Answers From Lawyers Who Defend Against RIAA Suits

You had some excellent questions for attorneys Ty Rogers and Ray Beckerman, who maintain the Recording Industry vs The People blog. Here are their answers, verbatim, as they were sent to us by Mr. Beckerman.

1) Guilty?
(Score:5, Interesting)
by PrinceAshitaka

If you are completely guilty and are sued, but do not have the money to pay, what are your options?

Beckerman:

One option is to defend yourself, relying on the affirmative defenses. If you can find a pro bono lawyer, great. If not, go in to the pro se clerk at the courthouse and ask for a jury trial. Another option, if it's acceptable to you, is to default. They will usually get a default judgment against you for the exhibit A list (the songs they downloaded) x $750 plus court costs.

2) Biggest Mistake?
(Score:5, Interesting)
by eldavojohn

What's the biggest mistake you've seen people make historically in cases where they're charged by the RIAA?

Beckerman:

It's hard to generalize about that, because each person's facts, each person's personality, each person's intellect and ability, are different. Generally, there is no real good way to handle these cases, so anything anyone does is a mistake, in that sense. But in another sense, there are no mistakes, because there is no right answer.

3) How can we prevent needing your services?
(Score:5, Interesting)
by Software

What should we do to prevent needing your services? Another way of putting this is, how do we avoid getting sued by the RIAA?

Beckerman:

All of the cases that I have seen stem from people who are using a Fast Track sharing program such as Kazaa, Imesh, Gnutella, LimeWire, etc., having a shared files folder with copyrighted songs in it, even if the song files were obtained legally. So even making sure to pay for all of your downloads wouldn't protect you from a lawsuit. The only way I know to avoid the present litigation wave is to avoid having shared files of copyrighted songs.

4) Systemic Problem?
(Score:5, Interesting)
by ZachPruckowski

Do you see the current situation as a systemic problem in the current torts system? Specifically, do you think we need legislative intervention to correct the "money bias" in our legal system?

I mean, there doesn't seem to be much of a way to fight an RIAA lawsuit money-wise. It always seems to end quickly: Either the defendant ist so obviously innocent they drop the case or he/she settles for "pennies on the dollar". When do you think we'll see a few definite trials to answer the hanging legal questions about investigative tactics and what an IP proves?

Beckerman:

I think some good rulings by the judges would shut the whole thing down, so no I don't think it's necessary to revise the statutes. I do think it's important for our society to get behind the defendants financially, because if they don't there are going to be a lot of wacky rulings by judges which are going to dismember the internet as we know it.

5) Lawyers from outer space?
(Score:5, Funny)
by hawkeye_82

You guys are lawyers AND like to help people? What's it like on your home planet ;) ?

Beckerman:

Lawyers are just like any other people. There are good people and bad people. The people who come out the strongest against 'trial lawyers' are the big corporations' PR departments. They want the 'common folk' to think ill of lawyers, because the law -- as imperfect as it is -- is the only equalizer left. And it's being eroded rapidly. And people dissing lawyers all the time helps that process.

6) allofmp3
(Score:5, Interesting)
by giafly

What's the position of Americans who buy from legal offshore music sites, such as allofmp3 [allofmp3.com]?. Is this safer than downloading "free"?

Beckerman:

I don't know what you're talking about. The litigation wave is worldwide. The RIAA isn't American. 3 of the 4 members of the cartel are "offshore corporations". There are different versions of the RIAA everywhere. In France, and certain other places, they bring CRIMINAL cases, not civil ones.

7) Gray Area Questions
(Score:5, Interesting)
by Four_One_Nine

Over the years I have attempted to educate some of the 'younger' generation about the do-s and don't-s of music copying and sharing. The following questions have come up out of real experiences and I have never had anyone provide a reasonable (justifiable) answer.

1. If I purchase a CD and it is subsequently stolen (along with my 5 disc changer *@$#!!) do I retain any rights to listen to that music?

. a. Are the .mp3 files of that CD on my computer legal or do they now belong to the thief too?

. b. Can I re-burn a CD from the .mp3s and is that legal?

. c. Does me having a backup copy of the files on my computer mean I can't make an insurance claim?

. d. What if it is destroyed (for example by a fire) rather than stolen?

2. If I purchase a CD and it is subsequently scratched or broken to the point where it is not playable, can I legally download the songs from that CD from a file-sharing network?

3. If I purchase the DVD for a movie, could I legally download songs from the soundtrack for that movie from a file-sharing network?

4. If I purchase a CD that our entire family listens to, and then my daughter leaves for College, can she legally take a copy of an .mp3 ripped from that CD with her on her computer? or - similarly - could she take the disc and could I keep the .mp3 on my computer?

Beckerman:

Isn't this kind of a multiple question?

You shouldn't be trying to educate the younger generation about this stuff. The law is unsettled. Even lawyers don't know how it's all going to play out. Plus you seem to have a general misunderstanding about the basic principles of copyright law. When you buy a copy of something you have rights in the copy, that's it. No metaphysical rights to listen, reproduce additional copies, etc. I don't know what gives you this idea.

1. There's no such thing as a listening right, I don't know where you get that from.

a. I don't know what MP3 files you are talking about, how do you know you were entitled to make those copies legally?

b. See b above

c. Ask your insurance co.

d. Same answers.

2. I doubt it.

3. I doubt it.

4. I don't know.

8) Why aren't you going on the offensive?
(Score:5, Insightful)
by Civil_Disobedient

Instead of playing Whack-a-Mole by defending clients that are being extorted by these thugs in Gabardine, why aren't you doing anything about stopping it in the first place? Why haven't you petitioned the Attorney General to bring RICO charges against the members of the RIAA?

Beckerman:

I'm an ordinary lawyer doing the best I can. How do you know who I've gone to or spoken to? As far as going to the Attorney General, haven't you been reading? The US Attorney General is on the RIAA's side. See Statement of Interest of U. S. Dept. of Justice in Elektra v. Barker.

9) Evidence?
(Score:5, Insightful)
by eldavojohn

I hear a lot that the RIAA has the weakest evidence ever in these cases. Such as screen shots of dynamic IP addresses - http://www.cdfreaks.com/news/13747 - taken from Kazaa. How the hell do judges across this country uphold these cases with such lack of concrete evidence? I mean, give me five minutes in photoshop and I'll make you a "screenshot" of Kazaa with www.whitehouse.gov's IP address listed over and over on it. Can't an expert witness cause this evidence to be thrown out quickly?

Beckerman:

I've tried, eldavojohn, I've tried. Look at our court papers in Motown v. Does 1-149. The judge didn't want to hear a word I was saying. You are absolutely correct that the entire underpinning of each case is a joke. An astute judge would laugh them out of court, as the Netherlands and Canadian courts have done.

10) Other drive content and RIAA fishing expeditions
(Score:5, Insightful)
by BenEnglishAtHome

When I heard that the RIAA wanted to physically take possession of the equipment belonging to people they sued for discovery purposes, I was less than happy with that prospect. I use a hardware-encrypted hard drive that requires a bootup password. Without my cooperation, no one will every see what's on my drive. Given that the revelation of other content on my drive would place me in far greater jeopardy than anything having to do with pirated music (Assume the worst if you wish; you wouldn't be correct), I would never cooperate with such discovery.

Is there any mechanism by which the court can compel my cooperation and are there any penalties for steadfastly refusing to provide it?

Beckerman:

There will probably be a lot of litigation over privacy issues in the hard drive inspection thing. But if you just want to play hardball, the judge would probably just strike your answer and give the RIAA a money judgment by default.

Comments

Interesting

[legoburner]

The interview reads like Phoenix Wright but with less murder. It truely is a shame that so many judges seem to lack the technical knowledge required in these cases, but the US must be thankful that they are not criminal cases just yet and remain civil (criminal=prison, civil=fines). France has some very media-related politicians and are normally at the forefront of oppressive european legislation (along with the UK). One of the French politicians is actually married to one of the main players in the music distribution industry which is just a bit of a conflict of interest in these sorts of cases.

Re:Interesting

[webengineer]

I've been following these "rights to music" threads for sometime now.

What I don't understand is how ANYONE can think they have a right to give copyrighted "anything" to another. Or how anyone can believe they have a right to unpaid-for copyrighted "anything" (that is, stuff they haven't paid the rightful owner for).

I could understand the fight against the big bad RIAA if the thing they are trying to stop wasn't illegal and unfair sharing of music.

Or am I missing something? Are they fighting something other than illegal and unfair theft of other's copyrighted "something"?

You can decry their methods, but is doesn't change the fact that people are stealing from them!

Or you can say, "the artist isn't properly represented by the money grubbing RIAA", but that still doesn't change that people are stealing from the artists.

I hear complaints about the cost of a CD, and even that doesn't give anyone the right to steal.

So, am I missing something. Aren't most of you complaining about these RIAA suits advocating theft? Or if not advocating, ignoring theft?

Before you flame me, consider that I too believe that if I purchase something (CD, mp3 download) that I shoud have the right to access it in anyway I see fit. Including burning a CD to play in my car, or ripping to an mp3 or Ogg to play on my portable handheld or my laptop while on the road.

So let's don't mix up theft with right of use, please.

Re:Interesting

[Wavicle]

I could understand the fight against the big bad RIAA if the thing they are trying to stop wasn't illegal and unfair sharing of music.

Do you believe that the end justifies the means? Should the RIAA should be at liberty to use whatever methods are at its disposal, including shaking down innocent bystanders and victims of other crimes (such as identify theft or unauthorized use of an access point) in order to stamp out piracy?

You can decry their methods, but is doesn't change the fact that people are stealing from them!

Yes, we decry their methods because doing an evil to stop an evil doesn't change the fact that it is evil.

If I go home and find my laptop stolen, and the neighbors claim some blonde haired kid did it. I should be able to get the names and addresses of all blonde haired kids in my neighborhood and file for discovery of their computer possessions, right? I mean, sure I may end up harassing a few good kids, but one of them stole from me! Actually, that's a bad example. I should do it the RIAA way: I should sue every blonde haired kid in the neighborhood for stealing my laptop and offer to settle for $500. It'll cost them more than $500 to defend against my lawsuit, I suspect they'll just pay up.

So let's don't mix up theft with right of use, please.

What about my rights? My right to privacy? Why must I live in fear that RIAA may come and force me to pay them $3000 even though I haven't done anything wrong? Oh, maybe force is to strong a word; for $12,000 I could pay someone to defend me against their baseless charge.

Re:Interesting

[Breakfast Pants]

I don't wish they were criminal: holding civil cases to a criminal standard is absurd; desputes between parties go completely (unfairly) in favor of the one who didn't 'bring charges'. Instead, I wish they had a requirement that damages must be actual: statutory damages of $750 a song (you could rob a whole store's CD section, burn the CDs, and the store could only sue you for the equivalent of 20 shared songs) are completely absurd. Unfortunately we can't attack this with case law (although I would argue that it is unconstitutional on reasonable punishment charges--even if they typically only apply to criminal cases).

Still Depressing

[gasmonso]

While I applaud these lawyers (that hurt me to say) I get the feeling that they are just as powerless as we. Everyone knows these cases should be thrown out, but they aren't. That's the real issue, not just successfully defending people. The entire practice of suing people over music needs to die a horrible death. I hope you can hear us Superman!

http://religiousfreaks.com/

Re:Still Depressing

[QuantumG]

I'm waiting for someone's kid to commit suicide because they're too ashamed to admit to their parents that they got sued for file sharing. Either the distraught parent goes on a political rampage and gets these stupid laws overturned or they go a vigilante rampage and scare the shit out of some of these prosecutors/CEOs.

Re:Still Depressing

[MalleusEBHC]

The entire practice needs to go? That sort of overreaction is just as bad as what the RIAA or the filesharers are doing. The problem is that ALL parties in this are being retarded:

RIAA - They are bullying people with their disproportionate acccess to lawyers and money. They are suing people for ridiculous amounts of money. They are presenting dubious technical arguments in court and are setting unreasonable precedents.

Illegal filesharers - They are committing copyright infringement. This is illegal, end of story. Regardless of what you feel about copyright or the music business, copyright exists and makes it illegal for you to share these files.

Judges - Many are letting RIAA lawyers present weak and unreasonable arguments.

Legislators - They are passing dumbass copyright laws. Yes, there should be copyright. No, it shouldn't last 873 years or whatever the hell it is currently.

Re:Still Depressing

[Buran]

I'm also glad that it's our right to privacy that's getting abused rather than our right to life; they can applogise for invading your privacy, but dead is dead.

So if you're so privacy-conscious that you go so far to be random, why aren't you arguing for the safeguards that would still protect privacy while carrying out investigations into criminal behavior? You CAN have both; that's what's been said over and over and over and over. Or have you bitten the lie that "this is the only way" that the government wants you to believe so that it can do whatever it wants, unchecked?

Re:Still Depressing

[Buran]

I wasn't aware that asking legitimate questions constituted a flame war. It's not my problem if you can't take legitimate questioning and criticism and brush it off as someone out to flame you. Belittling valid questions as beneath you does nothing to invalidate the question.

I also believe it's a mistake to trust the government to protect anyone. All politicians care about is wealth and power. All they listen to is money.

If the government could be trusted to do the right thing, don't you think it would be acting to protect the environment while we still (may) have time, handing down longer jail terms for crimes against people and real property than for spamming and software piracy? Don't you think that rape, murder, carjacking, mugging, armed robbery, and a long list of other crimes that actually hurt people emotionally and physically deserve that, instead of wasting the time and effort on crimes that hurt no one?

Don't you think that if the government could be trusted to look out for the best interests of the people, it would not repeatedly pass laws that favor the interest of businesses over the interests of the citizens? (most infamously, acting to make sure Disney can keep making money off of Mickey and therefore destroying our own creative commons, the long-standing culture of building on each others' creations, and the rich public domain on which our society has prospered for so long?

Don't you think that the government, if it really wanted to protect us, would come up with actually-effective ways to ensure safety that actually act to protect the public? Saying you can't take shampoo on a plane when the technology has existed for years to detect liquid explosives, and hasn't been deployed because of political squabbling, bureaucracy, and other petty problems is ridiculous when statistics show that many thousands upon thousands of people die in preventable road accidents every day, and yet the government will not require SUVs to not demolish cars (they override crash guards in car doors because they're so tall), they won't strengthen roofs to prevent rollover accidents, they won't provide increased funding to pull over speeders who think that they're above the law and who make the roads unsafer for us all, they won't increase average fuel economy requirements to lower pollution, decrease oil dependency, and lower prices ... ... that's just the start, the list goes on and on and on and on.

No, I don't trust the government to protect me. They haven't done anything to earn that trust lately. And I blame shortsighted mindsets like yours for not calling them to task and demanding more.

If the government can impeach its leader for lying about who he had sex with, why can't it impeach and remove a leader who lied about so many more things that actually are causing real hurt, real damage, and real destruction?

Open your eyes. Please.

Re:Still Depressing

[Buran]

So because I believe in stopping rampant government abuse and because I believe in protecting our liberties that the founding population of this country sacrificed so much for, I'm responsible for destroying my own country? Nice. Dissent isn't unpatriotic. Wishing for improvement is not patriotic.

Blindly adhering to something just because The Powers That Be said so isn't patriotic. It's only serving to destroy this nation.

You, and the others like you, and destroying our country. United We Stand? Not with people like you. End of Thread.

Re:Still Depressing

[GSloop]

You're clueless. Simply clueless.

First there's a VAST difference between "no trust" and "distrust."

While I don't distrust everyone, I certainly "trust" few. That's a perfectly healthy and self preserving position. Those that earn my trust over time get more power over me. Those that violate that trust lose that power. Continuing to keep that trust requires accountability and transparency. I generally don't accept explainations of your actions to protect me, on the face value of "trust us, we're doing this for your own good." You will be required to explain to me what you did, how you did it, and why. If you can't do that, you're likely to lose power since you'll lose trust.

Next:
Because ALL governments who had no real accountability and ultimate power were despot regimes, I think it's perfectly reasonable to be highly suspect when our own
government becomes more and more authoritarian and less transparent. In short, there's adequate reason to DISTRUST a non accountable, non transparent government - any government, ours, theirs, or someone else's.

If you believe blind, unquestioning trust is reasonable, I'm sure China or Iran or Pakistan are great places to live. The old USSR was a good example.

The US in principle holds to the open, tranparent and accountability principles. Look at the Constitution and the Declairation of Independence. Both are freely laced with the "Never trust your government" mind-set. And for good reason. The founders had first hand experience of a Government who had no checks, no real accountability and certainly no transparency. They knew it resulted in evil.

The Government is *of*, *for*, and *by* the people.

When Government believes it no-longer has to respect the people, obey the people, and be accountable to the people, it's in violation of both the Declaration of Independence and the US Constitution. IMO, those responsible for that position are legally guilty of treason.

As a concrete example. The current law states that the EXCLUSIVE means of wiretapping outside of the criminal legal system requirements is the FISA court. When the executive branch ignores the law, they are legally in violation of their duties to uphold and enforce the law.

Now they can ask that the law be modified, or contest the law in court. But until a court strikes the law, or the legislative branch modifies the law, the executive branch is not allowed to ignore the law. That you'd trust a branch of government who is willfully breaking the law, as doing things in your best interest, I'd seriously question your intelligence. (It's kind of like sending the Nigerian scammer cash - "well yeah, he'd steal from someone else, but certainly he won't from me!" Oh, really - how interesting...)

Further, the courts are used to act as a balance against the executive braches of government. The court ensures, as a neutral party, that the request is balanced against the needs of the executive. It's kind of like a unanimous verdict in criminal cases. Sure, it's likely that some guilty people go free, just like the request of a criminal or FISA wiretap is a burden that probably lets some who *should* be wiretapped get away. But we'd rather err on the side of protecting the citizen from an overzelous government than opress the people because government couldn't be bothered to really care itself.

History shows far more abuse of the people BY government. Accountability of government, presumed innocence, presumed privacy and protection from survellience are the life-blood of a truely free society. Remove those and it's just a matter of time until actively evil government takes advantage and pillages the populace.

Perhaps you believe evil will never arrive, but I assure you it will. Without serious checks against government, that evil will be unchecked and what you "wish" wouldn't happen will. And you'll have to power or ability to prevent it. The end result is the loss of your "life, liberty and the pursuit of happiness." You know, those things that ar

Re:Still Depressing

[HuguesT]

This does not compute. The notion of country doesn't have much to do with govermnent. I'm betting Spaniards were proud to be Spanish even under Franco, that Italians are proud of Italy even when they don't approve of Berlusconi, and that many Americans are proud to be Americans even if they don't approve of who's the President today or the majority of Congress or the Supreme Court appointees.

Re:Still Depressing

[Dr. Zowie]

In the immortal words of Utah Phillips, "Love my country -- always. Love my government -- when it deserves it."

A prime founding principle of the U.S.A. is never to trust authority, particularly authority in governmental power. That is why we (supposedly) have a system of checks and balances in government -- the branches are supposed to squabble, and to have to work things out. Unfortunately, the current set of jackasses got enough control that they could sidestep those checks and balances, and are busy pillaging every bit of monetary, political, and social capital they can.

Unfortunately, critical thinking is passé enough that a majority seem to swallow the propaganda and lies at face value.

Many more people died in Katrina than died from terrorism in the last decade, and Katrina is just one hurricane of many. Why are we spending so much money occupying Iraq, and so little money protecting our homeland?

(For exampled, the occupation of Iraq is costing more than $15,000 per second -- more than 2.5 trillion dollars so far. By contrast, the Army Corps of Engineers is having trouble getting money to rebuild the levees around New Orleans. That project is estimated to cost $2.5 billion dollars, less than the cost of one weekend of the occupation.)

Re:Still Depressing

[Darby]

It's as simple as I trust the government to protect me and you don't.

Either this is a troll, or you are probably the most deeply stupid person I've ever heard of.

Re:Still Depressing

[ray-auch]

The "just default" option was in response to a question on what to do if you "hadn't got the money" to pay.

In that case "just default" _is_ probably your best option - you haven't got any money anyway, so what are they going to take from you anyway ?

If the default judgement is in the millions it just means you go bankrupt for more and it might even help - if you owe so much, then maybe no one's going to question you going bankrupt.

Defending yourself might be more satisfying if you can make the other guys waste more of their money on lawyers to get nothing at the end of it, but it might be more risky. I don't think the RIAA can put you in jail from a civil suit, wheras I'm pretty sure that in a lot of places the judge can, for contempt, if he/she things you are taking the p***.

Re:Still Depressing

[merreborn]

Wish I had a mod point for you. File shares are doing a bit more than breaking the law: they're pushing for change. See also the EFF page on alternative music industry business models.

The "File Sharer" position (which includes people who aren't engaged in copyright violation -- merely interested in fair use freedom) is that the RIAA *cannot win* this fight; the state of technology is such that some of us will share music and movies in such a way that we can't be caught. The technically savvy have been miles ahead of the **AA every step of the way. While they were tearing down napster, we were building Gnutella. They're just now suing children and women using Kazaa, while we've moved on to bittorrent. They just killed eDonkey, but we've been using eMule for years.

If they follow us here, we'll move to encryption, darknets, and traffic obfuscation. Technology moves too fast. Copying data will always be easy. Copying it anonymously won't be much harder.

If they keep pushing like this, there will come a time where they can't reach us any more. Then they'll have to change.

So why not cut to the chase? Give us what we want at a fair price.

http://www.eff.org/share/?f=legal.html
http://www.eff.org/share/?f=compensation.html

Am I the Only One

[walmartshopper67]

... who didn't get anything from that? Who needs lawyers, I can answer every question with a synonym for "depends" myself. I realize, the law is incredibly complicated (i'm a criminal justice student myself), but come on - "I don't know what MP3 files you are talking about, how do you know you were entitled to make those copies legally?" - well fuck i don't know, was I? Stop answering questions with questions and i'll stop talking shit about lawyers.

Re:Am I the Only One

[theckhd]

I agree, the answer to that question in particular seemed very condescending, and almost willfully ignorant. It was pretty clear that the question pertained to mp3's made from a CD that was purchased legally:

Q: Are the .mp3 files of that CD on my computer legal or do they now belong to the thief too?

A: I don't know what MP3 files you are talking about, how do you know you were entitled to make those copies legally?

(emphasis mine)
It would have been more useful if he had answered the question that was asked, or at least elaborated more (ex: "Technically, you shouldn't even have ripped the CD in the first place" or whatever)

Re:Am I the Only One

[rabel]

It's hard to generalize about that, because each person's facts, each person's personality, each person's intellect and ability, are different. Generally, there is no real good way to handle these cases, so anything anyone does is a mistake, in that sense. But in another sense, there are no mistakes, because there is no right answer.

Good gawd, no shit man. This is the best non-answer answer I've read in a long time. Information Content: big fat ZERO.

Hello? Lawyer guys? We all realize that everyone's situation is different. We're not asking you to write a damned legal response to a court because we're in the middle of a lawsuit. Can't you just answer the damned question? It's perfectly acceptable to say, "It's complicated, but here's my personal opinion. YMMV" or something similar.

Summary of interview: Don't share your music publicly if you want to avoid legal hassles. Lawyers can't answer questions.

Count me in on the "Still gonna talk shit about lawyers" group.

Re:Am I the Only One

[anagama]

From now on, if someone says IANAL at the top of their post, that tells me the probably know MORE about the subject, not LESS. Sheesh.

Perhaps you have had the experience that the deeper into a particular subject you get, the MORE you know you DON'T know. So if you ask a lawyer about a subject in which he/she has extensive knowledge, for certain fact patterns, the answers you get will be closer to "I don't know, it isn't settled". If you ask someone who has a casual understanding, that person is much more likely to say "Oh yeah, that's fine -- no question about it."

This applies in any field -- those with greater knowledge actually know what they don't know. Another thing to realize is that when a lawyer gives you an answer you don't like, it isn't because he wants to piss you off. It's because that's the answer. The lawyer may be sympathetic but if the answer is against you, wouldn't you rather know?

However, if you insist on non-pro advice perhaps the next time your car breaks down, ask a guitarist how to fix it. Next time you have a legal issue, ask a car mechanic how to fix it. And next time you want to learn a new chord on your guitar, ask a lawyer for help. You might find someone by luck who knows the other fields from off-hours research, but chances are, you're car won't work, you're music will suck, and you'll end up in jail/owing people money. Best of luck though.

Fair Use?

[johnsmith_12345]

So what does fair use mean? He just said we can't backup our CDs! Dose this mean that you are not aloud to put music on your mp3 player?.

credibility +100

[Ubergrendle]

When a lawyer answers "I don't know" or "it depends", you know they're honest; when you're offered a guarantee its time to start running in the opposite direction. (note: this advice also applies to medical professionals).

He also reaffirmed my suspcisions that the justic system is highly subjectie to the whims and personalities of the justices preciding. Thank goodness for the right of appeal!

Re:Question 6 not understood - or lacking

[russ1337]

Here is another that I dont think was understood totally:

What's the position of Americans who buy from legal offshore music sites, such as allofmp3 [allofmp3.com]?. Is this safer than downloading "free"?
Beckerman: I don't know what you're talking about. The litigation wave is worldwide. The RIAA isn't American. 3 of the 4 members of the cartel are "offshore corporations". There are different versions of the RIAA everywhere. In France, and certain other places, they bring CRIMINAL cases, not civil ones

I want my lawyer to at least have heard of "Allofmp3.com" when he's defending me against the RIAA... They should have at least a good understanding of many of the wider issues. But *sigh*. What use does it do when the Judge isn't even up for the photoshop argument... isn't it about then that you push for a jury trial?

um...

[Lord Ender]

you seem to have a general misunderstanding about the basic principles of copyright law. When you buy a copy of something you have rights in the copy, that's it. No metaphysical rights to listen, reproduce additional copies, etc. I don't know what gives you this idea.

It seems strange to me that a copyright lawyer hasn't heard of the fair use rights granted by US copyright law (Title 17, section 107).

The person asking the legal question is better informed than the lawyer!

Re:um...

[anagama]

I'm a lawyer but I don't have any specific knowledge about copyright and I can't really speak to the statute itself and how it will play out. In general however, when interpreting a statute, the first principle is to look at the plain language -- if it is clear, then no statutory construction is necessary. You must also presume the legislature meant what it said by the words it chose and that each word is meaningful (unless the statute is determined to be ambiguous). Whether a statute is ambiguous and is subject to statutory construction (i.e., interpreation beyond or different from the plain meaning) is the subject of $big_number's worth of litigation every year. Construction can include the legislative history, other related statutes, and other things that escape me as I sit here in my PJs on my day off.

Anyway, looking at just the cited statute alone, and no case law decided under it, it's plain that ripping a CD for personal use isn't included in the non-exhaustive list of acceptable uses. That means personal copying must fall under the more general test. In other words, it's going to cost a lot to find out whether it's OK to rip to your computer, or make a copy CD for your car (BTW, something the police in my area suggest to prevent vehicle prowls). It will cost even more if you lose.

It bears emphasis however that the people being sued by the RIAA aren't being sued for making a burned copy of media they own to play in their cars. They're being sued for giving copies of music to other people willy nilly. So while I personally use my ipod for my entire library, I don't engage in file sharing (neither receive nor send). I don't know if I'm safe on the first count, but it's pretty obvious I'm subject to litigation if I did the second -- and remember, merely by virtue of being caught up in litigation, you lose, even if you win. Think of the last line in the Seven Samurai -- defeating the bandits came at great cost.

Re:Comment on Answer 10

[YankeeInExile]

Do you think it is truly wise to play game the system with a judge who has considerable discretion in issuing contempt citations?

I'm not disappointed...

[Aaron32]

Seeing the subject, that a lawyer was going to answer questions, I fully expected to see a lot of non-answering beating-around-the-bush-type answers.

And I wasn't disappointed at all.

No lawyer is going to give you a definitive answer, and that's half the problem. The other half is no Judge wants piss off the rich, they want to piss ON the poor which can't defend themselves.

Re:I'm not disappointed...

[Buran]

We want real answers, not answers that look like they were written by a five-year-old, and answers that show respect for the poster, not attempts to act like you don't know what they're talking about. You played stupid in more than one of the questions that were pretty damn clear (the "someone stole my CDs one was pretty clearly asking about that CD being used in, say, an MP3-playing car stereo, an iPod, etc. owned by the person. If you didn't know what they were referring to, couldn't you have asked someone to proof read your answer first?

And then you go on to complain about lawyers being dissed. When people ask questions, they want firm answers, not wishy-washy stuff that seems to be coming from a grade schooler. Even if the answer is "I do not know the answer to that question" or "The answer to that question has not been fully decided yet, but here are some relevant links to read".

We shouldn't have to explain this stuff to someone who theoretically went to high school, college/university, and then law school. Isn't proper debate part of the law-school curriculum, and don't you have to learn to write proper arguments as part of English courses?

Re:I'm not disappointed...

[lawpoop]

No, man, you don't get it.

All that these people are looking for is a little respect and politeness. The slashdot crowd is highly intelligent. Many of these people have advanced degrees and work in high-end technical fields. We're not asking dumb questions or non-sense. They might be naive and certainly are uninformed, but we are not stupid.

We can handle things like "I don't know" or "It hasn't really been decided yet". "I don't know what you're talking about" is the kind of answer you give a five-year-old when they ask something naive like "Do you think unicorns are real" and you feel like being mean and dismissive.

We are not looking for you to misinform us on the law, or to yell "Hell yeah!" and support our misconceptions, or 'tell us what we want to hear'. Just treat us civilly, like intelligent *peers*. Most of us didn't go to law school, but we probably would 'get it', if you would have a little respect for our intellect, and a little patience to take the time and explain things fully.

I gave a decent defense of your answers here, but after reading your comment response, I have you say, you really are acting like a dick to some potential clientele, and could stand to learn some manners.

Just explain "Your question is fairly ambiguous; it's impossible to give a good answer without more details, but remember a lot of law has not yet been decided" instead of a terse "I don't know what you are talking about". Your reponse makes it sound like I just came up to you and spoke utter gibberish. And, to be honest and fair, you do have a very good idea of what all of us are talking about; you are choosing to play dumb and not volunteer information. There's probably good reason for that; but remember, as computer geeks, we really don't understand the lawyer mindset. It would help all of us if you took the time to explain why 'you don't know what we are talking about'.

"Rights to listen"

[xswl0931]

I think the point made was that when you purchased the CD, you have rights to THAT COPY. You did not buy rights to ANY copy. So if THAT COPY is destroyed/stolen, then you lost the rights to THAT COPY.

The RIAA only goes after uploaders.

[DamnStupidElf]

All of the cases that I have seen stem from people who are using a Fast Track sharing program such as Kazaa, Imesh, Gnutella, LimeWire, etc., having a shared files folder with copyrighted songs in it, even if the song files were obtained legally. So even making sure to pay for all of your downloads wouldn't protect you from a lawsuit. The only way I know to avoid the present litigation wave is to avoid having shared files of copyrighted songs.

I think that cinches it. If you don't want to get harassed by the RIAA, don't let other people download their music from your computer. That's been the common sense answer for quite some time, but it's interesting that he says all the cases have stemmed directly from sharing songs, not downloading them.

What I find more interesting is that the lawyers don't believe that buying a CD gives one the fair use right to rip it to MP3s for playing on another device. That, to most slashdotters, is a fundamental fair use right, but perhaps to the law it doesn't technically exist. I suppose it all comes down to whether EULAs are valid contracts or not. If not, then obviously everyone has the fair use right to copy the CD for their personal use because the data *has* to be copied into hardware registers, modified (especially during error correction), and then converted to analog audio at some point. If EULAs are valid, then I guess you can't buy used CDs because the imaginary EULA that comes with every new CD probably doesn't "allow" that. We definitely need a strong anti-EULA case to go through the courts, preferably one like this where it's blatantly obvious that the necessity of a EULA to play a CD or DVD is an undue burdon and against fair use rights.

Re:The RIAA only goes after uploaders.

[Castar]

Well, I would expect *them* to flip flop. But they don't get to decide that, right? Surely someone other than the RIAA gets to define what "fair use" means in this case?

Otherwise, I'm scared :-(

I apologize; you are right

[NewYorkCountryLawyer]

Well I must confess that I was probably being facetious because I was annoyed at his question. I was annoyed that (a) he was counseling young people when his own view of copyright law is basically fictional, (b) he's counseling them on issues that even experienced copyright lawyers don't know the answer to, because the law is unsettled, and (c) he's going around spreading false ideas that will just get people into more trouble. So I apologize. I should have been more respectful.

We are in a time of flux, and the issues are being hammered out in cases where the content providers have all the money for expert witnesses, teams of lawyers, etc., and their opponents have nothing.

If the computer industry doesn't get into the fight of helping the RIAA victims, the copyright law is going to be expanded and twisted to such an extent that the internet as we know it will cease to exist. See amicus brief of US Internet Industry Association and Computer & Communications Industry Association in Elektra v. Barker.

Re:I apologize; you are right

[DamnStupidElf]

If the computer industry doesn't get into the fight of helping the RIAA victims, the copyright law is going to be expanded and twisted to such an extent that the internet as we know it will cease to exist.

The problem is that the computer industry relies on exactly the same overbroad copyright protections as the RIAA and MPAA. EULAs are essentially the mirror image of the restricted consumer rights the buyers of RIAA and MPAA media are thought to have. If you don't have the fair use right to copy your CDs or make them into MP3s, then obviously you don't have the right to run software you have purchased, and you need a EULA to even load it onto your hard drive. On the other hand, if fair use allows owners of CDs and DVDs to make personal copies and translate them into other formats, then what prevents owners of software CDs from doing the exact same thing? If you have bought a software CD and have the fair use right to transform or make personal copies of it, then you don't *need* a EULA to use it, you just copy it onto your computer and execute it, or disassemble it, or take off the silly CD copy protection it might have, all perfectly legally. The commercial software industry is probably more scared about fair use rights than the RIAA and MPAA. No one is going to buy CDs if you have to be 18 and sign a legal contract to use it, and the same is true of software. "IP" companies have relied on being able to apply the force of law against their customers without any true legal contract for long enough that most of their business models would collapse if the law changed overnight.

Re:I apologize; you are right

[rizzo420]

that question was probably the best question i read in that group of questions and you completely blew it on that one.

not trying to be a troll... but you didn't really help anyone with your answers to the questions. nothing was enlightening in your responses. it's all stuff that almost everyone here generally knows or could have assumed.

thanks for trying though. next time answer the questions.

Re:I apologize; you are right

[Anonymous Coward]

(c) he's going around spreading false ideas that will just get people into more trouble

My biggest problem with your answer and the above quote is that you assume the poster of the original question is teaching the "'younger' generations" about copyright law when s/he stated it was just do-s and don't-s of music copying and sharing. While related they are not the same. If you tell children/teens nothing at all about either copyright or music copying and sharing they will go ahead and assume it is all acceptable.

My cousin got his first ipod recently and he used Limewire to get music. His parents knowledge of this sort of thing stops at knowing that it is legal to tape songs off the radio. He assumed he can download and share music and that it was fine and dandy. Despite me having flawed/skewed knowledge of copyright, I was still the most informed on the topic to set him "straight". While I can't give him an accurate idea of what is right and wrong in copyright, I CAN tell him valid do-s and don't-s of music sharing to help him avoid becoming an RIAA target. He is going to use Limewire no matter what I or anyone tells him. The least I can do is tell him to not share his songs and to remove any songs he downloads when his shared list.

Point is: Most will assume that since music sharing is very easy to do and that a ton of people are doing it, it is acceptable or there are no consequences. Not informing the younger generations of anything regarding this matter will put them MORE at risk, even if the information given to them is somewhat flawed.

Re:I apologize; you are right

[professionalfurryele]

With answers like you gave I sometimes wonder if a better legal system wouldn't be to just toss a coin. At least then someone like me would get justice half the time.

I did like your comment about the law being the only leveller left. Last time I checked the laws were all bought and paid for, along with our politicians and civil servants, along with the best lawyer. Our judges vary between incompetant at best, corrupt and political at worst. Our militia, who under normal circumstances would be our last hope are a bunch of mindless hicks who wouldn't know liberty if it hit them in the face with a red hot golf club. Our police force only enforce the laws that their political overlords tell them to, who did I mention are bought and paid for? And to make matter worse fundamental design flaws in the system mean that larger entities are favoured over smaller ones because of their ability to use their greater cost absorbtion potential to extort money from people.

The system is broken, and people are too stupid to fix it because we have gone from living in a representative 'democracy' in which people were told by their betters what was right for them to a geniune democracy (mob rule) where every Tom, Dick and Harry's opinion counts no matter how fundamentally retarded they are. And where do Tom, Dick and Harry go for their opinions. Why the TV, and their favourite political party if they bother to vote. Not that voting makes any difference because just in case Tom, Dick and Harry get wise the system ensures that the small subset of parties likely to win an election are uniformly controlled by money interests. And I wouldn't mind, but it isn't even a conspiracy, it's just the natural evolution of a flawed system which makes the fundamental mistake of assuming that people without a clue will keep thier mouths shut and their backsides out of a polling booth.

You really want to know why people hate lawyers, judges and the police? It's because you have all become pawns, willing pawns, of a system which is out of control and which places the interests of abstract entities above that of an ordinary guy. And which is more, you have all be deluded into developing a hero complex which convinces you that your part of the system is fundamentally right and that if we could just tweak it and fix all the parts you think are broken then societies problems would go away. Well I'm afraid the truth of the matter is you are all useless puppets.

I'm not trying to take away from the good work that you are doing, I'm just pointing out that your belief that the system works in any way shape or form is a falsehood, told to you by people who I've no doubt really convinced themselves of it just as much as you are convinced of it. But it is a falsehood none the less.

Summary of answer:

[A nonymous Coward]

There is no answer. What is so hard to understand about that? The case law is unsettled; he said that. This is not about simple murder, kidnapping, etc, this is about laws which are changinga ll the time, as fast as the *AA can push their changes and keep things changing. Until the *AA stop changing things, he can't answer the question. So yes, the answer could be summarized as "stay squeaky clean", but any other answer would be wrong.

Why is that so hard to understand?

Even simple murder, kidnapping, etc, aren't simple. Look how many different kinds of murder there are: various degrees of murder, of mansalughter, voluntary, involuntary, willful, whatever. And that is law which is mostly settled. How can you possibly expect new law to be as well settled?

Reality is that unless you stay squeaky clean, they can amke a case against anybody they want under whatever corner they have pushed the law into; and even then, if they lie, they can make your life miserable.

Dear Sir

[Anonymous Coward]

On behalf of the Slashdot community, I apologize that you received so many stupid and useless questions.

Re:Dear Sir

[el americano]

Is that why we got some useless answers? The questions are always hit or miss, but by my scorecard, the answers were only average:

1) Answered, but "Default Judgement" could use a clarification
2) Either none or his clients made mistakes, or they all did. He couldn't give us one example of tactics/negotiation that he'd seen fail?
3) Answered
4) Mostly answered
5) Answered - softball
6) Didn't know. Didn't check.
7) Confusing. b) see b, doubt it, don't know. The first part seems to say, "no copies". We still don't know if ripping CDs for our music players is legal?
8) Answered
9) Not answered. Cites an argument on discovery, which apparently only requires a valid copyright and the existence of a shared copy. What evidence is being successfully used? Has any evidence ever been thrown out as irrelevant or insufficient?
10) Answered

I'll give a 6.5/10, or in slashdot terms a Score:3, Informative. Maybe worth reading, but if you are up on the subject, you may not learn anything new. I was hoping to learn a lot more about what has actually been tried in negotiation and the court room. Perhaps he didn't feel it was the right format to mention these details.

Re:Dear Sir

[fermion]

I don't think any of these answers were useless, it was just not what you, and perhaps most, wanted to hear. As we all know, because we have all read the HHGTTG, a good question forms the basis to a understandable answer. Most of these question assumed certain things to be true, and then tried to make assertions based on those assumptions, and the lawyer was then expected to say, you are absolutely right, and so brilliant! Instead the lawyer did what lawyers do and gave realistic answers based on the current reality.

The fact is that most of these questions were nonsensical. Answering them would be like answering what kind of food do the trolls that run your car need. While it would be possible to use analogy try to explain that the car has no living components, but does consume a refined product that is refined from gunk that is from the ground, this would not be reality. So while the nice lawyer could have tried to fit the answer to the question, it is not usually what lawyers do, and not what I would expect a lawyer to do.

What is refreshing about these responses is that it provides a ray of reality to a site that all to often hides reality under troll and overrated moderations, and highlights fantasy with insightful mods. Which is not such a big deal, as /. is really just a bit of harmless fun. But if we do take it seriously, then we take some time to learn how to ask good open ended questions, that is questions that do not assume a certain answer, and the develop the discipline to listen to and understand the answer. Otherwise all this effort is truly made trivial, as we will be unable to learn anything at all.

You're losing the thread.

[NewYorkCountryLawyer]

You're losing the thread of what was said.

I said:

"When you buy a copy of something you have rights in the copy, that's it. No metaphysical rights to listen, reproduce additional copies, etc. I don't know what gives you this idea."

His response wasn't "what about making a copy on your hard drive and copying that to your ipod?" If he'd asked that question I would have said "there is no legal answer to that question at this time."

Instead his response was:

"It seems strange to me that a copyright lawyer hasn't heard of the fair use rights granted by US copyright law (Title 17, section 107). The person asking the legal question is better informed than the lawyer!"

Re:Reality or Certainty? Take your Pick.

[Buran]

I mean correct answers that are properly written, don't act like the poster is an idiot, don't "answer" (quotes intended) the question in glib sentences that hint at the poster being uninformed or stupid. It's easy to do (b) and (a) at the same time, and do it competently.

This is the worst Slashdot interview I've seen in a long, long time. It looks like you spent no time whatsoever reviewing a single answer and threw out the whole thing in five minutes.

I'll get on your case if I damn well please because I'd like to see a good discussion of this but this is not it. I'm also sick and tired of low-quality "I know everything, you're a fucking moron" attitudes in discussions.

The listening right?

[techstar25]

1. If I purchase a CD and it is subsequently stolen (along with my 5 disc changer *@$#!!) do I retain any rights to listen to that music?
1. There's no such thing as a listening right, I don't know where you get that from.

The listening right his question refers to is the right to "space shift". In other words, the right to "listen" to a recording at work on my iPod, or in my car on a burned CD-R, all while the original CD itself sits on a shelf at my home. This is a frequent topic of discussion amongst Slashdot regulars so I'm not so surprised you didn't know what he meant. According to Wikipedia we have this right based on the judgement in the case, "Recording Indus. Ass'n of Am. v. Diamond Multimedia Sys., Inc., 180 F.3d 1072, 1079 (9th Cir. 1999)". It gave us the right to make an electronic backup copy for personal use.

The current RIAA website says "If you choose to take your own CDs and make copies for yourself on your computer or portable music player, that's great. It's your music and we want you to enjoy it at home, at work, in the car and on the jogging trail. "

Once the original is detroyed do we still have the right to keep our backups? Of course this question itself is a paradox because once we destroy the original we need the backup. However do we then have the right to even possess the backup if we can't prove we ever had the original? We don't know the answer to this, and that's what he was asking. However I don't believe this has been tested in a court yet.

Regardless of any of this, his question is actually off topic because (to my knowledge) the RIAA is only "going after" people who are
sharing files, not people who are possessing personal backups. Correct me if I'm wrong there.

Re:The listening right?

[EVil Lawyer]

So the RIAA says it's no fair use. But is there any law on the books saying it's not fair use? What's your analysis of how RIAA v. Diamond applies to ripping CDs?

Re:I guess there's no Gray Area

[odin53]

There has never been a fair use right for any copyrighted material that worked that way. Say you had a book that you accidentally dropped in the bathtub and was ruined, or maybe it was in your bookbag that was stolen. You don't have some fair use right to another copy, whether a new paperback or a digital one, just because it wasn't your fault that you lost the original copy; it's tough luck, buy another book. In fact, with music, you actually have an extra *statutory* right -- the right to make a backup. You still can't photocopy or scan an entire book to make a "backup" of it!

The key point to remember that often gets lost on people, and this is what the lawyer was referring to when he said he didn't know where the questioner was getting his/her preconception, is that copyright gives the copyright owner the right to control the making of *copies* of original works. All the questions of the questioner seem to be missing this fundamental point (although they do end up touching that important copyright issue of fair use). Unfortunately, I suspect that the idea of a license to copyrighted works -- particularly the way licenses are used with software -- has kind of screwed up people's understanding of copyrights.

It's about time

[Anonymous Coward]

It's a pleasure to see ignorant slashdotters basically get their asses handed to them by people who actually know what they are talking about. There are so many false (or at least hasty) assumptions about illegal file trading that get repeated here with every story about the **AA. Eventually, they come to be perceived as established fact. If the lawyers' answers have any effect, hopefully it will humble some of you, and show you that much of what you thought you knew was uncertain, if not just plain wrong. (Knowing the typical slashdot ego, though, it's not very likely.)

Fair Use and Destryoed CDs

[logicnazi]

Thanks for the interview but I have to admit that I'm left feeling a bit disappointed by the answer to question 7 (the buisness about CDs getting stolen or burned in a fire). I realize that the law might be unsettled in this area but I think the questioner was asking for a legal analysis. What are the relevent questions that would have to be decided to answer these questions? What statues apply?

In particular it is my understanding that fair use has long been understood to include a right to make a backup copy of your software or music. Certainly this fair use notion only makes sense if there are SOME situations in which it is legal to restore your software from a backup. Since it is a well accepted canon of legal interpratation that one shouldn't interpret laws to have absurd consequences or to render clauses meaningless when possible it seems this provides strong reason to believe that it is okay to restore your mp3s if your CD was destroyed in a fire.

The question about the insurance company should follow pretty easily from any answers to the other questions. Surely the insurance company wishes to minimize the money it pays out and if you still retain a large fraction of the value of your music collection they will pay you less money. On the other hand if you no longer have the right to legally play/burn the music on your CDs you have lost all the value contained therein and if this sort of loss is covered by your policy they have to pay up.

The question about whether you can download music you legally own is the most interesting as it goes to the heart of what it is that you purchase when you buy the CD. Is it a physical object or some limited rights to intellectual property. Either way has some serious consequences. Many of the claims by software companies that attempt to restrict your rights to do as you want with the software you purchase rest on the notion that you are just purchasing certain limited rights to make use of the IP while if what you are purchasing is more like physical possession of a CD it puts reselling that CD on firmer ground. Now if the CD had a specific EULA banning downloading the music on the CD that would be one thing but if that isn't the case things get very interesting.

It would be nice to say that one had purchased a single right to listen to the music contained therin but copyright law doesn't work like this, generally it governs the making of copies. Thus I would guess the question comes down to whether the copy made by downloading from the internet is legal. However, if it is legal for you to copy the data from your CD to your computer what makes this case different?

Anyway the point is that there are a lot of interesting questions here and I was hoping to see some quality legal analysis not my vague musings. Maybe I've just gotten spoiled by hanging out on law blogs but I'm kinda disappointed.

Re:Fair Use and Destryoed CDs

[NewYorkCountryLawyer]

Many people think question 7 was a good question. I do not. My initial reaction to it was that it was disingenuous, as if someone were looking for excuses to skirt the law, and asking me to help them by giving them some ideas. The whole question made no sense. When you buy a cd, you own the cd, you have no rights in the sound recording or in the musical compositions. Period.

If you want to know whether you can make personal copies for your own use, from a cd, without being sued, I can only tell you that the RIAA flip flops on the issue, and there is no judicial authority one way or the other, and there is no statutory authority one way or the other. So what kind of "legal analysis" do you want me to give you?

Meanwhile the whole subject is basically off topic. All of the lawsuits are based not on where the copies came from, but on the fact that they are in a shared files folder that is accessible to others.

Re:Fair Use and Destryoed CDs

[NewYorkCountryLawyer]

I'm not saying lawyers are smarter than computer programmers, probably it's the opposite. All I'm saying is that each discipline has its own language, lawyers speak and understand each other's language, just as programmers understand each other. When I'm among people who are not lawyers, and who are asking me legal questions, it is important not to mislead. Just because I can make an argument as to why something should be the law, doesn't mean I should do it in this forum. That is not my place here. No one asked me to fashion an argument. They just asked me questions on what is, not on what should be.

Re:US Attorney General

[Jerf]

What are the limits on the owner's right to use a machine to decode their copy of the work? For instance, it is apparently perfectly legal for CD players to read ahead several seconds or even minutes and store a copy of the CD data in memory so that CD player skips will not impact playback. In this case, the owner seems to have the right to make a copy of the work for personal use, but where does this right come from?

Personally, I think that this is basically a fundamental weakness in the law and it can not be redressed, as the entire foundation of trying to work with "copies" is fatally flawed.

In fact, that fundamental problem came up in question #7 as well.

That's why when I tried to re-work communication laws (including copyright), I developed the idea of a human-experinced message, separate from the "concrete parts" that make up a message, to resolve this.

In summation, I assert that a computer shouldn't have any legal or ethical standing anyhow, so who cares how many copies a computer makes of something? What matters is human experience. Under my model, "piracy" (skip the word debates, please) is not the act of downloading something, it's the act of actually viewing/hearing it. If you download something and immediately delete it, it's not piracy.

(Note that this is really necessary anyhow; suppose you download something claiming to be public domain, yet you discover it's actually last year's top movie, and delete it immediately upon discovering that. You really shouldn't be charged with piracy. Under the law today, you are. The fact that it can be difficult to determine whether something was actually consumed is honestly the legal system's problem; it seems to be able to reasonably determine "intent" in other contexts.)

Re:Fair Use?

[DamnStupidElf]

If they think they can win on it, I wouldn't put it past them to argue that personal copies are an infringement.

I posted about this earlier in the thread, but this requires a specific response. If the RIAA can get a court to agree that personal copies of a work are illegal (despite the existance of the fair use right to make a backup copy), they will be in a prime position to be sued on the legality of EULAs in general. If it is illegal to make a personal copy of a work, then it is also illegal to decode the work and listen to it because the decoding and possible decompression require making temporary copies in the memory or hardware registers of the decoder. Not only that, but there is a physical copy of the work either existing as sound waves in the air or an image on a video display. Not only that, but in the end the human brain translates and stores a copy of the work internally. The ears transform the work into frequency data, and the eyes make a copy on the retina, and then further transform it into internally meaningful thoughts and concepts. To make personal copies illegal would require the EULA From Hell(TM) to cover all the "allowed" paths that the media could enter the human brain, and in what form the copies could reside in the brain just so that someone could listen to a CD. At that point, it's quite likey that a judge with some common sense would invalidate EULAs in general. When I say EULA, I mean the legal "contract" that one "agrees" to by taking the plastic off a CD or software package or by clicking a button when installing software. Just see how much media the cartels can sell when each and every one of their customers must be over 18 and sign a legally binding contract just to purchase a CD.

The argument can be reduced to a simple one about books. To read a book, the reader must make a temporary copy of the work on their retinas, and then translate the words into internally meaningful thoughts which most likely will remain in the brain for some time. If fair use covers the human sensory system, why should it not extend to the devices the human sensory system uses to view the work? After all, the eyes and ears are merely tools the brain uses to interpret the world, and computers and CD and DVD players are merely the tools that the eyes and ears use to interpret digital media. If the human sensory system is chosen as the arbitrary limit for fair use, it just pushes the argument back a few years until genetic modification and implants allow the human sensory system to interpret and copy digital media directly. Making copies of information is a natural process, and trying to artifically regulate it to the point of authoritarian social control will simply fail.

Re:Evidentiary Procedure

[kindbud]

If you go read the documents he links to in that answer, where he says "We tried, we tried..." you'll find that it was in the discovery process where the screenshots were being shown to the court. At this point in the case, the plaintiffs had only a list of John Does, associated with an IP address. Each IP address had a list of songs that the plaintiffs - the RIAA - had downloaded from the host at that address. The court ruled that for discovery to proceed, all the RIAA had to do was show prima facie evidence that a case could be made. The statures say that prima facie evidence consists of (a) proof of the plaintiffs rights to the song downloaded and (b) the infringing copies of the songs. Boom, that's prima facie evidence that there is a case. Now all that needs to be discovered is who is the defendant. But making the argument during discovery that the evidence of IP address is insufficient to prove infringment on the part of the John Doe misses the point, according to the judge. The court at this point is just trying to identify the defendant, but the attorney for the defense is arguing that the case should be dismissed before the plaintiff learns who he is suing.

Wrong argument, wrong point in the case. This needs to be argued after an identified someone gets to court to defend themselves against the suit.

I am disappointed in the answer he gave, and the case he cited to support his contention that "the court won't listen."

A bad day on Slashdot

[spiritraveller]

Seriously people, show some fucking appreciation for someone with specialized knowledge who took time out to answer your questions.

If you don't like the answers, well maybe it has something to do with the questions. Every question was modded either +5 "Interesting", or "Funny".

Not a single question was modded "Insightful". And one of the questions insulted him for being a lawyer. Another stupidly asked why he doesn't contact the US Attorney General for help in fighting the RIAA.

Of the good questions, he gave informative and helpful answers.

Maybe it's just the nature of the issue (RIAA and filesharing) that brings out the most moronic of the slashdot crowd, but I am seriously irritated by the stupidity that's been displayed here.

-1 troll

[crabpeople]

"Grow up.

Don't shoot the messenger for telling you what reality is."

Gee i wonder why people think that lawyers are condescending elitest assholes...
Just because hes the articles author we are going lax on down mods? that was a pure classic troll. no information and a loaded emotional opinion. God forbid you'd have to explain your point to us little people.
I guess my point is why even post comments if all your going to do is troll?

This lawyer is useless, even if his info is right.

[KWTm]

I don't know if the prolonged practice of law has turned Mr. Beckerman into a law-processing zombie, but the answers he gives are beyond simply uninformative, to the extent that he wants to be correct and at the same time cover his ass.

Look at the answer to Question 7, with the multi-part question about copying CD's. I'm sure all of us would have liked to know if we can legally copy a scratched CD, etc.

Instead of producing any useful information, Mr. Beckerman simply tells the questioner that he is wrong. Fancy that. You ask a question, hoping to get info which is right, but realizing that you have to judge for yourself whether the answer is right or wrong. Instead, he says that your question is wrong.

And that first sentence in Answer #7, "Isn't this a multiple question?" What the heck? First of all, are you charging by the question? Maybe you are. Maybe you set a limit of 10 questions and are annoyed that we're sneaking multiple questions in one.

But, more tellingly ... he doesn't see the "multiple question" as a single question! Four_One_Nine was expanding on the question to clarify what he wanted to ask. Mr. Beckerman interpreted the questions literally and failed to see the meaning behind the questions.

In fact, it seems that for all of the questions and comments, Mr. Beckerman has processed the words and given some more words as output, which are all correct but fail to grasp the intent behind the words. Is he, as a law geek, outgeeking us, or is it just that I'm such a geek that I can see the various questions meanings which are not obvious to the lay person?

And then ... this takes the cake:

You don't know what you are talking about.

Okay, so ... any more info? Where is the questioner wrong? Can we inform him any further? Just saying "You don't know what you're talking about" doesn't make him know any more about what he's talking about.

I'm trying to imagine me treating my patients the same way:

"Doctor, I have this really bad chest pain when I try to breathe! Am I going to die?"
"No."
"What's causing the pain?"
"Firing of receptors in the nerve endings."

If I ever talk that way to my patients, someone please fucking kill me with a flying chair or something.

Mr. Beckerman says: "They want the 'common folk' to think ill of lawyers ... And people dissing lawyers all the time helps that process."

No, Mr. Beckerman: your apparently inability to look beyond the words that form our queries, and your obvious need to be correct at the expense of being helpful, is what is greatly helping that process of obliterating any respect I might have for you and your colleagues.

_____

Two people in a hot air balloon drifted into a thick fog and became hopelessly lost. Presently, they noticed that they were drifting next to a tall building looming out of the fog, and decided to ask the inhabitants for help. Spotting a man standing at one window gazing through the fog at them, one of the balloonists called out:
"Excuse me! Where are we?"
The man in the building stood in thought for a while, and then replied: "You're in a hot air balloon."
The balloonist called back: "Ray Beckerman, is that you?"

Re:I guess there's no Gray Area

[Krondor]

When your last car was worn down to rust did you also expect a free replacement from Toyota?

Flawed analogy because the cars innate value does not reside in the copywritten material encoded on the cars surface or within the car, per se. The car's value is derived in its physical ownership. A CD, in contrast, is worth pennies naturaly. The content on the CD is what is being purchased. Do you expect new food from McDonald's if the food inside the wrapper is bad (another totally flawed analogy). What about demanding new underpants because "My So Called Life" was cancelled (obligatory nonsensical response).

I thought about writing, "if the fair use act" made a provision for cars then, sure I would expect a new Toyotoa. I suppose the paragraph above counters better, especially since I said before I'm not even sure what fair use explicitely provides. It seems like it only mentions libraries;

(b) The rights of reproduction and distribution under this section apply to three copies or phonorecords of an unpublished work duplicated solely for purposes of preservation and security or for deposit for research use in another library or archives of the type described by clause (2) of subsection (a),

Again, not a lawyer, but that's the only section I found relating to legal backups.

Re:Anti-depressant to the rescue

[geekoid]

You are implying the india recordings aren't covered by copyright, and the indie labels won't do the same thing the RIAA is doing. Both of which is false.

Re:If you want to stretch it...

[DamnStupidElf]

Believe it or not, CDs and DVDs can be "read" using the same basic mechanisms. You can shine a light on the disk, observe the arrangement of the bits with a microscope and "decode" it yourself. No CD or DVD "player" is required. All that is required are the instruments I mentioned and some determination, but hey, it took some determination to learn to read conventional media as well...

Well, technically you can't read a DVD because I doubt you're personally licensed to use the CSS algorithm. But that's just another wonder of our magnificent copyright and patent system.

Re:What if the media is damaged?

[ray-auch]

It's time people realised that when you buy RIAA music on CD etc. you pay a lot for not much at all. [In other parts of the world we don't even have the fair use / format shift rights that the US (sort of, maybe) consumer has].

When you buy music on CD you are buying the following:

        The limited right (no public performance etc.) to listen to the music on that CD by playing that CD in a device that will play it.

Thats it.

        CD doesn't play in your player ? Too bad - use one that plays it.

        But I broke / scratched /the CD ? Too bad, stuff breaks, buy another.

        But the CD got nicked ? Too bad, stuff gets nicked, talk to your insurer, buy another.

        But what if you don't sell it anymore ? Well, sorry we lost a sale but hey, lots of things are irreplacable. Jaguar probably can't replace your E-Type either, but they'll have some nice new models. We have some nice new music, wanna buy ?

        But what if I want it in MP3 for my MP3 player ? Well why didn't you buy it in MP3 ?

        No, I mean I want it in MP3 _as well_ as CD ? So buy both (when did you last see "buy the hardcover get the softcover free") ?

        But you don't sell it in MP3 ? - We're very sorry we've missed a sale, see above. ...and so on

Maybe if we educated people as to what (little) to RIAA are actually selling, rather than pretend they're selling something much more useful, people would wake up and buy from independents who can/do offer far more and not from RIAA.

My apologies

[NewYorkCountryLawyer]

Questions 6 and 7.

I've thought a lot about the many comments which related to my manner of responding to questions 6 and 7, and I accept their verdict : I was rude and disrespectful.

Then I asked myself why, since I'm not usually quite that obnoxious.

Here's why I think it happened.

1. I go into everything public assuming that anything is being monitored by the RIAA, because it is.
2. I assume that everyone who asks me questions or makes comments could be an RIAA troll, because some of them are.
3. Both questions seem to ask questions about how to skirt the law. The first about whether doing something illegal from an "offshore" site would stand on a different legal footing than doing it from an American site. The other about whether buying a cd gives you rights in the songs that were contained on the cd, such as a perpetual right to get new copies from any source you like, based upon a perpetual "listening right". I found both questions to be rather odd.

I found it hard to believe that either question was an honest, good faith question, and responded sarcastically and impatiently.

I guess the fact that the questions were so positively moderated, and ultimately selected by the Interviews editor, indicates that they were honest, good faith questions from real Slashdotters so I should have just answered them respectfully. So to the questioners, if you are good guys, I apologize. And to those who complained about me, those of you who are not RIAA trolls, I apologize as well.

I've also noticed a lot of frustration, and anger, for not telling people that it's ok to make copies from a cd to your computer, keep them and use them on your computer, and keep them and use them on your mp3 player as you see fit, so long as it's for your personal use. Some people seem to assume it's because I don't know anything about the law, or don't know what an mp3 is, or something like that. After all, it seems like a simple enough question, and common sense would dictate that the answer should be yes, that it's ok. But there are no cases on the subject, and there is caselaw to the effect that your computer is not a personal audio device like an iPod is. And if you see the EFF article on the subject, "RIAA Says Ripping CDs to Your iPod is NOT Fair Use", you'll see that the RIAA has flip flopped on this issue.

So I could go ahead, act knowledgeable, and tell you "sure, go ahead, that's perfectly legal". Or I could also go ahead, act knowledgeable, and tell you "no, that's absolutely illegal".

In either case I would be guessing, and I would be dishonest in pretending to know the answer to a question on which the jury is still out. So I would appreciate your cutting me some slack.

Re:Topic

[NewYorkCountryLawyer]

You would find it helpful for a practicing litigation lawyer to publicly guess on what the outcome will be in the courts? How would that be helpful? Why would my guess be better than anyone else's? Why would any practicing litigation lawyer make a public guess that the outcome on any particular issue might be adverse to the result that would help his clients' interests? I can't see why anyone would be interested in, or benefit from, a public guess from someone in my position. At best it would be a waste of breath... at worst it would mislead the more gullible among you.

If you ask me what is, I will answer to the best of my ability. If I don't know the answer I will tell you.

If you want me to guess, my guess is..... the RIAA will get crushed on every argument they have ever made or ever will make, and the courts will put them and their lawyers in jail, and everyone will be able to make as many copies of everything as they like, for free.... and after you've digested that, I have a bridge I'd like to sell you.

take another look at the Napster fiasco

[catmistake]

As an audiophile, I truly believe that focusing on the root cause of all this RIAA gestapo BS would be fruitful: mp3s are NOT an exact duplicate of the digital quality of CDs, not by a long shot. I think the crux of it is that IF the RIAA can shut down Napster because individuals downloaded mp3s, THEN, by the same logic, the RIAA should shutdown radio stations because individuals tape songs off the radio (uh... cassette tapes... anyone rememeber those?).

The reason they can't/don't shut down radio stations is because the copy off the radio is not "digital quality." I submit that mp3s, while digital, are NOT the perfect digital copies the RIAA claim they are (listen to the high-end... cymbols sound like glass breaking, all fuzzy, also, even at higher bit rates the low end becomes less defined), the compression completely changes the original waveform to create something that doesn't sound NEARLY as good as the original uncompressed waveform. mp3s are just about at broadcast quality, but not the digital quality of CDs

I'm not sure, but I'd guess that any disinterested audio engineer would agree... mp3's suck compared to the original digital source. If this is the case (and I guarantee you that it is), then just like radio, mp3 sharing sites will actually help sell music, because once you hear a substandard copy of a song you like, the probability increases that you will purchase CD to hear the quality you desire.

To my knowledge, no one has even attepted the technology argument, or objected to the RIAA's claims that mp3s are "perfect digital copies" of the source waveform. From the initial introduction of this litigation, the RIAA has hoodwinked us, and no one even noticed!

If this argument has never been used... why not?