MEANS NO!
Actually you are not a criminal by downloading, you are a criminal by uploading. I may be splitting hairs, but I think that is the way it works. That is why I suggest only uploading obscure hard to find files that people want and need and not dozens of top 40 albums. The top 40 stuff always sucks you band width, and who wants to share with those chumps anyway. Those are all the record companies care about too because they are the only songs they make cash on, that 2% of music that gets to the top of the charts. They lose cash on the rest. You are doing them a favor by saving them printing costs on all of the obscure, money losing music. If your worried about the artist losing cash, go see them live. We don't need any more Kid Rock floating around in swap land. Simply upload about 30 or 40 songs total of obscure music, that you find important, hard to find and valuable to the community. If they sue you and find you have 100 gigs on your computer just say you don't share them, you only download, and you will be telling the truth.
Another way to protect yourself is to combine music archives with friends. The problems with MP3's are keeping your songs organized and backed up. By pulling a spare drive and passing it around to friends you can have 10 backups on friendly machines and aggregate all of their collections into yours to make a super collection, which can be cleaned up and ORGANIZED, so you don't have 10 copies of the same song and throwing bad copies. By doing this you can have a 100 gig archive that will be so bloated with quality files you can play them for 6 months solid without a repeat, pick any song you want to hear or switch categories based on mood, WOW! We also ripped our entire CD collections and share them this way.
Also, since I just turned 30, I am too old to be in the scene any more, I can just get music from other people with better knowledge of whats happening and get the best stuff for the least work.
If I go to a P2P network and download, for example, descramble.mp3 how am I supposed to know whether the copyright holder wishes to freely distribute the work or not? If you require that the copyright holder explicitly tell you it is alright to copy the work then this is an infrigement of that person's right to speak. (Especially so when that speech is a direct political attack upon the notion of Intellectual Property.)
Big Brother Bush is doubleplus ungood.