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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
... 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.
In other words, Cade is going to set up what we would call, in modern terms, a totalitarian state. Dick, who agrees heartily, with uncommon perspicacity sees that killing all the lawyers would be a good first step. After all, it is law that constrains the powerful in their actions against the weak.
Next we get Cade's response:
In other words, he was "robbed" by lawyers, who use parchment (lambskin) and sealing wax (the product of bees) to bind a man to his word, after which is is never truly free to do as he wishes -- a sting worse than that of the bee.
So, we see those fond of wistfully citing the "kill all the lawyers" quote are pining for a system in which might alone makes right. Under such a system, only one person among the multitudes can be truly free.
Post may contain irony: discontinue use if experiencing mood swings, nausea or elevated blood pressure.
Association of Music Podcasting (AMP) BoycottRIAA.com "Non-RIAA" List
Creative Commons
Defective by Design's List of DRM-Free Music Sites
dmusic
Electronic Frontier Foundation List of "Artists Online"
emusic.com
Fading Ways Records
FreeCulture.org
harveydanger.com
Janis Ian.com
last.fm
Lime Light Radio
live365.com free downloads
MagnaTune
myspace.com
Nettwerk Download Store
R.evolution I.n P.rogress
RIAARadar.com
uncoolcentral.com
Vision Metal Records
I keep a list on my blog and welcome more suggestions.
Ray Beckerman +5 Insightful
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.
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
Beckerman: 1. There's no such thing as a listening right, I don't know where you get that from.
Probably because the law doesn't bother weighing in on behavior that is (a) inevitable and (b) self-evident. It does govern things copyrights and contracts, which makes the institution of the license, which is used to create contractual rights for the copyright holder where there are no legal ones established by statute or precedent.
Now it is self evident that people who buy recordings buy them to listen to them, and has been self evident up until now it has been inevitable that once in the custody of consumers, they play them often as they wish in any way they wish. So it is not longer the case that an unlimited ability to listen is inevitable and self evident.
One thing about legal rights is that in a practical sense they don't exist until the feasible means of infringing them exists.
There was no "Right to Privacy" recognized in the law, until in the late 19th century Louis Brandeis and Samuel Warren wrote a seminal article called "The Right To Privacy" for the Harvard Law Review. They were responding to several developments, notably the development of the modern newspaper, and the development of high speed photographic emulsions.
The way a new right is created is when techological or societal progress changes something we do that was previously taken for granted, but which justifies protection under established legal principles. These princiles are broader, less specific, but logically. In the case of privacy, Brandeis and Warren discerned a generalized "right to be left alone" underpinning various legal precedents that, should it exist, implies a right to privacy in an age of mass publication.
Likewise, there may in fact be a "right to listen", which is to say a right to use something you have purchased in any way you see fit, subject to the copy rights of the owner. Certainly this accords with most people's intuitive idea of their rights.
If such a right exists, it hasn't been recognized up to this point because there has never been reason to, without the availability of technological protection measures. TPMs can potentially it practical for copyright holders to constrain the way you use their works, far beyond mere copying.
On the other hand, I doubt there is any such "right to listen". It's hard to imagine this existing without arbitrarily constraining the rights of copyright sellers to develop and create products and services. For example record companies could make it so you can only play their music on usic players provided by their business partners.
Post may contain irony: discontinue use if experiencing mood swings, nausea or elevated blood pressure.
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
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'.
Computers are useless. They can only give you answers.
-- Pablo Picasso
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