First RIAA Lawsuit to Head to Trial

mamer-retrogamer writes "Out of 14,800 lawsuits the RIAA has filed in the past two years, none have gone to court - until now. Patricia Santangelo, a divorced mother of five living in Wappingers Falls, New York, found herself the target of an RIAA lawsuit and vows to contest it. Santangelo claims that she knows nothing about downloading music online and the likely culprit is not her but a friend's child who used her computer. The RIAA disagrees."

Comments

Blame Game.

[Anonymous Coward]

"Santangelo claims that she knows nothing about downloading music online and the likely culprit is not her but a friend's child who used her computer. The RIAA disagrees.""

Let's blame the technology this time.

Re:Blame Game.

[Anonymous Coward]

<Insert standard RIAA-IS-EVIL rant here>

Re:Blame Game.

[poopdeville]

Sometimes I wonder why people like Ikue Mori even try. Then I remember that it's because they like making music.

I'd like to see this go to a jury.

[gasmonso]

No jury in the world would come down on a person for downloading a few songs when the corporation suing is insanely rich and greedy. Even if she were guilty, I would give her a slap on the wrist at most. Go after the people selling the pirated music!

gasmonso http://religiousfreaks.com/

Re:I'd like to see this go to a jury.

[Seumas]

Sure they would. Just not on a female mother of five. If she were a male, they definitely would screw him over.

Re:I'd like to see this go to a jury.

[woolio]

I thought the jury was only responsible for deciding "guilty/not guilty"...

Isn't sentencing handled separately (at another trial)... I was thinking the judge decided the sentence, but I'm not very sure.

Re:I'd like to see this go to a jury.

[IAmTheDave]

Not necessarily true. I worry about the courts these days - more and more, they show they are on the side of corporations over people (emminent domain, anyone?) Who really knows what the outcome of this will be, but it's gonna be a stunner, and I would imagine have some relatively broad consequences. No?

Re:I'd like to see this go to a jury.

[vsavatar]

This is a civil case, not a criminal one. If the RIAA loses, they will simply appeal. Then it doesn't go to a jury. It goes to a judge. Furthermore, it's highly likely it will go to a judge the first time around. Judges have no problems coming down on mothers of five because they truthfully don't care. I hope she wins on the merits of her case. I would love to see someone stick it to the RIAA. The sad thing is though, she will probably spend upwards for $200,000 litigating this. It's sad when citizens can't afford to defend themselves against large corporations.

Re:I'd like to see this go to a jury.

[Raul654]

(Obligatory IANAL) They (the RIAA) can appeal the a jury's decision only if they can find an error of law in the case (e.g, the judge has to make a reversable error). Furthermore, the appealant court cannot make a determination of facts in the case (under the 7th ammendment to the constitution, this right is resevered to juries in cases of more than $20 unless both parties wave their trial-by-jury right) - judges can only rule on matters of law.

Re:I'd like to see this go to a jury.

[vsavatar]

That's the beauty of law. You can always find SOMETHING to contest. The jury is purely a finder of fact, but if the judge does not allow them to consider something they shouldn't have, or if he does allow them to consider something they shouldn't have, that alone is basis for appeal. There are tons of other reasons to file appearls, but the RIAA has enough time and enough money to litigate that woman into bankruptcy 500 times over.

Re:I'd like to see this go to a jury.

[daigu]

Have you been selected to jury duty? I remember being screened for a jury in a trial where one of the lawyers asked the jury whether they would pass a guilty verdict for battery if a defendent had touched the toe of someone that had asked them not to touch it. Everyone, but me, said they would. Felony conviction for touching someone's toe. I think you grossly overestimate the free thinking capabilities of your fellow citizens.

Re:I'd like to see this go to a jury.

[Turn-X Alphonse]

The woman is being accused of commiting a crime. If the RIAA can prove she commited the crime a jury will convict her. It's that simple, it doesn't matter how many brats she has or if she has a vagina. If the RIAA can convince the jury they will convict her.

Didn't see many juries go "oh that's just kicking someone in the face, not like them murderers" before personally. Major or minor a crime is a crime. The RIAA need to prove it, the lady needs to disprove it.

Re:I'd like to see this go to a jury.

[max born]

That she's a mother of five is inadmissible as evidence and will never be heard by the jury.

It's usual for the judge to instruct the jury "if you believe beyond a reasonable doubt the defendent downloaded these songs .... you must find her guilty otherwise you must find her innocent."

This might sound a bit far out but I have a remote suspicion the reason none of these cases has ever gone to court is because an anonymous person steps in to pay the usual $3000 fine and the defendant, having been threatened with penalties of up to $500,000, willingly signs the non disclosure agreement not to discuss the settlement and the case is thus settled out of court and the RIAA is seen to have won

The anonymous philanthropist is, of course, an unidentified RIAA rep. Let's face it, it's cheaper for the RIAA to fork over the $3000 themselves and pretend they won than face the negative global publicity they'd receive if this actually went to trial.

I agree this might be stretching it a bit but it's the only reason I can think of that after thousands of cases over several years none has ever gone to court and the ones that contest always settle in the end.

I could be completely wrong.

Re:I'd like to see this go to a jury.

[mOdQuArK!]

If the RIAA can prove she commited the crime a jury will convict her. It's that simple, it doesn't matter how many brats she has or if she has a vagina. If the RIAA can convince the jury they will convict her.

Not necessarily. If the RIAA representatives act like total buttheads and really piss most of the jury off, you can bet that the jury members will look for _any_ interpretation of the law, no matter how stretched, that will let them tell the RIAA to F-off.

Of course, most competent lawyers will at least make an attempt to be polite to the jury, so more often than not the jury will go along with whoever appears to be the authority figures. But it's not a 100% sure thing.

Re:I'd like to see this go to a jury.

[bugg]

I'm somewhat amused that nobody else has pointed this out...

It's a civil case, and people are not found "guilty" or "not guilty" in civil matters. The jury will be ruling either with or against the plantiff, and it is up to the jury to determine the amount of damages.

There are plenty of cases where juries have ruled with the plantiff but refused to award damages of more than, say, $1 - a token amount that indicates while the plantiff was correct, the jury did not feel they should be awarded much money.

Re:I'd like to see this go to a jury.

[timeOday]

The sad thing is though, she will probably spend upwards for $200,000 litigating this.

Since the case is a novelty, if she plays her cards right she could get enough in donations to cover the legal bills.

Re:I'd like to see this go to a jury.

[ozmanjusri]

Just not on a female mother of five. If she were a male, they definitely would screw him over.

A male mother of five has bigger problems than the RIAA.

Re:I'd like to see this go to a jury.

[EzInKy]

Have you been selected to jury duty? I remember being screened for a jury in a trial where one of the lawyers asked the jury whether they would pass a guilty verdict for battery if a defendent had touched the toe of someone that had asked them not to touch it. Everyone, but me, said they would. Felony conviction for touching someone's toe. I think you grossly overestimate the free thinking capabilities of your fellow citizens.


So are you saying you would have convicted the defendent of something else are do you feel that he should be allowed to go around fondling people against their will?

Re:I'd like to see this go to a jury.

[Fulcrum of Evil]

The woman is being accused of commiting a crime.

No, this is civil court, which hs a different legal standard and no possibility of jail time.

Re:I'd like to see this go to a jury.

[Anonymous Coward]

Actually, a judge CAN make determinations of fact as well in cases where the parties (defendant) chooses not to have a jury trial.

Re:I'd like to see this go to a jury.

[cryfreedomlove]

Judges have no problems coming down on mothers of five because they truthfully don't care.

That's an interesting assertion. What evidence is it based on?

Re:I'd like to see this go to a jury.

[vsavatar]

In addition to this, it should be noted that the standard of proof in a civil case is not "beyond reasonable doubt". It is a preponderance of evidence, which simply means that there's a reasonably high probability (some estimate it to be around 60%) that the defendant committed the act of which the plaintiff accuses them. In some other cases, the standard of proof is "clear and convincing" evidence (some say around 80% probability). Preponderance of evidence is the lowest standard.

Re:I'd like to see this go to a jury.

[BKX]

Except that if they do it enough times, they'll find themselves involved in a SLAPP lawsuit. That's the real beauty. The RIAA gets one chance to win and maybe an appeal or two but after that, it will appear that they are appealling to bankrupt the defendant by continuous appeals (rather than appealling because there was a real error) and will be sued for SLAPP violations, which they will lose. And then the RIAA will be out real money and the woman will be very rich. That's why they won't appeal but once to each court they can. But you can bet that it'll be good.

Re:I'd like to see this go to a jury.

[MasterPi]

who modded that? i see no redundancy. if i still had my mod points from this weekend i'd give u a funny.

Re:I'd like to see this go to a jury.

[daigu]

It demends on the circumstances - which is exactly what the lawyers did not want to hear. I can imagine circumstances where touching a toe might warrant a felony conviction. However, most circumstances would probably only be a misdemeanor, if anything. The judge - and the lawyers - wanted to argue that the law says touching a toe when you have been told not to is a felony period irrespective of the circumstances. If true, this would mean that most children should spend some time in jail. The bottom line is that the legal establishment wanted prospective jury members to assent to relinquish their rights and responsibilities as citizens and as members of a jury - and most citizens were happy to give it up.

Re:I'd like to see this go to a jury.

[Anonymous Coward]

Sorry to go off-topic, but I'm really curious to know
if in slashdot's history have there ever been a IAAL
(as opposed to IANAL) post.

Re:I'd like to see this go to a jury.

[crankyspice]

Except there's (a) statutory damages available, which specify minimum damages amounts per infringement (17 USC 504). Also, if the RIAA proves their case (to the applicable civil burden of proof, "preponderance of the evidence" -- e.g., something was 51% more likely to have been A vs. B) and the jury disregards the facts and acts on empathy, the RIAA can always move for a judgment non obstante verdicto.

Re:I'd like to see this go to a jury.

[takeya]

"if you believe beyond a reasonable doubt the defendent downloaded these songs .... you must find her guilty otherwise you must find her innocent."

of course the judge conveniently forgets to mention that the jury is also allowed to declare that while guilty, the law she is being charged with is rubbish and effectively sets a precedent of the law being null.

Re:I'd like to see this go to a jury.

[NormalVisual]

I could point you to our illustrious Seminole County (Florida) Judge John Sloop, who one day last year put 11 people in jail for failure to appear. Problem was, those 11 people were actually at the courthouse and had simply been directed to the wrong courtroom, and most were appearing for traffic cases. Two other judges and the arresting officers told that asshole that he shouldn't have had them jailed, and yet it still took several hours before he signed the release orders and longer still until the people were let free.

Does this count as a judge that doesn't care? Better yet, this judge is now trying to defend his actions by saying he was recently diagnosed with ADHD, and as such wasn't responsible for his behavior that day. Best of all, no one with the authority to do so is calling for his resignation and/or revocation of his bar certification, even though the community clearly has wanted him out of that seat for some time.

Re:I'd like to see this go to a jury.

[cryfreedomlove]

I see. In your world you can use that one example to predict the behavior of the entire population.

I once knew a Buick driver who smoked crack. Therefore, if you drive a Buick then you must smoke crack and I can therefore throw you in jail.

That's a nice world you live in.

Re:I'd like to see this go to a jury.

[EzInKy]

It demends on the circumstances - which is exactly what the lawyers did not want to hear. I can imagine circumstances where touching a toe might warrant a felony conviction.


In Kentucky crimes have degrees and such an offense would be a misdemeanor and the defendent might at worse get a 30 day suspended sentence if he had no prior history. Sure it may sound weird for someone to be convicted of touching a toe, but the defendent not only wasn't given consent he was actually told not to do it. If you haven't learned "to keep your hands to yourself" and that "no means no" by time that your an adult then the state owes you an education.

Re:I'd like to see this go to a jury.

[Shakrai]

Sure they would. Just not on a female mother of five. If she were a male, they definitely would screw him over.

<cynic mode>You mean a white female, mother of five.</cynic mode>

Actually, the corruption of the justice system has more to do with money then race. But even given that disadvantage I have a hard time buying that a jury would stick it to an individual who downloaded/shared a few songs. And isn't the burden of proof on RIAA to prove that it was actually her that did it? How the hell are they going to do that based on an IP address?

Kudos to her for fighting them. It's easy for us /.'ers to say that we would do the same -- think of the money she is spending and the nonsense she is going through.

Re:I'd like to see this go to a jury.

[thephotoman]

If they find her either guilty or innocent, it would be a first in Ammerican Jurisprudence. This is a civil court, for the umpteen billionth time. (Mod that part down redundant, plzkthx).

However, your hypothesis does sound rather interesting. They're not making any money on these suits, that much is known. However, it would be interesting to get the facts of a settlement.

Re:I'd like to see this go to a jury.

[Anonymous Coward]

If she downloaded, or failed to control children who downloaded then she is guilty both of a crime, and liable for damages.

Just because a company makes a profit does not give anyone the right to steal from them.

Grow up and lose your stick it to the man mentality. If you haven't already you will when someone steals your work and claims it as their own. Unless of course you never get out of your mum's basement.

Re:I'd like to see this go to a jury.

[Doppler00]

I've never understood why it costs "$xxx,xxx" dollars for legal fees. If they are honestly that much, why not defend yourself? Are lawyers really all that smart? If you already have a college education and can think for yourself, why not defend yourself? Is $200k to a laywer vs. $500k to a corporation if you lose really any different? You would have to declare bankrupcy either way.

I don't believe it is right that you must have to hire a lawyer to defend yourself. There is something wrong with the legal system if a reasonably educated person can't defend themself without shelling out cash to a lawyer. What gives?

Re:I'd like to see this go to a jury.

[Anonymous Coward]

I remember being screened for a jury in a trial where one of the lawyers asked the jury whether they would pass a guilty verdict for battery if a defendent had touched the toe of someone that had asked them not to touch it. Everyone, but me, said they would. Felony conviction for touching someone's toe. I think you grossly overestimate the free thinking capabilities of your fellow citizens.

It all depends on what they touch your toe with...

--
Anonymous Coward

Re:I'd like to see this go to a jury.

[Suppafly]

Apparently you've never heard of jury nulliification before.

Re:I'd like to see this go to a jury.

[Seumas]

Of course they would. All the plaintiffs would have to do is put some starlett out there to sing their closing arguments to the jury and they'll be sold.

Re:I'd like to see this go to a jury.

[Anonymous Coward]

Sure there is at least one lawyer hangs out here. His sig is something like
I'm a lawyer but not your lawyer and this is not legal advice

Re:I'd like to see this go to a jury.

[jrockway]

> There is something wrong with the legal system if a reasonably educated person can't defend themself without shelling out cash to a lawyer.

This actually means the "system" is working. Lawyers make laws. Lawyers also profit from interpreting and understanding the law. Obviously it's in the financial best interest for lawyers to make the law unnecessarily complex... that keeps them in business and in control. Why would they ever give that up?

Re:I'd like to see this go to a jury.

[karnal]

Sometimes, it's not what you know, but who you know that gets you ahead in this world.

Re:I'd like to see this go to a jury.

[deblau]

There are tons of other reasons to file appearls, but the RIAA has enough time and enough money to litigate that woman into bankruptcy 500 times over.

Two words: pro bono. There are tons of lawyers out there itching like mad to take this case. And lawyers are supposed to spend a certain percentage of their hours working for free, in order to 'give back to the community'. Seriously.

Re:I'd like to see this go to a jury.

[Anonymous Coward]

Maybe she got tired of guys after 5 of them knocked her up and leaving her. Leading to her having a sex change. That would give you a male mother of 5.

Re:I'd like to see this go to a jury.

[Achromatic1978]

We had a Supreme Court judge who was diagnosed with sleep apnea. Several cases both the prosecution and defence noted that he had to be roused from him slumber by court officials. But of course we couldn't have him sacked. Not that that would have been fair as such, but there's a balance to be struck. With media 'coverage'/harassment, he resigned. Eventually. After several months. Most of his cases are now up for retrial, at what cost?

Re:I'd like to see this go to a jury.

[arminw]

.....If she downloaded, or failed to control children who downloaded then she is guilty both of a crime, and liable for damages. ......

It seems that the only evidence in all of these cases tying a specific user to an act of copying is an IP address that was supposedly used by the alleged infringer. Why do ISPs keep records of who has what IP address when at all? Especially in a DHCP system, what is the point of keeping such information more than a day or two, if at all? If the ISPs did not keep such records, there would be no way to pin anything on anyone. It seems that ISPs are conspiring to keep the RIAA suing their own Internet customers. Perhaps some ISPs could get a lot of subscribers by loudly advertising that they do NOT keep IP assignment information.

IP addresses can be spoofed and so even with the ISP information, can it really be proved that a particular household, let alone a particular person in that household was even connected to the Internet at that time? Just because the ISP log says that IP address xxx.xxx.xxx.xxx was connected to John Doe at 4:14AM does that give enough evidence to charge someone half a million dollars? I certainly hope that the RIAA is made to prove WHO actually did the downloading is based on more than just one log entry in some ISPs records.

If someone parks their car in front of my house at night and downloads a boatload of RIAA crap into their laptop over my wireless connection, does that prove I or anyone in my house did it at 3:22AM? Is there a law that says I am responsible for who might use my Internet connection, especially without my knowledge? In some apartment houses, it is possible to wirelessly connect to several access points and download all sorts of files. How would it be possible to determine WHO used a given one of these at a certain time? I hope that lady's lawyers are able to cast serious doubt on the connction between an IP address and possible users of that at any given time.

Re:I'd like to see this go to a jury.

[Anonymous Coward]

Yes!

Step 1: Go to court
Step 2: RIAA win
Step 3: Contest the sentence, wich will be like 5 million fee and 100 year of jail if the girl downloaded like 10 song...
Step 4: Supreme court render the DMCY penality not on pair with the current, phisical world, similar crime. (stealing music cd in the corner shop would get you 1 night in jail and 50$ fee, and a few hours to help community).
Step 5: If a law sentence is not on pair with similar crime, then it's not for the good of justice. if a part of the law do not result in the "good of justice", the process of creating and approving the law was flawed, and the law, in it whole, must be reviewed to be considered legal again...

Go RIAA, screw yourself at last.

Re:I'd like to see this go to a jury.

[NormalVisual]

Please re-read the following quote from my post:

"Best of all, no one with the authority to do so is calling for his resignation and/or revocation of his bar certification..."

I think it speaks for itself that the judges and lawyers on the oversight board responsible for judicial conduct have consistently failed to see Sloop's behavior as something worthy of any real discipline. This is not the first time he's done something stupid, and he's still on the bench, therefore there's a tacit acceptance of his behavior by his peers. It's been my experience that while some judges are actually interested in justice for its own sake (for instance, the two other judges that were attempting to get the people in question released), others are of the mind that those black robes somehow make them superior to the "little people" and are thus above reproach.

Re:I'd like to see this go to a jury.

[Highrollr]

Couple things.

First, you don't have to find a prejudicial error to appeal. If you did, every single appeal would win. All you have to do is allege a prejudicial error. As another poster has commented, this is at most a speedbump, not a hurdle.

Second, the right to a jury trial isn't reserved in all cases. Essentially, you get a right to jury trial if a judge decides that your case is sufficiently similar to certain grounds for suit that existed in Merry Olde England back in the 1700s (no, I didn't just make that up). The thing is, judges aren't historians and thus the vast majority of them have no idea whether current cases are sufficiently analogous to the ones from the 1700s. These cases make for surprisingly entertaining reading as you watch the judges muddle through history, logic, and law trying to decide if there is a right to jury trial.

Re:I'd like to see this go to a jury.

[Unordained]

The jury is purely a finder of fact
And then there's jury nullification, which nobody wants you to know about.

Re:I'd like to see this go to a jury.

[Theatetus]

The woman is being accused of commiting a crime.

No, she's not.

She is the respondant against whom the petitioner is seeking relief. If she had actually stolen something from these people, the state would prosecute her; as it is, she may or may not be found liable for damages done to the petitioner. Ironically enough, she would probably be in better shape if this *were* a criminal matter: criminal convictions require demonstrable harm, intent, and proof beyond a reasonable doubt. Civil actions merely require that the harm of a false victory for her outweighs the harm of a possible false victory for RIAA by 1% (to use the 51% / 49% description someone mentioned).

And incidentally, despite the fact that the media keeps saying the tortious action was "downloading", the actual tortious action by statute was *uploading*.

Re:I'd like to see this go to a jury.

[E8086]

"How the hell are they going to do that based on an IP address?"

First thing to do is challenge how they got the IP, oh wait, it's IPA now, they're trying to hijack the use of "IP". We all know they're not doing any of the work themselves, they're just hiring "agents" who secretly enter people's computers to search for music files. If another company said it's true, then it must be true because large corporations and their contractors would *never* ever even think of saying anything that isn't true or do anything moraly questionable, like . It's possible they're borrowing the server IP logs of some RIAA bashing message boards, adding a couple songs, file sizes and time stamps and suddenly it goes from "you said something bad about our cartel" to "you're stealing sound". Ok, so it may not happen that way, but does snyone really know how the RIAA gets that information? People are challenging breathalizers because the firmware use closed source. It's all about the money, places in Vegas used, possibly still try, to rig slot machines to pay out fewer jackpots resulting in fewer payouts and more PROFIT. It may be unlikely, but still slightly possible.

And the claims of lost billions due to what they call "piracy". I'd like to see some proof of that too. Yes, there are people who borrow audio files using the Internets, but does anyone really know how many and how much revenuse is lost because of it? I know people with large music collections they didn't buy, but I know more people with hundreds of pounds of records and CDs. My favorite stats are $250billion lost and 3% of sales lost. That's like claiming 3% of their sales is $250billion, do a little math and see that those "stats" are very questionable, they may be large corporations, but I don't think they're worth that much.

They make up stats of lost PROFITs and inflate claims of "piracy" and like to pull a SCO and sue people to offset lower sales due to poor quality products. Their cases need to be thrown out until they produce some real proof.

As for a jury deciding for defendant, not everyone reads /. and thinks poorly of the RIAA. It's possible the jury will be stacked with people with hundreds of records who will want to fry anyone who hasn't spent half as much as they have on music or believe some RIAA claims that "piracy"(ARRRG!!!) *not* price fixing is the cause of high CD prices.

Re:I'd like to see this go to a jury.

[slashdotnickname]

I worry about the courts these days - more and more, they show they are on the side of corporations over people (emminent domain, anyone?)

That's a bad example. The eminent domain case you're referring too was decided by judges and not by a jury of peers that this Mom vs RIAA civil case will most likely face. Also, in the eminent domain case, the winning side was a town and not a corporation... sure, you can claim that a corporation was indirectly involved too, but a town run by publicly elected officials is a different* beast than a corporation.

* different does not mean better or worse

Re:I'd like to see this go to a jury.

[PHPfanboy]

"sometimes" denotes an occasional event. I think the correct word you wanted is "normally" or even "usually".

Re:I'd like to see this go to a jury.

[cpt kangarooski]

Sure there is at least one lawyer hangs out here

Seems unlikely to me.

Re:I'd like to see this go to a jury.

[Anonymous Coward]

Sorry to correct, but as both a computer engineer and a lawyer, your analysis is good, but a little bit off base. Civil cases are a lot simpler than you suggest. They're decided on a balance of probabilities, i.e. >50%. Straight up, who is more likely to have caused the wrong? Preponderance considerations come into a lot more specific issues.

Re:I'd like to see this go to a jury.

[cpt kangarooski]

And incidentally, despite the fact that the media keeps saying the tortious action was "downloading", the actual tortious action by statute was *uploading*.

Actually the statute considers reproduction to be infringing, regardless of which direction you do it in. And courts have found both uploading and downloading to be infringing.

Re:I'd like to see this go to a jury.

[Anonymous Coward]

The redundancy was were he was thinking about the same thing.

Re:I'd like to see this go to a jury.

[maryjane gonjasoft]

i would donate to help her fund her lawsuit, i know between all of us, we could pay the bill and tell the RIAA to kiss off.

Re:I'd like to see this go to a jury.

[Ath]

That she's a mother of five is inadmissible as evidence and will never be heard by the jury.

The first 4 questions she is asked by her lawyer will be: 1) What is your name? 2) Where do you live? 3) Are you married? 4) Do you have any children?

No idiot plaintiff's attorney would object to such seemingly innocuous questions because they would look stupid. A judge would just glance at them in bewilderment. The jury will be instructed, of course, on which facts to focus in the instructions they are provided.

Re:I'd like to see this go to a jury.

[tehshen]

That's not a problem, that's a whole new career.

Re:I'd like to see this go to a jury.

[lightspawn]

Two words: pro bono. There are tons of lawyers out there itching like mad to take this case.

I thought pro bono meant you were for extending copyrights indefinitely.

Re:I'd like to see this go to a jury.

[Anonymous Coward]

Flamebait? Why the hell does he get flamebait? Because of the white comment? That was obviously a comment on the sad stat of our justice system.

Somebody has no sense of humor this morning.

Re:I'd like to see this go to a jury.

[Anonymous Brave Guy]

Judges have no problems coming down on mothers of five because they truthfully don't care.

I think this is the same case covered on Slashdot a few weeks back, isn't it? In that case, the judge definitely does care, and indeed gave the RIAA lawyer a pretty good roasting about their dubious legal shenanigans in court the first time. The transcript was hilarious, in a sad-but-true kinda way.

Re:I'd like to see this go to a jury.

[dwandy]

Legal fees seem to be a pretty sizable chunk of settlements in general ... and legal fees seem to be a growing chunk of doing business in general. Who do you think really pays for that?
In my IANAL opinion, when indirect costs of doing something are a significant percent of the cost of doing said action (in some cases the single largest part) you need to at least consider that the system is broken ... legal fees are by definition indirect, since the everyday actions of normal businesses and people has nothing to do with lawyers ... and yet this cost is very high; conclusion? the system might be very broken.

I would agree with the GP: When an ordinary person is no longer able to understand or argue the law, it has become too complex, and is no longer for and of the people. That some lawyers can pollute the law to their own financial advantage is abhorent.

Re:I'd like to see this go to a jury.

[Anonymous Coward]

Jury nullification only exists in criminal cases. In a civil case, if the jury comes up with a verdict that no "reasonably jury" could have reached, the verdict can be set aside.

Re:I'd like to see this go to a jury.

[mpe]

I've never understood why it costs "$xxx,xxx" dollars for legal fees. If they are honestly that much, why not defend yourself? Are lawyers really all that smart? If you already have a college education and can think for yourself, why not defend yourself?

At least part of the problem is "legal professionals" who dislike litigants in person. They probably can't cope with someone giving an engineer's (as opposed to a lawyer's) interpretation of a statute...

Re:I'd like to see this go to a jury.

[TheRaven64]

I would really like to see her found guilty, fined $0.99 (the marked value of one song, electronically transmitted), and neither side awarded legal fees. She almost certainly has a lawyer working pro bono, the RIAA have an expensive legal team.

Re:I'd like to see this go to a jury.

[mpe]

Have you been selected to jury duty? I remember being screened for a jury in a trial where one of the lawyers asked the jury whether they would pass a guilty verdict for battery if a defendent had touched the toe of someone that had asked them not to touch it. Everyone, but me, said they would. Everyone, but me, said they would. Felony conviction for touching someone's toe. I think you grossly overestimate the free thinking capabilities of your fellow citizens.

Was asking such a question appropriate in the first place? Presumably this is was a criminal case where the standard is ment to be "innocent until proven guilty beyond reasonable doubt", which should require rather more than one person's unsubstantiated word.
Anyway about the only good reason to exclude a person from a jury is if they know or are closely related to anyone involved in the trial. Possibly also if they have made previous public pronouncements that indicate bias towards assuming the defendant is guilty.

Re:I'd like to see this go to a jury.

[dwandy]

I agree this might be stretching it a bit but it's the only reason I can think of that after thousands of cases over several years none has ever gone to court and the ones that contest always settle in the end.

I think the reason is just plain old math - which one's cheaper?
Option-A: Spend $10k or more on lawyers plus month(s) years(s)? of your life in court, plus the possibility of still losing and paying a Very Large Fine. Best case: Out $10k plus lost life-time + added stress.
Option-B: Fork over $3k now, and get it over with. No chance of further expenses, no stress, no loss of lifetime.

It's the same reason that many companies used to settle small (sub-$million) claims w/o going to court: on the surface it's cheaper to settle then to fight, even if you win ... of course that just sets you up for repeated extortion, so most will fight them now ...

In my IANAL opinion the legal system is broken. It's way too expensive for ordinary people to engage in legal action: only corporations and the rich can regularly engage in asserting their rights or viewpoints on others.

Re:I'd like to see this go to a jury.

[mpe]

Apparently you've never heard of jury nulliification before.

Probably because many "legal professionals" don't want it too well known that it can be possible for ordinary people to effectivly veto a law they feel is either unjust or is being used unjustly. Nor would law enforcement or legislators, since such an outcome is effectivly telling these people tht they arn't doing their jobs properly.

Re:I'd like to see this go to a jury.

[Kjella]

I know explaining the joke isn't funny, but for all the people that have sigs turned off and go "WTF???", here's cpt kangarooski's sig:
--
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.

Re:I'd like to see this go to a jury.

[Andrewkov]

Judges have no problems coming down on mothers of five because they truthfully don't care.

Maybe I'm a cold hearted bastard, but I really don't see the logic as to why the number of kids a person has should effect whether they are allowed to commit crimes or not. Or whether they're male or female, or whether they're married or divorced.

I don't agree with the RIAA suing downloaders, but I don't think it should matter if you have kids or not.

Re:I'd like to see this go to a jury.

[Anonymous Coward]

Sure it may sound weird for someone to be convicted of touching a toe, but the defendent not only wasn't given consent he was actually told not to do it. If you haven't learned "to keep your hands to yourself" and that "no means no" by time that your an adult then the state owes you an education.

No. If you are an adult and still don't underatand the difference between 'touching a toe'
and 'molestation', then your parents owe you a retroactive abortion. Good riddance to idiots
like you.

Re:I'd like to see this go to a jury.

[Anonymous Coward]

I thought pro bono meant you were for extending copyrights indefinitely.

No, that would be pro mickey.

Re:I'd like to see this go to a jury.

[Maximum Prophet]

No jury in the world would come down on a person...

You're not black, are you?

Seriously, the outcome of any trial is at least 10% random, so no matter how right you are, there's always a chance of losing.

Re:I'd like to see this go to a jury.

[Daedius]

MOD THIS PARENT UP FOR TRUTH!

Re:I'd like to see this go to a jury.

[AndersOSU]

Maybe, but that doesn't mean that they won't throw people off the jury for any reason they can think of.

My anecdotal evidence: I used to work in a medical research lab, and was informed that if I were ever selected for criminal jury duty to answer the question, "What is your profession?" with, "I work with DNA." I know several people who were dismissed for this very reason, presumably because they knew too much about evidence.

Re:I'd like to see this go to a jury.

[AndersOSU]

But Law & Order, from which the vast majority of both the slashdot crowd, and the public at-large gather the bulk of their legal knowledge, is doing just that.

Re:I'd like to see this go to a jury.

[DickBreath]

All the plaintiffs would have to do is put some starlett out there to sing their closing arguments to the jury...

Which filesharing network is most likely to have a download of this song!?!

Re:I'd like to see this go to a jury.

[japhering]

There are tons of other reasons to file appearls, but the RIAA has enough time and enough money to litigate that woman into bankruptcy 500 times over.

And just how many of those "tons" of lawyers are willing or able to work 100% of their time for the next 3-5 years? I would guess the percentage is extremely small. The RIAA lawyers will bury their opponents with motions to be responded to and out rageous discovery requests.

Re:I'd like to see this go to a jury.

[PriceIke]

pro bono means you are a U2 fan.

Re:I'd like to see this go to a jury.

[Anonymous Coward]

Okay retards, listen up. I browse (logged in) with sigs disabled to avoid spamming and stupidity. I am so very tired of seeing "sigs" that are TYPED IN EVERY TIME. Save yourself some trouble and put that lame sig in your user settings. You will be doing the world a favor by allowing those of us who want to avoid your tacked on "humor" to do so.

Re:I'd like to see this go to a jury.

[giorgiofr]

Welcome to a world where *everything* you can/cannot do is based on how stupid or unlucky or "disadvantaged" you are. Where do you think your taxes go, man? Why do you think it's so fashionable to side with the loser and oppose the corp.?

Re:I'd like to see this go to a jury.

[giorgiofr]

So if I step on your toe while in a crowded train you expect me to GO TO JAIL? Are you crazy or what? Oh... Kentucky... I see... sorry.

Re:I'd like to see this go to a jury.

[Reverend528]

Let me guess... They then let everyone except for you go home while you had to spend the next 10 weeks listening to evidence.

Re:I'd like to see this go to a jury.

[poot_rootbeer]

Judges have no problems coming down on mothers of five because they truthfully don't care.

And judges SHOULDN'T care. Their role is to arbitrate matters of law, not make decisions based on the wealth level, pureness of heart, or appearance of either party to the case. "Justice is blind" is not intended as a derogatory statement.

I hope she wins on the merits of her case.

I would like to see that too... but if her planned defense centers on "Uh, it wasn't my kids. It was, like, other kids or something," I don't think she stands much chance of winning on the merits.

Re:I'd like to see this go to a jury.

[Kierthos]

Heck, if her defense is that one of her kids' friends did it, then they're perfectly justified questions.

Do you have any children?
Do they bring their friends over a lot?
Do they use the computer when they're over?

Kierthos

Re:I'd like to see this go to a jury.

[Anonymous Coward]

Off with their heads!!!!

Re:I'd like to see this go to a jury.

[The_Wilschon]

Sorry to correct, but as a physicist, your jargon is a little bit off. Probabilities deal with future events, the outcomes of which are unknown. What we are discussing here is the likelihood.

Re:I'd like to see this go to a jury.

[MindStalker]

Apparently there have been some serious studies concerning this "loss of revenue" of course the results always depend upon whos paying for the studies. But most of the independant studies show that loss of revenue is mainly due to economic trends, then secondly due to less new albums being produced. I read somewhere how in one year the industry released X% less albums that year than normal and had a less than X% sales loss (this was in a year of stable economic trends) and actually had a slight gain in the sales per album ratio. Of course the industry screamed and hollered that year as well.

Re:I'd like to see this go to a jury.

[mrsbrisby]

The jury is purely a finder of fact,

No they're not.

This is one of the biggest lies that Judges and Lawyers to this day try and convince jurors.

Jurors not only have the right, they have the duty to decide whether the Judge is being a cockhead, the law is stupid, or that dumb slut had it coming.

Next time you think Jurors are required to decide on facts, or don't have the ability to rewrite law from the box, I urge you to pay attention at the next Michael Jackson molostation case, or if ever OJ Simpson decides to remarry.

Re:I'd like to see this go to a jury.

[compro01]

I thought pro bono meant you were for extending copyrights indefinitely.

no, that would be pro-sonny bono.

pro bono (actualy pro bono publico is the full term) is latin meaning "for the public good". basicly, the lawyer is working for free on the case, as a public service, usually on a case that is gonna make said lawyer well known among likely future clients who will be paying (such as this case)

Re:I'd like to see this go to a jury.

[Anonymous Coward]

But you see, that's the fault of filesharers too. All the artists see all the stealing gone online, and their desire to write and produce new music is destroyed. So the record companies get less new music out of their artists and can't produce as many Britney clones as they wanted to.

Re:I'd like to see this go to a jury.

[Anonymous Coward]

WRONG! An accident is an accident.

Hitting someone with your car is an accident if you had no intention and did everything possible to avoid the situation/situation could not be avoided.

Hitting someone with your car because they just stole the stereo out of it and will not stop running away when you tell them to is completely another matter.

How does one address your assumptions of Kentucky? Oh... Dumbass slashdotter...I See.....sorry.

Re:I'd like to see this go to a jury.

[Anonymous Coward]

Sorry to chip in, but as a probabolist, I find any worldly interpretaton of certain measure functions defined on sigma-algebras misleading at best, especially in a court of law! How can these courts expect juries to use "probability" and "likelihood" when even the most basic concepts of these ideas (measure, sigma-algebras, random variables, etc.) aren't understood by any of them?! Let me guess, use the "gut instinct" version of probability that we all know and love. What does *that* mean?!

Re:I'd like to see this go to a jury.

[MindStalker]

Get behind me satan!

And lets form a congo line!

Re:I'd like to see this go to a jury.

[kidcharles]

I was on a jury once in a questionable civil case about a minor car accident that happed 3 years prior to the trial. We awarded the plaintiff ~$11,000 which was well short of the $2 mil that was asked for by her attorney. Basically we decided that there was some culpability, but the $11,000 was probably not even enough for attorney's fees. Even that would have been covered by the defendant's insurance. So the plaintiff "won", but not really.

Re:I'd like to see this go to a jury.

[fliplap]

IPA? To hell if I'm going to let you hijack India Pale Ale!

Re:I'd like to see this go to a jury.

[Anonymous Coward]

Sometimes you are a dick.

Re:I'd like to see this go to a jury.

[Fareq]

Actually, according to yesterday's Wall Street Journal (I haven't got a subscription, and can't remember the name of the site that makes it so you don't need one...) there was an article entitled Trial-less Lawyers that talked about how legal firms were actually trying very *very* hard to find ways to donate their junior lawyers time in cases that would likely involve actual courtroom time, because there are so [comparatively] few civil trials these days...

So, I suspect for something like this, there would be some reasonable availability of free-or-discounted legal help.

Also, once an attorney agrees to work pro bono on a case, he generally sees it through to the end.

Re:I'd like to see this go to a jury.

[networkBoy]

So long as you understand that most judges are elected officals, and as such are eligable for a recall. Start a petition to put a recall on the next election if the oversight board won't do anything about it.
-nB

Re:I'd like to see this go to a jury.

[Smallpond]

Imagine a non-technical jury trying to follow this:

This woman stole our IP.

How do you know?

Because her ISP gave us her IP.

Re:I'd like to see this go to a jury.

[corellen]

umm you are prolly thinking narcolepsy, sleep apnea is when you are asleep and stop breathing, narcolepsy is to be brief falling asleep some what randomly and abruptly. http://www.ninds.nih.gov/disorders/narcolepsy/narc olepsy.htm http://www.ninds.nih.gov/disorders/sleep_apnea/sle ep_apnea.htm

Re:I'd like to see this go to a jury.

[Anonymous Coward]

Obviously the g.p. was right as its now a +5 funny. How is commenting on moderation offtopic?

Re:I'd like to see this go to a jury.

[Alucard454]

disclaimer: IAAE (i am an economist) (god i hate acronyms)

I actually did a study like this, and though i doubt it was one of the ones you read, i did indeed examine the relationship between sales and new album releases. in fact, my final model found three statistically significant variables that accounted for most of the variation in record sales (at the 95% confidence level).

those three variables were %change in GDP (year on year), Personal Consumption Expenditures (which helps account for people's changing spending habits in times of economic uncertainty and such), and New Album Releases.

I ran dozens of different models in an attempt to capture the "piracy" effect, and after two years was forced to conclude that this effect, if it exists at all, is indistinguishable from random noise. in other words, it is insignificant.

I am continuing my research into this area and I have actually recently found a couple of additional economists interested in helping my research, so hopefully we will be able to contribute more to the literate on the subject in the future. regardless, there is already an awful lot of evidence that at least makes us seriously question the veracity of the industry's claims, and makes us wonder how the flying fuck they justify their rather ridiculous conclusions.

Re:I'd like to see this go to a jury.

[Shakrai]

Imagine a non-technical jury trying to follow this:

Then it's up to her lawyer to explain it to them in a way that makes sense. I was called to testify at a Grand Jury once over a computer related affair. Granted, Grand Jury is different then Petit Jury (Grand Jurors get to ask questions) but you'd be surprised at some of the technical related questions they asked me. I also feel pretty confident in saying that they understood all of my answers. This was in the middle of a rural farming county too -- so you can't even say that it was a jury pool of techies.

People aren't as dumb as you might think. Have some faith and hope in the system.

Re:I'd like to see this go to a jury.

[OldManAndTheC]

I thought pro bono meant you were for extending copyrights indefinitely.

No, it means you can ski well enough to go around the trees.

Re:I'd like to see this go to a jury.

[Pranadevil2k]

I have to wonder.. How will the RIAA calculate their damages? Surely not from this poor lady's hard drive. Assuming she is even the one to have downloaded music (which is pretty unlikely) she could just delete anything from her system, since there doesn't seem to be any kind of Siezure order mentioned.. Then the RIAA comes to court with a hard drive with no music on it claiming there was music at some point but they're not sure how much, when, where, or why, but that it somehow cost them money that they want back. Even if she has songs on there, it can't amount to much money. Certainly not enough to offset the court fees. 10 CDs can be $150, but all this waiting just to get to court, and the trial itself, is probably costing them an assload more than that. If it isn't worth doing, do you think they'll continue to pursue the other cases?

Re:I'd like to see this go to a jury.

[roguebfl]

A male mother of five has bigger problems than the RIAA

What haven't you ever heard of "Mr Mom" used before to adress a father thatis the primary caregiver for the children?

Re:I'd like to see this go to a jury.

[Thuktun]

I thought pro bono meant you were for extending copyrights indefinitely.

Or in favor of suing bands that sample your work, then going on tour using samples of other people's media in your own show.

http://l2g.to/negativland/u2/

Re:I'd like to see this go to a jury.

[The_Wilschon]

Sorry to interject, but as a complete dickhead, I find your invention of the word probabolist completely stupid. Additionally, the person I was replying to with my minor correction was not a jury, or a member of a jury. He or she identified him or herself as a computer scientist and a lawyer. As such, I would expect that they would understand such concepts as liklihood and probability. I would expect this because such concepts are frequently important to both computer scientists and lawyers. Not, perhaps, as important as they are to an experimental physicist, which might explain the mistake. Regardless of the cause of the mistake, it is an important distinction, and I found it worth correcting.

Re:I'd like to see this go to a jury.

[honestmonkey]

I've known this for a while but I wish I had realized it earlier. A long time ago (maybe 15-20 years) I was on a marijuana possession case. In the jury selection part I told them I didn't believe possession of marijuana should be a crime. There was some hullabaloo because I would have otherwise been on the jury and I guess the lawyers didn't want to waste a dismissal on me. I was even supposed to go to the judge's chambers, but at some point they worked things out and just let me leave. If I had thought about it, Id have kept my mouth shut and just gone on the jury so I could have helped to acquit the guy.

The charges were something like possession of between an ounce and 50 pounds (really!). Turned out it was closer to 50 pounds and the guy was a dealer. Who knew?

Re:I'd like to see this go to a jury.

[Anonymous Coward]

I could be completely wrong.

No, just an idiot.

I guess you really do...

[Fiss]

...

Get what you pay for :-p

Song choices

[jimmyhat3939]

I think, perhaps, the criminal authorities should be pursuing this poor woman, for her choices of music to download:

• Lit "Happy"
• Incubus "Nowhere fast"
• Third Eye Blind "Semi-Charmed Life"
• UB40 "Can't Help Falling in Love"
• Godsmack "Whatever"
• Foo Fighters "Breakout"

What? No Limp Bizkit? No Britney Spears? No Kanye West?

Re:Song choices

[ardyer]

That song choice also provides strong evidence that it was not her that downloaded the music....

Re:Song choices

[Seumas]

Right, because there are scands of thirteen year old girls out there downloading UB40.

The fact is, this chick doesn't have a leg to stand on. YOU are the parent and YOU are the owner of the house and YOU are responsible for what goes on there. You can prevent your daughter's teenage boyfriend from raping your pre-teen daughter with a little bit of observation and responsible parenting. You can prevent your child from doing lines of coke off the coffee table. You can prevent your childrens' friends from running a meth lab from your basement. You can prevent your children and their friends from watching porn over cable television. You can prevent a bazillion things and you can most certainly prevent (and even if you cant, then at least be responsible for) people doing illegal things on your computer in your house.

If this were anything other than computers and music, we'd be tearing this chick a new asshole for terrible parenting, lack of responsibility and so on.

Re:Song choices

[Wyatt Earp]

Uh...no...

The Home Owner is not responsable for everything that goes on in the home. If Timmy is shooting smack in his bedroom and goes down for it at school because of a drug test or an arrest, Mom and Dad don't do the time.

I think the whole parenting/privacy thing of kids and computers got handled here after Columbine on /.

Re:Song choices

[Anonymous Coward]

You realize that in none of the examples you quoted is the mother guilty of any criminal offense?
Is that a subtle mesage there on your part or what? If she is knowingly aware and does nothing to prevent it there might be some violations of law (accessory or negligence are my only guesses)... but if she's not aware and it happens in her house - she didn't do it and she's not liable, its that simple.

Kevin

Re:Song choices

[eric76]

From Electronic Frontier Foundation, Memorandum, Date: November 1, 2005, To: Defense counsel in RIAA and MPAA individual file sharing suits, Chris Conley, EFF Legal Intern, Re: parental Liability for Copyright Infringement by Minor Children

Plaintiffs, usually record companies, may attempt to bring claims against the parents of children who allegedly infringe copyright via either indirect copyright liability or state parental liability statutes. This memorandum is intended as background research aimed at summarizing the relevant legal principles.

A claim of indirect copyright infringement may be premised on the theory of vicarious liability, which requires the right and ability to control the infringing action and a financial interest in the infringement, or contributory infringement, which requires knowledge of and participation in the infringement; each of these elements may be challenged by a parent. Claims based on state parental liability statutes will depend on the precise statute being considered, but in many states the statute may not apply to actions based on copyright infringement or may be preempted by the Copyright Act based on either express or conflict preemption.

For more details, read the whole thing.

Re:Song choices

[fossilstar]

When I handed abuse mail for an ISP a few years back, Incubus accounted for nearly all such complaints, more than all other artists combined. I'm not familiar with their music, really, but they're real bastards to their fans.

Re:Song choices

[Seumas]

Bah. Everybody knows the EFF is made up of a bunch of utopian electro-hippies that worship satan and eat our children. Especially that former musician guy that runs it. Any real god-fearing American also knows that EFF secretely means Evil Fornicating Freaks.

Which reminds me . . Christmas is coming up - time to send in another donation to EFF... They need all the dead babies and goats blood they can get! ;)

Re:Song choices

[Anonymous Coward]

That all will work perfectly if the kids are robots and do as they are told. You can not spend 24/7 with your kids and you wouldnt want that either. You can TRY to prevent but you can NOT prevent evertyhing and if you think that then you have no clue in what your kids are doing and you are the worse parent ever. Kids are humans and as such they have their own will and do things their way (amazing right?). How on earth do you think you learnt anything in this world or were you preprogrammed from birth???
You can NOT prevent all that you are saying there. It is impossible. Dont try to say that it is possible because its not. I am not saying that you shouldnt try but kids can always find ways around things. Most kids today knows how to turn off filters and firewalls while their parents dont know that so can you really prevent downloading music? No, so dont sit there and think you can. Get yourself some kids and you will know you cant prevent everything.

And if that first you say is true then Bush IS responsible for torture and war crimes and other crimes against humantiy but if he can say he is not then this mother can say she is not responsible for what her kids are doing (and perhaps doing it against her rules but that we dont know anything about so what else is she to do oh master of rasing kids?).

Re:Song choices

[eltonito]

$4.2 Billion lost *world-wide* to piracy?

What's the US share of that... 5%?

Of course the RIAA disagrees...

[Rabbi T. White]

When you're in the buisness of fear-mongering, backing down from things - even when it's completely irrational - just isn't an option. They'll keep repeating their truth until everyone believes it.

Re:Of course the RIAA disagrees...

[Anonymous Coward]

No. They'll hire very expensive lawyers to destroy this woman's reputation. What the world thinks of the woman Kobe ass-raped will be nothing compared to what happens to her when they're through. Don't underestimate pure evil.

Re:Of course the RIAA disagrees...

[EEBaum]

They'll keep repeating their truth until everyone believes it.

14,800 down, 47,600 to go?

Re:Of course the RIAA disagrees...

[DarkHelmet]

They'll keep repeating their truth until everyone believes it.

Kind of like the Bush administration juxtaposting Al Qaeda and Saddam.

My question for the legally saavy:

[merc]

Would this lawsuit set any type of precedent, or is it unique in any way?

Re:My question for the legally saavy:

[ZachPruckowski]

I'm not legal savvy, but it'll set a big unoffical precedent. If this woman loses, it's all the more reason for someone to settle with the RIAA if/when they come knocking. If she or anyone else gets off, then there will be more people willing to fight the RIAA suits. As I see it, the RIAA will lose if it has to cover thousands of trials and the associated legal fees. They have lots of lawyers and money, but hopefully we can get pro bono lawyers for the defendants. And even if they win most of the trials, the people are too poor to pay the judgements, and the trials will be a financial loss for the RIAA, since whatever they get off the average person will be less than their total legal fees.

Re:My question for the legally saavy:

[Anonymous Coward]

IANAL, but i think it would. This is a unique case - like the blurb says, all other cases brought by the RIAA have been settled out of court. Seeing as how this is the first case to go to court, the precedent it sets could be very important. It could set a positive (from my point of view) precedence, showing the RIAA is a bunch of money-hungry corporate whores OR it could go wrong and jeopardize our internet freedom. But that's just what i think. Who knows until it goes to court?

Re:My question for the legally saavy:

[patio11]

Its highly unlikely to do so. The overwhelming majority of lawsuits don't -- they're settled out of court or the opinions are not published. The precedent setting lawsuits are the ones that engage novel legal issues, of which I see none here. IANAL (I just work for them), IANAL in that jurisdiction, IAN your lawyer, etc.

Re:My question for the legally saavy:

[wile_e_wonka]

IANAL, but I am a law student.

The case would set precedent. The strength of the precedent, however, depends on how far the case goes. If the district court says "X," then it needs to be consistant with "X" in the future (unless it has a darn good reason not to be). But the case might get appealed. The court of appeals sets precedent for itself and all courts lower that are in the same circuit. The Supreme Court sets precedent for all circuit and districts courts.

This is how it would work in application: The district court rules "X" regarding the case. If "X" is favorable to the RIAA then it will bring future cases to the same district court. If "X" is not favorable to the RIAA then it will bring the next case to a different court that does not need to pay attention to the decision of the first court, or the RIAA may appeal the decision of the district court.

If there is an appeal, the the same scenario as above applies. If the decision on appeal is favorable to the RIAA then the RIAA will bring future cases to any district court in that same circuit because all of the district courts are bound by the precedent set by the court of appeals.

If the court of appeals decision is not favorable to the RIAA then it will bring future cases in an entirely different district because all of the district courts must follow that same unfavorable holding. Or, alternatively, the RIAA may appeal the unfavorable court of appeals decision to the Supreme Court.

The courts of appeals and the Supreme Court all have the choice as to whether or not to hear arguments on the district court cases. The vast majority of cases never make it past a district court.

Really it's all more complex than this, but that's the basics.

Re:My question for the legally saavy:

[chameleon3]

They can afford to lose money on legal fees and trials-- they're hoping they scare enough people into buying music instead of downloading it illegally, which will put them back in the black.

Re:My question for the legally saavy:

[nametaken]

Hard to believe the law exists to protect people. :)

I'm not a lawyer, or a law student, so I'm curious... wouldn't this case largely address vicarious liability of the woman for a child temporarily in her care, more than the legality of downloading music?

Re:My question for the legally saavy:

[CmdrGravy]

Well then they're fucked then aren't they because as we all know most people do not make any choice between going and buying a record and downloading it.

Re:My question for the legally saavy:

[wile_e_wonka]

That depends what the RIAA argues. The tip here is that they'll argue everything. They'll argue that the lady's a liar and she downloaded the music herself. Then they'll say that even if she didn't do it herself she should have known what the kid was doing. And so on--the arguments will get progressively weaker from there. So yes, if the RIAA argues that the lady should be liable, then that's what the case will be addressing.

Tough to predict the outcome.

Re:My question for the legally saavy:

[AndersOSU]

While I agree with you I'd like to point out how silly this buisness plan is.

1. Oh no! sales are declining what ever will we do?
2. Scapegoat the "digital revolution"
3. Sue our customer base, fostering good will towards us, and hate toward those scurvy dogs (arghh).

and so some AC doen't have to point it out
4. Profit!

(note: that item 3. doubles as ???)

Re:My question for the legally saavy:

[sammydee]

Seems to me like everybody loses except the lawyers.

hmmm.....

[ndruw1]

1. Monitor P2P network 2. Sue average person 3. ??? 4. Profit!

Re:hmmm.....

[HTL2001]

no missing step:
1. Monitor P2P network
2. set up settlement hotline
3. Sent threatening letter (something like hundreds of thousands of dolars if you go to court, a more "resonable" ammount if you settle)
4. Profit!!

Re:hmmm.....

[apflwr]

I noticed you left some question marks on #3. Let me fix that for you...

1. Monitor P2P network
2. Sue average person
3. Generate enough press and hysteria from the lawsuits that millions of other average persons-- particularly parents who don't know nearly as much about computers as their kids do-- are scared to death of being sued and curtail their downloading activities, and pay a little more attention to what their dependants are doing with their computers.
4. Profit. (Or, to be more precise, retain their fragile hold on music distribution. At least for now.)

Re:hmmm.....

[ThePengwin]

Its amazing how the underpants gnomes could sumarise any buisness strategy into 3 (or 4) Steps. This sounds like an ultimate scam for anything! the RIAA must be happy with a haul of hush husn money :P

Not Good for the RIAA

[Secret Agent Man]

I don't believe that a jury would convict a divorced mother of five on the crime of downloading pirated media. If she wins this trial, it'll be a black eye for the RIAA: They're first trial fails to hold water. What would then happen?

Re:Not Good for the RIAA

[Anonymous Coward]

They are first trial to fail holds water? Speak English, boy.

Re:Not Good for the RIAA

[dsci]

I don't believe that a jury would convict a divorced mother of five on the crime of downloading pirated media.

Why? Does being a divorced mother of five make you immune from having to obey the law?

I'm not saying that I agree with the RIAA on this issue, but the burden of proof in civil court is "preponderance of the evidence," and has nothing to do with

1. being a parent
2. being a parent of a given sex
3. having kids
4. having a certain number of kids

Jury nullification notwithstanding, the jury must decide for the plaintiff or defense based on the evidence presented in court, not the ideology, for or against, pertaining to downloading music on the Internet.

My two cents, and IANAL, but I have spend a LOT of time on the witness stand as an expert witness.

Re:Not Good for the RIAA

[HTL2001]

Thats cirtainly the way its supposed to work, but it usually doesn't work out in this ideal way. Luckily, this time the unfair advantage is not on the RIAA's side. I forsee an almost unanimous vote of 'not guilty' influenced some by all the factors you listed.

Re:Not Good for the RIAA

[Anonymous Coward]

Oh, I thought you played one on TV!

Re:Not Good for the RIAA

[williepete25]

You've seriously overestimated the American public's ability to give a damn.

willie

Re:Not Good for the RIAA

[NanoGator]

"Why? Does being a divorced mother of five make you immune from having to obey the law?"

Alternatively: How can a juror expect a woman to pay tens of thousands of dollars in damages? I'd have trouble with that. That makes me a bad juror, but it's not something I'd want to live with.

Re:Not Good for the RIAA

[raoul666]

Jury nullification notwithstanding, the jury must decide for the plaintiff or defense based on the evidence presented in court, not the ideology, for or against, pertaining to downloading music on the Internet.

You're right, that's how it's supposed to work. That would be how I would serve on a jury, how you would serve on a jury, how a great many people who believe in the justice system would serve on a jury. However, there are a lot of people (like the gp, I assume) who would decide based on their own personal feelings about the crime committed, the defendant, and the plantiff. It's why people with obvious bias are removed from the jury pool in selection; juries are made of ordinary people, people with prejudices and biases and ways of thinking. Race, gender, age, it all plays a role. I wish it didn't, but that's the way the system works.

As a question to you, in the trials where you were an expert witness, did you never see a verdict you were puzzled by? One where, having looked at all the facts yourself, you were surprised they decided what they did?

Re:Not Good for the RIAA

[dsci]

As a question to you, in the trials where you were an expert witness, did you never see a verdict you were puzzled by? One where, having looked at all the facts yourself, you were surprised they decided what they did?

I assume your question was rhetorical, but yes I have seen such a case. I once testified in a rape trial that was a he-said, she-said deal. Both agreed that the basic act occured, they just differed on the issue of consent. There was a fair amount of evidence that supported HIS side of the story, too.

He got 20 years.

So, I get the point. But I hold out hope that those kinds of outcomes are the exception rather than the rule. The tone of the OP led me to believe that it was a given that because she was a single mother of five, it was nuts to consider that she even MIGHT have a judgement against her.

Re:Not Good for the RIAA

[Anonymous Coward]

Yeah, you're so right. O.J. Simpson thinks you're right too.

Re:Not Good for the RIAA

[div_2n]

You're missing the point. A divorce mother of five likely would be way to busy working and taking care of her kids to figure out how to download music in the first place. Contrast that with say a computer science college student who would likely know how and would be likely to keep their computer locked down from others. If downloading were traced to their computer, what is the chances that they were the one downloading versus a mother of five working 40 to 80 hours a week at work, taking care of her kids and trying to find time to sleep.

Don't pretend the the demographics of a person don't apply to a legal case. In some cases, it can have everything to do with it.

Re:Not Good for the RIAA

[Anonymous Coward]

"Jury nullification notwithstanding, the jury must decide for the plaintiff or defense based on the evidence presented in court, not the ideology, for or against, pertaining to downloading music on the Internet."

That's completely wrong actually.

The big secret no one every tells the jury is: they are actually expected to vote on their conscience. If they believe the law is unjust, they are supposed to vote accordingly: in opposition of the law.

The laws are supposed to represent the citizens of this country. A jury composed of citizens is a much more accurate representation of the citizens of this country than the lawmakers themselves.

If you don't believe there was a wrong doing: don't vote guilty! You're throwing away your last line of defense against misrepresentation.

Re:Not Good for the RIAA

[jcr]

No, that wouldn't make you a bad juror at all. The reason why we have juries is so that it's the people, not the government, who make these decisions.

-jcr

Re:Not Good for the RIAA

[Thing 1]

An AC beat me to the meat of the reply, which is that the jurors are supposed to vote their conscience.

However, I do have something to add: a link to FIJA, the Fully Informed Juror Association.

Basically, if you disagree with the law, as a juror, you do not have to decide based on the law. You can say "not guilty" even though the prosecutor has pictures of the accused taking a toke from a bong.

Re:Not Good for the RIAA

[Anonymous Coward]

You can say "not guilty" even though the prosecutor has pictures of the accused taking a toke from a bong.

Put that in your pipe and smoke it!!

Re:Not Good for the RIAA

[wombert]

The jurors are supposed to and expected to vote based on the laws. That's why the judge's instructions specifically instruct them to consider the evidence and detemine whether the defendant broke the law.

The loophole is that there is no punishment for jurors who blatantly disregard the law when considering their verdict. Therefore, jurors do have th power to decide based on their conscience, or their political viewpoint, or their mood of the day, or a flip of a coin. (Perhaps someone should set up a website describing your right and duty to flip a coin to decide a verdict - then that would make it the right thing to do!)

Re:Not Good for the RIAA

[NormalVisual]

Exactly. It takes the active cooperation of all three branches of government to give life to any given law. Any of the three can legally decide that the law is not in the public interest, and legally withhold their support - the legislature can choose to vote it down, the cop can choose not to arrest, and the jury can choose to decide "not guilty" even though actions contrary to the law have taken place.

Re:Not Good for the RIAA

[Anonymous Coward]

No, You're painting it wrong.

The jurors are supposed to and expected to vote based on the laws. That's why the judge's instructions specifically instruct them to consider the evidence and detemine whether the defendant broke the law.

A judge will tell you this, but the reason it is not enforced is because he is basically asking you to voluntarily not execise your right of Jury Nullification. The situation is so bad at this point that a defense atourney can be held in comtempt of court if he even mentions Jury Nullification. Basically the law makers, etc don't like the idea that the laws themselves can be basically thrown out the window if people consider them too strict.

But thats exactly why Nullification was put in their in the first place. So that a tyranical government cannot put in laws that are oppressive to the people.

This isn't a loop hole, it's the original design.

Re:Not Good for the RIAA

[EzInKy]

The jurors are supposed to and expected to vote based on the laws. That's why the judge's instructions specifically instruct them to consider the evidence and detemine whether the defendant broke the law.


From the Juror's handbook found at the above referenced fija.org:

"As recently as 1972, the U.S. Court of Appeals for the District of Columbia said that the jury has an " unreviewable and irreversible power... to acquit in disregard of the instructions on the law given by the trial judge.... (US vs Dougherty, 473 F 2d 1113, 1139 (1972))

Or as this same truth was stated in a earlier decision by the United States Court of Appeals for the District of Maryland: "We recognize, as appellants urge, the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge, and contrary to the evidence. This is a power that must exist as long as we adhere to the general verdict in criminal cases, for the courts cannot search the minds of the jurors to find the basis upon which they judge. If the jury feels that the law under which the defendant is accused, is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic of passion, the jury has the power to acquit, and the courts must abide by that decision." (US vs Moylan, 417 F 2d 1002, 1006 (1969))."


The loophole is that there is no punishment for jurors who blatantly disregard the law when considering their verdict. Therefore, jurors do have th power to decide based on their conscience, or their political viewpoint, or their mood of the day, or a flip of a coin. (Perhaps someone should set up a website describing your right and duty to flip a coin to decide a verdict - then that would make it the right thing to do!)


Jury nullification is not a loophole, it exists to remind the government that it has a fourth branch..."The People".

Re:Not Good for the RIAA

[wombert]

Count me in that "etc" - not for this case specifically, but I, too, don't like the idea that laws can be thrown out the window because they're unpopular. There are some cases where laws protect the minority, to the chagrin of the majority. If you happen to get a 12-member jury made up of the majority that finds a law irritating, do they somehow have the right to stick it to the minority by ignoring that law?

I don't doubt that they have the power, but I'm wary of calling it a "right".

Re:Not Good for the RIAA

[westlake]

I don't believe that a jury would convict a divorced mother of five on the crime of downloading pirated media.

You aren't the one who will be selecting the jury. You won't be chosen if the judge thinks you aren't capable of making a decision based on the facts and the law.

The odds are that a juror will be middle-aged and middle class, socially conservative.

The kind of person who believes in an ordered, structured society, and who does not bend the rules on the grounds they have become inconvenient.

Re:Not Good for the RIAA

[Anonymous Coward]

Uh, not quite. In order they should be used, the boxes are as follows:

Soap
Ballot
Jury
Ammo

Never forget the last one.

Re:Not Good for the RIAA

[shmlco]

"A divorce mother of five likely would be way to busy working and taking care of her kids to figure out how to download music in the first place."

Right. There's no way a divorced mother of five could possibly be intelligent, could possibly have an education, could be smart enough to have a job, own a computer, use a computer, or even know how to turn one on. They simply don't have the innate capability.

Talk about stereotyping....

Re:Not Good for the RIAA

[Achromatic1978]

To a degree. Then again, I look around on MUSHes and other online games, and I see /plenty/ of divorced mothers playing a game of escapism.

Re:Not Good for the RIAA

[RoLi]

I'm not saying that I agree with the RIAA on this issue, but the burden of proof in civil court is "preponderance of the evidence," and has nothing to do with

being a parent
being a parent of a given sex
having kids
having a certain number of kids

I'm usually not one of the "think of the children"-types, but yes, it has something to do with all this.

The whole reason we have laws is to protect people from each other, to keep up order and to benefit society.

Now where is the gain for society when this mother of 5 goes to jail on the taxpayer's expense?

I mean, hey, she's not some threat to society, would you be afraid of her if you would meet her alone in the park in the dark?

The whole thing is just ridiculous. If keeping up the whole copyright-thing means that thousands of lifes are destroyed just because of a handful of songs, then it's time to abolish or reform copyright because it harms society more than it benefits.

Re:Not Good for the RIAA

[Anonymous Coward]

Jury nullification is not a loophole, it exists to remind the government that it has a fourth branch..."The People".

So the whim of 12 people is fully representative of the whim of a few hundred million people?

No, it *is* a loophole.

Re:Not Good for the RIAA

[EzInKy]

Why? Does being a divorced mother of five make you immune from having to obey the law?


No, but this is the "banks foreclosing on the family farm", "Mr. Smith versus the corrupt Taylor machine", "my husband died from cancer caused by smoking big tobacco's cigarettes" kind of stuff that make juries want to side with the little guy.

Re:Not Good for the RIAA

[Anonymous Coward]

...but I have spend a LOT of time on the witness stand as an expert witness.

Does that mean you're really really good at paying attention?

Re:Not Good for the RIAA

[flyinwhitey]

Why is it that your response to a post that starts "jury nullification not withstanding" is about nothing but jury nullification?

Re:Not Good for the RIAA

[div_2n]

Talk about stereotyping....

You did, I didn't.

Perhaps it was a poor choice of words. What I meant was that she would be too busy to care to figure out how or to take the time to learn. Even if she knows she probably wouldn't have the time to do it. It is not unreasonable to think her kids or even the neighbors kids did it. Prosecuting HER for either is just plain silly.

Re:Not Good for the RIAA

[1ucius]

Jury nullification is more of a criminal law concept than a civil law concept, imho. Judges frequently grant (using old terminology for clarity) a 'judgment notwithstanding verdict' in civil cases.

Re:Not Good for the RIAA

[dsci]

Now where is the gain for society when this mother of 5 goes to jail on the taxpayer's expense?

What are you talking about? This is a civil case.

Re:Not Good for the RIAA

[steve_bryan]

Why? Does being a divorced mother of five make you immune from having to obey the law?

Damn, is it so hard for people to understand this point? Because she is a divorced mother of five rather than a 22 year old male slacker, it will be at least initially apparent to the jury that it is very unlikely that she downloaded any of the music in the allegation. It will be the burden of the plaintiff to convince the jury that she should be held responsible for amounts in the range of tens of thousands or hundreds of thousands of dollars because her IT department may not have run a tight ship. A judge in another case has already offered the opinion that she would not want to be in the position of having such a liability held over her just because she chose to pay a monthly bill to provide internet access.

Since most homes do not have an IT department, it is a stretch to assume a jury would send the message that everyone who has internet access is automatically exposed to a huge financial liability because they failed to lock down access to that network. In summary the important reason many feel a divorced mother of five and many other potential defendants would not be assessed damages is because in those cases it is unlikely that the defendant actually downloaded anything. It does not require any sentimentality to tell the plaintiff to forget it in those cases.

I almost wonder if winning this case might be the worst possible outcome for the RIAA. Copyright infringement laws that were crafted to protect one commercial publisher from another commercial publisher. Now the RIAA is using them against 11 year old non-commercial publishers. More ominous to adults and parents is that this case would hold adults liable because they are paying to provide internet access. Talk about no good deed goes unpunished! Attention brought to this case could possibly lead to a degree of rationality being forced onto currently baroque copyright laws. For instance, in cases of non-commercial infringement damages could be limited to the price or twice or ten times the price rather than 100,000 times the price of the infringing copy.

Re:Not Good for the RIAA

[mrsbrisby]

The jurors are supposed to and expected to vote based on the laws.

No they're not.

This is one of the biggest lies that Judges and Lawyers to this day try and convince jurors.

It's unfortunate that Judges aren't required to take an oath before instructing the Jury on legal matters.

Jurors are following the law - whether they or you know it or not, when they decide whether the Judge is being a cockhead, the law is stupid, or that dumb slut had it coming.

Re:Not Good for the RIAA

[crabpeople]

"Why? Does being a divorced mother of five make you immune from having to obey the law?"

The law is wrong. If you obey unjust laws then you only encourage them.

Re:Not Good for the RIAA

[evil_tandem]

I always had a sense that this is exactly why we have a jury.

Someone is toruting a man's child. Man kills said assailant. Is he guilty of murder? Absolutely. He killed him. Maybe the particular facts of this case were never considered by law makers, so there is no exception for them torturing your child. Since law makers cannot make laws for every possible weird situation that may arise, it's the jury's job to apply a little humanity in the execution of law.

I think jury's have the power to come back with "not guilty" in this case for that reason. Otherwise the whole idea of a jury doesn't make sense. Why not just have the judge weigh the facts and pass judgement? The whole court proceeding is a play intended to give the opportunity for the defendant to justify his/her actions to fellow human beings (in a "you obviously did it" sort of case).

this is a perfect example of that. maybe the law has gotten a little out of touch with what the actual "value" of this theft was. maybe it shouldn't be considered theft at all. maybe this woman just honestly didn't know it was going on, but the law and value are spot on. it would be really hard (more probably impossible) to write law to catch these things. but a jury can weigh the facts of this particular case and decide if the system just went wrong here, and say "not guilty".

this system was designed specifically to allow our judicial system to enter your 4 points into the equation.

Re:Not Good for the RIAA

[dsci]

Is he guilty of murder? Absolutely. He killed him.

No he's not. There is a big difference between murder and killing someone. Killing someone in self defense, or the defense of others (such as your children) is not murder.

I think jury's have the power to come back with "not guilty" in this case for that reason. Otherwise the whole idea of a jury doesn't make sense. Why not just have the judge weigh the facts and pass judgement?

You answered your own question. The jury is the finder of fact, not the interpretor of the law. The jury's role is to determine what happened and if it violated the law as it is written.

Re:Not Good for the RIAA

[evil_tandem]

You answered your own question. The jury is the finder of fact, not the interpretor of the law. The jury's role is to determine what happened and if it violated the law as it is written.

isn't a judge way more qualified to do that? if that's all there is to it we managed to construct the most piss-ant poor way of getting that job done. the most qualified person in the room, theoretically, is the judge. but we're just gonna ignore him and bring in 12 random people with no law experience whatsoever and let them make the shot... why... well... because it's better of course!! that just doesn't make any sense. if that's all there is to it you don't need a jury. a judge can do that much, much better.

the law isn't and never has been about truth. that almost never comes out anyway. it's what each side can prove occured, and whether you can convince 12 people that either what they said didn't happen, or that it was justified.

No he's not. There is a big difference between murder and killing someone. Killing someone in self defense, or the defense of others (such as your children) is not murder.

what if the kid was already dead when the father arrived. he saw the situation, and acted on anger and sorrow. now it's not self defense. there is no longer any immediate threat to anyone.

the point is there are always situations that will arise for which there is no law. situations will always arise for which there is a law, but it's not right/fair. situations will arise for which 12 reasonable people feel you violated the law but was justified in doing so. THAT is why you have juries. The beauty of "not guilty" is it doesn't change law. it's still illegal to violate copyright. they're just saying she didn't do it. finding someone not guilty of murder doesn't mean murder is now legal. it's a neat side-step that allows a system of absolutes to opperate in a real world that has a nearly infinite number of conditions that law-makers can't foresee.

Re:Not Good for the RIAA

[vertinox]

Why? Does being a divorced mother of five make you immune from having to obey the law?

Well if you are OJ Simpson...

No but seriously. people on Juries aren't law experts. They are people off the street like you and me. They are swayed by emotions and creative display of facts. If this were a single male known for drug dealing that avoids child support, then a jury composed of average people would subconciously figure this guy is a criminal anyways and rule against him.

If the jury sees this poor working mom (much like themselves) is being harrased by a multi-million dollar corporation of something they themselves might participate or have sympathy with situation (the jury members might have kids that download music too ya know), they might rule in favor of the defendant regardless of the law.

Law is law, but reality is reality.

Re:Not Good for the RIAA

[Thing 1]

Because most people don't know what that phrase really means.

Re:Not Good for the RIAA

[flyinwhitey]

That's officially the stupidest thing I've ever read.

Re:Not Good for the RIAA

[Thing 1]

OK, you wallow in your "Score: 0, Offtopic" crapulence while I discuss issues with the adults.

Re:Not Good for the RIAA

[flyinwhitey]

"OK, you wallow in your "Score: 0, Offtopic" crapulence while I discuss issues with the adults."

Well, let's see the GP excluded "jury nullification" from discussion, and when it was discussed, I asked why.

Yeah, that's "offtopic".

Also, IF IT'S EXCLUDED, THEN IT DOESN'T MATTER WHETHER PEOPLE KNOW WHAT IT MEANS OR NOT, BECAUSE WE'RE NOT TALKING ABOUT IT.

So now you've got the stupidest and second stupidest comments I've ever seen.

Care to go for the triple? I know you've got it in you, all you have to do is open your dicksucker and share your ideas on anyting, I'm sure you'll say something profoundly idiotic.

Give it a try.

It's about time

[johndierks]

This should be very interesting. Finally the RIAA's methods of targeting and suing their customers is really going to be called into question. If nothing else, finally it will actually start costing the RIAA cold hard cash to prove their cases, and maybe they'll start to understand the costs of willy-nilly litigation.

From TFA:

And as for those who claim they didn't download any music, the RIAA says that if defendants got a letter in the mail saying they or someone in their house illegally downloaded music, chances are it is true.

"The chances of it not being the right person or someone in that household are slim," said Stanley Pierre-Louis, senior vice president for legal affairs at the RIAA. "Let's face it, what we're doing is on the right side here. What these users are doing is violating the copyright laws."

I call bullshit.

This is exactly why I have a second unsecured access point in my apartment piped to the internet. Plausible denyabilty. Who know who's using it? My modem's IP address could be connected to any one of the 50 apartments in my building.

Re:It's about time

[daigu]

Presumably, they have MAC addresses - which you may be able to use to plausibly deny goats.cx and all the other unsavory traffic that is likely being piped through that unsecured port. Good luck in court with that defense.

Re:It's about time

[Bogtha]

Gotta love the logic on that one.

"You infringed on our copyright!"

"It wasn't me, just somebody who used my computer."

"It was probably you because, let's face it, copyright infringement is illegal!"

Re:It's about time

[IronTeardrop]

While agree with your stance against the RIAA, I think that you are part of the problem, rather than the solution, viz:

This is exactly why I have a second unsecured access point in my apartment piped to the internet. Plausible denyabilty. Who know who's using it? My modem's IP address could be connected to any one of the 50 apartments in my building.

It seems that you are trying to hide your own "illegal" activities. Perhaps this is why some states in the U.S. are considering making having an unsecured Wi-Fi access point illegal. I think that the RIAA and equivalent a-holes will go the way of the dinosaur. Until then, we are at risk of being crushed by their flailing tails as the corporate-sponsored U.S. Administration continues to suckle at their teats. /O.K. how many large disosaurs were mammals?

Re:It's about time

[ucblockhead]

You lose the plausible deniability if you admit that you intentionally did something for plausible deniability. Next time, post AC.

Re:It's about time

[Ph33r th3 g(O)at]

And those MAC addresses end up in his ISP's logs, how?

Re:It's about time

[Macadamizer]

The problem with your defense is, the RIAA will need to show -- by a preponderance of the evidence, more likely than not -- that the infringement occured at your IP address. At that point, when you say, "it wasn't me, it was somebody stealing my bandwidth," the burden then shifts to YOU to prove, by a preponderance of the evidence, that it was somebody else and not you that did the infringing. You'll have to come up with some way to prove that somebody else was doing the infringing to prevail on your defense. Who knows, it might work, but it's more complicated than trying to obfuscate the real infringer -- you need to have some proof that it wasn't you for the court to buy it.

Re:It's about time

[periol]

i suppose if it's an access point you could be right, but 90% of these are routers, so wouldn't dhcp be masking the MAC address of the user behind the firewall?

Re:It's about time

[Planesdragon]

This is exactly why I have a second unsecured access point in my apartment piped to the internet. Plausible denyabilty

You DO realize that, when you have to explain why you have this "plausible deniability", twelve random people grabbed out of a pool screened for experts in computer science*, you'll only look like a theif, right?

*: Yes, having expert knowledge of a case can get you excluded from a jury. Experts should be on the witness stand and on the record, not in the jury box and the back door.

Re:It's about time

[Anonymous Coward]

Except MAC addresses are easily spoofed. That, and how do you trace a particular MAC address/piece of network hardware to an individual?

I fail to see how the RIAA can convince any court that the targets of their lawsuits broke the law without the shadow of a doubt.

Now, right or wrong, the RIAA, MPAA, et al. can drown a person in legal fees...until the person cries uncle and coughs up some money to the RIAA. But in such cases, it's basically the bully throwing around his weight and crushing people just because he feels like it. It's unfair, but then again, nothing in this world is fair. At least the little guy has recourse: tell your legislators to get out of bed with the RIAA, MPAA, etc.

Re:It's about time

[Anonymous Coward]

The chances of it not being the right person or someone in that household are slim," said Stanley Pierre-Louis, senior vice president for legal affairs at the RIAA. "Let's face it, what we're doing is on the right side here. What these users are doing is violating the copyright laws."

Hmmm, but would the RIAA consider the demographics of the household? Would the RIAA still believe if the household resident was a 93 year old deaf Christian widow? Would the RIAA still believe their definition of "truth"? Or does race, religion, age, or household income make a difference to the RIAA?

Re:It's about time

[daigu]

They don't. The ISP will simply have the traffic logs. He will need to provide the MAC addresses - assuming he had a log. Without a log, they would just assume it is him, and he would be screwed. You think you could get a judge to even understand what this means or a prosecuter that wouldn't argue that it was his traffic regardless - with the open port just being a convenient excuse? People get sent to jail for much less.

Re:It's about time

[VisceralLogic]

Perhaps if we had more experts in the juries we would have fewer outrageous awards given out.

Re:It's about time

[HTL2001]

If the people use computers, they have probably heard of hackers. Use that, perhaps

Re:It's about time

[Anonymous Coward]

This is exactly why I have a second unsecured access point in my apartment piped to the internet. Plausible denyabilty. Who know who's using it? My modem's IP address could be connected to any one of the 50 apartments in my building.

Try that argument with an unsecured firearm.

Re:It's about time

[Ph33r th3 g(O)at]

It's enough to create reasonable doubt. Now if the prosecution was able to produce his Slashdot post about plausible deniability, that's another matter. As far as being screwed, anyone who openly defies TPTB is screwed, unless they're rich, in which case they're part of the TPTB and defiance is an exercise in masturbation.

What would be more likely is that he'd never be asked about his illegal traffic anyway. That traffic would be silently used as probably cause to procure a no-knock warrant (and being an open WAP, he obviously had no expectation of privacy), and the forensic cops would image every piece of media from paper tapes to Atari 800 floppies to hard drives and hang him with whatever he forgot to encrypt.

Re:It's about time

[Macadamizer]

I fail to see how the RIAA can convince any court that the targets of their lawsuits broke the law without the shadow of a doubt.

They don't have to. "Beyond a reasonable doubt" is the criminal standard of proof -- in civil court, where this is, you only have a "preponderance of the evidence" standard, which is effectively "more likely than not." If you can show that someone at a particular IP address illegally downloaded copyrighted materials, and hey, you own that IP address, that is probably sufficient to show that, more likely than not, it was you.

You can put up a defense, of course -- but you need to do more than raise a "reasonable doubt." You need to prove to the jury that, more likely than not, it was someone else who did it. That's why you would need to give up logs or MAC addresses or whatever you might have to prove that it was someone else, not you.

Re:It's about time

[Anonymous Coward]

some states in the U.S. are considering making having an unsecured Wi-Fi access point illegal

1) What are they gonna do? War drive the entire USA to find unsecured APs? (Remember- they don't know it's unsecured until they try to connect, at which point, they've broken a bunch of laws themselves!)

2) or maybe they'll hit you with the 'unsecured APs are illegal' law if (and only if) you try to use the 'unsecured AP' defence againt an accusation of Copyright infringment. In this case, they can get you for the AP, but have to let you go for the other.

Re:It's about time

[mboverload]

MAc is stripped off by the router then sent along its way to the modem. MAC is only for tracking inside a network, not outside.

Re:It's about time

[proverbialcow]

The chances of it not being the right person or someone in that household are slim

In a house of six? There's an 83% chance it's not the right person. Yeesh.

Yet they'd be willing to litigate six times based solely on what they mistake for principle.

Re:It's about time

[chezmarshall]

This is exactly why I have a second unsecured access point in my apartment piped to the internet. Plausible denyabilty. Who know who's using it? My modem's IP address could be connected to any one of the 50 apartments in my building.

This is called "willful blindness," and it is much more likely to increase your exposure to liability rather than eliminate it. It's one thing for a person who doesn't know any better to inadvertently establish an unsecured access point. It's entirely another matter for someone who knows what he's doing to knowingly create an unsecured access point. If another person uses this AP to spam the world, download kiddy porn, etc., you're going to find yourself in a lot of hot water.

If you really want plausible deniability, provide some acquaintances or co-workers with the key to your access point. List their MACs in your filter. This is just in case they stop by your place to hang out with their laptops in hand. The larger the number of technically-knowlegable persons who could have plausibly betrayed your trust to infringe upon someone else's copyright, the harder it is to establish, even upon the preponderance of the evidence, that it was either you or your computer that was involved in any particular alleged activity.

Of course, the best plausible deniability of all is actual deniability. I don't worry about the RIAA suing me, because I don't infringe upon the copyrights of the companies whom they represent.

I do feel sorry for the less-than-knowledgeable people who swapped music without being quite aware of the liability to which they were exposing themselves. But if you are tech-savvy enough to be setting up multiple access points in such a way that you think you are covering yourself AND dumb enough to post about it, you probably deserve whatever happens to you.

Re:It's about time

[Anonymous Coward]

And as for those who claim they didn't download any music, the RIAA says that if defendants got a letter in the mail saying they or someone in their house illegally downloaded music, chances are it is true.

"Dear RIAA,

  I am writing this letter in an attempt to recoup monies lost to me in 1990-1991 by damages associated with wearing parachute pants. Your client MC Hammer sevearly and perminantly damaged my image through his pervasive use of obnoxious beats and addictive lyrics. I am seaking actual damages of $43.00 per victim and punative damages of $5,000,000 per victim.

Please contact my settlement firm of Dewee, Cheatum and Howe at 1-800-555-1234. This is a good faith effort to collect and any resistanceaction to oppose will be met with legal actions. If you take this to court I will prove my case with a preponderence of hyperbole, you cannot win. Settle now and avoid the embarrassment.

Sincerly,
The American Public

*By you or any agent of your organization reading this letter you agree to the demands set forth in this setlement proposal. You have already been found guilty by your own business method, wherein by being a recipient of said letter proves guilt. After all, we don't send these letters to just anybody.*

Re:It's about time

[228e2]

Oh rah! Game set and match. Being responsible for your property (in this case your AOL/Comcast/etc account) is the point and is strong enough to bind you to the crime. If I am doing 80 on the highway and im pulled over, Im still given the ticket regardless if I knew the speed limit was 70 or not (well that and because im black, but lets not go there). And if I were to challenge the ticket, and it was shown in court that I had extensive knowledge of state speed limits or whatever, it would further screw my chances of getting off of the hook.

Re:It's about time

[et764]

This is called "willful blindness," and it is much more likely to increase your exposure to liability rather than eliminate it. It's one thing for a person who doesn't know any better to inadvertently establish an unsecured access point. It's entirely another matter for someone who knows what he's doing to knowingly create an unsecured access point. If another person uses this AP to spam the world, download kiddy porn, etc., you're going to find yourself in a lot of hot water.

As another example of this, a student at my university recently got into some trouble for running a Tor Onion Router. His node ended up being the exit point for an attack on a French web site, and the web site owners tracked it back to his IP address and contacted the school's administration. I haven't heard what the final decision was, but the administration was not happy about it.

Re:It's about time

[Casca]

No no no. I live in an average neighborhood, and I have found over 14 open access points. Those little $50 wireless routers are everywhere, lots of people on juries have them, and so they can more easily put themselves in the defendants shoes. They won't be thinking the defendant is a thief, they'll be thinking, "Holy shit, I think I have one of those at home, err... Judge, may I be excused for a bit?"

Re:It's about time

[cpt kangarooski]

Plausible denyabilty.

That's not really how this works. All they have to show is that it is more likely that it was you than it was someone else. That is, there only has to be a 51% chance that it was you. Just because it's plausible that it was someone else doesn't get you off the hook.

This is because in a typical civil copyright suit, the standard of proof is that of a preponderance of the evidence. It is not the much higher standard of beyond a reasonable doubt, as typically used in criminal trials prosecuted by the government.

Re:It's about time

[cpt kangarooski]

It's enough to create reasonable doubt.

So? If this were a criminal suit prosecuted by the federal government, that would mean something.

In a civil suit brought by a plaintiff such as the RIAA, it doesn't mean crap. This is because in such a civil suit, the plaintiff does not have to prove his case beyond a reasonable doubt. They only have to prove it by a preponderance of the evidence. That is, that it is more likely than not, that it was the defendant. Or in numberical terms, that there was a 51% likelihood that the person they're suing actually did it. Even if the defendant can create a reasonable doubt, he will still lose, because that's not good enough.

Re:It's about time

[Anonymous Coward]

In actual fact, it is bullshit. The RIAA's contractors do NOT verify the information provided by supernodes.

The trouble is, supernodes can and do lie to you, as evidenced by... well... all the fake files and spam out there, and the RIAA themselves are contracting people to do this; interesting enough, theirs and the MPAA's aren't the only one, and there seem to be supernodes on some networks that actively target people who do lots of searches, or in certain netblocks, and return bogus results.

So being as they make no attempt whatsoever to verify the authenticity of the information gathered by, essentially network hearsay on a network where you know some people are deliberately lying, that does call the quality of the evidence into severe question; particularly, where those "screenshots" really came from and if they actually have any relevance.

Re:It's about time

[KeithIrwin]

So in your opinion, the ideal juror is one with no knowledge about anything?

The first duty of a jury is to ascertain what are and are not the facts of the case. Juries are often presented with conflicting evidence. They have the responsibility to use any and all knowledge and mental facilities at their disposal to judge what is correct.

If someone gets on the stand and testifies that they saw the defendent driving west on Main street towards the crime scene and the juror knows that Main street is a one-way street which runs to the east, should they immediately excuse themselves from the jury because of their expert knowledge about roadways?

In the end, there is no such thing as "expert knowledge". There's just knowledge. The only thing which makes "expert knowledge" is being paid to try to convince people of what you know. So how do you draw the line? Do you exclude automotive engineers from hit-and-run trials? What about people who know how to drive? People who drive the same make of car? Same make and model? Same make, model, and year? People who have been in a traffic accident? Traffic Engineers? Should police officers never sit on a jury evaluating a crime? Should psychologists never sit on a jury if people were involved in the issue?

It's a slippery slope towards juries which are selected for a lack of knowledge, which is no longer a jury of one's peers. Either the jurors are allowed to use the facts which they know to make decisions or they are restricted to a process of guessing based on intuition. Guessing is going to favor testimony from skilled con-men over the truth every time and would undermine the effectiveness of our entire justice system.

In short, disallowing jurors because they have some knowledge which could potentially be of some relevance in the case would be disasterous.

Keith

Re:It's about time

[iainl]

Which is why, silly people, everyone should just use one of the five unsecured access points that can be reached by your machine to download anything questionable, and not your own network.

Not that I'd do such a thing, obviously.

Re:It's about time

[gnasher719]

>> The problem with your defense is, the RIAA will need to show -- by a preponderance of the evidence, more likely than not -- that the infringement occured at your IP address. At that point, when you say, "it wasn't me, it was somebody stealing my bandwidth," the burden then shifts to YOU to prove, by a preponderance of the evidence, that it was somebody else and not you that did the infringing.

If it is so easy for the RIAA to find out which IP address an infringement occured at, then it would be quite stupid to use your own IP address for that action, and it would be much more likely that someone did some hack to use your IP address.

It's like a car openly being used in a bank robbery; it is quite unlikely that the legitimate owner of the car is the bank robber.

Re:It's about time

[Ph33r th3 g(O)at]

The previous poster was talking about jail, which it seems reasonable implied a criminal trial.

Re:It's about time

[TheRaven64]

I have friends with laptops and WiFi enabled PDAs who come around sometimes. Rather than manually configure each machine, I simply leave my access points open, so anyone in my house, garden, or a small bit of road in front of my house can use it. I don't do this to mask illegal activities, I do it for convenience - I don't download music or films (I subscribe to a DVD rental service which is more convenient, and the occasional music I want I tend to get on CD or from iTMS because the quality and convenience are higher).

Re:It's about time

[Planesdragon]

So in your opinion, the ideal juror is one with no knowledge about anything?

No. I mean, it's not my opinion. It's the law.

Doctors do not sit on juries about medicine. Police officers do not sit on juries about crime. Teachers do not sit on juries about teachers. My wife was rejected for jury duty when she said she was an EMT.

It's a slippery slope towards juries which are selected for a lack of knowledge, which is no longer a jury of one's peers. Either the jurors are allowed to use the facts which they know to make decisions or they are restricted to a process of guessing based on intuition. Guessing is going to favor testimony from skilled con-men over the truth every time and would undermine the effectiveness of our entire justice system.

Non-expert juries in fact are one of the pillars of our justice system. If you want a fact or an expert opinion, you have to get it out in the open, on the stand, where the other side can rebut it.

And skilled con-men have to be within the ballpark of reasonability, or they're going to not only be shunned by their profession, but they're going to wind up in prison for giving false testimony. (Do you REALLY think that someone who lies on the stand and causes you to lose your case won't be among your next targets?)

Re:It's about time

[TheRaven64]

Could they prove this though? I would imagine that to do this they would have to show that the P2P client was running at times when his computer was on. If the P2P access is intermittent then this appears to me to indicate that a visitor was using it, not the house owner. I'm not that familar with modern P2P file sharing programs, but I was under the impression that they were intended to be left on for extended periods.

Re:It's about time

[micheas]

Perhaps this is why some states in the U.S. are considering making having an unsecured Wi-Fi access point illegal

As mentioned in this link. The FCC views anyone but the FCC regulating the air waves in a very dim light.

The interstate commerce clause in the constitution could even back them up. (for those not into U.S. law, this is similar to the GPL relying on copyright.)

Re:It's about time

[bxbaser]

If it music they are concerned about.
But if its the cia banging on your door cause your ip is connected to a terror plot i guess that denfense maybe still will hold up .....After 8 years in jail until it goes to trial ,if it ever goes to trial.

Re:It's about time

[poot_rootbeer]

"The chances of it not being the right person or someone in that household are slim," said Stanley Pierre-Louis, senior vice president for legal affairs at the RIAA

I would like to thank Mr. Pierre-Louis for his public statement to the effect that their violation-finding tactics are not error-proof. It may come in handy for my defense should the RIAA ever (rightfully OR wrongfully) take me to court over alleged copyright violations.

This is exactly why I have a second unsecured access point in my apartment piped to the internet. Plausible denyabilty. Who know who's using it?

Your ISP has protected status as a common carrier. You, as an ISP customer running an unsecured access point, probably do not. I hope you're not planning for your "plausible deniability" scheme to save you in court when "you" get busted for downloading music, trafficking child pornography, plotting terrorist acts...

Re:It's about time

[jasen666]

Yes, that's what NAT does. The ISP (or anyone else) never sees the MAC addresses behind the NAT device.
Regardless, MAC's are easy to spoof anyway. Most routers and even NIC's allow you to change your MAC to anything you want.

Re:It's about time

[CCFreak2K]

Exactly.

My sister has Audio Galaxy, KaZaA (yes, the main, spyware-ridden one), WinMX and all manner of other file sharing programs. If the FBI busts down the door to arrest someone in the house for illegally downloading music, who's to say they won't think it's me instead of her?

The good thing is, she lives somewhere else now, so this shouldn't happen to me.

Re:It's about time

[sharpestmarble]

But wouldn't that make you an accessory to the crime?

Re:It's about time

[Anonymous Coward]

>It seems that you are trying to hide your own "illegal" activities.

He didn't even mention what his online activities are, and your assumption tells far more about you than him.

Are you one of those 'Privacy == Criminality' freaks, Ironteardrop?

Why?

[sirgallihad]

Why do they always seem to pick on the "little guy"? A divorced mother of 5? How can they possibly make themselves look good by doing this? They would probably be more liked if they were to sue the 20-year-olds with gigs of music instead of the divorced parents trying to make ends meet, or the old granny. It looks as if they are trying to play the "Big mean bad guy", though I can only see this hurting them, am I wrong?

Re:Why?

[Billosaur]

Why? Because bullies always pick on the little guy. Sure, they'll take on a divorced mom of 5! It beats admitting that their whole system is based on flawed logic, bad technology, and an outmoded system of copyrighting. Of course, now they'll be forced to admit most of this in open court, on the record. It should be interesting to see how their paid legal hacks try and discredit her.

Re:Why?

[Turn-X Alphonse]

I'm giving up modding this article just to reply to this.

Firstly. In the UK "single mother with five kids" generally means "Some slut wanting more money for nothing, screwed several guys and "forgot" condoms". Maybe it's not the same in the US but don't judge a person on the amount of kids their vagina have spewed out. She maybe a very nice lady with a marriage that fell apart, but we don't know that.

Secondly. They'll sue anyone they can get their hands on, if anything they perfer to sue single mothers with no hope of paying. After all way bother sueing someone like Bill Gates who can shrug and go "meh, sue me". When you can sue some poor woman who can't aford the lawsuit so just pays up? It's the same reason in prison no one tries to rape Bubba, he'll fight back and might just win.

Re:Why?

[Wyatt Earp]

They'll have the court records sealed. Thats how the rich and corporate keep thier failures out of the media. It'll be settled out of court and the court documents will be sealed.

Heck, they might lose and declare a victory like Sidney Blumenthal did in the Drudge case, while paying all of the court costs themselves.

Re:Why?

[Catnapster]

It's more likely that among the multitude of suits that they've filed, journalists have picked out and played up the most ridiculous ones, as "divorced mother of five sued for downloading six songs" makes for a more interesting story than "college kid [likely to be perceived as out of control anyway] sued for downloading gigabytes of music [which to many people is as arbitrary a measurement as "kajillion"]". I doubt the RIAA knows anything more about the defendants than what they downloaded and whatever else is necessary to file the lawsuit - can you imagine researching enough on 14,800 defendants to know their family status?

Alternatively, my paranoid side is suggesting to me that they're picking on "little guys" to create an impression that nobody is safe from their elite strike force of lawyers.

And while I doubt they're trying to make themselves look like villains, perhaps they figure that since they already do look like villains, it won't hurt their reputation to go after grandmothers, single mothers, 12-year-old girls and the like.

Re:Why?

[NiceGeek]

Or maybe the father of the children didn't have any sense of responsiblity and took off. Don't be an ass.

Re:Why?

[MBCook]

On your first point, it basically means the same thing (this is why we need to change "single mom" to mean "never married' and use divorced mom/widowed mom to refer to other possibilities, it is clearer).

But on your second point, I agree completely. The RIAA didn't decide to sue this lady. They sued EVERYONE they thought they could extort (and with 2400 settled lawsuits, I think extortion fits). It just happens to be this lady that is standing up for and not some white 40 year old single guy with no kids (or whatever). Now it may be that because of her situation her lawyer advised her she'd have a better chance at sympathy than the aforementioned white guy.

The RIAA didn't have a choice of who they were taking to court (short of only suing a certain category of person).

Whatever you think of her (guilty, innocent, random extortion target, etc) I think it will be nice to finally get this into a court to see just what kind of "case" the RIAA has (my guess? "The IP address was xxx.yy.zzz.qqq and we have found that pointed to her computer at one point") and maybe even get some kind of precedent (or at least a warning from the Judge along the lines of "Don't try this again with evidence like...").

Re:Why?

[Potato Battery]

She maybe a very nice lady with a marriage that fell apart, but we don't know that.

Actually, we do (www.thejournalnews.com).

Patricia Santangelo is in many ways the embodiment of the suburban mom. She is the mother of five children, ranging in age from 6 to 19. She is divorced, living in Wappingers Falls after growing up in Yorktown and Putnam County. At 42, she works as a property manager for a real estate company and is trying to get her own business off the ground.

Re:Why?

[Anonymous Coward]

She's a divorced whore who has fucked over her previous husband and stolen his property aswell as children.

I say give her the death penatly, we don't need any more feminist sluts.

Re:Why?

[Anonymous Coward]

Simple. It means that they are sending a message loud and clear that they will go after *anyone*. It is to cause the maximum number of people possible to be afraid. I'll bet this is a strategy play for sheer numbers, as that is all they see. They do not care what people think about them. The other prong of their strategy is to *manage* what people think of them by pounding the media with this as a moral issue. This is done to deflect any blame torwards the music company for doing anything wrong to whomever they wish to use as a pawn to improve their position.

Re:Why?

[Anonymous Coward]

Why do they always seem to pick on the "little guy"?

It's elementary dear Watson, the "little guy" can't afford to pay to defend themselves in court, so they take the easy way out and just pay the $3000, guilty or not.

After all, the RIAA is about profit, not the truth.

Re:Why?

[Anonymous Coward]

Well, and she's 42...And we all know that 42...well it's 42...and well...I'm sorry your honor...What was the question?

Re:Why?

[Kvan]

I fear it's too optimistic to assume that this type of behaviour will hurt them. In practice, I doubt the majority of the buying public connects the RIAA to the shiny CDs on the shelf.

Re:Why?

[surprise_audit]

...they're picking on "little guys" to create an impression that nobody is safe from their elite strike force of lawyers.

I thought we were all agreed that they're mostly picking on "little guys" in order to build up a portfolio of people that folded?? That way, if/when someone finally let it go to court, the RIAA would have "precedent" on their side. Sure, it wouldn't be actual legal precedent such as comes from a judge's decision, but right now they can pull out their list of thousands of people that settled and say, "look at all these people who admitted guilt - how can our detection methods possibly be faulty??"

If only the first few cases had been fought, instead of caving...

Re:Why?

[JonToycrafter]

OK, IANAL, but I am a legal services worker who has spent most of my alleged career in the field of public interest law.

It appears that a law firm, which is meeting its NYS Bar Association public interest requirement, is doing this work pro bono, and that they're coordinating through the EFF (see here). The EFF is a public interest law organization, like my employer. We actively seek out sympathetic clients - of those 14,800 sued, the EFF got to choose which client stood the best chance of winning.

Sure, it's cynical and jaded, but if you spend any time in this field, you know that "criminal justice" is pretty much a joke. Stereotypes about your client DO hurt your case. Similarly, they can help your case - picking this client as the test case DOES make the RIAA seem like the big bad corp, as you said.

However, there's also a non-jaded reason to hand-pick the best client. A court case can be won or lost on any number of grounds, some of them quite technical. Anyone who's ever had a speeding ticket thrown out because the cop didn't show up for court has experienced that. By cherry-picking your client, you stand a better chance of the case being decided on the point of law that YOU are contesting. The RIAA would much rather their shady practices weren't challenged, instead winning on a technicality - their PR department can spin that however they like.

People like Brown (of Brown v. Board of Ed) or Jane Roe (of Roe v. Wade) weren't folks who happened to be affected by a law. They were folks who were willing and able to be good test cases.

Personally, I think it's sad that the system HAS to work this way, but since it does, I'm inclined to forgive organizations who cherry-pick.

Who to blame more than the RIAA?

[dada21]

You, the voter.

The voters elected a Congress with no concern for their enumerated and severely powers. Republicans, Democrats, Greens and Independents are equally evil.

The voters continue to vote, robbing everyone of their basic rights. The crazy majority has given their power away to a government more concerned with growing its power.

Don't confuse the RIAA with evil. You, the voter, are evil. They just followed the letter of the laws you wanted.

Re:Who to blame more than the RIAA?

[IAmTheDave]

What, are you nuts? Ever watched The Daily Show? Or wonder why "politician" is almost synonymous with "corruption?"

Unless this is meant as some sort of satire, which I hope to GOD it is and I sincerely apologize for missing the sarcasm you probably meant to inflect, this is hardly the fault of the masses. If the actions of the masses defined ANY law at all, 65+ MILLION people trading songs would set a precedent saying trading was just fine.

Slashdot spends almost half of its time posting stories regarding corruption in the seemingly back-door deals between government and big business, as laws like the DMCA get passed again and again, as corporations write laws, as copyright is allowed to continue to crush innovation - and you tell me this isn't the fault of those whom gladly trade their virtue in for power and money?

PLEASE.

Re:Who to blame more than the RIAA?

[dada21]

If the actions of the masses defined ANY law at all, 65+ MILLION people trading songs would set a precedent saying trading was just fine.

No, the law takes precedent. I'm anti-copyright and have said for 15 years that copyright is wrong.

and you tell me this isn't the fault of those whom gladly trade their virtue in for power and money?

It isn't.

Our Constitution is firm. It is designed so the federal government has very tiny, restricted powers. They are to be so restricted that even billion dollar bribe couldn't get laws passed.

With a Constitutionally restricted Congress, Senate and Executive branch, campaign finance laws could be reversed. Money would have zero effect.

The voters made this mess.

Re:Who to blame more than the RIAA?

[LihTox]

The voters elected a Congress with no concern for their enumerated and severely powers. Republicans, Democrats, Greens and Independents are equally evil....
Don't confuse the RIAA with evil. You, the voter, are evil. They just followed the letter of the laws you wanted.

What are you proposing people do here, exactly? If both parties are evil, AND the independents are evil, how are people supposed to vote in a non-evil way? Or are you proposing that the only morally acceptable course of action is to not participate? Or maybe foment revolution?

Re:Who to blame more than the RIAA?

[KarmaOverDogma]

Not all voters are evil or ignorant, as you claim they are. Some of us actually monitor what our politicians do, where they get their funding from and vote accordingly.

Your attempts to put every voter, party and politician in the "stupid" basket is an insult to those who fight this kind of nonsense.

Instead of blaming others (a very immature tactic) consider the things you might actually do to fight this:

* Join the EFF
* Write your congressperson/senators when they do something you really like or don't like
* Tell other people how you feel outside of slashdot
* dont buy RIAA/MPAA labels, borrow them from the library if you must have them
* Join the ACLU

Dont confuse us, the intelligent and active, with lame and lazy who complain and do little, or nothing, else.

What have *you* done lately?

Re:Who to blame more than the RIAA?

[dada21]

My "utopia" is no voting and No laws covering more than maybe a 30 mile radius.

It likely will never happen, so until then, vote for yourself for every position. It'll skew the percentages. Imagine George Bush 5.1%, John Kerry 4.9% Other 89%. That's a mandate.

Vote no for every referendum.

Vote no for judge retention.

Vote no at school board meetings.

Refuse to send your child to public school, refuse to show your ID for any public official.

You don't need to continue enabling these drunken soldiers.

Re:Who to blame more than the RIAA?

[shanen]

Typical /. stupid moderation. Flamebait? Very valid points raised, not really flaming anyone in particular, though criticizing gullible voters as a class. Worth a discussion--except in the "mind" of some nameless moderator.

Root of the problem remains that the process of creating the copyright laws has been subverted and even perverted by one particular group that is only concerned about maximizing their own profits. The whole point of copyright was to benefit society by encouraging creativity, and the supposed targets of encouragement are the people who actually do the creative work. All this stuff about maximizing profits for the publishers was added later.

Me? I actually think it isn't a problem. The copyright system is so badly broken that no amount of legal life support can sustain it indefinitely. Death to Mickey Mouse!

Yes, I am flaming Mickey Mouse. It's not that I have anything against Walt Disney (even though Mickey Mouse is a derivative work that would be illegal under current copyright law), but he's dead, after all.

Re:Who to blame more than the RIAA?

[MBCook]

Nobody votes on copyright. Almost no one understands it. Most people vote straight ticket (or even worse: some personal system like choose women over men, choose the people with the most interesting names, etc). People only vote on issues if they see the issue as big enough. While we on /. may see that, your average joe doesn't. It takes an issue the size of Abortion, Civil Rights, Death Penalty, etc. to get most people to be a "one-issue-voter".

The voters aren't evil. They're ignorant. They are also stupid for voting when so ignorant. But it isn't evil unless it is gross negligence or intentional.

Most people would rather vote for the congressman who agrees with them on the war and abortion that the one who agrees with the on copyright. You have to rank issues, and for most people copyright is WAY THE HELL DOWN THERE.

Why don't we just blame YOU? If you know so much about it, go start a campaign. Go tell people. Don't just sit back and whine about people don't looking at this issue. Make them look at it. Local news stations and papers are often short on material. Try to get one of them to run a piece on these crazy laws. Get some outrage going.

But don't just sit back and decide the voters are evil. How useful do you think that really is?

Re:Who to blame more than the RIAA?

[dada21]

Your attempts to put every voter, party and politician in the "stupid" basket is an insult to those who fight this kind of nonsense.

Voting today will always be voting for the less r of two great evils. Candidates know the power they'll have to abuse. Only 1 Congressman in 42 years has voted Constitutionally. ONE.

Instead of blaming others (a very immature tactic) consider the things you might actually do to fight this:

I will blame those who enabled these tyrants. The voters.

* Join the EFF

Useless. Not one thing they've lobbied against has been prevented. Instead I support the Institute for Justice who have a proven track record.

* Write your congressperson/senators when they do something you really like or don't like

Yea, that works. Never has, never will. Democrats and Republicans equally break the Constitution.

* Tell other people how you feel outside of slashdot

I do. My newsletter was hitting almost 2000 daily readers, almost all who stopped voting.

* Join the ACLU

The ACLU is pro-racism, anti-male and anti-work. I would never support them.

What have *you* done lately?

More than you could imagine.

Re:Who to blame more than the RIAA?

[HTL2001]

yea this is flamebait but its a good opertunity to make a point.

The votes were bought through campaign commercials - commercials funded by campaign contributions from the RIAA. Ex: Congressman supports RIAA, keeps getting campaign money so he gets re-elected (and probably some bribe money as well). If he stops, the RIAA stops funding, funds someone else, and that someone else gets elected, and they are back in power again

The campaigning system is broken and needs fixing. The majority of voters, which is what counts, are tricked into voting for people with these agendas, which are also never made public (enough) to sway people another way

Re:Who to blame more than the RIAA?

[CapPicard]

Ugh... the ACLU? They are screwing up the vast majority of the American public. They don't care about equality and fairness one iota. They likely prefer inflicting psychological injury on a poor family like that one woman being sued by the RIAA...

As for calling voters evil, what? You prefer totalitarian dictatorships where one gets killed or tortured for speaking out against the government?

Yeah, I write my own representative (Dennis Moore-D, KS) and senators (Pat Roberts-R and Sam Brownback-R) all the time. Even though I may not agree with my own representative on some issues, he still takes the time to write me back.

Makes one wonder...

Re:Who to blame more than the RIAA?

[Anonymous Coward]

I don't live in the US, so to be honest I don't care... but your argument makes absolutely no sense.

You argue that the voters are evil because they voted the goverment in... yet you don't vote? Do you run for a political position?

You are far more evil (or mabey just stupid) than most voters, because you disagree with the majory voters, yet you don't vote against them to try instate the less of two evils... nor do you run against both evils, to try make a difference... instead you encourage people to do nothing.

Either pickup a gun, and overthrow your goverment... run for a political position and try make a difference... vote for the lesser of two evils, or quit you pathetic non-sense ranting.

Re:Who to blame more than the RIAA?

[Z34107]

My "utopia" is no voting [...]

Out of curiosity, where would the laws come from if there was no voting on them? Is your utopia some kind of autocracy?

[...]and No laws covering more than maybe a 30 mile radius.

So... you're proposing the same ideas Rousseau had about the virtue of a small republic, minus the republic?

MY vision of utopia would be something as close to anarchy as possible. A government's goal should be to maximize the freedom of its citizens - not their happiness or prosperity or entitlements - and after a very short time, laws start to restrict freedom instead of enhance it. The goal would be to maintain a volunteer military, a non-invasive system whose purpose is to enforce legal contracts and property rights, and an indirect democracy coupled with a strict, succinct constitution to keep things from expanding.

My $0.02. Now, go join the independent republic of Zealotstan.

Re:Who to blame more than the RIAA?

[lky]

It not voting that's evil, its who you vote for.

At this stage no one should be surprised that voting democrat or republican produces the same results. It has for the last 20 yrs or longer.

However, lumping those that vote for other parties with those clueless republican and democrats is down right stupid. While third party voters may not be successful, they are at least trying.

As for the EFFs track record, just look at http://www.eff.org/legal/cases/. Its not all failures, once again you over simplify and look stupid.

"almost all stopped voting". so not letting just the stupid clueless people that will continue to vote republican and democrat continue to control everything is the solution?

Or should all voting be eliminated and a dictator selected? Or a committee?

Its nice that you identify problems, the shame is that you dont propose any workable solutions. Thanks for nothing.

Re:Who to blame more than the RIAA?

[KevlarTheSleepinator]

...Republicans, Democrats, Greens and Independents are equally evil.
The voters continue to vote, robbing everyone of their basic rights...

So what should we do then?

Not vote?

Re:Who to blame more than the RIAA?

[Reziac]

All well and good, except for the horrid detail that we voters elected these too-corruptable scumbags who pass such laws :(

Unfortunately, one doesn't always have advance notice, let alone full disclosure, of a given candidate's inclinations toward scumbagness. Or sometimes, the available alternative candidates are worse.

Side thought: I wonder how many of the 65M file traders also happened to vote for someone who proved to be "an enemy of the people's will"??

"Democracy: that ultimate triumph of quantity over quality." -- Peter H. Peel

Re:Who to blame more than the RIAA?

[FleaPlus]

Out of curiosity, where would the laws come from if there was no voting on them? Is your utopia some kind of autocracy?

http://en.wikipedia.org/wiki/Anarcho-capitalism
http://mises.org/
http://www.lewrockwell.com/

Re:Who to blame more than the RIAA?

[mrchaotica]

Our Constitution is firm. It is designed so the federal government has very tiny, restricted powers.

Oh, come on! That hasn't been true since the Civil War, when the federal government beat the crap out of the South for defying it in the name of "states' rights," and the very idea became positively ridiculous after the New Deal, when the Supreme Court reinterpreted the Commerce Clause.

Re:Who to blame more than the RIAA?

[dada21]

Campaigns don't give government power. Campaign finance reform hurt third parties. To me, how you spend your money is protected by the 1st Amendment.

I don't want campaign reform, I want a court-imposed death penalty for any official that abuses their power, cheats or disobeys the oath to uphold the Constitution.

If it says "no law" and you propose one? Hanging squad. If it says "shall never" and you propose to? Hanging squad.

Absolute power can only be restrained in an absolute manner.

Re:Who to blame more than the RIAA?

[10101001 10101001]

The whole point of copyright was to benefit society by encouraging creativity, and the supposed targets of encouragement are the people who actually do the creative work. All this stuff about maximizing profits for the publishers was added later.

Actually, the part about publishers was from the very beginning. While it might have been assumed (and worked for a while) that by having copyright the author would have a great deal more power over their work than it being left to publishers to decide what to do with it, it quickly became the case that publishers were the ones who, through successful books, to have the majority of the money in most relationships. Mark Twain was especially against an end to copyright for precisely this reason: copyright ending would only mean that publishers, instead of paying a small royalty to the author, would end up keeping that sum instead.

So, until the time of mass production of cassettes and the like, there really was a legitimiate reason to have copyright, even if it was often perverted. Now, there's so many publishers that there's no way copyright can function. The only thing that should be supported is moves away from granting certain publishers some sort of legal protection to extort money. Hopefully more authors will release into the public domain or under the GNU FDL.

Re:Who to blame more than the RIAA?

[flyinwhitey]

"The voters made this mess."

So, I've noticed you don't seem to be including yourself amongst "the voters". At least it seems that way.

That leads me to ask if you voted. Because if you did, you're culpable, and if you didn't, you are also culpable.

The other options of course are that you're a child, in which case you can't vote, or aren't eligible for some other reason.

So which is it?

Re:Who to blame more than the RIAA?

[penguinoid]

I don't understand why people make such a big deal about the death penalty. It is never used due to the autamatic appeal, and it is simply cheaper to sentence them to "death by old age", which does not have the appeal or quite the burden of proof.

Re:Who to blame more than the RIAA?

[Anonymous Coward]

Could we at least wait until a Green is elected to a seat in congress before we blame them? I suspect the Green Pary might have some qualitative differences.

Re:Who to blame more than the RIAA?

[NeutronCowboy]

Don't blame me, I voted for Kodos.

Re:Who to blame more than the RIAA?

[meregistered]

I also completely agree with KarmaOverDogma.

Saying that all elected officials & voters are evil is sure an easy way out.
Takes a lot more work to actually have a say doesn't it?

Can't promise my numbers are completely accurate but last I heard an elected official and their associated aids etc... consider a letter from one person as representing the views of at least 10 people. And an e-mail slightly less weighty.

Now consider the influence of a group like the EFF (Electronic Frontier Foundation: http://www.eff.org/ ). Hundreds if not thousands of voters agreeing on a topic, times ten, if they each send a letter of complaint to the applicable elected officials. The voices of 10 people may not be much but try 10 20 or 30 thousand.
Hell if the number of people participating gets past the 10,000 mark I think it's likely their influence would overshadow any lobyying by the recording industry.

Giving up is no solution. If you want to give up then I recommend more listening & less speaking. Otherwise actually make your voice heard instead of idly complaining.

-ME®

Re:Who to blame more than the RIAA?

[stinerman]

I will now name all elected officials and their positions that I helped elect since I started voting in 2002.

Mike Adelman, Huron County Commissioner (2002)
John Elmlinger, Huron County Auditor (2002)
Paul E. Pfeifer, Ohio Supreme Court (2004)
John Peterangelo, Fairborn City Schools Board of Education (2005)
Tess Little, Fairborn City Schools Board of Education (2005)

I dare you to tell me that I am to blame for the laws of this country.

Re:Who to blame more than the RIAA?

[vertinox]

The voters elected a Congress with no concern for their enumerated and severely powers. Republicans, Democrats, Greens and Independents are equally evil.

Maybe Geeks around the nation should unite and form a "Technocrat" party in which it pushes reform on patents, copyright, and champions universal broad band access to all.

Maybe push nuclear power and the space program while we are at it... When it comes to moral or ethical debate like abortion or gay marriage we will just mumble something about states rights and letting them deal with it while continuing the fancy power point presentation about how innovation in technology makes life better than passing legislation.

Hey it could happen! Who is with me?

Re:Who to blame more than the RIAA?

[Z34107]

Interesting - I'd mod your post up if I was cool enough to have points. (Hides eleventy-twelve digit ID number)

I've always believed in a limited govwernment as the best way to protect individual liberties, but who'da thunk that government was simply a monopoly of public goods?

Where do I sign up?

[moehoward]

I'd like to sue her for downloading that music as well.

My god. It is like going to a Rolls Royce dealer to steal a car and taking the Geo Metro from the Used lot.

Seriously, I'd take RIAA a bit more seriously if they placed value on the song based on market value like the judge did in the My Sweet Lord case.

I sort of side with the RIAA, maybe.

[www.sorehands.com]

In litigating with spammers the first response is, "it is not us." I had one spammer try blame it on competitors and anti-spammers, but there was no offer of proof. Though this is different since liability for spam is not only on the person who presses "send" but also on the advertised site.

The "somebody else did it" defense is common. But, what proof has been presented to support it?

Here, we have not seen what evidence has been presented (in a summary judgment motion or motion to dismiss).

Re:I sort of side with the RIAA, maybe.

[general_re]

Aren't you the same www.sorehands.guy who was suing Mattel too? Seems you do a lot of suing.

Not that I'm implying that's bad or anything - please don't sue me.

Re:I sort of side with the RIAA, maybe.

[dsci]

The "somebody else did it" defense is common. But, what proof has been presented to support it?

Bzzt. Try again. The defense has no burden of proof. The plaintiff (or prosecution, in criminal cases) does.

Again, IANAL.

Re:I sort of side with the RIAA, maybe.

[Macadamizer]

Bzzt. Try again. The defense has no burden of proof. The plaintiff (or prosecution, in criminal cases) does.

That's not correct. The plaintiff in this case has the burden of proof to prove that the person (or their IP address) did download the offending materials. If they can't prove that beyond a preponderance of the evidence (more likely than not), then the defense wins. But if the RIAA CAN prove that the defendant's IP address was used to download infringing materials -- and that should be easy, because they needed that info to figure out who to sue in the first place anyway -- then it's up to the defendant to PROVE that it was someone else, and not her.

Yes, the plaintiff has to prove up their side of the case, but the defendant also has to prove up any defenses they want to throw up as well. The court just doesn't take the defense's word for it -- think about it, if the defense didn't have to prove anything, your legal fees would be quite low because you would need a lawyer. The plaintiff would prove up their case, you'd say "sorry, wasn't me" and that would be it. But that's not the way it works -- the defendant does have to prove their defenses.

Re:I sort of side with the RIAA, maybe.

[dsci]

I agree with what you are saying, to a point. But, how would that play in say an apartment where there may be one common IP address for multiple adults? There has to be more basis for the target of the suit than JUST IP address. In this day and age of 'shared' IP addresses (or even spoofed ones), an IP address is not an identification.

Re:I sort of side with the RIAA, maybe.

[Anonymous Coward]

She has to prove that she is innocent? This turns the whole presumed innocence on its head. The burden of proof is on the RIAA, not on the lady.

Re:I sort of side with the RIAA, maybe.

[Macadamizer]

I agree with what you are saying, to a point. But, how would that play in say an apartment where there may be one common IP address for multiple adults? There has to be more basis for the target of the suit than JUST IP address. In this day and age of 'shared' IP addresses (or even spoofed ones), an IP address is not an identification.

In your hypo, if the RIAA obtained an IP address in a home where there are multiple adults, there are a couple of things the RIAA could do. First, it could just sue the "owner" of the IP address, and if the RIAA could prove it's case against the owner, then the burden would shift to the owner to prove that "hey, it wasn't me, it was my roommate!" Maybe that would be easy to prove, who knows, it would depend on the actual facts of the situation. In a criminal case, not knowing exactly who did something could be fatal to the case -- but here, in civil court, with only a "more likely than not" burden of proof, it could be easy to "prove" that the owner did it (you have his IP address, you have proof the he owns it, you have proof that he unlawfully downloaded copyrighted materials). Think about it -- if you found infringing materials passing through an IP address that a particular person owned, would your first inclination be "he did it" or "somebody must have hacked into his system to do it?" Since most people would probably believe the former, that's "more likely than not."

Once the RIAA proves "more likely than not," it's up to the defendant to not just speculate that it was someone else, but to prove it. If he has some evidence that the IP address was spoofed, or some evidence that one of his roommates did it, then maybe he can prove his defense. But he can't just rely on "you don't know who did it" -- that's just not how the court system works. If the RIAA can prove that he did it, he needs to prove (by the same preponderance standard) that he didn't do it -- if he can do that, he wins.

Now, if all of the roommates share ownership of the IP address, the RIAA still only has to prove that at least one of the owners infringed. If they can do that, they can hold all of the owners "joint and severally" liable for the infringement. If one of the owners rats out his friends, and has evidence to back it up, he might get away from any liability. But, in this case, the RIAA doesn't have to prove which of the owners did the infringing -- they only have to show that at least one of them did, and then it's up to the group found liable to figure out who is going to pay for it.

BTW, this works in criminal cases too, although the burden of proof is a lot higher. If 5 people are sitting around a bag of pot when the cops bust in, all five could be convicted of possession unless somebody was able to prove that there was only one owner of the pot, or, at least, that THEY were not an owner of the pot. There usually isn't safety in numbers -- like the Billy Joel song goes, sometimes "you'll all go down together."

Re:I sort of side with the RIAA, maybe.

[Mistshadow2k4]

The "somebody else did it" defense is common. But, what proof has been presented to support it?

Ok, let's talk proof. They have logs they made on a p2p network. I can alter the logs from my own firewall EASILY and make it look like the RIAA, MPAA, Microsoft and the US government tried to hack into my computer at the same time. Yes, I know how to do that. Logs can be faked. Many of the folks working for the RIAA know how to do this, wouldn't you think? Not a big leap from knowing how to record the logs in the first place, just as it's not a big leap from knowing how to check my firewall logs to easily figuring out how to fake logged attacks (which I never have). So if they're not making their quota for the day they can see an ip address on a P2P network (most clients will let you do that if you know how to use them) and log it as downloading their crap. I can't say I'm particularly stunned when that's their proof.

You're saying she needs to prove she didn't do it. Where's their proof that she did? Why assume that it's true just because they say so? The only thing that's been proven here is how desperate they are to make an example of somebody by destroying that person's life. That does not make them trustowrthy. Why do you think they're being honest? I sure as hell don't. If a person who works for the RIAA were to walk past me and I knew what they do, I'd check my purse.

Re:I sort of side with the RIAA, maybe.

[Achromatic1978]

like the Billy Joel song goes, sometimes "you'll all go down together."

Offtopic Pedantry: presuming you mean Goodnight Saigon, the line is actually '/we'd/ all go down together'.

Re:I sort of side with the RIAA, maybe.

[marcosdumay]

And guess what, most spam comes from computers that the owners simply didn't do that!

Yes, I know, this completely blows up your litigation party, but, guess what, you can't go out there and convict people with no evidence...

Re:I sort of side with the RIAA, maybe.

[Macadamizer]

You are right, of course.

Danger of this lawsuit

[Anonymous Coward]

Doesn't this lawsuit aim to stiffle the free market?

Support her

[Anonymous Coward]

Where's the paypal button to her defense fund?

Re:Support her

[CriminalNerd]

That's what I was wondering. Maybe the tech-savvy-mother-of-5-who-downloads-music doesn't know how to make a website or Paypal account yet.

Re:Support her

[maryjane gonjasoft]

someone finds an account, i have five bucks for it. each of these songs are not worth thousands of dollars a piece, c'mon now, Lit?!?!?!

Re:Support her

[Disavian]

Probably something like www.eff.com .

The right side? Yeah....

[Potato Battery]

I love the RIAA lawyer's quote, "Let's face it, what we're doing is on the right side here."

We're back in that universe where shaking down divorced moms with five kids for $3,000 - $4,000 or the threat of tens of thousands in court fees and damages, all as punishment for the heinous crime of the download of six songs, is "the right side." It's even more fun when you consider the possibility it wasn't even her who did it. I don't know, how popular is Godsmack among that demographic?

The RIAA interoffice memos on these cases must read like tobacco company internal communications.

Re:The right side? Yeah....

[dsci]

I don't know, how popular is Godsmack among that demographic?

I am not a divorced mother of five, but I am a 40 yo married father of two. And I happen to like Godsmack. OT, I know, but it is possible for her to have been interested in those songs.

Re:The right side? Yeah....

[Turn-X Alphonse]

I don't support the RIAA but they are following the letter of the law in their lawsuits. Courts encourage out of court settlements to save time. The RIAA are abusing this yes, but it's legal. Where as this woman's computer has commited a crime, no matter how small it is a crime.

Now can we stop this "divorced mother with five kids" shit please? For all we know she's a slut who married some asshole and is leeching off the government hand outs so baddly she decided to spawn more brats to get more money. It's like going "think of the children!", the children might just be little bastards.

Re:The right side? Yeah....

[Amouth]

You know i just have to wonder.. if they are sitting there "monitoring" downloads.. i want ot know how exactly.. are they placing a server out there with them shared and seeing the people connect becuse if they are then hell as far as i care they provided them freely. and if it was cops doing it, it would be entrapment..

i would realy like to know how they are montitoring peoples downloads on P2P networks..

Re:The right side? Yeah....

[the.Ceph]

Most the time the charge isn't downloadign but rather allowing the people to upload said music. So they just search a P2P network for "Britney Spears" and can sue every IP that comes up.

Re:The right side? Yeah....

[randomc0de]

Honestly, do your research before you rant. It's not possible to "spawn more brats to get more money". Children cost money, they don't make it.

Re:The right side? Yeah....

[Anonymous Coward]

Children cost money, they don't make it.

    Unless you sell their juicy, brand new organs, of course!

Re:The right side? Yeah....

[TX297]

It's not entrapment when a criminal is going to commit the crime anyway. If the person did't connect to the RIAA's servers, they would have just connected to another one and still commit the crime. Bait cars: A thief would have stolen a car if it was a bait car or not. If someone handed you a bag of pot (and you didn't actively seek it) then you were arrested for possession, that would be entrapment. These are stupid examples and I'm having a hard time getting the right point across, but oh well. Also, IANAL.

Re:The right side? Yeah....

[Reziac]

"...Where as this woman's computer has commited a crime, no matter how small it is a crime."

Maybe not intentional (how can an inanimate object** commit a crime?), but nonetheless an interesting way of putting it, and leads me to this thought:

If corporations have "personhood" in the eyes of the law, maybe it's just as reasonable that some other nonhuman entity, such as a computer, could be prosecuted under the same system of law.

Of course that ends in absurdities ("But Judge, I didn't kill that man; my gun did it!") but since we've started from the legal fiction of corporate personhood....

** To which my computer says, "Speak for yourself!" ;)

Re:The right side? Yeah....

[Achromatic1978]

There was a BBC drama on recently, starring Robson Green as a lawyer... and he's talking to another lawyer who is working for a pharm company that is falsifying research, and I just love this quote, as he asks the lawyer:

"At what point does the salary you receive become insufficient compensation for knowing what you know and doing what you do?"

Re:The right side? Yeah....

[quag7]

Civil forfeiture cases, last I looked, actually were cases against inanimate objects "...vs. one Jaguar" and so on. So the idea is perhaps not as absurd as you indicate. Civil Forfeiture is another phenomenon gone completely amok but that's fodder for a different rant.

I had a single pre-law class in college, taught by a professor who clearly loved the law while being aware of its absurdities, with a bunch of pre-law students who had a weird religious reverence for it and got into the bizarre habit of pretentiously addressing each other as "Mr. and Mrs." - these are students who were throwing up on each other on the weekend.

The more I learn about law, the less respect I have for it. God bless those who fight against the entrenched interests.

Ah well, like everyone else on the internet, I talk big. I'll get back on my knees like the rest of America when I'm done here, don't worry.

I just wish the RIAA would figure out a better way of protecting music industry revenues. Of all of the complaints and ideas I've heard, the one that makes the most sense is paying a monthly license or subscription fee of some sort. Hell, the RIAA could start its own P2P service with *everything that has ever been recorded* online in some nice format like FLAC and a search engine and so on. I think the convenience of properly tagged, properly encoded files alone would make this worth a monthly subscription fee - say, $5.00 for 20 songs, $10.00 for 100 songs, or $25.00 for all you can download.

The RIAA could then potentially use (I know this is not ideal, but maybe a worthwhile compromise) your downloading habits and so on to display targeted banner ads in the client or something, as an additional revenue stream. Additional revenues could be raised by things like offering albums pre-release for a fee or "deluxe" subscription level. There are probably like a million value-added services they could offer, from online storage lockers...everything iTunes and so on are doing (How about music videos as well?)

Is this my idea of a perfect world? No. But it seems a lot better than what's happening now. I don't begrudge the industry its profit, but the old ways of selling music just don't make much sense anymore.

And while I don't directly blame the RIAA for music piracy, really, it does have to come to terms with the amount of utter crap it's putting out. I have so many CDs from the early 90s especially that have one or two memorable songs, and the rest are self-indulgent, atonal, amelodic sludge. There are some great albums I've bought that have been worth every penny (I doubt anyone would feel ripped off after buying something like Dark Side of the Moon), but these are rare.

Obviously crap music sells and has a market (or it wouldn't be made), but it has an unintended side effect - it makes other people - people with some sense of aesthetics - jaded and angry. And for many people, this makes it easier to justify downloading music for free. I know, I've seen much ranting along these lines on just about every web forum and frankly any sympathy I may have had for the RIAA has waned dramatically as a result of this.

It's not rational - the question of the legitimacy of music piracy has zero to do with the crap offerings by the major record labels - but the phenomenon is real. No one wants to be a criminal but most psychologically healthy people - that is, people who are inherently distrustful of monolithic institutions and authority in general - can appreciate the romance of being an "outlaw," internally rationalizing music piracy as some form of civil disobedience (Civil entitlement?)

This is the rationalization so many people used back in the 1980s to steal phone calls, when calling out to boards in non-local calling areas was expensive. "It's just a big multinational oligopoly, anyway!" (Or monopoly, if you're really old school and were stealing calls pre-divestiture).

A lot of the anti-RIAA juice is at least partially a result of being disgusted at the pres

Re:The right side? Yeah....

[flyinwhitey]

Yes, it's true.

I'm sure this lady doesn't have a monopoly on bad taste.

Re:The right side? Yeah....

[corvenus]

Shouldn't a yo be listening to hip hop music?

Re:The right side? Yeah....

[AoT]

And how would they prove that it is actually britney spears?

Re:The right side? Yeah....

[android32]

hey, if people start downloading music and the RIAA loses 3 % of it's gross product, who know what will happen to civil society? Oh god, people will be murdering, raping, looting, oh no! What will happen to the law? God, western society will collapse! Oh no! The poor RIAA, if people start downloading more, P. Did won't be able to afford his gold-plated toilets in his mansion... and poor U2... oh booo-hooo! Society as we know it is collapsing! Run! Run for your lives! The attack of the P2P downloaders! NOOOOOOOO!!!!!

My question is... how is the RIAA monitoring P2P networks and users... isn't that an invasion of privacy... it's illegal if the cops do it, it's called entrapment. But, I guess it's alright if the RIAA does it - and since a corporation is a legal entity, I being a person am also a legal entity. Which means if the RIAA can spy on the contents of people's computers, sheesh I guess I can too, and I could sue them if they had, like some photoshopped images I made with the intent to sell.

Ppsh, the RIAA should just listen to more of the group Negativland. They love those guys, anyways. Well, I do. And, I donwload music, but I don't really listen to stuff on the RIAA's teeny-bopper/40-year-old-middle class bitch/moron-generation-x-dipshit playlist, and I listen to stuff by artists that support downloading.

Re:The right side? Yeah....

[Amouth]

i see your point.. but in this case they have the right to provide it freely and if they post it and you download it from them.. you committed no crime in my mind

Re:The right side? Yeah....

[Amouth]

I have always wanted to do that.. create a site warning that everything on it is copyrighted.. post a bunch of files labled as the copy righted works.. and have the first seven seconds be it and then jsut me randmly talking about how you just illagly downloaded my speach..

now this would not be for genral people but raterh waiting for the riaa to download it and say opps....then i can sue them for the same crap they are sueing others

Re:The right side? Yeah....

[the.Ceph]

Generally if someone is allowing a song to be downloaded the easiest way of seeing what the song is would be, brace yourself, to download it.

Re:The right side? Yeah....

[vertinox]

To quote Aeon Flux:

"We won, so we must be right?"

Re:The right side? Yeah....

[Anonymous Coward]

As a registered old fart - I really like Voo Doo!
very cool ahh err tune.

Re:The right side? Yeah....

[AoT]

Obviously, but by doing so would they give tacit permission for that person to distribute; or, more to the point, would they be able to prove that anyone else had downloaded said song.

I agree with her.

[imstanny]

The burden of proof is on the RIAA. They are the ones that are accusing her of downloading music illegally. Now, just because it's her computer doesn't matter; It's like accusing someone getting killed by a gun. Simply showing ownership of who the gun belongs to is not enough to show who done it.

Those are my 2 cents, and they're free.

Re:I agree with her.

[toddhunter]

This would be true in a criminal case. As far as I am aware the burden of proof is on the defendant because it is a civil matter.
The RIAA only has to show that it is *likely* that she was downloading and they will win.
Or yeah, I could be wrong. I would be in a sane world...

Re:I agree with her.

[parlyboy]

Wrong. It's a civil trial. There is no such thing as "reasonable doubt" in civil cases; the standard is instead a preponderance of the evidence.

Re:I agree with her.

[Macadamizer]

You are close here. You've got the burden of proof correct -- more likely than not, or preponderance of the evidence -- but the RIAA does have a burden of proof, they have to prove their case or they lose. The burden is lower than in a criminal case, but the burden of proof is still their.

Now, the defendant also has a burden of proof -- they have to prove, again by a preponderance of the evidence, and defenses they intend to rely on. So if the mom in this case tries to defend herself by saying it wasn't her, she has to prove (preponderance) that it wasn't her -- she doesn't get a free pass.

Re:I agree with her.

[Lord Ender]

Criminal. Civil. STFU until you learn the difference.

Re:I agree with her.

[NilObject]

Those are my 2 cents, and they're free.

Actually, using RIAA math, your 2 cents just cost me eleventy billion dollars.

2 cents X 200,000 computer views of comment X 100 potential users per comment X 235 (HAPPY FUN NUMBER!) = ELEVENTY BILLION DOLLARS.

Thanks to you, I'm now a starving musician. Ass.

Moms and RIAA on slashdot

[karvind]

Mom, and Now Judge, Stand Up to RIAA

Mothers Taking the Fight to the RIAA

RIAA watch out !!

Re:Moms and RIAA on slashdot

[Anonymous Coward]

MATRIAA=mothers against the record industry association of america...

9 digit codes?

[Anonymous Coward]

Article error: "9 digit computer codes"?

Do they mean 12 digit ip addresses? (xxx.xxx.xxx.xxx)

Evil

[Tony]

Don't confuse the RIAA with evil. You, the voter, are evil. They just followed the letter of the laws you wanted.

Uhm, no. They are following the letter of the laws they purchased through a Free Market Government.

"Evil" is not in elections, or anything else. Evil is the willingness to fuck over someone for your own gain. Pure evil is when that gain is just for your own enjoyment.

The folks at the RIAA are willing to fuck over as many people as they can to ensure their own position in the distribution of music, a very profitable position. File sharing is dangerous, not just because people can download the latest lame Metallica song, but because it will allow people to distribute their own music. Yes, there's a lot of really, really bad stuff out there for free (some of it worse than Metallica's recent stuff), but as review sites progress, and the truly independent music scene evolves, people will be able to find the music they like, and the RIAA is cut out completely.

Independent music is doing to the RIAA what free software is doing to Microsoft-- making them stay up at night, even if it doesn't appear to be a real threat at the moment. P2P is essential for a solid independent music scene. The RIAA is trying not just to eliminate file sharing of copyrighted works (which is wrong, no matter how heavy-handed the bad guys are), but to paint all file sharing as evil.

If they can do that, they can destroy the truly independed music scene before it even gets started.

Re:Evil

[dada21]

Uhm, no. They are following the letter of the laws they purchased through a Free Market Government.

Nice try. Free markets abhor the use of force. Government laws are legal uses of force, and not free markets.

Evil is the willingness to fuck over someone for your own gain. Pure evil is when that gain is just for your own enjoyment.

I agree. The teachers unions force me to pay their salaries. The army forces me to pay for wars. The RIAA doesn't force me to buy jack. Voters support teachers and soldiers.

Independent music is doing to the RIAA what free software is doing to Microsoft-- making them stay up at night, even if it doesn't appear to be a real threat at the moment.

I've been in the indie scene for 10 years. I just financed two indie albums. I go to 100+ concerts per year. Most indie music is crap. The RIAA sees no threat there. They see a threat from people breaking the laws that VOTERS SUPPORTED.

If they can do that, they can destroy the truly independed music scene before it even gets started.

And anyone who voted is to blame for creating laws that created the RIAA.

Re:Evil

[PsndCsrV]

I think what was meant by a Free Market Government is that the government is willing to sell their services to the highest bidder. They don't play favorites, they go where the money is. They didn't create the laws they did because they were forced to, or thought it would do some good. They did it for their own gain - because someone else paid them. (That puts them in the evil category.)

And the fact is, the money isn't coming from the voters, the money comes from all the rich corporations. I know I can't afford my own Washington DC lobbyist, nor even afford to be a lobbyist. Can the RIAA? Can Microsoft? Sure, no sweat. So no, the voters aren't to blame for the laws that protect giant corporations. The politicians that follow their wallet and the corporations that pay them are the ones to blame.

And while it might be nice to think we could elect some non-evil government representatives, could we really find enough that we could achieve a majority status? And have a non-evil president that will cooperate? Let's face it, political work is inherently attractive to corruptible people.

And I have no comment on the indie music scene. :-)

Re:Evil

[Fulcrum of Evil]

The RIAA sees no threat there. They see a threat from people breaking the laws that VOTERS SUPPORTED.

I don't recall a referendum on the DMCA, just a bunch of Senators, so what you really mean is that Congress supported it. I rather doubt a majority of people would support the law if they knew its implications.

Re:Evil

[vijayiyer]

Exactly. And what is the reason that voters don't know the implications? Because they choose to remain ignorant.

Re:Evil

[Anonymous Coward]

Well, the important part is that none of that matters one bit. They are our elected officials and they represent us, even when we disagree with them. I've really disliked alot of politicians that represented me, but ultimately they ARE my representatives, no matter how I twist words.

Now that doesn't mean i have to be loyal to them in the future.

Re:Evil

[Anonymous Coward]

per capita, most OSS is crap too

Re:Evil

[glesga_kiss]

I rather doubt a majority of people would support the law if they knew its implications.

You could say that about many new laws; an uninformed electorate seems to be the norm these days, hell it's encouraged.

Re:Evil

[flyinwhitey]

"I agree. The teachers unions force me to pay their salaries. The army forces me to pay for wars."

This is ridiculous, no one is forcing any of that on you.

You have the option of not paying. The problem is you don't like the consequences for that behavior.

Also, you always have the option of leaving. And no I don't mean that in a "if you don't like it get out" manner, but in a " if you find the government distasteful, you have the option of using the methods available to you, including finding residence in a place more to your liking".

So stop acting like you're being forced to do anything.

Re:Evil

[CmdrGravy]

I misread that as "a uniformed electorate seems to be the norm these days" which may well turn out the be case some day.

Re:Evil

[CmdrGravy]

"Nice try. Free markets abhor the use of force"

What kind of bullshit is this ? If they could get away with it Companies would be more than happy to employ enforcers to make you buy their products. They'd probably outsource the enforcing to contractors and in fact this has happened in the past when governments have been happy to let companies do what they like.

Re:Evil

[Anonymous Coward]

"This is ridiculous, no one is forcing any of that on you.

You have the option of not paying. The problem is you don't like the consequences for that behavior."

By your logic, it's impossible to force someone to do anything. If someone puts a gun to your head, you don't have to do what they say. The problem is you don't like the consequences (death) for that behavior.

So which is it?
1) No one is ever forced to do anything.
2) The use of the word "forced" implies that the alternative is not rationally considered as an option.

Re:Evil

[Gibsnag]

Indeed. Democracy can only exist in a generally well educated and informed atmosphere, and to be quite honest most people neither give a flying fuck or know much about about laws and rights until its too late and they're on the wrong side of a lawsuit or held without evidence for "terrorist" charges.

Re:Evil

[meregistered]

I completely agree.

The RIAA is attempting to use intimidation and scare tactics to kill peoples desire to use the infrastracture that can destroy their lucritave industry.

Intimidation & scare tactics that are making them lots of money... kind of like organized crime.

-ME®

Of course the RIAA disagrees...

[KennyP]

They can't make money if they agree that she has no liability...

Visualize Whirled P.'s

14,800 lawsuits

[sckeener]

1 out of 14,800 lawsuits.

Gosh that sounds like organized crime....RIAA shaking down 14,800 people for money...extortion is what it sounds like to me...sounds like the RIAA should be concerned about The RICO ACT

Re:14,800 lawsuits

[fwitness]

My god I had to scroll forever to find someone that brought up this point. How can *any* single entity file that many lawsuits and not be considered as abusing the system? Doing simple math, that's like 20 lawsuits a day!!!

No wonder it takes two years for a murder suspect to stand trial, 23 months to deal with the paperwork of RIAA lawsuits, one month to pick a date everyone can agree on that ain't a holiday.

I love America, but baby, sometimes you make my blood boil.

Re:14,800 lawsuits

[ZachPruckowski]

I agree with you, but I'd like to point out that this is just the first to come to trial, which means that there may be more resisters than just this one.

Re:14,800 lawsuits

[AstrumPreliator]

This is mostly guess work on my part so if you have any corrections please tell me.
 
As far as I know the average settlement cost is $3,000. After 14,800 lawsuits that's $44.4 million. I don't really know the law in this area but is that $44.4 million even taxed? Or did they just make $44.4m sans some minor legal fees? And if they did just make this huge sum of money, how much of it is going to the artist who was 'starving to death' because of 'piracy'? $44.4m over 2 years would be about $61,000 a day, or about $2,500 an hour, that's a crazy $0.70 per second.
 
I could be totally wrong though.

Re:14,800 lawsuits

[jpaz]

The RIAA lawsuits aren't unprecedented. DirecTV was doing this a couple years ago. They were settling for around $3k to $10k for most of those who settled. Whether or not they were right in suing, they certainly didn't have much proof of actual wrongdoing.

Re:14,800 lawsuits

[FirstTimeCaller]

that's a crazy $0.70 per second

You gotta admit it's a lot more profitable shakedown, er, business plan, than selling SCO licenses to Linux users.

Re:14,800 lawsuits

[mosb1000]

"How can *any* single entity file that many lawsuits and not be considered as abusing the system?"

Maybe copyright infringement is a widespread problem? Are you seriously claiming that 14 thousand people couldn't possible all be guilty of distributing copyrighted music online? Most of the people on this forum have probably done it (I have, and I feel horribly about having done it). It's likely that people settled out of court because they knew that they were liable, and would probably be found liable in civil court. I mean, they found these people by tracking IP's, it's not likely that they were wrong. This lady is probably just as guilty of copyright infringement as everyone else they've sued. She probably just thinks she can get away with it because she's a single mother of five. It's disgusting.

Re:14,800 lawsuits

[surprise_audit]

Actually, to quote the referenced ArsTechnica article:

To date, more than three thousand people have coughed up.

I guess the other 14,000+ lawsuits are still under negotiation, though possibly some have been dropped, such as the one against the dead grandmother... That's still $9M, though. Hmm, d'you think anyone from the IRS reads SlashDot??

Re:14,800 lawsuits

[lurch_ss]

I feel horrible too.

I can only hope that the crime of making a digital copy that takes away no value from the original which I could have bought for 10 times its manufacturing cost of which the artist gets a negligible amount is something for which I can be forgiven.

But heaven help me, what would I do without my collection of Ashlee Simpson mp3s.

Re:14,800 lawsuits

[Generic Guy]

No wonder it takes two years for a murder suspect to stand trial, 23 months to deal with the paperwork of RIAA lawsuits

You're confusing criminal court with civil court. But the main reason it takes years for a murder trial is that the first thing a defense lawyer does is petition for delay, so they can actually mount a defense. Very very few captial charges elect their constitutional granted swift and speedy trial.

Re:14,800 lawsuits

[Anonymous Coward]

Posting anonymously since I don't feel like burning the karma from going against the groupthink.

It's really absurd to call this organized crime. The reality, and we all know it, is that in the vast majority of these cases these people really are violating the law--they really are downloading music in violation of copyrights that the RIAA is legally entitled to enforce. The reason they file so many lawsuits is that so many people do it. If someone wrongs you, and the only way to resolve it is a suit, you might very well sue. If two people wronged you, you'd sue twice. If millions of people wrong you, what's wrong with suing 14,800 times?

Re:14,800 lawsuits

[fwitness]

I know I know. I'm not oblivious to the fact that any time we try someone for murder it should take as long as necessary. I was just frustrated by that statistic.

Re:14,800 lawsuits

[Locke2005]

about $2,500 an hour Which, by an amazing coincidence, is exactly what the RIAA lawyers charge! Yes, most of this money is going to lawyers, which means it is being taxed, but only as lawyer's income.

Re:14,800 lawsuits

[Splintax]

Google agrees with you. ^_^

The way around it all

[Anonymous Coward]

1. Place an auction for a current release music CD on eBay
2. Have the auction be for 1/100 ownership
3. At the end of the auction, the 1st 100 bidders all own the CD, each having paid less than 25 cents for the entire thing.
4. They can then legally make 100 copies of the CD, since they all own it.

How would the RIAA get around that?

Re:The way around it all

[Anonymous Coward]

The problem would be that it isn't legal to make copies of CD's you own. Such is the insanity of the concept of "owning" ideas.

Re:The way around it all

[amuro98]

IANAL, but the way I understand the copyright laws, while you are allowed to make copies of a music CD, the original must remain in possession of the owner (ie. YOUR house - not at a friend's house.)

So if you and a friend went 50/50 on a CD, you could still make a copy of it - but both the copy and original would have to remain "together." In other words, you couldn't hold onto the copy while the original was at your friend's house. Otherwise you'd get into problems with unauthorized copying and distribution. You would also have problems because you only bought >11 copy can be in use at any time. This technically would mean if you copied a CD and had one copy playing in your car while the original was playing in your house, you would technically be violating the copyright.

I believe that some software allows you to install on two computers nowadays (Windows XP?) so I guess if you and a friend split a copy of XP, you both could legally install the same copy on both of your computers? I haven't read the license, so I don't know the details.

When I used to use Stardock's desktop software, their license explicitly said you could install their software on your desktop and laptop - since you're only going to be using (ie. looking at) one or the other at one time. Very progressive of them.

Re:The way around it all

[Macadamizer]

This would almost work, except for one thing -- while it is indeed legal to sell a partial ownership in a CD you own, and it is also legal to make an archival copy, or copies, of a CD, the problem is that under the laws, you cannot have an archival copy of the CD separately from the actual CD itself. In other words, you could do this, make 100 "archival" copies, but to keep it legal, whoever actually had in their possession the original CD is also the only one that can lawfully have possession of the archival copies.

There were a few cases on this where video rental places wanted to keep pristine their originals, and rent out the backup copies. Even if done on a one-to-one basis, this isn't legal, because when the physical possession of the original CD is transferred, any archival backups (in any form) must either be transferred with the CD or destroyed. It doesn't matter that you are all owners -- the point of an archival bakcup is so that you don't have to go out and buy a new CD when the original gets destroyed, not so that you can listen to the CD at two different places at the same time.

Re:The way around it all

[pintpusher]

Isn't the purpose of an archival copy to be around as a backup in case the original gets destroyed (or vice versa). So it's ridiculous to have to keep them both together. What destroys one (burning, smashing, glove box in arizona) will destroy the other thereby eliminating the whole reason for a backup in the first place. A true archival or backup copy should be kept off-site in a reasonably secure location. You all know this, don't you have an odd-day and even-day tape that you carry back and forth from home (or wherever)?

So I think this works. I have my 1/100th of a cd plus the archival backups of the other 99/100th's that are out there held by my 99 friends. And they all have archival copies of my 1/100th and so on. THe ultimate in redundant backups. In the event my copy gets destroyed, then one of my buddies sends me a copy of the backup of my 100th along with duplicates of the other 99 parts so that we don't lose any redundancy by attrition. This is very reasonable.

Re:The way around it all

[fwitness]

All my sibling posters talk about physical location being the key, but I recall it being more temporally specific. If I remember from my 1980s knowledge of fair-use copying, it was the *use* of the item that was in question. I.e. I could make a bajillion copies as long as no more than one of them was being *used* at the same time.

Then again, my memory is bad, and I'm on my third drink of the night, so fuggit.

Re:The way around it all

[Dreamstalker_wolf]

"when the physical possession of the original CD is transferred, any archival backups (in any form) must either be transferred with the CD or destroyed." So (if I'm reading this correctly), in order to be completely legal, if your house gets broken into and the original CD stolen, the copy on your computer/MP3 player must then be destroyed (as physical ownership of the disc has been 'transferred'--albeit involuntarily--to the thief)? That doesn't make sense. Then again, not many RIAA/MPAA/DRM practices do.

Re:The way around it all

[Anonymous Coward]

...the point of an archival bakcup is so that you don't have to go out and buy a new CD when the original gets destroyed, not so that you can listen to the CD at two different places at the same time.

So if I DESTROY the original, then everyone can have their own backup copy, right?

Re:The way around it all

[gnasher719]

"" There were a few cases on this where video rental places wanted to keep pristine their originals, and rent out the backup copies. Even if done on a one-to-one basis, this isn't legal, because when the physical possession of the original CD is transferred, any archival backups (in any form) must either be transferred with the CD or destroyed. ""

So they could have done it legally if they gave every rental customer both one original type with "DONT TOUCH IT" written on it and a copy of that tape?

Re:The way around it all

[Macadamizer]

I've never seen any caselaw on this point, but since the point of an archival backup is to continue to use the media after the original is no longer useable, I suspect that your continued use of the materials would be lawful, although without the original disc, maybe hard to prove. Maybe a police report would do the trick. The "transfer" provisions all discuss voluntary transfers, so I suspect that a stolen disc wouldn't count. But you are right, these laws are pretty crazy, so who knows.

Re:The way around it all

[Macadamizer]

So if I DESTROY the original, then everyone can have their own backup copy, right?

While I don't think there is any caselaw directly on this point, the answer will almost certainly be no. Again, the restriction is always that only one copy is available to be played at any one time -- I guess if you could somehow arrange it so that only one of the 100 listeners could be listening at a given moment, that might be okay, but who knows -- until this gets tested, who knows what the limits really are.

In any event, this seems like a lot of work -- is it really that onerous to just buy a copy of a CD?

Re:The way around it all

[Macadamizer]

So they could have done it legally if they gave every rental customer both one original type with "DONT TOUCH IT" written on it and a copy of that tape?

Presumably yes, as long as the rental store did not retain a copy.

Re:The way around it all

[MooseTick]

To take it a step further, you could start a website/company that purchases one copy of every CD it possibly can. To be a partial owner costs $10. As a partial owner you then own 1/1000000 of each CD and therefore are able to retain an archival copy. Then if you are found to be downloading/sharing you can say that you own that piece of music. You could only share on services that require people to acknowlege they are also partial owners of the company.

As others have said, archival copies are often kept offsite and in multiple locations. If you only share with other co-owners of that music then no one isn't sharing anything that everyone doesn't already have a right to posess.

The capital to create a library would initially be a lot, but not as much as you might think. There are plenty of used CD stores that could do this without spending a dime. Find me the problem with this system.

Re:The way around it all

[pintpusher]

oh this is fun.

Heck, who needs a company. Just do this:

Okay, I put up Mudhoney "SuperFuzz/BigMuff". will you please provide me some offsight archival storage of a backup copy? I expect you, as part of this service, to regularly review (i.e. listen to) the tracks in my archive to make sure they are functioning copies. In the event the archival copy you are holding for me is damaged in someway and can't be used, please let me know and I will transmit another copy for storage in the archive. In the event my original of "SuperFuzz/BigMuff" is damaged you are expected to forthwith (gotta make the lawyers happy) render a duplicate of the archival backup copy to me so that I may continue to listem to my music. I will compensate you by providing reciprocal offsite archival storage of any one cd/album in your collection under the same terms. If others wish to join, we will happily store archival backup copies of one cd for them, in exchange for them providing redundant storage of all backups already in the archive. what you got?

Re:The way around it all

[Anonymous Coward]

So that would be RAID 101?

Whatever the outcome, the RIAA loses

[EzInKy]

If the record industry loses the case then they will have no legitimacy, if they win parents will pressure their representatives to change the laws that give them legitimacy. Copyright protection is a legislated right, not an inalienable one.

Re:Whatever the outcome, the RIAA loses

[stewarsh]

Congress is expressly required to create and protect what we now call Intellectually Property Rights by the US Constitution. See Article 1, Section 8, Clause 8. http://www.house.gov/Constitution/Constitution.htm l

IMHO, this puts it on an even higher plane than the right to privacy which was derived from the 4th Amendment by the SCOTUS. While the implementation is left to Congress to decide, the right itself is inalienable even if time limited.

Re:Whatever the outcome, the RIAA loses

[EzInKy]

Congress is expressly required to create and protect what we now call Intellectually Property Rights by the US Constitution. See Article 1, Section 8, Clause 8.


Section 8 is the "Shall have the power to..." section, not the "Is required to..." section.

Re:Whatever the outcome, the RIAA loses

[Anonymous Coward]

I call bullshit on this one.

Fewer than 20% of the population bothered to turn out for the last election. How many do you really expect to pressure their reps to make the changes? Nothing substantial is going to happen until a lot more people get dragged into court.

Re:Whatever the outcome, the RIAA loses

[EzInKy]

Fewer than 20% of the population bothered to turn out for the last election. How many do you really expect to pressure their reps to make the changes? Nothing substantial is going to happen until a lot more people get dragged into court.


It's was an off year election. I didn't vote in the last election because there wasn't anything to vote for where I live, not even dogcatcher. And yes people will care because if the RIAA wins this one it would mean that they can be held legally liable for a crimes committed by others.

Re:Whatever the outcome, the RIAA loses

[mosb1000]

"Copyright protection is a legislated right, not an inalienable one."

I think that falls under pursuit of happiness, or do you think it fair that people should not be able to live by making music or writing books?

Re:Whatever the outcome, the RIAA loses

[ObsessiveMathsFreak]

Yup. "Shall have the power to...". Congress is under no paticular obligation to provide any such rights at all. It's entirely at their discretion whether copyright is a right or not. Of course, their discretion can be sweetened with a few bribes.

PLus, here's another interesting point.

Clause 8: To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

Congress can pass laws giving Authors copyright over their work. This may be said to apply to songwriters, but does it apply to the vocal recording of a song? Perhaps.

But even more striking about this paragraph is the fact that congress is only given the power to grant exclusive rights to Authors and Inventors! Not third parties. There's nothing in this article that in any way states that congress has the ability to pass "work for hire" laws. Technically speaking, according to this document, it looks like corporations can't hold copyright, unless they are considered the authors of a work. Which of course, RIAA members are not.

Re:Whatever the outcome, the RIAA loses

[EzInKy]

I think that falls under pursuit of happiness, or do you think it fair that people should not be able to live by making music or writing books?


Actually I was using "inalienable" for rights guaranteed in the Constitution and "legislated" for rights granted by Congress. The former has to be, the later does not.

For example, "Freedom of Speech" and "The Right to Bear Arms" are rights guaranteed in the Constitution itself, but "the power to declare war" and "the power to to promote the progress of science and useful arts" are at the discretion of Congress.

As for whether I think making music and writing books should be compensated, yes I do. But I also think Congress should not be making wars or copyright laws that are not supported by the people who elected it.

Re:Whatever the outcome, the RIAA loses

[vertinox]

I think that falls under pursuit of happiness, or do you think it fair that people should not be able to live by making music or writing books?

People or corporations?

Corporations aren't sentient beings and therefore could never obtain happiness. People on the other hand...

Besides copyrights do not need to be done away with, but rather reformed so that the indivdual has the right to be named as an author of work of art, but not so that they can force others to give up their property rights of what they already own or have purchased.

And copyrights need to be tied directly to the individual author. When the author dies the work should be sent to public domain and not held by a corporation for the next 1,000 years. If they want their children to inherit the rights, then well... Their children need to do something more constructive with their lives and generate their own works.

Remember it was to "encourage arts and sciences", not to stiffle it.

Re:Whatever the outcome, the RIAA loses

[Anonymous Coward]

Well you are misunderstanding the word "Shall" in a legal terms. Shall when used in such a document is the same as a requirement meaning it is not optional. You're second argument is also in error. When the Constitution was written they didn't have any form of media other than paper and books. Now that we have audio, and video recordings, one easily and logically define the term Author to mean one who creates a work and thus covers the various media of today. Finally "work-for-hire" laws are even easier to explain. If someone builds a house I think you'd agree they own it right? But what if they were paid to build it? Applying your argument they'd still own it and person who paid them for it would be out of luck. In that case would anyone ever pay someone else to build their house? What about built or make anything for them? Intellectual property is the same thing. Without property (Intellectual among them) rights then the why would anybody bother to make anything? Companies wouldn't bother since their employees would own what they create, so there would be no employers and thus no jobs. Now as for Congress' ability to pass the laws, they derive the power from Section 8, Clause 3 and again from Clause 8. As "work-for-hire" as it applies to IP is defined in the US Copyright Law. And finally, while I disagree with the RIAA's actions they are within their rights to sue anyone who has taken their property (music) and not paid for it. The law is the law, and if you don't like it. Then start lobbying the government to change it, because that's how our system works.

Re:Whatever the outcome, the RIAA loses

[ObsessiveMathsFreak]

Well you are misunderstanding the word "Shall" in a legal terms. Shall when used in such a document is the same as a requirement meaning it is not optional.

"Shall" means what it says. Congress has the power to enact such laws, but is under no strict constitutional obligation to do so. For example:

Clause 9: To constitute Tribunals inferior to the supreme Court;

Congress can constitute Tribunals, but no one would argue that it is under obligation to do so.

Applying your argument they'd still own it and person who paid them for it would be out of luck. In that case would anyone ever pay someone else to build their house? What about built or make anything for them? Intellectual property is the same thing. Without property (Intellectual among them) rights then the why would anybody bother to make anything?

You forget. Copyright isn't a form of property. It's a right, granted temporarily by the government. There's a very, very clear distinction. Copyright can expire, and indeed, allows for some fair use of the right granted to the holder, by others. Property on the other hand never expires, and its use is entirely subject to the owners approval. Government doesn't even enter the equation, except to regulate any such uses.

There's a very, very clear distinction. Some people nowadays argue that "Intellectual Property" is exactly the same as property. It isn't.

She should be more aggressive

[KarmaOverDogma]

In addition to saying "It wasn't me," she should challenge the constitutionality of the law which allows the RIAA to obtain her identity and examine her (allged) bandwith use habits WITHOUT A COURT WARRANT; illegal search and seizure is inadmissable in a court of law and the constitution is supposed to protect us against this sort of thing.

She could ask the ACLU to defend her on that basis and they might very well jump at the idea.

I've always hated that provision of the law (DMCA), which allows them to just bypass the courts and hire the cheapest lawyer/firm on the block to use their very deep lawyer funds chest to threaten the average joe with massive suits and see them capitulate, regardless of whether or not they are guilty.

You can't use a badly formulated law to punish the unjust and expect complete compliance from the masses.

Further, when copyright (copywrong?) can be extended to insane lengths of time far beyond what was intended (e.g. steamboat willie) and fair use takes a back seat to corporate profits, can we be very surprised at the disrespect/disobediance thses laws are receiving?

Re:She should be more aggressive

[Brandybuck]

she should challenge the constitutionality of the law which allows the RIAA to obtain her identity and examine her (allged) bandwith use habits WITHOUT A COURT WARRANT

While I greatly sympathize with the woman, and think the RIAA are a pack of subhuman scum, this is no different from suing someone based on phone records obtained from the phone company.

Re:She should be more aggressive

[TimBrady]

Search and seizure BY THE GOVERNMENT without a warrant is illegal and a violation of the constition. Search and seizure by the RIAA and the ISP is perfectly fine, and they certainly don't need a warrant.

Re:She should be more aggressive

[Anonymous Coward]

"Search and seizure by the RIAA and the ISP is perfectly fine, and they certainly don't need a warrant."

Cool! I'll hire a P.I. to search your home and take your computer. Never know what you might be doing illegally. Then when you call the police and they arrest him, will it still be perfectly fine?

Re:She should be more aggressive

[aaza]

Can you then sue the ISP for breach of privacy? Since RIAA is not a government agency, the ISP is not required to give out information to them, just because a letter is sent. Or is this one of those stupid "We didn't think about the consequences of the" DMCA properties?

Not a troll, genuinely interested, and not from the United States of America, so I am unaware of exactly where the legalities lie.

Re:She should be more aggressive

[ZachPruckowski]

Search and seizure BY THE GOVERNMENT without a warrant is illegal and a violation of the constition. Search and seizure by the RIAA and the ISP is perfectly fine, and they certainly don't need a warrant.

I can't find my GameBoy. I think you might have it. I'll be over around 3 tommorrow to toss your house and see if a Gameboy turns up, at which point, I'll take it home with me, then sue you for something. Have a nice day, and please be a nice host and have refreshments for me when I show up.

Re:She should be more aggressive

[UnrefinedLayman]

I can't find my GameBoy. I think you might have it. I'll be over around 3 tommorrow to toss your house and see if a Gameboy turns up, at which point, I'll take it home with me, then sue you for something. Have a nice day, and please be a nice host and have refreshments for me when I show up.

While I sympathize with you and believe what any copyright holder can do with regard to search of records is totally wrong and exemplary of corruption in legislatures, it is much more akin to the following:

1. You can't find your GameBoy and think I have it.
2. You go to my best friend's house, who has had permission from me to be in my home and take pictures of my things.
3. You say to my friend, "Hey, I think Layman took my GameBoy. Did you get a picture of it when you were at his house yesterday?"
4. My friend confirms he has a picture of it in my house.
5. Federal law explicitly defines this as legal.

Re:She should be more aggressive

[Anonymous Coward]

Search and seizure BY THE GOVERNMENT without a warrant is illegal and a violation of the constition. Search and seizure by the RIAA and the ISP is theft!

Re:She should be more aggressive

[killjoe]

Don't laugh. If you were a rich corporation willing to spread some of your money around to politicians you would be within your rights to do that.

The only reason YOU can't do it is because you are not rich. That's it.

Re:She should be more aggressive

[91degrees]

P2P file sharing simply wasn't considered when the DMCA was written. And the understanding of the technology by the people drafting the law was a little vague anyway.

The idea was that if someone posts something on a website, and it infringes copyright, then the copyright owner could contact the ISP, the ISP would then remove the website and give information on who was infringing copyright to the copyright holder so that they could sort it out between themselves. This means that the ISP is safe from prosecution as long as it follows the rules.

There are probably problems with this that weren't considered.

Re:She should be more aggressive

[ObsessiveMathsFreak]

      1. You can't find your GameBoy and think I have it.
      2. You go to my best friend's house, who has had permission from me to be in my home and take pictures of my things.
      3. You say to my friend, "Hey, I think Layman took my GameBoy. Did you get a picture of it when you were at his house yesterday?"
      4. My friend confirms he has a picture of it in my house.
      5. Federal law explicitly defines this as legal.


It was all OK until you switch "GameBoy" for "MP3", and "my friend" for "my ISP", "picture" for "system scan" and house for "computer" You see, your ISP isn't actually allowed to come into your computer("house") to take system scans("pictures"). That's not legal. You didn't even invite them in.

A net connected computer is not all of a sudden cast out into the public sphere for all the world to see. It is still, in a very real sense, in your house, on your private property, and people are still not entitled to break into it and do as they please. The computer might be in correspondance with another, but that does not entitle the other computer to instigate a complete takeover/scan of yours. If you doubt this, try hacking to a banks server while it is in correspondance with you and see how long that argument holds water.

Re:She should be more aggressive

[ivan256]

You mean like the BSA?

Re:She should be more aggressive

[KarmaOverDogma]

"While I greatly sympathize with the woman, and think the RIAA are a pack of subhuman scum, this is no different from suing someone based on phone records obtained from the phone company."

And there, sir, is the catch. Obtaining records from the phone company cannot be done without a court warrant. Only the DMCA and anti-terror/national security laws make exceptions for this. The DMCA should not be included in this privilage of bypassing the constitutional rights of the citizenry. It's an abuse and violation of the constitution. I'm not happy about the other two either, but you have to pick your battles.

Juries can judge the law

[Anonymous Coward]

Juries have a little used function whereby they can render a not guilty verdict by refusing to acknowledge the validity of the law itself. The concept is called jury nullification and is searchable if you want to read more about it. The high priced monopolisitic BAR lawyers guild and judges hate it, frequently threatening people in juries who even mention it.

Just another one of those things that isn't taught in US public schools.

http://en.wikipedia.org/wiki/Jury_nullification

Re:Juries can judge the law

[hunterx11]

Jury nullification isn't a legal principle--it's pragmatism in action. I certainly think that there are times when it is warranted, but it's kind of common sense that "we don't have to rule against this person if we don't want him or her punished."

Re:Juries can judge the law

[dada21]

Juries are meant to be composed of one's peers -- people from the community who know the defendant. They should not be hand picked or completely neutral.

A jury can then judge the crime, the law AND the defendant as they'll know all 3.

Re:Juries can judge the law

[jcr]

Jury nullification isn't a legal principle

Of course it is. It's why we have juries at all, instead of just letting judges decide cases.

-jcr

Re:Juries can judge the law

[takeya]

To verify, I asked my law student friend and yes, it is indeed true that the jury is allowed to judge not only the crime, but the law. A jury must not rule that "well she broke the law but she can go free because we like her," but can rule that "The law was rubbish and we are refusing to acknowledge that any setence should be issued."

This is very useful because just like when a judge nullifies a law, setting a precedent, a jury nullification is just as powerful and this would set an incredible precendent for the future of p2p and legality.

Re:Juries can judge the law

[initialE]

I'm confused here. Are you saying that it takes alot of time, effort and bribes to get a law out, but just any 12 people can veto it?

Re:Juries can judge the law

[apraetor]

The evidence during trial can be overwhelming.. videotaped brutal murder.. and the jury can find the defendant Not Guilty. That's the jury's right, and it is effectively beyond reproach. It is given to the jury by the nature of the judicial process, not through specific legislation.

And I know your comment was a joke ;)

Re:Juries can judge the law

[Theatetus]

The phrase "a jury of your peers" has nothing to do with the American legal system, really. It was an English Commonlaw right that guaranteed a nobleman couldn't be tried by peasants. The only holdover I know of that it still has is that an officer facing a court martial can choose for his jury to only be fellow commissioned officers and not enlisted personnel or warrant officers.

Re:Juries can judge the law

[Majik Sheff]

The constitution says nothing about peers, only that it be a jury. The sixth amendment expands on that by specifying an impartial jury. The seventh amendment provides jury trials for civil matters (which this is), but the nature of the jury is never specified. http://www.house.gov/Constitution/Constitution.htm l

Re:Juries can judge the law

[hunterx11]

I thought we had juries so that a person's peers decided a case? There are plenty of times when jury nullification is done for all the right reasons--like Benjamin Franklin's exoneration from treason. But it can be quite sordid too, such as when obviously guilty people were let off for murdering blacks because all-white juries thought it was justifiable.

Re:Juries can judge the law

[Anonymous Coward]

The law can only be overturned when it violates a constitutional provision. It cannot be overturned because a judge doesn't like it, or because he/she doesn't believe it's right. If it doesn't violate the Constitution, it cannot be thrown out. A jury has no right to review the validity of statutes or precedent at all. Juries only try questions of fact, not of law.

Re:Juries can judge the law

[belmolis]

No, the jury is supposed to decide what the FACTS are. The judge is supposed to decide what the law is. In fact, in some jurisdictions judges in civil cases can present the jury with a set of questions of fact. The judge then makes the overall decision by applying the law to the jury's answers to these questions.

Re:Juries can judge the law

[16K Ram Pack]

As far as I know, it's not about people who know the defendant, it's more based in the principle that they should be normal people, off the street, as opposed to legal experts.

Re:Juries can judge the law

[16K Ram Pack]

It's also one of the best ways to reform bad laws, where politicians are out of touch with society.

There's a few crimes that over time, government found juries finding people not guilty.

Re:Juries can judge the law

[jcr]

No, the jury is supposed to decide what the FACTS are.

A jury can always acquit, no matter what the facts are.

-jcr

Re:Juries can judge the law

[nasor]

They can always acquit, but that's just because the way our court system is set up there is no way to stop them. Juries, both historically and according to modern law, are supposed to determine matters of fact; specifically, whether or not someone violated the law. They aren't supposed to decide they don't like the law and choose to return a 'not guilty' verdict simply because they don't support the law that the defendant is being charged with. Yes, it is possible for them to do it and get away with it, but it's not how the jury system is intended to work.

Re:Juries can judge the law

[BushCheney08]

A jury can then judge the crime, the law AND the defendant as they'll know all 3.

Funny, when I was on a panel at jury duty a few weeks ago, they were specifically looking for people who had no legal training and no familiarity with the specifics of law. They were, in fact, looking for the most ignorant people the could find, since it would be easier to manipulate the herd mentality groupthink.

As an aside, last night I read Richard Dawkins' essay "Trial By Jury" from his book A Devil's Chaplain. It's an interesting breakdown of just how unscientific the notion of a jury trial really is. Between the two of these, I'd most likely waive my right to a trial by jury if it ever came down to it...

Re:Juries can judge the law

[Jaysyn]

If it's an unconstitutional law, I'd consider it my duty to aquit.

Jaysyn

Re:Juries can judge the law

[jasen666]

I consider that merely another check and balance. If the legal system refuses to nullify a law that the general populace (i.e. the jury) feels is unconstitutional, or inisits on going after someone for the wrong reasons, they jury can simply aquit someone accused of breaking said law.
I feel the power should be with the people, not the legal system itself.

Re:Juries can judge the law

[davecb]

It's not that uncommon. Canada no longer has a prohibition on abortion because jury after jury nullified charges against Dr. Henry Morgenthaler.

This eventualy led to the law being struck down, but multiple juries did it first!

--dave

Re:Juries can judge the law

[Braino420]

If Chewbacca lived on Endor, you must acquit!

Re:Juries can judge the law

[Anonymous Coward]

Lol. Like the OJ trial?

Oh.. wait.

Re:Juries can judge the law

[h4ck7h3p14n37]

While I know about jury nullification and would not hesitate to vote however I felt about a case, the law be damned, I'm curious about the average juror. Do they not realize that they simply vote guilty or not-guilty and can do so for whatever reason they choose? Are they afraid of somehow "getting in trouble" for not voting the "right" way?

Re:Juries can judge the law

[Anonymous Coward]

wrong. The phrase "jury of one's peers", its origins notwithstanding, refers to a jury of one's social equals, not a jury of one's acquaintances. Congrats troll. You got me

Re:Juries can judge the law

[Prophet of Nixon]

I was in a jury pool for a case involving a contractor who (according to the introductory stuff) did some poor roof work which led to a fire and some massive property damage some months later. I was thrown off the jury pool on that one (though they got me for a different case a few months later)... and the reasons (that I can remember) that they threw people out are the following:

1) Was any kind of construction contractor (sympathetic toward the defendent).
2) Had ever worked on a roof (whoops, my bad).
3) Had ever operated an arc welder (I couldn't figure this one out, must have been related to later evidence).
4) Had ever had a house fire (sympathetic toward the plaintiff).
5) Had ever been a fireman (er, sympathetic toward firemen?).
6) Had family or friends who were firemen.
7) Knew either plainteiff or defendent fairly well (sympathetic toward whomever).
8) Knew either attorney fairly well (wash your hands).
9) Knew laws and regulations applicable to construction contractors (both attorneys agreed on this one).

I think that by the time they were done, the people they had left lived in caves, hadn't discovered fire, and certainly had no clue what this 'court room' thing they were sitting in was.

The problem is that a few of these (1 & 7 I think) were enforced by the judge, but all the rest were left to the attorneys. They each got a chance to make a list of questions, and then they took turns crossing people off the list, largely for answering yes to the questions. The attorneys throw out anyone who knows anything.

Re:Juries can judge the law

[belmolis]

You want to be careful what you wish for. In the 1960s, for example, the murderers of civil rights workers and black people seen as causing trouble were in several notorious cases acquitted in the face of good evidence by local, all-white juries.

Re:Juries can judge the law

[jcr]

They aren't supposed to decide they don't like the law and choose to return a 'not guilty' verdict simply because they don't support the law that the defendant is being charged with.

Sure they are. The jury is the means by which the people can overrule the legislature in a particular case.

-jcr

Court Costs for the RIAA

[therage96]

Ya know, if all of those 14,000 people had only decided to take the issue to court, it sure would have cost the RIAA a good deal of money in court costs. Too bad most people are too afraid to fight the corporate giant.

Re:Court Costs for the RIAA

[Trip Ericson]

Or, rather, can't afford it. Not everyone's willing to go into massive debt to fight 'the man.'

Re:Court Costs for the RIAA

[Macadamizer]

Especially when, under current copyright law, they would probably lose anyway, then they are out the legal fees AND the costs, which are probably bigger now...

Re:Court Costs for the RIAA

[Anonymous Coward]

Too bad most people are too afraid to fight the corporate giant.

right... I'm sure if the RIAA ever came after you, you would be more than willing to outlay the financial burden of defending yourself.

Re:Court Costs for the RIAA

[patio11]

And, when they lose the suit because the overwhelming majority of them are actually guilty of what they're accused of, then the RIAA recovers their court costs. And even if it didn't, the RIAA doesn't care a whit about whether the lawsuit campaign makes or loses them money -- they care that it loses some Average Joes money, and that said Average Joes end up in the paper as much as possible, to encourage the other Average Joes to not download.

My congratulations...

[Anonymous Coward]

I congratulate you on being the first person I've ever seen who compared illegally downloading music to rape, doing lines of coke, operating a meth lab, and children watching porn.

Yes, throw the book at this vile negligent mother.

Re:My congratulations...

[Seumas]

I congratulate you on being the first person I've ever seen who compared illegally downloading music to rape

You must be new here.

Re:My congratulations...

[cwis42]

You must be new here.

Positive with a 135 coefficient.

Re:My congratulations...

[lloydtesterman]

Wow, I had no idea..... I guess I need to try it.

Money and technology

[slashes]

I dont see the difference between keeping a recorded song from the radio and from keeping a song on my computer. In the end it's the same - music. I'm perfectly aware of quality but lets not get into that.) Now i'm not sure if the record industries lose money because we record songs out of our radio's albeit with worser quality, but I think it's the same idea as downloading off your favorite P2P client, bittorent, or newsgroups. It's the same thing as when VHS and betamax came out. The industry was worried about this new technology and how they'll lose tremendous amount of money because of it. I think record industries should expect that their music sales will decline because of techonlogy particulary the ability to compress music to realistic sizes with decent quality, and the ability to transfer this media with realitive ease. Giving people subpoenas for dowloading songs won't help, and I think it's just pointless. You're not going to make up technology's bite out the music market by doing this.

Sharing not downloading!!!

[slashkitty]

Why does everyone get this wrong? RIAA is going after people SHARING music online, not the downloaders directly. How could slashdot get this wrong? How come everyone here has gotten it wrong? RIAA can only track those people sharing music, or downloading directly from them. They are going after the people sharing music.

Re:Sharing not downloading!!!

[Anonymous Coward]

RIAA can only track those people sharing music, or downloading directly from them.

Well who's to say they aren't going after the people downloading directly from them also? Wouldn't they? Why lay the trap if they aren't going to spring it?

Re:Sharing not downloading!!!

[Salandarin]

Do you understand what p2p means? Peer to peer? When you download something, you then pass the buck on to other people like yourself. Everyone is correct in saying the RIAA is pursuing downloaders, in that she is accused of downloading a handful of songs, not storing hundreds and then distributing them. Then again, you could just RTFA:

When the lawyerspeak is stripped away, what this means is that Santangelo is accused of downloading the following fine pieces of pop music:

* Lit "Happy"
* Incubus "Nowhere fast"
* Third Eye Blind "Semi-Charmed Life"
* UB40 "Can't Help Falling in Love"
* Godsmack "Whatever"
* Foo Fighters "Breakout"

Re:Sharing not downloading!!!

[Anonymous Coward]

Yes this is true. The RIAA is within their legal rights to bring these people who help pirate music to justice. I'm not siding with the RIAA by any means, I personally feel that the way they're apporaching this and bringing 13 year old's and grandmothers to court and muscling these people into settling outside of court is really making the RIAA look like nothing but a bunch of money grubbing bullies and scumbags in the eyes of the general public. Seriously if the RIAA wants to get their earnings back on track, they can start by lowering the price of CDs substantially. We all know the cost of the media and how much of a profit the music industry turns on these CDs. The bottom line is that the RIAA's business model is broken, and they'll continue to hemorage cash until they wake the fuck up and stop sueing the little guys, regardless of his/her cyber crimes.

Re:Sharing not downloading!!!

[fatalfury]

Isn't that entrapment? And isn't entrapment illegal?

Re:Sharing not downloading!!!

[Xantharus]

Entrapment by the Police will cause the charges against you to get thrown out. There is nothing illegal about it, persay. No police officer will go to jail for entraping you. Now granted, RIAA isnt the police so they are not covered by this. However, I think that it would still be a valid practice if they were. Entrapment basically says that you cannot force someone into doing what they would not do normally and then charge them with it. Here, RIAA is just causing the normal course of action to take place on a p2p server and logging it. Very similar to a prostitute sting operation where the officer causes the prostitute to proposition sex for money in the normal course of her actions.

Re:Sharing not downloading!!!

[Anonymous Coward]

"They are going after the people sharing music."

This is very true. In many countries it is not illegal to download, but to upload.

That's why you should get Freenet. Everyone downloads from a common pool of encrypted data so legally everyone would be safe.

Re:Sharing not downloading!!!

[Anonymous Coward]

If the RIAA is posting songs for the purpose of busting people, then they are implicitly offering their product for free.

In fact their Corporate charters probably forbid the practice of distributing free music.

Then they're in trouble with their own board, maybe the FTC and will certainly be laughed out of court.

No, their finding perps by searching for popular songs, downloading them, running netstat for ID.

Re:Sharing not downloading!!!

[Anonymous Coward]

Do you know how (most) p2p software works? You don't have to share the files you download (even though it is usually configured that way by default).

This is Amerika, fool!

[Urusai]

They'll probably assess the death penalty. On a positive note, it will probably be reduced on appeal despite the Attorney General insisting "she deserves to fry, the bitch, we are a nation of lawz!!!". Republicans across the nation will protest the activist judge who overturns it as "legislating from the bench", which is a big problem when the judge isn't legislating a reactionary agenda like he should be.

Re:This is Amerika, fool!

[Anonymous Coward]

Troll? Come on, mods.... Didn't get enough sleep?

I thought that was pretty freaking funny. I nearly spewed ginger ale on my laptop....

Re:This is Amerika, fool!

[philipgar]

What are you talking about? It's the activist judges who are rewriting laws, and the constitution. It is the activist judges who are ruling that the government has the right to use emininent domain to take land from private citizens and give it to a corporation for "fair compensation". Activist judges can do little in this case to help anyways.

If it can be shown that the lady violated the law on the books, it is the judges duty to uphold those laws. I'm pretty sure enough copyright cases have been handled that the precedents show the laws to be constitutional. The only way the judge could ignore the wrong doing then is to declare either A the law is unconstitutional or B say that the RIAA illegally obtained evidence that is not permissable in case.

The ladys best bet is to argue that she is not responsible for the material downloaded, and has no knowledge of it, and force the RIAA to prove that she knowingly pirated the music. Then the burden of proof is on the RIAA, and they have to show evidence that was legally obtained etc etc. They also have to prove that their "evidence" is valid. It's hard to prove a few lines of text on their computers show what she did, and haven't been modified

Your comments about republicans being out to make her fry are completely without basis, and a huge troll. Either way this lawsuit is bad news for the RIAA. Even if they win, and win a large settlement against this lady there will be a public backlash. There will also be a demand for new laws to stop some of these efforts. Look at the limitations of DRM that came out real fast when Sony's rootkit was revealed. It was less than a week before we had officials working for the president criticizing Sony over their actions! That of course was an example of Republicans protesting, and the attorney general siding on the side of large corporations because all republicans (and no democrats) are controlled by the big corporations.

Think before you write. You come off as a moron with statements like yours.

Phil

I wish her the best of luck..

[Anonymous Coward]

..but in her honor, I'm downloading a copy of "I fought the law (and the law won)" as we speak.

RIAA, meet Sony's DRM trojan-net!

[gwait]

Dear Mr. RIAA,
I have an excellent idea for you: Borrow Sony's DRM trojanware, (the trojan-net is already up and running) have it illegally download songs on selected people's computers, then fly in with a juicy lawsuit!
I'm sure a few scripts could even mail out the summons automatically, with a quick link to a Paypal account in case they would prefer to settle out of court!

Re:RIAA, meet Sony's DRM trojan-net!

[samureiser]

Can I mod this up +1, Scary ?

Re:RIAA, meet Sony's DRM trojan-net!

[HTL2001]

+1 GoodTinfoilHatMan, more like

"its not paranoia if someone's out to get you"

Re:RIAA, meet Sony's DRM trojan-net!

[Anonymous Coward]

Something like this happened to a friend of mine.

Someone logged into his public FTP server containing non-label music that was legal to disribute, uploaded 500k of a movie, downloaded it again, deleted the original, and sent him a DMCA notice three days later.

It was a cease and desist instead of a lawsuit, and since there was nothing actually wrong with the site he ignored it, nothing ever came of it.

Pete Ashdown

[Weezul]

See, this is why we need more people like Pete Ashdown running for office. He has a policy & strategy page with some comments about raising a stink over the RIAA's lawsuits.

Three

[Chuck Chunder]

3. Be a lawyer.

Re:Three

[Anonymous Coward]

That doesn't make the gnomes happy.

Re:Three

[Anonymous Coward]

At least somebody gets step 3.....

MAC addresses aren't routed

[Space cowboy]

As long as it's not a direct line to the RIAA, then the MAC address is only known by the next link up the chain.

My simple linksys (cheap, $70) router can fake MAC addresses while providing DHCP to the inside of the network - all accesses appear to be one computer, precisely to get around ISP's limiting the MAC addresses they'll serve to.

So, I reckon his defence is pretty damn good.

Simon.

Re:MAC addresses aren't routed

[daigu]

Would you want to bet your freedom on it in a court in the U.S.? You, my friend, are braver than I. I'd want some way to prove traffic wasn't me if I were hosting an unsecured port.

Re:MAC addresses aren't routed

[Space cowboy]

It has nothing to do with bravery - it has to do with proof.

Council for the prosecution: "Your honour, he killed him with the lead piping in the drawing room."
Defendant: "No I didn't"
Judge: "Do you have any proof ?"
Council for the prosecution " Well, no. But we think he did"
Judge "Don't waste my time"

end of case.

Simon

I pray she wins

[dacarr]

And frankly, she'll need divine help, in my opinion. This is, after all, one single mother versus a multi-million dollar corporation.

SLAPP Laws?

[Anonymous Coward]

When this trial fails, as only demons and hell hounds would wish to harm a single mom with five kids,
can she return the favor and counter sue RIAA for harrassment, SLAPPing her or something like that?

It would be nice to see the dog that bites, get bitten back!

Possiblity of Innocence

[EMIce]

There could very well be people getting into trouble who did nothing wrong. I service lots of residential machines and their loaded not just with spyware, but trojans and viruses that make their way into these machines through remote and browser exploits. Some these machines need complete re-installation even though I clean up all local machine and user specific startup entries.

These I suspect have been root-kitted to act as zombies or proxies. These people have no idea what kinds of traffic is running through their machines and connection. It sounds as if such people are getting sued in some instances, but probably don't the know well enough to realize what is happening.

It doesn't seem to me that a list of bittorrent peers associated with a copyrighted file proves guilt. The environment is too insecure to guarantee who the actual source is. It seems to me the RIAA should have to prove a couple things:

1) That they downloaded the file with the copyrighted name and verified that the content is actually the copyrighted material.

2) That the activity from the IP address of the peer being charged actually represents the activity of a particular machine's owner. They would probably need to confiscate the machine for this - is this feesible? Just charging the owner of a connection seems unreliable, many machines can sit on a home or business network. Can one be held responsible for hijacked traffic running through their pipe?

Where this is headed it seems is a battle over regulating net communication. The RIAA will begin to push technical mandates through congress to make the internet more "secure," which will be difficult at best without implementing lots of centralized control and monitoring. How long till we have sign our packets with keys? Then how long till "sponsored" packets become free, while others cost?

A recent slashdot story featuring Doc Searl's opinion piece, Saving the Net from the pipeholders" sum's up this position very well. It's kind of long, but but offers an insightful view of what's ahead, and is worth reading for anyone with interest in the future net as a decentralized, unprejudiced peer to peer medium.

Re:Possiblity of Innocence

[Weezul]

We need a wrom that fakes pirating music to attract the RIAA to the wrong people.

Re:Possiblity of Innocence

[pintpusher]

Seems to me, since coders are being held responsible for errors and exploits in their code, that the manufacturer/distributor of the OS that allowed these exploits to occur on her machine should be liable. I'd love to see MS and RIAA duking it out in court. I'd pay good money for 'dem seats....

Re:Possiblity of Innocence

[Anonymous Coward]

What this world needs is a trojan that downloads random music - that way, everybody can have plausible deniability.

RIAA == Church of Scientology

[Mobster]

From what I see, the methods differ very little.

Re:RIAA == Church of Scientology

[Anonymous Coward]

That's not fair. The RIAA will usually settle for less than $10,000.

Why do people download songs?

[kp_sidekick]

Why not just tape the songs off the radio with your "classic" trusty tape recorders/players? Let's just go back to the 80's! Ooops, some of you don't even know what tape recorders/players are... :)

Re:Why do people download songs?

[Socks of Doom]

Hey, that's what I use my plusdeck for. Get a song (by whatever means you wish), record it, no need for the file any longer if you don't want it. Best part is that you can listen to your tunes in a car that lacks a cd player. I hope the RIAA doesn't go after that nifty piece of hardware, as I suppose has the potential to support piracy.

Logic check

[MarkusQ]

the RIAA will need to show...that the infringement occured at your IP address. At that point...the burden then shifts to YOU to prove...that it was somebody else and not you that did the infringing.

I'm not necessarily disagreeing, but why single out the IP address as such a watershed in the chain of accountability that the burden of proof flips? To see what I'm getting at, what makes IP addresses so special, as compared to (for example):

the RIAA will need to show...that the infringement occurred in your city. At that point...the burden then shifts to YOU to prove...that it was somebody else and not you that did the infringing.

...or...

the RIAA will need to show...that the infringement occurred under a screen name you frequently use. At that point...the burden then shifts to YOU to prove...that it was somebody else and not you that did the infringing.

...and so forth. What's so magic about IP addresses that puts them up there with DNA?

--MarkusQ

Re:Logic check

[ZachPruckowski]

I think IP addresses are so common as a watershed because you are paying for the IP address, presumably through an ISP. At that point, you as an individual person are responsible for what you do with it. If you aren't doing the illegal stuff, then you are facilitating someone else's doing the illegal stuff by negligence or consent. Unless you are honestly trying to secure your connection and getting like professionally hacked, you are at least semi-responsible for what happens on your network. Or so the theory seems to go.

Re:Logic check

[Macadamizer]

There's nothing special about the IP address, I only used that because the parent post did. Anything that can identify the location of the downloading -- be it an IP address, a mailing address, smoke signals, whatever -- can be used by the plaintiff to at least point out where the infringement occurred. Is that enough to "prove" that the defendant infringed -- who knows, that's a question for the jury (or the judge, in a bench trial) -- but, since the burden is really "more likely than not," it may be sufficient. All the RIAA needs to show is some locational evidence -- maybe an IP address, maybe something else -- that links the infringement to the defendant, and that may be sufficient to meet their burden. At that point, then the defendant has to prove, by the same preponderance standard, that it wasn't her, but someone else. The burden flips at the point where the RIAA "proves" their side of the case -- that is is more likely than not that the defendant infringed.

In reality, there is no such tipping point -- in court, the plaintiff makes their case, the defendant tries to prove up any defenses they might have along with poking holes in the plaintiff's case, and then the judge or jury wieghs everything and makes a decision. If both the plaintiff and defendant "prove" their sides, the defendant wins. If the plaintiff proves their side but the defendant doesn't, plaintiff wins. If plaintiff fails to prove their side, defendant wins regardless of whether or not they prove their side.

Re:Logic check

[Anonymous Coward]

My IP address is dynamic. From time to time, my IP address changes. Was it me, or the guy who happened to have it at the time of the "theft"? How can I prove it was not me, I am not privy to who had the address before me, or who gets it after me.

My router says "Hey, I'm PC A" to the world. I have four PC's all identifying themselves as 1 IP address, and 1 MAC address to the outside world. Which one of the four was used? Was it from me or the guy who had the IP before me, or after me?

I don't understand this opinion that an IP address is like some kind of fingerprint that resolves back to one specific person, it doesn't. Now, the ISP could probably figure out who had what IP address at a specific point in time, if they felt like spending a bunch of resources, but home networks obscure the actual "thief".

A good friend of mine was rooted in a bad way. I played around on his system for a while, and found a bunch of stuff. He was being used to host movies, he had no idea he was doing it, he was running anti-virus (go Norton, you useless piece of crap), he thought he was secure. The only reason he found out was he deleted 1 file by accident, that caused the Daemon tool to fail, which kept giving him really strange error messages. Looking into this, is what led to finding the bad stuff. Is he a pirate? How could he prove he was, or wasn't? The root kit is long gone, but movies were downloaded from his machine. Is he guilty?

These cases are really sick. It's the same thing as having the cops say to you "Hey, we saw the thief run into this apartment block, so we are charging the building super/owner with theft", do you think that would stand up in court?

RIAA problem fester, won't fix it - revolting

[harvey the nerd]

RIAA et al have seen the general tech trend issue coming since the 1970-80s. It's real solution is educational, market and only slightly technically based. Instead of solving and making the changes to accomodate natural desires of public they have sought to abuse and systematically exploit it. Based on my observations in other countries, I think this kind of officially sanctioned hooliganism and cronyism will end very badly.

RIAA for shame. Crows about "rights" while fueling the festering problems. 30+ yrs is enough, put up or shut up and get out. The current regime is simply an obnoxious, parasitic force begging to be slapped down hard by an angry public. I am kind of morbidly curious to see the public reaction if and when the court system fails again.

This is why I love IRC...

[AxemRed]

where you can be in a password-protected channel, and the only two people who can prove that you downloaded anything are you and the guy who sent the files to you.

Re:This is why I love IRC...

[Anonymous Coward]

And any system that your packets go through (such as your providers router).

Re:This is why I love IRC...

[Anonymous Coward]

Yes, but the *AAs wouldn't know to look there for the transfer, would they?

First RIAA Lawsuit to Head to Tail?

[Anonymous Coward]

I thought the title was "First RIAA Lawsuit to Head to Tail."

Assistance

[cffrost]

In p2pnet's interview with Patricia Santangelo, she said she's "stressed" about funds for her defenses, but doesn't have an account for donations.

However, Santangelo is listed, in case anyone wants to snail-mail her some help.

Santangelo lives about ten minutes from me. I'm going to try to round up some friends to picket and toss eggs and CDs at the RIAA scumbags on her day in court!

Re:Assistance

[Spy der Mann]

Please take some pictures and video. While I don't agree with the egg shooting, it would make a nice image to bring banners saying "RIAA = Thieves", "Record companies = Obsolete" or something.

Bring papers stating the futility of DMCA and such, and stand out if the press wants to make interviews. We need more publicity!

Re:Assistance

[cffrost]

So if they have egg on their face, you don't wanna know about it... Right. I smell a rat.

"Spy der Mann," indeed. Your cover's blown. Your days of "spying for der man" are over. You bastard!

Stick to the Facts

[Anonymous Coward]

>
> a divorced mother of five...
>

And exactly what does this have to do with the merits of
the case?

Re:Stick to the Facts

[Anonymous Coward]

It _is_ a fact that she is a divorced mother of five, so WTF is your complaint about "sticking to the facts" supposed to mean?

Re:Stick to the Facts

[Anonymous Coward]

As in, stick to the facts as *relevant* to the case and quit
engaging in progaganda. Being married, divorced, or single
is irrelevant.

Who do you think she is?

[p3d0]

Rosa Parks?

Re:Who do you think she is?

[Anonymous Coward]

Don't be silly. This woman got sued by the RIAA. Rosa Parks invented the bus.

Apples and oranges.

The RIAA is the largest Pirate CD seller

[Anonymous Coward]

Wow. Are there are really people who don't know the RIAA membership itself directs the manufacture and distribution of pirated CDs? They (e.g., executives of the RIAA companies and stampers) make more profit from each pirated CD than they (the corporations) do from the CDs they sell through channels.
 
No pesky taxes, FICA, wages or royalties, etc.
 
That's why, for 'popular' new releases, the RIAA members prefer you to buy 'official' bootlegs over the increasingly (and intentionally) unpopular DRMed CDs.
 
PS: Santa Claus is not actually a real person living at the North Pole.

The RIAA better hope..

[Hohlraum]

that she doesn't use the dreaded Chewbacca defense.

        Ladies and gentlemen of the supposed jury, Chef's attorney would certainly want you to believe that his client wrote "Stinky Britches" ten years ago. And they make a good case. Hell, I almost felt pity myself!

        But ladies and gentlemen of this supposed jury, I have one final thing I want you to consider: Ladies and gentlemen, this [pointing to a picture of Chewbacca] is Chewbacca. Chewbacca is a Wookiee from the planet Kashyyyk, but Chewbacca lives on the planet Endor. Now, think about that. THAT DOES NOT MAKE SENSE! (Background: Damnit! What? He's using the Chewbacca defense!) Why would a Wookiee -- an eight foot tall Wookiee -- want to live on Endor with a bunch of two foot tall Ewoks? That does not make sense!

        But more important, you have to ask yourself, what does this have to do with this case? Nothing. Ladies and gentlemen, it has nothing to do with this case! It does not make sense.

        Look at me, I'm a lawyer defending a major record company, and I'm talkin' about Chewbacca. Does that make sense? Ladies and gentlemen, I am not making any sense. None of this makes sense!

        And so you have to remember, when you're in that jury room deliberating and conjugating the Emancipation Proclamation... Does it make sense? No! Ladies and gentlemen of this supposed jury, it does not make sense.

        If Chewbacca lived on Endor, you must acquit! The defense rests.

http://en.wikipedia.org/wiki/Chewbacca_Defense (actually it was only on a google cache version)

Re:Money and technology

[the.Ceph]

Oh they're fully aware of this and that's why there is a tax on most recordable media I believe, to help them recoup some of the cost. Also often they charge with not downloading but allowing people to download from you and as a result you are redistributing their work.

bullet-proof defense

[v_1_r_u_5]

Claim that you had an open WAP and that a neighbor, a pedestrian, a war driver - anyone - could have been behind your IP. Burden of proof is on the RIAA.

Re:bullet-proof defense

[fwitness]

Burden of going losing your job to go to court everyday for six months to fight it is on good old mom.

Burden of food is on the children, who will now need to learn street-savvy skills to raise themselves, and club rats for food.

But yeah, it's totally the burden of proof for the RIAA.

RIAA is the one at fault

[Con to the Spiracy]

You're addressing the problem of an attacker (the RIAA or their agents) finding you by looking at your network traffic. That's not what they're doing. They are finding nodes that offer files. The problem for the non-lame P2Per is that their node must tell good guys that they have lots of files and must tell bad guys that they have no files. The difficulty is that you can't tell the good guys from the bad guys on the network. One solution is to use private overlay networks, although the recent Finnish case demonstrates that it's hard to keep the "bad guys" (law enforcement in that case) out of the overlay network. Another solution would be use to use recommender systems, perhaps in a PGP style, but I haven't seen a P2P filesharing system that does that yet. Finally, Freenet attempts to give a sending node plausible deniability by hiding the true contents of a file from the sending node. Oh, in case you meant that you were trying to hide network traffic from your network administrators (also "bad guys" from your point of view), then it would be simpler to use encryption (perhaps layering P2P communication over HTTP/SSL or SSH to avoid arousing suspicion). And they have plenty of mney and don't need anymore, so why are they wating their time by trying to ruin one person's life?

Re:RIAA is the one at fault

[larytet]

"Another solution would be use to use recommender systems"

check project Rodi P2P. this is not a "recommender" system, but thanks to certificates and (optionally) signed packets you can create invitation only P2P hub. you can use certificate chains to ensure that only invited by trusted peers clients get access to the content you deliver.

The M$ defence...

[Spock the Baptist]

Your Honor, Ladies, and Gentlemen of the Jury,

My client's computer uses a M$ OS. It was taken over by a hacker via BackOrifice. She did not download any music files. The defense holds that the hacker that installed BackOrifice use my client's computer as screen to download the files for his/her use.

Most folks, as my client, are not computer scientist, nerds, programers, etc.. They do not have the expertise to be able to deal with the clever manipulations of OS that hackers do. Do you really want to convict a person on the basis of the charges leveled by the RIAA. They need to explain, in detail, just how they ***know*** that my client was the one download the files that they allege that my client downloaded. Further they need to prove that my client did not at the time of the downloads that they allege, already legally possess the right to the music that the alleged files contained.

Re:The M$ defence...

[Pranadevil2k]

Interesting. A few nitpicks though: She can't be convicted in this case. Apparently civil trials are only used to dispense monetary reparation for damages, not for sending anyone up the river. Also, I believe the FBI has set precedence that the owner of a computer is responsible for the data on that computer, even if it was put their unknowingly. That means if a trojan went and downloaded songs and sent them off to another system, it'd still be this lady's fault because it's her computer and she is responsible for it.

Re:The M$ defence...

[Spock the Baptist]

Ok...

First off convict is not the word that I should have used. I should have used phraseology in keeping with the civil nature of the case.

Second, the FBI is a criminal investigation organization, therefore their position covers only criminal cases, and not civil cases.

(IANAL)
Third, I'm not sure how federal law works, but Texas law requires that a jury, or judge (in the case of a bench trial) to find that defendant is culpable of the alleged criminal act.

TEXAS PENAL CODE

TITLE 2. GENERAL PRINCIPLES OF CRIMINAL RESPONSIBILITY

CHAPTER 6. CULPABILITY GENERALLY

          6.02. REQUIREMENT OF CULPABILITY. (a) Except as
provided in Subsection (b), a person does not commit an offense
unless he intentionally, knowingly, recklessly, or with criminal
negligence engages in conduct as the definition of the offense
requires.
        (b) If the definition of an offense does not prescribe a
culpable mental state, a culpable mental state is nevertheless
required unless the definition plainly dispenses with any mental
element.
        (c) If the definition of an offense does not prescribe a
culpable mental state, but one is nevertheless required under
Subsection (b), intent, knowledge, or recklessness suffices to
establish criminal responsibility.
        (d) Culpable mental states are classified according to
relative degrees, from highest to lowest, as follows:
                (1) intentional;
                (2) knowing;
                (3) reckless;
                (4) criminal negligence.
        (e) Proof of a higher degree of culpability than that
charged constitutes proof of the culpability charged.

  6.03. DEFINITIONS OF CULPABLE MENTAL STATES. (a) A
person acts intentionally, or with intent, with respect to the
nature of his conduct or to a result of his conduct when it is his
conscious objective or desire to engage in the conduct or cause the
result.
        (b) A person acts knowingly, or with knowledge, with respect
to the nature of his conduct or to circumstances surrounding his
conduct when he is aware of the nature of his conduct or that the
circumstances exist. A person acts knowingly, or with knowledge,
with respect to a result of his conduct when he is aware that his
conduct is reasonably certain to cause the result.
        (c) A person acts recklessly, or is reckless, with respect
to circumstances surrounding his conduct or the result of his
conduct when he is aware of but consciously disregards a
substantial and unjustifiable risk that the circumstances exist or
the result will occur. The risk must be of such a nature and degree
that its disregard constitutes a gross deviation from the standard
of care that an ordinary person would exercise under all the
circumstances as viewed from the actor's standpoint.
        (d) A person acts with criminal negligence, or is criminally
negligent, with respect to circumstances surrounding his conduct or
the result of his conduct when he ought to be aware of a substantial
and unjustifiable risk that the circumstances exist or the result
will occur. The risk must be of such a nature and degree that the
failure to perceive it constitutes a gross deviation from the
standard of care that an ordinary person would exercise under all
the circumstances as viewed from the actor's standpoint.

Support share-friendly artists

[DanTheLewis]

The answer to the downloading conundrum is easy.

1. Go to http://www.archive.org/audio/etreelisting-browse.p hp . All the music is legal, live concert, artist permitted, and free. Download Grateful Dead, 311, G Love and Special Sauce, Cracker, Glen Phillips, Andrew Bird, and the Ditty Bops and so on to your heart's content.

2. Listen to commercial-free streaming audio via ITunes (Radio) and other internet media.

3. Reward the artists whose work you enjoy this way by going to their concerts. Reward any artists whose albums you can hear from front to back for free, like Nickel Creek on CMT.com and the Ditty Bops on dittybops.com.

Re:Support share-friendly artists

[Anonymous Coward]

uhm, wasnt the Dead's music taken off the archive recently?

now, I did read a blurb today from Phil Lesh's site saying that it should return to the archive, but I of course have not followed up on that and actually gone to the archive and looked for myself..

YMMV, rebate only good with UPC, offer good only on Feb 30th etc etc, so long n' thanks for all the fish~

Re:RIAA problem fester, won't fix it - revolting

[Anpheus]

You're still talking about the RIAA still and not some political campaign or dictatorship, right?

Hey, Listen Up Everyone!

[kp_sidekick]

I have an idea for the RIAA: Why not sue everyone for listening to the music... let alone sharing it. Shouldn't we own it before we can even listen to it? And being that it's impossible to own it, because of copyright etc., just sue us til we have nothing to even buy the music in the first place. On a more serious note: Make your music affordable to everyone... then and only then will the sales of your work flourish. Make custom made CDs that consumers like! There are so many times I've gone to the store to find individual songs and had to buy a whole album with one or two songs on it! AAAaaargh!!! I want customized CDs made for me. Like Dell, give us a site where we can customize our order... with the music we love. And if someone wants to buy a cheap custom CD, put some advertisements on it or promotions, to pay for your costs...(not DRM root-kits though, that's just plain wrong!)

Not innocent until proven guilty in civil court

[bziman]

The burden of proof is on the RIAA. They are the ones that are accusing her of downloading music illegally. Now, just because it's her computer doesn't matter; It's like accusing someone getting killed by a gun. Simply showing ownership of who the gun belongs to is not enough to show who done it.

I'm not a lawyer, but in civil litigation, isn't it the responsibility of the defendant to prove that the plaintiff's claim is invalid? And then, it's only based on a preponderance of evidance, not beyond a reasonable doubt.

So basically, if you get sued, it's up to you to convince the judge or jury that it's at least 51% likely that you shouldn't be assigned liability for the claim.

The rules favor the plaintiff, not the defendant, unlike in criminal law. At least, that's what I recall from my cyber-law class.

-brian

Re:Not innocent until proven guilty in civil court

[elysian1]

Not exactly. In civil litigation, the plaintiff has to make a prima facie case, meaning he has to sufficiently plead his case. If he does that, then the burden gets shifted to the defendant. This goes on back and forth as both sides present evidence, testimony, arguments about the law, etc. At the end, whomever pushes the burden slightly past the 50% mark wins.

Re:Not innocent until proven guilty in civil court

[Plunky]

Well, either way..

"How many people including yourself have access to free computer"

"Me, my five kids and their friends"

so, at least six. seems more likely that it was not her than that it was her.

I worked on a laptop...

[Newer Guy]

I worked on a laptop that belonged to the 48 Year old married Sales Manager of a radio Station I used to work for. She was complaining that it was very slow and it also slowed down her cable Internet connection when it was on at her home.

I found about 30 gigabytes of porn on it. Almost 3/4 of the HD was porno. There was quite a bit of kiddie porn there too. Somehow she had gotten a Trojan Horse on her computer and it had turned the laptop into a porn server. The reason her connection was so slow at home was that her machine was downloading porn to the perp!

Since then, I've NEVER assumed ANYTHING about any computer!

Let's hear it for "little guys"

[Anonymous Coward]

Why do they always seem to pick on the "little guy"? A divorced mother of 5?

Coincidentally, today is the anniversary of when the powers that be picked on another "little guy".

I, for one, am all for it, because it underscores the absurdity of the situation.

Even if RIAA wins...

[dcavanaugh]

Let's assume the RIAA is 100% right, and the defendant has done everything they are accused of. The concept of damages will be interesting. I seriously doubt that the defendant made songs available for download that were not already available via P2P. The "lost" revenue is really just the money the defendant would have paid, IF they chose to buy the songs. Yahoo music service is what, $5/month? So if she paid Yahoo $5/month, she could have downloaded all of these songs (and the P2P underworld would have had all of the same songs anyway). I'd love to know how the RIAA thinks they can prove damages in excess of $5/month.

Re:Even if RIAA wins...

[HTL2001]

Sharing. At least, thats how they justify it. Doesn't mean its right, though.

This goes into the copyright section more than just lost potental revinue from the defendant, but from people who downloaded from the defendant

And having a P2P program automaticly means you uploaded the file to 3950380129843 people acording to the RIAA, so....

Re:Even if RIAA wins...

[dcavanaugh]

OK, so using RIAA logic, the defendant is sharing a copy of "Cmdr. Taco's greatest hits", along with 3950380129843 others who are offering the same file. If the defendant goes away, there are 3950380129842 people still offering the file, therefore the total number of transfers remains exactly the same. Maybe it takes someone 15 seconds longer because one less source is available. It's not like the loss of a single member has any significant impact on the ability of downloaders to find what they want and get it. The damages they collect from an individual defendant can only reflect the direct result of infringement. If they want to collect upon the actions of the entire group, then they have to go track down the entire group. Lotsa luck.

Re:Even if RIAA wins...

[HTL2001]

Exactly. This is why what the RIAA is doing is pointless & stupid.

I didn't say I agreed or that it was at all effective. That's just the way they think (if you have a better explanation, aside from them knowing it has no impact on sales and just wanting some extra revinue, post it)

Re:Even if RIAA wins...

[milimetric]

i was going to mod down, but explanation is better:

$5 a month is not for downloading, it's for listening. It's 79 cents a track to download. That's why that argument doesn't make sense. But close...

twisted

[DanTheLewis]

I think the point of the story is that she is having to either cough up a lot of money or waste a lot of time, whether she's guilty or not. When you have a large family and you are living at the margins (like most people in America), the two things you don't have a lot of are time and money. I have enough trouble going to school fulltime and work another halftime and being a father to only one kid with a loving wife as my partner for life. Her life is going on hold because she wants to be innocent in a court of law.

I don't know this woman's life story and neither do you, but hey, maybe you get sexual pleasure in calling women sluts on Slashdot and imagining how dirty they are. I could understand the sick psychological makeup that would drive you to such behavior. Oh oops, did I malign your character? And I've never met you? My mistake.

Maybe you and your neocon buddies (oops again! I've really never met you) think enforcing unjust laws disproportionately against the poor is just the way the world works, so the rest of us bleeding hearts should just suck it up and quit whining about the unfairness of it all. The nerve of us!

Maybe someone should sue you for nothing sometime. Then I could tell someone else on Slashdot to shut up and stop defending you because after all, it's the law.

Why not kill the entire industry and start over.

[Negroiso]

Hell, why don't we all just stop buying cd's records all together. Fuck the RIAA, FCC, MPAA and every other damn orginization. Lets throw in the Bush Administration, Congress, and all elected officials. START OVER!

As Bill Hicks said "Hitler had the right idea, he was just an under achiever. "START OVER KILL THEM ALL!".

I am totally down for paying 5$ a month for music that I can burn and listen to in my vehicle or on my mp3 player, psp, whatever it may be.

Why not take those billions and billions that your spending to go investigate a few 100 mp3's that you can fucking google for and downlad, and make some real goddamn music.

I really think good music stoped in the 1970's. Since then NIN and TOOL has been about the only good thing.

Fuck POP, RAP, Country and all that garbage.

Shit people, stop buying cd's and they wont have funds to be chasing after you. Hell run into your local cd store with about 40 friends, grab all the cd's you can and burn them. YOu can't stop the masses.

The RIAA is retarded.

[br0pbr0p]

They go after those who download a few songs and yet there are tons of people running around with gigabytes of songs. If you are going to sue, at least sue someone who downloads and uploads. Downloading doesn't hurt your business as much as uploading. If you cut off the upload, what's there to download? But then, the RIAA are run by idiots, so can't expect too much from them. Can't wait til they screw themselves over with these lawsuits.

Re:The RIAA is retarded.

[HTL2001]

The people who do it a lot know what they are doing (usually) and probably can avoid detection better.

Those who are more casual are more open to their spyware infections, so the RIAA can have "proof" of their downloading

Re:The RIAA is retarded.

[Anonymous Coward]

Those who are more casual are more open to their spyware infections, so the RIAA can have "proof" of their downloading

Don't propogate misinformation. They don't use spyware to catch p2pers. It
would have the same issue with Sony's rootkit. What license agreement was acknowledged by both parties for the purposes of loading this spyware on a private machine and what disclaimers were made as to its effects. That would all come out in the wash.

It's easier than that. They simply need to search for whom is sharing their artists music.

you forget

[periol]

it's all about control

Plausible denyabilty

[Anonymous Coward]

You Sir, are a Genius.

Only if fools like you were allowed on juries

[Ogemaniac]

Your logic of "if the victim is rich, the crime isn't a crime" is somewhere between utterly stupid and utterly dangerous. Please take your pick.

I have seen some pretty dumb lines of reasoning around here before, but you may have just beaten them all. Perhaps you are joking...

Re:Only if fools like you were allowed on juries

[Anonymous Coward]

No, that's actually a legitimate socialist line of thinking.

It relates to the fact that anyone who is rich has become that way through criminal acts, and if the government won't deal with them properly, it is the right and responsibility of individuals to deal with them.

It certainly applies to the RIAA. The companies of the RIAA became wealthy by stomping on individuals ("artists" or whatever) who did the actual work. In a properly socialist society this would be criminal.

There is also the issue of degree of harm from a crime. It IS a different crime to steal $10 from a homeless person, from a middle class person, or a wealthy person - because the degree of harm caused to that person is vastly different. The homeless person may have been deprived of several days of food. The middle class person will find it inconvenient, and will probably spend some time looking for the missing money. The wealthy person will be no more inconvenienced than if he had dropped a penny.

That's why crimes of physical violence are (in the real world) different from property crimes - all three hypothetical people would be equally inconvenienced by being punched in the face.

The RIAA in this case has even tried to create rediculously inflated levels of harm from the sharing of music, which may even be argued is a natural human tendency. They've done this because they (as a wealthy organization) want people to think that they've been harmed more than they have been.

Re:Only if fools like you were allowed on juries

[HuguesT]

This goes both ways. Rich people can litteraly get away with murder (need I give examples?), or in this case they can harass people based on very little evidence because they can afford to pay lawyers.

Which behaviour do you find the most repulsive?

Re:Why not kill the entire industry and start over

[Anonymous Coward]

Run into the local Target and go into the music section. Take the $50 gift cards for the iTunes store to the back of the Target and record all the numbers

Check out Anonymous P2P

[ELiTe185]

Wikipedia has a great Wiki on the subject. There is also a Forum called Planet Peer which is all about Anonymous P2P. Both of these are great starting points for checking out this supposed "third generation" of P2Ping.

Some of the Wiki is inaccurate or old. Basically, these revolutionary programs hide your IP address, encrypt all data transfers, and route all information through several middle-men. This effectively thwarts the RIAA (or anyone else for that matter) from identifying who is sending what. The different programs use different methods. Most of the networks are small, but they are all growing.

For a start, try Ants.

Ignore the comment on Wiki saying "the Recording Industry Association of America has successfully tracked and threatened to sue some users on non-anonymous P2P networks." This was a long time ago on an old and flawed program in Japan. Anonymous P2Ping has come a long way since then. Give it a try.

Everyone should try Anonymous P2Ping

[ELiTe185]

Wikipedia has a great Wiki on the subject. There is also a Forum called Planet Peer which is all about Anonymous P2P. Both of these are great starting points for checking out this supposed "third generation" of P2Ping.

Some of the Wiki is inaccurate or old. Basically, these revolutionary programs hide your IP address, encrypt all data transfers, and route all information through several middle-men. This effectively thwarts the RIAA (or anyone else for that matter) from identifying who is sending what. The different programs use different methods. Most of the networks are small, but they are all growing.

For a start, try Ants.

Ignore the comment on Wiki saying "the Recording Industry Association of America has successfully tracked and threatened to sue some users on non-anonymous P2P networks." This was a long time ago on an old and flawed program in Japan. Anonymous P2Ping has come a long way since then. Give it a try.

I looked just now

[DanTheLewis]

http://www.archive.org/audio/etreelisting-browse.p hp?collection=etree&cat=Grateful%20Dead

I noticed when the Grateful Dead shows went off but I didn't know why. Now it shows there are 1100 shows back there (still not all of them back). Maybe putting the other 1500 back on is why the archive has been running slowly today.

I'm having trouble clicking through the link now, so who knows what the deal is.

Re:I looked just now

[loraksus]

Garcia's widow threatened to sue, archive.org pulled it.
Happened about a week and a half ago.

Re:I looked just now

[fishbowl]

"Garcia's widow threatened to sue, archive.org pulled it.
Happened about a week and a half ago."

She has been trying to milk something out of that band since before Jerry died.
It's so bad, everybody else has basically walked away, dissolved the production company, and moved on to new and different projects, or gone into retirement.
I think it's hilarious how she alienated herself from the only people who could have given her what she wanted.

Wouldn't surpise me one bit if the stress of dealing with Debra contributed to Jerry's death.

She really is a piece of work. Seriously. The people who had to be close to her totally hated her. The whole reason the surviving members re-formed the band as "The Dead" was to sever the business organization in the Garcia estate, which Debra controlled, so that she couldn't control it.

So it's no big surprise that she'd threaten Archive.org.

I have a big problem with this, though. See, Archive.org did a great thing. They consolidated a lot of the material that had been circulating in umpteen different circles. They did that so well, that they successfully *replaced* all that whole distributed scene. Everybody contributed to Archive.org instead. But Archive.org didn't have the foresight to exist outside of US civil jurisdiction, and didn't have the balls to stand up to legal threats, giving in to a mere cease and desist letter (as opposed to a court order.)

So by doing what they did so well, they ended up destroying the scene that they were trying to help.

What's probably going to end up happening, is Phil, who reserves distribution rights on pretty much everything, will put the smack down on whoever is trying to go over his head. That'll take time, but it might even end up with the music being distributed on a system of his. In a fight between Debra's people, who control a holding company with a trademark, and Phil, who controls songwriter and performer rights, Phil will win.

Seriously, they all hate her guts. I don't even think Jerry liked her very much after the honeymoon was over.

Together we stand...

[phorm]

Yes, but if 14,000 people donated $100 each to one or two specific lawsuits, then that's a $1.4m retainer to fight back against the RIAA with. Set a precedent and possibly even hit them back for extortion and then we're talkin'

That's me.

[www.sorehands.com]

But, I am/was suing them (the first time) because they violated the employment laws and after discovery they paid me 3 years salary instead of risking a jury awarding more. Then, I sued after they refused to drop a libel claim, a libel claim without a real basis that they only brought to shut me up.

This difference is that I don't bring my claims to terrorize.

Re:Possiblity of Innocence vs. Burden of proof

[dodongo]

I'm not a lawyer, but I am a linguist. I think there's quite a telltale in the subject line of parent -- not meant at all to be an attack on the poster, who makes very good points about exactly what I'm writing about.

In the American judicial system, the point is not to prove one's innocence, but rather, that the complaining party must prove the defendant's guilt. Hence why jury verdicts are read as "(not) guilty" and never "innocent". The system doesn't care if you did it or not. The system cares if it can be proved beyond a reasonable dobut that you did it. And if the complaining party falls short of that burden of proof, you are released, regardless of your innocence or lack thereof. It's part and parcel of the Founding Fathers' (and the continuance thereof by legal scholars) bit on freedoms being of paramount concern.

Furthermore, I think this whole push by RIAA / MPAA to describe filesharing as stealing is exactly the kind of metaphorical talk that's designed to prime the minds of policy makers to react to these transgressions in a certain sort of way. If it was just described as copying (which, by any account, illegal or quasi-legal duplication of these sorts of copyrighted media is), there isn't nearly the feeling of loss or mistreatement to the party that controls the source work.

If the people in the policy process are trained to think of downloading a song from Napster or whatever the P2P flavor of the week is as a form of stealing, that implies along with it the material loss of something which has fair-market valuation. By talking about it as "stealing", and introducing legal and political discourse as such, RIAA moves the focus from the monetary value of what they're actually losing -- which isn't much in the long run -- and shifts it to treating each download as though someone had actually stolen the physical CD or single from the record store. There's a huge difference, and it will be interesting to see how this plays out in a court, especially if the trial reaches a damages phase.

It's more significant than the common sense aspect

[sacrilicious]

it's kind of common sense that "we don't have to rule against this person if we don't want him or her punished."

Unfortunately, a court of law has numerous restrictions on the ways in which "common sense" can be applied. A perfect example would be when a jury is instructed to disregard testimony it just heard, even if the basis for the instruction is not that the testimony is false or misleading. Honestly, a lot of jurors are intimidated by court rooms and lawyers and judges, and find themselves contemplating things like justice and The Rule Of Law on a level more personal than anything that came before jury duty. This makes the fact that we have a formal constitutional right to jury nullifaction much more than a minor assist to common sense... it allows jurors who want to follow strictly legal pathways to do so, even when nullifying a law.

Outlawing unsecured WiFi

[tlambert]

Outlawing unsecured WiFi is not being attempted, as you suggest, because people are using unsecured WiFi to generate plausible deniability.

The primary reasons corporations are atempting to get it outlawed are that outlawing them ensures each apartment in a complex pays for a link, rather than some subset, and because it competes with the business models which attempt to sell "hot spot" access, either as a marketing technique (e.g. Starbucks), or as a direct seller of the access itself (i.e. you can't sell what someone else is giving away for free).

It has nothing to do with RIAA and everything to do with increasing revenue without addign additional real value.

-- Terry

Not quite....

[Svartalf]

Per the Audio Home Recording Act...

"No action may be brought under this title alleging infringement of copyright based on the manufacture, importation, or distribution of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings."

You can legally make copies of things, so long as you're personally copying someone else's instance of the protected work while it's in their posession and you're not doing it for profit. You've already paid the compulsory royalties on the media and the device in most cases.

Re:Not quite....

[amuro98]

That passage only allows consumers to USE equipment and media to make digital or analog recordings. It says nothing about HOW you use them.

If your comment was true, then Napster would never have been shut down since it would be legal to copy music so long as you did so from someone who owns the CD.

I am stunned

[Anonymous Coward]

Jury nullification is not a loophole, it exists to remind the government that it has a fourth branch..."The People".

Dude..

That is simply beautiful. It feels so wierd just reading that.

(+5 poetic)

Check the Audio Home Recording Act...

[Svartalf]

It doesn't say anything of the sort...

"No action may be brought under this title alleging infringement of copyright based on the manufacture, importation, or distribution of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings."

When the government agreed to let them collect money on the potential of infringements done by way of tape and CD, they also took away their right to pursue infringements regarding the same when they enacted the AHRA. You have already paid the royalties in most cases, so it's not really illegal. Now, this only applies to AUDIO- I don't believe there's an analog for video present.

Re:Check the Audio Home Recording Act...

[Macadamizer]

Just a comment, that section only applies to manufacturers of devices and media, it does not apply to the end user who may use them. This section is a result of the Betamax case, Universal v. Sony -- it basically lets Sony make DAT recorders and the like without being sued for infringement, but it doesn't indemnify the users of said DAT recorder if they are using the DAT recorder to make unlawful copies of a copyrighted work.

The restrictions on the creation and use of archival copies is real, and if you violate those restrictions it's really illegal. The case that established the concept of the archival backup and expressed its limitations is Vault Corp. v. Quaid Software, Ltd., 847 F.2d 255 (5th Cir. 1988). The Quaid ruling was extended to audio files, and a good review of the limitations on copying and backing up audio can be found in Recording Indus. Ass'n of Am. v. Diamond Multimedia Sys., 180 F.3d 1072 (9th Cir. 1999).

Re:Check the Audio Home Recording Act...

[Svartalf]

"or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings."

Considering that the Copyright laws don't directly apply in that timeframe (The DMCA changed things, mind...) to the device manufacturers themselves save for deliberate design work to provide infringements but applied to the people doing the infringing, the above portion of the passage applies to you and I. There is a small extra amount applied to all devices and media that is paid to the labels, ostensibly to reimburse the artists for "losses" incurred due to casual copying performed by devices by individuals in a not for profit manner. In order for them to do this, the government had to give something back (because they weren't corrupt like they are these days, they still viewed things as give or take- nowadays with the take, take, take mentality...), in this case, it's a defense to prosecution to say "I'm a consumer and I did it just for myself with personal equipment...". You've paid for the act in question as the fees charged on consumer recording equipment and media has been assessed against it as a compulsory license on the works in question.

Re:Check the Audio Home Recording Act...

[Macadamizer]

I know this is a late reply, and I appreciate your response, but I think you are still missing the point -- this particular section does not indemnify consumers based on "the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings" -- rather, it protects the manufacturers. In other words, "the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings" cannot be used to hold the manufacturer directly, contributorily or vicariously liable for copyright infringement.

Whether the consumers themselves are liable for infringement based on the "noncommerical use" will be based on statutory fair use, 17 USC 107. But whether or not a use is found to be "fair" when the consumer does it, it can't be used to hold the manufacturers laible under this section.

Re:Check the Audio Home Recording Act...

[Svartalf]

Don't worry about the late reply... All these things typically end up being is people closing off arguments (which, when done this way is fun anyhow...). Now, on to your latest comment...

Considering that the acts of Infringement can't be applied to a tool supplier, save for contributory infringement (and that's not what I see the AHRA talking to there...), it's odd to say the least to refer to the consumer in this matter. I guess my understanding is a little different than yours on this one.

My understanding is from how my dealings with Copyright and Patent law, due to my being an SF Author (not published, mind, but it's not because of a lack of trying... :-), a software engineer for hire, a computer games developer, and a Patented Inventor. I won't say that I'm a 100% reliable resource, since I'm not a lawyer. But, when they specifically mention out something along the lines of the discussed passage, it's typically meant literally- they can't bring an action against a consumer using the device to infringe in a non-commercial manner, not that the manufacuterer can't be held for contributory infringement. In this case, you have to consider that they're charging a compulsory royalty license on each and every analog audio playback capable device in existence with the AHRA- why? Because they wanted to get reimbursed for any potential losses due to recording media by individuals. So, they gave it to them with the understanding that copying is licensed in the context of personal re-recording of protected works for non-profit reasons, incl. fair use ones. Now, this may not be the case, but everything else points to what I'm saying. Otherwise, they shouldn't be able to charge us that Tariff on devices and media- legally.

The RIAA is EVIL.

[rice_burners_suck]

The court should order the RIAA to shut down immediately and give all of its assets and all of the assets of its shareholders and all the assets of its directors and all the assets of its officers and all the assets of its employees to this poor lady. Then, all the shareholders, directors, officers, and employees of the RIAA should be arrested and imprisoned in Abu Ghraib prison forever without a trial and with no due process. The RIAA is EVIL and it should be treated as such and abolished.

Re:The RIAA is EVIL.

[Anonymous Coward]

Yup, I'd go along with that. In fact I'd go further.

I'd shut America down immediately, destroy the weapons, and give all of the remaining assets to the remainder of the original inhabitants.

The invaders should then be shipped back to Europe and Africa, except the politicians and state employees, who should be shipped to the third world and imprisoned there forever without a trial and with no due process. America is EVIL and it should be treated as such and abolished.

Re:The RIAA is EVIL.

[Anonymous Coward]

There is considerable evidence that the Americas were settled in waves over tens of thousands of years. How exactly are we going to determine who the "original inhabitants" were? Before you start giving some extant tribe $$ you might check just to make darned sure they didnt displace someone else when settling their "ancestral lands". Wow... RIAA to prehistoric settlement of the americas... only on slashdot.

MPAA using my access point

[HongKongHARRY]

So if my apt here in LA is next to the MPAA main corp office, and their employees are using my access point to download music and movies while at work....who sues who? RIAA vs ME, RIAA vs MPAA, MPAA vs its employees, RIAA vs MPAA employees, Everyone VS Me.....or ME vs EVERYONE for using my stuff.....and NOT PAYING.

Damages

[bezuwork's friend]

Actually, the copyright law allows for statutory damages. That is, in lieu of actual damages, the statute sets forth set damage ranges per work infringed. The RIAA is most certainly suing under statutory damages.

The RIAA can sue for ... wait for it (it'll make you sick) ... $750 to 30K per song. That's without proving willful (intentional) action. If the RIAA can prove intent, the statutory limit is $150K per song.

That doesn't mean they'll get the maximum, but that's the values given in the US Code. See 17 USC 504.

That's why I think people cave, the possibility is out there that they will lose everything they own.

Outrageous? Absolutely. Thank our past congresscritters and Presidents for that one. Oh, and the likes of Disney and the heirs of Gerschwin, for that matter.

Re: John Jay & John Adams

[Maxo-Texas]

The jury has the right to judge both the law as well as the facts in controversy.
John Jay, 1st Chief Justice of the Supreme Court.

It would be an absurdity for jurors to be required to accept the judge's view of hte law, against their own opinion, judgement, and conscience.
John Adams

and a couple others from other times and places..

Laws do not persuade just because they threaten
Lucius Annaeus Seneca

Every actual state is corrupt. Good men must not obey laws too well.
Ralph Waldo Emerson

Just as it is the duty of all me to obey just laws, so it is the duty of all men
to disobey unjust laws.
Martin Luthe King, Jr.

The law of self preservation is higher than written law.
Thomas Jefferson

So

[StarKruzr]

Does that mean the judge says "fuck you" to the jury?

Re:So

[dgatwood]

Basically.

Re:Why not kill the entire industry and start over

[Anonymous Coward]

you got "negro" as the first 5 letters of your id and you're saying "fuck rap?"

Not Good for a hung jury.

[Anonymous Coward]

And the difference between jury nullification and a hung jury is?

Re:Not Good for a hung jury.

[Cl1mh4224rd]

And the difference between jury nullification and a hung jury is?

...a Wikipedia away...

Jury nullification: "Jury nullification is a jury's refusal to render a verdict according to the law, as instructed by the court, regardless of the weight of evidence presented."

Hung jury: "A hung jury is a jury whose required majority can not reach or agree upon a unanimous verdict after an extended period of deliberation and is deadlocked with irreconcilable differences of opinion."

Assuming this really does get to court...

[TV_Slug]

I'd really hope the defendant's lawyers do a good job during the discovery process. They should be able to request all the records the RIAA has concerning their various investigations into alleged infringements, not just the cases they have been prosecuting. When they produce a list of corporate infringing IPs, it's going to seem odd that the RIAA is only going after shallow-pocketed individuals. If I remember correctly, to enforce copyright you are required to pursue all known violations in order to maintain the copyright. Maybe this case will force the RIAA to start filing many, many more lawsuits, including going after large companies as well. What happens once a Microsoft, Google, or .gov IP shows up on their hit list?

Re:Assuming this really does get to court...

[surprise_audit]

Personally, I'd like to see a Congressman's name on the list, or a Senator... I don't know if they have to pursue *all* known violations - I think you've confused that with trademark violations - but if they *had* to go after highly placed public figures, maybe the legislation would experience a swift reversal... Hmmm, I wonder if one of Dubya's kids might have *ever* downloaded anything??

Re:Assuming this really does get to court...

[stubear]

"If I remember correctly, to enforce copyright you are required to pursue all known violations in order to maintain the copyright."

You need to have your memory checked then. You can enforce copyright anyway you see fit. You appear to be confusing this with trademark protection.

Re:Assuming this really does get to court...

[TV_Slug]

You are correct on the trademark issue and, more importantly, the first of three to correct me. Glad you commented on the more important part also. I'll have to remember to always include an error in every post. The score certainly increases fast when multiple people point out the same error.

Most of these *have* pirated music

[ericbg05]

1 out of 14,800 lawsuits. Gosh that sounds like organized crime....RIAA shaking down 14,800 people for money.

Even if RIAA is evil, that doesn't mean that they're wrong.

Does it suck that normal citizens have tons of trouble going head-to-head with huge evil corporations? Of course. Is RIAA really evil? I honestly don't know.

But I'd be unsurprised if 99% of the people they threaten with litigation actually did download music illegally.

Of course it also sucks that those who have not done anything wrong are better off settling. This is a problem we should definitely be talking about.

But again, I'm not sure this woman didn't do anything wrong. If you don't want to get dragged into some big dramatic legal thing, make absolutely sure that no illegal bits ever come close to your IP address. That includes not letting Dennis The Menace touch your computer if you don't know how to prevent him from downloading crap onto it.

Yes, this means "they won". You have to be responsible for the bits on your computer, and you have to pay for music you listen to. Did you think this free music thing was gonna last forever?

Once we've all come to grips with that reality, then we can turn our thoughts to Fixing The Legal System. Lemme know what yall come up with -- I'm gonna go watch TV.

Re:Most of these *have* pirated music

[Jah-Wren Ryel]

Yes, this means "they won". You have to be responsible for the bits on your computer, and you have to pay for music you listen to. Did you think this free music thing was gonna last forever?

Why not? If it costs $0 to make a copy, why shouldn't it be free to get a copy?

Oh... you think the artist has to get paid and the only way to do that is to charge for each copy.

When you go to work at the office you get paid for the time you spend working, right? But once you've worked for a whole month, you can't just quit your job and then expect to get paid over and over for that work you did during the first month can you? So tell me, why should artists or promoters or distribution companies expect to get paid over and over again for the same work if you, end every other peon can't?

Re:Most of these *have* pirated music

[Anonymous Coward]

Did you think this free music thing was gonna last forever?

Maybe not free, but at least significantly cheaper music is what is going to last forever.

The recording industry exists because when people first started to record music there was a significant economic barrier to recording, duplicating, and distributing the product. It cost a lot of money to build a recording studio, duplicate the recording, establish relationships with stores, and ship the media to them. So the record industry has a lot of money already invested in infrastructure (studios, record stores, distribution agreements, etc.) that is or is becoming worthless. Hence, the high cost of recordings.

Today, the equipment to create commercial quality recordings is cheap enough that anyone with a job (not to mention a whole band with jobs) can either buy them or get access to them. With p2p like BitTorrent you can even get a fairly reliable and virtually free distribution network.

"How do musicians find people to buy their music without the marketing that the recording industry provides?" you say.

The same ways they did before the recording industry. By being great musicians and performers. All the musicians I listen to I find from word of mouth, either from friends or online, because they're great musicians. The recording industry has used MTV to shovle crappy music down the throats of 14 year-old girls with an excess of disposable income that don't know any better.

In the new music industry, where distributing recordings is so cheap, you might just give your recordings away anyway to help you you sell the product that cannot be infinitly reproduced at no cost, but can have infinite value: your performance. Already musicians make most of their money by selling tickets and swag at their performances. A great live performance can never be captured on a CD or DVD. It can have qualities that can never be reproduced. Those who can make that product will and should survive and the result will be better music for all.

There you go. The record companies are going to hit the economic reality that their product has almost no inherent value, they will become almost non-existent, and recordings may in fact be free for a very good reason.

Re:Most of these *have* pirated music

[Anonymous Coward]

If you don't want to get dragged into some big dramatic legal thing, make absolutely sure that no illegal bits ever come close to your IP address. That includes not letting Dennis The Menace touch your computer if you don't know how to prevent him from downloading crap onto it.

So all PC buyers must show valid certification as Network admins before being allowed to get net access? 99.9999% of PC users have NO idea how the net works, how their pc works, nor to they care. They could no more lock down a computer, than they could split an atom (or set up Linux for that matter). The RIAA counts on this to persue their claims. As a previous poster mentioned, these douche bags have grabbed about 44 million dollars from consumers, because the people can't defend themselves.

May the RIAA burn in hell.

Re:Most of these *have* pirated music

[vertinox]

Even if RIAA is evil, that doesn't mean that they're wrong.

Wrong does not always mean illegal. Legal does not always mean right.

Total BS!

[Vskye]

Back in the day, I used to purchase a new album and copy it to a cassette tape or reel-to-reel and that was the "only" time the record was used. I had a quite extensive collection, exceeding 200
albums. So, WTF is the difference if you copy a frick'in CD? If my friend "Joe" had purchased the
same CD and his dog "Fred" bit into it, and I posted the CD on LimeWire for him to grab, I'm guilty?

Excuse me, but fuck the RIAA. If some other person grabbed it while sharing it with a legit
owner, then pursue them... and I hope they all have a original copy, (pawn shops anyone?) and then
sue 'em. Burden of proof is on the RIAA, so prove that I didn't purchase the CD on such and such a date. Ugh!

Not Good for a Pictionary.

[Anonymous Coward]

*sigh*

Do try to go beyond the dictionary, will you?

The point is that in both situations the outcome is the same regardless of how it occured.

The thing one has to ask is "what happens after"?

Re:Not Good for a Pictionary.

[Anonymous Coward]

After a hung jury, the case may be retried before a different jury.

In the case of jury nullification, if the verdict was an acquittal, the defendent can not be retried.

It's not piracy!

[MarkByers]

Go after the people selling the pirated music!

Just because its ridiculously expensive doesn't mean that you can call it 'pirated music'. Jeez, people these days call anything at all 'piracy'.

The correct term for this crime is 'price-fixing'.

Re:Possiblity of Innocence vs. Burden of proof

[cpt kangarooski]

I'm not a lawyer

I am!

In the American judicial system, the point is not to prove one's innocence, but rather, that the complaining party must prove the defendant's guilt. Hence why jury verdicts are read as "(not) guilty" and never "innocent".

Setting aside that it's a bit odd to think of there just being one American judicial system, a discussion of guilt or innocence is pointless here. This is not a criminal trial, it is a civil trial. The issue is whether the defendant is liable or not, and there are some important differences between criminal and civil trials.

The system cares if it can be proved beyond a reasonable dobut that you did it.

For example, in a civil action, the beyond a reasonable doubt standard does not apply. Instead, the typical standard is the far lower preponderance of the evidence standard, which is a simple weighing of probability, i.e. if there is a 51% chance that you did it, then it's a fact.

Furthermore, I think this whole push by RIAA / MPAA to describe filesharing as stealing is exactly the kind of metaphorical talk that's designed to prime the minds of policy makers to react to these transgressions in a certain sort of way. If it was just described as copying (which, by any account, illegal or quasi-legal duplication of these sorts of copyrighted media is), there isn't nearly the feeling of loss or mistreatement to the party that controls the source work.

True, although you probably don't have to be all that cunning to figure that out.

Something which has fair-market valuation

In the typical copyright infringement case against Joe Downloader, valuation isn't a factor. The plaintiff will opt for statutory damages, which are more or less large arbitrary values unrelated to the actual harm done. For example, let's say that you infringe a copyright by downloading a movie that's out on DVD. While the loss to the plaintiff might be a mere $20 or so, the least you're going to end up paying is $700, and it could easily go as high as $150,000.

Re:It's more significant than the common sense asp

[hunterx11]

I've heard this whole "constitutional right to jury nullification" meme before, but nobody has pointed out to me just where this is enumerated; could you please humor me?

Seems like you have it backwards.

[SuperKendall]

You lose the plausible deniability if you admit that you intentionally did something for plausible deniability.

That makes no sense. Remember he did not say he was actually downloading anything, just that he left it open and so if ever accused would offer that up for plausable deniability.

If anything his post strengthens his case as it establishes that at least on this date, he probably has an open AP. So if the RIAA sue him later and accuss him of putting up the AP after the violation letter came, he can point to that post as partial proof he had the AP up earlier.

Re:Seems like you have it backwards.

[Poleris]

The point is that if he ever gets sued and this post is dug up, the RIAA can point out that he intentionally put up the AP for plausible deniability, therefore nullifying his claim to plausible deniability. He definatly would not want to bring up this post.

Re:Seems like you have it backwards.

[Anonymous Coward]

If anything his post strengthens his case as it establishes that at least on this date, he probably has an open AP. So if the RIAA sue him later and accuss him of putting up the AP after the violation letter came, he can point to that post as partial proof he had the AP up earlier.

I wonder if RIAA agents read slashdot..

The RIAA goons are probably outside his house right now, downloading all sorts of copyright material and printing off the violation letter to post in the box across the street.

Hmm, think I'll be an AC on this one.. :)

Re:Seems like you have it backwards.

[Anonymous Coward]

So, would that be:

"In-plausible deniability"

or

"Plausible un-deniability"?

Re:Seems like you have it backwards.

[greed]

I think we really want to be talking about "reasonable doubt" and not "plausible deniablility".

Except, in civil suits, it's "balance of probability".

So, having an intentionally-open access point to allow others access to the network increases doubt that the accused, or the accused's computer, performed the allegedly infringing download. (The access point being separate from the computer.)

new organization

[pintomp3]

MARIAA?

How bout support to set precedent?

[ami-in-hamburg]

She should setup some type of bank account or something so that people who want to can contribute to her legal costs and join the fight! I imagine a whole lot of people interested in how personal privacy and legal rights have been eroding lately would be more than happy to contribute a couple dollars each.

It would go a long way in bringing public awareness to just how heavy-handed the **IAs are coming down on individuals and send a clear message that we're ready to fight back!

Just a thought.

Re:It's more significant than the common sense asp

[sumdumass]

It isn't a constitutional right it is a tort preceeding. common law if you must. It is in the same manor of how a judge can decide this law is meant to be applied in this way and thereby creating a different law all together. It is built into the fabric of the judicial system and is the basis of how a guy can shoot someone stabbing his wife and yelling your next in a state with no self defence laws and not be convicted of a crime.

Ohio for instance, untill reletivly recent, didn't have any laws pertaining to self defense. If you punched a guy that was clubbing you, you were just as guilty of asault as the original asaulter. Jurry nullification has basicaly made the asault laws unenforcable or at least weakened them to the a point were a prosecuter couln't win a case by charging a man being beaten for fighting back. In that situation, the law was deam unjust and unenforcable. This still leave someone the burdon of proving the facts were as claimed though. It isn't an out for someoen to provoke a fight and then pretend to be inocent so it can still be enforced.

Jurry nullification in this case could come in the form of you have to be certain a said person was the one actualy responcible for the copyright infraction. In a civil trial you have a lot more roo for dougbt then a criminal trial so nullification could actualy just implse stronger requirments for proof while keeping the laws enforcable for those blatently violating it. Analogies suck in these situations because you can change what parts of the laws that can be applied by the actions of the jurry. Copyright law is pretty specific in that the person violating it is the one causing harm. The store that let sold you the cds or cassete tapes even though it was likley you were going to copy somehtign doesn't get charged with anyhting. Simularly, you providing your computer to someoen else, shouldn't automaticaly mean you are guilty of somethign thye might have done or somethign that a mistake might have made people think you have done.

This will be an interesting case to watch unfoled. I'm sure the evidence and the weight the evidence carries with be questioned and it may become somethign admissable but unenforcable by the rulling of the jurry. IE, ip logs and screen names (with auto logons) are not enough to prove you were at your computer at a certain time and participating in ceretain activities or had control over those activities or if the listing of names of copy protected material actualy means the protected works were availible and the copy was actualyt being violated. (garage bands cover songs and create thier own songs with the same names and song already names and can distribute them) If the jurry negates or nullifies any of this evidence it will be hard to prove anyone did anything.

Grateful Dead no longer share-friendly

[SuperKendall]

Recently Archive.org was asked to pull recordings of the Grateful dead they had been hosting - all fan recordings.

Archive.org was allowed to resume hosting microphone recordings for shows - but the soundboard recordings (which were all made by fans, not the Dead) are now only allowed to be streamed.

This implies then that if you are sharing soundboard recordings you are doing so against the wishes of the Dead.

Read the spirited comments on the matter here. Some fans are thankful that they are allowed partial freedoms, others upset that all the effort that went into fan soundboard recordings is being withheld form the people that made it.

There is also a petition to sign here to let the band know how you feel about them going back on thier principals.

What?

[Anonymous Coward]

Well you're not exactly comparing apples to apples. With Yahoo's $5/month service you don't actually "own" the files; you are simply paying for access to them. With P2P you "own" the files. If you stop paying Yahoo your music disappears. The files you download off of P2P networks don't disappear. So technically one could argue that the damage is $5/month for the rest of her life (taking your argument in the other direction to the extreme).

I think a more fair comparison is something like iTunes ($0.99) or Yahoo's real download service (claims to be $0.79). But by using P2P networks she is still distributing (depending on the network). So how about this: if a song is 3 MB and can be had for $0.99 at ITMS, the damages are $0.99 / 3 MB * MB Uploaded. So if she uploaded 100MB worth of that song the damages are $33. Granted that's assuming EVERYBODY who downloaded the song would have bought it otherwise, but it's still dramatically less than what the RIAA is asking for.

Re:What?

[dcavanaugh]

"the damages are $0.99 / 3 MB * MB Uploaded. So if she uploaded 100MB worth of that song the damages are $33. Granted that's assuming EVERYBODY who downloaded the song would have bought it otherwise,..."

That's also assuming the files would somehow be unavailable had the defendant not shared them via P2P. In reality, without the defendant sharing anything, everyone who wanted to download the files would still get them, with maybe a 30-second delay (since the total number of available sources would drop from N to N-1).

Ask for the source code...

[Anonymous Coward]

If I were the defendant, I'd like to begin by asking for the complete source code of the software the RIAA is using for snaring offenders. I think that will give them cause for some pause.

Lawyers on Slashdot.

[lga]

Well in February I will be a law Student (IAALS?) So maybe in a few years I can say IAAL.

Make 'em squirm.

[nosfucious]

I'm thinking this could go the way of the McLibel case in the UK.

If I was on the end, I think I'd drag up all the little secrets that the record companies didn't want aired. Dodgy accounting practices and the like. It works especially well when you have nothing to lose.

(Nothing to lose is, to me, one definition of perfect freedom.)

Gather a little momentum and publicity, the victims will be coming to you to tell thier stories and point fingers.

Drag the crap on as long as possible.

Sure, you'll lose, but the RIAA et al will lose much, much more. I wish I knew how to spell phyrric victory at this point.

Hmmm

[RawGutts]

I'm confused, is this the same woman that has filed federal criminal charges agaist the RIAA for Computer Fraud & Abuse, Invasion of Privcy and so on? Or was that another case pending?

Parallels with McLibel case

[dunstan]

I hope the case runs and runs, and gets lots of coverage.

Remember the McLibel case? While McDonalds were successful on a number of issues, by contesting the case they ensured the allegations got widespread coverage, and in the end it was a disaster for them.

Now think about the coverage this case would get. Think about the OpEd pieces which will be written: "The record companies have the law on their side, but are having to use the law to prevent their death". "The record companies are using the law to distract attention from the fact that they don't matter any more".

All the time that people are paying up, they can assert that those people are admitting they are in the wrong (which, in law, they are) and that the current model for music distribution should continue (which it shouldn't). But as soon as there are daily column inches from a trial, the discussions around the subject (such as the relevance of record companies today, the contracts they sign bands up for, etc.) will hit the mainstream media.

Can't wait.

Question about the facts: "Downloading"?

[scottsk]

I have a question about the facts of this case: is this case, or any of these cases, concerning someone illegally "downloading" songs? TFA explicitly says this. I thought that all of these cases were against people who distributed songs for others to download. The imprecision of terminology in this matter is confusing. Has the RIAA actually begun suing people who download but did not distribute songs?

I am particularly interested in what the legal proof of music ownership is. Has this ever been determined? (I've never been able to find it, if so.) E.g. If I move and lose a CD, but have a song from it on a mix CD, how do I prove I own a song? If I digitize a cassette (or LP or whatever), must I lug around the cassette tape for the rest of my life to prove I once bought it? If a judge asks a citizen "prove that you own this song", what does the citizen have to do?

Re:Question about the facts: "Downloading"?

[Pranadevil2k]

According to the EULA you signed by opening the package containing your music transportation device, you don't actually own the music but are only borrowing it until such time that you get sued for not giving overgrown companies clinging to archaic economical structures enough of your money.

Re:Burden of proof

[glesga_kiss]

The burden of proof is on the RIAA. They are the ones that are accusing her of downloading music illegally.

Now this is what really bothers me. What "proof" are they offering? A list of dates and IPs? What does that prove? How can they prove (in a legal sense) ANYTHING? Unless they had a tech-savy police officer observe the packets and analyse them, their "proof" is worthless. Their word against mine and they have a financial stake in this. Can you say "conflict of interest"?

If they were to pull the same stunt with me, I'd provide similar "proof" that the lead lawyer on their side is downloading kiddie porn all day. My "proof" is just as valid as theirs. Who do they think they are?

Re:Whatever the outcome, this lady loses

[JaredOfEuropa]

Whatever the outcome, the RIAA loses

And whatever the outcome, this lady will lose as well. If she loses the case, the RIAA will take her for every penny she's got. If she wins, she will still have to pay the legal fees, which can be enough to bankrupt her if the RIAA try and keep the case in court for an extended time.

As usual, the only real winners are the lawyers. When are you guys going for a "loser pays" system? That's what we have, and if our local RIAA equivalent would sue me on such flimsy charges and for such low actual damages, I'd just tell them "make my day" and clal my lawyer.

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[account_deleted]

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[account_deleted]

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Re:What's Digg?

[Anonymous Coward]

Quit trolling. Digg.com is a good site and you're giving it a bad name. If you don't like /. go away, don't drag another site into your rubbish rants.

Anonymous digg reader

I hope the RIAA takes away her children

[Anonymous Coward]

and sell them into Middle Eastern slavery. Then I would take the woman and send her to China where they would cut out her organs to sell for transplants.

All proceed go to the right and just RIAA

Re:I hope the RIAA takes away her children

[chawly]

And you have a right to your opinion, Sir, though it grieves me to say so. I'd like to say that I quite understand that you'd want to post your opinion (to which, I repeat, you have a perfect right - even if it is scorbutic) as "Anonymous Coward". I'll add that if you have trouble seeking the help you so obviously need, I have another solution which will solve your problems once and for all. Just dig a hole six feet in depth, lie down in it, and shoot yourself. That way you solve your problem and you create a minimum of problems for us - we just shovel the dirt in on top of you - please be sure to leave the dirt in a neat pile.

I just really like this quote...

[Anonymous Coward]

Almost enough to get me excited about the common law system :p

"THE COURT: "Well, I think it would be a really good idea for you to get a lawyer, because I would love to see a mom fighting one of these."
MR. MASCHIO: "I'll give her my card, but our instructions are for these people to deal with the conference settlement center. They had discussions."
THE COURT: "I'm sorry. Your instructions from me, the Judge are that, if she appears with a lawyer, her lawyer will deal with you."
MR. MASCHIO: "No, all I was suggesting, your Honor, is that, if she doesn't come with an attorney, that the more direct way of doing this -- and this is just to facilitate things -- is to deal directly with the conference center."
THE COURT: "Not once you've filed an action in my court. ... You file an action in my court, your conference center is out of it. They have nothing to do with anything. ... You're taking up my time and cluttering up my calendar, so you will do it in the context of the Court. ... And if your people want things to be done through the conference center, tell them not to bring lawsuits." "

Questions to ask the RIAA on discovery

[Anonymous Coward]

1) Can you demonstrate conclusively the identity of the specific person in control of the terminal in question at the time the alleged infringement took place?

2) Can you demonstrate that said specific person actually instigated said alleged infringement?

3) Can you demonstrate the said specific person knew or should have known that they were engaged in the alleged act of infringement, and that the material allegedly downloaded and/or uploaded was protected?

4) Can you produce consent to invade, access, or otherwise monitor said person's computer terminal and/or network traffic, either by lawful warrant or written consent of the owner?

5) Can you demonstrate that said specific person is not entitled to download said content under the Fair Use Doctrine?

Counter-Sue

[s31523]

I hope she wins, then counter-sues for emotional distress, and lost wages (I just read that an estimated salary for a stay-at-home-mom should be like 150K a year), and of course legal fees.

Here is your defense Patricia

[digitalrevolution]

You may have broken the law, but the RIAA should have no claim, because first they have to prove you caused financial loss. The truth is, they have choices for their business model other than to abandon music in the digital domain.
They could, for instance release their music only after they have made their money. It's been done before.
They have made a choice to go after the high margin model with the associated risk that they incur abandoning their music at the mercy of everyone with internet access. That's the way of business.
DR.

Can't control Windows

[Maximum Prophet]

A claim of indirect copyright infringement may be premised on the theory of vicarious liability, which requires the right and ability to control the infringing action...

So all the defendant is this case has to do is subpoena the source to whichever version of Windows they were using and claim, no one, not even Bill Gates himself, can control *that* monster.

Just goes to show you, any slashdot article can be made into MS bashing. (:-)

Actually, this is good

[TheSkepticalOptimist]

Perhaps if the RIAA keeps sending people to court, this may eventually bankrupt them.

I am sure any lawyer would love to go head to head against the RIAA, considering how lackadaisical the evidence is against these people, I am sure many of these cases will be thrown out of court.

I would counter-sue the RIAA to recouperate legal fees wasted in defending myself in court, which I would probably win because of the lame suit against me.

In the end, considering the average court cost is about 10,000 - 20,000, the RIAA could loose up to a quarter of a billion dollars going after these people. Tie in civil suits against and if you could play off damages or anguish charges, this amount could skyrocket!

Then, if I were a music artist, I would wonder why I would allow a association that would waste more then a quarter of a billion dollars to alienate my fans to act on my "best" interests. I would then tell my music publisher that if they don't pull out of the RIAA then I would go independent and market and sell my own music, or publish my music in another country.

In any regard, the RIAA should sue away, it will be their undoing and I support it whole heartedly.

this is a power not a right

[eldacan]

Very informative... but are you sure jury nullification is such a blessing? It can of course have a very positive effect, but still, that a dozen random people can overturn a law which was established democratically... The wikipedia article talks about abuses:

during the Civil Rights era, all-white juries were known to refuse to convict white defendants for the murder of African-Americans

In this case the problem can be solved by having black people among the jury, but surely there are situations where it's not so easy to determine a priori what would be a good jury.

As for teaching this in US schools... I would teach it because it's interesting in itself, but as they put it in the wikipedia article, jury nullification is just a de facto power of the jury (ie. they can of course say "not guilty" even when it's obvious the defendant is guilty), they don't have a right according to the law which allows them to ignore it.
It's not an all black or white situation...

sue the creators of mp3

[Anonymous Coward]

Maybe the RIAA should just sue Bernhard Grill, Karl-Heinz Brandenburg, Thomas Sporer, Bernd Kurten, and Ernst Eberlein; The creators of the mp3 format; for creating a means to circumvent copy protection which is illegal under the dmca.

They should not be able to sue without proving she commited the crime, and she should have to right to counter-sue with damages for the illegal way her information was obtained.

Re:It's more significant than the common sense asp

[Anonymous Coward]

Suggestion Box:
Slashdot needs built-in spell check

She's not going to Jail, this is not a criminal...

[Anonymous Coward]

This is not a criminal case, she has no chance of going to jail. It is a civil matter, which at most can result in monetary damages.

Let the punishment fit the "crime"... $5.94

[burnttoy]

Seems pretty simple to me... 99 cents a song... 6 songs...

$5.94

and that's _WORST_ case. It is possible to calculate directly the cost of this "crime". Where the hell does the 3000->4000 bucks come from?

Trouble is the average RIAA lawyer would charge more than that to lick the stamp for the envelope for the complaint... stapling the complaint costs 1/2 an arm and putting in the letter box at least a leg, maybe even your favourite testicle or ovary...

please!

[Ender Ryan]

That would be a great way to show support for her, (except I wouldn't toss eggs), and to raise public awareness. Print a bunch of fliers to hand out to people, make some signs, have some extra signs on hand to give to people in the area who decide to help, etc.

The media is already interested in this case, and if you can get 10, or even just 5 or so, friends to come along, you might be able to make a difference.

I'm not against copyright law, but this is all going way too far. The RIAA has to stop this business and take a different approach to encourage people to purchase their content.

Something Overlooked....

[permawired]

Because this is a civil case, even if the RIAA wins she doesn't have to pay. They court system does not enforce the rulign. IANAL, but my father has had to deal with a couple cases where a person extortet money from his company. He filed the case, went to court, and won. SO he has the judgement, but will never see a dime from it. So.... the judge can say, ok you owe RIAA X for damages. Then look at RIAA and say send her a bill. I'm sure it can screw up your credit and the like, but certainly won't take money right out of your pocket. Anyone else have any other usuful info on this line of thought?? Cheers

Re:It's more significant than the common sense asp

[Anonymous Coward]

Or that guy needs to realize that he should not post at 3:26 AM when the language centers of his brain are certainly not functioning properly. Of course, READING what you typed BEFORE hitting submit would help too!

not even close

[Ender Ryan]

They see a threat from people breaking the laws that VOTERS SUPPORTED.

That is based on the absolutely false assumption that most voters have any clue at all about the laws in question, let alone their very existence.

Also, I find it to be quite ridiculous that you don't hold the RIAA and politicians responsible for their own actions, from political bribes to extortion.

And regarding the law, I think you're way off-base. You claim the RIAA is acting legally, therefore it's all the voters' faults. As ridiculous as that is to begin with -- corruption simply being impossible to prevent, and the political landscape having evolved to become how it is over a longer timespan than most of the voting public has even been alive, let alone eligible to vote -- the RIAA, in the opinion of several judges and lawyers, activist organizations, etc., may not be acting legally, violating laws designed to protect people from such extortion.

IMO, the political axe you are always grinding gets in the way of your objectivity.

Re: John Jay & John Adams

[dsci]

Very good quotes. Thanks.

But the issue of the OP that I was responding to was the idea not that the LAW was bad, but that it would be selectively applied because jurors liked, disliked sympathized or otherwise "felt" for the defendant in the case.

The idea I was responding to was that it is the defendants circumstances (not the legality or morality of the law itself) that lead jurors to vote contrary to the legal specifics. I don't doubt this happens, but I find it a bit offensive. In my mind, it violates the spirit of "everyone equal under the law" doctrine.

The OP seemed to imply: divorced mother of five, rule in her favor; male teenager (for example), rule against 'em. There was no specific mention of interpretation of the law itself.

Re:It's more significant than the common sense asp

[Anonymous Coward]

I agree. Reading this post would only waste valuable seconds.

jesus

[Anonymous Coward]

spellcheck, anyone?

ehem

[Anonymous Coward]

Am I the only one who doesn't see this as a problem? I thought people were starting to sue the RIAA for tresspassing when they go into a personal computer?

Wouldn't that constitute a dreaded cyber crime, punishable by all sorts of good stuff?

Correction on courts martial...

[sean.peters]

The only holdover I know of that it still has is that an officer facing a court martial can choose for his jury to only be fellow commissioned officers and not enlisted personnel or warrant officers.

That isn't quite right. Anyone facing court martial is by default a) tried by officers, and b) tried by people senior to him/herself. Enlisted members may request that 1/3 of the jury be composed of enlisted members, but if they don't so request, they get all officers.

Here are some links

Sean

You do not recall correctly.

[sean.peters]

If I remember correctly, to enforce copyright you are required to pursue all known violations in order to maintain the copyright.

You do not remember correctly. You can enforce copyright as selectively as you wish, and not lose any rights. You are thinking of that other pillar of "intellectual property" known as trademarks.

Sean

Re:One up on him...

[vertinox]

I congratulate you on being the first person I've ever seen who compared illegally downloading music to rape,

Music piracy is like genocide... Genocide of all those Benjamin Franklins being systmatically exterminated out of the wallet of those poor music companies. Oh the humanity! Call the UN!

Re:Why not kill the entire industry and start over

[Ash-Fox]

Because stereotypes always apply, no matter what.

I think I was wrong to assert constitutionality

[sacrilicious]

I've heard this whole "constitutional right to jury nullification" meme before, but nobody has pointed out to me just where this is enumerated; could you please humor me?

Well, you called my bluff. I've now done some research, and I regretfully admit that I misportrayed the issue when I said this was constitutionally enshrined. It appears that this is more of a precedent/de-facto thing. Thank you for helping me to educate myself.

I think some of my previous post's point can still be salvaged, i.e. there's ample precedent for a juror not being punished for exercising jury nullification, and this fact could be enough to sway people into using it when they otherwise might think it's as brazen as fraud.

Given that it's not laid out in the constitution, exercising this practice could in theory be transformed into a civil or criminal offense without a constitutional change, e.g. by the legislation of a law. Which could lead to a tremendously interesting case: what such a law were passed, and then someone brought to trial accused of violating this law was excused via jury nullification? That would be amusing indeed.

Re:It's more significant than the common sense asp

[Anonymous Coward]

You may have a point there. I was about to goto sleep when i decided to post that comment. I hit preview and it submitted. Not that previewing the message would have done much.(But in my defense,) I realy aint that smart. It just takes some common sence to be able to understand some things.

Doesn't nullify claim only establishes timline

[SuperKendall]

intentionally put up the AP for plausible deniability, therefore nullifying his claim to plausible deniability

I don't see how saying you are doing something for plausible deniability automatically erases the effect - again if he had also said he was in fact downloading stuff as well, that would eliminate the excuse. But since all he said was that he was putting something in place that would later provide an excuse, it's fact-neutral to the case of him being guilty and thus simply establishes a timeline. In no way does it eliminate the possibility that in fact others are using his AP for downloading which is in fact the aspect of plausible deniability that matters.

Re:Now what if...

[Locke2005]

No, because it is virtually certain that the 14,000 other people signed an agreement to not take any future legal action against the RIAA as part of their "settlement". Remember, the "settlement" contract is drawn up entirely by RIAA lawyers, not by the defendent's lawyer.

Well, when you can find the law that says

[Ogemaniac]

it is ok to steal from rich people, you have a point.Until then, any person with such reasoning should be barred from a jury. Automatic guilt or innocence based on the nature of the victim or defendant, rather than the actions committed, is a ridiculous idea.

You have no right to steal from anyone, rich or poor. Ever. Period.

Re:It's more significant than the common sense asp

[Guppy06]

"I've heard this whole "constitutional right to jury nullification" meme before, but nobody has pointed out to me just where this is enumerated; could you please humor me?"

For criminal proceedings, there's the Fifth Amendment:

No person shall be subject for the same offence to be twice put in jeopardy of life or limb.

which means than anybody let off by a jury is let off for good. For civil proceedings, there's the Seventh Amendment:

No fact tried by a jury, shall be otherwise re-examined in any Court of the United States.

Re:It's more significant than the common sense asp

[tinman1]

Please - could you give us all a break and discover how to spell? Or how to use a spellchecker ? 'unfoled' ? And a grammar checker? 'the weight the evidence carries with be questioned' - or 'somethign' 'unenforcable' 'jurry' 'actualy' 'actualyt' 'thier' -

Or maybe you were trying to make us doubt you got past the 8th grade? Trolling for quibbles like these? You may be correct in all you say, and you may have a brilliant mind, but you come across as a moron - that would be a tort 'proceeding' - which preceeds most of the incorrect words shown above, yes.

And - a tort is not common law, it is an actionable wrong or wrongful act for which, in civil law, damages can be sought by the injured party. AND - a manor is something in which one is born, whereas this criticism of you may not be good 'manners' but it is very much needed. Your fictitious judge making the application of an existing law to another area does not make a 'different' law, it is then known as 'case law.' What exactly are 'roo for dougbt' 'deam' and 'ceretain?'

Re:Possiblity of Innocence vs. Burden of proof

[dodongo]

Thanks for the clarification. I'd overlooked the fact that the charges are civil, not criminal. All your other points fall out form that.

Statuatory Damages

[SonicSpike]

The Copyright Law of 1976 and others provide for statuatory damanges. That is punitive damages which have no real cost/damanges associated with them. This is what is called actual damages vs statuatory damages.

Since the amount of material she has allegedly infringed with, is probably only a few hundred dollars, the plantiffs will probably seek statuatory damages. The law says that those damages can be as high as 150,000 per song for a non-commercial infringment.

I am not an attorney, but I work in the recording industry as an audio engineer, and have had a few copyright law classes.

Goodwork!

[SonicSpike]

It is nice to see someone else around here who knows and understands Copyright Law! ;-)

Re: John Jay & John Adams

[Maxo-Texas]

A divorced mother of 5 who is reasonably likely to have had no clue that this was happening makes it clearer than a single male mcse living alone in an apartment.

The holes in the law are not clear until they encounter the correct test case.

And the poster seemed to be saying that we should follow laws just because they are the law and clearly many great thinkers believe that is not a good idea.