RIAA Defendant Says Kazaa Settlement Bars Case

NewYorkCountryLawyer writes "The defendant in Arista v. Greubel has filed an answering statement. The statement says that the RIAA's case against him, since it's based upon his use of Kazaa, is barred by the RIAA's receipt of $115 million from Kazaa. Mr. Greubel also challenged the constitutionality of the RIAA's $750-per-song damages theory, saying damages should be limited to $2.80 per song. See the previous Slashdot discussion of that issue and Judge Trager's decision in UMG v. Lindor."

Comments

Has the RIAA won any court cases

[ClaraBow]

against individuals or have all of them been settled out of court? This has been going on for so long that I've lost track!

Re:Has the RIAA won any court cases

[j00r0m4nc3r]

This has been going on for so long that I've lost track!

You ever read 1984? It's like that.

Re:Has the RIAA won any court cases

[SatanicPuppy]

They haven't won any actual cases against people, though they have won a number of suits against the companies running the file sharing software.

This is an interesting defense, though I don't think it'll fly. I think the record companies will argue that the settlement against Kazaa was for creating the file sharing software, and not for actually infringing on any copyrights.

I do think that the arbitrary value per song is long over due for a re-evaluation. 750 is nothing more than extortion unless they can prove actual value lost (which they can't) or until they actually force someone to settle for that amount, which they haven't yet.

Re:Has the RIAA won any court cases

[cpt kangarooski]

750 is nothing more than extortion unless they can prove actual value lost (which they can't) or until they actually force someone to settle for that amount, which they haven't yet.

No, that's actually the number Congress provided in the statute. It's meant to be an alternative to having to prove actual damages (similar in some respects to, say, workman's comp). In fact, $750 per work is the minimum amount they can ask for; the maximum is $30,000 to $150,000, depending on some facts in the case. Don't think that the $750 figure is them being nice; it's meant to stay away from a jury that might side with the defendant, since if the minimum is what's sought, there's nothing for a jury to decide with regard to damages, or even to need to know about.

As for settlement, that has nothing to do with anything.

Re:Has the RIAA won any court cases

[Anonymous Coward]

Have you ever read 1984? How on earth is this story anything like 1984?

Re:Has the RIAA won any court cases

[squiggleslash]

On the first point, I agree with you. Plus, that kind of argument doesn't fly anywhere else. Generally if more than one group commits an offense of some sort (civil or otherwise) against you, you don't have to pick just one of them to sue.

As far as the second goes: as cpt kangarooski points out, the $750 is what is legislated, not some arbitrary figure the music industry has pulled out of it's rear.

Moreover though, saying they should prove actual value lost is a nonsense and precisely that reason why a figure was legislated in the first place. You don't know how many people downloaded the song. You don't know how many of those people passed it on to others. You do know that the person put the music up for download onto a network where it was effectively available, without control, to millions of anonymous strangers.

As if to make matters worse, putting that music up for download also increased the value overall of an piracy-oriented peer-to-peer system, making it a more practical and attractive alternative to legal music. If someone can expect to be able to use such a system to find an arbitrary song that they would otherwise have to pay for, they're likely to do so.

And we haven't even begun to scratch the surface. Some have argued, for instance, that the 50-70c per song the content producers gets from the iTunes Music Store should be used as the "actual" value (as if putting up a single song to be downloaded 2,000 times works out at 70c of lost revenue.) The fact is though that this is a royalty paid for music that's already crippled using DRM and therefore of already limited utility. Would the industry have negotiated a rate that low if it were higher bitrate unencrypted MP3s that will never need to be complemented with versions on other medias?

The bottom line is that I don't actually think the $750 is quite as extortionate as people claim it is. As a fine for putting someone else's music up for download by potentially millions of anonymous strangers, it's not exactly out of line.

Do I think that it'd be fair for, say, a charge of copying a music CD for a friend to listen to? Absolutely not. But that's not what we're talking about here.

I think both arguments look like bad lawyering to me and I wouldn't be surprised if the defendant gets into more trouble as a result than if they'd just kept their mouths shut and taken a settlement. The legal fees will pile up, and someone will have to pay them.

Re:Has the RIAA won any court cases

[Astro Dr Dave]

No, that's actually the number Congress provided in the statute.

So? It may be the law, but that doesn't make it right. Indeed, the due process defense is interesting, and probably is a better solution to the RIAA lawsuits. In general, a defense based on Kazaa's payment to the recording industry is not a good idea IMO. After all, a paid-off bully has incentive to extort more money from you.

Re:Has the RIAA won any court cases

[NewYorkCountryLawyer]

A win on either defense would probably put the RIAA litigation juggernaut out of business.

Re:Has the RIAA won any court cases

[terrymr]

Moreover though, saying they should prove actual value lost is a nonsense and precisely that reason why a figure was legislated in the first place. You don't know how many people downloaded the song. You don't know how many of those people passed it on to others. You do know that the person put the music up for download onto a network where it was effectively available, without control, to millions of anonymous strangers.

Inability to prove your claim should not be grounds to relieve you of that burden.

Re:Has the RIAA won any court cases

[HTH NE1]

How on earth is this story anything like 1984?

We have always been at war with the RIAA.

Re:Has the RIAA won any court cases

[default luser]

A win on either defense would probably put the RIAA litigation juggernaut out of business.

That, or else you might start getting served papers for $2.80 in damages :D

Re:Has the RIAA won any court cases

[cpt kangarooski]

Perhaps it's not right, but that doesn't mean it's violative of due process. I agree, it's an interesting defense. Personally, I wouldn't bet the farm on it, but I do wish the proponents of the argument luck. It is better than the Kazaa argument, but more because that is limited to this plaintiff specifically, and wouldn't stop someone totally different winning in the same sort of case in the future.

Re:Has the RIAA won any court cases

[default luser]

Moreover though, saying they should prove actual value lost is a nonsense and precisely that reason why a figure was legislated in the first place. You don't know how many people downloaded the song. You don't know how many of those people passed it on to others. You do know that the person put the music up for download onto a network where it was effectively available, without control, to millions of anonymous strangers.

Ever been to a library?

They let people TAKE HOME books, CDs and DVDs!

You don't know how many people copied the book / song / movie. You don't know how many of those people passed the copy on to others. The only difference is, at least one link in the chain has to have a library card, but it's not so different: on Kazaa, at least one link in the chain has to buy the CD.

This flat $750 fine per song is bullshit. If you can be prosecuted for assumed damages, you might as well prosecute libraries and their patrons. It's about time somebody challenged this damn law. I'm all for paying for what I enjoy, and I think these people who got caught should pay for their music...but the price is due for renegotiation.

Re:Has the RIAA won any court cases

[JordanL]

I think the record companies will argue that the settlement against Kazaa was for creating the file sharing software, and not for actually infringing on any copyrights.

But wasn't that their whole argument? That Kazaa thrived off of copyinfringement, not that they had some disdain for networking protocols...

Re:Has the RIAA won any court cases

[NewYorkCountryLawyer]

The claim against Kazaa was for inducing others to infringe plaintiffs' copyrights.

Re:Has the RIAA won any court cases

[Anonymous Coward]

> The fact is though that this [70 cents] is a royalty paid for music that's
> already crippled using DRM and therefore of already limited utility. Would
> the industry have negotiated a rate that low if it were higher bitrate
> unencrypted MP3s that will never need to be complemented with versions on
> other medias?

Umm, emusic.com sells uncrippled, 160-192kbps MP3s at 30 cents or less per track (that's the price of "booster pack" tracks, regular subscription tracks cost 25 cents or less). And they even give away a free track every day!

Re:Has the RIAA won any court cases

[pdovy]

"On the other hand, Lindor cites to case law and to law review articles suggesting that, in a proper case, a court may extend its current due process jurisprudence prohibiting grossly excessive punitive jury awards to prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered" (from the linked article, statement by Judge Trager)

This to me implies that they don't neccesarily have to stick to the minimum, if they can show that the minimum is ridiculous.

Also - I think it isn't quite fair to say that if you uploaded 1 song to 50 people, and those 50 people upload it to 50 people, that you are responsible for all of those damages. Who is to say that they don't go after the 50 people you uploaded it to, and the 50 people they uploaded it to? If they did in fact, then they would be getting damages way in excess of the money they actually lost. Realistically, I think the defendant should only be responsible for damages *directly* caused by them - that is, their initial downloading of the song and their uploading it to others, if those others go onto share it yet again, they should pay the price, not the original seeder.

Re:Has the RIAA won any court cases

[Fulcrum of Evil]

Cool - send them a twenty and go download some more stuff.

Re:Has the RIAA won any court cases

[NewYorkCountryLawyer]

As far as I know, the score as of today in contested cases is 0-0.

The RIAA hasn't won any contested case.

No defendant has won a contested case either.

No contested case of which I am aware has been seen through to conclusion yet.

(By "contested case" I mean a case in which the defendant (a) denies having done what the RIAA claims he or she did, and (b) is fighting back and not defaulting.).

There are probably cases out there that I don't know about. If you hear of any, please let me know.

Re:Has the RIAA won any court cases

[NewYorkCountryLawyer]

Good thinking. Here is an excellent law review article which agrees with you.

Re:Has the RIAA won any court cases

[deathy_epl ccs]

at, or else you might start getting served papers for $2.80 in damages :D

Then we'd have a lot more people settling out of court, that's for sure.

Re:Has the RIAA won any court cases

[bluefoxlucid]

Lawsuits for creating file sharing software... lawsuits for creating encryption programs... lawsuits for creating blogs, a method of saying political leaders are whores... all banned. Hacked by Chinese.

Re:Has the RIAA won any court cases

[InsaneGeek]

Library's have different rules applied to them, do a quick search for DMCA & library. The other flaw in your argument is that library's allow you to check out the physical media, not just give you a copy the electronic bytes. The library doesn't generate new copies of the content (though I believe they are legally allowed to do it 3x times), while your computer creates new copies of the content as it "shares". Now if there was only one copy of the file, and it left your computer when you shared it, you'd have a better library argument. You might still have a bit of a problem copyright owners have rights of transmision, but you'd be in a much more defendable position.

Re:Has the RIAA won any court cases

[SpaceLifeForm]

Inability to prove your claim should not be grounds to relieve you of that burden.

That's what IBM has been saying about SCOX.

Re:Has the RIAA won any court cases

[suitepotato]

We have always been at war with the RIAA.

The MPAA have always been our allies. Remember our boys on the SCO Front. Just think about what they have to put up with.

Re:Has the RIAA won any court cases

[boiert]

"The library doesn't generate new copies of the content (though I believe they are legally allowed to do it 3x times), while your computer creates new copies of the content as it "shares"."

Your computer must make copies to even play a song (copying the bits from the cd to the sound card).

But IMO consumers should be left out of the whole Intellectual Property discussion/thing, the only ones you should prosecute are those who violate copyright commercially.

Re:Has the RIAA won any court cases

[Hotawa Hawk-eye]

In that case, stop by the bank. Send them 280 pennies per song.

Re:Has the RIAA won any court cases

[UnknowingFool]

IANAL but does can the RIAA sue you for damages just because you make a song available for download? If no one actually downloads the song are you still liable? Logically it makes sense that the RIAA can only sue people for downloading. Sharing your files is a gray area to me, but it takes an act of someone else to actually commit copyright infringement.

Re:Has the RIAA won any court cases

[NewYorkCountryLawyer]

The RIAA argues that merely "making available for distribution" is in and of itself a copyright infringement. I disagree.

Re:Has the RIAA won any court cases

[lagartoflojo]

So if 50 people got a song from me, they would charge me 50 times whatever the fine is?
If those 50 people had no way of getting an illegal copy of the song, would they have bought the CD that contained it?
Probably not. Then, how are labels damaged "50 times" when only a fraction of those people would have actually spent money on the original?

Re:Has the RIAA won any court cases

[j00r0m4nc3r]

Have you ever read 1984? How on earth is this story anything like 1984?

After enough repetitious propoganda and brainwashing, the masses can't tell the difference between what's real and what's not. I'm not saying it correlates 100%, but still... If you had read the book and thought about it for more than 1 microsecond you might have seen what I was getting at...

Re:Has the RIAA won any court cases

[cpt kangarooski]

And I'd say you're right. The statute requires actual distribution, not merely potential distribution. There was a case about this not long ago, but I'm blanking on it at the moment. I'm sure it'll come to me later.

Re:Has the RIAA won any court cases

[cpt kangarooski]

This to me implies that they don't neccesarily have to stick to the minimum, if they can show that the minimum is ridiculous.

The only remedies are the ones in the statute. If some of those remedies are unconstitutional, then the statute is gone, and they have to find a different remedy permitted by the statute. The plaintiff can't just ask for an arbitrary amount of statutory damages outside of what the statute provides for; then the courts would be creating their own statutory damages, and that's impermissible.

Also - I think it isn't quite fair to say that if you uploaded 1 song to 50 people, and those 50 people upload it to 50 people, that you are responsible for all of those damages.

I didn't say anything like that to begin with. Nor would I agree, since there's obviously an intervening proximate cause anyway. I don't see what this has to do with anything though. The statutory damages provision doesn't care how many infringements there are of a given work.

Re:Has the RIAA won any court cases

[cpt kangarooski]

So if 50 people got a song from me, they would charge me 50 times whatever the fine is?

Under the statutory damages, no. They can only get damages per work, not per infringement. So if you infringed the copyright of one work, the most you could possibly pay would be $150,000. It doesn't matter if you infringed one time or a million times. But if you infringed on two works, then it's twice that.

Under actual damages, it could roughly be per infringement, and the two sides end up fighting over what should and shouldn't be included. They might say that every infringement ought to count, and you can say that only some percentage should for the reasons you've articulated, and a jury makes the actual decision based on what both sides present. (Which needs to be some kind of proof, really, like actual survey evidence, not just supposition)

Re:Has the RIAA won any court cases

[aussie_a]

So if I stab someone to death and leave that knife in the body. And then a mentally competent adult comes across the knife and murders someone else with that knife, should I be held accountable for both murders? After all, I only murdered one person.

Re:Has the RIAA won any court cases

[aussie_a]

Wait a minute, if its per work, could I make available to everyone a song, pay the RIAA tax, and then continue making that song available to people and not get re-taxed? That sounds pretty cool to me :D (assuming the courts can be made to drop down the tax to something more reasonable, or even better rule the law unconstitutional and throw it out altogether).

Re:Has the RIAA won any court cases

[aussie_a]

As a fine for putting someone else's music up for download by potentially millions of anonymous strangers, it's not exactly out of line.

The RIAA is not a government nor a government agency. The RIAA cannot collect fines from individuals. Sorry, but the language we use is very important or else we'll start thinking things unconsciously. That's why anti-abortion people call themselves pro-lifers.

Re:Has the RIAA won any court cases

[aussie_a]

That'd be a bit expensive to post in the mail.

Re:Has the RIAA won any court cases

[Emetophobe]

No defendant has won a contested case either.

Doing a quick google search for "RIAA contested case" turns up this link http://arstechnica.com/news.ars/post/20061015-7990 .html
Defendants 1, RIAA 0.

Re:Has the RIAA won any court cases

[loraksus]

From the other side of the fence... $750 is nothing if you, as a individuals are looking at actually taking someone to court.

Copyright issues are dealt with in federal court and copyright attorneys are incredibly expensive.
Sure, if you register the copyright within 3 months of publication (assuming you find out) you can collect attorneys fees. That doesn't always happen - people who steal stock photos often use them in ad campaigns, etc on the other side of the country, in the hopes that you never find out.

But even if you go to a potential lawyer with the registration certificate (which takes fucking forever to get) and clear evidence of the infringement (say a copy of the book that is being published with your photograph in it), it is a struggle to find a copyright lawyer who will want to take on a small case - they're too busy dealing with bigger stuff and they make it clear that if you lose, you'll personally be on the hook for ~$10,000 of fees. That makes it a real bitch to pursue something if you're a little guy. $750 isn't all that much. Yes, that's the minimum, but taking someone to court and getting $750 is a lot of work for not that much money.

Re:Has the RIAA won any court cases

[basshedz2]

The defendant in that case didn't "win" (at least not enough to set a precedant) - the case wasn't seen through to its conclusion.

From TFA:

The RIAA has dropped its case against Chicagoan Paul Wilke...

IANAL, etc.

Re:Has the RIAA won any court cases

[rucs_hack]

loads of people refer to 1984 without actually reading it, which is interesting. It's as if the book has been boiled down into a single idea that can be easily applied to multiple situations.

It's wrong of course, 1984 is very complex, too complex for a single idea to be distilled from its pages. I love the book myself.

I more often compare the RIAA/MPAA/DMCA situation to Plato's Republic, which predates 1984 somewhat.

Re:Has the RIAA won any court cases

[cpt kangarooski]

Nice try.

There would also be a court order requiring you to take it down. Ignoring the order would put you in contempt of court, which is a bad place to be. Also, it's not a lifetime payment. Infringements that you engage in after the case would not be covered by the previous remedy, and they could indeed sue you all over again.

Re:Has the RIAA won any court cases

[Anonymous Coward]

The RIAA argues that merely "making available for distribution" is in and of itself a copyright infringement

Pity the RIAA is not in the UK (but then again, it's no pity...):

Mr Rudd was caught running a pirate radio station, and successfully argued that his tapes and records should not be confiscated since they were not being "used" at the time of the offence. The Secretary of State appealed against this decision, arguing that they were "available for use" and that this amounted to the same thing.

Basically, having availabe for use (or distribution) is not the same as use (distribution): how many sharp knives, capable of killing, are in your kitchen? According to the RIAA if you have a sharp kitchen knife available to use [to stab someone and kill them] you are guilty of murder and should be on death row...

Re:Has the RIAA won any court cases

[Ciggy]

Even more interesting from TFA:

...and in some cases, it appears that the RIAA is dropping cases to avoid the possibility of losing.

Why should losing worry them so much? More to the point, it shows a lack of due diligence in filing of the original suit?

Re:Has the RIAA won any court cases

[NewYorkCountryLawyer]

The issue is very fully briefed, including amicus briefs, etc. in Elektra v. Barker, now pending before Judge Kenneth Karas in SDNY.

Re:Has the RIAA won any court cases

[Kierthos]

Losing would set a precedent, which could be cited in future cases.

Re:Has the RIAA won any court cases

[KDR_11k]

The Illuminatus said the same thing except it had funnier delivery.

Re:Has the RIAA won any court cases

[Alsee]

Plato's Republic, which predates 1984 somewhat.

Have you checked the copyright dates to verify that?

-

Re:Has the RIAA won any court cases

[rucs_hack]

um, ah yes, of course, um, ooh, was that the doorbell? Must go..

Re:Has the RIAA won any court cases

[NitroWolf]

I'm not saying I've been involved in an MPAA or RIAA case, but I have been involved in a very similar extortion type case that was a big thing in geek circles a few years ago. The usual reason you never hear about a defendant winning a case is because the suing entity (such as the RIAA, MPAA, Hughes, etc..) usually offers to drop the case or part of the case being brought to a conclusion is what amounts to an NDA ... you can't talk about what the result was, or the case defaults (or is at least re-opened with penalties) ... so you have a gag order when you win and can't tell anyone about it.

It's BS, but there it is.

Re:Has the RIAA won any court cases

[NewYorkCountryLawyer]

The Wilke case was neither won nor lost; it was withdrawn.

Re:Has the RIAA won any court cases

[TheoMurpse]

Just a quick calculation to let people make their own decision about whether $750/song is fair or not (I'm not saying it one way or the other in this post) assuming a person leaves his computer on 5 hours a day with a P2P app on the entire time, maxing out the connection and only uploading one song at a time:

$750 * 1song/$.70 * 5MB/1song * 1024KB/1MB * 1s/40KB * 1hr/3600s * 1dy/5hr = 7.6 days.

So, using 70 cents per track as a value of the song (based off some iTunes assumptions), the most a person will rack up under my assumptions is 750 dollars after a little over a week.

Re:Has the RIAA won any court cases

[NewYorkCountryLawyer]

Only problem. How do you know the defendant uploaded even one song?

Re:Has the RIAA won any court cases

[Castar]

You realize that the person you replied to was actually the defending lawyer in that case?

I think (I *hope*) that he would remember if his client won ;-)

Re:Has the RIAA won any court cases

[Anonymous Coward]

As far as the second goes: as cpt kangarooski points out, the $750 is what is legislated, not some arbitrary figure the music industry has pulled out of it's rear.

Sure, and the "music industry" didn't have any input at all into the figure that went into the legislation. They have no lobbyists, and no influence over the language of any bill. They did not pull that figure out of their ass while getting their lawyers to write the law. Right. Glad we cleared that up.

IANAL

[Bryansix]

IANAL but I don't care. The defendant is right in every single assertion they have made. The RIAA is wrong and should be sued out of existence. /conversation

Re:IANAL

[Anonymous Coward]

I can't possibly see how a judge couldn't accept an argument like that! *rolls eyes*

Piracy Tax?

[Thansal]

hmm, does this sorta set a precedent for us to use our Zunes to hold pirated music? After all, MS Basicly setteled it premptivly by paying off one of the major labels....

Re:Piracy Tax?

[HappySqurriel]

Essentially that is what happened in Canada ...

The Recording industry lobbied the government to introduce a tax on recordable CDs (and MP3 players IIRC) which was then paid out to the recording industry; later the recording industry wanted to sue individuals in Canada for downloading music and it was ruled that people had already paid for the music through this tax.

Re:Piracy Tax?

[zxnos]

silly questions but... ...do the artists get an automatic percentage of this tax collected by the music industry in canada?

Re:Piracy Tax?

[shark72]

"The Recording industry lobbied the government to introduce a tax on recordable CDs (and MP3 players IIRC) which was then paid out to the recording industry; later the recording industry wanted to sue individuals in Canada for downloading music and it was ruled that people had already paid for the music through this tax."

Are you sure that it was the CRIA? I thought it was SOCAN that lobbied for and collects the tax -- but please correct me if I'm wrong.

I know it's an easy shorthand to blame "the recording industry" on anybody who tries to interfere with our free and unfettered sharing of music, but sometimes the artists are the bad guys, too.

Re:Piracy Tax?

[Anonymous Coward]

in theory, yes ... in practice, no

administrative costs are excessive
industry collects revenues
system lacks proper accountability and transparency

imho, it's like many other good ideas that have been corrupted by greed

its one redeeming feature, there is less lawyer fodder

Re:Piracy Tax?

[DragonWriter]

Note that the US also has a "piracy tax" on certain recordable media that is connected to the provisions of law that allow noncommercial individual sharing of recorded copyright-protected audio (but using a computer in the reproduction is explicitly excluded) under the Audio Home Recording Act.

Re:Piracy Tax?

[FreakerSFX]

You are wrong - that "tax" does not protect you from music companies. You should check into it before you get sued. They have been much less litigious in Canada but the current government is passing (has passed?) legislation to make it open season on file sharers.

Re:Piracy Tax?

[Pollardito]

I'll squirt to that!

Re:Piracy Tax?

[shark72]

"silly questions but... ...do the artists get an automatic percentage of this tax collected by the music industry in canada?"

To expand on some other answers: it's split up roughly according to sales, and goes to Canadian artists. Which means that the bulk will go to Celine Dion and her songwriters, but your typical recording artist or songwriter who sold maybe 5K CDs last year won't get anything worthwhile.

Many Canadian music fans use the tax as an moral free pass to pirate as much as they want since their piracy is "paid for." While Canada has many fine recording artists, I'd wager that the content of the typical Canadian's iPod is largely non-Canadian artists, and as covered above, they're not entitled to this money.

If you live in Canada and the tax makes you feel better about torrenting or using allofmp3 to get your music, more power to ya -- just as long as you understand that the artist whose work you're pirating will likely never see any of that tax. They stand a much better chance of making money if you were to actually buy their CD.

Re:Piracy Tax?

[wrook]

Not entirely true.

The recording industry lobbied the government for a levy (not a tax) on recordable media. The government decides what media is covered and what the amount of money is levied. The money is sent to the recording industry which is supposed to distribute it to the recordning artists (I don't believe that part has actually happened yet).

In exchange for the levy, the copyright act specifies that copying an audio musical performance for personal use is not considered infringement. This is *very* different than saying "It has already been paid for". It has not. Copying for person use is *not* infringement whether or not the must has "been paid for".

The court case in question was an injunction to get certain ISPs to release the names of accounts who had been shown to share files over the internet. In the case, the recording industry failed to show that they represented the copyright holders for those files (they had file names, not contents). And they failed to show that the copying was not for personal use. Further they failed to show that making a file available *to others* on the internet actually infringed copyright (since *they* weren't the ones who were copying it).

So, they failed to show any evidence at all that copyright infringement had occurred. And so the judge did not grant the injunction.

Right now the Canadian government is making ammendments to the copyright act. There are no details on what those ammendments will be. But one can guess. Government officials have been meeting with recording industry lobbiests to consult on the issue. The government even paid hundreds of dollars to take lobbiests out for lunch. So far they have refused to meet with pro-user lobbiests.

Re:Piracy Tax?

[Omega Leader-(P12)]

However based upon the fact that the current government haven't passed anything except the budget I wouldn't bet on it changing.

Everything else is stalled. Everything.

Re:Piracy Tax?

[Cervantes]

They stand a much better chance of making money if you were to actually buy their CD.

And that's why I don't buy CDs, but rather go to the shows. Artists make crap off of CDs, and new/indie artists make even less. But if I go to the show, buy a ticket, and maybe buy a CD or TShirt there, the artist ends up getting more money out of that than if I'd bought their entire anthology from The Record Store.

For bands where I can confirm the band runs the website and not the label, I'll buy the music or merchandise off the site, again to ensure the band gets more money. Unfortunately, labels are catching on to this, so they're setting up and running the bands site for them, handling the online shopping, and then collecting their usual cut (or, if you believe some rumours, their usual cut, plus costs for running the site, plus extra 'administrative costs').

I haven't done the math, but I'm pretty sure the last band I saw got more money from my trip to their concert than they'd gotten from me buying their CDs for the last 10 years.

Re:Piracy Tax?

[debrain]

silly questions but... ...do the artists get an automatic percentage of this tax collected by the music industry in canada?

Not a silly question at all. I was one of the official objectors on this court case in federal court a few years back. Their inability to fairly distribute brought the whole regime into question, and for that reason (among others) I argued that it should be scrapped.

Right now it's collected and distributed by an agency called the Canadian Private Copying Collective. They base their distribution to each artist baseed on statistics from major commercial radio stations. Of course, this is problematic and anti-competitive because major radio stations have their play list dictated to them by major media conglomerates and monopolies such as ClearChannel, rather than responding to actual consumer demand.

Note, incidentally, that ClearChannel is essentially liquidating its assets, so this argument may no longer fly (at least as definitively), as a means of persuading the CPCC, or anyone else, that this mechanism of estimating fair distribution is anti-competitive. But I digress.

To date, it is my understanding that the CPCC has several hundred million dollars stored from this tax (*cough* "tarriff", per the Federal Court; a tax requires Parliamentary assent, which this did not receive ... even though it is a tax), and they have distributed very little of it. It's a genuinely difficult problem. In my opinion, it's impossible to estimate consumer demand, and I argued that the levy is inappropriate, especially in a case such as this where free market forces exist precisely to determine value. (That's oversimplifying, but that's the gist)

Re:Piracy Tax?

[future assassin]

Yes I love to fill Celines pockets with cash when I make cd back up copies of my stock photos which I took and own copyrights to. Good scam, is it. I get to pay some music company for the previlage of making copies of my own photogaphy. Music = Photography?

Re:Piracy Tax?

[shark72]

"And that's why I don't buy CDs, but rather go to the shows. Artists make crap off of CDs, and new/indie artists make even less. But if I go to the show, buy a ticket, and maybe buy a CD or TShirt there, the artist ends up getting more money out of that than if I'd bought their entire anthology from The Record Store."

Just to correct one generalization -- many indie labels pay the artists more than do the big labels. I'm referring to Magnatune as well as traditional indie labels.

Anyway, I've heard from lots of folks like yourself who state that they go to concerts and/or buy t-shirts instead of buying CDs. I'm curious how the logistics work here. Does that mean that for every song or album which you pirate, do you go to a concert and/or buy a t-shirt? That would get really, really expensive, so I'm guessing that maybe you limit it to songs you pirate which it turns out that you like?

What happens in the instance where you would like to torrent an artist's new CD, but they don't tour, or won't be playing in your area, or maybe they're not the type of artist or band who sells t-shirts? In that case, do you do without their album?

"I haven't done the math, but I'm pretty sure the last band I saw got more money from my trip to their concert than they'd gotten from me buying their CDs for the last 10 years."

I have no doubt of that. A concert ticket costs more than a CD, and the band gets a heftier cut. But what about the bands whose CDs you've P2Ped but whom you haven't seen in person?

I truly admire you if you have the time and money to give something back by seeing a show or buying merchandise from every artist or band you enjoy. I know I sure wouldn't be able to do that.

Re:Piracy Tax?

[vcalzone]

What happens in the instance where you would like to torrent an artist's new CD, but they don't tour, or won't be playing in your area, or maybe they're not the type of artist or band who sells t-shirts? In that case, do you do without their album?

Any artist will tour and/or sell merchandise. If they don't, they have plenty of money and don't necessarily need anyone to buy their album. Artists affiliated with a major label will have tremendous costs to recoup that will net them almost no money from selling CDs, and artists that release an album themselves or are with a label that gives them a decent percentage of CD sales won't be established enough to not hustle. But in any case, if an artist only makes less than a dollar when I buy a CD (and I'm pretty sure it's considerably less), then how is my buying a CD going to make much difference at all? The war on "piracy" is not about supporting the artists, it's about supporting the recording industry and the music marketing industry. And I would rather not support them one bit. Maybe if more people stopped supporting them, artists would wake up and learn exactly how much they don't need a giant corporation to support their art.

Re:Piracy Tax?

[vcalzone]

Also, I don't buy every CD I listen to, but that wouldn't change regardless of whether I downloaded it or not. The only difference is that this way, I can actually support the artists I really enjoy, rather than the ones I see featured in the record store or like the 20 second clips of on Amazon or AMG. I don't buy many CDs that I never actually listen to anymore. And many of the ones I do buy, I would have never bought if I hadn't downloaded it and had time to digest it. In what way, shape or form is this NOT a superior model?

Re:Piracy Tax?

[GeorgeS069]

why not have the CPCC pay a tariff towards each legally purchased CD?
Kind of like a reverse tax.
They collect the money and then subsidize the CD sales.
That would make sure that the truly more popular artists receive the money according to sales and not the radio stations play lists.
just an idea but,it might work.

Re:Piracy Tax?

[fdiskne1]

the truly more popular artists receive the money according to sales

According to RIAA logic, the money should go to the artists whose work didn't sell as much.

You see, according to the RIAA, the lack of sales in recent years is directly due to piracy. This means that those artists who didn't sell as much obviously were pirated more. Give more of the money to those who were pirated more. That would be the ones who didn't sell as much. Q.E.D.

Re:Piracy Tax?

[Alsee]

In discussing the copyright lobbying situation in Canada, you missed an item that is by far the most insane thing. One part of the Canadian government is literally funding the copyright lobbyists to lobby the rest of the government to impose increasingly oppressive copyright law.

An internal email explains the motivation to do this was "we should have streamlined, stable funding to an organization whose structure, purpose and activities suit our own policy needs.".

And I really love this entertaining item from the corporate lobbyist group to be funded : "the job of taking on the educational sector on copyright reform is clearly a huge and major undertaking" and that that education was a "well heeled, publicly funded lobby... devoted to abolishing creators' rights on the Internet.". Buahahahahaha.

The copyright situation is pretty bad here in the US, but to the best of my knowledge our government has never taken the mindbogglingly insane step of paying industry groups to lobby itself. That's just.... wow.

-

Re:Piracy Tax?

[Cervantes]

Just to correct one generalization -- many indie labels pay the artists more than do the big labels. I'm referring to Magnatune as well as traditional indie labels.

I'll agree with you there, most true indie labels pay well. I was refering to new up-and-coming artists moving to a big label, or some of those "look at us we're indie but we're owned by MegaCorp" labels. The true indie labels treat people great, for the most part, and although it's a shame they haven't grown larger, I think the communication power of the internet is letting them have a larger market share and more exposure, which ultimitely will lead to good things.

I'm curious how the logistics work here. Does that mean that for every song or album which you pirate, do you go to a concert and/or buy a t-shirt?

Here's how I go. I'll come across a song, somehow. If I don't like it, it goes in the bin. Many get old quickly. Since I wouldn't have spent any money anyways on it, I feel no guilt listening to it a few times and then tossing it. I'll go through my catch-all folder several times a year, tossing those songs I haven't listened to in a while.
So, this leaves me with music that I like, and listen to on a regular basis. This would constitute "people who would convievably get my money". Now, touring nearby, that's my first choice for giving them money, preferably in a small venue where they get more out of tickets and merchandise, plus I get to enjoy a live performance, and often an autographed CD. Unfortunately, living up in the frozen north means I'm not a frequent tour stop. So, choice #2 is to check out their site, and see what nifty stuff they have available. If they have something reasonably priced, I'll get it if I think they're worth giving to. If it turns out they're just a decent band that has a few good songs and the rest is crap... well, thanks, I'll keep an eye on you but I won't spend my money till you're a complete act.

I try to compare things to how life would be if I listened to the radio and bought CDs, and I find I spend more money, and spread it around more, when I sample more sources. If they're good enough for constant listening, I donate some money to the cause, and if they're not, I'm glad I didn't blow $20 on a dust collector. If they make it hard to donate to the cause, I let them know. There's more bands than you think who don't tour Canada, don't have anything interesting/reasonably priced on their site, and aren't sold in the stores up here (except for special orders). I'm happy to tell those bands "Hey guys, you sound pretty good but you make it really hard to spend money on you". The vast majority are glad they got exposure, however it came.

Big bands are a different question. I'm not one of those people who figures "hey, they're rich, they don't need more money". I give them the same treatment when I can. However, it's harder to go to a $120 concert than a $10 cover charge, it's harder to buy a $50 t-shirt than a $20 one... as much as indie bands are hard to find because of lack of exposure and lack of purchasing venues, big bands are hard to afford, and they're much more likely to have a harder-to-burn CD. So, they end up getting downloaded, but they get less of my money.

For me, it boils down to finding ways to give them money that doesn't involve CD purchase. I hate CDs. They're useless to me. All my music is MP3, whether it's rips of cassettes or CDs I already have, or downloaded. They can go on my portable music device, they're on my network to play in any room in my house, they're on my private web server to stream at work. Unless it's autographed and on the wall, a CD is just a dust collector to me. So the bands that make it easy to give affordable amounts to, get those amounts. And the bands that cost an arm and a leg, end up without.

And I'd feel worse about that, except I find that the affordable, indie bands are the ones that dominate my playlist. So if a few AC/DC or Metallica songs don't get paid for... well, sorry guys, if I can afford a ticket f

The RIAA Has To Sue....

[8127972]

..... Or the terrorists win.

Re:The RIAA Has To Sue....

[sobachatina]

Good Grief!

Find a formula and stick with it eh? Of course if you get a +5 funny again for the same comment I should just shut up and leave you alone about it since obviously I'm the only one bothered by it.

Re:The RIAA Has To Sue....

[Dan Slotman]

Who cares? No one gets karma from +Funny.

Re:The RIAA Has To Sue....

[DittoBox]

No, really, according Alberto Gonzalez they do! Not really but according to the RIAA/MPAA, file sharing is the same as selling full on bootlegs.

Double dipping is why they can't sue in Canada

[metoc]

The CRIA (Canada's RIAA, or more correctly the multinational IAA as they represent no Canadian artists, producers or studios) hasn't been suing Canadians because of the tariff on CD already makes us pay for being music pirates (the CRIA/RIAA says so). The CRIA convinced the government to put the tariff in place over a decade ago, and the CRIA knows it will get its hiney kicked if it is tested it in court.

Yeah...

[webheaded]

I'd love to see someone win but there are 2 things here:

First off, who knows if what he is saying will work. If he goes into this he could be wrong and get completely fucked. They will of course offer a settlement, etc etc and everyone will be warm and cozy.

Secondly, if they actually see a threat, they will simply drag it out as long as they can until the defendant runs out of money...at which point they will probably offer another settlement.

He's fucked either way, unless he's rich or something. There is no way for a person to win against the machine.

Re:Yeah...

[hangingonwords]

"There is no way for a person to win against the machine."

and it's that mentality that keeps you from winning. fool.

Re:Yeah...

[webheaded]

Oh by all means, I'd try as hard as I could if it were me, but sitting here (not part of the situation), it seems to me that he's proper fucked. Its worth a shot, but I don't think he has a chance. Sad fact of life is that it takes money to win against money and I doubt this guy has it.

Re:Yeah...

[Anonymous Coward]

There is no way for a person to win against the machine.

Especially with that attitude...

One point: computer geeks and programmers need to get used to the "feces flinging" technique of the lawyers. Write a program with multiple logically inconsistent statements and it will collapse in a screaming heap. Doing that is anathema to most programmers. But when mounting a legal defence (or attack), you're allowed make logically incompatible statements. You just keep flinging feces until something sticks. The fact you're arguing the case should be dismisseddoesn't stop you arguing that the damages awarded should be reduced 100x - EVEN THOUGH it's nonsense to talk of damages because you're arguing the case should be dismissed. Many computer geeks just don't get that. You're not programming a consistent logical system, you're feces-flinging. Remember that, and you can start to win much more often against the lawyer/CxO scum.

Re:Yeah...

[Rydia]

I like how providing people with multiple arguments about why you are right and allowing them to choose which ones they believe have merit makes someone scum.

Re:Yeah...

[LordPhantom]

Uhh....

I don't know what computer programmers you work with, but there aren't many I know who don't understand an "if->elseif->elseif->elseif->else" loop chain.

Re:Yeah...

[cpt kangarooski]

Piffle.

You're just complaining that lawyers make a lot of arguments in the alternative. This is really not different than having conditional statements in computer programming. You're required to make all the arguments you can make up front, partly to be fair to the other side (so they have a chance to respond), to not waste the court's time (courts do not tolerate surprises or sudden changes midway through a suit), and to avoid the danger of suing the defendant again and again over the same thing (which would be an improper use of the judicial system). To be honest, the judicial system loves predictability. If you don't know pretty accurately how a case is going to turn out before you set foot in court, you're either breaking new ground or in real trouble.

In psuedocode, it would be like this:

if plaintiff's prima facie case is insufficient
    then defendant wins
elseif defendant has a valid defense
    then defendant wins
else try to show that damages are very low

A good programmer doesn't wait for a specific likely condition to actually happen before he writes code that can handle it. Why should lawyers have to wait for a condition to actually happen before having prepared for it.

Re:Yeah...

[miyako]

yeah, it's sort of like how you see something in code every once in a while like:

int x=5;
if(x==5)
{
doSomething();
}
else
{
doSomethingElse(); //never should happen
}

It's essentially saying, "the fact is that X, but if all logic fails we'll recover as well as possible instead of just freaking out and dying".

Re:Yeah...

[DragonWriter]

Write a program with multiple logically inconsistent statements and it will collapse in a screaming heap. But when mounting a legal defence (or attack), you're allowed make logically incompatible statements.

Not really; for the most part, you are allowed to, for instance, argue that one of two (or more) logically inconsistent scenarios is the case and present the arguments for each. It's not really at all analogous to much in programming, because if you right a program you are ordering the computer what to do, and of course you can't order it to do two incompatible things without bad things happening.

When you are making a legal argument you are asking the court to do something, and there is no contradiction in saying, citing proper authority for each contention:
1) You should throw out this claim entirely, because the facts the plaintiff alleges don't justify the kind of action he has brought;
2) If, somehow, you manage to find that such an action is justified by the allegations, you can't allow the punitive damages the plaintiff is seeking, because the kind of action the plaintiff has brought is one that doesn't allow punitive damages; and finally
3) Even if you ignore the fact that the plaintiff isn't allowed to seek punitive damages for this kind of claim, the amoung of punitive damages the plaintiff is seeking exceeds the maximum punitive damages allowed based on its relation to the actual damages claimed.

Or, for an analogy that might make it something that is understandable from a programmer's perspective rather than the foreign art of "feces-flinging" you make it out to be, consider that often enough the lawyers job is something like pointing out why the other sides "program" is wrong. So, you point out the bug that gets hit first, then the bug that would get hit if that one was fixed, and then...

Of course, the difference is that whether or not a legal argument is "correct" is less amenable to unequivocal testing than (most, at least) computer code.

Re:Yeah...

[Plaid Phantom]

Suddenly all the rhetoric, philosophy, and law that I've read in school is falling into place. It's like a giant Tetris chain.

Re:Yeah...

[Beryllium Sphere(tm)]

What would you think of a friend who treated you to this example argument from law school?

"In the first place, I never borrowed your car".
"In the second place, the front end was crumpled when I borrowed it".
"And in the third place, I returned it to you in showroom condition".

"Scum" would be one of the milder words you might use.

Re:Yeah...

[AK Marc]

I like how providing people with multiple arguments about why you are right and allowing them to choose which ones they believe have merit makes someone scum.

It isn't multiple arguments about how I'm right. It's arguing that I'm right, and after you find in court that I am wrong, you should sentence me as if you think I'm right. The way a lawyer will prepare for the sentencing phase before the sentencing phase will lead to arguments that are not related to the finding, but the severity.

Is it logically consistent to get up and say: "I didn't drive drunk, so find me non guilty. And if I was drunk, I wasn't very drunk so you shouldn't find me guilty either. And if you do find me guilty, remember that I wasn't really drunk so that you hand out the minimum sentence." That isn't multiple reasons why you weren't DUI, which is how you make it sound.

Re:Yeah...

[TheSkyIsPurple]

> One point: computer geeks and programmers need to get used to the "feces flinging" technique of the lawyers

Seems to me programmers already think like this... cover all possible conditions so your code doesn't end up in an unexpected state.

switch (argument) {
  case ARG_ALREADY_SETTLED: get_off_totally(); break;
  case ARG_PENALTY_TOO_HIGH: get_off_easier(); break;
  case ARG_RIAA_ARE_LYING: get_off_totally(); break;
  default: cry_alot(); break;
}

Re:Yeah...

[foniksonik]

Yes it's the many eggs many baskets and feces method... learn it and learn it well young hairless ape-man.

Re:Yeah...

[Dun Malg]

A good programmer doesn't wait for a specific likely condition to actually happen before he writes code that can handle it. Why should lawyers have to wait for a condition to actually happen before having prepared for it.

What people find distasteful is that (in theory) the defense attorney should have already evaluated which condition is true long before the case came to trial, and as such by all decency should be arguing from the one condition that is "true". Granted, it's just good legal sense to frame your arguments such that they cover all the bases; but it still reminds people of the "moral flexibility" inherent in being a good defense attorney. People are uncomfortable with this trait as it sits a little too close to "sociopath" territory.

Fascinating Idea, But...

[smallferret]

Could someone who actually IS a lawyer respond about the validity of this defense? I read it and say "yeah, that makes sense," but that doesn't mean anything because I don't know all of the ins and outs of litigation.

Re:Fascinating Idea, But...

[Ocular Magic]

The story was submitted by NewYorkCountryLawyer who is a lawyer actively working on these cases. I would say that it's a valid defense if he submitted it for us to read about. Of course, I'm guessing a judge could just flat out say, "That's not a valid defense." and it wouldn't be, but it looks good me, the layman.

Re:Fascinating Idea, But...

[Overzeetop]

Well, the OP is a lawyer, and is particularly involved in such cases. I suspect that he wouldn't have bothered to post it if it was without merit.

Of course, he could be sitting back and thinking, "Oh, he is so going to get his butt kicked by the RIAA," but I doubt it.

Re:Fascinating Idea, But...

[NewYorkCountryLawyer]

Mr. Greubel's lawyers are Charles Mudd of Chicago, and John Browning of Dallas. They are two really good litigators. John Browning's the guy who got the excellent order on hard drive inspections in SONY v. Arellanes, which I predict will serve as a model for all future RIAA v. Consumer litigations.

I wouldn't bet against these guys.

Re:Fascinating Idea, But...

[Anonymous Coward]

A US Supreme Court case applicable to this is _St. Louis I.M. & S. RY. Co. v. Williams_, 251 U.S. 63 (1919), which upheld a statute with a $300 liquidated damage provision for overcharges of only a few cents:

"When the penalty is contrasted with the overcharge possible in any instance it of course seems large, but, as we have said, its validity is not to be tested in that way. When it is considered with due regard for the interests of the public, the numberless opportunities for committing the offense, and the need for securing uniform adherence to established passenger rates, we think it properly cannot be said to be so severe and oppressive as to be wholly disproportioned to the offense or obviously unreasonable."

(Id. at 67 (emphasis added) [statute with liquidated damages award of up to $300 plus attorneys' fees where actual harm was only a few cents did not violate the Constitution].) "Plainly, it ought not to be cheaper to violate the Act and be sued than to comply with the statutory requirements." (_Beliz v. W.H. McLeod & Sons Packing Co._, 765 F.2d 1317, 1332 (5th Cir 1985).)

Re:Fascinating Idea, But...

[smallferret]

Thanks, that's what I was wondering. Not being a lawyer, I wouldn't know if something sounds good to a layman, but is just some crack-pot idea. It sounds like with lawyers like that, he's got a reasonable chance.

but what if he wins?

[DynamoJoe]

If his arguments prove to be a successful defense to file sharing on Kazaa, does that mean that all users on Kazaa just got a "get out of jail free" card? (is kazaa even still around?)

Re:but what if he wins?

[Anonymous Coward]

Better question: What can someone do who was already sued and settled out of court regarding their Kazaa use?

A friend of mine was sued by three companies in the RIAA last year for songs they stated she downloaded via Kazaa. She settled as her lawyer told her to settle. They stated they had a screenshot showing what music she had downloaded. She tells me some of the songs she is listed as having downloaded were never downloaded. Songs that do not match her music style. She still settled and had to declare bankruptcy because of the settlement.

A few months ago she told me she was getting sued again. Two other RIAA companies are using the same evidence against her, only they are suing for the songs under their labels.

I did not know about the first lawsuit until she told me about the second. I gave her the advice to get a new attorney. One that knows what he is doing. To actually have someone look over what she is being charged with and to see what can actually be done. Her answer to me was "My attorney states to settle again, as we have already admitted guilt by settling before". If this is what her attorney told her and not her mis-remembering, then I don't know what else to do for her. She never should have settled last year and this year she should not be settling again. If only she had asked for advice last year we could at least have gotten them to give better evidence than a screenshot.

If (and that is a big if) this case goes to the defendent, and he is not liable to pay damages, then would she be able to file a claim for her settled case's costs and settlement money? Probably not as it was a settlement, but still... Oh well.

Bad complaint

[terrymr]

ok IANAL but the original complaint seems to be a terrible piece of writing :

Plaintiffs are informed and believe that Defendant, without the permission or
consent of Plaintiffs, has used, and continues to use, an online media distribution system to
download the Copyrighted Recordings, to distribute the Copyrighted Recordings to the public,
and/or to make the Copyrighted Recordings available for distribution to others. In doing so,
Defendant has violated Plaintiffs' exclusive rights of reproduction and distribution. Defendant's
actions constitute infringement of Plaintiffs' copyrights and exclusive rights under copyright.

So they're alleging that they believe something ? Shouldn't their allegation be "Defendant illegally downloaded our stuff" and not "We believe the defendant illegally downloaded our stuff". If I were the judge I'd be included to say "Believe whatever you want, case closed!"

Re:Bad complaint

[Anonymous Coward]

Plaintiffs are informed and believe that Defendant,

They are informed and believe. Someone told them that you downloaded, and we believe them.

Re:Bad complaint

[DragonWriter]

So they're alleging that they believe something ? Shouldn't their allegation be "Defendant illegally downloaded our stuff" and not "We believe the defendant illegally downloaded our stuff".

One initiating a lawsuit is not required to have evidence establishing the truth of every claim before filing a complaint (that's what discovery to develop evidence and trials are for); those things that the plaintiff does in fact believe and will seek to establish as fact, but which the plaintiff cannot state as certain facts, are often qualified in complaints as being stated on "information or belief" or some close variation on that phrasing.

It's not bad writing, its domain-specific writing.

If I were the judge I'd be included to say "Believe whatever you want, case closed!"

Its probably a good thing you aren't a judge, then.

Re:Bad complaint

[jfengel]

"Informed and believe" is usually used in conjunction with "allege". The lawyers agree with you that it's a weird formulation, and repeatedly say, "We don't know what you believe, and don't care." I'm not sure why they didn't use the word "allege" there, since they're right: it doesn't matter what they believe or what they know. I don't know what the judge is going to make of it.

Just for the record, they're not accusing the guy of downloading stuff. They're accusing him of uploading stuff.

Re:Bad complaint

[terrymr]

I'm not saying they need evidence, I'm saying they need to clearly and succintly explain what the alleged tort is. Instead they claim that they have a belief. I've seen a bunch of complaints and they aren't usually worded like this.

Re:Bad complaint

[terrymr]

You link deals with affidavits, where you are making sworn statement and wish to qualify something you don't have direct knowledge of. Complaints aren't written that way, a complaint is presented as a set of facts. The defendant can then admit or deny each fact alleged. You then have a trial or other proceeding to sort out the disputed facts (if any) or points of law as appropriate.

Re:Bad complaint

[DragonWriter]

I'm not saying they need evidence, I'm saying they need to clearly and succintly explain what the alleged tort is. Instead they claim that they have a belief. I've seen a bunch of complaints and they aren't usually worded like this.

I've seen a bunch of complaints, and they are a mixed bag, but references to "information and belief" aren't all that uncommon. Here are a few examples from a quick googling:

Raytheon v. John Does 1-21
Roadrunner v. Network Solutions
US v. Olivia Alaw, et al.
Macromedia v. Adobe Systems
British Telecom v. Prodigy

The use of allegations on "information and belief" is very common.

Re:Bad complaint

[DragonWriter]

You link deals with affidavits, where you are making sworn statement and wish to qualify something you don't have direct knowledge of. Complaints aren't written that way, a complaint is presented as a set of facts.

You clearly didn't read the link:

information and belief
n. a phrase often used in legal pleadings (complaints and answers in a lawsuit), declarations under penalty of perjury, and affidavits under oath, in which the person making the statement or allegation qualifies it. In effect, he/she says: "I am only stating what I have been told, and I believe it." This makes clear about which statements he/she does not have sure-fire, personal knowledge (perhaps it is just hearsay or surmise) and protects the maker of the statement from claims of outright falsehood or perjury. The typical phraseology is: "Plaintiff is informed and believes, and upon such information and belief, alleges that defendant diverted the funds to his own use."

Note that the three examples of places where it is used are:
1) Legal pleadings (complaints and answers),
2) Declarations under penalty of perjury, and
3) Affidavits under oath

Pleadings (including complaints) are the very first thing referred to in the link which you claim only deals with affidavits but not complaints.

Complaints are in fact written that way, as the examples I presented in response to your other response to the same comment demonstrate.

Re:Bad complaint

[NewYorkCountryLawyer]

I agree with you that the complaints are defective.

They're all the same by the way, all 20,000 of them.

So far though 6 out of 6 judges have said that this vague complaint is ok for the first round.

We're still waiting for judge number 7, Judge Karas, in Elektra v. Barker.

Re:Bad complaint

[terrymr]

OK - Fair enough ... but it apparently caught the attention of the defendants lawyer in the case who repeatedly says that they are in no position to admit or deny that the plaintiff believes something.

Re:Bad complaint

[terrymr]

You're right on the link.

It still seems like bad writing in this case as they've qualified their core allegation as a belief. I guess you don't get style points in a lawsuit though.

Re:Bad complaint

[f1055man]

IANAL, but I spend way too much time reading court documents. Both instances are pretty much boilerplate language. The informed and believe is a way of saying we'll try to prove it in discovery and at trial, a threat basically. Now if defense had denied the accusation it would be saying, "then prove it." "no position to admit or deny that the plaintiff believes something" translates from lawyer into english as "go fuck yourself." Most cases the lawyers file briefs back and forth and a couple months or years later a judge finds one way or the other; they go through the motions. Some lawyers always use "no position to admit or deny", but in this case it looks like a threat: "fuck you, we're going to be a pain in the ass." Sometimes they go through the motions and sometimes they declare war. The gauntlet has been thrown down, and now the RIAA is getting a shitstorm of motions attacking their case even before they've attempted to make it. The key is how to do this without pissing off the judge, while fighting tooth and nail for every bit of leverage possible. The defendant's lawyers in this case look like they are going to make this painful for the RIAA. Good for them.

the RIAA wants to collect twice...

[teh_chrizzle]

there's surpsise! i think i might have a heart attack and die because of that surprise.

Piracy Tax for the Zune

[norminator]

silly questions but... ...do the artists get an automatic percentage of this tax collected by the music industry in canada?

I don't know about Canadians, but my understanding is that with the Zune situation, the artists get half of the money that Universal gets from Zune sales. I think Universal gets about $1/Zune. So each artist gets a pico-cent from the Zune. Altogether they should end up with a total of 12 pico-cents each.

He stands no chance of winning ....

[Anonymous Coward]

.... his lawyer's name is mud.

Just an opinion

[zappepcs]

because IANAL and other such notices, and either way, if IRCC, Kazaa was sued successfully because they encouraged the illegal downloading and sharing of copyrighted works through the use of their software, rather than being responsible for everyone's use of their software, they were found guilty of encouraging people to use their software for illicit purposes, sort of like a pipe manufacturer encouraging people to get high, rather than simply selling pipes. Its a fine line, but I think this guy might have the same chance of pleading innocence as those who became hooked on cigarettes... IF ... nothing else is given as evidence against him. It is a very thin edge he is on... as far as I can see.

They may be complicit, but I think the judge will still see this guy as having guilt regarding the 'crime' in question.

Re:Just an opinion

[Kjella]

ts a fine line, but I think this guy might have the same chance of pleading innocence as those who became hooked on cigarettes... IF ... nothing else is given as evidence against him. It is a very thin edge he is on... as far as I can see.

No, there's no fine line. Even if you can prove you did it in good faith, you're still liable (I think it drops from 750$/work to 100$/work, but you'd have to look it up).

Jury trial

[Saxophonist]

I see that the defendant has requested a jury trial, an interesting choice... How likely is some sort of jury nullification, should the case actually go to a jury trial? (Of course, the jury could simply find that the facts support the defendant's case, which is not the same as nullification. How would we know the difference?)

Re:Jury trial

[NewYorkCountryLawyer]

We don't need jury nullification. The plaintiffs have no case.

Re:Jury trial

[westlake]

How likely is some sort of jury nullification, should the case actually go to a jury trial?

juries tend to be middle-aged, middle class, small-c or large-C conservative. people who take the oath seriously and are not looking for an excuse to beg off.

not a particularly benign environment for the defendant.

one last word of practical advice for the Geek: never go into court thinking you are O.J. Simpson.

Re:Jury trial

[NewYorkCountryLawyer]

The juries in these cases will be very pro-defendant. Which is why you're not hearing about a lot of jury trials. It's not the RIAA's style to let it get to that.

Re:Jury trial

[NewYorkCountryLawyer]

Jury nullification is not needed. All that is needed is a fair trial. In most of the cases.... the RIAA does not have a case. No reason in the world to think the jurors will be biased towards the RIAA.

Umm...

[Ahnteis]

That's $750 PER SONG. Share 1(one) CD? $7,500+. That's a hefty fee for putting something on Kazaa. (Compare to fines for reckless driving and the like.) Given the bandwidth most people have it's extremely unlikely that they've uploaded to more then 50 people. (The song itself may be shared more then 50 times, but not by just one person.)

Re:Umm...

[shark72]

"That's $750 PER SONG. Share 1(one) CD? $7,500+."

Good point. I think the "$750 per work" language is a remnant of the old days of piracy, where people tended to pirate entire albums, books, or movies at once. It's from before today's song-by-song piracy.

"That's a hefty fee for putting something on Kazaa. (Compare to fines for reckless driving and the like.)"

Yet if your sharing that song with 10,000 people caused the rightsholders a loss of $750 of business, then it's just. Yeah, yeah, I know, the rightsholder might not need the money and might be a cocaine addict, but rich cocaine addicts have the same rights under the law as we do.

"Given the bandwidth most people have it's extremely unlikely that they've uploaded to more then 50 people. (The song itself may be shared more then 50 times, but not by just one person.)"

You've nailed it. I recall some analysis several years back that through fingerprinting or what have you, they found 16K copies of an Eminem song on a P2P network that all came from the same rip. Power in numbers.

Re:Umm...

[Anonymous Coward]

Double counting damages is not exactly legit. The RIAA cannot sue me for illegally distributing a song, claiming I am responsible for "downstream" sharing, and then sue "downstream" sharers as well. Either I am responsible or the downstream user is responsible -- claiming both, at least if the RIAA benefits from it the first time, is called judicial estoppel and is grounds for their argument to be thrown out. The defendant's theory in this case is probably similar.

Re:Umm...

[arth1]

Yet if your sharing that song with 10,000 people caused the rightsholders a loss of $750 of business, then it's just.

Then it would be just if they recovered the money once and all others would be free of indemnity after that. But the way the law is, it gives them the right to recover $750-150,000 from each and every one of the 10,000 people, which surely can't be in the spirit of justice?

Terminology

[NewYorkCountryLawyer]

Just for the record, the document is called an "answer", not an "answering statement".

The judges are on their side

[Anonymous Coward]

Over the past 25 years or so there has been a concerted effort to pack the bench with right-wing judges. These judges tend to be unsympathetic to the downloaders and very sympathetic to big business. We shouldn't be surprised when outrageous decisions are made.

Re:The judges are on their side

[Anonymous Coward]

Why would the left-wing judges be any more sympathetic?

The Democratic Party is Hollywood's biggest supporter.

Besides, breaking the law is breaking the law. Why should any judge look the other way on this?

Greubel Has Sugar Daddy

[cmholm]

It would seem that Mr. Greubel has been given the wherewithall to fight the case by a Vancouver-based music producer who is looking to create a proper test case to challenge the RIAA "John Doe" lawsuits.

Re:Greubel Has Sugar Daddy

[Aussie]

Interesting link, pity I'm out of mod points.

I wonder if GooTube

[netsfr]

will have to pay big $$$ to everyone who owns a copyright (to get out of infrengment) just like Kazza? hummm, should I have someone else post my (c)opyrighted material up on YouTube and get ready for a big dip into the deep googlewallet?

Re:I wonder if GooTube

[idonthack]

No. Individual artists won't get compensation without their own suit. You have to be part of an association (MPAA/RIAA) to get anything from them, and even then I doubt you'd see much.

Is bandwidth a consideration?

[Scrithy]

If the user put up 5000 songs for download for 24 hours, but their personal internet bandwidth could only support actually uploading 50 songs in that time period, shouldn't they only be liable for a maximum of AverageRetailPricePerSong * 50?

Re:Is bandwidth a consideration?

[raynet]

Ah but you forgot that usually P2P programs split the files into small chunks that are then downloaded from multiple servers. So the question is, how much of the file do you need to upload for it to be counted as 1 song?

Re:Is bandwidth a consideration?

[Talchas]

Thats simple - if the song is 100kb, divide amount uploaded by 100kb and thats the number of songs uploaded.

Good idea

[Dachannien]

Glad I thought of it. :) But seriously, I'm glad to see somebody pursuing this line of thought. I hope the guy doesn't end up settling, because these are issues of law that really need an answer from the courts.

There's an element of "doing it on principle" here, because if Joe Sixpack is jointly and severally liable with Kazaa for damages, then it means that Kazaa could (at least potentially) sue Joe for his contribution to the damages. It opens a lot of questions, like how much of the settlement Joe is actually responsible for. It's at least possible, though, that Joe would be out the same amount of money to Kazaa that he would be to the content cabal, in which case it's basically a matter of whether you want to mitigate a filesharing network's losses or put additional cash in Cary Sherman's hands.

Re:Good idea

[NewYorkCountryLawyer]

On the contrary. Kazaa has no case against him. But he has a case against Kazaa for getting him into this pickle. See discussion by judge in Interscope v. Duty at Section C, pages 4-5.

Re:Good idea

[Dachannien]

I'm not sure that makes sense to me, but on the other hand, only one of us is a lawyer, and it sure ain't me ;)

I want to see someone try a "CD tax" defense

[Deagol]

I'd love to see a defendant in one of these suits argue that because they had previously bought a spindle of CDs or any media storage device that has the tariff/tax included in the price (that supposedly to compensate for piracy) they should not be held liable for the copyright violations, and *then* counter sue to force the RIAA/MPAA's hands to either give up the tariff or the right to sue for the violations.

Seems these orgs are double-dipping in a *big* way with the current system, and they need to get spanked hard in court for doing so.

So.... any lawyers or other legal eagles out there care to comment on the feasibility of these strategy?

Sued?

[nurb432]

Or just taken out back and shot?

No CD tax in the US

[moosehooey]

The US does not have this type of media tax. Canada does, and perhaps that's why these lawsuits aren't a problem there.

Re:No CD tax in the US

[Overzeetop]

Actually, they do, but it is not applied to data CDs, only to "music" cds. Consumer standalone CD recorders, I believe, are supposed to require music cds for burning, regardless of source. This may or may not solve the problem because the RIAA isn't claiming that the defendant copied songs from someone else, but rather they offered their songs to others. Owning a stack of music CDs doesn't help if you never used them, and effectively couldn't have used them for the act they are accused of.

Re:No CD tax in the US

[Deagol]

The point is that these agencies are pro actively taking money from all of those who purchase media with the aforementioned media "tax" under the assumption that people are infringing copyright in some way with the media. If they have the omniscience to know that everyone is making unauthorized copies (and dinging us all for it when we buy media), they should suck it up and let everyone enjoy what they've already paid for, as they do in more enlightened countries like (I believe) Canada, and not be allowed to pursue downloaders/seeders. If they can't stomach loosing their settle-out-of-court-extortion income stream, they should lose any tariffs on media.

I guess my broader suggestion is that someone needs to challenge either the tariffs or the lawsuits, as the RIAA/MPAA shouldn't be able to have their cake and eat it, too.

Re:No CD tax in the US

[Anonymous Coward]

The point is that these agencies are pro actively taking money from all of those who purchase media with the aforementioned media "tax" under the assumption that people are infringing copyright in some way with the media. If they have the omniscience to know that everyone is making unauthorized copies (and dinging us all for it when we buy media), they should suck it up and let everyone enjoy what they've already paid for, as they do in more enlightened countries like (I believe) Canada, and not be allowed to pursue downloaders/seeders. If they can't stomach loosing their settle-out-of-court-extortion income stream, they should lose any tariffs on media.

Right...

1. They can still go after seeders in Canada. It's illegal to upload, but not to download. Uploading facilitates the unauthorized distribution of copyrighted materials, and because of that, it's still illegal.

2. CRIA (the Canadian version of RIAA) has gone after large uploaders. The problem is that a lot of the material being uploaded is not material that they hold the copyrights to, and so they can't hit people nearly as hard as they can in the US. It's difficult to hit people when they have to sift through large amounts of data that doesn't concern them, and so such cases are rare and usually reserved for targets such as web sites that are easy to prosecute.

3. The tariffs on recordable media are not distributed to CRIA. It's distributed to the assorted songwriters and performers' guilds, which then distribute it directly to the artists. I could be wrong, but I think they look at need more than they do popularity in deciding who gets how much money... I'm not on the inside there, and have no idea how the money is handed out.

4. CRIA has been lobbying (unsuccessfully for now) to have Canada implement a DMCA-like law that makes ripping and downloading illegal. For now, it isn't, but I don't know how long that's going to last.

I've said it once...

[Anonymous Coward]

...and I'll say it again.

If people would STOP pirating music, the MPAA, RIAA, etc, would go away. Sheesh.

Re:I've said it once...

[mr_matticus]

True, but consider the audience. Saying the customers are just as greedy and deceitful as the recording industry is like saying apple pie is un-American.

what's the ratio of Zune-points to pico-cents?

[johnpaul191]

maybe they can eventually buy a song, or a yo-yo or something.

that Canadian media tax was also put on blank CDs and DVDs iirc. oddly i do not think it applied to HDDs, just plastic media and portable MP3 players. didn't the iPod/MP3 player part of that tax get overturned? i thought there was some sort of rebate. i know the same idea has bounced around in parts of Europe too.

Reminds me of my wife's granddad.

[Ungrounded Lightning]

Cool - send them a twenty and go download some more stuff.

Reminds me of my wife's granddad and the KKK.

They objected to his choice of wife. One of their members came out to his farm (as he was mending a fence with wife's pop - then a toddler - holding a tools for him) and ordered him off his land and out of the area. He waited until the guy turned around, then beat him unconscious, loaded him onto his mule-drawn wagon, and set the mules walking back home.

Sheriff came out to demand he come into town to be tried for assault. He said he'd be in the next day.

Came in and went to the judge's office. (Judge, of course, also KKK.) Judge told him the fine was something like $100 (a small fortune at the time). He laid down twice the fine.

"What's that for?" asks the judge. "I figure I'll pay for the next one in advance."

Then he beat the tar out of the judge.

(How he avoided the lynch mob is a separate story. And don't try this at home - or in court - these days, kiddies.)

Re:Reminds me of my wife's granddad.

[aussie_a]

If it is true, you're wife's granddad was sure someone who while I technically should frown upon, sounds pretty good in my book. Although the story does sound extremely similar to what I've heard before so I'm thinking it's more an urban myth.

Re:Reminds me of my wife's granddad.

[Ungrounded Lightning]

I got it from her dad (the kid holding the tools - now deceased). However it's also documented in the newspapers of the time - which were involved in the the after-story of how he lived through it all.

Forgot to mention: What he said to the first Klansman (when initially confronted) was something to the effect of "The last batch of people in funny clothes that tried to drive us off this land wore feathers."

My wife's family fought the clan through three generations at least - often with firepower. One of the bits of family wisdom I got from her was, when confronted with a clan mob, to shoot the fenders of their cars. Then you can go into town next Sunday and identify who had been on scene.

Off topic.

[Anonymous Coward]

So, riddle me this, captain.

Let's say I am the holder of a copyright in a work. I license a third party so that he's allowed to distribute the work over the Internet, to anyone, on demand, via a website (or an FTP site, or a P2P app, or whatever). I do not, however, license the downloaders to make copies. So, the third party is in the clear (not infringing the distribution right), but anyone who goes connects to the third party to download the work is not.

Can I sue the downloaders once the third party gives me his logs?

What if I did this intentionally, just to sue the downloaders?

I mean this hypothetically of course, as a thought experiment, because I've been wondering about websites and "implied licenses." Plenty of copyrighted content is available on the web. But, for a website, there's no such thing as merely viewing—viewing entails making a copy. One way around this is the idea that there's an implied license: buddy puts up a site, so he expects people to make copies in order to be able to view it.

Now consider, a P2P honeypot. Record company, or its licensed agent, puts up a song it owns and sues everyone who downloads it. Why wouldn't the implied license defense work here? It seems identical to the circumstance above where I (hypothetical I) create a work intentionally to sue people who download it.

Re:Off topic.

[cpt kangarooski]

It sounds like you've either got an implied license, or that someone could have a good argument in equity against you. This is probably why, AFAIK, there aren't copyright suit honeypots.

There's enough easy to find infringement going on anyway, and no one views ordinary P2P-type infringement as a way to make money through actual or threatened litigation, so I'm unsurprised that the idea of honeypots seems not to have caught on, given how unlikely it would be to work in the first place.

Why 2.80$ ?

[Yvan256]

Last time I checked on the iTunes Store, songs were 0.99$, not 2.80$. Where is that 2.80$ price coming from? Is it the price the RIAA would like to push on us? Do they think 28.00$ albums would sell, in download form on top of that price?!

Can't wait to see the first big artists sign up directly with Apple and bypass the RIAA completely.

Re:Why 2.80$ ?

[gnasher719]

'' Last time I checked on the iTunes Store, songs were 0.99$, not 2.80$. Where is that 2.80$ price coming from? ''

Just a suggestion: First, the $0.99 is irrelevant. The damage to the recording industry is not $0.99. It is estimated that Apple pays $0.70 per song to the recording industry, $0.29 is for Apple to run the store, supply the music, make a bit of profit. Since you didn't buy from iTMS, Apple can't really complain (they could complain if you found a way of downloading from the iTMS without paying), so the damage is $0.70. Multiply by four as a reasonable estimate that a song that you offer for download will be download four times on the average.

The $700 minimal damages are completely unreasonable, because that would require 1000 downloads. Now if you made an illegal copy of the latest U2 album before it is released, and started selling records based on that copy before U2's record company starts selling, then I wouldn't say that the upper range of $150,000 for unproven damages couldn't be appropriate (and the record company would be free to find evidence that actual damages are even higher), but $700 for uploading a song that is available for $0.99 everywhere is unreasonable.

Re:Why 2.80$ ?

[NewYorkCountryLawyer]

1. Actual damages = wholesale price of 70 cents

2. 4 x 70 cents = $2.80

3. Quadruple damages is enough punishment

Giggle

[Anonymous Coward]

> RIAA Defendant Says Kazaa Settlement Bars Case

Oh that Borat!!! What has he done now?

CD tax outdated anyways?

[MadCow42]

The real question is if tax on CD's is really relevant anymore... how many people actually burn music back to CD's after downloading/ripping it? I'd guess that 95% plus goes straight to an MP3 player.

Taxing CD's for music piracy is not really hitting the nail on the head anymore. Bandwidth is cheaper, and MP3 players too common.

MadCow

MOD PARENT UP!

[legalize.ganja.now.]

what is it these days that frist ps0ts are being modded offtopic?
especially this one, which should really be +5 insightful!

Re:MOD PARENT UP!

[Anonymous Coward]

How is stating common knowledge insightful...except in the case of the USPTO and patents?

Re:MOD PARENT UP!

[MLease]

Simply saying "RIAA sucks" is not insightful. I wouldn't call it "offtopic", exactly (maybe redundant?), but it doesn't contribute anything useful to the discussion. It was clearly a pot shot at first post, with a nod to the topic, perhaps in hopes of not getting modded down.

-Mike

By the way...

[Ungrounded Lightning]

If it is true, you're wife's granddad was sure someone who while I technically should frown upon ...

Why "should technically frown upon"? He did the right thing. Nobody killed, only two bad guys hurt, nobody driven off their family land, gang activity aborted (rather than growing with success and ending up killing and/or driving off more people).

Those who initiate deadly force or its threat have chosen to have force used in the interaction and chosen to risk the consequences. Those they impose did not have that choice: They are left with only a choice of how it is to be used. If they, in turn, chose to defend their life and limb with deadly force, the initiator has no gripe.

The victim who defends is on solid moral ground. Any ideology that says otherwise is merely a convenient tool for bullies, crooks, and tyrants.

Re:By the way...

[aussie_a]

I don't believe in beating up a judge who didn't actually do anything physically violent ;)

Re:By the way...

[Ungrounded Lightning]

So I take it that engaging in a (still in progress) conspiracy to murder you and your family is inadequate justification for laying on of fists?