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

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: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.

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.

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'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?

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.

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: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.

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'.

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."

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: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.