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RIAA Countersued Under Racketeering Laws
Negadin writes "According to CNET News, a New Jersey woman, one of the hundreds of people accused of copyright infringement by the Recording Industry Association of America, has countersued the big record labels, charging them with extortion and violations of the federal antiracketeering act." The woman's attornies are arguing that "...by suing file-swappers for copyright infringement, and then offering to settle instead of pursuing a case where liability could reach into the hundreds of thousands of dollars, the RIAA is violating the same laws that are more typically applied to gangsters and organized crime."
Now they'll start suing everyone for hundreds of thousands of dollars instead of offering to settle. And they've got the perfect excuse--the US government made them do it.
The Mafia doesn't offer you your day in court if you would rather not pay your protection money.
The RIAA is suing those whom they think are guilty of file sharing. If you are not guilty, you have the absolute right to demand your day in court.
I'm not trying to absolve the RIAA for their heinous practices, but there is nothing illegal about what they are doing.
I have been pwned because my
She'll never win, she won't have the cashflow. Even if she were, by some miricle to 'win', she'd probably be bankrupt. Its about as useless as me suing IBM or Microsoft 'just for fun'
So if convicted, the RIAA can either:
a) Do nothing, and seem ineffective at stopping P2P (which they already are, but it's a different thing to give up the PR battle) or
b) Drive every court case home. The evidence is quite clear, the possible damages huge. The courts might award them considerably higher fines than any settlement.
Somehow I think this will push them to b), and I sure wouldn't want to be on the recieving end of the next $97 billion lawsuit... $97 million, billion, trillion, kazillion is kinda irrelevant at that point anyway.
Kjella
Live today, because you never know what tomorrow brings
Section 1964 of the Racketeer Influenced and Corrupt Organizations Act not only provides for civil remedies in cases like this, but also automatically triples the damages and covers court costs and lawyers' fees. Personally, I'd like to see a massive class-action lawsuit against these dirtbags. If it can be won, surely the damages would be enough to curb their malicious behavior.
The RIAA companies probably make a small profit when someone settles with them for a few grand. Lawyers take their cut, but a settlement contract isn't all that expensive or time consuming for the RIAA.
But unless they win HUGE punitive damages (and the loser actually has the money to pay and doesn't declare bankruptcy) they probably lose money when it comes down to a lawsuit. And that takes a long time and involves a lot of up-front legal expenses, for questionable return.
If enough people start counter-suing the RIAA, or at least going to court instead of settling, then the lawsuits will soon become a huge financial burden on the RIAA, even when they win.
Doubltless under what you propose some people may get financially mowed down, but you are leaving out a few factors wich could be very good for the masses:
1) Children age 12, Grandmothers, and People without actual computers being sued in court. Wonderfully bad publicity RIAA
2) Sympathetic Jury Nullification. More wonderfully bad publicity for RIAA
3) A Hung Jury or a simple Not Guilty Verdict. Not only bad for RIAA but it sets a track record. This is one of the things they absolutely DO NOT want.
4) A wealthy defendent who hires an Attorney who can go the distance. This would also be very bad for the RIAA.
So yes, if convicted the RIAA may just take cases to court en masse, but they could also become a classic David vs. Goliath story as well.
.
uR iGn0ranc3, Their Power
One has to ask two questions. First, if they are willing to settle for such a small amount, why are the fines so high to begin with. Wouldn't it be more efficient to set fines at a appropriate level in the first place? It is very arguable that such high fines were created to allow extortion.
Second, why do they want to settle so badly? It seems like they would want some percentage of the cases to go to court to establish that these people actually violated copyright. As it stands, it would be very reasonable to assert that they are randomly choosing people, and then extorting money from them.
So, with the current tactics, extortion and fear seems to be their game. It is like those old shows where a gang would go into a business and demand protection money. There are legal ways to extort this kind of money, the MPAA and BSA does it. The RIAA does not seem to care about the law.
I really don't understand why the RIAA does not get an independent arbitrator to look at each case, assign a dollar value to the damages, and then send a letter to the alleged violators. Further legal proceedings might occur if the money is not paid, but at least then we would have some confidence that the RIAA is not just harassing innocent people.
"She's a scientist and a lesbian. She's not going to let it slide." Orphan Black
I'm going to go out on a limb here and say that it's pretty likely that the p2p users the RIAA chose to sue were actually violating the law. You can't possibly think that suing less than a fraction of a percent of p2p abusing copyright violators somehow makes more people look guilty than actually are?
After writing that, I realized that I can probably agree completely with the plaintiffs in this RICO suit, but I will get called all kinds of names for calling your sorry post an overreaction.
taken! (by Davidleeroth) Thanks Bingo Foo!
That's a great point. In fact, the quick settlement of the early suits not only emboldened the RIAA, but in the eyes of the general population it probably seemed like a signal that the RIAA was right all along and those nasty song swappers settled quick because they knew they were wrong. Legally a settlement is neutral, but in the eyes of the public, it says guilty for someone. With someone fighting back, suddenly it starts to turn the other way, with lone individuals taking a stand against a big record industry - people love that!
If they all counter-sued and dried up RIAA's resources, it would be like the legal equivalent of a Slashdotting!
EvilCON - Made Famous by
Artists have known for years that they were racketeers.
Proving that in court? That's somewhat more difficult.
>> Since when do judges in the U.S. define the
>> meaning of words in a language?
Judges anywhere can tell lawyers to stop using one term to describe another. If I call a person who was shoplifting a murderer, that can influence the audience, media, and jury, any anyone else involved in a case. I imagine most people see a huge difference between shoplifting and killing, but I'm not alone in seeing a huge difference between piracy and file sharing.
As for open and shut cases, do you really trust an organization that's suing a list of IP addresses because they can't actually go to the trouble of finding actual defendants? Given that a significant percentage of the last batch of addresses aren't even in the United States (the jurisdiction of the court in which the suits were filed), do we trust their investigative prowess so much as to call the cases open and shut? If you're truly concerned about harm to your business, you do the research. If you can't even be bothered to before you trot your ass down to the courtroom, you look a little less than honest in your plaintive wails of "stop the evil file sharers from starving our artists!"
If you happen to know the plaintiff in the RICO countersuit, and you know she is guilty, then my apologies for my tone. Otherwise, I'll keep an open mind as to who the real extortionist is.
Ok, fine. So they'll win. Let's do some fun math, and look at the practical results of such a suit...
You get sued, and refuse to settle. The RIAA takes their $100/hour lawyers (probably quite low) to court, and make an example out of you. You were sharing, oh... say, 500 songs. Now, the maximum statutory penalty for willful copyright infringement would be 250,000 USD TIMES 500 songs. 125 MILLION dollars. Lets say that the really nice RIAA lawyers, in making an example out of you, decide to recommend to the judge that you only be fined... 10,000 USD per infringement. <sarcasm>After all, that's much better than 250,000 USD.</sarcasm> Willful infringement would likely be really hard to prove, but infringement is easy if you were really infringing and they have proof.
Moving on, at 10,000 USD/song, we now have a much more reasonable number of only 5 million USD. RIAA presents proof, IP addresses, whatever. BAM goes the gavel, and a judgement against you is entered for 5M USD. Ignoring court costs.
You have a really good job, where you make 50,000/year. Their chances of ever seeing anything out of you? Nominal. The chance that they've just fscked your life (if you had much of a filesystem left in the first place after they raid you)? Pretty good.
And thus we again have a semi-sane, though probably twisted, example of why copyright is messed up.
Disclaimer, as usual: IANAL. This is not intended to constitute legal advice, if it could be taken in such manner under any interpretation. If you're in the process of being 0wn3d by the Racketeering In America Association, please contact a REAL lawyer.
I think making counterfit CD's or CHARGING for some one elses work IS piracy, but I really am not sure file sharing for free is...
I won't disagree with you but Congress already has. The DMCA, of all laws, changed the definition of "commercial gain" to include "the receipt, or expectation of receipt" of copyrighted material. In other words, Congress specifically made mere trading illegal. People running P2P clients are making infringing material available because they expect to download other infringing material.
burris
That's definitely what we want. We don't want rational justice if it doesn't serve our purposes.
In my limited understanding of the case, I would side with the woman. However, I believe this can be solved with the facts.
This sounds similar to the approach taken by Mitsubishi regarding the Lemelson machine vision patents. I believe Mitsubishi argued that the Lemelson foundation had deliberately embarked on a practice of bringing weak patent claims nationwide because it knew that most defendants could not afford protracted litigation, and then would "settle" by requiring each defendant to purchase a license that cost less than the cost of defense. So virtually every defendant was forced to settle even though they believed the patents had no merit (and, ultimately, those patents were invalidated). My recollection is that the RICO claim did not work, but I am sure that counsel in the RIAA case has review the arguments pretty carefully.
And I am sick of people who think that the objection to actions like this by the RIAA are based on legality alone.
People who focus solely on what is and is not legal (like the RIAA and yourself) are missing the point. Sure what the RIAA is doing is legal. But it is also ludicrous.
By (ab)using the legal system in this fashion, the law must be made ever more stringent, new exceptions and modifications must be introduced and so it grows more complex and (from observation) less flexible.
All that this sort of legalism encourages is
a) pressure by special interest groups to change laws to be more favourable or to leave in place laws that have long past their intended purpose to the detriment of the community at large;
b) business models based more on litigation than real value;
c) an increasingly complex legal structure that becomes less and less a codification of the will of the people and more an artifact to protect those who can best manipulate it.
The law is not an end in itself. It is a means to an end. It should be (and again I own to idealism) a means of defining the desires of those who elected the people making those laws.
Take a step back. The law under a democratic system should be a tool for everyone and usable by everyone, and examples like this are making it increasingly apparent it is not.
In this case though, they're accusing you of stealing $10, they threaten to sue you sue you for $250,000 and offer to settle for $1000.
If you're innocent, your choices are;
Pay them the $1,000.
Pay a lawyer $10,000 and waste a year of your life fighting the case.
Sure if you're guilty it's a generous offer on their part.
But if you're innocent, it's extortion.
It might be legal extortion, but it's still extortion.
-- this is not a
So what is it when someone listens to a song on the radio? Does having a copy of the song so you can listen to it when you want make it theft? What if you record it off the radio?
I'm not saying I think file sharing is not theft, I'm just playing "what if".
I was thinking about "piracy" the other day. If I break into your house and take your TV, it is obviously theft because I have obtained the TV without paying for it and you have suffer the loss of your TV. If, however I make a copy of your copyrighted song, I have still gotten something without paying, but you are not out anything except the money you theoretically would have received for my copy.
When I was a kid, I used to make "unauthorized copies" of lots of programs for my Commodore 64 (I don't do that anymore... I mostly use Free Software or buy the few things I can't get as Open Source). Anyway, the software industry was not really deprived of the money they would have gotten from me purchasing all those games because I never could have afforded them anyway.
To put it another way, if you work minimum wage at Burger King and you download $200,000 worth of music, have you really deprived the music industry of $200,000? No. That's why I find the numbers they spread around about the cost of "piracy" to be misleading.
The RIAA has been threatening prosecution under a law (the DMCA), that gives them a 30,00 dollar penalty at base, or 5 times that (150,000 per incident) if they can prove willfullness. They are being taken to court under RICO, a law aimed at organized crime, yet that law only allows 3x damages, and requires proving criminal intent, which seems to be a lot higher standard than willfulness. It's a good thing for the RIAA that the "cruel and unusual" clause doesn't automaticly apply to civil suits, or that very fact would shoot down the DMCA.
Why do they have a special law that lets them come down harder on file sharers than victims of the mob can fight back against mobsters? Do we really need a law that is tougher on copyright violators than the law is allowed to get on Drug Kingpins, Murder for Hire rings, or general Racketeers?
Who is John Cabal?
The law itself is not valid. The US has a principle of supercedence of law. The higher a levels of law override the lower ones. So A city can't make something legal that is illegal on a federal level, for example. Works the other way too, the right to freedom of speech can't be nulled in a given state, it's at a higher level. Specifically, it's at the HIGHEST level. The constitution overrides all other levels of law. Hence why the supreme court is so concerned with the constutionality of a given law or legal action. Their job is to intrepret teh supreme law of the land, that being the constituion.
Well, one of the ammendments states: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." The key here being the cruel and unusal punishments. The intent and interpretation of this law is that the punishment must fit the crime. You cannot execut someone for anything less than a murder (and a premeditated one at that) because it wouldn't fit the crime.
Well, as you noted, the statutory punishment for copyright infringment is TOTALLY out of line with the crime. If 20 people download a song worth $1 the makimum you can posibly claim it cost you is $20. Theoretically, if those 20 people intended to spend the money on your song, but elected not to because they got it for free, you would have not gotten $20 in sales. Of course, this is all theoretical. Some of those that downloaded may decide to but the song anyhow, and some may not have been willing to pay regardless of if they could not get it for free.
Regardless, it is quite clear that the statutority damages are totally out of line with the crime. Thus the law is invalid, it is a cruel and unusal punishment and in violation of the constituion.
I see this BS copyright "damages" the same as if they decided to charge people $10,000 for each mile per hour over the speed limit they went for tickets. The crime is just as (if not more) harmeless and thus should be in the same class of punsihment (small fine, not billions of dollars).
You clearly have no concept how much money it takes to bring a case before the U.S. Supreme Court. It's like having your wallet Slashdotted for years!
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
No, it IS NOT THEFT. It is what it is and it is NOT THEFT. It is copy right infringement. It is not the same thing as stealing and cannot be given the same penalty.
There is a reason it has its own phrase to describe it. The legal system does not invent phrases to be more descriptive of a particular crime. It tries to be as straight forward as possible.
You don't seem to understand the problems involved with your use of jury nullification. What you don't understand is that all government is broken into administrative and political branches.
You are mistaking your role as a juror for an aspect of the political branch when really it's an aspect of the administrative (all judicial rulings below the supreme court are considered administrative).
Now the reason for laws is to define which behaviors society wants it's citizens to follow. (I assume you live in a "democracy") it's basically the guidelines that everyone is expected to follow so we can all get along, these are set at diffrent times but they are not changed often because the government is concerned over the avarice of people. (ex. Everyone wants a new tv so tuesday they decide stealing tv's should be legal).
They don't have you in the jury box in order to decide policy, they have you in the jury box to decide whether the accused is guilty of a crime (law says a, accused did a = guilty a,b!=guilty). Emotions get in the way of factual judgements, whether they impact your understanding of what the law says or bias your opinion of what the accused did.
So why are you there? Well first there are twelve of you, this is to hopefully weed out an individual's emotional issues regarding an issue. Second it is so the government can't cover up crimes. Twelve people will have seen what the government is doing and be able to speak out against it.
In conclusion don't take advantage of your role as an administrator to accomplish political goals. History has shown that a society can rush to judgement (60 war/anti-war, 30's America almost went communist,45 America wanted Japan destroyed, ). Democracy's slow march has prevented as many disasters as it has caused. I am a firm believer that almost all information should be available for free. Know your rights, know how to be politically active, and if you have the majority behind you and the government doesn't listen, well there's always the second ammendment.
Wrong, the sole reason that we need a jury is jury nullification. The ability for common people to say that the representative were wrong, and were not acting in the best interest of the people when they enacted a piece of legisaltion
After all, a judge is much better at deciding maters of fact and law than any juror is.
Copyright infringement is not a FORM of theft.
Calling it theft "therefore" is not even vaguely valid.
Since your premise is faulty your house of cards falls down. Repeating your statement in capital letters does not make your point any more valid than talking slowly does.
Copyright infringement is closer to an "infringement of a prohibition" [against copying and distribution] than it is to theft, stealing, larceny, pilfering or light-fingered-ness.
It's closer to the breaking of an exclusivity contract [and one in which you have no right to negotiate].
Using politically motivated, inflamatory language ["theft"; "piracy"] does not make it any worse an act in reality.
Corporation, n. An ingenious device for obtaining individual profit without individual responsibility. - Ambrose Bierce
If that were true it still doesn't invalidate jury nullification. Laws are created for a purpose. But language is imperfect, and legislators don't alway have the foresight to understand all possible situations that may meet the wording of the law. (Just look at some of the DMCA cases.) There are cases where the defendent may have technically violated the wording of the law but not the original intent. People should not be punished because of imperfection in language and lack of foresight.
But even beyond that, juries are there to decide the guilt of a person, not whether they violated a law. Whether a person violated the law is not something that a layperson is very good at. Experts are much better at that. Whether the person deserves to be pushished is what citizen decide.