RIAA Sued For Amnesty Offer

wo1verin3 writes "CNET News is reporting that the RIAA is being sued because of 'Clean Slate' filesharing amnesty program that was announced on Monday. 'Clean Slate' allows people to (supposedly) avoid legal action by stepping forward and forfeiting any illegally traded songs. The suit, filed in the Marin Superior Court of California, charges that the RIAA's program is deceptive and fraudulent business practice." The suit claims that the amnesty is "designed to induce members of the general public... to incriminate themselves... while (receiving)... no legally binding release of claims", a statement the EFF also agrees with.

Comments

possibility

[Gorny]

Isn't it possible for the RIAA to put all the money they spend on lawsuits in some projects which make music legally available on the 'net? They'll loose the war against (millions of?) p2p swappers in the end

Re:possibility

[fiannaFailMan]

This is something The Economist has just mentioned too. In this article they report how the music industry has lagged behind in adapting to the internet age compared to the movie industry:

" Shipments of recorded music have dropped by 26% since 1999. The industry has responded with price rises, and so revenues have fallen by "just" 14%.
.....
Meanwhile, music companies continue to look flat-footed compared with other industries affected by piracy, such as the movie business. Warner Brothers slashed the price of its DVDs a few years ago, spurring an upsurge in sales. A side-effect was that some DVDs ended up being cheaper than CDs, making the CDs, which are typically shorter and have no visual content, look distinctly overpriced."

That article also criticises the industry for failing to do anything to provide a decent legal alternative to file-swapping. The iTunes store is cited as a step in the right direction.

My letter to the local TV news

[teamhasnoi]

This is a repost, buy what the hell...it's very fitting (and they still haven't responded) :)

Dear WCCO,

In your 'RIAA lawsuits' piece this evening, I thought it rather irresponsible of you to suggest that all songs downloaded via P2P were illegal and copyrighted by the RIAA.

Since WCCO is no doubt familiar with Minneapolis and its plethora of musicians, you might have taken a moment to interview a musician who uses P2P to distribute their own works, of which there are many. A trip to mp3.com, for instance, turns up hundreds of thousands of bands and artists that give their music away, with *no* connection to the RIAA.

I thought the suggestion at the end of your piece to 'apply for amnesty from the RIAA' was especially misleading, as this would probably open one up to multiple lawsuits from other sources; giving your personal information to an organization that has already proven itself 'lawsuit happy' and has attacked its own customers as liars and theives is not a good idea.

I am rather disappointed in your treatment of this issue, and I believe that one-sided reporting like this only adds to the misinformation that the RIAA 'owns' all music, that P2P applications are only used for piracy or (child) pornography (this is the next view that the RIAA is pushing), or that P2P is at the root of reduced CD sales.

I suggest either doing some research on this topic in the future and presenting a balanced view, or please mark your broadcast 'Sponsored by the RIAA' in the corner of the screen. You could probably get the MTV logo guys to do that, as MTV is owned by Viacom, your parent company.

Thanks for your time,

Re:My letter to the local TV news

[LostCluster]

WCCO, WBZ, WCBS, et al should also disclose that by being owned by Viacom, they also share common ownership with Columbia Records, an RIAA member company.

There's nobody in media with clean hands in this mess...

RICO defense?

[Loki_1929]

"The suit ... charges that the RIAA's program is deceptive and fraudulent business practice."

Which brings us one step closer to my idea. If there are any real lawyers here, could you please tell me why no one has bothered to attack the RIAA's charges using the Federal RICO Act? The RIAA and member organizations have engaged in a pattern of corrupt business practices for over 50 years, and are now using the law to intimidate individuals, companies, and universities to further their interests.

From my (admittedly limited) understanding of RICO, you must prove that the organization has engaged in a pattern of criminal activity, and is using illegal means, especially under cover of authority (court actions, copyright law, etc) to further their interests. Now, the ongoing illegal activity is really two-fold. That being, the RIAA's member companies have illegally maintained an effective distribution monopoly by engaging in anti-competitive acts, and have conspired to defraud consumers with a massive price-fixing scheme which caused consumers to be overcharged by more than $480 million (USD) since 1997 alone, according to the former head of the FTC. This scheme was labled "Minimum-Advertised Pricing", or MAP by the Attorneys General who investigated and eventually brought about a settlement. With regard to the anti-competitive acts, the RIAA and member companies have engaged in such practices as "payola", in which radio stations were paid money in order to ensure that music not controlled by the RIAA's members was never played, and therefore never heard by the public at large. Thus, their only competition, the independent artist/label, continues to struggle to get by, while the RIAA monopoly takes in billions each year.

So I ask again, why is it that no one has attacked the RIAA on RICO grounds. A corrupt organization cannot use the legal system to facilitate its illegal activities. The lack of legal online modes of music distribution is but more evidence of the RIAA's desperate struggle to maintain its distribution monopoly with an iron fist. It would seem to me that showing these lawsuits to be nothing more than tactics designed to further the interests of a corrupt organization is a far better defense than, "my client didn't know it was illegal".

Try California Civil Code secs. 1709, 1710, 1711

[David Hume]

It's not against the law to fool people. The RIAA isn't lying. They won't press charges. Ommision of information isn't a crime.

Omission of information may or may not be a "crime" (which is not the issue here, but may be an issue for another day). However, ommission of information (i.e., the willful suppression or failure to disclose a relevant fact) can give rise to civil action for fraud or willful misrepresentation.

California Civil Code sec. 1709 provides:

1709. One who willfully deceives another with intent to induce him to alter his position to his injury or risk, is liable for any damage which he thereby suffers.

See Cal. Civ. Code sec. 1709.

Most importantly, section 1710 of the California Civil Code provides:

1710. A deceit, within the meaning of the last section, is either:

1. The suggestion, as a fact, of that which is not true, by one who does not believe it to be true;

2. The assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true;

3. The suppression of a fact, by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of communication of that fact; or,

4. A promise, made without any intention of performing it.

See Cal. Civ. Code sec. 1710. (emphasis added)

Finally, section 1711 of the California Civil Code provides:

1711. One who practices a deceit with intent to defraud the public, or a particular class of persons, is deemed to have intended to defraud every individual in that class, who is actually misled by the deceit.

See Cal. Civ. Code sec. 1711

Without reading the compalint (which to my knowledge is not yet available), my guess is the plaintiff alleges that the RIAA amnesty program amounts to a deceptive and fraudulent business practice because it suppresses or fails to disclose certain relevant facts (e.g., that the person seeking amnesty can still be sued by others and is still subject to criminal prosecution) while giving "information of other facts which are likely to mislead for want of communication of that fact." See Cal. Civ. Code sec. 1710(3). The complaint may cite more specific unfair business practices statutes, which are found in the Business and Professions Code, but the basic principal is the same.

Re:Do the artists pay attention?

[MatthewB79]

Of course the artists pay attention! For every Madonna who insults a fan interested in downloading her latest track, there's a David Bowie who would probably give all his music away for free; if he had some reasonable guarantee that everyone who grabbed his music would show up at the local Sponsor Amphitheater for his next tour, buy a $40 ticket and see him play live.
As this "RIAA vs. Its Customers" drama plays out, expect to see more artists fall on either side of the "Do I really care about the music?" fence. It has been somewhat heart-wrenching for some fans (including myself) of Madonna, Metallica, and others, to see thier musical heroes betray them in such a way.

Re:LEAVE DOWNLOADERS ALONE!

[kawika]

Actually, there are many companies that let you do something as crazy as Valenti's lawnmower story. You can generally return products to companies like Target, Land's End, or Nordstrom without argument. In the case of Nordstrom I once returned a sportcoat my son wore only once because he outgrew it within three months. I once had a Land's End phone rep encourage me to exchange a briefcase after a year because it was fraying in some areas and "it should have worn better than that."

If you think about it, the cost of good customer service to the recording industry would be almost nothing. Why don't they make an ironclad guarantee that anyone who presented at least 51% of a damaged CD or DVD--no matter how old--would be given a new copy? Wouldn't that help to reduce the need for backup copies?

Perhaps a stupid question...

[jwlidtnet]

...and at least somewhat offtopic.

OK. So I download an album from the internet that I Do Not Own. It is horrible and illegal and for this I will burn in hell, etc. etc. etc. Now, the argument behind this, supposedly, is that I have not paid for and asserted ownership over the material, and (presumably) the RIAA/Artist/ASCAP hasn't received any money. And they're not happy. And thus I am infringing and rightly in the Wrong.

Say I acquire the CD. I buy it used, even (heaven forbid) at a garage sale. I pay $1.99 for it.

I realize that now I am "allowed" to have these MP3s, and to do with them whatever I please...perhaps I will rub them all over myself gleefully. But *why* exactly? I understand the first sale doctrine and how it works, but I still haven't enriched anybody. My owning the CD certainly hasn't contributed to the flow of royalties. Presumably the original owner no longer has a copy, so this is all kosher, but it's still an odd way to thing about conferring "rights to have." No royalties have entered the chain, but suddenly I'm immune and (more importantly) an Honest, Moral Being.

As at least 70% of my CD collection is secondhand at this point, it's fascinating to think that while I certainly don't contribute to anybody's revenue flow by downloading albums, I *still* don't tend to profit the artist/record co/etc. if I do indeed deem something worthy of my all-purchasing eye.

Again, just a thought/musing/whathaveya.

Support the EFF (or RIAA victims) and look good

[jcsehak]

I submitted this as a story, but who knows if it'll get accepted? So I'm posting it here.

I'm just as sick of this RIAA nonsense as the rest of you. Here's what I'm doing about it. I had this idea for a t-shirt, and I decided it would be coolest to just put it up on Cafepress and donate the profits to the EFF. So that's what I did.

The shirt is based on the real pirate Bartholomew Roberts' -- aka Black Bart -- flag (one of them), which originally had the letters ABH (a Barbadian's head) and AMH (a Martinican's head) on it. He didn't like those places much, since he was wanted for piracy there, much more aggressively than anywhere else.

I should make it clear that I'm not affiliated with the EFF in any way. I'll just be donating ALL the profits ($5 per item, except for the stickers and mousepad, which generate $2.50 profit) to the EFF as I get checks from Cafepress (in $50 increments, is what they say). No, there's no accountability -- you'll simply have to trust me. I'm just a geek trying to do something good.

In the case of someone getting sued that I feel really got screwed (like Brianna LaHara), I'll be donating the money directly to their paypal recovery fund (assuming they have one) instead of the EFF. As soon as my Cafepress account shows some sales, I'll post the progress on my website, with full disclosure (# of sales, total profits, where they went).

Feel free to post your opinion if you think I'm being too naive -- I'll get screwed by taxes for not filling out some form or something -- but I trust you'll do that anyway ;)