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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.
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.
See Statement of Interest of U. S. Dept. of Justice in Elektra v. Barker.
Ray Beckerman +5 Insightful
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.
Warhammer forums
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/7) Gray Area Questions by Four_One_Nine
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?
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?
Beckerman: 1. There's no such thing as a listening right, I don't know where you get that from. 2. I doubt it. 3. I doubt it.
I don't know about you, but I'm depressed after reading this answer.
You would be cheered up immeasurably by buying non-RIAA music. The following companies should be avoided like the plague: SONY, UMG, Warner, Arista, Interscope, Motown, Elektra, Priority, Maverick, Loud.
Ray Beckerman +5 Insightful
Wouldn't some of this fall under fair use? Specifically ripping a CD to mp3 for listening to on a computer, iPod, etc. Are you really saying that when I buy a CD, I don't have the right to convert the music on that CD to a format of my choosing for use on a device that I own?
Note that I said for my use only, obviously if i then share that music with others the water becomes murky.
... 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.
Regarding question 9, this bothers me... it bothers me quite a bit. I know virtually nothing about court procedures (just what I've seen in movies, so might as well change that to nothing), but isn't there ANY formal way to make them account for their evidence? I've read a little bit about digitial forensics, and the exacting procedures specialists go through at each step to be able to say for certain that the evidence is untainted- under what basis are screenshots allowed at all as evidence? Is it pretty much just because the MPAA/their lawyer says they should be?
Much Madness is divinest Sense --
To a discerning Eye --
Much Sense -- the starkest Madness
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.
The first thing we do, let's kill all the lawyers.
William Shakespeare, King Henry VI, Part II, act 4, scene 2
It doesn't seem too rapid, merely universal and perpetual.
This tagline is copyrighted material. Please send $10 for an affordable replacement.
So what does fair use mean? He just said we can't backup our CDs! Dose this mean that you are not aloud to put music on your mp3 player?.
When a lawyer answers "I don't know" or "it depends", you know they're honest; when you're offered a guarantee its time to start running in the opposite direction. (note: this advice also applies to medical professionals).
He also reaffirmed my suspcisions that the justic system is highly subjectie to the whims and personalities of the justices preciding. Thank goodness for the right of appeal!
John Maynard Keynes: "When the facts change, I change my mind. What do you do?"
The responses to Question 7 seem vague to me. Do fair use laws not take effect here??
.mp3 files of that CD on my computer legal or do they now belong to the thief too?
1. If I purchase a CD and it is subsequently stolen (along with my 5 disc changer *@$#!!) do I retain any rights to listen to that music?
. a. Are the
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?
1.If there is no such thing as a listening right, then the purpose and sole existence of the Audio CD medium becomes moot. Does it not??? Are we really purchasing CD's to have the mental concept that they contain Audio tracks that we once heard, and to the best of our knowledge, contained on this legally purchased CD?? What is the purpose of purchasing an Audio CD, if not to listen to it??
a. Does fair use in the privacy of ones home, concerning legally purchased copyrighted material, become NEGATED just because its not explicitly stated on the CD packaging the extent of that fair use?? I thought we lived in a free market and a free world here.
In additional response to his , if the above statement can be made by a lawyer who's fighting for the 'right side' on this issue, how does private and fair use rights have a chance in our present court system??
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!
A slashdotter who didn't build his own computer is like a Jedi who didn't build his own lightsaber.
Do you think it is truly wise to play game the system with a judge who has considerable discretion in issuing contempt citations?
How does the Slashdot Effect happen given that no slashdotters ever RTFA?
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.
Sorry, just karma whoring: RIAA Boycott List
The point is, that "Fair Use" has a lot to do with how much of a copyrighted work you can copy and for what purposes. It does not give you carte blanche to copy an entire work if it's only for your benefit. Russia, I believe, does have such rules, but not the U.S.
Ben Hocking
Need a professional organizer?
With all the outcrys against the RIAA and "downloading music", the answer
to question #3 is to the point. The only activity that will get you
in trouble with the RIAA is to make copyrighted items available for download
over the internet. If you downloaded gigabytes of music and did not make
any of your file system visible over the internet they wouldn't catch you
now would they?
File sharing networks are usefull for various legal purposes, but setting
one up on your home network involves some prudence. You need to make sure
that you don't expose files to the world that 1: you wouldn't want others
to see (such as your bank records or your p0rn collection) 2: you have
no rights to share (music or video files ripped from DVD's or CD's for your
own use under fair use).
I would suspect that if the creators of file sharing software don't provide
the proper setup defaults and protection to prevent unintended sharing of
parts of filesystems they might be liable for the users damages in a law
suit by third parties (such as the RIAA).
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.
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.
Question 2: there is no right answer ...And it's being eroded rapidly ...The US Attorney General is on the RIAA's side.
Question 3: So even making sure to pay for all of your downloads wouldn't protect you from a lawsuit.
Question 4: dismember the internet as we know it.
Question 5:
Question 6: they bring CRIMINAL cases, not civil ones. (their emphasis)
Question 7: You shouldn't be trying to educate the younger generation about this stuff. The law is unsettled. Is it? I thought this was resolved years ago with VHS?
Question 8: I'm an ordinary lawyer...
Question 9: the entire underpinning of each case is a joke.
Question 10: 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
1. An environment of fear of noncompliance has very successfully been created and applied to music consumers, and the lawyers won't rock the boat either.
2. Another example of "I'm not a criminal so I have nothing to fear." Where an artificial fear is created and maintained to enable psychological control on a national scale.
3. I agree that sharing the music is wrong, but the psychology of fear is being used to remove any personal ownership (as in personal copies) whatsoever. I thought personal copies were long ago approved by the courts. Someone please inform me otherwise.
Cut the crap, and donate to the EFF http://www.eff.org/ if you aren't going to spend your personal time making change on the issue yourself.
http://www.maxineudall.com/2010/02/should-economists-be-sued-for-malpractice.html
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.
Ray Beckerman +5 Insightful
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.
Infuriate left and right
What do you mean by real answers?
(a)Correct answers which accurately state the law? or
(b)Answers which sound like the responder knows what the answer is when he doesn't?
It's real easy to do (b).
I don't play that.
The reality is
-the law is uncertain and in flux;
-it will be hammered out in cases where the corporate content cartel has all of the marbles;
-unless the tech industry gets wise and starts getting behind the victims of the RIAA/MPAA suits financially, the legal issues which are in flux may all be resolved in favor of the corporate content cartel; and
-the answer to every question will wind up being no, instead of what it is now: maybe.
So instead of getting on my case, do something about helping me win.
Ray Beckerman +5 Insightful
I've been discovering a lot of new stuff with iRate radio. The songs that it locates for you, while not necessarily Libre, are at least free-as-in-beer.
Step into a huge movement. Don't Tread In Me.
When I said "I don't know what you're talking about" I meant why he would think that it taking place in another country would be a defense, or would make him less subject to persecution or even prosecution. This is an international wave of litigation.
Also the present wave isn't presently about downloading primarily. It's primarily about the RIAA's allegations of 'distribution'. If you bought and paid for every single RIAA song file in your shared files folder it wouldn't mean a thing to them. They will still sue you, and will insist on every penny, because it is your 'sharing' of those songs that they know about, and that they are after.
Ray Beckerman +5 Insightful
In response to that much more clear question, the answer is that the RIAA is going to come after you no matter where you got the files from. They're not suing people because they have evidence of downloading. They're suing them because they have evidence of the files residing in a shared files folder.
If you had a shared files folder with 500 RIAA songs in it, and you paid 99 cents to iTunes or whomever for each and every one of them, the RIAA would come after you and demand a settlement in the exact same amount as if every one of the song files had been pirated.
Ray Beckerman +5 Insightful
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.
Hasn't been mentioned yet. You tell it about big-label artists you like, and it points you to non-RIAA artists that are similar.
http://www.magnetbox.com/riaa/
My turnips listen for the soft cry of your love
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.
If you liked this thought maybe you would find my blog nice too:
You are correct. The RIAA is only going after people who are sharing files.
Ray Beckerman +5 Insightful
Sure you can listen to it.
The questioner was assuming that there is some "listening right" which follows you even after you no longer have the cd anymore. I.e., he is suggesting that you can go rip a copy of the song from somewhere, without reference to the copyright laws, because your past ownership of a cd with the song on it gave you a perpetual "listening right". That is total fiction.
Ray Beckerman +5 Insightful
I know what an MP3 is. Just didn't know what MP3's he was talking about. He didn't say how he got the MP3's. Can't assume that RIAA are just agreeing that everybody can make all the copies they want for personal use. See what EFF has reported.
Ray Beckerman +5 Insightful
If you think it's safe to rely on that assumption see what EFF has to say.
Ray Beckerman +5 Insightful
No reputable lawyer is going to tell you how to evade the law.
Ray Beckerman +5 Insightful
No no. It's not about setting up a "shared folder" per se, it's about setting up a sharing scheme so that others have access to the files. When NYCountryLawyer says "shared files folder," he is talking about a folder that has been linked to a file-sharing program -- such that others can download or open the files.
It is called ASCAP and BMI licensing. This is what restaurants, bars, and music venues pay to cover the costs of licensing for cover songs, playing background music and whatnot. I've looked into this, and it appears as though for like $200/yr or so, anybody can get one of these licenses for less than 200 or whatever people and it be OK to download and play anything you want at any time.
In Britain, there is a TV license. Just out of curiosity, is there a possibility here in the US to get a music license and just be allowed to listen to what you want, when you want, or are we stuck with the buy plastic CD even though we don't want a plastic CD?
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.
You said:
He said:
Now I was under the impression that you DO have the right to make backup copies of things for personal use (i dont know how to look up laws but i will assume that thats what the cited law states). Now you are saying that this is not the case?
I'll just use my special getting high powers one more time...
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?
I'll just use my special getting high powers one more time...
Cornell Law
107. Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work,
including such use by reproduction in copies or phonorecords or by any other means specified
by that section, for purposes such as criticism, comment, news reporting, teaching (including
multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.
In determining whether the use made of a work in any particular case is a fair use the factors
to be considered shall include--
(1) the purpose and character of the use, including whether such use is of a commercial nature or
is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is
made upon consideration of all the above factors.
From my reading, an aspect of fair use is codified. However, it doesn't help much in justifying a backup
or rip.
The little guy just ain't getting it, is he?
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
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
Okay, so
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
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?"
404555974007725459910684486621289147856453481154 in hex is "You sank my Battleship?"
[GPG key in journal]
One that I particularly wish was less tersely answered (or where I wish some speculation as to meaning had occurred) was this one:
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?
.mp3 files of that CD on my computer legal or do they now belong to the thief too?
. a. Are the
I understand that there is no "listening right" per-se, but the question seems to stem from a typical understanding of the concept of fair-use.
If I have a right to make archival copies of copyrighted material that I have purchased a copy of on CD, and I use MP3 files on my computer as that archival copy, am I allowed to listen to the MP3 files themselves if the original CD is stolen, or has the right to do so passed on to the theif?
Assuming that's a reasonable paraphrasing of the original question, (or even if it isn't), are there answers to thaose questions, or has the issue yet to come before a judge?
I understand the reason for the answer to the original question, I think (I suspect it has something to do with being a legal professional and giving a public answer to a legal question), but I am also curious as to what the answer to it (rephrased) might be.
"Murphy was an optimist" - O'Toole's commentary on Murphy's Law
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.
Those are my principles. If you don't like them I have others. -Groucho Marx
I can no longer listen to the music I bought. My only recourse under law is to buy another one. Unacceptable.
Blar.
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.
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.
"She's a scientist and a lesbian. She's not going to let it slide." Orphan Black
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.
Ray Beckerman +5 Insightful
When you first put in your Answer you say "Defendant Demands a Trial by Jury" in your Answer. Then you're entitled to a jury trial. If you neglect to do it, you may be deemed to have waived your right to a jury trial.
Ray Beckerman +5 Insightful
If a person has no money or assets with which to satisfy a judgment, whether a judgment is $4000 or $10,000 is pretty irrelevant. I don't recommend that people default. I would rather people went in and fought the case. The RIAA makes money on the settlements, loses money on the default judgments, and loses a lot of money on cases that are contested. So I hope everybody contests the cases. But some people don't have it in them to go in to court, handle a litigation, go to court conferences, talk to the judge, wade through paperwork, go to depositions, submit to a hard drive inspection, etc.
Ray Beckerman +5 Insightful
I am not aware of any statutory or judicial authority, one way or the other, on the subject of legality of making MP3 files from CDs. What do you want me to do, pretend I have? Or pretend that I know what the judges will do?
Ray Beckerman +5 Insightful
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?
The Admin and the Engineer